Johnstone and Fitzpatrick (Child support)
[2025] ARTA 1594
•11 July 2025
Johnstone and Fitzpatrick (Child support) [2025] ARTA 1594 (11 July 2025)
Applicant: Mr Johnstone
Respondent: Child Support Registrar
Other Parties: Miss Fitzpatrick
Tribunal Number: 2025/SC029461
Tribunal: General Member S Hoffman
Place:Perth
Date:11 July 2025
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – percentage of care – older child’s ongoing relationship with father but choice not to maintain visits – occasional sleepovers with friends or maternal grandparents – father’s estimate of care percentage accepted as likely but will not affect rate of child support – child now 18 and collection of child support ceased – decision under review affirmed
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
BACKGROUND
Mr Johnstone and Miss Fitzpatrick are the parents of [their child], born February 2007. He is now 18 years old. The collection of child support has ceased. The father was the paying parent.
On 20 September 2023, the mother contacted Services Australia – Child Support (Child Support) to advise that she had been providing 100% care for [the child] since 7 May 2023.
At the time of contact, and since 11 March 2014, the Child Support system recorded that the mother provided 86% of [the child]’s care and the father provided 14%.
On 8 April 2024, an officer from Child Support decided that the mother provided 100% of [the child]’s care from 7 May 2023, as notified on 20 September 2023 (the original decision).
On 10 April 2024, the father notified Child Support of a change in care from 7 May 2023. On 22 May 2024, he was advised that because this was the same date as used in the original decision, he had the option of lodging an objection to the original decision.[1]
[1] Page 45 of the Child Support documents
On 14 June 2024 Child Support recorded that the father lodged an objection to the original decision.[2]
[2] Page 47 of the Child Support documents
On 28 November 2024, an objections officer from Child Support disallowed the objection (the objection decision). This meant that there was no change to the original decision.
On 7 March 2025, the father lodged an application for review with the Tribunal.
The matter was heard on 25 June 2025. The father and the mother attended the hearing via MS Teams audio, equivalent to attending by telephone. The parents gave sworn evidence.
The Tribunal had before it a bundle of documents provided by Child Support, numbered 1 to 78, copies of which were provided to the parties before the hearing.
After the hearing the Tribunal sought clarification from Child Support as to whether the mother first notified of the change in care on 20 September 2023 or 12 November 2023 as the documents in the Child Support bundle referred to both those dates as being the date of notification.[3] Child Support checked its records and confirmed that 20 September 2023 was the correct date. It provided additional documents to support that. The Tribunal is satisfied that the mother first notified the change in care on 20 September 2023 and not 12 November 2023.
[3] See pages 18, 26, 27 and 36 of the Child Support documents as well as the objection decision.
The Tribunal made its decision on 11 July 2025.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).
The issue which arises in this case is the percentage of care provided by the parents from 7 May 2023.
CONSIDERATION
Legislation
Section 50 of the Act requires Child Support to determine a person’s percentage of care during a care period, if Child Support is satisfied that the person has had, or is likely to have, a pattern of care during the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child that Child Support is satisfied that the responsible person has had, or is likely to have, during the care period.
If a parent or non-parent carer has had no pattern of care during a care period, section 49 of the Act requires that a determination is made that the percentage of care was nil.
Section 54D of the Act is about rounding up or down percentages of care if the percentage of care works out to be not a whole percentage. If the percentage is greater than 50% then the percentage is rounded up. If less than 50% then it is rounded down. (An example is that 62.2% is rounded up to 63% and 37.8% is rounded down to 37%.)
The legislation provides for existing percentage of care determinations to be revoked (sections 54F, 54G and 54H of the Act) and replaced by new percentage of care determinations (sections 49 and 50 of the Act).
Section 54F of the Act sets out that a care determination must be revoked if a change in the care percentage would affect the cost percentage. (If the cost percentage is affected, the rate of child support payable changes.)
