Stafford and Harmer (Child support) - [2025] ARTA 258

Stafford and Harmer (Child support) [2025] ARTA 258 (6 January 2025)

Applicant: Miss Stafford

Respondent: Child Support Registrar

Other Party: Mr Harmer
Tribunal Number: 2024/BC028529 and 2024/BC028558
Tribunal: General Member M King
Place:Brisbane
Date:6 January 2025

Decision:The Tribunal sets aside the decisions under review and in substitution decides:
·     Miss Stafford be recorded as having 100% care of [Child 1], and Mr Harmer 0% care of [Child 1], from 1 August 2019;
·     Miss Stafford be recorded as having 0% care of [Child 1], and Mr Harmer 0% care of [Child 1], from 1 August 2021;
·     Miss Stafford be recorded as having 50% care of [Child 1], and Mr Harmer 0% care of [Child 1], from 1 October 2022;
·     Miss Stafford be recorded as having 0% care of [Child 1], and Mr Harmer 0% care of [Child 1], from 16 August 2023;
·     Miss Stafford be recorded as having 100% care of [Child 2], and Mr Harmer 0% care of [Child 2], from 1 August 2019.
Pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision in relation to [Child 2] will have effect from 21 February 2024.

Statement made on 06 January 2025 at 8:01am

CATCHWORDS
CHILD SUPPORT – percentage of care – change of care occurred – date of effect – relevant considerations – no special circumstances – 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

Miss Stafford and Mr Harmer are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 2] (born 2003) and [Child 1] (born 2006).
Miss Stafford had been recorded as having 100% care of [Child 2] from 13 October 2003 and 100% care of [Child 1] from 20 November 2006.
On 23 August 2023 Mr Harmer advised Child Support that [Child 1] had been living with Miss Stafford’s ex-partner, [Mr A], from 1 August 2019.
On 14 September 2023 Child Support decided to record Miss Stafford and Mr Harmer as having 0% care of [Child 1] from 1 August 2019.
On 15 September 2023 Mr Harmer advised Child Support that [Child 2] had been living with Mr [A] from 1 August 2019.
On 15 October 2023 Miss Stafford objected to the percentage of care decision in relation to [Child 1].
On 27 October 2023 Child Support decided to record Miss Stafford and Mr Harmer as having 0% care of [Child 2] from 1 August 2019.
On 21 February 2024 Miss Stafford objected to the percentage of care decision in relation to [Child 2].
On 26 August 2024 a Child Support objections officer partly allowed the objection in relation to [Child 2] and determined that Miss Stafford would be recorded as having 40% care of [Child 2], and Mr Harmer 0% care of [Child 2], from 1 August 2019. The objections officer disallowed the objection in relation to [Child 1].

On 6 September 2024 Miss Stafford lodged an application with the Tribunal seeking an independent review of Child Support’s decisions.

The hearing of the application before the Tribunal was held on 3 December 2024. Miss Stafford and Mr Harmer attended the hearing by conference telephone and gave sworn evidence. The Tribunal deferred making a decision to obtain further evidence from Child Support and to allow the parents to provide to the Tribunal any further evidence they wished to have considered.
In considering the application, the Tribunal took into account the oral evidence and submissions of Miss Stafford and Mr Harmer at the hearing, the documentary material provided by Child Support to the Tribunal prior to the hearing (the hearing papers), additional evidence provided by Miss Stafford (marked A1 to A69), additional evidence provided by Mr Harmer (marked B1 to B5 and an email received on 24 December 2024) and additional evidence provided by Child Support after the hearing (marked C1 to C5).

