Leavitt and Easom (Child support)

[2020] AATA 1032

Leavitt and Easom (Child support) [2020] AATA 1032 (6 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC017965

APPLICANT:  Ms Leavitt

OTHER PARTIES:  Child Support Registrar

Ms Easom

Mr Marlowe

TRIBUNAL:Member H Schuster

DECISION DATE:  6 March 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – Application for administrative assessment – whether the non-parent carer application should have been accepted – extreme family breakdown – application should be accepted – 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. The decision under review concerns the decision of the Department of Human Services (Child Support) (the Registrar) to accept the child support application lodged by Ms Easom on 15 January 2019, for assessment of Ms Leavitt and Mr Marlowe’s liabilities to pay child support in relation to [the Child].

2. [The Child] (born in September 2002) is the daughter of Ms Leavitt and Mr Marlowe who are not members of a couple.

3. Prior to November 2018 [the Child] was in Ms Leavitt’s care and Mr Marlowe was liable to pay child support to Ms Leavitt. Ms Leavitt lives in Western Australia (WA) while Mr Marlowe resides in Tasmania.

4. On 3 December 2018 Mr Marlowe notified the Registrar that [the Child] had arrived in Tasmania and was living with her maternal aunt and grandmother. Further information was sought. On 2 January 2019 the Registrar determined that neither parent had care of [the Child] with effect from 12 November 2018.

5. On 15 January 2019 Ms Easom lodged an application for an administrative assessment of child support for [the Child] on the basis that [the Child] came into her care from 11 November 2018.

6. Both Ms Leavitt and Mr Marlowe were contacted in relation to Ms Easom’s application. Ms Leavitt advised that she wished for [the Child] to return home to WA, and that she did not agree with Ms Easom caring for [the Child] and she was not financially supporting her and that there was no reason for [the Child] not to return to WA.

7. On 1 April 2019 the Registrar accepted Ms Easom’s child support application and that both Ms Leavitt and Mr Marlowe were assessed as being liable to pay child support for [the Child] to Ms Easom from 15 January 2019. Ms Leavitt and Mr Marlowe were advised of the decision in writing.

8. On 13 June 2019 Ms Leavitt objected to the Registrar’s decision to accept Ms Easom’s application for child support.

9. On 19 November 2019 the objections officer disallowed Ms Leavitt’s objection. On 3 December 2019 Ms Leavitt applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision. A hearing by telephone was conducted on 24 February 2020 at which Mr Marlowe and Ms Leavitt spoke to the Tribunal. The Tribunal was unable to reach Ms Easom at the appointed telephone number and proceeded to hear the matter without her.

10. The Tribunal considered evidence contained in documents prepared by the Registrar comprising 201 pages.

ISSUES

1. A person’s entitlement to child support and the parents’ liability to pay child support are determined under the Child Support (Assessment) Act 1989 (the Act).  A non-parent carer may claim child support in relation to the child but only in limited situations.

2. In this case the issue is whether Ms Easom was an ‘eligible carer’ within the meaning of the Act on the basis that it was unreasonable for [the Child] to live with either of her parents.

CONSIDERATION

1. [The Child], being a child under 18 who is residing in Australia and is not a member of a couple, is an eligible child for the purpose of a child support assessment, pursuant to section 24 of the Act.

2. Ms Easom, as a non-parent carer, could seek a child support assessment only if she met the criteria set out in section 25A of the Act, which included that requirement that she be an ‘eligible carer’, defined in section 7B of the Act as follows:

   Meaning of eligible carer

   (1)  In this Act, eligible carer, in relation to a child, means a person who has at least shared care of the child.

   (2)  Despite subsection (1), if:

   (a)  a person cares for a child; and

   (b)  the person is neither a parent nor a legal guardian of the child; and

   (c)  a parent or legal guardian of the child has indicated that he or she does not consent to the person caring for the child;

   then the person is not an eligible carer in relation to the child unless it would be unreasonable in the circumstances for a parent or legal guardian of the child to care for the child.

   (3)  For the purposes of subsection (2), it is unreasonable for a parent or legal guardian to care for a child if:

   (a)  the Registrar is satisfied that there has been extreme family breakdown; or

   (b)  the Registrar is satisfied that there is a serious risk to the child's physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned.

