Kinchen and Kinchen (Child support)

[2021] AATA 2734

Kinchen and Kinchen (Child support) [2021] AATA 2734 (13 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC020882

APPLICANT:  Mr Kinchen

OTHER PARTIES:  Child Support Registrar

Ms Kinchen

TRIBUNAL:Member Y Webb

DECISION DATE:  13 May 2021

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 – 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 the percentages of care of Mr Kinchen and Ms Kinchen in relation to their 16-year-old son (“the child”).

2. A child support assessment has been in place since 25 August 2010 and has been collectable by Services Australia (“Child Support Agency”) (formerly the Department of Human Services) since 14 October 2010.

3. There are court orders made by the Federal Magistrates Court of Australia [in] July 2011[1].  In summary, these orders provide that the child will live with the mother and spend time with the father from 7.45 pm Friday until 7pm Sunday and on alternate weeks thereafter and for half of all school holiday periods.  There are other special occasion dates which alternate between the parents.

   [1] C1-pages 142-147

4. Since 11 February 2018 it is not disputed that the existing percentages of care for the child were determined by the Child Support Agency to be 50% care to each of the parents (administratively recorded by the Child Support Agency as 51% care to Ms Kinchen and 49% care to Mr Kinchen).

5. On 21 January 2020 Ms Kinchen contacted the Child Support Agency and notified that there had been a change in the care of the child from 22 September 2019. She stated that the care of the child was no longer 50% to each of the parents because since 22 September 2019 Mr Kinchen had only had care for five nights and these nights were “all over the place” and not consistent[2].

   [2] C1-page 34

6. Mr Kinchen responded that his care remained at 50%.  He provided statements from third parties and a letter from the child’s school all of whom asserted that Mr Kinchen’ care was 50%.

7. On 30 March 2020 an officer of the Child Support Agency decided that they could not be satisfied that there had been any variation to the care of the child and therefore the change in care was rejected.

8. On 16 July 2020 Ms Kinchen objected to that decision stating that she did not agree with the decision to reject a change in care.  She contended that Mr Kinchen had only had care for about four nights between September 2019 and February 2020[3].

   [3] C1-page 86

9. On 19 February 2021 an objections officer allowed Ms Kinchen’s objection.  The objections officer decided that Ms Kinchen’s percentage of care was 100% and Mr Kinchen’s was 0% from 22 September 2019.

10. However, the objections officer also determined that, as Ms Kinchen had lodged her objection more than 28 days from the date of notification of the original decision and there were no special circumstances why she did not lodge her objection earlier, the change in care percentages was to be applied from 16 July 2020 due to the effect of section 87AA of the Child Support (Registration and Collection) Act 1988.

11. On 26 February 2021 Mr Kinchen requested review by the Tribunal of the care percentage decision and on 1 March 2021 he also requested review of the section 87AA date of effect decision.

12. Mr Kinchen and Ms Kinchen attended the hearing by way of a telephone conference on 13 May 2021.  Both gave sworn evidence.

13. The Child Support Agency provided a bundle of papers relevant to this matter and these were marked (as a bundle) as Exhibit C1.

ISSUES

1. The issues for the Tribunal to determine are:

   a)    What were the care arrangements in relation to the child in the relevant care period?

   b)    Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988.

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child(ren). Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child(ren) during the relevant care period, the Registrar must determine that person’s percentage of care for the child(ren) during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflect the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply only unless or until a further care determination is made).

4. The pattern of care can be established either according to a “care arrangement” or the actual care that is taking place.

5. Section 5 of the Assessment Act refers to the A New Tax System (Family Assistance) Act 1999 for its definition of a “care arrangement” and section 3 provides that a “care arrangement” includes “a parenting order within the meaning of section 64B of the Family Law Act 1975”.  The Tribunal is satisfied that the court orders of 28 July 2011 satisfy the definition of a “care arrangement”. 

6. The relevant aspects of the court order of 28 July 2011 state:

   …

   1.  That the husband and the wife do have equal shared parental responsibility for the child (name), (date of birth).

   2.  That (the child) live with the mother.

   3.   That (the child) spend the following time with the husband:

   3.1From 7.45 pm Friday until 7.00 pm Sunday commencing on 29 July 2011 and on alternate weeks thereafter;

   3.2For one half of each of the school holiday periods…

7. The court orders also include arrangements for “special days” such as birthdays, Christmas and Father’s and Mother’s Day. 

8. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

9. In this case, Mr Kinchen and Ms Kinchen did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

10. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the pre-existing care determination of 50% to each of the parents (which had been in place since 11 February 2018).

11. The phrase “pattern of care” which is referred to in subsections 49(1) and 50(1) of the Assessment Act is not given any special meaning by the Assessment Act. In Parent A and Child Support Registrar and Anor[4] the AAT stated that:

    …a pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations on which the prediction of successive or future events may be based…..The pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity.  Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.

    [4] [2013] AATA 562; 137 ALD 426

12. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[5] the Tribunal takes into account evidence of the pattern of care the person has had, from the date of the asserted change in care and up to the time of the original determination by the Registrar (in March 2020) and evidence of the pattern of care the person is, or was, likely to have at that point in time.

    [5] Paragraph 50(1)(a) of the Assessment Act

13. In relation to the court orders Ms Kinchen explained that they had not been followed for some years.  Mr Kinchen agreed.  Although the court orders specified that Mr Kinchen would have care of the child during school terms for two nights a fortnight (and for half of the school holidays), the parents came to an informal agreement in February 2018 that the care of the child would be 50% to each of the parents on an ongoing basis.  Therefore, while there are court orders regarding the care of the child, the Tribunal finds that these had not been followed since February 2018 with the consent of both parents.

14. On 21 January 2020 Ms Kinchen contacted the Child Support Agency and notified a change of care from 22 September 2019.  She stated in her telephone call to the Agency that the 50/50 care was no longer occurring.  She stated that since 22 September 2019 the child had had only five overnight stays with Mr Kinchen[6].  She said that the reason the care wasn’t occurring was that Mr Kinchen and the child were not getting along very well. 

    [6] C1-page 34

15. Ms Kinchen stated that on 14 October 2019 she sent a text message to Mr Kinchen which was lengthy but relevantly stated in summary that if he was not going to have 50/50 care then he needed to let her know so that she could organise her work roster around that. She stated “you can’t pick and choose when he is in your life” and “if you’re not going to continue with the 50/50 then I’ll have to ring child support.  So I need to know as soon as possible what’s happening”. She provided a copy of the text message to the Child Support Agency.[7]  Mr Kinchen responded “F… you”.[8]

    [7] C1-pages 99-100

    [8] C1-page 100

16. At the hearing Ms Kinchen told the Tribunal that she was always making the child available to Mr Kinchen.  She stated that every time Mr Kinchen asked to see the child she allowed it.  She stated that although Mr Kinchen claimed that she withheld care of the child that only occurred for a short period in February 2020 and the reason was that Mr Kinchen was verbally abusive to the child over the telephone and that was very distressing for the child.  However, after a few weeks the child did see Mr Kinchen again.  However, Ms Kinchen stated that Mr Kinchen only, after September 2019, had overnight care of the child for a handful of unplanned nights and that this was his choice.  She stated that Mr Kinchen has not had any overnight care of the child at all since he had two nights in September 2020 and two nights in October 2020.  Ms Kinchen stated in her written submission that the child “…could easily live with (Mr Kinchen) 50% of the time, (Mr Kinchen) has made the personal choice to not continue that care”.[9]

    [9] C1-page 127

17. Mr Kinchen told the Tribunal that he has not seen the child since October 2020.  He stated that in September 2019 he had care of the child for a week from 15 September 2019 to 22 September 2019.  He said that he stopped having 50/50 care of the child in “about April 2020”.  He stated that the child has stayed overnight “a few times” since then.  Mr Kinchen stated that he did stop seeing the child in December 2019 but he had had overnight care “here and there” since early 2020 until he stopped seeing the child completely from October 2020.  He stated that he had tried to talk to the child but he believes the child “doesn’t listen”.

18. When he contacted the Child Support Agency on 22 October 2019 in response to Ms Kinchen’s claim of a change in care from 22 September 2019 he told the officer that he had not seen his child for three weeks and that he wasn’t sure if this was temporary[10]. 

    [10] C1-page 29

19. When Mr Kinchen contacted the Child Support Agency on 4 March 2020 he stated that the care had been withheld because of relationship difficulties (with the child) and he said that he did not have any communication with Ms Kinchen.[11]  He told the officer that the issues commenced on 22 September 2019.

