Bircumshaw and Smeaton (Child support)

[2021] AATA 3361

Bircumshaw and Smeaton (Child support) [2021] AATA 3361 (5 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021668

APPLICANT:  Ms Bircumshaw

OTHER PARTIES:  Child Support Registrar

Mr Smeaton

TRIBUNAL:Member A Byers

DECISION DATE:  05 August 2021

DECISION:

The Tribunal sets aside the decision under review and substitutes the decision that there was no change of care.  The consequence is that the care percentage decisions in place as at 1 February 2020, namely that Ms Bircumshaw had 100% and Mr Smeaton had 0% of [the child]’s care, remain in place.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to pattern of care - decision under review set aside and substituted

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. Mr Smeaton and Ms Bircumshaw are the parents of [the child] (born August 2008) and [Child 2].  This matter only concerns [the child]’s care following a Federal Circuit Court order of 5 February 2020.

2. The court order (in conjunction with a prior amended order of 15 November 2019) provided that [the child] was to live with each parent on a week about basis during school terms and on an equal share basis during school holidays.  It is common ground that [the child] has not resided with Mr Smeaton since 1 February 2020 and accordingly that the court order was not followed from its inception.

3. Prior to the court order, the care arrangement in place according to the Child Support Agency (CSA) was that Ms Bircumshaw had 57% and Mr Smeaton 43% of [the child]’s care from 19 August 2013 with Ms Bircumshaw then having 100% care from 1 February 2020.   

4. On 25 February 2020 Ms Bircumshaw is recorded as informing the CSA that [the child] had refused to stay in Mr Smeaton’s overnight care from 1 February 2020.  As noted, Mr Smeaton agrees he has not had overnight care of [the child] since this time.  During contact with the CSA on 14 May 2020 Mr Smeaton is recorded as indicating he was attempting to ensure compliance with the court order through emailing Ms Bircumshaw, speaking to his solicitor about returning to court and arranging for counselling for [the child] to address her concerns.

5. On 15 May 2020 the CSA made an interim care decision whereby each party was taken to have 50% of [the child]’s care pursuant to the court order for a period of 52 weeks from 10 February 2020.  As far as I can determine, the start date chosen was the date the court published the order (rather than the date of the order).

6. According to CSA records, Ms Bircumshaw lodged a written objection to the interim care decision on 21 December 2020.  On 7 May 2021 an objections officer disallowed the objection.

7. Ms Bircumshaw sought review by the Tribunal on 3 June 2021 and the matter was heard on 5 August 2021.  The parties appeared by conference telephone and both provided sworn evidence. 

8. Prior to the hearing the CSA provided the ‘Section 37(1) Statement and Documents’ comprising folios 1 to 487 (marked Exhibit 1).  Ms Bircumshaw also supplied documentation totalling 28 pages which is admitted as Exhibit A. 

CONSIDERATION

1. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[1]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care.  Before determinations under section 49 or 50 can be made, the care percentage determinations in place must be revoked.  However, a revocation under section 54F can occur only if the CSA was to determine (under section 49 or 50) a different percentage of care for a specified care period and the person’s cost percentage would change as a result.

   [1]All further legislative references are to this Act unless otherwise stated.

10.  Section 51 applies where a person with reduced (actual) care has taken reasonable action to ensure compliance with a care arrangement (e.g., a court order).  This provision requires a decision-maker to make two care percentage determinations.  The first, under subsection 51(3), is the care percentage that the person should have had under the court order and the second, under subsection (4), is the actual care percentage.  

11.  The effect of section 54C (for present purposes) is that, if new care percentage determinations are made under sections 49 or 50 as to the actual care taking place, for child support purposes the care arrangement specified under a breached court order stays in place during an interim period and the actual care occurring applies thereafter.

12.  An interim period relating to a court order is defined in section 53A.  As far as is relevant, subsection 53A(1) provides:

53A  Meaning of interim period

(1)  An interim period for a determination under section 49 or 50 of a responsible person’s percentage of care for a child is (subject to subsection (4)) the period:

(a)  beginning on:

(i)  the responsible person’s change of care day, unless subsection (2) applies; … and

(b)  ending:

(i)  as set out in the applicable item of the following table, unless subparagraph (ii), (iii) or (iv) applies; or

(ii)  if the person referred to in paragraph 51(1)(d) who has reduced care of the child ceases to take reasonable action to ensure that the care arrangement is complied with—on the day the person so ceases; or

(iii)  if a care arrangement in relation to the child ceases to apply on a day—on that day; or

(iv)  if a care arrangement in relation to the child begins to apply on a day—on the day before that day.

