Kavanagh and Kavanagh (Child support)
[2024] AATA 878
•13 March 2024
Kavanagh and Kavanagh (Child support) [2024] AATA 878 (13 March 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2023/MC026670
APPLICANT: Mr Kavanagh
OTHER PARTIES: Child Support Registrar
Ms Kavanagh
TRIBUNAL:Member F Petrone
DECISION DATE: 13 March 2024
DECISION:
The decision under review is varied so that the care percentage determinations in force in relation to [Child 1] on 21 November 2022 are revoked from 15 February 2023 for Mr Kavanagh and from 20 November 2022 for Ms Kavanagh, and new care percentage determinations are made of 36% for Mr Kavanagh and 54% for Ms Kavanagh with effect on the day after the respective dates of revocation.
CATCHWORDS
CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review varied
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.
REASONS FOR DECISION
BACKGROUND
Mr Kavanagh and Ms Kavanagh are the parents of [Child 1] in respect of whom there is a child support assessment.
Care of [Child 1] was recorded as 22% to Mr Kavanagh and 78% to Ms Kavanagh from 29 March 2021 (the existing care determination).
On 16 February 2023, Mr Kavanagh notified Services Australia – Child Support (Child Support) that care arrangements for [Child 1] had changed from 21 November 2022 and that [Child 1] was now in his care for 142 nights per year.
On 31 May 2023, Child Support made a decision to reflect the care of [Child 1] as 33% to Mr Kavanagh and 67% to Ms Kavanagh from 21 November 2022, notified by Mr Kavanagh on 16 February 2023.
Mr Kavanagh objected to that decision and on 16 August 2023 a Child Support objections officer disallowed the objection.
Mr Kavanagh applied to this Tribunal for further review on 28 August 2023. Mr Kavanagh states that his percentage of care for [Child 1] is greater than what is reflected in the decision under review because in addition to the nights of care provided for under the court order dated 21 November 2022, [Child 1] often stays with him fortnightly on a Monday, subject to her request, as provided for in the court order.
On 28 August 2023, 20 December 2023 and 16 February 2024 Child Support provided the Tribunal with a bundle of documents, copied to Mr Kavanagh and Ms Kavanagh, as required under subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), being 353 pages in total (Tribunal documents).
A hearing was scheduled for 10 January 2024 and then rescheduled at the request of Ms Kavanagh. The hearing was initially rescheduled to 7 February 2024 but due to my unavailability was again rescheduled to 12 February 2024.
Mr Kavanagh provided the Tribunal with some further evidence on 25 January 2024, which was copied to Ms Kavanagh and numbered A1–A13.
On the morning of the hearing scheduled for 12 February 2024, the Tribunal recorded that Ms Kavanagh had sent in a submission and a bundle of documents that had been emailed to the Tribunal at 4.26 pm on Friday 9 February 2024. The documents numbered 435 pages in total. Given the volume of material, I rescheduled the hearing to enable me to determine whether the documents should be received into evidence and copied to Mr Kavanagh.
Ms Kavanagh’s submission alleged vexatious conduct and serial objections by Mr Kavanagh as a means of perpetuating family violence by way of systems abuse in order to exert financial, psychological and emotional abuse and coercive control of Ms Kavanagh. She invited me to consider dismissing the application pursuant to section 42B of the AAT Act and give a written direction that the applicant be prevented from making a subsequent application of this kind without leave of the Tribunal.
12. I determined that the documents provided by Ms Kavanagh should be numbered B1– B 435 and copied to Mr Kavanagh and that Ms Kavanagh’s request for procedural orders should be considered at the rescheduled hearing.
13. Mr Kavanagh provided the Tribunal with 4 additional pages of documents on 26 February 2024 being a submission and a copy of calendars for January and February 2024. These documents were accepted into evidence, marked A14-A17 and copied to Ms Kavanagh.
14. Mr Kavanagh and Ms Kavanagh attended a hearing on 28 February 2024 by Microsoft Teams audio and spoke with me regarding the application and the request that the application be dismissed.
ISSUES
The issues which arise in this case are:
· Should the application for review be dismissed and a written direction given under section 42B of the AAT Act?
· Should the care determination that existed prior to the decision under review (the existing care determination), of 22% to Mr Kavanagh and 78% to Ms Kavanagh, be revoked? If so,
· What is the percentage of care for each parent?
