Neolard and Neolard (Child support)
[2025] ARTA 1400
•16 May 2025
Neolard and Neolard (Child support) [2025] ARTA 1400 (16 May 2025)
Applicant: Mr Neolard
Respondent: Child Support Registrar
Other Parties: Ms Neolard
Tribunal Number: 2024/BC028903
Tribunal: General Member S Hoffman
Place:Perth
Date:16 May 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 16 May 2025 at 9:56am
CATCHWORDS
CHILD SUPPORT – percentage of care – extension of time to apply granted – care calculated over two-year period to reflect court orders – small discrepancies between father’s and mother’s records and objections officer’s decision – overall, father’s records show two nights more than mother’s – rounding of percentages – percentages consistent with objection decision – 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 Neolard and Ms Neolard are the parents of [the child], born October 2010.
On 6 October 2016, the father contacted Services Australia – Child Support (Child Support) to advise that from 8 August 2016, he would be providing 129 nights of care (35% care) for [the child] and the mother would be providing 236 nights (65%) of care in line with court orders.
At the time of contact, the Child Support system recorded that the mother provided 82% of [the child]’s care and the father provided 18%.
On 13 October 2016, an officer from Child Support decided that from 18 August 2016, the mother provided 65% of [the child]’s care and the father provided 35% of her care (the original decision).
On 18 October 2016, the mother objected to the original decision.
On 1 December 2016, an objections officer from Child Support decided to allow the objection, such that the mother provided 68% care for [the child] and the father provided 32% of her care from 4 August 2016, with a date of effect of 6 October 2016 (the objection decision).
On 25 November 2024, the father lodged an application for review with the Tribunal. He also lodged an application for an extension of time (EOT) given the time that had elapsed between the objection decision and his request for a review by the Tribunal.
In his EOT application, the father claimed that he was told there was no point in appealing the objection decision so did not do so and only became aware that was incorrect advice when he spoke with someone from Child Support on 25 November 2024. The Tribunal decided to grant the father’s EOT application.
The matter was heard on 7 May 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 368, copies of which were provided to the parties before the hearing.
The father gave detailed evidence during the hearing. It was agreed that the mother was given opportunity after the hearing to check his evidence against her records and that she would inform the Tribunal of any discrepancies.
It was also agreed that if any such discrepancies were minor such that they would have no effect on the Tribunal’s decision, it would proceed to make its decision. If any identified discrepancies were significant, then this evidence would be provided to the father to given him opportunity to comment before the Tribunal made its decision.
The mother submitted evidence on 8 May 2025, which largely corroborated the father’s evidence given at the hearing. While there were some discrepancies, they wre not significant enough to make a difference to the Tribunal’s decision.
The evidence from the mother submitted after the hearing is provided with these Reasons for Decision.
The Tribunal made its decision on 16 May 2025.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act1989 (the Act).
The issue which arises in this case is the percentage of care provided by the parents during the relevant period.
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.
Evidence and consideration of evidence
The change of care relevant to this review resulted from court orders made in the Federal Circuit Court of Australia dated 8 August 2016 and dates of nights of care provided by the parents starting from 4 August 2016.
There was a further change of care that was applied from 6 July 2023. The parents agreed that was not in dispute. Therefore, the period covered by this review is the period from 4 August 2016 to July 2023.
The court orders related to the care of three children. The following points were relevant to [the child]:
·The child lives with the mother
·The child spends time with the father as follows:
oDuring school term, each alternate weekend from after school Thursday, or if a public holiday or pupil free day, from 3 pm until before school Monday or if a public holiday or pupil free day, at 9 am.
oFor one half of Easter, June/July and September/October school holidays being the first half in even-numbered years and the second half in odd- numbered years, with changeovers happening on the Saturday at 12 noon.
oDuring the Christmas school holidays in even-numbered years, the first, third and fifth weeks; and in odd-numbered years, the second, fourth and six weeks.
