VDBC and Child Support Registrar (Child support second review)

This matter concerned a second review of a child support assessment, brought by the Applicant against the Child Support Registrar. The dispute centred on the percentage of care provided by each party for their child, particularly during a period between 3 September 2018 and 24 October 2018. The Applicant contended that the Other Party had failed to comply with court orders regarding drug testing, which consequently suspended his care arrangements. Conversely, the Other Party argued that he had taken reasonable steps to comply with the court orders and that the Applicant had wrongfully withheld care. The review was heard by Mrs J C Kelly, Senior Member.

The primary legal issues before the Tribunal were whether the Other Party had taken reasonable action to comply with the court orders concerning drug testing, and whether the Applicant's withholding of care was justified. The Tribunal was required to determine the applicable care percentage for the child during the contested period, considering both the actual care provided and the existence of court orders establishing a care arrangement. This involved interpreting the interplay between the Federal Circuit Court orders of 15 May 2017 (drug testing regime) and 12 April 2018 (care arrangements), and whether the latter superseded the former in the context of child support assessments.

The Tribunal's reasoning focused on section 51(1)(d) of the relevant Act, which allows for a care percentage to be based on a care arrangement even if actual care differs, provided reasonable action was taken to comply with that arrangement. The Tribunal found that the court orders of 12 April 2018 constituted a care arrangement. Despite the Applicant's assertion that the Other Party had failed to comply with the drug testing orders of 15 May 2017, the Tribunal concluded that the Other Party had taken reasonable action to comply with the overall care arrangement established by the 12 April 2018 orders. This included participating in mediation and court proceedings. Consequently, the Tribunal determined that the care percentage should be based on the court-ordered arrangement, not the actual care provided during the contested period.

The Tribunal set aside the previous decision and substituted it with its own. It found that for the period from 3 September 2018 to 24 October 2018, the care percentage for the child should be determined according to the 12 April 2018 court orders, resulting in 86% care for the Applicant and 14% for the Other Party.