Cooke and Cooke (Child support)

[2021] AATA 3849

Cooke and Cooke (Child support) [2021] AATA 3849 (3 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021635

APPLICANT:  Mr Cooke

OTHER PARTIES:  Child Support Registrar

Ms Cooke

TRIBUNAL:Member P Jensen

DECISION DATE:  3 August 2021

On 3 August 2021, I made a decision and provided oral reasons for my decision in this matter. Mr Cooke has applied for review of my decision and, in accordance with the Tribunal’s standard practice, I now provide written reasons for my decision:

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – special circumstances existed that made it appropriate for an interim care determination to not be made – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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

1. Mr Cooke and Ms Cooke are the parents of [Child 1] who was born in 2008 and [Child 2] who was born in 2011. Court orders were made in May 2020 concerning the parents’ care for the children. A child support case was registered from 5 August 2020 with what is commonly called the Child Support Agency or CSA. Mr Cooke was recorded as providing 40% care and Ms Cooke was recorded as providing 60% care for the children.

2. On 4 January 2021, Ms Cooke reported a change in care from 9 December 2020. The CSA subsequently decided to record Mr Cooke as providing 2% care and Ms Cooke as providing 98% care for the children with effect from 9 December 2020. Mr Cooke promptly objected to that decision. An objections officer disallowed his objection. Mr Cooke promptly applied to the Tribunal for further review. I heard the matter on 3 August 2021. Mr Cooke and Ms Cooke gave sworn evidence by conference phone.

3. There is no dispute that Ms Cooke started withholding care from 9 December 2021; Mr Cooke provided some hours of supervised care. Ms Cooke calculated Mr Cooke was providing 2% care and she was providing 98% care. Mr Cooke did not dispute those calculations and I accept them as correct. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Care decisions usually reflect the pattern of care actually provided, and if the change in care is reported promptly, the care decision has effect from the date on which the change in care occurred. For those reasons a care decision based on the parents’ actual care would result in Mr Cooke being recorded as providing 2% care and Ms Cooke being recorded as providing 98% care with effect from 9 December 2020: sections 50, 54B and 54F of the Act.

4. Section 51 of the Act provides an exception to those general rules. In certain circumstances, parents can be recorded as providing the care that would have been provided pursuant to a formal care arrangement, such as a court order, rather than the care that was actually provided. Subsection 51(1) relevantly states:

   This section applies if: 

   (a)the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and 

   (b)a care arrangement applies in relation to the child; and 

   (c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and 

(d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

1. Paragraphs 51(1)(a), (b) and (c) are satisfied. The issue is whether, as at the date on which the original decision was made, which was 24 February 2021, Mr Cooke “is taking reasonable action to ensure that the [court order] is complied with.” On 7 December 2020, Ms Cooke’s solicitors wrote to Mr Cooke’s solicitors and informed them that Ms Cooke would be withholding care unless Mr Cooke complied with certain conditions. On 9 December 2020, Mr Cooke’s replied: “Our client does not agree to any unilateral suspension by your client of his time with the children …” Mr Cooke proposed that the parents attend a psychologist to address certain issues and “improve their co-parenting relationship”. When Ms Cooke withheld care, Mr Cooke had discussions with his solicitors concerning the steps that might be taken to resume his care, including the possibility of commencing recovery proceedings. Their advice was to not take that path given that there were already other proceedings on foot, and so he participated in those other proceedings with a view to thereby resuming his care. Further, he contacted a medical general practitioner to address some of the issues that Ms Cooke had raised, and in February 2021 he started the [named] program (which involved an alcohol ignition interlock). He also participated in supervised care and the reports in respect of that care were positive. Viewing his actions as a whole, I find that he was taking reasonable action to ensure that the court orders concerning his provision of care were complied with. Paragraph 51(1)(d) is satisfied.

2. Subsections 51(2) to (4) of the Act effectively provide for the making of an interim determination whereby each parent is recorded as providing the care that would have been provided pursuant to the court orders. Subsection 51(5) of the Act effectively provides a discretion to not make an interim determination if there are “special circumstances … in relation to the child”.

3. The court orders dated [in] May 2020 include the following paragraph:

   11.When the children are in his care, or immediately prior to spending time with them, the Father will not:

   (a)Consume alcohol to a blood alcohol reading of 0.05 or more;

   (b)Consume any illicit substances; or

   (c)Take prescription drugs, unless those drugs are prescribed and then only for the prescribed purpose.

