Groves and Kurland (Child support)

[2020] AATA 1759

Groves and Kurland (Child support) [2020] AATA 1759 (6 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC018695

APPLICANT:  Mr Groves

OTHER PARTIES:  Child Support Registrar

Ms Kurland

TRIBUNAL:Member M Kennedy

DECISION DATE:  6 May 2020

DECISION:

The decision under review is affirmed.

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 – should an interim period apply - special circumstances exist to determine only one percentage of care - decision under review affirmed

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.

REASONS FOR DECISION

1. Mr Groves and Ms Kurland are the parents of [Child 1], in respect of whom a child support assessment is in place.

2. In accordance with court orders [from] July 2017, Mr Groves’s child support liability had been calculated by reference to care percentage determinations reflecting 50% care in respect of each parent.

3. On 31 May 2019, Ms Kurland notified the Department that care no longer corresponded with that care determination, and advised that [Child 1] was in her 100% care from 28 April 2019.  According to Ms Kurland, [Child 1] had chosen not to go into Mr Groves’s care after returning from an overseas trip.

4. The Department was advised by Mr Groves that he had made arrangements for the Family Dispute Resolution Centre to become involved in addressing care arrangements for [Child 1], with a view to the existing court order being complied with.

5. The Department decided to make care determinations in accordance with the scheme for interim care determinations so that, essentially, child support would be calculated as if the Court Orders were being complied with for an interim period.

6. Ms Kurland objected to this decision on 19 July 2019.  Ms Kurland relies on a discretion in the Child Support Registrar not to apply the scheme for interim care determination in special circumstances. Ms Kurland makes allegation in relation to [Child 1’s] safety while in Mr Groves’s care.

7. On objection, the objections officer decided that there was sufficient evidence in the form of an opinion from a psychologist to conclude that [Child 1’s] health was at risk.    On 26 February 2020 the objections officer decided to exercise the discretion so as not to use the scheme for interim care determinations, and allowed the objection so that child support was calculated based on the actual care for [Child 1].

8. Mr Groves applied to the Tribunal for review on 22 March 2020.

CONSIDERATION

The previously existing care percentage determination is revoked.

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked.  The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Act.

2. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.  If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

3. I confirmed with the parties that there is no dispute that the actual care of [Child 1] changed on 28 April 2019 so that the previous care arrangement under the Court orders was not being followed.

4. No issue arises as to the notification of that changed situation to the Department.  The previously existing care determination has been correctly revoked from 27 April 2019.

The application of the scheme for interim care determinations

1. As to the making of the new care percentage determinations, it is necessary to consider the application of complex provisions relating to interim care periods.

2. Section 51 of the Act applies where it is necessary to determine a new care percentage, and where a care arrangement applies in relation to the child.  In this case, it is clear that a ‘care arrangement’ applies in relation to [Child 1] in the form of the court order of [July] 2017.

3. Likewise, it is also clear that after 27 April 2019 the actual care of the [Child 1] in respect of Mr Groves does not comply with the extent of care Mr Groves should have under the care arrangement.

4. The next question posed by the legislation is then whether a person who has reduced care of the child is taking ‘reasonable action’ to ensure that the care arrangement is complied with.

5. In this matter, the Registrar and objections officer accepted that Mr Groves was taking reasonable action to ensure the care arrangement was complied with. This question was not put in issue by Ms Kurland. I accept that Mr Groves has taken legal advice and commenced a process at the Family Relationship Centre. That process concluded [in] September 2019 when a Family Dispute Resolution Practitioner issued a certificate pursuant to section 60I of the Family Law Act 1975. For the purposes of this review, I also agree that Mr Groves was taking reasonable action to ensure the care arrangement was complied with at the time the care changed and thereafter until at least [September] 2019.

6. With those criteria satisfied, section 51 of the Act establishes a scheme for two percentages of care to be determined, one reflecting the court orders and the other reflecting the actual care, and then provides for the different percentages to apply in respect of different periods depending on circumstances and the conduct of the parties to the child support assessment.

7. The legislation however preserves a form of residual discretion (at subsection 51(5) of the Act) not to adopt that scheme, and to make only one percentage of care determination (which in this case would be 100% in respect of Ms Kurland).  The discretion may be exercised if ‘special circumstances exist in relation to the child’.  The Registrar’s policy at item 2.2.4 of the Child Support Guide elaborates on the kind of special circumstances that might result in this discretion being exercised:

   …This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.

   The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed. Examples of unreasonable or inappropriate behaviour of the parent include:

   ·     violence towards the child,

   ·     exposing the child to family violence (within the meaning of section 4AB of the FL Act),

   ·     violence towards the person with increased care,

   ·     directly involving the child in a criminal act,

   ·     exposing the child to alcohol, drugs or substance abuse,

   ·     substantially failing to comply with legal schooling requirements, and/or

   ·     neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.

8. The consideration of this discretion can be seen therefore to open questions of fact for the Tribunal that will be sensitive and contested, particularly where the Tribunal must decide whether to accept an opinion expressed by a professional.  The policy goes on to elaborate as to the need for suitable evidence:

   The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

   Suitable evidence may include (but is not limited to):

   a police report detailing violent behaviour towards a child or the person with increased care,

   an intervention order preventing contact with the child or person with increased care, or

   statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.

9. I have confirmed with both parents that no judicial consideration or adjudication has been given to the dispute between the parents since care changed, and nor have there been any judicial findings reached in relation to allegations made.

10. Ms Kurland relies on a series of opinions expressed by [Psychologist A].  In particular, written correspondence from [Psychologist A] is at T123 (4 July 2019) and T 234 (15 January 2020).  [Psychologist A] has addressed this correspondence to the Child Support Agency and references ‘actual care in special circumstances’.

