McPherson and Gunton (Child support) - [2025] ARTA 512

McPherson and Gunton (Child support) [2025] ARTA 512 (19 February 2025)

Applicant/s: Ms McPherson

Respondent: Child Support Registrar

Other Parties: Mr Gunton

Tribunal Number: 2024/SC028661
Tribunal: Senior Member A Suthers
Place:Sydney
Date:19 February 2025

Decision:The decision under review is set aside and, in substitution:
·Mr Gunton’s existing care percentage determination is revoked and replaced with a new care percentage of 35% on and from 7 March 2024, with effect in the assessment on 6 September 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – child largely in care of father’s mother and step-father, with father financially responsible – application for child support assessment by father’s step-father withdrawn but particulars considered – statements from father’s former partner and step-father – father’s contribution greater than strictly nights-in-care basis – 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

Summary

The Child Support (Assessment) Act 1989 (the Act) provides for Services Australia – Child Support (Child Support) to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the Child Support Guide (the Guide), published by the Australian Government, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
Under sections 25 and 25A of the Act, a parent or non-parent carer of a relevant child may apply for an administrative assessment. If the necessary conditions are met, Child Support must make the assessment using a formula containing variables such as the adjusted taxable incomes of the parties to the assessment (the parties) and the respective percentages of care the parties have provided, or are likely to provide, for each relevant child, in the ‘care period’ that Child Support decides it is appropriate to consider.
Child Support usually considers a care period of 12 months from when the actual care of a child began or changed: subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide. If the assessment is made before the end of the care period, Child Support must make a partially forward-looking judgment as to the care of each relevant child a party to the assessment is likely to provide over the period.
In doing so, Child Support considers whether the parties have had, or are likely to have, a ‘pattern of care’ for the child during the care period. The pattern of care informs the assessment of the ‘percentage of care’ used in the formula. The pattern and percentage of care will commonly be determined by reference to the number of nights each child spends in the care of each party to the assessment: section 54A of the Act and section 2.2.1 of the Guide.
Once an assessment of the percentage of care is made and applied in the formula, Child Support continues using that percentage of care until it is informed or becomes aware that an anticipated pattern of care did not eventuate, or that it did eventuate but subsequently changed.
If notified of an alleged change in the actual or anticipated pattern of care of a child, Child Support must consider whether such change occurred. If Child Support is satisfied that it did, then the percentages of care used in the assessment may, or in some cases must, be revoked (sections 54F, 54G and 54H of the Act) and another assessment made using newly determined percentages of the actual care the parties provided or are likely to provide to the child in a newly determined care period: subsection 49(2) and paragraph 50(1)(b) of the Act.
Ms McPherson and Mr Gunton are the parents of [the child], who is 13 years old. A child support case was registered with Child Support on 17 March 2014. Ms McPherson has been recorded as providing 0% care for the child since 8 February 2017, with Mr Gunton providing the balance (100%) of care since 8 February 2017.
On 12 July 2024, Mr Gunton notified Child Support that a change to the care arrangements for the child had occurred from 7 March 2024. On 4 August 2024, an original decision-maker accepted that change, and recorded updated percentages of care of 0% to Ms McPherson and 28% to Mr Gunton (the original decision). The original decision was made after Mr Gunton acknowledged that, from 7 March 2024, [the child] started living with Mr Gunton’s mother and her partner (for convenience only, [the child]’s ‘grandparents’) during the week, and with Mr Gunton from Friday night to Sunday. Mr Gunton initially told Child Support that [the child]’s grandparents ‘cover all costs’ for [the child] whilst [the child] stays with them. After the change in care percentage was processed, Mr Gunton contacted Child Support again, and retracted his acknowledgement that [the child]’s grandparents pay for [the child]’s support whilst [the child] is in their care.
The Child Support (Registration and Collection) Act1988 (the R&C Act) provides that the parties to the assessment may lodge an objection to a care percentage decision by Child Support that informs the assessment and that certain persons can seek review of the decision on the objection by application to the Tribunal.
That has occurred here. An objections officer considered an objection lodged by Mr Gunton on 6 September 2024 (which was not within the prescribed time to do so), and on 6 October 2024 allowed the objection, thereby reinstating the prior recorded percentages of care. Specifically, the objection decision noted that:
[Mr Gunton] originally stated that his parents (sic) are financially responsible for [the child] whilst he is in their care. However, under objection he has stated that he pays his child support payment to his parents and is the decision-maker for [the child] in emergencies.
He has provided a typed written statement from [Mr A] (paternal grandparents) which indicates that [Mr Gunton] pays them $150 per week for [the child]’s care and that [Mr Gunton] is responsible for [the child] school fees and decision-making regarding [the child]’s welfare.
This indicates that [Mr Gunton] continues to provide care for [the child] via major decision-making, and financial support in the form of direct payments and schooling. We note the statement does not include a contact number, and is not signed by the author, and that [Ms McPherson] has disputed the authenticity of the statement. We have not received any evidence of the payment is actually being made.
However, [Ms McPherson] has provided an email exchange between herself and [Mr A] where she attempted to discuss with the grandparents reinstating her contact and visitation with [the child]. [Mr A]’s response to her email states “contacting us is not the appropriate way to address any issues. Any custodial matter should be discussed directly with Mr Gunton.”
Whilst there is no dispute that [Mr A] and his wife are providing physical care for [the child], his response to Ms McPherson’s email indicates they do not consider themselves to be decision-makers regarding the major decisions for [the child] such as care arrangements, and refer such matters back to [Mr Gunton].
Based on all the information available we consider that [Mr Gunton] is still providing care for [the child] whilst he physically resides with the paternal grandparents, and his care should be reflected as 100%. Therefore, there was no change to the pre-existing care recorded for [the child] on 7 March 2024.
In relation to the late lodgment of the objection, the decision recorded:
[Mr Gunton] advised he objected outside of 28 days of the decision because he had been unable to contact us due to work commitments and that he had attempted to contact us regarding the decision but was unsuccessful.
Child Support has a number of communication channels available, including by phone, in writing and online services. The decision letter issued to Mr Gunton to advise of the decision outlined various channels to communicate with us, including to visit the website for more information on how to object.
Given the communication channels available to Mr Gunton, we are not satisfied they had reason for delay in lodging their objection.
On 8 October 2024, Ms McPherson lodged an application for review of the objections officer’s decision (which was within the prescribed time to do so). That is the application before me.
I heard the matter on 7 January 2025 and heard evidence and submissions from Ms McPherson. Mr Gunton and Child Support elected not to participate in the hearing. I also had regard to the documents lodged in the application, as follows:
(1) 115 numbered pages lodged by Child Support; and
(2) Seven numbered pages lodged separately by Ms McPherson.
In brief, the parties’ respective positions are that:
(a) Ms McPherson does not dispute that she is not providing care for [the child]. She says that Mr Gunton does not provide for [the child] other than directly whilst [the child] is in his care; however
(b) Mr Gunton maintains that the objections officer’s decision is correct.
For the following reasons, I am persuaded a change of care has occurred of a nature similar to that reflected in the original decision and will set aside and vary Child Support’s decision on the objection.