13.  Under item 1 in the table in subsection 53A(1), the maximum interim period is 52 weeks starting from the day a court order first takes effect provided there are no special circumstances in relation to the child.  Thus, in the present matter the interim period (should it apply) commences on the date of the court order (5 February 2020) and continues for a maximum period of 52 weeks unless there are special circumstances relating to [the child], or any of the circumstances in subparagraphs 53A(b)(ii) to (iv) apply. 

14.  Accordingly, an interim period can be shortened if there are special circumstances concerning the child and will stop if (amongst other things) the parent with reduced care ceases taking reasonable action to ensure compliance under section 51.

15.  What amounts to special circumstances and reasonable action is not defined in the Act.  However, policy guidance is found at 2.2.4 of the Child Support Guide (the Guide) and I accept this policy accurately reflects the matters to be considered.

16.  According to the Guide, special circumstances are those which caused the change in care and which would involve a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued.  Examples provided include violence towards the child, exposing the child to family violence, directly involving the child in a criminal act, exposing the child to substance abuse and neglecting the child’s basic needs.

17.  Although Ms Bircumshaw apparently had some misgivings from November 2020 about [the child]’s care, there is no suggestion that special circumstances of the kind outlined above are relevant and I find accordingly. 

18.  As to what amounts to taking reasonable action to ensure compliance with a court order, the Guide provides:

The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. ... Reasonable action could include:

·    negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement,

·    making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to,

·    seeking or obtaining legal advice regarding the making of a court order,

·    filing an application to a court to have an order made or enforced,

·    attending a hearing at court to seek an order to be made or enforced, or

·    notifying the police that the child has been taken without consent.

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child.

19.  Importantly, where the parents are the parties to a court order, the action must be directed to ensuring that the other parent complies with the order.  Thus, in addition to genuine attempts to negotiate with the other parent, the Guide recognises relevant actions would typically involve recognised bodies, legal representatives or authorities able to bring about, or institute formal proceedings for, compliance by the other parent with a court order.  If a parent engages in action with a person, institution or authority that has no role or involvement in this regard, the action (whilst perhaps reasonable per se) is not reasonable for the purposes of sections 51 (and 53A). 

Was there a departure from the court ordered care?

20.  As indicated, it is not in dispute that a change of care occurred on 1 February 2020 whereby Ms Bircumshaw had 100% and Mr Smeaton 0% of [the child]’s care.  This care arrangement continued after the court order took effect (on 5 February 2020) and was in breach of that order.

21.  Accordingly, the care from 5 February 2020 for child support purposes is the actual care in place unless an interim period applies.  If an interim period applies, the equal shared care arrangement under the order applies for a maximum of 52 weeks from 5 February 2020. Whether an interim period applies depends on whether Mr Smeaton was taking reasonable action, as described above, to ensure Ms Bircumshaw’s compliance with the court order.

Did Mr Smeaton take reasonable action to ensure compliance with the court order of 5 February 2020?

22.  The present matter is unusual because it ostensibly involves a child of 11 years (at the relevant time) who quite suddenly elected not to live with one parent for reasons that appear best known to herself.  Understandably, the parties have different views about the reasons for [the child]’s choice. 

23.  There is a police report relating to an attempted handover to Mr Smeaton on 1 February 2020.  It reads:

The PR [Ms Bircumshaw] and PN {Mr Smeaton} have a family law court order in place in relation to the custody of [their child].

Each exchange has been done at the location above over the past few months.  The child, during school holidays, has been in the care of her father for three weeks until Thursday

30/1/2020.

The child wrote a letter on that Thursday to her father saying she did not want to stay with him anymore.

Around 6.30 pm 1/2/2020 the PR (mother) and the child attended the location as always to do the custody exchange. The PR had been talking to the child telling her that she had to come to the location and drop her off because there is custody orders in place from a magistrate and she would be in trouble if it was not done.

The PR, PN and child were all at the location, however the child refused to get out of the PR’s vehicle and cried saying she didn’t want to stay with her father. The PR and PN spoke about the exchange. The PR contacted police because she didn’t know what to do and though there might be issues as the PN’s current wife was recording the incident on her mobile phone. The PN ended up leaving the location leaving the child in the care of the PR.

Police attended the location 7.25pm 1/2/2020. The PR stated that she didn’t know what to do as her child refused to get out of the vehicle. The child was spoken to and stated that her father had not assaulted [her] in anyway. She stated she didn’t want to stay with her father because he made her do chores, was strict and said that she had to call his current wife, mum.

Police informed the PR that she should make notes of the incident as the matter would probably end up back at the family law court.

Incident is not a police matter, there were no assaults, threats and argument. Record made for further reference.

24.  Ms Bircumshaw has not seen a copy of the letter authored by [the child] referred to in the police report.  At hearing Mr Smeaton described [the child]’s reasons in the letter, which included things such as him lying to her about [activity] classes, as “nonsense”.   Mr Smeaton also denies that [the child] was ever obliged to call his present partner “mum”.