CONSIDERATION

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations, which are then used as part of the child support formula to assess child support rates.
The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent.
Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case, and generally for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.
The term ‘pattern of care’ is not defined in the legislation. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determinations and the requirements of the legislation are satisfied for new percentage of care determinations to be made.
Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period.
The legislative test therefore first requires consideration of whether a person has had, or is likely to have, a pattern of care of a child for a care period, and if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.
As was recognised by Thomas J in the Federal Court case of Child Support Registrar and BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to either consider what care a person ‘has had’ or ‘is likely to have’ relative to the care period for which the decision is being made.
Existing percentage of care determinations are usually required to be revoked, pursuant to either section 54G, 54F or 54H of the Act, when a change of care occurs and new percentage of care determinations apply.
Miss Stafford told the Tribunal she does not agree with being recorded as only having 40% care of [Child 2]. She also said [Child 1] was not living with her from July or August 2023, when [Child 1] wanted to claim youth allowance at the independent rate, but she would not sign a letter for [Child 1]. However, she continued to support [Child 1] financially from that time.
Miss Stafford said there was a period when [Child 1] was fluidly staying between herself and Mr [A]. The outbreak of COVID-19 interrupted that arrangement.
Miss Stafford said her care of [Child 2] was the same, other than he lived with her in [Town 1] and has lived with her fulltime since then.
Mr Harmer said he submitted his evidence to Child Support. He said Mr [A] reached out to him asking him to help [Child 1] as he was in financial hardship.
Mr Harmer said [Child 1] is currently living in his granny flat. Miss Stafford does not financially support [Child 1]. [Child 1] has been financially independent since she started receiving youth allowance.
Mr Harmer said [Child 2] also lived with Mr [A].
Miss Stafford told the Tribunal that [Child 2] lived with her in [Suburb 1] from 2017 to May 2020. She said Mr [A] was also living in the home with her and the children during that time. Mr [A] works FIFO so would travel away for long periods.
She said during that time, she and Mr [A] were going through a separation. The court case with Mr Harmer had put a lot of strain on her relationship with Mr [A]. She was diagnosed with PTSD. She said she and Mr [A] were separated but still living in the same home.
Miss Stafford said, in May 2020, she moved to [Suburb 2]. Mr [A] remained living at [Suburb 1]. [Child 2] and [Child 1] lived between her and Mr [A]. [Child 1] would also stay some nights with her friends. She said there was no formal arrangement in place but usually the children would stay with her during the week, and they would spend the weekend with Mr [A] or [Child 1] would stay with her friends. [Child 1] was attending [College 1] at that time.
Miss Stafford said, in June 2021, she then moved to [Town 1], where her father lived. She lived in a unit on her father’s property. [Child 2] moved with her to [Town 1]. [Child 1] would stay with her during school holidays. During school weeks, [Child 1] would either stay with Mr [A] in [Suburb 3] or Miss Stafford would rent accommodation [in] [City 1] and [Child 1] would stay with her.
Miss Stafford said the outbreak of COVID-19 made that arrangement more difficult. She therefore looked to enrol [Child 1] in distance education however that was not possible. She and Mr [A] decided that, during school time, [Child 1] would stay mainly with Mr [A] in [Suburb 3] and she started at [School 1].
Miss Stafford said, when she could travel to Queensland, she would book accommodation [in] [City 1] and have the children as much as she could. If [Child 1] could get to [Town 1], she would also do so. However, there was then a hard lockdown of the Queensland border.
Miss Stafford said, in October 2022, she found accommodation in [Suburb 4], Queensland and the children then lived between her and Mr [A] as they had previously. By that time, Mr [A] had moved to [Suburb 5]. [Child 1] would spend weekends with friends or with her step-siblings.