Summary of the law, relevant policy and the issues to be determined

As this is a ‘statement of reasons’ I am required, amongst other things, to explain the reasons for the decision. To do so, it is necessary to set out, to an extent, the law and relevant policy to be considered.
On 14 October 2024 the Administrative Appeals Tribunal (AAT), to which this application was initially brought, was replaced by the Administrative Review Tribunal (the Tribunal). An application for review by the AAT that was not finalised before 14 October 2024 is taken to be an application for review by the Tribunal, and the Tribunal has the authority to continue and finalise any aspect of the review that was not completed by the AAT: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
I have jurisdiction and power to conduct this review due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the R&C Act, read with sections 12 and 105 of the Administrative Review Tribunal Act 2024 (the ART Act).
In conducting the review, I should also have regard to the Guide and apply the policy contained in it where relevant, so long as what it contains is lawful, does not purport to control my decision and there are no cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57] – [62]. However, I am not bound to follow it, and will record any instance where I disagree with what the Guide contains.
I ‘stand in the shoes’ of the original decision maker, in that I am to determine for myself on the material before me the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision-maker for the purpose of making the original decision. However, as section 9 of the ART Act makes clear, the Tribunal makes its decision on review independently of the parties, and the original decision-maker. The Tribunal is also subject to the same constraints as the original decision maker: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the, now repealed, Administrative Appeals Tribunal Act 1975.
Not all changes to a care percentage determination will effect a corresponding change in the child support assessment. That is because the care percentages are then broken down into seven ‘cost percentage’ brackets and, for example, a party with anything less than a 14% care percentage is still assessed at a 0% cost percentage. A simplified table that amalgamates the content of section 55C and subsection 5(2) of the Act, and that links defined and otherwise commonly described levels of care, makes this clearer:

