Kennesly and Kennesly (Child support)
[2025] ARTA 1403
•27 June 2025
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 Kennesly and 100% to Ms Kennesly from 20 November 2022; and
· as the change occurred prior to 29 March 2024 and was not a first care percentage determination at the start of a child support assessment, an interim care determination (during which period care would continue to be recorded as 21% to Mr Kennesly and 79% to Ms Kennesly) could not apply.
On 6 January 2025, Mr Kennesly lodged an application with the Administrative Review Tribunal (the Tribunal) seeking an independent review of Child Support’s decision.
The hearing of the application was held on 10 June 2025. Mr Kennesly and Ms Kennesly both participated in the hearing via Microsoft Teams audio and gave evidence on affirmation.
In addition to Mr Kennesly’s and Ms Kennesly’s oral evidence and submissions at hearing, the Tribunal took into account the relevant documents provided by Child Support to the Tribunal and Mr Kennesly and Ms Kennesly prior to hearing: pages 1 to 396, relevant documents provided by Ms Kennesly and exchanged with the parties: pages B1 to B68, and documents provided by Mr Kennesly: pages A1 to A26, which Ms Kennesly had not received but which were described to her during the hearing.
CONSIDERATION
The relevant law
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The child support legislation provides for an assessment of child support using a formula taking into account numerous variables, including relevant care percentages for each party to a child support assessment.
Sections 49 and 50 of the Act require percentage of care determinations to be made upon initial registration of a child support case, usually based upon the actual care of a child that parties to a child support case have or expect to have. Section 49 applies where the Registrar is satisfied that there is no pattern of care during a care period by a responsible person of a child. If that is the case, the care percentage for that responsible person must be 0%. Section 50 applies where the Registrar is satisfied there has been a pattern of care by a responsible person of a child. The registrar is required to determine the responsible person’s percentage of care, being a percentage that corresponds with actual care, unless section 51 applies.
In certain circumstances (discussed further under Issue 2) parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they are actually providing, for an interim period, that is, an interim determination may apply under section 51 of the Act.
If section 51 applies, the Registrar must determine, under section 49 or section 50, two percentages of care in relation to the responsible person. The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil). The second percentage of care is to be (a) for a determination under section 49—0%; or (b) for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action taken to ensure the care arrangements were complied with were not to succeed. Under section 51C, the first percentage of care determination applies for an interim period, and the second percentage of care determination thereafter.
Existing percentage of care determinations are usually required to be revoked when a change of care occurs, and new percentages of care apply.
The issues
Mr Kennesly’s position is that, although his actual care of [the children] changed to 0% on 20 November 2022, care should be recorded as 25% to him and 75% to Ms Kennesly because he was taking action to have the court-ordered care of [the children] restored to him in accordance with the court order of 20 April 2018.
According to the objections officer, given there was a change in the actual care of [the children] to 0% to Mr Kennesly and 100% to Ms Kennesly on 20 November 2022, the pre-existing percentages of care recorded for each parent for the purposes of the child support assessment must be revoked. New percentages of care of 0% to Mr Kennesly and 100% to Ms Kennesly apply and an interim determination cannot apply in the circumstances because the change occurred prior to 29 March 2024, and this was not a first care percentage determination at the start of a child support assessment. Although not expressly stated, this decision appears to be based upon the operation of paragraph 53(1)(c) of the Act as in force prior to 29 March 2024, as discussed below under Issue 2.
The issues for the Tribunal to determine are:
· Whether the existing percentage of care determinations for the children of 21% to Mr Kennesly and 79% to Ms Kennesly, must be revoked from 20 November 2022, and if so on what basis?
· Whether percentage of care determinations different to the actual care occurring from 20 November 2022 can be recorded for child support purposes, that is whether an interim care determination can be made in the circumstances of this case?
· What is the date of effect of any care change?
Issue 1: Must the pre-existing percentage of care determinations for Mr Kennesly and Ms Kennesly be revoked, and on what basis?
