VDBC and Child Support Registrar (Child support second review)

[2022] AATA 1376

VDBC and Child Support Registrar (Child support second review) [2022] AATA 1376 (31 May 2022)

Division:GENERAL DIVISION

File Number(s):      2020/0532

Re:VDBC

APPLICANT

AndChild Support Registrar

RESPONDENT

AndZJDC

OTHER PARTY

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:31 May 2022

Place:Sydney

The reviewable decision made on 5 December 2019 is set aside and in substitution it is decided that the Other Party’s percentage of care during the period 3 September 2018 to 24 October 2018 was 0%. 

...................................[sgd].....................................

Mrs J C Kelly, Senior Member

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 (Cth).

CATCHWORDS

CHILD SUPPORT – percentage of care – objection to interim care determination – where court orders constituted a care arrangement – where actual care differed from care arrangement –whether reasonable action was taken to comply with care arrangement –decision under review set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth) ss 5, 49, 50, 51, 54F, 54G, 54H

CASES

P v Child Support Registrar [2012] FCA 1398

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Child Support Guide

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

31 May 2022

Introduction

1. The Applicant is the mother of a child whose care is shared with the child’s father, the Other Party.  Both the Applicant and the Other Party were unrepresented.  The Respondent, the Child Support Registrar, was represented and provided helpful oral and written assistance to the Tribunal.

2. This case is about deciding what  the Other Party’s percentage of care was  during a period which was in dispute, from 21 August or 28 August 2018 or 3 September 2018 until 24 October inclusive. It is not in dispute that the Other Party had no care of the child in the relevant period.

3. The relevant regulatory regime is very complex.  The principal Act is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).  Put simply, if orders have been made by a court, as in this case, child support liabilities are calculated according to those orders.  There is one exception where a parent can show that they have been denied access and took reasonable steps to comply with the order.  If so, the Child Support Registrar (the Registrar) can make an interim care determination.    

4. In this case, the Other Party claims that he was denied access to the child and took reasonable steps to comply with court orders about drug testing made on 15 May 2017.  The Applicant claims that the steps he took were not reasonable, and that he had breached the court orders with the consequence that the arrangement was suspended.

   Background facts

5. On 23 October 2015, a child support case in respect of the child was registered for collection.  From that date, the Applicant was recorded as providing 100% care for the child.

6. On 15 May 2017 the Federal Circuit Court made consent orders including a drug testing regime in respect of the Other Party.

7. On 2 August 2018, the Other Party notified the Registrar of a change in care for the child.  Since 25 June 2018, he had provided overnight care for the child on Monday nights, in accordance with consent orders made by the Federal Circuit Court on 12 April 2018. 

8. On 4 August 2018, the Applicant also provided the court orders of 12 April 2018 to the Registrar.  She said that the orders allowed the other party 51 nights of total overnight care, not 52.

9. On 9 August 2018, a delegate of the Registrar accepted the Other Party’s notification and determined that the Applicant had 86% care and the Other Party 14% from 25 June 2018 (the existing care percentage determination).  The Applicant lodged an objection to that determination on 21 August 2018 which was disallowed on 19 October 2018.

10. On 31 August 2018, the Applicant notified the Registrar of a further change in care of the child.  From 28 August 2018 she had 100% care of the child because the Other Party had failed to undergo drug testing in accordance with the court orders and was therefore precluded from providing care.

11. The Applicant and the Other Party attended mediation on 4 September 2018. 

12. On 19 September 2018, the Other Party responded to the notification from the Respondent dated 17 September 2018 of a potential change of care level for the child.  He claimed that the Applicant was withholding care in breach of the court orders, that he had raised that issue with her immediately, and that he had been undergoing drug tests in accordance with the orders.

13. On 25 October 2018 further court orders were made reflecting care of the child as 79% to the Applicant and 21% to the Other Party.Those orders also discharged the orders made on 15 May 2017 in respect of the drug testing regime.

14. On 1 November and 11 November 2018, the Applicant provided further information and documents to the Registrar, including the orders made by the Federal Circuit Court on 15 May 2017 about drug testing to be undertaken by the Other Party.

    The decisional history

15. On 10 January 2019, a delegate of the Registrar made an interim care determination (the interim care determination).  The delegate determined the following:

    ·     Care had been withheld by the Applicant from 28 August 2018.

    ·     The first missed care event for the Other Party was 3 September 2018.