11. At T123, [Psychologist A] reports that [Child 1] has reported to her that she believes that living with her father was a constant risk to her safety and mental health.  [Psychologist A] states that [Child 1] had reported that she had been struggling with her father’s and stepmother’s abusive behaviour for a number of years, and reported having mental breakdowns and suicidal thinking when she was transitioning back to her father’s care.  [Psychologist A] reports that people external to the family such as teachers were becoming concerned for her mental health.

12. [Psychologist A] ultimately states that it is her psychological opinion that [Child 1] is not physically or psychologically safe in her father’s care.  She mentions that mandatory reporting and Police reporting has been actioned.

13. Aspects of [Psychologist A’s] correspondence take on characteristics of advocacy in relation to what should be the Child Support Agency’s response to the opinions she has expressed, including her opinion as to the status and nature of court orders in the circumstances.

14. At T234, [Psychologist A] maintains her opinion, but also provides commentary on remarks made by a Magistrate to the father in previous court proceedings, inferences to be drawn from correspondence between Mr Groves and the Child Support Agency, including describing Mr Groves’s conduct [in seeking an interim care determination] as ‘evasion’ of child support.

15. Mr Groves’s evidence to the Tribunal is that over time he has faced a series of false and disturbing allegations in an attempt to prevent him having access to the child.  He perceives the events from April 2019 to be a continuation.  Mr Groves explains that he refuses to accept accusations of domestic violence because they are simply not true.  Mr Groves says that he followed the correct process to pursue mediation through Relationships Australia.

16. Mr Groves believes that [Psychologist A] is causing harm to [Child 1].  He considers that [Child 1] seeing [Psychologist A] is a breach of an earlier court order, and contrary to the equal parenting responsibilities confirmed by court order.  He complains that the Child Support Agency has based its decision on the opinion of one person.  Mr Groves is critical that [Psychologist A] has crossed the line into advocacy, Mr Groves explained he is taking further unspecified action against [Psychologist A].

17. I drew further correspondence to Mr Groves’s attention.  At T156 there is correspondence between [Psychologist A] and [Counsellor A], a counsellor at [Child 1’s] school.  I note the correspondence is dated 7 May 2018, nearly a year prior to the change in care arrangements.  In that letter, [Psychologist A] is reporting to the school counsellor because of the school’s referral of [Child 1] to her.  In that letter, [Psychologist A] reports that [Child 1] was struggling with the relationship with her father, identifying verbal abuse.  [Psychologist A] reports that [Child 1] has depression.  I suggested to Mr Groves that the date of that correspondence may be significant because it indicates that [Psychologist A] had formed her opinions outside the context of a child support dispute.

18. I also invited Mr Groves to comment on correspondence to a Doctor (name redacted) dated 9 April 2018 from [Counsellor A], a counsellor at [Child 1’s] school.  The letter identifies long term counselling, mental health symptoms and describes [Child 1] reporting a ‘challenging’ relationship with her father.

19. Mr Groves’s told me that the school had subsequently acknowledged that it did not have all the facts and had made an error in the way they had dealt with [Child 1’s] situation.  Generally, in response to the further documents I invited Mr Groves to make comment on, Mr Groves reiterated that the accusations were false and referred to his perception of a campaign to limit his access to his daughter.

20. Ms Kurland denied the existence of such a campaign, and refuted aspects of Mr Groves’s explanation about the school’s position.

21. My assessment of the evidence is finely balanced.  As mentioned during the hearing, I am concerned to note that aspects of the way [Psychologist A] has expressed her opinion in her correspondence drifts into advocacy, particularly to the extent that [Psychologist A] engages with the particular discretion to be exercised under the child support law in addition to providing her opinion about psychological risks to [Child 1] and the basis for them. The question is whether my observations in that regard should lead me to place limited weight on [Psychologist A’s] opinion.

22. On the other hand, as I pointed out to Mr Groves, other evidence demonstrates that [Psychologist A] had described her opinion and concerns outside the context of a child support dispute nearly a year before the change in care arrangements, and I have also noted that similar concerns have been shared by the school counsellor.

23. I mention also the medical certificate at B2.  In that document a medical practitioner purports to certify that [Child 1] has been living with her mother since 28 April 2019 ‘due to domestic abuse in her father’s home’.  I must assume that the unidentified medical practitioner is merely recounting what they have been told.  I place no additional weight on this vague and unsatisfactory medical evidence.

24. Ultimately, with some hesitation given the gravity of the finding, I have decided to accept the opinion expressed by [Psychologist A] to the extent that [Child 1’s] psychological and mental health was at risk in the circumstances arising out of the pre-existing 50/50 care arrangements.  I do not purport to reach any findings as to the conduct or circumstances that have given rise to this risk.  I consider that for my purposes it is sufficient that I accept that identification of the risk to psychological health is grounded in acceptable medical evidence.  I reach this finding noting the corroboration provided by earlier observations to the same effect, and the observations expressed by the school counsellor.

25. In my view, if an existing care arrangement has adversely affected the mental health of a child, and continuation of that arrangement has the real potential to make the effect on the child’s mental health worse, and as a consequence the care arrangements change, then a special circumstance exists in relation to the child.  I consider that in these special circumstances, the child support liability should reflect the actual care arrangements in place for the child, even if the other parent is taking reasonable action to have the court orders enforced.  In the circumstances of this case, I will accept the opinion expressed by [Psychologist A] that [Child 1’s] psychological health had been affected and would worsen if the previous care arrangements had continued.

26. I would also exercise the discretion at subsection 51(5) of the Act.  It follows that the new care determination is to be made under section 50 of the Act instead of section 51, and that determination is that [Child 1] is 100% in Ms Kurland’s care from 28 April 2019.

DECISION

The decision under review is affirmed.