Marson and Marson (Child support) - [2025] ARTA 946

Marson and Marson (Child support) [2025] ARTA 946 (24 February 2025)

Applicant/s:  Mrs Marson
Respondent:  Child Support Registrar
Other Parties:  Mr Marson

Tribunal Number: 2024/SC028758
Tribunal:General Member S Irvine
Place:Hobart
Date:24 February 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the existing care determinations for Mr and Mrs Marson in respect of [Children 1-4] are revoked from 14 July 2024, and that from 15 July 2024 Mrs Marson has had 50% care of all four children and Mr Marson has had 50% care of all four children.

CATCHWORDS
CHILD SUPPORT – percentage of care – residing under one roof, with mother and children’s bedroom upstairs and father and spare beds downstairs – varying times and levels of care – determinations no longer valid – determinations revoked and new determinations made – decision under review set aside and substituted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

BACKGROUND

Mrs Marson and Mr Marson are the parents of [Child 1] (17), [Child 2] (12), [Child 3] (10) and [Child 4] (4). A child support assessment is in place for the children. From September 2022 Services Australia – Child Support (Child Support) had recorded care percentage determinations for all four children of 86% to Mrs Marson and 14% to Mr Marson.
On 26 July 2024 Child Support made a decision to revoke the existing care percentages for all of the children and to make new care percentage decisions that each parent had 50% care of all four children from 31 October 2023 (with a date of notification of 24 July 2024).
On 14 August 2024 Mrs Marson objected to Child Support’s decision and the matter was referred to a Child Support objections officer. On 11 October 2024 the objections officer disallowed the objection.
On 24 October 2024 Mrs Marson applied to this Tribunal for an independent review of Child Support’s decision. A hearing took place on 18 February 2025. Both Mrs and Mr attended the hearing by telephone and gave sworn evidence. I had before me documents submitted by Child Support numbered 1 to 146.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).
The issues that arise in this review are whether Mrs Marson and Mr Marson’s existing percentages of care for [the children] should be revoked, and if so what new care percentage decisions should be made.

CONSIDERATION

It is not disputed that Mr and Mrs Marson have been residing under one roof with the four children since approximately 31 October 2023. Prior to that date Mr Marson was residing at a separate property and had care of the children every second weekend from Friday to Sunday, and one night per week for dinner only and not overnight.
It is common ground between the parents that:

The family share a home at [Town], with Mrs Marson occupying the upstairs and Mr Marson occupying the downstairs area of the house. The children each have a bedroom upstairs, but there are beds that they can use in Mr Marson’s area of the house and at least some of the children spend some nights sleeping downstairs with Mr Marson.
When he moved back to the house, Mr Marson continued to care for the children largely in accordance with the parenting arrangements that were in place prior to him moving in. He would care for the children every second weekend, from Friday after school to Sunday. He also made dinner for the children on Thursday nights. At some point, likely around July 2024, he began also making dinner for the children on Tuesday nights, and contributing items for their school lunches on Tuesdays and Thursdays.
At the time Mr Marson moved back into the property at [Town] the mortgage was significantly in arrears. The arrangement was that Mr Marson would pay the mortgage until such time as the property is sold, which is anticipated to be later in 2025. Mr Marson has made some mortgage payments since he moved back in. Mrs Marson has not contributed to the mortgage.