Miss Stafford said that, in July 2023, [Child 1] wanted to go independent with Centrelink and she contacted Mr Harmer. She said [Child 1] was granted youth allowance from July 2023. She accepts that [Child 1] has not been in her care since that time, although she has continued to financially support [Child 1]. She sends [Child 1] money every week and she bought [Child 1] a car.
Miss Stafford said, when [Child 1] was living between her and Mr [A], she paid [Child 1]’s school and optical costs. She did not pay for [Child 1]’s food when she was with Mr [A].
Miss Stafford submitted that she should be recorded as having 100% care until July 2023 as she looked after [Child 1]’s education, medical and other costs and needs.
Mr Harmer said the only evidence he has is what he provided from Mr [A].
At page 205 of the hearing papers Mr [A] states [Child 1] has lived with him since August 2019, when he and Miss Stafford separated. He said, from August 2019 to August 2021, Miss Stafford had 40% care of [Child 1]. From August 2021, Miss Stafford had no care of [Child 1].
Mr Harmer said he has no direct knowledge of the care of [Child 1].
Miss Stafford said, when she spoke to Mr [A] about the email, he said he had no recollection of sending it. She said Mr [A] was recovering from drug and alcohol issues at the time the email was sent. She said Mr [A] said he was “off his head” at that time.
Mr Harmer said Mr [A] is of sound mind and there is nothing wrong with him. He said he speaks with Mr [A] nearly every day.
Miss Stafford told the Tribunal that Mr [A] told her he does not want anything to do with this case. Mr Harmer told the Tribunal that he also believes that Mr [A] does not want to be involved in the case.
Miss Stafford said [Child 2] lived with her at [Suburb 1]. When she moved to [Suburb 2], [Child 2] was living between her and Mr [A], who was still living at [Suburb 1]. [Child 2] moved with her to [Town 1] in mid-2021. She said [Child 2] would then visit Mr [A] sometimes. [Child 2] moved into the [Suburb 4] unit with her.
Miss Stafford said [Child 2] finished school in [a grade]. [Child 2] worked doing labour hire, which was not regular employment. Miss Stafford said she was financially supporting [Child 2].
At page 239 of the hearing papers an email from Mr [A] states that [Child 2] has lived with him fulltime from August 2019 until May 2023.
Miss Stafford said the email does not make sense as she was living at the [Suburb 1] house with the children and Mr [A] until May 2020.
Mr Harmer said, when [Child 2] was working, he was living and working with Mr [A]. He was not speaking with Miss Stafford for some time until last year when he returned to live with Miss Stafford.
Miss Stafford said [Child 2] was working with Mr [A] when they were living at the [Suburb 1] house. She said that was [Child 2]’s first job after he left school. She said she and [Child 2] have always been very close and have always spoken regularly.
A copy of [Child 1]’s driver’s licence has the same address as Mr [A]’s address. Miss Stafford said Mr Harmer helped [Child 1] obtain her driver’s licence. Mr Harmer said [Child 1] obtained her driver’s licence in late 2023.
Miss Stafford said her postal address is at her mother’s home in [another suburb].
From page C3 is information from Centrelink which records that [Child 1] was granted youth allowance, at the independent rate, from 16 August 2023.
From page A1 are copies of text messages between Miss Stafford and Mr [A] between March 2023 and July 2023. Those text messages seem to reflect that [Child 1] was living with Miss Stafford during that period, but she was spending time with Mr [A].
From page A48 are copies of Miss Stafford’s bank statements for the period 25 July 2022 to 27 November 2024. The statements record various withdrawals from the account, which are noted as being for [Child 1].
From page A17 are copies of text messages between Miss Stafford and [Child 2] between September 2019 and February 2021. The text messages indicate that [Child 2] was living with Miss Stafford at that time.
At page B4 is a copy of a statement provided by Mr Harmer after the hearing. Mr Harmer states that he spoke with Mr [A] on 4 December 2024 and Mr [A] confirmed the accuracy of the information in the statements he previously provided.
At page 202 of the hearing papers is a copy of a letter from [School 1] dated 29 August 2023. The letter states that [Child 1] was enrolled at the school from 23 February 2022 by Mr [A]. [Child 1] left the school on 21 June 2022.
At page 203 of the hearing papers is a copy of a letter from [School 2] dated 25 August 2023. The letter states that [Child 1] was enrolled at the school from 22 June 2022 until 21 July 2023.

