FRGC and Child Support Registrar (Child support second review)

[2021] AATA 4734

FRGC and Child Support Registrar (Child support second review) [2021] AATA 4734 (17 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0607

Re:FRGC

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKQYK

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:17 December 2021

Place:Brisbane

The Tribunal sets aside the reviewable decision and in substitution decides as follows:

For 3 June 2019 to 22 September 2019 as per the 2014 Federal Parenting Orders each parent be recorded as having equal shared care (50/50);

For 21 October 2019 to 20 November 2019, it be recorded that the Other Party had 100% care and the Applicant had 0% care; and

For the period 21 November 2019 to 20 April 2020 as per the 2014 Federal Parenting Orders each parent be recorded as having equal shared care (50/50).

...............................[SGD]................................

Member P Ranson

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.

Catchwords

CHILD SUPPORT – objection to care percentage change – outside of prescribed time limit – extension of time to object – special circumstances – interim care determination – Federal Court parenting orders – mental health – serious illness – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration & Collection) Act 1988 (Cth)

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021

Guides to Social Policy Law, Child Support Guide, Version 4.59, released 8 November 2021

REASONS FOR DECISION

Member P Ranson

17 December 2021

BACKGROUND

1. The Applicant and the Other Party are the separated parents of a daughter was born in 2007 (the Daughter). Her care has been shared between her parents since separation. Until May 2019, the care was mostly in accordance with court orders made in 2014, namely, 50/50 on a week about basis including school and statutory holidays with the usual provisions for birthdays, Mother’s Day and Father’s Day. The Applicant and the Other Party both provide a home for the Daughter when she is in their care.

2. The 50/50 care arrangement continued until 5 May 2019, where for about a month the Other Party’s circumstances changed temporarily, and the assessed care became 100% to the Applicant and 0% to the Other Party. On 3 June 2019 the situation changed again, and the Daughter was in the Other Party’s care 100% until 21 October 2019 because he lodged a vexatious compliant against the Applicant, who was subsequently found to have no case to answer after which the care arrangements reverted to 50/50 as per the court orders.

3. The extraordinary animosity between the parents came to a head on or about 21 October 2019 when the mother suffered a breakdown resulting from continued harassment and intimidation by the father. From then on, the Daughter was 100% in the care of the father before reverting to 50/50 again on 15 June 2020 as per the court orders.

4. It is these two periods, where the father claimed 100% care of the daughter, being contested by the mother in this review. These matters are further complicated because both the Other Party and the Applicant delayed in advising the various changes of care and objections to care decisions, that is, outside the 28 days allowed and whether there are special circumstances to warrant an extension of time to object, and whether the Applicant took sufficient reasonable action to enforce the court orders at the relevant times.

5. The Child Support Registrar and the Tribunal have made decisions at various times about the care arrangements for the Daughter. On 15 January 2021, the Social Security and Child Support Division of this Tribunal (AAT1), affirmed the decisions of the Child Support Registrar whereby the Other Party is recorded as having 100% care of the Daughter for three months in 2019 and eight months in 2019 and 2020. The Applicant disagrees with that decision and seeks a review of it.

PROCEDURAL HISTORY

1. The parties in this case are:

Applicant	FRGC (‘Applicant’; ‘Mother’)
Respondent	The Child Support Registrar (the Registrar)[1]
Other Party	KQYK (‘Other Party’; ‘Father’)

[1] Part of Services Australia formerly the Department of Social Services.

1. The decision under review was made by AAT1 on 15 January 2021 which affirmed two decisions reflecting care for the Daughter to be recorded as 0% to the Applicant and 100% to the Other Party from 3 June 2019 to 22 September 2019 (Care Decision 1) and the same percentages for the care period from 21 October 2019 to 15 June 2020 (Care Decision 2).

2. The Hearing for this current application was held before this Tribunal on 30 August 2021 (the Hearing). The Applicant attended the Hearing, together with Mr Andrew Summers (Mr Summers) representing the Registrar. The Other Party declined to attend the Hearing citing health reasons. The Tribunal notes the Other Party also declined to attend AAT1. No witnesses were called.

3. The Applicant, by audio link, and Mr Summers, by video link, attended the Hearing facilitated by the Tribunal utilising Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the Hearing was not to be conducted by video conference. The Tribunal is satisfied the Applicant was given a fair opportunity to give evidence and present arguments.