Section 54H of the Act allows for the Registrar (Child Support) to change a care percentage even though the cost percentage will not be affected. This essentially gives the decision-maker discretion to record a change or not, depending on the circumstances, even though the rate of child support payable will not be affected.
A care period is defined in the Act as being an appropriate period having regard to all the circumstances.
Lodging objections and applications for review in timely fashion
The R&C Act includes provisions to do with the date of effect of a decision if:
a person has lodged an objection more than 28 days after being notified of an original decision (section 87AA), or:
a person has sought review by the Tribunal more than 28 days after being notified of an objection decision (section 95N).
If a person has lodged their objection or application for review outside of the 28-day timeframe, then the date of the effect of a favourable decision will generally be the date they lodged their objection/application for review, unless there are special circumstances that prevented them lodging the objection/application for review within the 28-day timeframe.
Sections 87AA and 95N refer to care percentage decisions and not other types of decision that may be made by Child Support.
Evidence and consideration of evidence
In his application for review, the father wrote there were court orders that stated he had 14% care of [the child]. The mother disputed this. She said that there were court orders made in 2003 to do with [the child]’s older sister, not [the child].
The Tribunal is required to consider the actual pattern of care. The father said at the hearing that the actual care did not reflect what was in the court orders during the period relevant to this review. That being the case, the Tribunal does not consider it necessary to ascertain whether or not there were court orders drawn up many years ago in relation to [the child].
When she contacted Child Support to advise that there had been a change of care, the mother said that [the child] had left school and started working. He was building a social life and had chosen not to maintain his fortnightly visitation with his father. She said that started on 8 May 2023. Child Support recorded that based on what the mother said, she had 100% care.
Child Support contacted the father on 24 November 2023. He said that [the child] was not with his mother all the time as he stayed with friends at the weekends. The father said his door was open to [the child] at all times if he wanted to stay and the percentage of care should not change even though [the child] had not stayed with him for over a month.
As there was disagreement between the parents, Child Support sought more evidence.
On 13 March 2024, the mother advised Child Support that during June and July 2023, [the child] had stayed with friends at the weekends due to personal/family reasons but had returned home since then. She advised that he did have sleepovers at friends’ homes but not on a regular or permanent basis.
On 26 March 2024, the mother advised Child Support that [the child] had 11 sleepovers with his friends or maternal grandparents on the following dates between 8 May 2023 and 26 March 2024:
· 19 May 2023
· 3, 11, 16, 17, 23, 24 June 2023
· 14 July 2023
· 10 November 2023
· 5 and 20 January 2024
The mother stated that during that period, [the child] had stayed with his father for two nights, being 16 February 2024 and 8 March 2024.
The mother also provided letters from [Ms A], [the child]’s older sister, and [Mr B], [the child]’s stepfather. They asserted that the information the mother had provided about the number of sleepovers and that [the child] was in her 100% care were correct.
At the hearing, the father said that [the child] would be due to stay with him and would then change his mind as he wanted to stay with his friends instead. The father said, and the Tribunal accepts, that he has a room in his home for [the child] and buys things for him from time to time, in addition to paying child support. He said that [the child] might come over and then maybe the father would not see him for a few weeks.
The mother acknowledged that [the child] had an ongoing relationship with his father.
The father said that he estimated that he provided 10% to 12% care for [the child]. The Tribunal considers this to be quite likely. However, the rate of child support is the same when the care provided by a parent is between 0% and less than 14%.
As changing the care percentage from 0% to say 12% will not affect the rate of child support, the Tribunal declines to do so (section 54H of the Act).
The mother advised Child Support on 20 September 2023 that the change in care occurred in May 2023. Self-evidently, she did not tell Child Support of the change within 28 days of the change. There was no evidence that she was prevented from doing so sooner than she did because of special circumstances. That being the case, the Tribunal is satisfied that the date of effect of the change is the notification date of 20 September 2023.
The Tribunal concludes that the objection decision is the correct decision.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | Wednesday, 25 June 2025 |
| Representative for the Applicant: | Not applicable |
| Representative for the Other party: | Not applicable |
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