Care percentage	Equal to number of nights a year	Care level	Cost percentage
0% to less than 14%	0 - 51	Less than regular care	0%
14% to less than 35%	52 - 127	Regular care	24%
35% to less than 48%	128 - 175	Shared care	25% plus 2% for every percentage point over 35% of care
48% to 52%	176 - 179	Shared care	50%
More than 52% to 65%	190 - 237	Shared care	51% plus 2% for every percentage point over 53% of care
More than 66% to 86%	238 - 313	Primary care	76%
More than 86% to 100%	314 - 365	More than primary care	100%

‘Care’ is not defined in the legislation. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances: P v Child Support Registrar (2013) 62 AAR 17 at [107].
Whilst the parties’ respective percentages of care may, and commonly will, be assessed based on the respective nights the child spends in their care, that is not mandatory. If a more appropriate basis for assessment of that issue is identified and is based on permissible considerations, it may be used: P v Child Support Registrar [2014] FCAFC 98.
Some assistance as to the factors that may be considered if a strictly ‘nights in care’ basis for assessment is not used was provided by the Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) at [56]. The Court gave some non-exhaustive guidance, stating:
In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
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?
a.To what extent does the person make arrangements for others to meet the needs of the child?
b.To what extent does the person pay for the costs of meeting the needs of the child?
c.To what extent does the person otherwise provide financial support for the child?
d.To what extent does the child provide for his or her own needs or have those needs met from another source?
e.To what extent is the child financially independent or financially supported from another source?
Having regard to the statutory scheme, I respectfully agree that those are all permissible considerations if the evidence or submissions of the parties warrants their consideration.
In addition, whilst adopting the court’s findings in Polec, above, the Guide, at 2.2.1, also notes that a relevant consideration is the extent to which a person has control of a child, including having overall responsibility for a child and making:
· major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities; and
· arrangements for others to meet the needs of the child (delegated care).
Again, I agree that those are permissible considerations.
If I revoke the existing care percentages on review and redetermine them, the relevant care period is such period as I consider to be appropriate having regard to all the circumstances: subparagraph 50(1)(b)(ii) of the Act. Whilst section 2.2.1 of the Guide provides that a care period is generally assumed to apply for the subsequent 12-month period from when the actual care of a child began or changed, a different care period may be appropriate depending upon the circumstances of the case.
I may then need to consider whether a ‘care arrangement’ is in place in respect of the child, but not being followed. The meaning of ‘care arrangement’ is imported into the Act via the definitions contained in section 3 of the A New Tax System (Family Assistance) Act 1999 and can be broadly described as a written agreement between the parties or a relevant court order (from a defined list) that influences how a child of the assessment is cared for.
The date of effect of any changes in the assessment may be affected by:
(1) when Child Support was notified of the change of care (subsections 54F(3) and 54H(3) of the Act);
(2) whether the objection was lodged within 28 days of the original decision (section 87AA of the R&C Act); and
(3) whether the application to the Tribunal was made within 28 days of the objection officer’s decision (section 95N of the R&C Act);
unless special circumstances prevented the lodgment of the objection or the application for review in time (sections 87AA and 95N of the R&C Act).
I am to review all the evidence before me (from whatever source), determine the relevant facts (including by resolving any disputed assertions of the parties that need be determined), and independently decide afresh whether I can be satisfied that a material change of care has occurred. I say ‘material change of care’ because not every minor change to the day-to-day care arrangements of a child represents a change to the overall pattern of care: see the Guide at 2.2.1.
If I revoke the existing percentages of care and re-determine them by assessing the pattern of care in the relevant care period, I need to consider the evidence as to the actual care that the child was receiving in the care period to date and, to the extent it may be relevant, the pattern of care likely to occur in the balance of the care period.
The issues which potentially arise in this case are as follows:
(1)    Was there a change in the pattern of care for the child, and if so when did it occur?
(2)    If there was a change in the pattern of care, should the existing percentages of care be revoked?
(3)    If so, what new determination of percentages of care should be attributed to the parties in respect of the child?
(4)    If there is a change in the percentage of care attributed to the parties, from what date should the administrative assessment be amended to reflect the changes?
(5)    When will my decision have effect?