3. Ms Easom was not a parent or legal guardian of [the Child].

4. The Tribunal notes that a child does not necessarily need to live with a parent to be regarded as being in the parent’s care. For example, a child may reside elsewhere due to her education and be regarded as being in the parent’s care if they continue to exercise parental responsibility including providing financially for the child.

5. In this case, Ms Leavitt stated that she had not provided any financial support to [the Child] or Ms Easom since January 2019 because she was not willing to continue to support her while it was reasonable for [the Child] to return to WA. From her evidence and the documents provided, it appears that the relationship between Ms Leavitt and her mother and sister was somewhat strained even prior to [the Child] leaving the family home. The Tribunal accepts that Ms Leavitt did not give consent for [the Child] to live with Ms Easom in November 2018.

6. The Tribunal is satisfied, therefore, that [the Child] was not in her mother’s care on 15 January 2019 when Ms Easom lodged her application for child support.

7. Mr Marlowe and Ms Leavitt both told the Tribunal that [the Child] is no longer living with Ms Easom. Ms Leavitt notified the Registrar in November 2019 that a terminating event had occurred.

8. Ms Leavitt suggested in her evidence that the care provided by her sister was not provided exclusively by her and that [the Child] spent more time with her grandmother. She concluded this from ongoing telephone contact she has had with the child. Ms Leavitt suggested that there had been a breakdown of the relationship between [the Child] and Ms Easom and that the child is now residing with the maternal grandmother.

9. The Tribunal’s review is of course confined to the question of whether Ms Easom was an eligible carer in relation to [the Child] in January 2019 and a subsequent change of care some period after that time is not necessarily relevant to the consideration in this case.

10. The Tribunal considered the text messages and evidence provided by Ms Leavitt and the information provided by Ms Easom. There is no evidence that [the Child] either lived independently and supported herself nor that she was in any other adult’s care. On the whole, the Tribunal is satisfied that at the relevant time, in January 2019, [the Child] was staying with her maternal aunt and was primarily in her care. There is evidence that her aunt assisted her with enrolment in a local school and obtaining medical treatment. The Tribunal finds that for the purpose of the Act [the Child] was in Ms Easom’s care.

11. The objections officer found that it was unreasonable for [the Child] to live with either of her parents due to extreme family breakdown. Ms Leavitt disputed that such a breakdown had occurred.

12. The term “extreme family breakdown” is not defined in the Act. The Child Support Guide provides policy guidance to decision makers about how to establish whether family breakdown has occurred:

    For the purposes of independence, family breakdown may be due to various causes. Family breakdown must be considered in the context of the whole family situation, and must establish circumstances where it is unreasonable to expect the person to remain in that family environment.

    The existence of ongoing conflict alone is insufficient grounds to grant independence under this criteria. Factors which may indicate extreme family breakdown include:

    • one or more members of the family are experiencing documented behavioural and/or health problems which can be attributed to the breakdown of the family relationship,

    • the young person's substance abuse and/or anti-social behaviour is so extreme that specialised intervention has been unsuccessful and it is beyond reasonable expectations for the parent/s to have the capacity to resolve the situation,

    • evidence that the emotional or physical well-being of the young person or another family member would be jeopardised including being due to violence, sexual abuse, or other similar circumstances if the young person were to live at home,

    • unsuccessful attempts have been made to resolve the issue/s, for example through counselling or mediation.

    Ongoing emotional and personal support from a parent can influence the assessment of whether, or not, there is extreme family breakdown. Such support may indicate that the breakdown is not extreme.

13. The Guide also states at 2.1.1 that:

    The Registrar will be satisfied that there has been an extreme family breakdown if:

    • the child has never lived with the parent, or

    • there has been a substantial period since the parent has provided care for the child, or

    • other circumstances indicate extreme family breakdown.

    However, the Registrar is unlikely to be satisfied that there has been an extreme family breakdown if the parent has had frequent and regular contact with the child over a substantial part of the period when another person provided care for the child.

