Kennesly and Kennesly (Child support) - [2025] ARTA 1403

Kennesly and Kennesly (Child support) [2025] ARTA 1403 (27 June 2025)

Applicant/s: Mr Kennesly

Respondent: Child Support Registrar

Other Parties: Ms Kennesly

Tribunal Number: 2025/AC029152
Tribunal:Member A Treble
Place:Melbourne
Date:27 June 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 27 June 2025 at 1:02pm

CATCHWORDS
CHILD SUPPORT – percentage of care – court order – date of change of care – children withheld by mother – safety concerns, police investigation, mediation and court proceedings – interim determination cannot be made – father’s decreased percentage applies from date of care change, and mother’s increased percentage from date of notification – 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 and Ms Kennesly are the parents of [Child 1] (date of birth [September] 2014) and [Child 2] (date of birth [May] 2013). A child support assessment has been in place since 4 September 2017.
The pre-existing percentage of care determinations applying in the child support case for the children were 21% to Mr Kennesly and 79% to Ms Kennesly from 20 April 2018. This care percentage reflected a court order of the same date in which Mr Kennesly was to have the children in his care 3 nights per fortnight and half the school holidays.
On 21 November 2023, Ms Kennesly advised Services Australia – Child Support (Child Support) that the actual care of [the children] had changed to 100% to her and 0% to Mr Kennesly from 19 November 2021. In response, Mr Kennesly advised Child Support that he continued to have regular care of the children until 20 November 2022 and then care ceased. Ms Kennesly subsequently advised that Mr Kennesly last had the children in his overnight care from Saturday 19 November 2022 until midday Sunday 20 November 2022.
On 11 June 2024, Child Support decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Mr Kennesly and 100% to Ms Kennesly from 20 November 2022. As Ms Kennesly notified the change of care on 21 November 2023, more than 28 days after the change of care was found to have occurred on 20 November 2022, the recorded decreased percentage of care determination from 21% to 0% for Mr Kennesly applied from 20 November 2022 (the date of the care change) and the recorded increased percentage of care determination from 79% to 100% for Ms Kennesly applied from 21 November 2023 (the date of notification).
On 14 June 2024, Mr Kennesly objected to this decision, and, on 13 December 2024, a Child Support objections officer disallowed the objection. In particular, the objections officer concluded that:
· there had been a change in the actual care of [the children] to 0% to Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 1403
Decision Date: 27 June 2025

CaseChat Overview and Summary

In the case of Kennesly and Kennesly, the applicant, Mr Kennesly, sought a review of a decision by the Child Support Registrar regarding the percentage of care determinations for child support purposes. The primary dispute involved the percentage of care attributed to Mr and Ms Kennesly for their children following a change in the actual care arrangement. The Tribunal, presided over by Member A Treble, held a hearing on 10 June 2025 in Melbourne to consider the application.

The legal issues before the Tribunal were whether the existing percentage of care determinations for the children of 21% to Mr Kennesly and 79% to Ms Kennesly should be revoked from 20 November 2022, and if so, on what basis. Another issue was whether percentage of care determinations different from the actual care occurring from 20 November 2022 could be recorded for child support purposes. The final issue was determining the date of effect of any care change. The Tribunal concluded that the existing percentage of care determinations should be revoked pursuant to section 54F of the Child Support (Assessment) Act 1989, as the actual care did not correspond with the pre-existing care determinations and a change to the percentage of care would alter the cost percentage used in the assessment. The Tribunal also found that an interim determination could not be made because the change in care occurred prior to 29 March 2024, and the pre-existing percentages of care had been revoked. The decreased percentage of care determination for Mr Kennesly applied from 20 November 2022, while the increased percentage of care determination for Ms Kennesly applied from 21 November 2023, the date of notification.

The Tribunal affirmed the decision under review, stating that the Tribunal was bound by the Federal Court’s interpretation in Child Support Registrar v CMU23 [2024] FCA 109 (CMU23). The decision in CMU23 confirmed that paragraph 53(1)(c) of the Act, as in force prior to 29 March 2024, meant an interim determination could not apply if a previous care determination had been revoked under sections 54F or 54H of the Act. Consequently, the Tribunal upheld the Child Support Registrar’s decision, finding that new care percentage determinations were required to be made from the respective dates of the care change and notification.

Orders