Mrs Marson submitted that she does not believe that Mr Marson has 50% care of the children, as she does the majority of day-to-day care of the children. She said that while Mr Marson does contribute, she feels the major difference is that he can care for the children largely at his own discretion outside of his work hours, while she does not have that choice. Mrs Marson said that because of her responsibilities to care for the children she is limited to working two days per week while [Child 4] is at pre-school, whereas Mr Marson is able to work full-time.
Mr Marson submitted that his care of the children has been approximately 50% since “on or around” the date he moved back to the family home, which was at the end of October 2023.
In the decision of Polec & Staker [2011] FMCAfam 959, the Federal Magistrates Court said at [56] that in determining whether and to what extent a person has care of a child for the purpose of the child support legislation it is necessary to consider the following factors:
a.     To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
b.     To what extent does the person make arrangements for others to meet the needs of the child?
c.     To what extent does the person pay for the costs of meeting the needs of the child?
d.     To what extent does the person otherwise provide financial support for the child?
e.     To what extent does the child provide for his or her own needs or have those needs met from another source?
f.   To what extent is the child financially independent or financially supported from another source?
In relation to the first factor, Mrs Marson said that she is responsible for meeting the majority of the direct needs of the children. In relation to accommodation, the children can choose whether they sleep upstairs in her part of the house or downstairs in Mr Marson’s part of the house. In fact, [Child 1] never sleeps downstairs as she prefers to be in her own room. For the other children, when Mr Marson first moved back into the home they mostly kept to the previously existing schedule, so the children would be in Mr Marson’s direct care every second weekend and for dinner one night per week, but otherwise were upstairs with her. However, that arrangement has since relaxed. Mrs Marson said that [Children 3 and 4] sometimes sleep downstairs on weekends, [Child 3] more often than [Child 4]. [Child 2] rarely sleeps downstairs, and especially in recent months she prefers to be in her own room.
In relation to the provision of meals, Mrs Marson said that since he moved back into the property Mr Marson has provided dinner for the children every Thursday and every second Friday, Saturday and Sunday. He is also responsible for other meals every second weekend. In approximately July 2024, at her request, he also began providing dinner for the children every Thursday night, and contributing items for school lunches on Tuesdays and Thursdays. Mrs Marson said that outside of Mr Marson’s regular weekend care and the dinners he provides during the week, she is responsible for preparing all the children’s meals. Mr Marson does not prepare school lunches, he just pays for the groceries required to make the lunches.
Mrs Marson said she is solely responsible for supervising the children in the mornings during the week, and making sure they are ready for school, and she also washes and cares for their clothes. She is the parent who keeps track of various school events, and is the parent the schools would contact if there were an illness or emergency. She said Mr Marson does sometimes drive one of the children to school or pick them up but that is his choice, and he only does it if he has time and wants to – all of the children other than [Child 4] can get to school by bus and that is usually how they travel (other than [Child 1] who now has her driving licence). She also purchases all basic clothing and toiletry items for the children – she said Mr Marson does sometimes contribute to clothing items if she asks him to, but she would only do that for more expensive items like shoes.
[Child 4] attends pre-school two days a week and Mrs Marson drops her at pre-school and picks her up on those days. On other weekdays [Child 4] is in Mrs Marson’s care. At weekends [Child 4] generally alternates between the parents depending on whose weekend it is. Both Mrs Marson and Mr Marson take children to sport on the weekends, Mrs Marson generally takes [Child 2] to netball and Mr Marson takes [Child 3] to football.
Mr Marson’s evidence is that the children are supposed to be with him on Friday and Saturday nights and generally he did not dispute Mrs Marson’s evidence, except that he says that [Child 3] sleeps most nights downstairs in Mr Marson’s part of the house – he estimated [Child 3] is with him about 90% of the nights. He said he does not put any restrictions on when the children can be in his part of the house, they are free to come and go as they please. He also said that, while he is generally not available to care for the children during working hours as he works full-time, he does work from home and so sometimes will be asked to watch the children if Mrs Marson needs to leave the house, which he does. He said he will often take care of [Child 4] if Mrs Marson is at netball with [Child 2]. He cares for the children more during school holidays.
In relation to the provision of clothing and other items for the children, Mr Marson provided to Child Support a spreadsheet where he outlined expenses he says he has incurred from 30 September 2022 to 13 September 2024. That list includes a total of $1,717 in clothing, $1,947 in medicines and health expenses, $1,423 in entertainment, $1,164 for sports, and $6,842 for [Child 1]’s spending money. While the spreadsheet does include a transaction description for each item, it is unclear exactly what each item of expenditure was for. Mrs Marson said that she did not dispute that there had been expenditure but she believes that in relation to any necessary costs Mr Marson would not have contributed more than half, and so she would have had at least equal expenditure. She also said that because Mr Marson has more money than she does he does give in to the children and spends money on things that she does not regard as necessary and that she cannot afford. She says it is Mr Marson’s choice to do those things.