The legislation provides for the revocation of pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H.
Section 54F can only apply if section 54G does not apply, while 54H can only apply if sections 54F and 54G do not apply. It is therefore first necessary to consider whether section 54G applies in this case.
Section 54G provides that:
· if a person (the first person) was to have at least regular care (that is, at least 14%) of a child during a care period under a recorded percentage of care determination (the first determination);
· the first person and the other responsible person (the other person) was to have more than 0% care;
· the child was being made available for care by the other person, but the first person had no care or a pattern of care less than regular care; and
· the other person has notified the change of care within a period that is reasonable in the circumstances;
then both recorded percentage of care determinations must be revoked.
Having regard to the evidence of both parents, which was not in dispute, the Tribunal concludes that a change to the actual care of [the children] occurred on 20 November 2022 with Ms Kennesly having 100% care of [the children] and Mr Kennesly having 0% care of [the children] from that date. Thereafter Mr Kennesly had no pattern of care of [the children]. However, Mr and Ms Kennesly were to have at least regular care of the children prior to the care change, so section 54G is potentially applicable.
The next issue is whether the children were being made available for care by Ms Kennesly. Mr Kennesly’s position was that the care of the children was withheld from him, and they were not made available to him. He said that Ms Kennesly ceased bringing the children to their contact point at McDonalds, and that he had been unable to see the children since despite mediation and, more recently, court proceedings being instituted.
Ms Kennesly said that the regular pattern of care under the court order of 2018 in fact ceased much earlier, in April of 2022, in the context of a police investigation. She did not allow the children to see their father until the investigation was completed. Subsequently, efforts were being made to reinstitute the court ordered care, up to 20 November 2022. Then Mr Kennesly said he would not be seeing the children at the next appointed time because of concerns he held over the children’s conduct, as evidenced by an email from Mr Kennesly dated 2 December 2022. Thereafter, she had ongoing concerns about the children’s safety, and they did not wish to see their father. To date the parties have been unable to agree on ongoing care arrangements and the children have had limited contact with their father.
The Tribunal is not satisfied, on the available evidence, that Mr Kennesly ceased having the care of [the children] despite the children being made available to him. Although Mr Kennesly initially missed a period of care in December 2022 because of his views about the children’s behaviour, it is evident that efforts have been made to reinstate the care specified under the orders, and that Ms Kennesly has not agreed or made the children available. According to her evidence, this is in part due to her views about their safety and in part because she says the children are not willing to spend time with their father.
According to section 2.2.3 of the Child Support Guide (the Guide), it can still be concluded that a child is being made available for care if both parties are genuinely attempting to facilitate care, and the child is refusing to have the planned care. The Registrar will generally only be satisfied that it is the child's action that is preventing care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered).
In this case, while the children’s refusal to spend time with their father may be a factor, they are well under the age of 15, and the evidence does not establish that both parents were genuinely making efforts to encourage the children to attend care events with Mr Kennesly as stated in the court order. Indeed, Ms Kennesly’s evidence was to the contrary. She agreed that she had not allowed Mr Kennesly to have the court care for some time, due to her own concerns about safety.
In addition, Child Support was not notified of the change until 21 November 2023, which arguably fails to meet the requirement that “the other person has notified the change of care within a period that is reasonable in the circumstances”.
Accordingly, the Tribunal finds that section 54G does not apply to the circumstances of this case.
Section 54F requires mandatory revocation of an existing care determination when:
· section 54G does not apply;
· the care that is actually taking place does not correspond with the pre-existing care determination; and
· a change to the percentage of care used in the administrative assessment would alter the cost percentage used in the assessment.
In the present matter, Mr Kennesly’s care percentage was 21% and his cost percentage was 25% under the pre-existing care determination. The care that was taking place from 20 November 2022 does not accord with the care percentage. A change of percentage of care to 0% for Mr Kennesly means that the cost percentage also changes to 0%.
