Stone and Griffith (Child support)
[2025] ARTA 1978
•15 September 2025
Stone and Griffith (Child support) [2025] ARTA 1978 (15 September 2025)
Applicant: Mr Stone
Respondent: Child Support Registrar
Other Parties: Ms Griffith
Tribunal Number: 2025/BC029568
Tribunal: General Member A Byers
Place:Brisbane
Date:15 September 2025
Decision:The Tribunal sets aside the decision under review and substitutes the decision that, from 11 October 2023, Mr Stone had 57% care of [Child A] and Ms Griffith had the remaining 43% care. The change takes effect from 11 October 2023 for each party.
CATCHWORDS
CHILD SUPPORT – percentages of care – consent order of the Federal Circuit Court –default care arrangement – travel absence – change in care – dismissal request withdrawn – failed arrangement – new application required – special circumstances – decision under review set aside and substituted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
Mr Stone and Ms Griffith are the parents of [Child A] and 2 other children. This matter concerns their respective percentages of care of [Child A]. During the period(s) relevant to this review, Mr Stone resided in [Suburb 1] and Ms Griffith resided in [City 1].
Material provided to the Tribunal post-hearing indicates Mr Stone contacted Child Support on 8 September 2023 advising a change in care for [Child A] from 19 August 2023. According to Mr Stone, he had 67% care of [Child A] from this date (and Ms Griffith had the remaining care).
A file note of 3 October 2023 records Ms Griffith’s response. The file note reads in part (with abbreviations expanded):
[Ms Griffith] advised that she has gone overseas 5 weeks to help other child set up
education. [Child A] has stayed with father during this period as one off block howeverprevious 100% to [Ms Griffith]. Agreement is that other parent should have children approximately 6 weeks a year but this has not happened. No pattern of care established. No Change in care. Current one off block is 35 nights and below regular care. Current 122 nights. Care is not being follow[ed].
Ms Griffith states she does not [agree] with other parent’s claims to change in care.
Ms Griffith provided Child Support with a copy of a consent order of the Federal Circuit Court of [April] 2020 (which is included in the post-hearing material provided). Under the order, [Child A] (and the parties’ other 2 children) were to live with Ms Griffith. Clauses 6 and 7 of the order covered the times the children were to spend with Mr Stone failing agreement to the contrary. In short, these times were:
(a)a block period of 4 weeks from the first Saturday after Term 4;
(b)one half of the school holidays following Terms 1 to 3 (the first half in even years and the second half in odd years);
(c)1 weekend per school term in [City 1] from Friday morning to Monday afternoon; and
(d)for a block period of 6 weeks in [City 1] during school terms once per annum.
The school terms/holidays are referenced to the New South Wales schooling periods. As 19 August 2023 occurred well inside Term 3 of 2023[1] and the claimed change in care did not involve Mr Stone’s presence in [City 1], it would have involved a change outside the default care arrangement in the consent order.[2]
[1] Term 3 of 2023 was from 17 July to 22 September 2023 - Although not part of this review, the default terms of the consent order would give Mr Stone 103 nights care per year, or 28% care( rounded down).
Child Support spoke to Ms Griffith again on 16 December 2023. It is evident the officer concerned had difficulty establishing what care was occurring. According to the file note, Ms Griffith advised [Child A] stayed with Mr Stone for 8 weeks while she was overseas but also stated [Child A] “was with [her] for 8 weeks overs as well [sic]”.
Having not received supporting evidence from Mr Stone, Child Support decided on 10 January 2024 that a change in care was not established. Child Support also spoke with Mr Stone on this date. Mr Stone is recorded as advising that [Child A] chose not to return to Ms Griffith’s care after Ms Griffith returned from overseas. The file note reads in part (with abbreviations expanded):
[Mr Stone] advised child is being enrolled in a private school in a couple of weeks so would then be able to provide [that as] evidence
[Mr Stone] advised child was being home schooled by both parents
[Mr Stone] advised child chose not to return to [Ms Griffith] when [Ms Griffith] returned from overseas
advised can lodge evidence now or can lodge a new care change with different date of effect
in the future
advised [Mr Stone] can use date of effect as the date when child was to return to [Ms Griffith] [Mr Stone] advised will wait until [Child A] has school enrolment and after [Child A] has had weeks holiday with [Ms Griffith]
confirmed care change rejected[Mr Stone] will lodge new care change in a few weeks
At this point a convoluted picture is already emerging. Mr Stone then contacted Child Support via its online service on 31 January 2024. Mr Stone reiterated his view that there was a change in care in August 2023. As foreshadowed, Mr Stone included confirmation from [School 1] that [Child A] was enrolled in Year 9 commencing on 31 January 2024.