·Regardless of other provisions in the orders, the child spends time with each parent as follows:
o9am to 5pm with the father on Father’s Day
o9am to 5pm with the mother on Mother’s Day
o5pm Christmas Eve to 3pm Christmas Day with the father for even-numbered years; and with the mother for odd-numbered years
o3pm Christmas Day to 3pm Boxing Day with the mother for even-numbered years; and with the father for odd-numbered years
oOn the child’s birthday, she spends time with the parent with whom she is not living at the time:
§If a school day, after school to 6pm
§If not a school day, from 2pm to 7pm
oOn brother [Child 2]’s birthday, she will spend time with the mother from after school to 6pm, if a school day and from 2pm to 7pm if not a school day
oOn brother [Child 3]’s birthday, she will spend time with the father from after school to 6pm, if a school day, and from 2pm to 7pm if not a school day
The documents included a calendar provided to Child Support by the mother when she lodged her objection.[1] Her calendar recorded the nights the father would provide care based on the court orders, from 4 August 2016 to 3 August 2017.
[1] Pages 48 and 49 of the Child Support documents.
The objection decision set out the dates the objections officer worked out that [the child] would be in the father’s care, based on the court orders and the mother’s calendar that she had provided to Child Support.
At the hearing, the father went through his records and read out the nights [the child] was in his care, from 4 Augst 2016.
There were, therefore, three sets of dates before the Tribunal for the period from August 2016 to August 2017. There were some months for which the parents’ records were consistent with each other but not with the dates worked out by the objections officer. For some months, although there were differences with the dates, the number of nights that the father provided care was the same in the three sets of records.
It was broadly agreed that using the court orders to work out percentages of care was not a simple task.
As is often the case with court orders, they are applied over two years. In the court orders relevant to this review, as noted above, some clauses apply to even-numbered years and some to odd-numbered years.
The Tribunal is firmly of the view that to arrive at the most accurate care percentages, the care provided by each parent should be considered over a two-year period.
The father had records of the care he provided from August 2017 to August 2018. The mother said that she had this information accessible to her but not with her at the hearing. She noted down the dates the father read out during the hearing, in order to check them after the hearing.[2] After the hearing, she provided calendars which recorded the dates [the child] was in the father’s care, from her perspective.
[2] The father said that he did not use computers and he would have had to post the information to the Tribunal. It seemed more efficient to go through it in detail at the hearing.
The Tribunal will first record the dates as advised by the parents for the period from 4 August 2016 to 3 August 2017. These dates represent the nights that [the child] was in the father’s care from 4 August 2016.
| Month | Father’s dates as per his evidence at hearing | Mother’s dates based on her calendar | Difference in number of nights | Nights in father’s care using his figures |
| August 2016 | 4, 5, 6, 7, 18,19, 20, 21 | same | 8 | |
| September 2016 | 1, 2, 3, 4, 15, 16, 17, 18, 19, 20, 21, 22, 23 | same | 13 | |
| October 2016 | 6, 7, 8, 9, 20, 21, 22, 23 | same[3] | 8 | |
| November 2016 | 3, 4, 5, 6, 17, 18, 19, 20 | same | 8 | |
| December 2016 | 1, 2, 3, 4, 10, 11, 12, 13, 14, 15, 16, 24, 25, 26, 27, 28, 29, 30[4] | 1, 2, 3, 4, 10, 11, 12, 13, 14, 15, 16, 24, 26, 27, 28, 29, 30 | One extra night to the father | 18 |
| January 2017 | 7, 8, 9, 10, 11, 12, 13, 26, 27, 28, 29 | same[5] | 11 | |
| February 2017 | 9, 10, 11, 12, 23, 24, 25, 26 | same | 8 | |
| March 2017 | 9, 10, 11, 12, 23, 24, 25, 26 | same[6] | 8 | |
| April 2017 | 8, 9, 10, 11, 12, 13, 14, 27, 28, 29, 30 | same[7] | 11 | |
| May 2017 | 11, 12, 13, 14, 25, 26, 27, 28 | same | 8 | |
| June 2017 | 8, 9, 10, 11, 22, 23 | same | 6 | |
| July 2017 | 1, 2, 3, 4, 5, 6, 7, 20, 21, 22, 23 | same | 11 | |
| August 2017 | 3 | same | 1 |
[3] For October and November 2017, the objection decision recorded different dates but the same number of nights within each month when [the child] was in the father’s care
[4] For December 2017, the mother claimed there were 17 nights when [the child] was in the father’s care, the father claimed there were 18 nights and the objection decision projected 16 nights.
