Kaake and Kaake (Child support)

This matter concerned a review of a child support care percentage determination for [Child 1], a 13-year-old child, between her parents, Ms Kaake and Mr Kaake. The dispute arose after the Child Support Registrar (CSA) altered the recorded care percentages from 77% for Ms Kaake and 23% for Mr Kaake, which were based on an earlier parenting plan, to 90% for Ms Kaake and 10% for Mr Kaake, effective from 19 November 2019. Mr Kaake objected to this revised determination, and an objections officer subsequently reinstated the original percentages from the parenting plan, finding that the overall pattern of care remained broadly consistent. Ms Kaake then applied to the Administrative Appeals Tribunal (AAT) for a review of this decision, with Mr Kaake joining as a party.

The AAT was required to determine whether the actual pattern of care for [Child 1] had changed sufficiently from 19 November 2019 to warrant a new care percentage determination, and if so, what those percentages should be. This involved assessing the evidence provided by both parents regarding disputed care dates and considering the legal principles for revoking and substituting care percentage determinations under the *Child Support (Assessment) Act 1989* (the Act). The tribunal also had to consider whether periods where [Child 1] stayed with a friend during Mr Kaake's designated care time should be counted as his care.

The tribunal applied sections 50 and 54F of the Act, which mandate the determination of care percentages and the revocation and redetermination of these percentages when the actual care no longer corresponds to the recorded figures. The AAT found that the period between 19 November 2019 and 24 July 2020 was a reasonable timeframe to assess any change in the pattern of care. Crucially, the tribunal accepted Mr Kaake's submission that he retained responsibility for [Child 1] when she stayed with friends during his care periods, and that such nights should be counted towards his care. After accounting for disputed nights and calculating the total potential care nights within the relevant period, the tribunal determined that Mr Kaake had care on 26 nights, representing 11% of the available care.

Consequently, the tribunal set aside the decision under review and substituted a new determination. It ordered that, with effect from 19 November 2019, Ms Kaake had 89% of [Child 1]'s care and Mr Kaake had 11% of her care. The tribunal found no basis to impose an interim care period reflecting the original parenting plan, as there was no evidence of Ms Kaake withholding the child or Mr Kaake taking reasonable steps to ensure compliance with that plan.