Howard and Chorlton (Child support)
[2025] ARTA 619
•13 March 2025
Howard and Chorlton (Child support) [2025] ARTA 619 (13 March 2025)
Applicant: Miss Howard
Respondent: Child Support Registrar
Other Parties: Mr Chorlton
Tribunal Number: 2024/BC028720
Tribunal:Member S Letch
Place:Brisbane
Date:13 March 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that:
(a) care for [Child 1] is to be recorded as 72% to Miss Howard and 28% to Mr Chorlton from 8 September 2020 (notified on 9 April 2024);
(b) care for [Child 1] is to be recorded as 65% to Miss Howard and 35% to Mr Chorlton from 14 April 2021 (notified on 9 April 2024).
CATCHWORDS
CHILD SUPPORT – percentage of care – a new pattern of care commenced – parties’ respective percentages of care will be changed – decision under review set aside and substituted
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
Miss Howard and Mr Chorlton are the parents of [Child 1]. This matter concerns a decision by Child Support about his recorded care.
It is convenient by way of background to set out some extracts from the objections officer’s decision dated 10 October 2024:
…
SUMMARY OF OBJECTION DECISION
The outcome of this decision is that it has been allowed.
We have made the decision to refuse the Family Assistance Office (FAO) decision to apply the care for [Child 1] as 76% to Miss Howard and 24% to Mr Chorlton from 1 June 2020, notified 9 April 2024.
The effect of the objection decision is: a reduction to the annual rate of Child Support payable by Mr Chorlton from 9 April 2024.
DECISION UNDER REVIEW
The decision made on 2 July 2024 to apply the Family Assistance Office (FAO) decision to accept the care for [Child 1] as 76% to Miss Howard and 24% to Mr Chorlton from 1 June 2020, notified 9 April 2024.
…
The existing level of care recorded for [Child 1] was 50% to Miss Howard and 50% to Mr Chorlton from 18 January 2020.
On 2 July 2024, we applied the Family Assistance Office (FAO) decision to accept [Child 1]'s care as 76% to Miss Howard and 24% to Mr Chorlton from 1 June 2020, notified on 9 April 2024.
On 22 July 2024, Mr Chorlton objected to this decision on the grounds noted above.
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REASONS FOR THE DECISION
The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (CSA Act section 54A).
FAO can make care percentage decisions which can also apply for child support purposes.
In this case, on 2 July 2024 we made the decision to accept the care determination made by FAO to accept [Child 1]'s care as 76% to Miss Howard and 24% to Mr Chorlton from 1 June 2020, notified 9 April 2024.
Mr Chorlton objected to this decision on the grounds that he has always had 50/50 care of [Child 1] as per their Parenting Plan. Mr Chorlton provided evidence in the form of their Parenting Plan, Statutory Declaration and copy of text messages exchanged between Mr Chorlton and Miss Howard in relation to the care of [Child 1].
In response, Miss Howard advised she applied for FTB and as part of this application she included their parenting agreement and a form signed by Mr Chorlton about the current care arrangements.
Based on the information and evidence from both parties, we have made the decision refuse the care of [Child 1] as 76% to Miss Howard and 24% to Mr Chorlton from 1 June 2020, notified 9 April 2024.
The objection is allowed.
…
Miss Howard and Mr Chorlton participated in the Tribunal’s hearing by conference telephone. In making its decision, the Tribunal took into account the Child Support hearing papers and the additional materials submitted by both parties.
In summary, there was general agreement between the parties about actual care. Miss Howard said that the “50/50” care arrangement was in place until around September 2020 when, in accordance with a parenting agreement (starting at folio 357 of the Child Support hearing papers), Mr Chorlton commenced having four nights a fortnight of care. The agreement proposed a change from January 2021; that did not occur until April 2021 when Mr Chorlton commenced having an extra night a fortnight (giving him a total of 5 nights a fortnight). That arrangement (with some extra ad hoc nights in Mr Chorlton’s care) persisted until October 2024.
Mr Chorlton raised the matter of Miss Howard opting for collection of arrears by Child Support in October 2024; the Tribunal explained that was a separate matter not before the Tribunal in this review which was only concerned with recorded care. Mr Chorlton also raised issues about Miss Howard’s income; the Tribunal advised that he is at liberty to apply to Child Support for a “change of assessment” if he considers the adjusted taxable income reflected in the assessment for Miss Howard is not reflective of her true financial capacity.
Application of the law
Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced. It is important to observe that each care change is the subject of a separate notification and a separate decision.
In Child Support Registrar v BKCZ [2023] FCA 1109 (“BKCZ”), it was held that when “looking back”, the Tribunal was obliged to adopt an approach incorporating a consideration of events occurring after the date of notification of the change. In the case of Child Support Registrar v DQFY [2023] FCA 601, the Federal Court upheld a decision of the Administrative Appeals Tribunal which set more than one care percentage where there was clear evidence of a further change in the pattern of care that the parents had, or were likely to have, during a particular care period. In such circumstances, the court found that a “bifurcation” of the care determination was necessitated having regard to the evidence before the Tribunal.
There was general agreement between the parties. I note that the general pattern of care is assessed with a relatively “broad brush”; the ad hoc additional nights identified by Mr Chorlton were not such as to disturb the general pattern of care which tolerates deviation. The assessment is not intended to record every single night in care.
In accordance with the agreed evidence, I find that the general pattern of care for [Child 1] should be recorded as 72% to Miss Howard and 28% to Mr Chorlton from 8 September 2020. From 14 April 2021, care should be recorded as 65% to Miss Howard and 35% to Mr Chorlton. Both of these changes were notified to Child Support on 9 April 2024.
As I have reached a different conclusion to the objections officer, the decision under review will be set aside.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that:
(a)care for [Child 1] is to be recorded as 72% to Miss Howard and 28% to Mr Chorlton from 8 September 2020 (notified on 9 April 2024);
(b)care for [Child 1] is to be recorded as 65% to Miss Howard and 35% to Mr Chorlton from 14 April 2021 (notified on 9 April 2024).
| Date of hearing: | Monday 17 February 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other Party: | Self-represented |
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