[5] For January and February 2017, the parents agreed as to which nights [the child] was in the father’s care and that there were 11 nights in January and 8 nights in February. The objection decision recorded 7 nights in January and 8 nights in February.
[6] For March 2017, the objection decision recorded 10 nights whereas the parents agreed there were 8 nights that [the child] was in the father’s care
[7] For April 2017, the objection decision recorded 13 nights whereas the parents agreed there were 11 nights that [the child] was in the father’s care
The following table sets out the dates provided by the father from 4 August 2017 to 3 August 2018, compared with the relevant parts of the calendars provided by the mother after the hearing.
| Month | Father’s dates as per his evidence at hearing | Mother’s dates as advised after the hearing | Difference in number of nights | Nights in father’s care using his figures |
| August 2017 | 4, 5, 6, 17, 18, 19, 20, 31 | 4, 5, 6, 17, 18, 19, 20, 31 | same | 8 |
| September 2017 | 1, 2, 3, 4, 14, 15, 23, 24, 25, 26, 27, 28, 29 | 1, 2, 3, 14, 15, 23, 24, 25, 26, 27, 28, 29 | One extra night to the father | 13 |
| October 2017 | 12, 13, 14, 15, 26, 27, 28, 29 | 12, 13, 14, 15, 26, 27, 28, 29 | same | 8 |
| November 2017 | 9, 10, 11, 12, 23, 24, 25, 26 | 9, 10, 11, 12, 23, 24, 25, 26 | 8 | |
| December 2017 | 7, 8, 16, 17, 18, 19, 20, 21, 22, 25, 30, 31 | 7, 8, 16, 17, 18, 19, 20, 21, 22, 30, 31 | One extra night to the father | 12 |
| January 2018 | 1, 2, 3, 4, 5, 18, 19, 20, 21, 31 | 1, 2, 3, 4, 5, 13, 14, 15, 16, 17, 18, 19 | Two extra nights to the mother | 10 |
| February 2018 | 1, 2, 3, 4, 15, 16, 17, 18 | 1, 2, 3, 4, 15, 16, 17, 18 | same | 8 |
| March 2018 | 1, 2, 3, 4, 15, 16, 17, 18, 29, 30, 31 | 1, 2, 3, 4, 15, 16, 17, 18, 29, 30, 31 | same | 11 |
| April 2018 | 1, 2, 3, 4, 5, 6, 19, 20, 21, 22 | 1, 2, 3, 4, 5, 6, 19, 20, 21, 22 | same | 10 |
| May 2018 | 3, 4, 5, 6, 17, 18, 19, 20, 31 | 3, 4, 5, 6, 17, 18, 19, 20, 31 | same | 9 |
| June 2018 | 1, 2, 3, 4, 14, 15, 16, 17, 28, 29, 30 | 1, 2, 3, 15, 16, 17, 18, 28, 29, 30 | One extra night for the father | 11 |
| July 2018 | 1, 2, 3, 4, 5, 6, 19, 20, 21, 22 | 1, 2, 3, 4, 5, 6, 19, 20, 21, 22 | 10 | |
| August 2018 | 2, 3 | 2, 3 | 2 |
The first thing to note is that across two years, the parents largely agree as to the dates that [the child] was in the father’s care.
There are differences in December 2016, September and December 2017, and January and June 2018. The nett effect of these differences is that the father claims to have had care of [the child] for two more nights than recorded by the mother.
The Tribunal calculates that for a parent to provide 35% care, they would need to have provided care for at least 128 nights during a year.
Using the father’s figures, the total number of nights he provided care for [the child] from 4 August 2016 to 3 August 2017 is 119. This is equivalent to 32.6%.
Again using his figures, the total number of nights the father provided care for [the child] during the period from 4 August 2017 to 3 August 2018 is 118. This is equivalent to 32.3%.
As noted above section 54D of the Act says that percentages below 50%, if not whole percentages, are to be rounded down. The Tribunal finds therefore that the father’s care percentage based on his evidence was 32% and the mother’s care percentage was 68%. This is consistent with the objection decision.
The Tribunal is satisfied that the objection decision was correct and affirms the decision under review.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | Wednesday, 7 May 2025 |
| Representative for the Applicant: | Not applicable |
| Representative for the Other party: | Not applicable |
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