On 30 June 2024 Child Support decided Mr Stone had 67% of [Child A’s] care and Ms Griffith had the remaining 33% care from 11 October 2023. As the change was said to have been advised on 31 January 2024 (i.e., outside 28 days of the change), Mr Stone’s increased care took effect from 31 January 2024 and Ms Griffith’s reduced care took effect from 11 October 2023.
10. It appears the original decision maker adopted 11 October 2023 as the change of care date as this was when Mr Stone enrolled [Child A] in [Activity 1] classes in [Suburb 1].
11. Ms Griffith lodged an objection to this decision on 10 July 2024. The basis of the objection was essentially Ms Griffith’s view that there was no change of care.
12. An objections officer decided on 30 January 2025 to partly allow Ms Griffith’s objection. The objections officer agreed there was a change of care on 11 October 2023 but decided Mr Stone had 56% of [Child A’s] care from this date and Ms Griffith had the remaining 44% care. The objections officer agreed with the dates of effect specified in the original decision.
13. Mr Stone originally sought review by the Tribunal on 7 February 2025 (Tribunal reference [number]). On 25 March 2025, Mr Stone informed the Tribunal in writing that he no longer wished to proceed and wished to withdraw his application. Also on 25 March 2025, Mr Stone emailed the Tribunal asking it to ignore his prior withdrawal on the basis that “a resolution, outside of the tribunal, was not obtained”.
14. On 26 March 2025, the Tribunal Registry advised Mr Stone to lodge a fresh application and he did so on the same day. If a fresh application was required, the timing of the application has ramifications under section 95N of the Child Support (Registration and Collections) Act 1988 (the RC Act). This is discussed later in these Reasons.
15. The matter was heard on 4 September 2025. Mr Stone appeared by video link and Ms Griffith by telephone and both provided sworn evidence. Ms Griffith’s appearance was brief. Although I suggested it was preferable for her to continue, I understand that Ms Griffith found the joint hearing process confronting. Ms Griffith indicated she was prepared to rely on her prior statements and the material she has provided to Child Support.
16. I accepted into evidence the following material:
- the ‘Section 23 Statement and Documents’ provided by Child Support, comprising folios 1 to 212 (marked Exhibit 1);
- documentation provided by Mr Stone folioed A1 to A3 (marked Exhibit A).
ISSUES
17. Mr Stone indicated that his reason for seeking a review is that, although the objections officer had regard to his written submissions, those submissions were misunderstood resulting in an arithmetic error. Mr Stone’s position is that he had 67% of [Child A’s] care as found by the original decision-maker.
CONSIDERATION
The legislation
18. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[3] Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care. Under section 54A the default position is that a pattern of care is determined having regard to nights of care. Section 54D provides that a care percentage that is less than 50% is rounded down.
[3] All further legislative references are to this Act unless otherwise stated.
19. Before a determination under section 49 or 50 can be made in relation to a person, the care determination in place for that person must be revoked. As far as is relevant, a revocation under section 54F can occur only if the Registrar were to determine (under section 49 or 50) a different percentage of care and the person’s cost percentage would change as a result.[4]
[4] Care determinations can also be revoked under sections 54G or 54H. However, these provisions have no present relevance.
20. Relevantly, paragraph 54F(3)(a) provides that, if Child Support is informed of a change in care within 28 days after the change occurred, the revocation takes effect on the day before the change of care day.
21. The wording of subparagraph 50(1)(b)(ii) requires a decision maker to have regard to the care position at the time they make their determination. The decision maker will need to determine if a change in care occurred and, if so, consider the care that has already occurred since the change in care and the care that is likely to occur in a period after the decision maker considers the matter. Setting a care period from the change in care is required as part of this process.
22. In conducting a merits review, the Tribunal takes the place of the original decision maker and decides the matter completely afresh. It therefore adopts the same position as described above for the original decision maker. How this is to be understood was recently clarified by Thomas J in Child Support Registrar v BKCZ [2023] FCA 1109.
23. In essence, this Tribunal can consider evidence and events that have occurred after the original decision maker made their decision provided it is relevant to the question that was before the original decision maker. It follows that what care pattern a parent “has had, or is likely to have” in a care period will depend on the evidence available to the particular decision maker in the review hierarchy.
24. As Thomas J notes, by the time this Tribunal (standing in the shoes of the original decision maker) considers a matter, updated evidence will enable it to consider a longer period where the pattern of care involves care that a parent has had in the care period. It may be that the relevant care period has already finished (because there has been a subsequent change in care). In this situation it is only the care the parent has had that is relevant for the Tribunal.
The change in care
25. Mr Stone said [Child A] was being home schooled by Ms Griffith prior to August 2023. However, in August 2023 [Child A] decided she would attend [School 1]. As noted, Mr Stone resides in [Suburb 1] and Ms Griffith resided in [City 1] during the period relevant to this review.
