Kuhn and Olthoff (Child support)

[2020] AATA 3675

Kuhn and Olthoff (Child support) [2020] AATA 3675 (16 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019078

APPLICANT:  Mr Kuhn

OTHER PARTIES:  Child Support Registrar

Ms Olthoff

TRIBUNAL:Member J Longo

DECISION DATE:  16 July 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, makes the following decisions:

·     An interim care determination from 19 November 2019 to 29 May 2020 with Mr Kuhn having 28% care of [Child 1] and [Child 2] and Ms Olthoff having 72% care of [Child 1] and [Child 2];

·     From 30 May 2020 Mr Kuhn has 0% care of [Child 1] and [Child 2] and Ms Olthoff has 100% care of [Child 1] and [Child 2].

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 - reasonable action taken - interim period applied - 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.Mr Kuhn and Ms Olthoff are the parents of [Child 2] and [Child 1]. Mr Kuhn is the parent liable to pay child support.

2.From 5 June 2019 the Department of Human Services – Child Support (the Department) determined that Ms Olthoff had a percentage of care for [Child 2] and [Child 1] of 62% and that Mr Kuhn had a percentage of care of 38% for [Child 2] and [Child 1].

3.On 19 November 2019, Ms Olthoff contacted the Department and advised that her care percentage for [Child 2] and [Child 1] was 72% and that Mr Kuhn had a care percentage of 28% from 19 November 2019. On 30 November 2019 the Department determined a new care determination with Mr Kuhn having 22% care of [Child 2] and [Child 1] and Ms Olthoff having 78% care of [Child 2] and [Child 1] from 19 November 2019.

4.On 13 January 2020, Ms Olthoff lodged an objection to the decision of the Department. On 8 May 2020, an objections officer allowed Ms Olthoff’s objection and made a new care determination that Mr Kuhn had 0% care of [Child 2] and [Child 1] and that Ms Olthoff had 100% care of [Child 2] and [Child 1] from 19 November 2019.

5.On 19 May 2020, Mr Kuhn lodged an application to the Administrative Appeals Tribunal (the tribunal) for an independent review of the decision. The hearing took place on 16 July 2020. Mr Kuhn and Ms Olthoff participated in the hearing by telephone and gave sworn evidence. In making its decision, the tribunal considered the documents (numbered 1 to 151) provided by the Department, which were also sent to both parties. The tribunal also considered the documents provided by Mr Kuhn (numbered A1 to A11) and Ms Olthoff (numbered B1 to B4), which were provided to both parties.

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 2] and [Child 1]?

7.It is uncontroversial that the care of [Child 2] and [Child 1] altered from 19 November 2019 from the care percentages previously determined by the Department. Ms Olthoff was assessed from 5 June 2019 as having a care percentage for [Child 2] and [Child 1] of 62% and Mr Kuhn had a percentage of care of 38% from this date. The care determination was based on court orders initially made on 17 July 2014 which were amended on 17 July 2018.

8.The tribunal is satisfied that the Department was notified on 19 November 2019 that a care change had occurred on this date and that Mr Kuhn’s care had reduced to 22% for [Child 2] and [Child 1] and Ms Olthoff had 78% care of [Child 2] and [Child 1]. On 13 January 2020, Ms Olthoff objected to the decision and stated that Mr Kuhn did not have any care of [Child 2] and [Child 1] since 19 November 2019.

9.Mr Kuhn stated that prior to the care of [Child 2] and [Child 1] being withheld, he and Ms Olthoff had discussed increasing his care of the children and agreed that he would have [Child 2] and [Child 1] in his care every Wednesday night. This increase in his care started on 5 June 2019 until 18 November 2019, when he was notified via email by Ms Olthoff that Wednesday night care would not be continuing and that the care would be reverting to the care as specified in the court orders. After this change in the care, Ms Olthoff then applied for an intervention order on 20 November 2019 on behalf of the children and then advised Mr Kuhn that the care of [Child 2] and [Child 1] would not continue and that care would be withheld. Ms Olthoff also stated that due to the issues raised by the children regarding his care, an application would made to vary the existing court orders. However, Mr Kuhn stated that Ms Olthoff did not make this application until June 2020. Mr Kuhn stated that the allegations raised regarding the withholding of care are in dispute and he is challenging all of these allegations. The tribunal notes that Mr Kuhn has provided copies of his applications to the Federal Circuit Court in relation to the care of [Child 2] and [Child 1].

10.Mr Kuhn stated that when he was notified that care was to be withheld, he sought legal advice about this decision and his legal representative wrote to Ms Olthoff on 3 December 2019.  His legal representatives again wrote to Ms Olthoff on 11 December 2019 regarding the contravention of the court orders. The tribunal notes that Mr Kuhn filed a contravention order application with the Federal Circuit Court on 4 February 2020.