4. The Registrar identified the issues to be decided as follows:

   (a)What percentage of care should be attributed to the Other Party and the Applicant for the periods 3 June 2019 to 22 September 2019 and 21 October 2019 to 15 June 2020; and

   (b)Whether there were special circumstances which prohibited the Applicant from objecting in time, and

   (c)Did the Applicant take appropriate action to enforce the FCCA Orders of 24 September 2014 in relation to the care arrangements for the Daughter?

   (d)What should be the date of effect of the care determinations?

5. The following documents were admitted into evidence:

Number	Description
Exhibit 1	Section 37 T-Documents of 493 pages
Exhibit 2	Supplementary T-Documents of 101 pages
Exhibit 3	Extract from the Family Assistance Guide (Section 2.1.1.70)
Exhibit 4	Registrar’s Statement of Facts, Issues and Contentions (SFIC) dated 23 June 2021
Exhibit 5	Applicant’s written submissions and annexures of 98 pages
Exhibit 6	Applicant’s post-hearing submission of 14 pages lodged on 7 September 2021.

Exhibit 6 was received after the Hearing and provided to the Respondent.

1. Exhibit 4 sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of Exhibit 4 and its attachments were provided to the Other Party and the Applicant, prior to the hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

   ·Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).

   ·Child Support (Registration & Collection) Act 1988 (Cth) (the Collection Act)

   ·Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)

2. Exhibit 4 also refers to the Child Support Guide (the Guide) and especially Chapter 2.2.[2] The Tribunal notes that, where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision  … cogent reasons will have to be shown against its application”.[3]  The Tribunal considers there are no pressing reasons in this case to depart from the policy outlined in the Guide.

   [2]  See Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021

   [3]  Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

3. At the Hearing the Applicant was asked to provide two calendars of care, namely, one showing the 50/50 arrangement had it occurred and another showing the dates the Daughter was in her overnight care during the year ended 31 December 2019. As the Other Party did not attend the hearing the Tribunal has no calendar of care from him to compare with those of the Applicant.

4. The Applicant provided a post-hearing submission, which has been entered into evidence as Exhibit 6, and contains:

   (a)the two versions of the calendar of care requested by the Tribunal together with copies of a letter dated 19 September 2018 from the Applicant to the Daughter’s High School;

   (b)a complaint letter dated 20 January 2020 from the Applicant to Education Queensland about the Daughter’s High School;

   (c)a complaint submitted on 19 January 2021 to the Office of the Health Ombudsmen against a Dr Neuendorf and their e-mail reply dated 30 August 2021; and

   (d)a letter dated 27 February 2020 from the Daughter’s High School to the Applicant following her complaint against the school.

5. The Tribunal has considered all the material supplied to it and the oral evidence of the Applicant. Not all the evidence is referred to at length in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

THE FACTS AND EVIDENCE

Facts based on oral evidence

1. The Tribunal’s approach to evaluating the evidence contained in the documentary and the oral evidence given at the hearing is based on the following principles:

   (a)Facts may be found based on oral evidence alone. There is no barrier to a fact being found on the uncorroborated evidence of an applicant. There is no requirement that direct evidence by oral testimony or affidavit may only be accepted if corroborated.

   (b)Self-serving statements should be closely scrutinised, that is, tested thoroughly and received with great caution.

   (c)Evidence of a party is not to be regarded as prime facie unacceptable. While it is often prudent to put forward corroborating evidence, parties are not obliged to call all material witnesses or produce all material documents.[4]

   [4] For this and the preceding propositions, see Imperial Bottleshops Pty Ltd v Commissioner of Taxation (1991) 22 ATR 148, 155; and FCT v Cassaniti [2018] FCAFC 212.

Orders of the Federal Magistrates Court of Australia

1. On 24 September 2014, the Federal Circuit Court of Australia (FCCA) made orders concerning the care of the Daughter (the 2014 Care Orders). Those orders specified, inter alia, the Daughter would live ‘week about’ with the Applicant and the Other Party including school holidays. Special provision was made for birthdays, Mother’s Day, and Father’s Day and other special holidays. The parents abided by these orders until May 2019 and the result is a pattern of care of 50% to the Applicant and 50% to the Other Party.

Previous care decisions

1. Various care decisions then ensued as set out in the table below provided by the Registrar with the assistance of Mr Summers (the Care Decision Table):

% Mother	% Father	From	To	Date of Notification	Notifier	Evidence filed[5]
100%	0%	06-05-2019	02-06-2019	24-05-2019	Mother	T4 page 28 T13 page 48
0%	100%	03-06-2019	22-09-2019	03-06-2019	Father	T20 page 83
51%	49%	23-09-2019	20-10-2019	10-10-2019	Father	T13 pages 51-52 T21 page 84
0%	100%	21-10-2019	15-06-2020	02-03-2020	Father	T25 page 110 T30 page 127 T32 page 129 T55 page 242 T101 page 400
51%	49%	16-06-2020	02-06-2021	22-06-2020	Father	T69 page 317 T76 page 335 T78 page 338

[5] Exhibit 1, T Documents.