    ·     The Applicant’s withholding care was contrary to the orders dated 12 April 2018, which the delegate considered superseded the drug testing provisions in the orders of 15 May 2017.

    ·     The parties’ participation in mediation and court proceedings constituted reasonable action on the part of the Other Party.

16. Accordingly, the delegate decided to apply an interim care period in line with the percentages of care provided by the 12 April 2018 orders (86:14 care in the Applicant’s favour), effective for a maximum period of 52 weeks from the date of those orders until 10 April 2019.

17. On 31 January 2019, a delegate of the Registrar accepted the Other Party’s notification (on 26 October 2018) that care for the child had changed on 26 October 2018, in accordance with orders made by the Federal Circuit Court on 25 October 2018 that allowed the Other Party to provide three nights of overnight care per fortnight.   The delegate recorded care for the child from 28 August 2018 as 86% for the Applicant and 14% for the Other Party and from 25 October 2018, 79% for the Applicant and 21% for the Other Party.

18. On 12 February 2019, the Applicant lodged an objection to the interim care determination made on 10 January 2019 on the basis that the delegate had incorrectly interpreted the 12 April 2018 orders.  On 5 March 2019, the Other Party disagreed with the objection, maintaining that he had undertaken drug testing as required and that the Applicant had withheld care in circumstances where no court orders allowed this.

19. On 23 July 2019, an objections officer affirmed the interim care determination to reflect a care percentage of 86% for the Applicant and 14% for the Other Party, for the period 3 September 2018 to 24 October 2018.

20. The Applicant sought review of the objection decision in the Social Services & Child Support Division of this Tribunal (AAT1).  On 5 December 2019, AAT1 affirmed the objection decision, that is, it decided that the interim care determination was correctly made.

21. AAT1 found that for the period from 3 September 2018 to 24 October 2018, the actual care percentages for the child were 100% to the Applicant and 0% to the Other party, however, a care arrangement for the child applied and, pursuant to s 51(1)(d) of the Act, the Other Party, who had reduced care of the child during the contested care period, had taken reasonable action to comply with the care arrangement. The care percentage for the child should therefore be based on the care arrangement in place, that is, a care percentage for the child of 86% for the Applicant and 14% for the Other Party for the period 3 September 2018 to 24 October 2018.

22. In coming to that conclusion, AAT1 found that the 15 May 2017 court orders constituted a “care arrangement” for the purposes of the Assessment Act. It considered the Applicant’s complaints about the Other Party’s non-compliance with those orders and noted that it was not in dispute that the Other Party’s drug tests returned negative results. It found that, in the circumstances, the Other Party’s care was not suspended pursuant to the court orders and he was entitled to care of the child from 3 September 2018 until 24 October 2018 when care was withheld without his consent.

    The relevant Court orders in force

23. The Federal Circuit Court made the following relevant orders by consent on 15 May 2017:

    Screening for drugs of abuse

    11. Pending the interim hearing, the father submit to random hair follicle screening for the detection of drugs of abuse and to give effect to this order:

    (a) Within forty-eight (48) hours of the date of these orders, the father attend upon a medical practitioner and obtain a referral to a pathologist to conduct such screening;

    (b) The father attend upon the pathologist and submit to the supervised collection of a hair sample from the father within seven (7) days of receiving written notice to undertake a random hair follicle screen from the mother or, if she is legally represented, her legal representatives;

    (c) Written notice to undertake a hair follicle screen may be sent to the father care of:

    (i) if the father is legally represented, the email address of his legal representative; and

    (ii) if the father is not legally represented, the email address [redacted];

    And shall be deemed to have been received by the father at the date and time it is sent by email;

    (d) The father is only required to submit to random hair follicle testing not more frequently than once per three (3) calendar months;

    (e) Pursuant to section 121(9)(d) of the Act, each party is at liberty to provide the pathologist with a copy of these orders;

    (f) The father provide the pathologist with photographic identification to be recorded before each hair follicle screen and authority, with this order also hereby authorising the pathologist, to provide the results of each screen to the mother or her legal representatives immediately upon completion;

    (g) The hair follicle screening be conducted by a laboratory accredited by the National Association of Testing Authorities;

    (h) The hair follicle screening be for the detection of amphetamine type substances, benzodiazepines, cannabis metabolites, cocaine metabolites, opiates and any other drug of abuse defined by the Australian Standard AS 4308 (notwithstanding that standard is for urinalysis screening);

    (i) The costs of the hair follicle screening be met equally by the parties.