· What is the date of effect of any decision?
CONSIDERATION
Should the application for review be dismissed and a written direction given under section 42B of the AAT Act?
Subsection 42B(1) of the AAT Act provides that the Tribunal may dismiss an application for review if satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
Ms Kavanagh states in her submission that since separation in May 2020 she has had to respond to 10 letters/objections initiated by Mr Kavanagh with Services Australia in addition to this application for review and protracted family law proceedings initiated by Mr Kavanagh in July 2021. She provided a chronology of events since separation (pages B4–B7). Ms Kavanagh also refers to 2 police applications for family violence intervention orders made against Mr Kavanagh.
Mr Kavanagh denies that he is perpetuating systems abuse by making this application for review. He admits that there was a family violence intervention order and states that he agreed to this without admission. He states that an intervention order was not granted following the last application by Ms Kavanagh and that an application that he has made against Ms Kavanagh in relation to [Child 1] is due to be heard in the Melbourne Magistrates Court in March 2024.
It is clear that there is a very high level of conflict between the parents which has not yet settled following their separation. It is not uncommon that in the early period following separation, where parents are unable to agree, there may be multiple applications involving courts, Centrelink and Child Support. Research has demonstrated that, unfortunately, the incidence of family violence and the need for Police assistance tends to increase at the time of and immediately following separation. I accept that in some cases it is possible for certain conduct, viewed as a whole over a period of time, to be characterised as systems abuse. The task in this particular case, is for me to determine whether this application for review meets any of the criteria outlined in subsection 42(B)1 of the AAT Act set out above.
In Soames v Secretary, Department of Social Services [2014] FCA 295, Flick J approved the following test:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise;
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
As there was a new court order in relation to parenting matters on 21 November 2022, following that order, Mr Kavanagh had, on the face of it, a basis upon which to notify Child Support of a change in care.
The change notified by Mr Kavanagh, if accepted, would have the effect of altering his cost percentage for [Child 1] used in the child support assessment.
This application involves a full merits review of the decision made by Child Support in response to the change of care notification by Mr Kavanagh on 16 February 2023. In such circumstances, it is difficult for me to conclude that the application was made for a collateral purpose such as annoying or embarrassing Ms Kavanagh and not for the purpose of having the Tribunal adjudicate on the care percentage determinations.
Likewise, I am not satisfied that the application is so obviously untenable or manifestly groundless as to be utterly hopeless. Ms Kavanagh accepted at hearing that there was a change to the pattern of care but disagreed with the percentage of care suggested by Mr Kavanagh. It is appropriate that Mr Kavanagh retain the right to exercise his rights of review and that the Tribunal adjudicate on whether the existing care determinations should be revoked and if so, determine the new percentage of care for each parent. This is because whenever a care percentage decision is made on the basis of new evidence, there is a right of review that attaches to that decision.
The request that the application for review be dismissed with a written direction given under section 42B of the AAT Act is denied.
Should the existing care determination be revoked?
Section 54F of the Child Support (Assessment) Act 1989 (the Act) provides the Child Support Registrar must revoke a determination of a percentage of care if (among other requirements):
· the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and
· the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.
In order to revoke the existing care percentage determination, I must be satisfied that care is not taking place in accordance with the existing care determination and I must be able to identify another pattern of care and corresponding percentage to assess if the cost percentage would change.
The evidence in the Tribunal documents and statements made during the hearing indicate that the care of [Child 1] is not taking place in accordance with the existing care determination and the pattern of care has changed such that Mr Kavanagh now has an increased level of care of [Child 1]. This is because pursuant to the court order dated 21 November 2022, [Child 1] spends 4 to 5 nights per fortnight and half of the school holidays with Mr Kavanagh.
The Act provides for a percentage of care to be identified by reference to a ‘care period’. The care period is not necessarily the period in respect of which the care determination will operate, rather it is a mechanism by which a pattern of care may be examined in order to identify and convert the pattern to a percentage, usually by reference to nights in care.
I am satisfied that it is reasonable to consider the period from 21 November 2022, the date that care was said to have changed, to 20 November 2023.
Mr Kavanagh indicated at hearing that he keeps a contemporaneous care calendar and notes when [Child 1] is in his care. His calendar entries for the period referred to above record [Child 1] as being in his care for 134/365 nights (pages 120–121 of the Tribunal documents and pages A2–A12 of the documents submitted by Mr Kavanagh).
