Allum and Greigson (Child support)

[2022] AATA 638

Allum and Greigson (Child support) [2022] AATA 638 (21 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/AC022216

2021/AC022256

APPLICANT:  Ms Allum

OTHER PARTIES:  Child Support Registrar

Mr Greigson

TRIBUNAL:Member D Cox

DECISION DATE:  21 February 2022

DECISION:

The decisions under review are affirmed.

This means the appeal is unsuccessful.

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 – date of effect provisions – whether reasonable action taken by parent with reduced care – special circumstances exist – 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

BACKGROUND

1. On 3 July 2020 the Federal Circuit Court made orders that care of [Child 1], born [on] July 2008, and [Child 2], born [on] July 2011, would be on alternate weeks for Mr Greigson, then Ms Allum from 9 October 2020, with particular arrangements for school holidays and special occasions.  This followed a court-ordered period from 13 July 2020 in which Mr Greigson had 100% care of both children.

2. From 25 September 2020 the Child Support Agency (CSA) recorded the care of [Child 1] and [Child 2] as Ms Allum providing 50% care and Mr Greigson providing 50% care, based on the court order.

3. On 30 November 2020 Mr Greigson notified the CSA that there had been changes of care for [Child 1] on 13 October 2020, and [Child 2] on 29 October 2020.  In both cases Mr Greigson had 100% care of the children from those dates.

4. On 10 February 2021 the CSA made interim care determinations for each child:

   ·      The care of [Child 1] as 50% to Mr Greigson and 50% to Ms Allum for the period 13 October 2020 to 1 July 2021; and

   ·      The care of [Child 2] as 50% to Mr Greigson and 50% to Ms Allum for the period 29 October 2020 to 1 July 2021;

Then to reflect Mr Greigson provides 100% care and Ms Allum provides 0% care  for [Child 1] and [Child 2] from 2 July 2021, based on actual care.

1. On 18 March 2021 Mr Greigson lodged with the CSA an objection to the decision of 10 February 2021.     

2. On 30 July 2021 the CSA made a decision to allow the objection and record the:

   ·      Actual care of [Child 1] as 100% with Mr Greigson and 0% with Ms Allum from 13 October 2020; and

   ·      Actual care of [Child 2] as 100% with Mr Greigson and 0% with Ms Allum from 29 October 2020.

3. On 6 and 8 September 2021 Ms Allum made applications to the Tribunal for review of these decisions.

EVIDENCE GIVEN AT THE HEARING

What Ms Allum told the Tribunal

1. Ms Allum gave as reasons for her application for review that the new pattern of care is in contravention of the court order and it had separated [Child 1] and [Child 2] from their siblings, [Child 3] and [Child 4], who remain in Ms Allum’s care.  She believed the court order should be enforced.  The Tribunal explained that the law does not provide for the Child Support Agency (CSA) or the Tribunal to enforce court orders on custody arrangements.

2. Ms Allum told the Tribunal that she objected to having debts for child support and family tax benefit (FTB) raised for the period to 1 July 2021 when the interim care arrangement provided in the care determination of 10 February 2021 was to expire.

3. Ms Allum said she and her other children are unable to see [Child 1] and [Child 2] because Mr Greigson has moved from [City] to [Town].

4. Ms Allum told the Tribunal that she did not dispute that care had changed and that it changed for [Child 1] on 13 October 2020 and [Child 2] on 29 October 2020.

5. Ms Allum said she went to the following agencies seeking enforcement of the court orders: the CSA, the SA Police, Australian Federal Police, Legal Services Commission, and Family Relationships Centre which referred her back to the Legal Services Commission.  However, she was not able to provide the dates on which these events occurred.  She said she is still working with Family Relationships Centre and Legal Services Commission.  

6. It had been suggested to her that she pursue a Family Dispute Resolution (FDR) process but she had not done so because Mr Greigson had moved from [City].

7. Ms Allum told the Tribunal that all the agencies she had spoken to had advised her that if she wished to pursue access to [Child 1] and [Child 2] she needed to obtain legal representation and pursue this through the Family Court.  She said she did not have the resources to do this.

8. Mrs Allum told the Tribunal that she had a child support debt which has been recovered and an outstanding family tax benefit (FTB) debt.  The FTB debt is the subject of a separate appeal.

What Mr Greigson told the Tribunal

1. Mr Greigson told the Tribunal that it was not the case that he had withheld the children, [Child 1] and [Child 2] had refused to return to Ms Allum’s care.

2. Mr Greigson said he had not been contacted about an FDR or by any of the agencies Ms Allum had mentioned.

3. Mr Greigson told the Tribunal that he had objected to the interim care determination because it didn’t take into account that the 50/50 care arrangement for [Child 1] and [Child 2] had only just started and there are two other children, [Child 3] and [Child 4], who were both 100% in Ms Allum’s care.  The Tribunal noted that this was not a relevant consideration for the review.

ISSUES RELATING TO NOTIFICATION AND OBJECTION

Issue 1 – Change of care

1. There is no dispute, see paragraphs 3 and 11, that there were change of care events which occurred on 13 October 2020 for [Child 1] and 29 October 2020 for [Child 2].

2. The Tribunal makes a finding of fact that the actual care of [Child 1] from 13 October 2020 is 100% to Mr Greigson and 0% to Ms Allum.

3. The Tribunal makes a finding of fact that the actual care of [Child 2] from 29 October 2020 is 100% to Mr Greigson and 0% to Ms Allum.

