Stepney and Burton (Child support) - [2025] ARTA 1597

Stepney and Burton (Child support) [2025] ARTA 1597 (3 July 2025)

Applicant/s: Mr Stepney

Respondent: Child Support Registrar

Other Parties: Ms Burton
Tribunal Number: 2025/MC029097
Tribunal: Member J Moir
Place:Sydney
Date:3 July 2025

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentages of care – child under state’s protection until 18 – change to the pattern of care – approved by Department – no longer working and living with mother – mother provides support – 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 Stepney and Ms Burton are the parents of [Child A] (born 2000) and [Child B] (born June 2007). This application relates only to [Child B]. [Child A’s] circumstances will not be referred to, except to the extent that they are relevant to the care of [Child B].
[Child B] was subject to an order of the Federal Circuit Court of New South Wales dated [October] 2014, placing her under the parental responsibility of the Minister for Family and Community Services in New South Wales pursuant to the Children and Young Persons (Care and Protection) Act 1998. The portfolio name has since changed from “Family and Community Services” to “Communities and Justice”, and will be referred to by the current name for the remainder of these Reasons for Decision.
On 25 July 2024, Ms Burton applied to Services Australia – Child Support (Child Support) for a child support assessment regarding [Child B], stating that [Child B] had been living with her for a number of months. When contacted by Child Support about this, Mr Stepney said that [Child B] was a ward of the State, had left school and was working full time. He did not agree that a child support assessment should be accepted, or that [Child B] was in the care of Ms Burton.
On 28 October 2024 Child Support accepted the application and decided that [Child B] was in Ms Burton’s care for 100% of the time, and in Mr Stepney’s care 0% from the start of the assessment on 25 July 2024.
On 8 November 2024, Mr Stepney objected to this decision. His objection was treated as an objection to the care percentage determination. Mr Stepney provided copies of the 2014 court orders confirming that [Child B] was under the parental responsibility of the Minister until she turned 18 and restated his concerns that [Child B] was working full time. He also said that he understood that she was living with her boyfriend.
Ms Burton provided a letter from the Department of Communities and Justice (DCJ), confirming that [Child B] is under the parental responsibility of the Minister until she turns 18, but that on 5 March 2024, [Child B] had “self-placed” at Ms Burton’s home.
The objections officer disallowed Mr Stepney’s objection on 30 December 2024.
Mr Stepney applied to the Tribunal for review on 2 January 2025.
Mr Stepney and Ms Burton spoke to the Tribunal by conference telephone and both gave evidence under affirmation. The Child Support Registrar did not attend the hearing. In addition to the parents’ evidence, the Tribunal had regard to the documents provided by Child Support (numbered 1–91), which had been sent to the parties.

ISSUES

The statutory provisions most relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act). The Tribunal also had regard to the Child Support Guide, the Australian government’s online technical and policy guide to the administration of the child support scheme, which may be followed by Child Support.
Under the Assessment Act, among other requirements, a parent is entitled to child support from another parent in respect of an eligible child: sections 24 and 25 of the Assessment Act.
Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage for each parent or non-parent carer in relation to each child which is converted to a cost percentage used in the formula to assess the relative costs of the children.
Sections 49 and 50 of the Assessment Act require the decision maker to determine the likely pattern of care for a child during a care period. The care period is a period of time that best reflects the arrangement. In most cases, the appropriate care period considered by the decision maker is a period of 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.
The objections officer characterised this decision as an issue of the care each parent had for [Child B], expressing the decision that she was in Ms Burton’s care for 100% of the time, with effect from 25 July 2024. This decision was necessarily consequent on the decision to accept the child support case from 25 July 2024, which Mr Stepney also disputed.
The Tribunal considered that the issues in this case are:

Was [Child B] an “eligible child” during the relevant period; and if so,
Was [Child B] “in the care of” Ms Burton during the relevant period; and if so,
What was the correct care assessment for [Child B] for the relevant period?

CONSIDERATION

Issue 1

Part 4 of the Assessment Act provides that a parent can make an application for an administrative assessment of child support for a child, who, amongst other things, is an “eligible child” (section 24). Section 25 of the Assessment Act provides that as [Child B’s] parent, Ms Burton can make an application for a child support assessment.
The Tribunal noted Mr Stepney’s concerns regarding the relevance of the order made under the Children and Young Persons (Care and Protection) Act 1998 that [Child B] was under the care of the Minister. Section 22A of the Assessment Act provides that the Child Support (Assessment) Regulations 2018 (the Regulations) may provide that children who are under the care (however described) of a person under a child welfare law are not eligible children for a child support case.
Regulation 8 of the Regulations provides that only children affected by child welfare laws of Western Australia or South Australia are not eligible children for child support purposes. A child, such as [Child B], who is subject to a child welfare law of New South Wales is an eligible child for child support purposes, and can be the subject of an application for a child support assessment.

Issue 2

In addition to questioning whether a child support assessment can be made for [Child B], Mr Stepney questioned whether [Child B] was in Ms Burton’s care during the relevant period.
The legislation does not include a definition of “care” but this issue was considered comprehensively by Hughes FM in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, para 56 as follows:
1. 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:
c.To what extent does the person pay for the costs of meeting the needs of the child?