14. There is no evidence of family violence, substance abuse or sexual abuse in this case. [The Child] is not a child cared for under a child welfare law. Ms Easom’s initial application for a child support assessment was made on the basis that there was “major family breakdown w[h]ere [the Child] is unsafe to stay in the current living arrangements. Gracie is diagnosed with depression and anxiety inducted by [Ms Leavitt]’s parenting and life decisions.” Ms Leavitt has denied the truth of that characterisation.

15. The basic facts surrounding the circumstances in which [the Child] came to be in Ms Easom’s care are apparently undisputed. [The Child] had been living with Ms Leavitt. On 11 November 2018, without her mother’s knowledge or consent, [the Child], then aged 16, took a flight to Tasmania where she commenced living with Ms Easom and her family. It appears [the Child] had been assisted by her maternal aunt or grandmother with making the travel arrangements. Neither of these family members nor [the Child] informed Ms Leavitt of the child’s whereabouts until after her arrival in Tasmania.  

16. Ms Leavitt told the Tribunal that she spent considerable time on the day of [the Child]’s departure trying to locate her. [The Child] had taken her phone, laptop and clothes. Ms Leavitt called her mother and sister but said they appeared evasive when she asked them about [the Child]’s whereabouts. She notified the police that [the Child] was missing. Eventually [the Child] herself contacted her mother that day and told her she was in Tasmania.

17. It is clear that Ms Leavitt did not agree to [the Child] leaving her care. Ms Leavitt told the Tribunal she contacted police to report [the Child] missing and a welfare check was arranged to be conducted by Tasmanian police. It appears, though there is no evidence of this, that the welfare check was satisfactory. Ms Leavitt said the police told her there was nothing further the police would or could do to force [the Child]’s return to WA.

18. An email exchange between Ms Easom and Ms Leavitt prior to 20 December 2018 suggests that Ms Leavitt regarded her daughter’s departure as a temporary ‘time out’ and had purchased a ticket to allow [the Child] to return to WA on 20 December 2018. In essence, Ms Leavitt gave [the Child] and her relatives an ultimatum that if [the Child] did not return in December 2018 she would receive no ongoing support and would be ‘on her own’.

19. On 4 December 2018 Ms Leavitt confirmed to the Registrar that [the Child] had run away but that she was expected to return home on 20 December 2018. On 5 December 2018 Ms Easom, Ms Leavitt’s sister, notified the Registrar that [the Child] intended to reside with her until at least the commencement of the 2019 school year. By the end of December 2018 Ms Leavitt had confirmed to the Registrar that [the Child] had refused to return to WA, was living with Ms Easom and was not being financially supported by her.

20. Ms Leavitt was clearly distressed by her own family members assisting [the Child] without her consent. She said she asked police for advice. Ms Leavitt told the Registrar that Tasmanian police undertook a welfare check and determined [the Child] was not in danger. Police officers told her that as [the Child] did not wish to return there was nothing they could do. Although Ms Leavitt at the hearing compared her situation to the abduction of a child, the Tribunal notes that there is no evidence that [the Child] was forcibly taken or held by any person. The Tribunal is satisfied on the evidence that [the Child] left home without telling her mother but did so after some planning.

21. It has been many years since [the Child] lived with Mr Marlowe and although he suggested she could live with him, there is no suggestion that any particular arrangements were made for this to occur. The Tribunal asked his view about [the Child] coming to live in Tasmania. He stated that he did not disagree with the manner in which [the Child] left her mother’s home but ultimately did not appear to be concerned or disagree with [the Child]’s decision to live with her maternal relatives. In the circumstances, the Tribunal agreed with Centrelink’s assessment that it was not reasonable for [the Child] to live with her father given that there was no substantive history of living together.

22. Ms Leavitt suggested that [the Child] did not leave due to an extreme family breakdown. She said [the Child]’s stated reasons for the departure from her home in WA were due to a move from the suburbs of Perth to the more remote [Outer suburb] in September 2018. [The Child] had told her that if they were to move back to the area in Perth where they had previously lived she would return home but Ms Leavitt said she could not afford the move. Ms Leavitt categorised [the Child]’s refusal to return home as being the actions of a teenager refusing to return home because they “simply didn’t get their way”.

