Kenyon and Kenyon (Child support)

[2019] AATA 1730

Kenyon and Kenyon (Child support) [2019] AATA 1730 (1 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC015704

APPLICANT:  Mrs Kenyon

OTHER PARTIES:  Child Support Registrar

Mr Kenyon

TRIBUNAL:Member M Martellotta

DECISION DATE:  01 May 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - court orders not complied with - interim period initially applied - 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. Mrs Kenyon and Mr Kenyon are the parents of [Child 1].[1] On 4 September 2018 the Department of Human Services – Child Support (the Department) decided to accept an interim care determination in relation to [Child 1] of 50% care to Mrs Kenyon and 50% care to Mr Kenyon from 31 July 2018.

   [1] [Child 1] turns [age] on [date]

2. Mr Kenyon successfully objected to that decision on 7 December 2018 and the Department instead decided that there was no basis for an interim determination to apply and refused to make such a determination.

3. Mrs Kenyon sought independent review of this decision. The tribunal convened a hearing on 1 May 2019. Mrs Kenyon and Mr Kenyon attended by telephone conference and gave evidence under affirmation.

4. Documents relevant to the Department’s decision have been provided by the Department (308 pages). Mrs Kenyon also provided written submissions and a timeline of the history of the matter and copies of Family Court orders.

ISSUES

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

2. The issues which arise in this case are whether the existing determination of care can be revoked and replaced; and if so, whether an interim care determination should be applied.

CONSIDERATION

1. Section 49 of the Act requires the Department to determine a person's percentage of care where a person has had, or is likely to have, no pattern of care for a child for the care period. Section 50 of the Act requires the Department to determine a person's percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period.

2. The percentage of care so determined must be a percentage that corresponds with the actual care of the child. Sections 51 and 52 of the Act deal with situations in which the care arrangement is not being complied with. A new percentage of care can be determined by the Department whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

3. In this matter the following facts are not in dispute and the tribunal finds that:

   a)On 13 May 2014, by consent, orders were made in which Mrs Kenyon and Mr Kenyon were to have shared care (50/50%) of [Child 1].

   b)There was a change in actual care whereby [Child 1] resided with her father, Mr Kenyon, on a full time basis. The Department was advised of this change in care and the care determination reflected in the child support assessment was that from 26 June 2016 Mr Kenyon had 100% care and Mrs Kenyon 0% care.

   c)[Child 1] has since continued to reside with her father on a full time basis and there has been no change in the actual care arrangements.

4. Mrs Kenyon told the tribunal that she never agreed with [Child 1] going to live with her father.  She and Mr Kenyon have been engaged in protracted Family Court proceedings regarding the care arrangements. This resulted in the Family Court making orders on 14 February 2018 dismissing Mrs Kenyon’s contravention application and ordering that [Child 1]’s father have sole parental responsibility for her, and that [Child 1] live with her father and spend time with her mother as she ([Child 1]) wishes.  Mrs Kenyon said that she appealed that decision which resulted in the appeal court on 31 July 2018 discharging the care orders made in the February 2018 decision.

5. Mrs Kenyon told the tribunal that Mr Kenyon prevents her from having contact with her daughter because every time she tries to contact her, he calls the police.  She said that her daughter for some time now has not returned her calls or her attempts to make contact.  Mrs Kenyon says that due to ‘power play’ Mr Kenyon has in effect turned her children against her and this is why they will not make contact with her.

6. Mr Kenyon told the tribunal that [Child 1] has lived with him since 2016 and confirmed  there has been no change in the care arrangements since that time.  [Child 1] chose to live with him.  His daughter is  [age], goes to university and makes her own decisions regarding whether or not she wants to spend time with her mother.  Mrs Kenyon lives in the same street as himself and the children and there is nothing stopping [Child 1] from having contact with her mother if she so chooses.  He has rung the police but this was because Mrs Kenyon was causing a nuisance on his property and was not about preventing [Child 1] from having contact with Mrs Kenyon.

7. According to the Department documents, Mrs Kenyon contacted the Department and on the basis of the 31 July 2018 decision requested an interim care determination be made.  This was granted.  On objection however the Department concluded that, as there had been no change in care from that determined by the Department, there was no legislative basis to make a new care determination and as such there was no basis to make an interim care determination.

8. In this matter there is an existing care determination pursuant to sections 49 and 50 of the Act whereby Mrs Kenyon had 0% care and Mr Kenyon had 100% care. The trigger for a change in care determination is that the decision maker is satisfied that care of the child has changed pursuant to relevant provisions of the Act.   In this matter the tribunal is satisfied and finds that there has been no change in care.[2]  The orders made by the appeal court on 31 July 2018 do not amount to a change in care.  As found by the tribunal Mr Kenyon’s 100% care of [Child 1] has remained unchanged since June 2016.

   [2] See section 54F(1)(a) which provides that the registrar is to revoke an existing determination if the care of the child actually taking place does not correspond with the existing percentage of care

9. The tribunal concluded that as there has been no change in care, there is no basis to revoke the existing care determination which in turn means that there is no basis to consider application of an interim care determination.

DECISION

The decision under review is affirmed.