An analysis of the evidence in relation to these considerations should assist the Tribunal in determining whether or not there has been a child support terminating event or a change in the percentage of care for the child provided by the first respondent.

It is not in dispute that until she turned 18 in June 2025, [Child B] was under the legal responsibility of the Minister. Nor is it in dispute that DCJ has advised that [Child B] self-placed to live with Ms Burton in March 2024.
Mr Stepney said that he has not had any contact with [Child B] since she stayed with him for a few days in July 2024, when they had a falling out. He has no first hand knowledge of where she was living, or of her circumstances in the relevant period. His evidence is based on what he has been told by [Child B]’s brother, [Child A], and he has no reason to doubt [Child A’s] account of events.
Mr Stepney said that [Child A] told him that during the relevant period, [Child B] was staying with her boyfriend, and was working full time. When asked, he confirmed that [Child A] and [Child B] had a period in 2024 when they were not in contact, and that [Child A] and Ms Burton were also not in contact with each other in 2024. He believed that [Child A] had received his information about [Child B’s] whereabouts and living situation from their half-brother, [Sibling A], who was in contact with [Child B] during the period. Mr Stepney also conveyed [Child A’s] negative views about some aspects of Ms Burton’s parenting of [Child B], which was inconsistent with his evidence that [Child B] was not living with Ms Burton.
Ms Burton said that [Child B] actually came to live with her in December 2023, but that this was only approved by DCJ in March 2024. She said that [Child B] still lives with her. Sometimes [Child B’s] boyfriend comes and stays and sometimes [Child B] stays at her boyfriend’s house. She agreed that [Child B] did not attend school during this period. [Child B] was working for around six months at a child care centre. She left that job and a few months later obtained work in an aged care facility. She left that job and has not found alternative work yet. [Child B] is not in receipt of any government benefits and Ms Burton fully supports her. Even when [Child B] was employed, her wage was low and Ms Burton was financially supporting her.
Ms Burton said that she and [Child B] live like a ”normal family”. [Child B] helps with housework, they cook and share meals. Ms Burton attends doctors’ appointments with [Child B]. She helped her with her resume and sends [Child B] jobs she thinks may be of interest. She provides [Child B] with money for clothes and petrol and paid for her gearbox to be replaced. She provides [Child B] with emotional support.
Ms Burton agreed that she and [Child A] were not on speaking terms for all of 2024, and that [Child A] was not in contact with [Child B] during this period either. They resumed contact around 2 ½ months ago, and are now on good terms. [Child A] does not live near them and has no first hand knowledge of [Child B’s] living arrangements during the period in question.
Neither parent provided any written evidence in support of their position, other than the court orders and letter from DCJ, neither of which were in dispute. The parents’ account of events, however, cannot be reconciled. On balance, the Tribunal preferred Ms Burton’s evidence to Mr Stepney’s evidence. This is because Ms Burton gave evidence from her first hand knowledge, whilst Mr Stepney gave evidence based on second or third hand accounts. The undisputed falling out between [Child A] and Ms Burton during 2024, means that it is possible that [Child A’s] evidence (which was, in any event second hand) could have been influenced by his own animosity towards his mother at the time. This is consistent with Mr Stepney’s account of the other criticisms [Child A] made to him about Ms Burton’s parenting at the time.
The Tribunal accepts that [Child B] was employed for some of the relevant period, but also accepts Ms Burton’s evidence that her wage was minimal, given the nature of the work, her age and lack of experience. The Tribunal accepts that Ms Burton was providing [Child B] with some financial support during the period, whether or not she was employed. The Tribunal also accepts Ms Burton’s evidence that she provided [Child B] with accommodation, and that they shared domestic arrangements, even if [Child B] did, on occasion stay at her boyfriend’s house. The Tribunal also accepts that Ms Burton assisted [Child B] in looking for employment, and supported her with obtaining medical care. On balance, based on Ms Burton’s evidence and the letter from DCJ, the Tribunal is satisfied that [Child B] was “in the care” of Ms Burton at least from 5 March 2024.

Issue 3

The Tribunal then considered the care percentage determination for [Child B]. Section 50 of the Assessment Act provides that this is to correspond with the actual care that Ms Burton has had, or is likely to have, during a care period. Given Ms Burton’s evidence, and the Tribunal’s findings, set out above, the Tribunal is satisfied that from 25 July 2024, until the child support assessment ended, when [Child B] turned 18, Ms Burton had 100% care of [Child B], and Mr Stepney had 0% of the care.
This is consistent with the decision made by Child Support, and confirmed by the objections officer. The Tribunal therefore affirms the decision under review.

DECISION

The decision under review is affirmed.

Date of hearing:	Friday, 27 June 2025
Representative for the Applicant:	N/A
Representative for the Other party:	N/A

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Citations

Stepney and Burton (Child support) [2025] ARTA 1597

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Statutory Material Cited

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Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959