1. This decision is only concerned with Care Decision 1 and Care Decision 2 as set out in [7] above, both of which changed the care arrangements to 100% to the Other Party and 0% to the Applicant.

2. Mr Summers identified T18, page 74 provides some explanation for the delay in Care Decision 1 being made on 24 February 2020 despite the earlier date of notification.[6] It was also identified that T20, page 83 addresses the carryover of information from Centrelink to Child Support, with the file note indicating the initial ‘DOR’ (reporting date) being 3 June 2019.[7]

   [6] Ibid.

   [7] Ibid.

3. Care Decision 2 had an initial date of effect of 24 October 2019, with the date of notification being 2 March 2020. The objections officer noted further evidence[8] indicating the change of care occurred on 21 October 2019 and changed the date of effect accordingly, and the date of notification remains 2 March 2020.

   [8] Exhibit 1, T Documents, T55, page 242.

Reasonable action

1. Where a party to a care order is denied care (in whole or part) in accordance with that order, they can apply to prevent for an interim care determination in favour of the parent with the decreased care by taking reasonable action to enforce the care order.

2. As set out in the SFIC at [40], the term ‘reasonable action’ is not defined in the Assessment Act, however the Guide provides the following examples of reasonable action at chapter 2.2.4 and it is important to note the list below is neither prescriptive nor exhaustive:

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

   (b)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,

   (c)seeking or obtaining legal advice regarding the making of a court order,

   (d)filing an application to a court to have an order made or enforced,

   (e)attending a hearing at court to seek an order to be made or enforced, or

   (f)notifying the police that the child has been taken without consent.

Calendars of care

1. There were no calendars of care in this case prior to the Hearing. Exhibit 6 includes actual and theoretical calendars of care provided by the Applicant. The calendar of care showing actual care periods reveals the Daughter was in the care of the Applicant until 9 June 2019 then not again until 6 September 2019. Overnight care by the Applicant ceased again on 14 October 2019.

2. In any event, there is no dispute as to the percentages of actual care which applied at the relevant times. The issues to be determined are set out above and relate to reasonable action taken and the special circumstances claimed by the Applicant.

The timeline of events

1. The Applicant lodged Exhibit 5 around 27 May 2021. It contains a detailed timeline of events from 20 April 2019 to 3 March 2021 (the Timeline).

2. Care Decision 1 has a start date of 3 June 2021, being the date Centrelink record they were advised by the Other Party[9], however the Timeline says the Other Party failed to return the Daughter to the care of the Applicant on 15 June 2019. What happened in between those dates is not explained in the evidence.

   [9] Exhibit 1, T Documents, T20, page 83

3. The Timeline states the Daughter had been returned to the care of the Other Party in accordance with the 2014 Court Orders following a period when she was 100% in the care of the Applicant, which in turn had arisen because of a suicide attempt by the Other Party the previous month. She states:

   ‘However, towards the end of this month [June 2019]. I AM BLOCKED ON ALL MOBILE NUMBERS. [KQYK] says he can not (sic) return her to me as I am on drugs and this is a story, he shares with [the Daughters] High School, [redacted – the Daughter’s] GP. 15 June 2019 [the Daughter] is not returned home by [KQYK] and advises me that this is [the Daughter’s] choice. Email evidence 17 June from me requesting [the Daughter] to come home as [redacted – the Daughter] wants to be returned.’

   ‘28 June 2019 Child Safety have visited [KQYK] home and [the Daughter] sent me a text to ask if I had called them’

4. On 1 July 2019, the Other Party lodged a complaint with Department of Child Safety, Youth and Women (Child Safety) against the Applicant claiming she was abusing the Daughter, who was to have returned to the Applicant as part of the regular week about routine, and the Other Party refused to let her go to her mother who states in the Timeline:

   ‘A formal complaint has been made against me to Child Safety 1 July 2019. I am unable to have any contact with [the Daughter] until this has been investigated. The only investigation held was over the telephone and I was cleared 18 August 2019

   8 July 2019 I request [KQYK] not send any email of swearing and abuse at my work email address. I organise payment direct to [KQYK] for CSA as he has [redacted – the Daughter] in his care while I am investigated. I asked for address on where to send mail I want to write to her as I am blocked on her email and phone.