    Consequences of the detection of drugs of abuse or non-compliance with screening procedures

    12. In the event that:

    (a) A hair follicle screen of the father detects a substance referred to in order 11(h), other than a prescription medication in accordance with a current prescription; or

    (b) The father fails to provide a hair sample in accordance with these orders within the timeframe provided for in these orders;

    then any other order providing for the care for the child to live with or spend time with the father is suspended and the child spend time with the father once per fortnight at a supervised contact centre … until such time as a further hair follicle screen has been undertaken by the father which has not detected a substance referred to in order 11(h), other than a prescription medication in accordance with a current prescription.

24. The Applicant included the following table with her letter to the solicitors for the Respondent dated 7 September 2020 which annexed her evidence for the Tribunal.

Date requested drug test	Date hair follicle sample collected	Company used to conduct drug test	Did it satisfy 15 May 2017 Court Orders
30 June 2018	9 July 2018	Brassets (Psychemedics Corporation)	No – not tested for Benzodiazepines No – not tested within 7 days of receipt of request
30 August 2018	Brassets (Psychemedics Corporation)	No – Lab not accredited by the National Association of Testing Authorities
5 October 2018	Safe Work Laboratories

1. On 30 June 2018, the Applicant sent an email requesting that the Other Party undertake a drug test.  She received a copy of the results of the drug test on 27 August 2018.  

2. On 28 August 2018, the Applicant advised the Other Party’s lawyers that he was “technically” in breach of the orders and would not be able to enter the child’s day care, however, she was willing to negotiate a change of schedule.  She noted that the test did not screen for Benzodiazepines.  She also notified the child’s day care that the Other Party had not been tested for benzodiazepines and is therefore in breach of the order.

3. The Other Party’s lawyers responded on 29 August 2018 and advised that the testing laboratory had been given a copy of the court order but failed to conduct the test for Benzodiazepines, that there was no evidence that the Other Party had ever taken them and that an appointment for another test had been made for 30 September 2018.   

4. On 4 September 2018, the Applicant and Other Party attended a mediation pursuant to a court order made on 12 April 2018.  The Applicant emphasised that the mediation was not initiated as a consequence of the drug testing issue.  However, the parties agreed that the previous arrangement would be reinstated:

   When a negative hair follicle screening test that complied with all the requirements is made available …

5. On 11 September 2018 the Applicant received the results of the test conducted on 30 August 2018.  She emailed the Other Party’s lawyers to request that they provide evidence that the test was compliant with the court order requiring that the test be undertaken by a laboratory accredited by the National Association of Testing Authorities.

6. On 19 September 2018, the Other Party’s lawyers advised the Applicant that there was no Australian hair follicle testing standard for NATA accreditation and requested that the Applicant remove the clause from the orders.

7. The Applicant claimed that there were hair follicle drug testing companies that complied with the NATA as the court order stipulated.  On 15 September 2018, she emailed the child’s day care advising that the Other Party had not complied with the drug testing requirement of the court order.

8. The Applicant claimed the “day care” spoke to their own legal team “numerous times” and confirmed that the Other Party was not allowed to enter the premises.  She believed that the Other Party and his lawyer emailed the day care centre claiming that he could attend, but he was denied access.

9. On 17 October 2018 the Other Party provided a third drug test result to the director of the day care centre and to the Applicant.  It was a negative hair follicle test.  He wrote:

   Please see the link below to the NATA website verifying that Safe Work Laboratories are accredited to undertake hair follicle testing.

   This now satisfies the Family Court orders without any doubt and I will resume the normal schedule of pick-up of (the child from the day care centre). …

10. The Applicant wrote that the test is negative for all drugs listed in the court order and the laboratory was accredited by NATA.[1] 

    [1] Exhibit A1: Letter to Respondent’s lawyers dated 7 September 2020 with Annexures.

11. The Applicant stated that it was not she who withheld care of the child but rather the day care centre did so on the advice of its legal team.  All handovers occurred at the day care centre pursuant to the court order.

12. She stated that on 18 October 2018 there was an interim hearing before the Federal Circuit Court where there was no discussion about her inappropriately withholding care of the child.  Interim court orders were made on that date.