11.Mr Kuhn stated that there was no basis on which to make the intervention order and the withholding of care and that he has sought to continue to have access with the children.

12.Ms Olthoff confirmed that the care of [Child 2] and [Child 1] ceased from 19 November 2019 and that since this date Mr Kuhn has not had any further care of the children. Ms Olthoff confirmed that it was not until 13 January 2020 that the Department was notified that no care of [Child 2] and [Child 1] had occurred since 19 November 2019. Ms Olthoff confirmed that she was withholding care due to issues raised by the children. Ms Olthoff stated that she had spoken to the Department prior to January 2020 that the care was not occurring but was told that she would need to lodge an objection to the decision.

13.Ms Olthoff stated that there has been no involvement with child protection and no medical or other reports had been lodged in relation to the issues before the court. She stated that her application for a variation of the court orders was made in June 2020 because she was trying to obtain legal aid and had not yet been advised of the outcome of the application. Ms Olthoff stated that she only received legal advice after the contravention application had been made and then made her application to vary the court orders.

Should the existing care determinations in relation to [Child 2] and [Child 1] be revoked?

14.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.

15.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 5 June 2019 with Ms Olthoff having a care percentage for [Child 2] and [Child 1] of 68% and Mr Kuhn having a percentage of care of 32%. Therefore, paragraph 54F(1)(a) of the Act is satisfied.

16.Section 51 of the Act says that a care determination may be made (known as an ‘interim determination’) if court orders (or a parenting plan) specifying care arrangements are not complied with and the parent with reduced care is taking ‘reasonable action’ to have the court order complied with. The Department determined in this matter that due to the care not occurring as stated in the court orders, an interim determination could not be made. The tribunal does not agree with this approach. In the first instance, the tribunal notes that the court orders allow for additional care to occur as agreed between the parties. Furthermore, the tribunal notes that section 51(1)(b) of the Act requires that a care arrangement applies in relation to the children. The tribunal determines this to mean that the court orders still apply and does not refer to how they are being followed. The tribunal notes that there are court orders regarding the care of [Child 2] and [Child 1] which were made on 17 July 2018 and that the care that was occurring was in accordance with these orders.

17.The Registrar was notified on 13 January 2020 that the care of [Child 2] and [Child 1] which was actually taking place by Mr Kuhn and Ms Olthoff had changed from 19 November 2019. There is no dispute that the care arrangements as determined by the Department on 5 June 2019 were not occurring from 19 November 2019. Mr Kuhn stated to the Department that he had 0% care of [Child 2] and [Child 1] from this date. Mr Kuhn stated that he had been prevented from having the care of the children and that he made a contravention application to the Federal Circuit Court and also was contesting the intervention order in the Magistrates’ Court.

18.The tribunal was satisfied that Mr Kuhn was taking ‘reasonable action’ to ensure the court order was complied with in regard to the care of [Child 2] and [Child 1] that should have occurred. The tribunal has decided that Mr Kuhn’s applications for contesting the intervention order and the contravention application to the Federal Circuit Court can be considered reasonable action within the meaning of section 51 of the Act.

19.As the care arrangements for [Child 2] and [Child 1] changed on 19 November 2019, an interim care determination would ordinarily apply in relation to the person who had reduced care of the child in circumstances where care is not occurring in accordance with a court order and the person is taking reasonable action to ensure the court orders are complied with by the other person. Accordingly, the tribunal has determined that an interim care determination should be made from 19 November 2019 to 29 May 2020 with Mr Kuhn having 28% care of [Child 2] and [Child 1] and Ms Olthoff having 72% care of [Child 2] and [Child 1]. This is in accordance with the prescribed care of [Child 2] and [Child 1]. As the additional care on Wednesday night was by agreement, once the agreement was no longer in place, this care could not continue and is not enforceable under the existing court orders. It has therefore not been included in the interim determination.

20.As the tribunal has revoked the existing care determinations for [Child 2] and [Child 1], new care determinations must be made. Section 54C establishes the application days if two percentages of care apply under section 51 of the Act:

·the first care percentage is that from 19 November 2019 until 29 May 2020 Ms Olthoff provides 72% care and Mr Kuhn provides 28% care of [Child 2] and [Child 1] (each day in a child support period that occurs in the interim period); and

·the second care percentage is that from 30 May 2020 Ms Olthoff provides 100% care and Mr Kuhn provides 0% care of [Child 2] and [Child 1] (each day that does not occur in the interim period until such time as this determination is revoked).

DECISION

The tribunal sets aside the decision under review and, in substitution, makes the following decisions:

·     An interim care determination from 19 November 2019 to 29 May 2020 with Mr Kuhn having 28% care of [Child 1] and [Child 2] and Ms Olthoff having 72% care of [Child 1] and [Child 2];

·     From 30 May 2020 Mr Kuhn has 0% care of [Child 1] and [Child 2] and Ms Olthoff has 100% care of [Child 1] and [Child 2].