Marshall and Marshall (Child support)

[2023] AATA 842

Marshall and Marshall (Child support) [2023] AATA 842 (3 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC024680

APPLICANT:  Dr Marshall

OTHER PARTIES:  Child Support Registrar

Mr Marshall

Ms Acheson

TRIBUNAL:Member P Jensen

DECISION DATE:  3 March 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether child support case was correctly registered – 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

1. Dr Marshall and Ms Acheson are the parents of [Child 1] and [Child 2] (“the children”). Mr and Mrs Marshall are the parents of Dr Marshall. On 17 November 2020 the Family Court made orders whereby, broadly speaking, Dr Marshall was to provide care for the children during school weeks and Ms Acheson was to provide care during weekends while at the home and under the supervision of Mr and Mrs Marshall. Notwithstanding those orders, Mr and Mrs Marshall provided full‑time care from 29 March 2021.

2. On 20 April 2022 the Federal Circuit and Family Court made orders whereby, pending further orders, Mr and Mrs Marshall were granted sole parental responsibility for the children and they were to live with them.

3. On 4 May 2022, Mr Marshall applied for administrative assessments of child support in respect of his care of the children. The Child Support Agency (“the CSA”) decided to accept those applications. To put the matter less formally, the CSA decided to register a child support case.

4. Dr Marshall objected to the CSA’s decision. An objections officer disallowed the objection. Dr Marshall applied to the Tribunal for further review.[1] I heard the matter on 17 February 2023 and 3 March 2023. Dr Marshall and Mr Marshall gave sworn evidence via MS Teams. Ms Acheson did not attend the hearing.

   [1]The objections officer, while reviewing the decision to register the child support case, also decided to vary the date from which Mr Marshall was recorded as providing 100% care for the children for child support purposes. The date precedes the date from which the child support case was registered. However, that care decision is not under review in the current proceedings. Prior to the Tribunal hearing, Dr Marshall confirmed that his application for review was confined to the decision to register the child support case.

5. An administrative assessment of child support cannot be made in respect of a child if the child is not an “eligible child”: sections 23 and 24 of the Child Support (Assessment) Act 1989 (“the Assessment Act”). Dr Marshall submitted that the children were not eligible children.

6. Subsection 22(1) of the Assessment Act states: “The regulations may provide that children who are under the care (however described) of a person under a child welfare law are not eligible children.” Regulation 6 of the Child Support (Assessment) Regulations 2018 states:

   Exclusion of certain children

   For the purposes of subsection 22(1) of the [Assessment Act], children are not eligible children if they are in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law of:

   (a)    Western Australia; or

   (b)    South Australia.

7. Dr Marshall submitted that when Mr Marshall lodged his application to register a child support case, the children were in Mr and Mrs Marshall’s care pursuant to powers that were exercised under the Children and Young People (Safety) Act 2017 (South Australia) (“the CYPSA”). For the reasons that follow, I do not accept that submission. However, it is worth noting that the CYPSA is a child welfare law.[2] Also, Dr Marshall submitted that if the children were in Mr and Mrs Marshall’s care pursuant to a child welfare law immediately prior to the making of the orders dated 20 April 2022, then the children remained in Mr and Mrs Marshall’s care pursuant to a child welfare law notwithstanding the making of the orders.[3] It is not necessary to reach a conclusion in respect of that submission.

   [2]The term “child welfare law” is not expressly defined in the Assessment Act. However, section 7 of the Assessment Act states that “[u]nless the contrary intention appears, expressions used in this Act, and in Part VII of the Family Law Act 1975, have the same respective meanings as in that Part.” Part VII of the Family Law Act 1975 (“the Family Law Act”) includes section 69ZK which includes the term “child welfare law”. That term is defined in section 4 of the Family Law Act: “child welfare law means a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition.” Regulation 12B of the Family Law Regulations 1984 lists classes of prescribed laws that are child welfare laws and, by reference to Schedule 5 to those Regulations, specific laws that are child welfare laws. Schedule 5 includes the CYPSA.

   [3]See, in particular, section 69ZK of the Family Law Act and Family Law, 7th edition, Riethmuller G. and Smith R: Thomson Reuters, Australia at [2.210] and [8.70].

8. Dr Marshall stated in an affidavit dated 1 August 2022:[4]

   On 29 March 2021 I was contacted by [Detective A] by telephone after he failed to reach me at home. I was informed that he had exercised powers pursuant to the [CYPSA] and was placing [the children] into the paternal grandparents’ care. I was informed not to have any contact with my children otherwise I would be charged with further offences under this and related Acts. I have no reason to doubt [Detective A]’s statements as an authorised child welfare officer and sworn officer of South Australia Police.

   [4]Page 113 of the hearing papers.

9. There is no dispute that the children have not been placed in Mr and Mrs Marshall’s care pursuant to a written order, notice, etc issued pursuant to the CYPSA (or any other child welfare law). Dr Marshall submitted that the children were placed in Mr and Mrs Marshall’s care on 29 March 2021, and remained in their care on 4 May 2022, pursuant to sections 41, 42 and 43 of the CYPSA. Section 41 provides that if certain requirements are satisfied, “the child protection officer may remove the child or young person from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose.” Section 42 concerns action to be taken following removal pursuant to section 41. Section 43 concerns custody of the child or young person following removal pursuant to section 41. Dr Marshall provided a copy of the South Australian Government’s Interagency Code of Practice: Investigation of suspected harm to children and young people. Dr Marshall highlighted the relevant text. It is under the heading “Initial response to the child, young person and parents/carers” and the subheading “Ensuring the immediate safety of the child or young person – emergency removal”.