The Tribunal is satisfied that section 54F applies and that the existing care determinations of 21% to Mr Kennesly and 79% to Ms Kennesly are therefore required to be revoked pursuant to section 54H. New care percentage determinations are then required to be made pursuant to section 49 or section 50 of the Act.
Issue 2: Can percentage of care determinations different to the actual care occurring from 20 November 2022 be recorded for child support purposes?
When actual care changes, an interim determination can be made in certain circumstances, which has the effect of continuing the percentages of care recorded in the child support case in line with court-ordered care for an interim period. Section 51 of the Act provides for such interim care determinations. Essentially, the application of section 51 for child support assessment purposes results in the percentages of care that reflect a breached care arrangement staying in place during an interim period, and percentages of care reflecting the actual care occurring applying after the end of the interim period.
The four requirements in subsection 51(1) of the Act that must be met for an interim care determination to be applied are as follows:
· Care percentage determinations are required to be made pursuant to section 49 or section 50 (paragraph 51(1)(a)).
· A formal care arrangement (court order or parenting agreement) applies in relation to the children (paragraph 51(1)(b)).
· The actual care of the children that the parents have had or are likely to have during the care period does not comply with the extent of care they should have had or are to have under the care arrangement (paragraph 51(1)(c)); and
· The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with (paragraph 51(1)(d)).
However, section 51 is subject to section 53 of the Act. Prior to 29 March 2024, as relevant to the 20 November 2022 change of care, paragraph 53(1)(c) provided that:
Section 51 does not apply in relation to a responsible person to whom a determination is to be or has been made under section 49 or 50 if…the Registrar has revoked the determination under section 54F or 54H.
Logan J confirmed in the Federal Court decision of Child Support Registrar v CMU23 [2024] FCA 109 (CMU23), that paragraph 53(1)(c) of the Act (as in force prior to 29 March 2024) means that an interim determination cannot apply if a previous care determination has been revoked under sections 54F or 54H of the Act.
The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the Amending Act) repealed paragraph 53(1)(c) in relation to changes of care that occurred from the date of commencement of the Amending Act, that is, from 29 March 2024. However, paragraph 53(1)(c) as in force prior to 29 March 2024 applies to the 20 November 2022 change of care for [the children]. As the change in care in question occurred before 29 March 2024, the Tribunal is bound by the Court’s interpretation in CMU23 and must apply the legislation in force prior to 29 March 2024, specifically paragraph 53(1)(c) of the Act, such that an interim determination cannot be made if pre-existing percentages of care are revoked pursuant to sections 54F or 54H of the Act.
This conclusion is also consistent with the Guide, at section 2.2.4, which states as follows in relation to interim care:
Note: An interim period cannot be made in relation to a responsible person if a previous care determination made by the Registrar (or the Secretary for the purpose of FTB) in relation to the person has been revoked and the change in care occurred prior to 29 March 2024.
Issue 3: What is the date of effect of the care change?
The Tribunal has found that revocation is required pursuant to section 54F of the Act and new care percentage determinations are required pursuant to paragraph 49(1)(b) in the case of Mr Kennesly and paragraph 50(1)(b) in the case of Ms Kennesly. As noted above, the Registrar is required to determine the responsible person’s percentage of care, being a percentage that corresponds with actual care, unless section 51 applies.
Subsection 54F(3) provides that the revocation of a care determination under that section takes effect at the end of:
· if the Registrar is notified of the change within 28 days after the change of care day for the responsible person – the change of care day; or
· if the Registrar is notified more than 28 days after the change of care day for the responsible person and the responsible person’s care if the child has increased – the day before the Registrar is notified of that matter, or if the responsible person’s care of the child has reduced – the day before the change of care day.
Child Support was not advised of the care change within 28 days. This means that 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).
Accordingly, the decision under review must be affirmed.
| Date of hearing: | 10 June 2025 |
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