In relation to mortgage payments, Mrs Marson said the arrangement was that Mr Marson would pay the mortgage and then when the house is sold he will recoup those payments from the proceeds of the sale. She agreed that Mr Marson is making payments toward the mortgage but there are still significant arrears. Mr Marson largely agreed with that evidence, stating that he is paying the mortgage off as best he can. He did not agree that he will necessarily recoup all the mortgage costs when the house is sold – he said there will be a property settlement which will take into account the house and other assets.
In relation to household bills Mrs Marson said that the household bills are in her name, but the arrangement was that they would each contribute 50% to household bills. There was some dispute over some bills early on, but recently Mr Marson has contributed 50% to household bills. Mrs Marson said that only in the last couple of months the household bills have been 50/50, prior to that she believes she contributed more. Mr Marson has also paid his share of the children’s school fees, but Mrs Marson has had difficulty meeting her half of the school fees and her portion remains in arrears. Mr Marson’s evidence is that he has contributed 50% of every invoice Mrs Marson has given him for household bills, but when he first moved in the bills included arrears which he did not feel he should be responsible for so he did not pay toward those bills.
Mrs Marson does not dispute that she notified Child Support on 24 July 2024 that Mr Marson had 50% care of the children since 31 October 2023. She said that she made the notification because Mr Marson had told her that if she wanted him to keep paying the mortgage she needed to sort out the child support and get rid of the arrears. She agreed to discharge the child support arrears and notify Child Support that Mr Marson had 50% care, but she also said he needed to start providing half the meals for the children and that’s when he started doing Tuesday night dinners and contributing to some school lunches. She said she didn’t know why she told Child Support that the 50% care had started from October 2023 – her view is that initially the care arrangements didn’t really change at all when Mr Marson first moved back to the house, although there have been some changes since then.
Mr Marson’s evidence is that he never notified Child Support of any change in care. He did not give any reason as to why he didn’t do that, given his evidence that he feels care has been shared equally since October 2023. Mr Marson said that he and Mrs Marson didn’t really have any conversation about the care decisions until around July 2024, which was when he increased his more formal care to include an extra evening per week and began providing school lunches on two days per week.
Taking into account the evidence before me, I make the following findings:
·Prior to 31 October 2023 Mr Marson had care of the children for 2 nights per fortnight, and one additional evening per week, equating to 14% care.
·Mr Marson moved back to the family home on 31 October 2023, and initially there were no changes to the time Mr Marson had care of the children. At some point between October 2023 and July 2024 the care arrangements were relaxed and the time the children spent in the care of each parent was less defined, although Mr Marson continued to have care of the children broadly every second weekend and one evening per week.
·In approximately July 2024 the parents discussed the care of the children and made some adjustments to the care, to bring the care more into line with an arrangement where they each provided 50% care of the children. This largely consisted of Mr Marson agreeing to be responsible for more of the children’s meals, by providing dinner for an extra night each week and paying for school lunches two days per week.
·Since October 2023, both parents have contributed to the costs of providing for the needs of the children. It is unclear exactly what proportion of the costs of providing for the needs of the children have been met by each parent. I am satisfied that at least at the time of the hearing the costs are likely split approximately 50/50.
Overall, I am satisfied that from at least July 2024 the parents have shared care of all four children relatively equally. In the period between October 2023 and July 2024 it appears that there was a gradual increase in Mr Marson’s care of the children, but there is insufficient evidence before me to determine exactly what percentage of care he had through that period, particularly as neither parent took any action to notify Child Support of any change in the children’s care prior to 23 July 2024. I am satisfied that in July 2024 the parents had a discussion about the care of the children and made some changes to their arrangement to facilitate a 50/50 caring arrangement.
As I am satisfied that as of July 2024 there had been a change in the care of the children so that the actual care that was occurring was no longer reflected in the care percentage determinations of 86% to Mrs Marson and 14% to Mr Marson, I am required to revoke the existing care percentage determinations for the children. The relevant provision of the Act is section 54F, which requires that the existing care percentage determinations be revoked the day before the change of care day where Child Support is notified of the change in care within 28 days of change. In this case, in the absence of any evidence as to the exact day that the care changed, I will determine that the change of care day was 15 July 2024, and the existing care determinations are therefore revoked from 14 July 2024.
I am then required by section 50 of the Act to determine new care percentage determinations for each of the parents in relation to each of the children. I find that from 15 July 2024 Mrs Marson has had 50% care of each of [the children], and Mr Marson has also had 50% care of each of the children.

DECISION

The Tribunal sets aside the decision under review and in substitution decides that the existing care determinations for Mr and Mrs Marson in respect of [the children] are revoked from 14 July 2024, and that from 15 July 2024 Mrs Marson has had 50% care of all four children and Mr Marson has had 50% care of all four children.

Date(s) of hearing:	Tuesday, 18 February 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	Self-represented