    The regulatory framework

13. The relevant legislative provisions are contained in:

    ·the Assessment Act; and

    ·the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

14. The Child Support Guide (Guide) provides policy guidance to decision-makers and should be applied unless there are cogent reasons not to do so.[2]

    [2] See P v Child Support Registrar [2012] FCA 1398 at [3]; see also Re Drake and Minister for Immigration

    and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    The issues

15. The issues to be determined are:

    (a)Whether the existing care percentage determination must or should be revoked pursuant to s 54F, s 54G or s 54H of the Assessment Act?

    (b)If so, what percentage of care should be determined for the Applicant and Other Party under s 49 and/or s 50 of the Assessment Act?

    (c)If a determination is made under either s 49 or s 50, does an interim care period arise such that s 51 applies?

    Whether the existing care percentage determination must or should be revoked

16. It is not in dispute, that the Other Party had 14% care of the child before the Applicant decided on 28 August 2018 that the Other Party was not to have care because of the alleged breach of the court order.  The first day after that when the Other Party would have had care of the child under the existing care percentage determination but did not was 3 September 2018.

17. I note that the Applicant’s objection in respect of the 14% care percentage determination for the Other Party, which included reference to the Other Party not having care on 20 August 2018, was unsuccessful.    

18. Although the Applicant proposed 21 August or 28 August 2018 as dates when change of care occurred, I am satisfied that the change of care day was 3 September 2018. Therefore, pursuant to s 54F(3)(a), 54G(2)(b) or 54H(3)(a) of the Assessment Act, any revocation of the existing care percentage determination takes effect on the day before the change of care day, that is, 2 September 2018 because notification was made within 28 days of the change of care.

19. It is uncontested that following the Federal Circuit Court making orders on 25 October 2018, a new care arrangement was followed with the Other Party’s percentage of care being 21% and the Applicant’s care percentage being 79%.  The relevant care period is 3 September 2018 to 24 October 2018 (the contested care period).

20. During the contested care period the parents’ actual percentage of care was 100% for the Applicant and 0% for the Other Party.

21. Care during the contested care period was not in accordance with the existing care determination of 86% for the Applicant and 14% for the Other Party.[3]  It is necessary to consider whether to revoke the existing care percentage.  

    [3] On 9 August 2018, a delegate of the Registrar accepted that the Other Party’s percentage of care for the child was 14% and the Applicant’s was 86%, from 25 June 2018 pursuant to a court order. 

22. The provisions relevant to the revocation of an existing care percentage are contained in Part 5, Division 4, Subdivision C of the Assessment Act. They are reproduced in the T Documents at T3. In short and relevantly, the Tribunal:

    (d)must revoke the existing care determination pursuant to s 54F where a new care percentage determination made under s 49 or s 50 would change the cost percentage for the child; or

    (e)must revoke the existing care determination pursuant to s 54G, where, under a new care percentage determination, one of the parents who was previously assessed to have at least regular care of the child would now be determined to have less than regular care despite the child being made available by the other parent; or

    (f)may revoke the existing care determination pursuant to s 54H, where a new care percentage determination, if it was to be made, would change the care percentage and s 54F and s 54G do not apply.

1. First, I must consider whether s 54G applies because s 54H can only apply if ss 54F and 54G do not apply (s 54H(1)(c)), and s 54F can only apply if s 54G does not apply (s 54F(1)(c)).

2. The phrase “regular care” is defined by s 5(2) of the Assessment Act to mean that the relevant person’s “percentage of care for the child during a care period is at least 14% but less than 35%”.

3. Considering s 54G of the Assessment Act, the Other Party was to have at least regular care of the child during the contested care period but had no care of the child during the contested care period, but another responsible person, the Applicant, did not make the child available. Her notification to the Other Party’s solicitors on 28 August 2018 and to the Respondent on 31 August 2018 and the agreement at the mediation on 4 September 2018 made that clear.

4. I have taken into account the Applicant’s claim that it was the day care centre that did not make the child available to the other party.  I find that she advised the day care centre of the claimed breach and provided supporting documentation.  I am satisfied that the Applicant did not make the child available.

5. Because s 54G(1)(b) requires the child be made available, s 54G does not apply and I must consider whether s 54F applies.

6. Subsection 54F(1) requires that I must revoke a determination of a responsible person's percentage of care for a child made under s 49 or s 50 if s 54F(1)(a), (b), (c) and (d) are met. The care of the child actually taking place did not correspond with the Other Party’s existing percentage care of the child (s 54F(1)(a)). I am satisfied that the responsible person’s cost percentage for the child would change if a determination of another percentage of care were made under s 49 or 50 (s 54F(1)(b)), and s 54G does not apply (s 54F(1)(c)). Subsection 54F(1)(d) requires that s 54F(2) applies in relation to the responsible person.

