Tribunal: Member Amanda Ducrou
The review before the Tribunal was about the assessment of the percentages of care for Mr Kendall and Ms A for one of their children. Mr Kendell and Ms A are separated. In the majority of cases a statutory formula is applied to determine the rate of child support payable to a party. The percentage of care of the child is a variable the formula must take into account.
There are two periods of care relevant to the case. The first, known as the interim period, was between 4 May 2017 and 10 August 2017. The second was from 11 August 2017 onwards. Mr Kendell applied for the review claiming the child support assessment did not reflect the actual care of the child for the interim period. Mr Kendell claims he had 100% care of the child in that period even though the extent of care that he was to have under a court ordered care arrangement was 27%.
Section 51 of the Child Support (Assessment) Act 1989 (the Assessment Act) may apply to the assessment of percentages of care when a court-ordered care arrangement is in place and it is not being complied with. Subsection 51(1) lists four criteria that must be satisfied for a new determination to be made, all of which were satisfied in this matter. Subsection 51(2) requires two percentages of care to be determined. The first corresponds to the extent of care of the child under the court-ordered care arrangement. In this matter that was 27% for Mr Kendell and 73% for Ms A. The second percentage of care, based on actual care, is 100% for Mr Kendell and 0% for Ms A. The period to which each of the determinations of percentage of care applies is set out in section 54C of the Assessment Act. The first determination applies to the interim period and the second applies to each day in a child support period that occurs after the interim period.
The crucial question in this matter revolved around subsection 51(5) of the Assessment Act, which provided a discretion to make a single percentage of care of 0%. This would result in Mr Kendall being deemed to have 100% care in the interim period, potentially entitling him to child support payments. The discretion can only be exercised in special circumstances such as where there is evidence of violence or other inappropriate behaviour by a parent that led to the change in care.
The Tribunal examined the evidence to determine whether the discretion should be applied in the matter at hand. The Tribunal accepted that the relationship between Ms A and the child was turbulent and troublesome and that it was the child who made the decision to live with Mr Kendall full time. The Tribunal accepted, based on the medical evidence provided by the child’s counsellor, that living with Mr Kendall exclusively was likely to produce a better outcome for the child in terms of her mental health. However, the Tribunal was not satisfied based on the evidence before it that Ms A acted unreasonably or inappropriately or that Ms A’s unreasonable or inappropriate actions caused the change in the child’s care. Further, the Tribunal was not satisfied that there was a substantial risk to the physical, emotional or psychological well-being of the child if the care provided for under the court orders had continued to be followed. The Tribunal, therefore, concluded that special circumstances did not exist and that the discretion should not be exercised in the circumstances of this case.
The Tribunal concluded that the care percentages of 27% for Mr Kendall and 73% for Ms A applied for the interim period that commenced on 4 May 2017 and ended on 10 August 2017. As the interim period ended on 10 August 2017, these care percentages could only apply up to that date and the second percentages of care of 100% for Mr Kendall and 0% for Ms A applied with effect from 11 August 2017.
Read the full written decision on Austlii.
 Section 2.2.4 of the Guide