26. Mr Stone said his records show he collected [Child A] from the [airport] on 19 August 2023 and she commenced school at [Suburb 1] in January 2024. Consistent with Mr Stone’s recollections, as noted Child Support records show he informed it of a change in care on 8 September 2023.
27. As quoted earlier, a Child Support file note of 3 October 2023 records that Ms Griffith advised she travelled overseas for 5 weeks to assist another of her children, although the later file note of 16 December 2023 suggests an absence of 8 weeks might have been involved. Ms Griffith’s position is that this did not represent a change of care for [Child A] as the care was consistent with an arrangement between the parties that Mr Stone would have [Child A] in his care for a block of 6 weeks each year. I understand Ms Griffith was also suggesting that Mr Stone had not had anywhere near 37% of [Child A’s] care prior to her departure overseas.
28. Mr Stone said [Child A] did not travel to [City 1] in the intervening period between August 2023 and 3 November 2023 and Ms Griffith did not visit [Child A] in [Suburb 1] during this period. From 3 November 2023 there is a rather complex situation involving trips to [City 1] by [Child A] and visits to [Suburb 1] by Ms Griffith. Ms Griffith has provided a series of airline tickets and accommodation receipts evidencing her contact with [Child A] from 3 November 2023 to 19 July 2024.
29. In a written statement to Child Support, Mr Stone has provided a series of dates he states [Child A] was in Ms Griffith’s care in this period. Mr Stone indicated at the hearing that he relies on these details, which are derived from his records.
30. Mr Stone indicated that, as [Child A] was unfamiliar with a school environment, she went through a transition phase before becoming comfortable with the change. This happened after April 2024 after which time [Child A] started to see less of Ms Griffith.
31. Mr Stone said Ms Griffith no longer has a house in [City 1] and is presently living in [Country 1]. Mr Stone recognises that a subsequent change in care not considered by Child Support is not something this Tribunal has the jurisdiction to consider. I understand Mr Stone has separately notified Child Support of the change.
32. I went through the documentation Ms Griffith provided and established as best I could the care revealed. I was assisted in this regard by an agreement between the parties that, when Ms Griffith visited [Suburb 1], she would have had [Child A] in her overnight care about 95% of the time. There is also general agreement between the parties regarding the periods when care took place. The following table shows the nights when [Child A] was in [City 1] and when Ms Griffith ([G]) was in [Suburb 1] based on the airline and accommodation material Ms Griffith provided:
Period Location Nights
03.11.23 to 06.11.23 [Child A] in [City 1] 4
22.11.23 to 06.12.23 [G] in [Suburb 1]* 15 x .95
07.12.23 to 22.12.23# [Child A] in [City 1]* 16
26.12.23 to 06.01.24 [G] in [Suburb 1] 12 x .95
17.01.24 to 28.01.24 [Child A] in [City 1]* 12
16.02.24 to 19.02.24 [Child A] in [City 1]* 4
18.03.24 to 26.03.24 [G] in [Suburb 1]* 9
30.03.24 to 22.04.24 [Child A] in [City 1]* 24
23.04.24 to 05.05.24 [G] in [Suburb 1]* 13 x .95
28.05.24 to 04.06.24 [Child A] in [City 1]* 8
02.07.24 to 19.07.24 [G] in [Suburb 1] 18 x .95
Total nights (77 + (58 x .95)): 132
#Regarding this entry, Mr Stone accepts [Child A] was in Ms Griffith’s care (presumably in [City 1]) from 7 to 22 December 2023.
33. Mr Stone’s written submissions cover the period 20 November 2023 to 7 August 2024. The asterisked entries in the table are where there is agreement. As [Child A] was clearly in [City 1] from the nights of 3 to 6 November 2023 (which Mr Stone does not contest), the only points of possible disagreement are the periods 26 December 2023 to 6 January 2024 and 2 to 19 July 2024. However, as the material Ms Griffith provided shows she was in [Suburb 1] on both occasions, I will accept [Child A] was in her overnight care about 95% of the time on each occasion.
34. Plainly a change in care has occurred and there is a broad pattern of care involved. When exactly the change occurred is probably not ascertainable on the material before me. I accept that there was a period of catch up involved on Mr Stone’s part after August 2023 to reflect that he had 37% care of [Child A] (135 nights per year). I understand that Mr Stone does not quibble with Child Support’s adoption of 11 October 2023 as the change in care date.
35. As noted, this date coincides with [Child A’s] enrolment in [Activity 1] classes in [Suburb 1]. It also represents a period of almost 8 weeks from when [Child A] left [City 1] for [Suburb 1] and might reasonably account for any catch-up time on Mr Stone’s part needed to reflect the percentages of care then in place. Accordingly, in the absence of evidence to the contrary, I will also adopt 11 October 2023 as the change in care date.