   16 July 2019 [KQYK] adds more accusations to the list on me and I send these concerns to Child Safety on email asking for this to be taken to the police if required as I want to have [redacted – the Daughter] returned.

   24 July 2019 I email child safety asking for the matter to be cleared up so [redacted – the Daughter] can return home. [KQYK] refuses to believe I am cleared and will not return [redacted – the Daughter] in my care.

   24 July 2019 Email sent to [KQYK] requesting abuse stops and I threaten DVO.

   Child safety letter 16/8/2019 clears me’

5. Centrelink made Care Decision 1 which reflected the care of the Daughter had changed to 0% to the Applicant and 100% to the Other Party. The Applicant objected to that decision on 3 June 2020 claiming her percentage should be 50% because she took reasonable action (emphasis added) to enforce the 2014 Care Orders (the First Care Objection). Her objection was disallowed on 8 October 2020 and so the Applicant applied to the Tribunal for a review of that decision, which resulted in the decision being reviewed now. On 15 January 2021, the AAT1 affirmed the objection decision.

6. On 23 September 2019, the FCCA found there was no case to answer in relation to the complaint made by the Other Party and ordered the Daughter be returned to the Applicant and care resume in accordance with the 2014 Care Orders. The Other Party did not comply immediately with the orders of the court however eventually the Daughter was returned to the Applicant and the week about routine did resume.

7. The Applicant asserts the Other Party then embarked on a campaign of harassment and intimidation against her with such ferocity she had a breakdown herself and on 21 October 2019 she decided she could no longer care for the Daughter and asked the Other Party to take care of her, which he did. The Registrar was notified of the change by the Other Party on 2 March 2020. That resulted in a care arrangement of 100% to the Other Party and 0% to the Applicant, which the Applicant objected to on 11 May 2020. The FCCA again ordered the care of the Daughter in accordance with the 2014 Care Orders resume, this time from 16 June 2020. The Applicant claims there are special circumstances (emphasis added) explaining why she did not object in time and why an interim care decision should not apply in favour of the Other Party.

8. The Applicant has applied to the General Division of this Tribunal for a further review of both care decisions.

Care decision 1

1. In terms of genuine attempts to negotiate with the Other Party to ensure compliance with the 2014 Care Orders, the Applicant provided copies of various e-mail exchanges including several on 24 July 2019. Below is a selection, which excludes those not considered relevant or which contained derogatory remarks:[10]

   [10] Exhibit 5, Applicant’s Material, Email Chain, paginated 629 – 640.

   (a)17 June 2019: e-mail to the Other Party:

   ‘Could [the Daughter] come for dinner with me either Monday or Tuesday this Could [the Daughter] come week and I will pick her up from school and drop her back to McDonalds at 6.30pm. [the Daughter] has said she wants to see me. This is my care week. Deny access to [the Daughter] will be classed as withholding.’ [emphasis added]

   (b)26 June 2019: e-mail to the State High School:

   ‘Good morning. Thank you for allowing me to be involved in her school life. [the Daughter] did speak with me this week as she emailed to ask me if I had called Child Safety about her dad. I have not called any departments (too busy trying to find a house) however I do have some concerns why they went to his house. [the Daughter] said they left a card on the door. If possible, could you have [Teacher] check on [the Daughter] to see if she is safe? If [the Daughter] needs to get away from her dads, I will take her back right away obviously and she can come with me to my parents.’ [emphasis added]

   (c)24 July 2019: e-mail to the State High School:

   ‘Good morning. As per below, [KQYK] is still claiming I can not (sic) have care of [the Daughter] and that I have not been cleared. Could the case worker please call [KQYK] and myself to clear this up. It has gone on for too long now and I am missing my daughter [emphasis added]. There was supoose (sic) to be a letter and a phone call to [KQYK]. The situation is unmanageable and like I said it is all about child support monies.’

   (d)24 July 2019: e-mails to Child Safety

   ‘[KQYK] is still claiming I can not [cannot] have care of [the Daughter] and that I have not been cleared. Could the case worker please call [KQYK] and myself to clear this up. It has gone on for too long now and I am missing my daughter. There was supoose (sic) to be a letter and a phone call to [KQYK]. The situation is unmanageable and like I said it is all about child support monies.’