23. She stated that she continued to communicate with [the Child] and when she visited Tasmania she had met with her at the airport or for lunch.

24. Ms Easom in written statements to the Registrar gave details of a range of conflicts between mother and daughter and suggested that the relationship was marred by a history of instability (such as moving home and schools a number of times) and painted a picture of a longer history of family conflict arising out of decisions made by Ms Leavitt which did not take into account the child’s emotional need for stability and constancy. Ms Leavitt denied these allegations, though did not dispute key factual details, such as frequent moves. Ultimately, as Ms Easom chose not to participate in the hearing, little weight can be placed on her statements.

25. [The Child] provided a personal statement, lodged by Ms Easom with the Registrar in July 2019. The Tribunal is precluded from accepting oral evidence of a child pursuant to section 98A of the Child Support (Registration and Collection) Act 1988. In general, because the Tribunal is unable to speak to [the Child], any written statements by her would be treated very cautiously. In this case the Tribunal decided that it was appropriate to give some weight to the written statement, in part because the statement is written by an older teenager and is focused on her own state of mind and mental health. In her statement [the Child] has emphasised the connection to extended family and the care provided by her aunt and grandmother as providing a safe and secure environment. She states without the support of her family in Tasmania she would “probably be couch surfing”. The letter is more suggestive of a reasonably mature young woman in search of a secure and stable home environment than a defiant teenager. It also suggests that the issues prompting [the Child]’s departure from Perth went beyond a simple disagreement about the location of the family home.

26. Ultimately, the most persuasive evidence about whether, in January 2019, it was reasonable for [the Child] to live with her mother comes from the report of [Ms A], a clinical psychologist who treated [the Child] from December 2018.  [Ms A] states that:

    [The Child] has requested that I provide a letter to support her claim that she is unable to live at home with her mother. While I have not met [the Child]’s mother, it is my understanding from [the Child]’s self-report that she has often struggled to provide consistent care for [the Child], to the extent of posing risk to [the Child]’s mental health at times. I have observed a significant improvement in [the Child]’s mental health when not in contact with her mother and suggest the home environment has contributed significantly to poor mental health in the past.

1. Ms Leavitt objected to this report on the basis that [Ms A] had never seen [the Child] in her home environment in WA, had never spoken to Ms Leavitt and had no basis on which to form her conclusion that [the Child]’s home life contributed to poor mental health.

2. The Tribunal disagrees with Ms Leavitt’s objection. A report from a counsellor or psychologist who has only seen [the Child] once or twice and has been consulted purely for the purpose of obtaining the report should be treated with some scepticism. [Ms A]’s report was prepared, however, after the child had attended eight sessions in the space of about three months, commencing shortly after [the Child] arrived in Tasmania. The Tribunal accepts that as a qualified professional, [Ms A] was in a position to assess the information provided by [the Child] in sessions both to diagnose and treat any mental health condition as well as forming a professional view about the possible causes of the condition.

3. The Tribunal finds [Ms A]’s conclusion that [the Child]’s home environment in WA was significantly affecting her mental health to be highly persuasive.

4. The Tribunal accepts Ms Leavitt’s evidence that she continues what she described as a good relationship with [the Child] and that they continue to maintain communication and express affection for each other. The fact that the family breakdown has not resulted in ongoing dramatic conflict is a credit to [the Child] and her parents, who appear to be willing to maintain open lines of communication.  Rather than undermining the argument, this development appears to emphasise the point that [the Child]’s reasons for leaving her mother’s care were not simply the action of a wayward and defiant teenager but were rooted in a deeper family breakdown causing a level of mental distress to the child which was ameliorated by the change of environment.

5. Taking all the evidence together, the Tribunal is satisfied that in the circumstances, it was not reasonable for [the Child] to return to Ms Leavitt’s care in January 2019 and that the reason for her being cared for by Ms Easom was due to an extreme family breakdown.

6. The Tribunal is satisfied that Ms Easom was an eligible carer in relation to [the Child] at the time the child support application was lodged in January 2019 and that the Registrar’s decision to accept the application was correct.

DECISION

The decision under review is affirmed.