    [11] C1-page 54

20. The Tribunal carefully considered the statements of the parents and the other evidence which they provided.  Both parents provided third party statements.  While provided in good faith some were not particularly helpful because the person was not observing the care of the child on a day to day basis.  However, Ms Kinchen’s partner provided a statement confirming that from 2 May 2020 when he and Ms Kinchen commenced living together, the child was in Ms Kinchen 100% care.  He also stated that prior to that date he frequently visited and stayed over at Ms Kinchen’s home and the child was in Ms Kinchen’s 100% care.  Ms Kinchen also provided a statement from her cousin who stated that she speaks with Ms Kinchen on an almost daily basis and that she visits on a regular basis.  She stated that the child has been in Ms Kinchen’s care 100% of the time since at least June 2019.  Ms Kinchen also provided a letter from her neighbour who stated that she sees the child next door many times throughout the week.

21. Mr Kinchen also provided a letter from a friend dated 29 February 2020 who stated that Mr Kinchen “retains 50/50 custody”.  Mr Kinchen admitted at the hearing that the friend was relying on what Mr Kinchen told her about the care arrangements.  He also provided a letter from his parents dated 4 March 2020 which stated that Mr Kinchen has 50% care of the child.  Mr Kinchen also provided a statement from the child’s school which stated that the parents have a 50/50 shared care arrangement.  However, the school later advised that that it was relying on its records which had not been updated by the parents.

22. The Tribunal considered the statements of both parents to be the most relevant information.  The Tribunal accepts Ms Kinchen’s statement that she has not, except for a short period in February 2020, withheld care of the child from Mr Kinchen.  It finds that Mr Kinchen voluntarily ceased the 50/50 care pattern (week about care) from 22 September 2019 as Ms Kinchen’s has claimed.  The Tribunal asked Mr Kinchen whether he had taken action to restore his care to the 50/50 pattern (or the court-ordered care) by attempting to arrange mediation, taking court action or communicating with Ms Kinchen to restore his care.  He told the Tribunal that he had not taken any of those steps.  He stated that he tried to contact the child but the child did not want to speak with him.  In those circumstances an interim care decision is not applicable.

23. In relation to the actual care which was occurring the Tribunal is satisfied that from at least 22 September 2019 the care which Mr Kinchen was providing was very occasional only and it was not occurring in any regular pattern.  Mr Kinchen admitted that the care had not been occurring on a 50/50 basis since April 2020.  However, even on his own evidence, it was apparent that care had ceased on a 50/50 basis from an earlier date as Ms Kinchen asserted and the Tribunal finds that from 22 September 2019 Mr Kinchen had no pattern of care for the child.  While he had overnight care on four or five occasional nights the Tribunal finds that there was no pattern to the care.  Hence, the Tribunal finds that Ms Kinchen’s care was 100% and Mr Kinchen’s care 0% from 22 September 2019.

24. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care that is actually taking place does not correspond with the existing percentage of care for the children and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

25. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Prior to 22 September 2019, the pre-existing care was that both parents had 50% care of the child. The Tribunal’s determination will mean that Ms Kinchen will have a care percentage of 100% and a cost percentage of 100%. Mr Kinchen will have a care percentage of 0% and a cost percentage of nil. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met the pre-existing determinations of percentage of care must be revoked in accordance with section 54F.

2. Subsection 54F(3) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified or otherwise became aware of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 22 September 2019. The Tribunal also finds that the Child Support Agency “otherwise became aware” arguably when Mr Kinchen contacted the Child Support Agency on 22 October 2019 and advised that he had not had any care for three weeks. The Tribunal therefore finds that the change in care was notified within 28 days of the change of care. Therefore the revocation takes effect from 21 September 2019 being the day before the change of care day.

3. An interim period does not apply in this case. Hence section 51 of the Assessment Act is not applicable. Having revoked the existing determinations, the Tribunal must now make new determinations of Mr Kinchen’s and Ms Kinchen’s percentages of care under sections 49 and 50 (respectively) of the Assessment Act.

4. Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations. Therefore the new percentages of care apply from 22 September 2019.

5. The care percentage decision under review is therefore affirmed.

6. In relation to the child support assessment, the Tribunal notes that in a separate decision of the Tribunal of the same date, the Tribunal has decided while it accepts that Ms Kinchen’s reasons for not lodging an objection within 28 days of the original decision were genuinely held, it did not find that the circumstances were special to the extent that they prevented her from lodging an objection within the prescribed period of 28 days.  Hence, the Tribunal agrees with the objections officer that the date of effect for the decision is the date that Ms Kinchen lodged her objection; that is, 16 July 2020. 

DECISION

The decision under review is affirmed.