25.  There is a further police report, again initiated by Ms Bircumshaw, relating to a subsequent attempted handover on 17 February 2020.  The report reads in part:

The child stated to her father via a message on the 16/2/2020 that she did not want to stay at his place. The child spoke to the principal of the school and said she would refuse to go with her father if he came to the school. The principal contacted the child’s parents. The mother/witness attended the location. The father was never in attendance as he stated he thought she was catching the school bus home like his other daughter in year 9.

The principal tried to resolve the issue but was unable to so police were contacted.

26.  The parties’ evidence is consistent with the police reports.  The reports evidence that Ms Bircumshaw attempted to handover [the child] into Mr Smeaton’s care in accordance with the court order but was unable to do so.  Where there is no threat to the child, the police will typically not intervene.

27.  The parties have made attempts to resolve [the child]’s reluctance to see Mr Smeaton, firstly through school counselling and subsequently through sessions with [Relationship services provider].  It appears these sessions, which continued until November 2020, have been unsuccessful.

28.  Although each party has suggested they initiated the counselling, I do not think anything hinges on this.  The reason is that the counselling aimed to mend the rift between [the child] and Mr Smeaton to facilitate his care under the order.  The counselling was not aimed at ensuring Ms Bircumshaw complied with the court order.  It is therefore not reasonable action that meets the requirements of section 51.

29.  On 3 February 2020 Ms Bircumshaw’s solicitors, [Law firm 1], emailed [Law firm 2] (acting for Mr Smeaton) referring to the handover attempt on 1 February 2020.  Ms Bircumshaw’s solicitors suggested [the child] be interviewed by [Ms A] (who prepared a family report for the court) and that the issue also be brought to the Judge’s attention prior to Her Honour handing down her decision.

30.  Mr Smeaton said there was no time in which to take the suggested action.  Her Honour apparently “had little patience” with the case and she dismissed attempts by Ms Bircumshaw’s solicitors to raise the matter.  Mr Smeaton’s solicitor recommended taking no legal action at the time for [the child]’s sake and in the belief she would “get over” her reluctance.

31.  In the wash Mr Smeaton did not initiate any legal action, such as the lodgement of a contravention (or contempt) application, to enforce Ms Bircumshaw’s compliance with the court order.  Nor as I understand things did [Law firm 2] contact Ms Bircumshaw’s solicitors in an attempt to resolve the matter.  The obvious reason it seems is that the problem was not a refusal by Ms Bircumshaw to comply with the court order but a refusal by [the child] to stay in Mr Smeaton’s overnight care.

32.  In a statement to the CSA of 18 January 2021, Mr Smeaton indicated he sent numerous emails to Ms Bircumshaw regarding her non-compliance with the court order.  Mr Smeaton tabled emails dated 1 March 2020, 18 May 2020, 24 May 2020, 15 June 2020 and 26 August 2020.  The purport of the emails was that Ms Bircumshaw was breaching the court order by preventing [the child] from being in his care under the order.

33.  Whilst Mr Smeaton was doubtless concerned as a father by [the child]’s reluctance to stay in his overnight care, it must have occurred to him that emailing Ms Bircumshaw with requests or demands that she comply with the court order were pointless.  As noted, Ms Bircumshaw attempted on the occasions noted in the police reports to hand [the child] over.  That is, Ms Bircumshaw was attempting to comply with the court order and was not the source of the breach.  The issue was [the child]’s reluctance, which the parties both recognised and were attempting to resolve through counselling.

34.  As the Guide indicates, contact with the other parent should involve negotiations in a genuine attempt to ensure compliance with a court order.  My view is that, in the present circumstances, Mr Smeaton’s emails to Ms Bircumshaw cannot be construed as negotiations of this sort, as genuine attempts to ensure compliance by the other parent presuppose they have instigated the non-compliance and can reinstate compliance. 

35.  Ultimately, therefore, I do not consider Mr Smeaton took any action to enforce compliance with the court order that satisfies the requirements of section 51.  I am satisfied accordingly that Mr Smeaton did not take reasonable action to enforce the court order of 5 February 2020 and therefore that section 51 does not apply.  It follows there is no interim period in this case. 

Date of effect for child support purposes

36.  As noted, the CSA made care percentage decisions that, with effect from 1 February 2020, Ms Bircumshaw had 100% and Mr Smeaton 0% of [the child]’s care.  As section 51 does not apply in relation to the court order of 5 February 2020 and Ms Bircumshaw continued to have 100% care following the court order, it follows that, for child support purposes, there was no change of care relating to the court order. 