[Child 1]

There is no dispute that [Child 1] was in Miss Stafford’s 100% care up to and including 31 July 2019.
Mr Harmer relies on the email from Mr [A], dated 8 September 2023, which states that [Child 1] lived with Miss Stafford for 40% of the time from 1 August 2019 and for 0% of the time from August 2021. Mr [A] states that [Child 1] lived with him the remainder of the time.
Mr [A] did not give sworn evidence at the Tribunal hearing and no further written statements from Mr [A] were provided by either parent subsequent to the hearing.
Miss Stafford states that [Child 1] continued to live with her and should be recorded as being in her 100% care until 16 August 2023, from when she was granted youth allowance at the independent rate.
Miss Stafford states that [Child 1] was living with her and Mr [A] at [Suburb 1] from 2017 until May 2020. At that time [Child 1] was attending [College 1]. Miss Stafford states that, after she and Mr [A] separated, they continued to live under the same roof until May 2020.
There is no evidence which contradicts the evidence provided by Miss Stafford in that regard. The Tribunal therefore accepts that from, relevantly, 1 August 2019, [Child 1] remained living with Miss Stafford and Mr [A] in the same home they had been living in since 2017. The only change to the household arrangements was that Miss Stafford and Mr [A] were separated and were no longer a couple.
There is no evidence to corroborate who was making decisions regarding [Child 1]’s welfare, education and medical needs from August 2019 as between Miss Stafford and Mr [A]. As Miss Stafford is [Child 1]’s mother and Mr [A] was [Child 1]’s step-father, on balance, the Tribunal accepts that Miss Stafford continued to have 100% care of [Child 1], for child support purposes. Whilst Mr [A] no doubt contributed to the household finances and continued his relationship with [Child 1], it was Miss Stafford who legally had care of [Child 1] during that time. Miss Stafford was responsible for meeting [Child 1]’s school costs.
Miss Stafford’s evidence is that she moved to [Suburb 2] in May 2020, with Mr [A] remaining living at [Suburb 1]. She said [Child 1] generally stayed with her during the week and with Mr [A] or her friends on weekends. [Child 1] continued to attend [College 1].
Again, there is no specific evidence to corroborate who was making decisions regarding [Child 1]’s welfare, education and medical needs from May 2020, as between Miss Stafford and Mr [A].
For the reasons outlined above, on balance, the Tribunal finds that [Child 1] should be recorded as being in Miss Stafford’s 100% care from May 2020. Whilst Mr [A] continued his relationship with [Child 1], it was Miss Stafford who legally had care of [Child 1] during that time.
Miss Stafford’s evidence is that she moved to [Town 1] in July 2021. [Child 1] would stay with her during school holidays. During school weeks [Child 1] would either stay with Mr [A] in [Suburb 3] or she would rent accommodation [in] [City 1] and [Child 1] would stay with her.
Miss Stafford said the outbreak of COVID-19 made that arrangement more difficult. She and Mr [A] decided that, during school time, [Child 1] would stay mainly with Mr [A] in [Suburb 3] and [Child 1] started at [School 1].
In his email dated 8 September 2023, Mr [A] states that [Child 1] lived with Miss Stafford for 0% of the time from August 2021.
The letter from [School 1] states that [Child 1] was enrolled at the school by Mr [A] from 23 February 2022. [Child 1] was then enrolled at [School 2] from 22 June 2022.
It seems clear that, from August 2021 when Miss Stafford moved to [Town 1], [Child 1] lived the majority of the time with Mr [A]. [Child 1] would spend school holidays with Miss Stafford. Miss Stafford would also spend some time with [Child 1] during school terms; however, there is no evidence to corroborate how frequently that was. The time Miss Stafford spent with [Child 1] was also significantly reduced when the Queensland border was locked down due to the COVID-19 outbreak. It was Mr [A] who enrolled [Child 1] in a new school in February 2022.
Miss Stafford’s bank statements show that she made some financial contributions to [Child 1] during that time. However, the Tribunal has concluded those payments were to recompense Mr [A] for amounts he spent in caring for [Child 1]. The payments do not show that Miss Stafford was providing any care for [Child 1] during that time.
Therefore, on balance, the Tribunal finds that Miss Stafford had 0% care of [Child 1] from 1 August 2021.
Miss Stafford’s evidence is that, in October 2022, she found accommodation in [Suburb 4], Queensland and [Child 1] then lived between her and Mr [A] as they had previously. By that time, Mr [A] had moved to Street, [Suburb 5].
By October 2022, [Child 1] was attending [School 2]. The Tribunal notes that the school is located in the [Suburb 5] area where Mr [A] was living. The school is located about 30km from [Suburb 4], where Miss Stafford was living.
There is little specific evidence about the care arrangements for [Child 1] during that period. The Tribunal accepts that Miss Stafford had more care of [Child 1] than she had when she lived in [Town 1]. She lived closer to Mr [A] and she did not have to cross the Queensland border to spend time with [Child 1].

The Tribunal also accepts that Miss Stafford continued to make financial contributions to meet [Child 1]’s needs and expenses. However, the Tribunal does not accept that [Child 1] returned to Miss Stafford’s 100% care from that time.
On balance, the Tribunal finds Miss Stafford should be recorded as having 50% care of [Child 1] from 1 October 2022.
From 16 August 2023, when [Child 1] commenced being paid youth allowance at the independent rate, Miss Stafford should be recorded as having 0% care of [Child 1].
In summary, Miss Stafford will be recorded as having 100% care of [Child 1] from 1 August 2019; 0% care of [Child 1] from 1 August 2021; 50% care of [Child 1] from 1 October 2022; and 0% care of [Child 1] from 16 August 2023.