4. The Tribunal finds that the care determinations made on 25 September 2020 are revoked pursuant to subsection 54F(3) of the Child Support (Assessment) Act 1989 (the Assessment Act), for [Child 1] on 12 October 2020, and [Child 2] on 28 October 2020.

Issue 2 – Implications of date of notification of the changes in care

1. Mr Greigson did not notify the CSA of the change of care until 30 November 2020.  This was more than 28 days after the change of care.

2. As a result the date of effect of revocation of the previous care arrangements is determined by paragraph 54F(3)(b) of the Assessment Act.

3. The increases in care of [Child 1] and [Child 2] take effect on the day before the notification; that is, 29 November 2020.

4. The decreases in care take place the day before the change of care; in [Child 1]’s case 11 October 2020 and in [Child 2]’s case 28 October 2020.

Issue 3 – Implications of date of objection

1. The decision under review, the interim care determination, was made on 10 February 2021 but Mr Greigson did not lodge an objection until 18 March 2021, which is more than 28 days later.  In the absence of special circumstances this would require that the date of effect of any change to the interim care determination would be the date of the objection, 18 March 2021.

2. The Tribunal considered whether there were special circumstances that caused that delay.

3. The objections officer had considered this matter and wrote:

   On 22 February 2021, Mr Greigson contacted us (the CSA) to discuss the care decision made on 10 February 2021.  Mr Greigson was informed of the option to object to this decision.

   Subsequently on the same day, Mr Greigson provided us with a letter from his solicitor, detailing the care arrangements of the children since 1 October 2020.

   Whilst we (the CSA) advised Mr Greigson of his option to object, we did not provide him with the correct instruction needed on how to formally do this.

   As such, the letter Mr Greigson provided to us from his solicitor on 22 February 2021 was left unattended, until Mr Greigson formally lodged his objection on 18 March 2021.

   Accordingly, we are satisfied there were special circumstances which prevented Mr Greigson from lodging his objection at an earlier time.

4. Having considered this explanation, the Tribunal finds that special circumstances exist to extend the date of lodgement of the objection to 18 March 2021.

LEGISLATIVE ARRANGEMENTS FOR CHANGES OF CARE

1. The Assessment Act provides that where there has been an event which results in an actual or expected change to the pattern of care for a child the previous care determination must be revoked, pursuant to subsection 54F(3) of the Assessment Act.

2. If there is no pattern of care, a person’s care percentage must be 0%, pursuant to section 49 of the Assessment Act, unless that person is taking action to ensure an enforceable care arrangement is being complied with, pursuant to section 51 of the Assessment Act.

3. If a person has a pattern of care for a child, a care percentage must be determined which corresponds to that person’s actual percentage of care, pursuant to section 50 of the Act.

4. If the determination which is revoked was based either on a court order or a legally binding parenting plan, and action has been taken to enforce the care arrangement by the person whose care decreased, an interim care determination will be provided. The maximum length of the interim care determination where there are court orders, such as in this case, is the later of 52 weeks after the date of the court order or 26 weeks after the date of the change of care, pursuant to section 53A of the Assessment Act.

5. However, special circumstances may require the percentage of care to be based immediately on actual care, pursuant to subsection 51(5) of the Assessment Act. These are circumstances which are significant causes of the change of care, particularly where there is a substantial risk to the physical, emotional or psychological wellbeing of the child if the previous care arrangements continue.

Interim care determination

1. In its original decision the CSA made an interim care determination because Ms Allum had taken reasonable action to recover care of [Child 1] and [Child 2].  These steps are set out in paragraphs 12 to 14.

2. The objections officer said Mr Greigson disputed that Ms Allum had taken reasonable action to enforce the court orders.

3. The Tribunal finds that Ms Allum took reasonable action to enforce the court orders but was unsuccessful because she did not have the financial resources to engage a lawyer.

Special circumstances in relation to the children

1. The Tribunal considered whether there are special circumstances may require the percentage of care to be based immediately on actual care.

2. In this regard the Tribunal relied heavily on the available evidence from independent and expert third parties.

3. The court orders of 3 July 2020 show that there have been significant difficulties in relation to parenting the children.  They were placed in Mr Greigson’s care for a period with provision for family therapy in preparation for week-about care. Those arrangements, including an independent children’s lawyer, were to continue until 30 November 2020, which was also the date on which Mr Greigson advised the CSA of the care changes for [Child 2] and [Child 1].  However, those arrangements were not fully successful.

4. Mr Greigson’s lawyer sent letters to Ms Allum’s lawyer and the independent children’s lawyer on the day of the change of care events.  These alleged serious bullying of [Child 1] by one of her siblings and Ms Allum when in Ms Allum’s home.  [Child 2] was suspended from school for incidents with other children in the lead-up to care handover to Ms Allum, with him refusing to go back to her care for the subsequent care week.

5. Mr Greigson arranged counselling of [Child 1] by [Mr A] of [Counselling services provider].  On 1 April 2021 [Mr A] wrote a letter summarising his findings after seven counselling sessions which had taken place since 30 November 2020.  The letter set out difficulties that had been identified during these counselling sessions in [Child 1]’s relationship with her mother.   In the letter [Mr A] said:

   It is my opinion that [Child 1] has a strong and positive relationship with her father, and that she is currently within a safe and supportive home environment which meets her physical and emotional needs.  

6. Hopefully this opinion is some comfort to Ms Allum.

7. Noting the particular difficulties of both [Child 1] and [Child 2], the Tribunal finds that there are special circumstances that relate to their emotional and psychological wellbeing and which require the percentage of care to be based immediately on actual care.   

DECISION

The decisions under review are affirmed.

This means the appeal is unsuccessful.