   ‘Could someone please get back to me on this. Now I am accused of drug taking. I wish to have the police involved now. I want to be drug and alcohol tested. These claims have happened my entire life and its [it’s] not ok and he is using this to make me pay him child support and keep [redacted – the Daughter] from me [emphasis added]. I have always worked full time and paid for [redacted – the Daughter]’s entire schooling. Alone. I have a private arrangement to pay him $170 on Wednesday but because the money is not in his account he is firing off. This is bullying and lies, and manipulation and I want to see my daughter and try and rebuild my relationship with her’ [emphasis added].

   (e)24 July 2019: e-mail from Other Party to the Applicant

   ‘[FRGC] I don’t want child support. I don’t want support you have never payed (sic) in [the Daughter’s] entire life. Also, we didn’t report you to child safety services. Child safety services come seen us unexpectedly and told us [the Daughter] was not to be in your care because of your mental stability probably due to your ice abuse.’

   (f)24 July 2019: e-mail from the Applicant to Other Party

   ‘Child support payments are made on Wednesday it’s my pay date. I already made this clear on my child support email. I will call child safety to call you again to explain you are withholding [the Daughter] with no reason [emphasis added].’

2. The Other Party lodged a complaint with Child Safety against the Applicant on 15 June 2019, which ultimately proved groundless, and used that as an excuse to withhold care of the Daughter from the Applicant. The Other Party had the opportunity to appear at the Hearing to refute the evidence of the Applicant if he was so minded. He chose not to appear, so the Tribunal is left with only the extensive and detailed evidence of the Applicant.

3. Given the toxic nature of the relationship between the Applicant and the Other Party it is unthinkable they could engage in an orderly conversation by telephone much less in a face-to-face meeting. That leaves exchanges of e-mails as the only practical way for the Applicant to negotiate with the Other Party in a genuine attempt to ensure compliance with the care arrangement. Certain she would be cleared by Child Support of the claims made by the Other Party, the Applicant accepted she would not have any care of the Daughter until the case was decided in her favour. That occurred on 16 August 2019.

4. The Tribunal finds it inappropriate to determine the Other Party should benefit from a decision in his favour by withholding care of the Daughter based on a vexatious claim, which he failed to defend.

5. Accordingly, the Tribunal finds an interim care decision in favour of the Applicant from 3 June 2019 to 22 September 2019 is warranted because the Applicant did take reasonable action to enforce compliance with the 2014 Care Orders and the care during that period should be as per those orders.

Care decision 2

1. As mentioned above, after the 2014 Care Orders were reinstated in September 2019 the Applicant asserts the Other Party harassed and intimidated her with such ferocity, she had a breakdown. On 21 October 2019 she realised she could no longer care for the Daughter and asked the Other Party to take care of her, which he did and according to the Care Decision Table he did not notify Centrelink of the change of care until 2 March 2020[11]. Centrelink contacted the Applicant who confirmed the change occurred on 24 October 2019[12] and on 6 March 2020 Centrelink recorded a change of care to 100% for the Other Party and 0% for the Applicant[13].

   [11] Exhibit 1, T Documents, T25, page 110.

   [12] Ibid T30, page 127.

   [13] Ibid T32.

2. The basis of the change of care from 24 October 2019 stems from an e-mail sent by the Applicant to the Other Party on 21 October 2019.[14] The whole of the contents of that e-mail will not be reproduced in this decision given some of the explicit comments in it. Suffice to say the Applicant did state: ‘I have no interest in being [the Daughter’s] carer anymore.’ The Applicant sets out in that e-mail the defamatory accusations made by the Other Party about the Applicant, which led to her breakdown at that time.

[14] Ibid T55, page 242.

1. Notwithstanding the statements made in the e-mail of 21 October 2019, on 11 May 2020 Centrelink received an objection dated 5 May 2020 from the Applicant to the change of care decision of 6 March 2020[15]. As 11 May 2020 is more than 28 days from 6 March 2020, the objection was out of time. Her objection stated she had asked the Other Party to care for the Daughter for a month while she recovered from her mental breakdown. That means the care was intended by the Applicant to be 100% to the Other Party from 21 October 2019 to 20 November 2019 and thereafter 50/50 in accordance with the 2014 Care Orders.

   [15] Exhibit 1, T Documents T53.

2. On 8 October 2020, her objection was allowed in part in that the change of care commenced on 21 October 2019, notified 2 March 2020, which had no practical effect on the amount of child support to be paid. The objections officer had sought and considered further evidence from both parties and found, inter alia, an interim care decision could not be made suggesting there had been no reasonable action taken to enforce the care orders of 50/50, and no special circumstances preventing the objection being lodged out of time.