[Child 2]

There is no dispute that [Child 2] was in Miss Stafford’s 100% care up to and including 31 July 2019.
Mr Harmer relies on the email from Mr [A], dated 26 September 2023, which states that [Child 1] lived with him fulltime from August 2019 until May 2023.
Mr [A] did not give sworn evidence at the Tribunal hearing and no further written statements from Mr [A] were provided by either parent subsequent to the hearing.
Miss Stafford states that [Child 2] continued to live with her fulltime from 1 August 2019.
Miss Stafford said [Child 2] lived with her at [Suburb 1]. When she moved to [Suburb 2], [Child 2] was living between her and Mr [A], who was still living at [Suburb 1]. [Child 2] moved with her to [Town 1] in mid-2021. She said [Child 2] would then visit Mr [A] sometimes. [Child 2] moved into the [Suburb 4] unit with her.
Text messages between Miss Stafford and [Child 2] between September 2019 and February 2021 indicate that [Child 2] was living with Miss Stafford during that time.
Mr Harmer gave evidence that Mr [A] told him that [Child 2] was working and living with him when [Child 2] left school. If [Child 2] finished school in [a grade], as Miss Stafford told the Tribunal, that would have been in 2019. Therefore, that is not inconsistent with Miss Stafford’s evidence about [Child 2]’s living arrangements at that time as she and Mr [A] were separated but still living under the same roof.
On balance, the Tribunal accepts Miss Stafford’s evidence that [Child 2] continued to live with her in [Town 1] from July 2021 until he turned 18 years old in September 2021.
The Tribunal therefore finds that Miss Stafford should be recorded as having 100% care of [Child 2] from 1 August 2019.

Date of effect of the Tribunal’s decisions

[Child 1]

The Tribunal’s decision in relation to the percentages of care to be recorded in relation to [Child 1] will take effect from the dates stated in the decision.

[Child 2]

If an objection concerning percentages of care is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Child Support (Registration and Collection) Act 1988 provides that the date of effect in relation to variation to or a new determination is the date of the objection unless there are special circumstances which prevented the person from lodging their objection within 28 days.
Miss Stafford was notified of the objection decision in relation to [Child 2] by letter dated 27 October 2023. She is recorded as lodging an objection to that decision with Child Support on 21 February 2024.
Miss Stafford said she does not recall receiving a letter about the change of care for [Child 2]. She thinks she found out when she called Child Support about [Child 1]. She said, when she found out, she provided evidence of the care of [Child 2] to Child Support. She is not sure what date that was.
Miss Stafford confirmed that she receives correspondence from Child Support by post and through myGov.
The Tribunal is satisfied that Miss Stafford was served with notice of the percentage of care decision regarding [Child 2] on 27 October 2023. There is no evidence that Miss Stafford objected to that decision before 21 February 2024.
The Tribunal is not satisfied that there were special circumstances that prevented Miss Stafford from objecting within 28 days and consequently the Tribunal’s decision will have effect from the date of objection, that is 21 February 2024.

DECISION
The Tribunal sets aside the decisions under review and in substitution decides:

Miss Stafford be recorded as having 100% care of [Child 1], and Mr Harmer 0% care of [Child 1], from 1 August 2019;
Miss Stafford be recorded as having 0% care of [Child 1], and Mr Harmer 0% care of [Child 1], from 1 August 2021;
Miss Stafford be recorded as having 50% care of [Child 1], and Mr Harmer 0% care of [Child 1], from 1 October 2022;
Miss Stafford be recorded as having 0% care of [Child 1], and Mr Harmer 0% care of [Child 1], from 16 August 2023;
Miss Stafford be recorded as having 100% care of [Child 2], and Mr Harmer 0% care of [Child 2], from 1 August 2019.

Pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, the
Tribunal’s decision in relation to [Child 2] will have effect from 21 February 2024.

Date(s) of hearing:

Tuesday, 3 December 2024