The evidence that supports Ms McPherson’s position

Ms McPherson acknowledges that she has no contact with [the child] and no meaningful contact with Mr Gunton or [the child]’s grandparents. She relies upon the change in circumstances whereby [the child] commenced living with [the child]’s grandparents during the week, along with her prior experience of Mr Gunton’s allegedly disconnected parental style.
In support of that position, Ms McPherson relies upon an (unsigned) email addressed to her, said to be from “[Ms B]” and dated 26 October 2024. That email states, relevantly:
I entered a relationship with Mr Gunton in 2020 which ended in 2023. During this time [the child] was in his care. During this period Mr Gunton claimed he was not receiving any financial child support for [the child].
In 2021 myself and Mr Gunton began living together. This included [the child]. At the beginning all living costs were split equally between myself and Mr Gunton. This quickly stopped and Mr Gunton only contributed to half the rent and groceries, all other expenses were covered by myself.
During this period, schooling items such as
– back-to-school stationery requirements (requested by the school)
– school uniforms
– school bags, lunch boxes and water bottle
– schooling events and gala days
– school photos
– high school book packs
– high school calculator
– notebooks
had been paid by Mr Gunton’s mother and stepfather and myself or organised by myself to be gifted by family.
During this period [the child] had some serious issues at primary school which led to the education department’s involvement. Mr Gunton refused to speak with the school or have any follow up meeting in regards to this, his reasoning being “I’m not just going to give up a days (sic) work to talk to the school”. I had spoken with the school on a number of occasions and worked with them on ways to help [the child] during this period. One serious incident happened during a period where myself and Mr Gunton were separated, and the school continued to contact myself due to the seriousness of the incident, Mr Gunton refused to attend the school meeting. I had spoken to Mr Gunton’s mother ([Ms C]) and herself and [Mr A] (Mr Gunton’s stepfather) attended the meeting as Mr Gunton would not leave work or call into the meeting. They formally discussed [the child]’s mental state and problems happening at the school and the impact it was having on him, [the child]’s transition to high school and his final months of primary school and how this would be managed by all schooling (sic) parties. This information was then passed onto Mr Gunton so he knew what was decided.
During this time any medical appointments or follow ups for [the child] were made by myself. Medical concerns from [Ms C] were discussed with myself to take the steps forward for [the child]. On occasions where Mr Gunton had to take [the child] to medical appointments due to no one else being able to, he did not follow up with any medical issues e.g. eye appointments, therapy sessions.
[The child] would go to his grandparents house after school during work days every day and stay a number of nights with them so Mr Gunton could have a break. Mr Gunton would not provide any financial aid to his parents to put towards [the child] when staying there.
…
I was led to believe from Mr Gunton that during these years that Mr Gunton was not receiving any child support for [the child]. And he had mentioned this on a number of occasions, I had happily financial supported [the child] with schooling items, birthday and Christmas presents. However it has since been proven that Mr Gunton was receiving child support payments and chose to not use that money to finance any of the needs for [the child].

The bundle of material lodged by Child Support also contained notice to Ms McPherson that an application for a Child Support assessment in respect of [the child] had been made by [Mr A] (Mr Gunton’s stepfather). The application was rejected by letter dated 10 October 2024, without input from the parties as it was withdrawn by [Mr A].
As that application was possibly relevant to the issues before me, I directed Child Support to provide the particulars of the application and recorded statements by [Mr A] in support of it, after the hearing. Child Support did so. The material produced, going to 14 numbered pages, included, relevantly:
· Confirmation that ‘[Mr Gunton] currently pays $150 per week for [the child]’s expenses as well as school costs’ – at page 117;
· An assertion as to the pattern of care by [Mr A], recorded in the following terms – ‘[Mr A] Care : 68% of overall care; Ms McPherson Care : null% of overall care; Mr Gunton Care : 32% of overall care’ – at page 119.