3. The Tribunal considers it important to consider the words used by the Applicant in her e-mail to the Other Party on 21 October 2019 and in the context of the endless deterioration in the relationship between the parents. The Applicant sums up the context this way:

   ‘You [KQYK] make all the decisions and do not involve me in any of them. You do your own thing and like to disregard what or who I am in [the Daughter’s] life which now I am just the carer that drives her to and from school, feeds her three meals a day and buys her material items. Both you and [the Daughter] use me for money.’

4. The 2014 Court Orders[16] state clearly in paragraph 1 the mother and the father have equal shared parental responsibility (emphasis added) for the major long-term issues about the Daughter including but not limited to her education, religious and cultural upbringing, health and living arrangements.

   [16] Ibid T72.

5. If, as set out in the previous paragraph, the assertions made by the Applicant in her e-mail to the Other Party on 21 October 2019 are correct then the Other Party was clearly in breach of paragraph 1 of the 2014 Care Orders. The Daughter was 12 at the time and whilst no doubt dealing with the transition to being a teenager and asserting some independence, she was not old enough to be making decisions about major long-term issues affecting her. Those decisions fell to the parents and were required to be shared equally.

6. According to the Timeline, in the middle of September 2019 the Daughter called the Applicant from school to advise an ambulance and the police had been called to the Other Party’s residence as he had again tried to commit suicide, this time because the chemist would not release his medication early. On 18 September 2019, the Other Party seeks a child support payment from the Applicant and agrees to half the amount as care had reverted to the 2014 Care Orders. However, the Applicant asserts there were threats made against her and she was bullied if she didn’t transfer $100 to their [Other Party and his partner’s] account and they threatened to go to CSA (Child Support Agency) where, they asserted, the Applicant would be expected to pay more.

7. The Timeline continues. On 21 October 2019, the Applicant is at a medical appointment for the Daughter who makes a scene believing the Applicant is on drugs, a drunk, and operating a brothel. The Applicant states she is unable to calm her down and has no choice but to return her to the Other Party, which results in the e-mail exchange of 21 October 2019, see [‎39]. She states:

   ‘This is when I have a full-blown mental health breakdown due to the domestic violence [KQYK] acts towards with by making up stories about me in every government building, doctors’ surgery, headspace, schools. I write to [KQYK] expressing that I can not (sic) cope with this and I am returning her. Please see evidence page 313. What I had written is of a woman that has reached her brink of no return, under huge amount stress and I had made some valid points of how [KQYK] was deliveratly (sic) doing things to ensure I am blocked out of [the Daughter’s] life.’

8. Reverting to the words used by the Applicant in the e-mail of 21 October 2019, she does not say she will no longer care for the Daughter rather she is returning the Daughter to the care of her father because she will no longer be her carer (emphasis added).

9. The Applicant asserts by the actions of the Other Party she had not been allowed to be a mother to the Daughter, notwithstanding she was carrying out many of the responsibilities of a parent as she was required to do by the 2014 Care Orders.

10. Notwithstanding the events described above, the Timeline goes on to describe the efforts made by the Applicant to have contact with the Daughter. She states she is blocked from contact with both the Other Party and the Daughter and her requests to spend time with the Daughter go unanswered. The e-mails submitted suggest the Other Party is harassing the Applicant, she says to obtain more money from her. The Applicant’s father also tries to contact the Daughter to no avail. There are other e-mail exchanges between the Applicant and the Other Party in December 2019, which won’t be quoted here as they contain derogatory remarks however the gist of the content seems to be the Other Party asking for more money from the Applicant.

11. On 13 December 2019 the Applicant has an e-mail exchange with the Daughter as follows:[17]

    [The Applicant] to the Daughter: ‘How's are you doing? I was going to send you a Christmas present. Would you like some art stuff?’

    The Daughter to The Applicant: ‘Yes, please! A good Christmas present would be if I could see you.’

    [17] Exhibit 5, Applicant’s Material, page 652.

12. On 3 January 2020 the Applicant sends an e-mail to the Daughter who she asks to show the content to the Other Party. Again, much of the e-mail is personal and not relevant to this decision. The important part is as follows:[18]     

    ‘[KQYK], I think it’s time we co parent. I don't have any hate towards you.’

    [18] Ibid page 656.

13. On 25 February 2020 the Applicant sends an e-mail to the Other Party trying to regain some overnight care. There is also discussion about school requirements and sporting activities. The important part is as follows:[19]

‘[Daughter] is to start having two nights per fortnight in my care. This could be mid-week or a weekend. You decide. It can't be the last weekend of the fortnight as in this weekend coming 29/2/2020 as this is the weekend I work on a Saturday. I prefer the weekend and the next fortnight is Friday 6 March 2020 for two nights.’

