Kennedy and Child Support Registrar (Child Support)

[2019] AATA 3858

Kennedy and Child Support Registrar (Child Support) [2019] AATA 3858 (11 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016404

APPLICANT:  Mrs Kennedy

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  11 July 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether a care arrangement applied – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review affirmed

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

1. This review is about a change to the percentage of care determination for Mrs  Kennedy in respect of the children [Child 1] and [Child 2].

2. Mrs Kennedy and Mr Kennedy are the parents of [Child 1] (born April 2014) and [Child 2] (born April 2016).  From 1 March 2018 the child support assessment reflected Mrs Kennedy as having 60 per cent care and Mr Kennedy as having 40 per cent care of [Child 1] and [Child 2].

3. On 31 January 2019, Mr Kennedy advised the Department of Human Services, Child Support (the Child Support Agency) of a change in care stating that he had 100 per cent care of [Child 1] and [Child 2] from 16 January 2019.

4. On 11 February 2019, the Child Support Agency made the decision that Mr Kennedy provides 100 per cent care of [Child 1] and [Child 2] from 16 January 2019.

5. On 19 February 2019, Mrs Kennedy objected to this decision and on 18 April 2019 the Child Support Agency disallowed the objection (the objection decision).

6. On 24 April 2019, Mrs Kennedy applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 11 July 2019.  Mrs Kennedy gave evidence on affirmation by conference telephone.  The Tribunal wrote to Mr Kennedy on 3 May 2019 inviting him to be added as a party to the application for review.  On 8 May 2019 and on 10 June 2019 Mr Kennedy advised the Tribunal he did not wish to participate in proceedings.  The Child Support Agency provided the Tribunal and Mrs Kennedy with papers relevant to the matter (141 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).[1]

   [1] As it applied after 23 May 2018 and 1 July 2018.

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. Section 51 of the Act says that a care determination may be made (known as an interim determination) if a care arrangement, such as a court order or parenting plan, is not complied with and the parent with reduced care is taking ‘reasonable action’ to ensure the care arrangement is complied with.

6. The issues which arise in this case are:

   ·      whether or not there has been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made and, if so, from what date should the new percentage of care determinations take effect; and

   ·      whether or not an interim care determination should be made and, if so, for what period should any such determination apply?

CONSIDERATION

1. Mrs Kennedy told the Tribunal that Mr Kennedy was a shift worker and care arrangements from the start of the child support assessment were agreed between the parents based around his roster.

2. Mrs Kennedy said the parents later attended Relationships Australia and a parenting plan was written up in around October 2018.  She said the parenting plan reflected the care that was already in place but was not signed because there was some uncertainty about future care.

3. Mrs Kennedy explained that on 16 January 2019 the children went to Mr Kennedy for an extended stay during the summer holiday period.  She said Mr Kennedy was due to return the children to her on 29 January 2019 but had refused to do so after she told him she was relocating from [Town] to [City 1].  Mrs Kennedy said she then immediately sought legal advice and applied for recovery orders which were granted on 15 February 2019.

4. Mrs Kennedy said she did not deny Mr Kennedy had 100 per cent care of the children.  She said as Mr Kennedy had been withholding care of the children from 29 January 2019, when he was due to return them to her, the decision to reflect he had 100 per cent care from 16 January 2019 was incorrect.  Mrs Kennedy said Mr Kennedy had used the system to his advantage and she felt this was very unfair.

5. Mrs Kennedy said, in her view, she had done everything possible to ensure Mr Kennedy complied with the parenting plan prepared by Relationships Australia.  She said Mr Kennedy withheld care and an interim care period was only reasonable.

6. Mr Kennedy did not participate in the hearing, however, the Tribunal notes in evidence a record of a conversation between Mr Kennedy and a child support officer on 31 January 2019 in relation to the care of [Child 1] and [Child 2].  During this conversation Mr Kennedy said he was withholding care based on legal advice because Mrs Kennedy was moving to [City 1] and would not provide him with contact details.

Issue 1 – should there be an interim care determination?

1. Mrs Kennedy believes an interim care period should be applied in her case as she had taken all reasonable steps to ensure the children were returned to her care as set out in the parenting plan.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that parents will have in relation to their children. 

3. The Tribunal, in making a new percentage of care determination either under section 49 or section 50 of the Act, must decide if section 51 applies.  For section 51 of the Act to apply a care arrangement, such as a court order or parenting plan, must be in place.  The parent who has reduced care because this care arrangement is not being complied must take continuous ‘reasonable action’ to ensure that the care arrangement is complied with.

4. In this case Mrs Kennedy has told the Tribunal a parenting plan was in place which reflected existing care arrangements at the time the child support assessment commenced.  Mrs Kennedy also said the parenting plan was not signed.

5. For child support purposes, a parenting plan is defined under subsection 5(1) of the Act as having “the meaning given by section 63C of the Family Law Act 1975.” This section of the Family Law Act 1975 states a parenting plan is an agreement that is made between the parents, is in writing, is dated and signed by the parents.

6. The Tribunal acknowledges the frustration Mrs Kennedy feels about Mr Kennedy withholding care of the children.  As the parenting plan agreed between Mrs Kennedy and Mr Kennedy was not signed, the Tribunal finds that a care determination for an interim period cannot be made in the circumstances of this case.

Issue 2 – actual care

1. As an interim care arrangement could not be applied under the Act, the Tribunal also considered the actual care of [Child 1] and [Child 2].

2. The Tribunal finds that, for the reasons outlined above, Mrs Kennedy has 0 per cent care and Mr Kennedy has 100 per cent care of [Child 1] and [Child 2].

3. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determination must be revoked and replaced by a new percentage of care determination.

4. As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked and replaced with the pattern of care that took place.

New care percentage determination

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mrs Kennedy and Mr Kennedy under sections 49 and 50 of the Act.

2. The Tribunal finds that Mrs Kennedy provides 0 per cent care and Mr Kennedy provides 100 per cent care of [Child 1] and [Child 2] from 16 January 2019.

Date of effect of new care percentage determination

1. Mr Kennedy notified the Child Support Agency of the change in care on 31 January 2019, which is less than 28 days after the change occurred on 16 January 2019.  Therefore, according to subsection 54F(3) of the Act, the existing care determination is revoked from the day before the change occurred.

2. The new determination can be made from 16 January 2019.

DECISION

The decision under review is affirmed.