Kenyon and Child Support Registrar (Child support)

[2019] AATA 428

Kenyon and Child Support Registrar (Child support) [2019] AATA 428 (16 January 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC015242

APPLICANT:  Ms Kenyon

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Brakespeare

DECISION DATE:  16 January 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the existing percentage of care determinations, that reflect that Ms Kenyon has 100% care of [Child 1] and Mr Kenyon has 0% care of [Child 1], remain the percentage of care determinations.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the pattern of care – decision under review set aside and substituted

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 whether there should be a change to the percentage of care determinations in respect of the child [Child 1].

2. Since 18 October 2015 the Child Support Agency records have reflected that Ms Kenyon had 100% care of [Child 1] and Mr Kenyon had 0% care (the existing percentage of care determinations).

3. On 14 May 2018 Mr Kenyon advised the Child Support Agency that he had 14% care of [Child 1] and the care change date was 24 March 2018.

4. On 24 May 2018 an officer of the Child Support Agency decided that Ms Kenyon had 86% care of [Child 1] and Mr Kenyon had 14% of [Child 1] with effect from 14 May 2018, being the notification date of the change of care (the original decision).

5. Ms Kenyon objected to the decision. An objections officer disallowed the objection on 27 September 2018.

6. Ms Kenyon lodged an application for review of the objection decision with the tribunal on 17 October 2018.

7. Mr Kenyon was invited to make an application to be a party to the review. He chose not to make an application.

8. A hearing was held on 16 January 2019. Ms Kenyon gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with a bundle of papers relevant to the review (68 pages). Ms Kenyon and Mr Kenyon each provided extra documents to the tribunal (folios A1–A5). The tribunal also received a document from the other parent, Mr Kenyon (folio B1) which was provided to Ms Kenyon.

9. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

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

2. The issue which arises in this case is whether there is reason to revoke and replace the percentage of care determinations in respect of [Child 1].

CONSIDERATION

1. A parent or a non-parent carer may notify the Child Support Agency (or the Family Assistance Office) of a care change.  Under section 74 of the Act, the Registrar must immediately take such action as is necessary to take account of any change in circumstances such as a care change.

2. 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 (as set out in section 55C of the Act), then the existing percentage of care determination must be revoked and replaced by a new percentage of care determination. Section 50 of the Act provides that the new percentage must be a percentage that corresponds with the actual care that the parent has had, or is likely to have, during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

3. It is Ms Kenyon’s contention that there never was, or was likely to be, a change to the care arrangements in respect of [Child 1] at the time Mr Kenyon notified of the care change and there has been no change subsequently.

4. Ms Kenyon said that in March 2018 she went to [City 1] for three days and [Child 1] and her brother, [Child 2], went to stay with Mr Kenyon.

5. After her return from [City 1] Mr Kenyon informed her that he and [Child 2] had decided that [Child 2] would continue to reside at Mr Kenyon’s place as it was easier for him to get to school from there.  Ms Kenyon said that she did not agree with [Child 2] living with his father but she really had no say in the matter. Mr Kenyon said that [Child 2] might still return to her one day a week but no plans were put in place for that to occur and it did not occur. Mr Kenyon also suggested that [Child 1] could spend one day a week with him but Ms Kenyon never agreed to that occurring and no plans were put in place for that to occur.

6. Ms Kenyon said that [Child 1] was very upset with her father and with [Child 2] after the three-day visit in March. Ms Kenyon was aware of this as soon as [Child 1] returned home. [Child 1] has subsequently avoided contact with her father and her brother. She is even reluctant to respond to her father’s texts despite Ms Kenyon encouraging her to maintain contact. Ms Kenyon said that [Child 1] does not feel that her father cares enough about her. She did not contact him on either Fathers’ Day or his birthday. She did agree to spend Boxing Day with him but he then reneged on this arrangement because he had [an injury].

7. Ms Kenyon said that in May she rang the Child Support Agency at Mr Kenyon’s request to sort out the child support in respect of [Child 2]. She acknowledges that the Child Support Agency has recorded in a note dated 24 May 2018 that she agreed to the care change reflecting 0% care for her in respect of [Child 2] and 86% care in respect of [Child 1]. She said that was her error; she was focused on [Child 2], and not on [Child 1]. As soon as she realised her error in respect of [Child 1] she tried to get it rectified with the Child Support Agency but they kept saying to leave it in case [Child 1] changed her mind about spending time with Mr Kenyon.

8. Ms Kenyon said that it was never her intention, or [Child 1’s] intention, for [Child 1] to spend time with Mr Kenyon. Mr Kenyon did not discuss it with her, or with [Child 1], and no plans were ever put in place. Ms Kenyon said that Mr Kenyon advised the Child Support Agency on 14 May 2018 that [Child 1] had been spending one day per week with him from 24 March 2018 yet this was not true. She had stayed with him on the three nights in March during Ms Kenyon’s absence but had not returned to his care since.

9. Ms Kenyon has provided a number of third-party statements (from family and friends) stating that [Child 1] does not spend any time in her father’s care.

10. Mr Kenyon has not provided any evidence to the Child Support Agency or to the tribunal supporting his contention that [Child 1] was, or was likely to be, in his care one day per week.

11. The tribunal found Ms Kenyon to be a credible witness. The tribunal accepts her contention that it was never planned or agreed for [Child 1] to spend one day per week with Mr Kenyon and further, that no such pattern of care has occurred.

12. The tribunal finds that there had not been a change in care in respect of [Child 1].

13. The tribunal therefore determines that there are no grounds for revoking the existing percentage of care determinations (that is, that Ms Kenyon has 100% care and Mr Kenyon has  0% care of [Child 1]).

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the existing percentage of care determinations, that reflect that Ms Kenyon has 100% care of [Child 1] and Mr Kenyon has 0% care of [Child 1], remain the percentage of care determinations.