[19] Ibid page 662.

1. It seems the e-mail of 25 February 2020 was ineffective as on 27 February 2020 the Applicant again e-mails the Other Party to say:[20]

   ‘You decide [KQYK]. Fix it now, give her back or I take you to court. Dads even tried to contact you to sort. The whole family have had enough. You make up abuse claims to keep [the Daughter] for money. None are true and I haven't been charged so give her back.’

   [20] Ibid page 660.

2. That day (25 February 2020) the Applicant contacted her solicitors to arrange a consultation to determine the best course of action to gain a recovery order for the Daughter. She also lodged a formal complaint with the State High School in which the Daughter had been enrolled. The complaint concerned her being removed as a contact for the Daughter, which they advise occurred because the Other Party lodged a change of details form which did not include the Applicant notwithstanding she is the mother of the Daughter. The Daughter had also been removed from that State High School and enrolled in another State High School close to where the Other Party lives without any consultation with the Applicant.

3. On 2 March 2020, there is an extended exchange of e-mails between the Applicant and the Other Party, some of which appears to be disputes over who can claim what amount of Family Tax Benefit (FTB). Each claim the other is at fault as to why the Daughter needs psychological care. The Applicant states again she wants care returned in accordance with the 2014 Care Orders or she will have to resort to court action. The Other Party asserts many times he has evidence to show the Applicant does not want care of the Daughter however as mentioned above, the Other Party chose not to appear at the Hearing, or the AAT1 hearing, so his assertions cannot be tested, which leaves the Tribunal to rely on the evidence of the Applicant.

4. On 3 March 2020 there is an e-mail exchange with the State High School attended by the Daughter and on 5 March 2020, the Applicant sends another e-mail to the Other Party in which she states:

   ‘If [the Daughter] doesn't come home to me, Friday at the gate, you will be sued and breach. [the Daughter] doesn't get to decide. Get legal advice immediately and rectify your position.’

5. Further exchanges ensued over the following week. In summary the Applicant reiterates to the Other Party:

   ‘Dad and I are going to Freemans Lawyers office tomorrow to start proceedings on me having [the Daughter] home.

   Yes, [the Daughter] was sent to live with you while I dealt with the 5th child safety abuse claim. My mental health went downhill. You have gone way too far.

   I am giving you one last chance to give [the Daughter] back 50/50 immediately.

   This is not a game. I don't care if you say you're not scared, we have serious evidence against you including your mental illness that is recorded at school and child safety.

   There is no reason you have to keep [the Daughter] away from me. There is no danger, never was.

   I want [the Daughter] home 50/50 starting this Friday otherwise it's full-blown court for everything.’

6. The Other Party is threatened with a protection application to the Magistrates Court unless he ceases to defame the Applicant, says a letter to him from Freeman Lawyers dated 17 March 2020.[21] Referring to that letter, Freeman Lawyers write again to the Other Party on 30 March 2020 noting he agreed to return the Daughter that day and failed to do so.[22] They advise him the matter will go to court, presumable for a recovery order, if the Daughter is not returned to the Applicant the next day.[23] They repeat that request by letter on 15 April 2020.[24] On 29 April 2020 Freeman Lawyers confirm by e-mail to the Applicant they have lodged the application with the FCCA and a hearing for a recovery order has been set down for Tuesday 19 May 2020 (the e-mail says the FCCA hearing is set down for 19 April 2020 which predates their e-mail. The Tribunal concludes this is a typographical error).[25]

   [21] Exhibit 1, T Documents, T52. Page 192.

   [22] Ibid, page 193.

   [23] Exhibit 5.

   [24] Ibid.

   [25] Ibid.

7. The FCCA issued a temporary protection order on 21 May 2020[26] to return the Daughter to the care of the Applicant until 22 June 2020 and on 16 June 2020 made a recovery order returning care of the Daughter to 50/50 as per the 2014 Court Orders. It seems that once the temporary protection order was served on the Other Party, his response was to send the Daughter to the care of his mother rather than return her to the care of the Applicant.

   [26] Exhibit 1, T Documents, T56, page 246.

8. In considering the multitude of e-mail evidence in this case, the actions of Freeman Lawyers, the decision of the FCCA to issue a recovery order, and a domestic violence order against the Other Party is compelling. As stated above, the Other Party chose not to attend the Hearing to enable his assertions to be tested, whereas the Applicant did present herself to enable her assertions to be tested. This causes the Tribunal to place little weight on the comments of the Other Party in those e-mails and substantial weight on the assertions of the Applicant.