In her written submission dated 9 February 2024, Ms Kavanagh states that she has not been consistent with maintaining a calendar, however she attached to her submission calendars from 1 August 2023 to 8 February 2024 which she states show some inconsistencies in Mr Kavanagh’s calendars. The only inconsistency noted that is relevant to the care period selected above is 2 nights in September 2023.
At hearing Ms Kavanagh accepted that there was a change to the pattern of care following the court order on 21 November 2022 but states that according to her calculations the number of nights that [Child 1] stays with Mr Kavanagh is consistent with the percentage of care of 33% as determined by the objections officer.
In the absence of contemporaneous calendar evidence from Ms Kavanagh for the period referred to above, it is difficult for me to reach any conclusions in relation to the discrepancies alleged by Ms Kavanagh.
The parents agree that [Child 1] spends some additional Monday nights fortnightly with Mr Kavanagh. They also agree that on occasion she does not spend a Friday night with Mr Kavanagh when she otherwise normally would. Mr Kavanagh states that when this occurs, [Child 1] will generally stay on the Monday night instead or make up the missed night on another occasion. Ms Kavanagh says that is not always the case and adds that [Child 1] will usually spend more than half of the school holidays with her.
Given the different views held by the parents, I will rely on the court order and calendar information relevant to the care period provided by each of the parents.
Based on the calendar information provided by Mr Kavanagh, his percentage of care for the care period would be 36.7% which would be rounded down to 36% under section 54D of the Act.
Ms Kavanagh’s calendar information suggests [Child 1] was in Mr Kavanagh’ care for 10 not 12 nights in September 2023. The other months in the care period are consistent with the information provided by Mr Kavanagh.
Mr Kavanagh disputes that he only had [Child 1] for 10 nights in September 2023 and states in his submission that [Child 1] stayed with him from 8 to 12 September 2023 as she had parent teacher interviews with him and he then took her to the orthodontist and to karate on 12 September 2023. Even if I accept Ms Kavanagh’ calendar for September 2023, the care percentage for Mr Kavanagh would be 36% based on 132/365 nights.
The court order of 21 November 2022 provides for Mr Kavanagh to have [Child 1] in his care for 4 nights per fortnight and half of the school holidays and an additional Monday night per fortnight at [Child 1]’s request. If [Child 1] were to decide to stay an additional Monday at least half of the time, this would equate to 132/365 nights, which is 36%.
My understanding from the parents and from reviewing the available calendar evidence is that [Child 1] may sometimes stay for more than half the fortnightly Mondays but that this may be offset by her missing some Fridays.
Based on the information provided by the parents and referred to above, I have calculated that [Child 1] has had between 132 and 134/365 nights with Mr Kavanagh in the care period which equates to a percentage of care of 36%.
As this would change the cost percentage for Mr Kavanagh I must revoke the existing care percentage determination pursuant to section 54F of the Act.
What is the percentage of care for each parent?
Under section 50 of the Act, for the reasons given above, I consider the percentage of care for each parent to be 36% to Mr Kavanagh and 54% to Ms Kavanagh by reference to a care period commencing on 21 November 2022 and ending on 20 November 2023.
What is the date of effect of any decision?
Mr Kavanagh notified Child Support on 16 February 2023 that he considered that from 21 November 2022 his care of [Child 1] did not correspond with the existing care determinations.
Subsection 54F(3) of the Act outlines when a revocation of the existing percentage of care determinations take effect depending on when the Registrar is notified of a change in care.
Because Mr Kavanagh notified the Registrar of a change more than 28 days after the change of care day and his percentage of care increased, the revocation of the existing care determinations take effect as follows:
-For Mr Kavanagh, from the day before the date of notification of the care change, namely 15 February 2023 and
-For Ms Kavanagh, from the day before the change of care day, namely 20 November 2022.
The new percentage of care determinations for each parent takes effect from the day after the respective dates of revocation for each parent.
DECISION
The decision under review is varied so that the care percentage determinations in force in relation to [Child 1] on 21 November 2022 are revoked from 15 February 2023 for Mr Kavanagh and from 20 November 2022 for Ms Kavanagh, and new care percentage determinations are made of 36% for Mr Kavanagh and 54% for Ms Kavanagh with effect on the day after the respective dates of revocation.
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