4. Mr Cooke started providing a block of care on Friday, 23 October 2020. On the morning of [a later day in] October 2020, he was driving the children to school when he was breathalysed by police and he recorded a blood alcohol content reading of 0.192. His conduct was obviously in contravention of the general laws concerning drink-driving and the specific court orders dated [in] May 2020.

5. I consider it relevant that Ms Cooke’s initial response was quite measured. She arranged for her solicitors to write to Mr Cooke’s solicitors on 27 October 2020 and relevantly informed them that:

   Our client has become aware of an incident [in] October 2020 that suggests your client has breached the restraint in the orders and put the children’s safety in jeopardy.

   Our client requires your client to submit to a supervised hair follicle drug and alcohol (EtG) test within 24 hours …

   As a result of the incident [in] October 2020, our client holds serious concerns for the safety and wellbeing of the children in your client’s care.

   Unless and until your client produces a ‘clear’ test result or provides a satisfactory explanation for the incident, our client will not be making the children available to spend time with your client pursuant to the orders.

   We await your urgent response and the drug and alcohol test results when they are to hand.

6. As at 27 October 2020, Ms Cooke had not been informed of the details of the incident referred to above. In particular, she had not been informed of Mr Cooke’s breathalyser blood alcohol reading. Ms Cooke expressed her concerns about the incident generally and she identified the action that Mr Cooke could take to address those concerns. She did not make a unilateral decision at that stage to withhold care.

7. On [a day in] November 2020 a test was conducted on blood taken from Mr Cooke [in] October 2020. He had a blood alcohol reading of 0.228. It is not clear when that information was provided to Mr Cooke.

8. On 7 December 2020, Ms Cooke’s solicitors wrote to Mr Cooke’s solicitors. The letter included the following:

   Despite repeated requests having been made by our officer, your client is yet to produce the results of the breathalyser test undertaken by him [in] October 2020 or the results of the blood test undertaken by him the same day to confirm his blood alcohol concentration. It has not been six weeks since those tests were undertaken by your client. It is inconceivable to our client that your client has not received the test results. …

   We are instructed that on [a day in] November 2020, our client was out in [Suburb 1] with girlfriends of hers. They stopped at [Venue 1] … At approximately 9:30 pm, our client and her girlfriends observed your client by himself at the bar. Our client immediately telephoned the children, who were supposed to be in your client’s care, to check on their welfare. The children were unaware of your client’s whereabouts.

   …

   Our client raised her concerns in relation to your client’s failure to supervise the children directly with your client. Your client was dismissive of our client’s concerns and advised our client that he was picking up takeaway dinner from [Venue 1]. Our client has subsequently made direct enquires with the [venue]. The representative our client spoke to confirmed that the [Venue] does not offer a takeaway food service.

9. Ms Cooke had formed the view that Mr Cooke had not been candid about the incident [in] October 2020. It is difficult to explore all of the details of what occurred leading up to Ms Cooke’s decision to withhold care, but I note that a report from [Doctor A], addiction medicine specialist, dated 8 March 2021 states:

   [Mr Cooke] reported an increasing problem with alcohol consumption which resulted in a drink driving charge (with BAC of 0.19) and loss of driving licence for 12 months. On the day of the offence [Mr Cooke] had been drinking more than usual until the early hours of the morning.

10. There is no mention of the blood alcohol reading of 0.228. On 29 October 2020, Mr Cooke’s solicitors had written to Ms Cooke’s solicitors. The letter included the following:

    The breathalyser test provided a blook alcohol concentration (BAC) of over 0.05. Our client was concerned and confused by this, as he had not had an alcoholic drink since the evening prior, and in no way felt under the influence of alcohol.

11. At the hearing, Mr Cooke said he had made one mistake. The broader history of the matter nevertheless raises questions about whether Mr Cooke’s drinking to excess was indeed an isolated incident. There is also the incident which I referred to during the hearing as the [Venue 1] incident. The hearing papers include Ms Cooke’s detailed account of that incident and evidence she has gathered in support of her account of events. The hearing papers also include Mr Cooke’s account of that incident. I am satisfied that that incident raised additional concerns for Ms Cooke. Viewing all of those circumstances as a whole, I am satisfied that there were special circumstances for the purposes of subsection 51(5) of the Act and it was appropriate to not make an interim determination pursuant to section 50 of the Act. The CSA’s original decision was the preferable decision in the circumstances.

15 September 2021