7. Does s 51 not apply in relation to the Other Party as required by s 54F(2)(a)?

8. The other party had no pattern of care for the child during the contested care period.  Therefore s 49 applies, subject to considering whether s 51 applies to the responsible person (s 49(3)). 

9. Pursuant to s 51(1)(a), (b) and (c), I am satisfied that s 49 requires the responsible person’s percentage of care of the child to be determined during a care period, that a care arrangement applies in relation to the child, and that the actual care of the child that the responsible person has had during the care period does not comply with the extent of care of the child that the person should have had under the care arrangement during the care period.  The care arrangement is that set out in the consent parenting orders made by the Federal Circuit Court on 12 April 2018.

10. The question is whether s 51(1)(d) is satisfied: did the Other Party, who had reduced care of the child, take reasonable action to ensure that the care arrangement was complied with?

11. The parties were bound by the order and subject to consequences of non-compliance with the requirement.  Furthermore, the Other Party had consented to the making of the order.   

12. When approaching the statutory task of considering what was reasonable action, when that action concerns compliance or non-compliance with a court order, the fundamental and important role of the judiciary in our system of government must be borne in mind.  It requires a very careful and cautious assessment of what the action was that is claimed to have been reasonable.  

13. I have considered the non-exhaustive forms of action listed in the Guide at [2.2.4] which include filing an application to a court to have an order made or enforced and attending a hearing at court to seek an order to be made or enforced.  I infer from his evidence, that the Other Party applied to the court at some time, whether before the hearing on 18 October 2018 or at the hearing, to have orders 11 and 12 removed.  I accept that he participated in the mediation on 4 September 2018.  The agreement made on that day referred to the existing court orders.

14. Accepting that the Applicant did not raise all relevant breaches as each became apparent, the orders were in force and the Other Party was obliged to comply with them.  As stated above, he had consented to the orders.  I accept that all three tests he underwent returned a negative result.

15. The first test did not test for Benzodiazepines and the sample was not provided within seven days of the Other Party receiving notice to undertake the hair follicle screen.  Accepting that the Other Party provided a copy of the court order to the laboratory and it failed to test for that substance, the Other Party’s conduct may be considered to be reasonable in respect of the failure to test for Benzodiazepines.  

16. I do not accept the Other Party’s argument that the need for such a test was not important because there was no evidence that there was a risk that he would use such a substance.  It was included in the order.  He had consented to its inclusion.

17. I do not accept that not complying with the time frame of seven days was reasonable.  I am not satisfied that the Other Party has provided a reasonable explanation why it could not be complied with.

18. Both the first and second tests were not carried out by a NATA accredited laboratory.  Assuming that the Other Party’s claim is correct, that there is no NATA accredited test for hair follicle screening, does not overcome the clear terms of the court order.  It requires the laboratory to be NATA accredited, not the particular test.

19. The Other Party’s statement in his email of 17 October 2018 that the link he provided to the NATA website verified that Safe Work Laboratories are accredited to undertake hair follicle testing, seems to contradict his claim that there is no NATA accredited hair follicle test.  If there is such an accredited test, his claim to the contrary is incorrect.  In any event, he eventually underwent a test which satisfied the NATA accreditation order according to the Applicant, however that order is interpreted.

20. I am not satisfied that the Other Party took reasonable action to ensure that the care arrangement was complied with as required by s 51(1)(d) of the Assessment Act. Section 51 does not apply to the Other Party.

21. The Other Party’s existing percentage of care of 14% must be revoked pursuant to s 54F of the Assessment Act.

22. Returning to the application of s 49, the Other Party’s percentage of care during the contested care period of 3 September 2018 to 24 October 2018 was 0%. 

    Decision   

23. The reviewable decision made on 5 December 2019 is set aside and in substitution it is decided that the Other Party’s percentage of care during the period 3 September 2018 to 24 October 2018 was 0%. 

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..................................[sgd]......................................

Associate

Dated: 31 May 2022

Date(s) of hearing:	19 August 2021
Date final submissions received:	25 August 2021
Applicant:	By video
Solicitors for the Respondent:	K Eskerie, Sparke Helmore Lawyers
Other Party:	By video