The evidence that supports Mr Gunton’s position

Mr Gunton’s evidence was, save in respect of an email of 16 December 2024 to the Tribunal that I refer to below, only that contained in the material lodged by Child Support.
In addition to the email referred to in the objection decision and quoted above, Mr Gunton relies upon another statement said to be from “[Mr A]” dated 10 September 2024. It states, relevantly:
This is to certify that Mr Gunton gives me $150 per week to assist in the financial care of his son [the child], who stays at our home weekdays, so that he can attend […] high school. [The child] has been diagnosed with high functioning autism and went through a transitioning process to go from […] primary School in 2023 to […] high school in 2024. This has proved very successful and [the child] been successful and has had positive grades, as well as socially. Mr Gunton is also responsible for [the child’s] school fees and is responsible for the important decisions regarding [the child]’s welfare.
In his email of 16 December 2024, Mr Gunton responded to [Ms B]’s evidence, which I record verbatim:
I wish to dispute the added material. [Ms B] and myself have been separated since January 2024. The care arrangement between my parents and myself was organised after our separation so I can't understand how this material could be used as evidence because it is false and [Ms B] is irrelevant at this point. If like to also point out ive had zero contact with her since the separation so im unsure how she would know about anything thats happening with [the child] and myself.

Assessing the evidence as to a change of care

The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence: section 52 of the ART Act. There is no legal onus of proof on a party where no such onus is imported by the referring legislation. However, the Tribunal’s inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal. Rather, the Tribunal’s role is to respond to the case that the party advances: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [78].
In considering the evidence before it, the Tribunal needs to reach its conclusions based on ‘rationally probative evidence’ rather than mere ‘suspicion or speculation’: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.
The evidence produced by the parties ‘is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’: Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.
There are well understood dangers in attempting to assess a party or witness’s credibility based on their demeanour. Those dangers are only enhanced where, as here, I only heard from one of the parties (by audio link) and the witnesses were not called for evidence. In those circumstances, where there is a disparity between the evidence of the parties I am generally persuaded by their evidence where: there is consistency between the parties; they have made concessions against their interests; it is otherwise consistent with contemporaneous, independent, or non-party evidence or it appears to be inherently probable.

Was there a change in the pattern of care for the child, and if so when did it occur?

There is no dispute that the way [the child] is cared for changed in a significant manner from 7 March 2024, when he commenced to live with his grandparents during the school week. I am satisfied that, irrespective of the other aspects of financial and other support that may constitute the provision of care, as set out in paragraphs 24 and 26 above, the change is a material one that was a change to the overall pattern of care that [the child] is provided. For reasons I will come to, there is insufficient evidence to find that this is simply a case of Mr Gunton delegating his care of [the child] to [the child]’s grandparents, such that the overall percentages of care that were reflected in the assessment before Mr Gunton made his notification to Child Support on 12 July 2024 remain in effect.

Should the existing percentages of care be revoked?

Subdivision C of Division 4 of Part 5 of the Act outlines circumstances where an existing care determination must or may be revoked.
Section 54F of the Act states that an existing determination must be revoked if there is a change to a parent’s level of care that would change their care percentage and their cost percentage and section 54G of the Act does not apply.
Section 54G of the Act provides for mandatory revocation of both parties’ percentage of care determinations where, under a new care percentage determination, one of the parties who was previously assessed to have at least regular care of the child would now be determined to have less than regular care, despite the child being made available by the other party. The notifying party must also make the notification within a period that Child Support considers ‘reasonable’ from the change occurring. A reasonable period is not defined, but Child Support usually considers 28 days reasonable: the Guide at 2.2.3.
Therefore, section 54G of the Act needs to be considered first, but is not applicable here because, as I will come to, neither party to the assessment who had an established pattern of at least regular care would be redetermined to have less than regular care.
Again, though, for reasons I will come to, Mr Gunton’s percentage of care assessment must be revoked under section 54F of the Act because, on redetermination, both his care percentage and cost percentage would change. Section 51 of the Act has no application as there is no relevant ‘care arrangement’.
As neither Ms McPherson’s care percentage nor cost percentage would change on re-determination, her existing particulars of care used in the assessment remain undisturbed.

What new determination of percentages of care should be attributed to the father in respect of the child?