37.  As noted, Ms Bircumshaw lodged an objection on 21 December 2020 to the CSA’s care decision of 14 May 2020.  The CSA served Ms Bircumshaw notice of the decision by notice dated 15 May 2020.  Accordingly, Ms Bircumshaw has objected outside 28 days of being served notice of the decision.

38.  In conducting a merits review the Tribunal stands in the original decision-maker’s shoes by standing in the objections officer’s shoes – SDSS v Sevel and O’Connell [1992] FCA 559. As the Tribunal stands in the shoes of both the original decision-maker and the objections officer, it therefore must address the same questions/issues that both were required to address under the relevant statute(s) – Shi v Migration Agents Registration Authority [2008] HCA 31.

39. Subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 provides that, if a person lodges an objection outside 28 days of being served notice of a care percentage decision, the date of effect of a review decision changing that decision is the day the person lodged the objection.  Under subsection 87AA(2), the time in which to lodge an objection can be extended at the objections officer’s discretion if there are special circumstances that prevented the person from lodging the objection within 28 days.

40.  Consistent with her objection submissions, Ms Bircumshaw indicated she did not initially lodge an objection because the CSA informed her that, if a court order was not followed, the child support law mandated that the care arrangement in the order would be applied for the first 12 months regardless of the actual care arrangements occurring.  Ms Bircumshaw said she was also not informed of her review rights when she contacted the CSA.

41.  Although a lack of awareness itself will not amount to special circumstances, I think a lack of awareness that results from a wholly inadequate explanation of the basis of a decision can amount to special circumstances.  Further, if a person is misled by the explanation into believing that the result is the inevitable effect of a statutory provision and nothing to do with a decision-maker’s findings and this causes them not to seek a review (in the belief that a review cannot address the matter), I consider the explanation has prevented them from doing so.  

42.  I note the CSA spoke to Ms Bircumshaw on 14 May 2020 about matters material to an interim care decision.  It appears the officer informed Ms Bircumshaw of their conclusion that an interim care decision would be made essentially if there was no risk to [the child] in Mr Smeaton’s care.  There is no mention of the fact that the decision crucially depended on a finding that Mr Smeaton was taking reasonable action to ensure Ms Bircumshaw complied with the court order.  Further, although Ms Bircumshaw indicated her concern with the decision, her right of review was not discussed.

43.  The CSA’s decision notice of 15 May 2020 also contains no explanation of the basis for the decision, although the notice did inform Ms Bircumshaw of her review rights.

44.  Ms Bircumshaw is next recorded as contacting the CSA on 30 June 2020, which would clearly be more than 28 days after being served notice.  Ms Bircumshaw is recorded as expressing disagreement with the legislation.  Rather than being advised to exercise her right of review, the officer records advising Ms Bircumshaw that she can provide feedback to the Department of Social Security (DSS).

45.  Ms Bircumshaw is again recorded as complaining to the CSA about the unfairness of the legislation on 28 September 2020.  On this occasion she was again not informed of her review rights but instead again invited to provide feedback to DSS.

46.  Consistent with the cited file notes, Ms Bircumshaw indicated she did not realise the CSA had proceeded on the assumption that Mr Smeaton was taking reasonable action to ensure compliance until [Child 2] suddenly decided in October 2020 to reside with him.  Although the court order of 5 February 2020 also covered [Child 2], the CSA subsequently decided Mr Smeaton had 100% care.  Ms Bircumshaw was informed this was on the basis that she was not taking reasonable action to ensure Mr Smeaton complied with the order.

47.  I accept Ms Bircumshaw would have lodged an objection within 28 days of being served notice had she been aware of the basis for the CSA’s interim care decision.  I consider the explanation she received on 14 May 2020 was wholly inadequate and, due to the omission of crucial information, caused Ms Bircumshaw not to lodge an objection within 28 days.  I find that there are special circumstances in Ms Bircumshaw’s case which prevented her from lodging an objection within 28 days.

48.  I am also satisfied the discretion in subsection 87AA(2) should be exercised.  In this regard, Ms Bircumshaw plainly attempted to pursue the matter after the 28-day period expired and I am satisfied she sought a review as soon as was practicable after discovering the basis for the CSA’s interim care decision.  I also consider Mr Smeaton will not be unfairly prejudiced by an exercise of the discretion in the sense that he has not had overnight care in the relevant period and therefore has not borne any of the costs typically associated with overnight care.    

49.  The period for lodging a review in Ms Bircumshaw’s case is therefore extended to 21 December 2020 from which it follows that full effect can be given to my decision. 

DECISION

The Tribunal sets aside the decision under review and substitutes the decision that there was no change of care.  The consequence is that the care percentage decisions in place as at 1 February 2020, namely that Ms Bircumshaw had 100% and Mr Smeaton had 0% of [the child]’s care, remain in place.