10. On 15 December 2021, Dr Marshall stated in an affidavit: “On 29 March 2021 the paternal grandparents abducted the children from their school whilst in my care and they have not been returned to my care.”[5] It follows that, on Dr Marshall’s account of events, a child protection officer (and, in particular, [Detective A]) did not remove the children from any premises, place, vehicle or vessel, i.e. the children were not removed pursuant to section 41 of the CYPSA. At the hearing, Mr Marshall stated that the police asked him on 29 March 2021 to collect the children from their school, and he travelled to their school and did so. The police were not present when Mr Marshall collected the children from their school. It follows that, on Mr Marshall’s account of events, a child protection officer did not remove the children pursuant to section 41 of the CYPSA.

    [5]Page A104 of the hearing papers.

11. On 18 August 2021, Mrs Marshall stated in her affidavit:

    33.The children have been retained in the care of my husband and I on the advice of SAPOL.[6] I retained the children on 29 March 2021.

    …

    40.At the direction of [Detective A] we retained the children in our care from 29 March 2021. We collected the children from school at 2.00pm that day and they have remained in our care.  

    [6]South Australia Police

12. Mrs Marshall’s inconsistency – initially referring to “advice” and later referring to “direction” – suggests that she has not expressed herself, at least on that issue, with precision. In any event, section 41 grants a power to child protection officers to remove a child or young person. It does not grant child protection officers a power to delegate the removal power. It is clear that Mr Marshall collected the children from their school on 29 March 2021; they were not removed by a child protection officer. The children were not placed in Mr and Mrs Marshall’s full-time care pursuant to a child welfare law.

13. The following evidence reinforces that conclusion. On 4 August 2022, Dr Marshall and [Detective A] corresponded by email. Dr Marshall stated that he had not received any paperwork regarding the “removal” of the children in March 2021. [Detective A] stated:[7]

    It was a decision by the grandparents to withhold the children from your care and it was not a decision I was involved with. I may advised [sic] them to seek independent legal advice from a family solicitor if they were considering breaching a court order but it was not something I was involved with.”

    [7]Page A27 of the hearing papers.

14. In response to further questions, [Detective A] stated:[8]

    I can confirm [Child 1] nor [Child 2] [sic] were removed from your care due to my instruction nor any other police instruction.

    As far as I am aware there is no proceedings in the youth court. Proceedings in the youth court pursuant to the Child and Young Person Safety Act are usually initiated by the department of child protection, as far as I am aware there are no proceedings of this type.

    [8]Page A28 of the hearing papers.

15. Dr Marshall then referred to a MAPS[9] Case Detail Summary, and in particular an entry for 30 March 2021. I will reproduce a slightly larger portion of the entry and place the portion that Dr Marshall reproduced in italics:[10]

    30/03/2021 - ED CFIS[11] had a Strategy Discussion with Child Protection Service (CPS) and Department of Child Protection (DCP).
    - DCP supporting investigation.
    - Grandparents requested to withhold and initiate urgent Family Court proceedings against their son (Dr Marshall) whilst investigation takes place.

    ­- Police called Dr Marshall to inform there was an active investigation by SAPOL and DCP. […]

[Detective A] replied (verbatim):[12]

If I get the chance when I get to work tomorrow I’ll have a look at the log you are talking about. Is that an entry i made? Sometimes I ask if the other party is prepared to withhold the children if they are at risk in the other partys custody whilst a criminal investigation takes place but it is their decision whether they do or not and i always advise to seek legal advice for a family lawyer as there may be consequences in the family court proceedings. It is not a police direction/instruction/removal. It is one party withholding because they believe the children are at risk of harm in the care of the other party. Without looking at my notes i cant be certain if this was the case with your parents.

[9]Multi Agency Protection Services: page A304 of the hearing papers.

[10]Page A45 of the hearing papers.

[11]Child and Family Investigation Section (SAPOL): page A304 of the hearing papers.

[12]Page A29 of the hearing papers.

1. The log entries also include the following:[13]

   29/03/2021 – Special Situation Request (SSR) related to Paternal Grandparents holding [the children] contrary to Family Law Court from their son, Dr Marshall. Currently allegations of abuse resulting in emotional / psychological harm. DCP and SAPOL have requested the grandparents withhold the children to allow for the investigation to take place.

   [13]Page A46 of the hearing papers.

2. The agencies’ references to “withhold” are telling. They confirm that, as far as the agencies were aware, Mr and Mrs Marshall were withholding care in contravention of the orders dated 17 November 2020. If the children had been placed in Mr and Mrs Marshall’s full-time care pursuant to the CYPSA, Mr and Mrs Marshall would have been providing care pursuant to a child welfare law; they would not have been withholding care.

3. For those reasons, I find that the children were not placed in Mr and Mrs Marshall’s care on 29 March 2021 pursuant to a child welfare law and they were not in their care on 4 May 2022 pursuant to a child welfare law. When Mr Marshall applied to register a child support case in respect of the children, the children were in his and his wife’s care pursuant to the Federal Circuit and Family Court’s orders dated 20 April 2022. The children were eligible children. The CSA correctly registered the child support case.

DECISION

The decision under review is affirmed.