36. In the absence of details after 7 August 2024, if a representative care period of 302 days from 11 October 2023 to 7 August 2024 is adopted, Ms Griffith would have 43% care rounded down (i.e. 132/302 x 100%) with Mr Stone having the remaining care.
37. As noted, Mr Stone sought a review on the footing that, having accepted his submissions, the objections officer then failed to understand the submissions and consequently produced an arithmetic error.
38. Looking at the objections officer’s reasons, although a care period from 11 October 2023 to 10 October 2024 was said to be adopted, the period used to calculate the parties’ respective care percentages was 11 October 2023 to 7 August 2024. Having regard to Mr Stone’s submissions, the objections officer concluded Ms Griffith had 134 days care in this period, comprising 33 days care from 11 October to 31 December 2023 and 101 days care from 1 January to 7 August 2024.
According to Mr Stone, his written submissions show Ms Griffith had 66 days’ care in the 2024 period adopted (not 101 days). The difference involves the period 30 March to 5 June 2024. Although Mr Stone appears to indicate in his submissions that [Child A] was in Ms Griffith’s care in this period (68 days), he equated the period of care to 5.5 weeks (38.5 days) without explanation. In any event, having regard to the above table, I am satisfied Ms Griffith had [Child A] in her care in 2024 for 92 nights from 1 January to 7 August 2024.
I am satisfied that, from 11 October 2023, Mr Stone had 57% of [Child A’s] care and Ms Griffith had the remaining 43% care. Revocations under section 54F are therefore required to give effect to these care percentage decisions. As Mr Stone notified Child Support of a care change within 28 days, the date of effect of the revocations of the care percentage decisions then in place is 10 October 2023 under paragraph 54F(3)(a).
41. For completeness, as noted, the objections officer concluded that Mr Stone advised the change in care on 31 January 2024. In my view, as outlined earlier, this contact is simply one of a series of contacts starting on 6 September 2023 relating to the change.
42. Also for completeness, as noted, Mr Stone said there has been a subsequent change in care which he has brought to Child Support’s attention. This decision does not affect any subsequent change in care decision Child Support makes.
Date of effect of the Tribunal’s decision
43. As noted, Mr Stone originally sought review by the Tribunal on 7 February 2025. On 25 March 2025, Mr Stone informed the Tribunal in writing that he wished to withdraw his application.
44. Also on 25 March 2025, Mr Stone emailed the Tribunal asking it to ignore his prior withdrawal on the basis that “a resolution, outside of the tribunal, was not obtained”. At the hearing, Mr Stone explained that he had an arrangement with Ms Griffith whereby, if he dropped his review application and paid her the outstanding balance of his child support liability, she would agree that he had 67% of [Child A’s] care. I understand that Ms Griffith reneged on the arrangement on 25 March 2023.
45. Although Mr Stone’s withdrawal may have been conditional upon Ms Griffith performing her side of an arrangement, the withdrawal itself was not framed in this way to the Tribunal. The result I think is that there was an effective withdrawal.
46. Under section 95 of the Administrative Review Tribunal Act 2024 (the ART Act), the Tribunal is taken to have dismissed an application that is withdrawn. Further, as the matter was dismissed under section 95, subsection 102(8) of the ART Act prevents Mr Stone from seeking a reinstatement of his application. A fresh application was therefore required. As noted, Mr Stone was informed of this outcome on 26 March 2025 and he lodged a fresh application on the same day.
47. As noted, the timing of the fresh application has ramifications under section 95N of the RC Act as it was lodged more than 28 days after he would have received the objections officer’s decision (of 30 January 2025). Where a person lodges a review application with the Tribunal more than 28 days after receiving notice of an objections officer’s decision, section 95N limits the date of effect of a varied or set aside decision to the date of the review application. The exception is if there are special circumstances that prevented a person from lodging an application within the required 28-day period and it is apposite to exercise the discretion to extend the period for lodgement.
48. I accept the unusual circumstances described are special in the terms of section 95N. On the footing that a failed arrangement outside Mr Stone’s control caused him to resubmit an application to the Tribunal outside 28 days, it can be inferred this effectively prevented him from lodging within 28 days. As Mr Stone acted as soon as he realised the arrangement would not proceed, it is appropriate to exercise the discretion to extend the period of lodgement to 26 March 2025 under section 95N.
DECISION
The Tribunal sets aside the decision under review and substitutes the decision that, from 11 October 2023, Mr Stone had 57% care of [Child A] and Ms Griffith had the remaining 43% care. The change takes effect from 11 October 2023 for each party.
| Date of hearing: | Thursday, 4 September 2025 |
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