If a care percentage determination is revoked and that party already has an established pattern of care in relation to the child, Child Support must make a determination of the care percentage informed by the new information: the Act, paragraph 50(1)(b). It is not in dispute that Mr Gunton had an established ‘pattern of care’ (as described in the Act) prior to him initially notifying Child Support that a change to that pattern occurred. I am satisfied that was the case based on the prior, unchallenged, assessment.
I am satisfied that the appropriate care period to consider is the 12 months following the change of care on 7 March 2024, using the evidence that is available as to what has occurred in that period to date, which in these circumstances will also be the best guide as to what is likely to occur in the balance of the period.
When assessing the care that has occurred, or is likely to occur, for [the child] in that period, I place some, but limited, weight on the evidence of [Ms B]. I agree with Mr Gunton’s submission that [Ms B] can only comment on what occurred before their separation, but she can comment on that. Her evidence in that regard contained specific allegations that Mr Gunton has historically been content to allow others, including [the child]’s grandparents, to meet many of his parenting and financial commitments to [the child]. Mr Gunton could have, but did not, counter that with specific evidence. I accept her evidence, which is consistent with that of Ms McPherson on this issue, to that extent alone.
That evidence is not inconsistent with the other evidence, which I accept, that Mr Gunton provides $150 per week to [the child]’s grandparents, as a contribution to his care, as well as paying [the child]’s school expenses.
It is also consistent with [Mr A]’s assertion to Child Support that he makes a 68% contribution to [the child]’s care, noting that acknowledges a greater contribution by Mr Gunton than might be assessed on strictly a ‘nights in care basis’ of two nights each week. I infer that [Mr A]’s assessment took into account the financial contribution made by Mr Gunton towards [the child]’s care whilst [the child] stayed with his grandparents.
I have no evidence as to the overall expenses incurred in [the child]’s care, or that Mr Gunton contributes by maintaining overall parental responsibility whilst [the child] is in his grandparents’ care, except to the extent that they defer to Mr Gunton on issues between Ms McPherson and Mr Gunton.
Doing the best I can with that evidence, noting both the nights [the child] spends in Mr Gunton’s care, as well as the evidence of Mr Gunton’s separate contributions, I assess Mr Gunton’s percentage of care at 35%.

From what date should the administrative assessment be amended to reflect the changes to the percentages of care?

In working out the date of effect of the revocation under subsection 54F(2) of the Act, it is necessary to ascertain the change of care day. The change of care day is defined as the first day on which the care of the child that was taking place ceased to correspond with the parent’s percentage of care under the determination that is being revoked. I have found that the change of care day for the child was 7 March 2024.
Paragraph 54F(3)(b) of the Act states, in situations where the change was notified more than 28 days after the care change (as is the case in this matter), the date of revocation is different, depending on whether the person has increased or decreased care. The percentage of the person whose care decreases is revoked on the day before the date of the change.
Section 54B of the Act provides the date of application of any newly determined care percentages. Under paragraph 54B(2)(c), where a pre-existing care percentage determination is revoked and a new determination is made, the new care determination takes effect on and from the day after the revocation of the previous determination.
As a result, I will revoke Mr Gunton’s existing care percentage and replace it with the new care percentage of 35% on and from 7 March 2024.
There is no time limit within which a person must lodge an objection against a care percentage decision. If a person lodges their objection more than 28 days after the date the notice of the decision is served upon them, and the objection has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination, the date of effect of the review decision is the day on which that person lodged the objection: subsection 87AA(1) of the R&C Act.
However, subsection 87AA(2) of the R&C Act states that if there are special circumstances that prevented the objection being lodged within 28 days, the reference to 28 days may be such longer period as determined appropriate, effectively allowing an extension of time.
The decision against which Mr Gunton objected was made on 4 August 2024 and Mr Gunton lodged the objection to that decision on 6 September 2024, which was more than 28 days after he is deemed to have received notice of that decision by email. Mr Gunton does not dispute that he received notice of the decision, or when it was received. After considering Mr Gunton’s statements to Child Support (recorded at paragraph 11 above) and in the absence of any explanation of the work burdens that Mr Gunton faced or what attempts he made to contact Child Support at the time, I have reached the same conclusion as Child Support on this issue. There were no special circumstances preventing Mr Gunton lodging his objection within the prescribed time.
The care change that took place on 7 March 2024 is to be reflected in the administrative assessment from 6 September 2024, by operation of subsection 87AA(1) of the R&C Act.

DECISION

The decision under review is set aside and, in substitution:

Mr Gunton’s existing care percentage determination is revoked and replaced with a new care percentage of 35% on and from 7 March 2024, with effect in the assessment on 6 September 2024.

Date(s) of hearing:	Tuesday, 7 January 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	No appearance