9. An interim care period should not apply if there are special circumstances in relation to the Daughter involving a substantial risk to the physical, emotional or psychological well-being of her if the care arrangement had continued to be followed. The guide provides some examples of unreasonable or inappropriate behaviour, such as, violence towards the child, exposing child to family violence, violence towards the person with the increased care (Other Party) and neglecting the daughter’s her basic needs such as essential medical care, food shelter and hygiene. There is no evidence before the Tribunal to suggest there are any special circumstances to prevent an interim care determination being made.

10. The Tribunal finds an interim care determination is warranted for the period commencing 21 November 2019 because as demonstrated above, and once she regained mental health after a break of one month, the Applicant set about it in a concerted manner and took reasonable action including legal action, and especially negotiating with the Other Party in a genuine attempt to ensure compliance with the 2014 Care Orders.

11. There is no evidence before the Tribunal that the Other Party took any action, reasonable or otherwise to participate in an approved dispute resolution process once the Daughter was returned to him on 21 October 2019. Accordingly, the maximum potential interim period for this care decision should apply, that being up 26 weeks, ending on 20 April 2020.

12. The Guide sets outs the following in chapter 2.2.4:[27]

    “If a person is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement complied with, there may be an interim period where care is determined by the care arrangement rather than actual care.”

    In the absence of cogent or compelling[28] reasons not to follow the guide, the Tribunal has applied this approach.

    [27] Guides to Social Policy Law, Child Support Guide, Version 4.59, released 8 November 2021.

    [28] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

1. Accordingly, the Tribunal finds for the period 21 October 2019 to 20 November 2019 the care arrangement remains 100% to the Other Party and 0% to the Applicant being the actual care for this period. The Tribunal further finds that for the period 21 November 2019 to 20 April 2020 an interim care determination in favour of the Applicant should apply, and the care arrangement should revert to the 50/50 arrangement as per the 2014 Care Orders, being the care the Applicant should have had during the period.

2. For clarity, from 20 April 2020 to 15 June 2020, the actual care will apply, because as set out above at [‎63], the maximum interim care determination the Tribunal can assess is 26 weeks, ending on 20 April 2020.

Was the objection filed in time?

1. This issue concerns whether the Applicant objected to the decision within 28 days. The Registrar summarises the facts as follows:

   (a)On 2 March 2020 the Other Party advised the agency he had 100% care of the daughter from 24 October 2019. On 6 March 2020 the agency decided to record the Other Party as having 100% care of the daughter from 24 October 2019 the date of notification of 2 March 2020.

   (b)On 11 May 2020 the Applicant objected to this decision[29] however her objection which is dated 5 May 2020 was received more than 28 days from the date of the original decision.

   (c)On 8 October 2020 and objections officer within the agency partly allowed the objection and decided to record the care of the daughter is 100% to the Other Party from 21 October 2019 (rather than 24 October) as notified on 2 March 2020. The objections officer also found an interim determination could not be made in favour of the Applicant because there were no special circumstances which prevented her from objecting earlier to the care decision made on 6 March 2020.

   (d)The decision in AAT1 affirmed the decision of the objections officer set out above.

   [29] Exhibit 1, T Documents, T53, page 206.

Are there any special circumstances?

1. Section 87AA(2)(b) of the Collection Act allows 28 days to object to a decision. The Applicant lodged her objection on 11 May 2020 which was more than 28 days from the date of the objection decision dated 6 March 2020. That section also says if the Registrar is satisfied there are special circumstances which prevented the Applicant from lodging the objection within the 28-day time period a longer period can be determined, that is, an extension of time for lodgement can be granted where there are special circumstances.

2. Examples of special circumstances which may give rise to the grading of an extension of time to lodge an objection including:

   (a)The parent was seriously ill or had an accident that stopped them from lodging an objection;

   (b)The parents suffered a personal trauma such as a death in the family or an ash natural disaster that caused damage to their property;

   (c)Communication difficulties such as illiteracy or poor English language skills;

   (d)The parent reasonably relied on inaccurate or misleading information.

3. As has been described above in detail, the Applicant was subjected to an ongoing campaign of harassment and bullying by the Other Party throughout the two care periods covered by this decision. The Other Party saw fit to not present himself to the hearing in this matter, and when it came before the AAT1, so the Tribunal can cannot place weight on the comments made by him within evidence, as there is no evidence which refutes the claims of the Applicant.

4. Considering the examples set out above at [‎65], the Applicant ultimately suffered a severe mental breakdown which left her with no option but to send the Daughter to the Other Party while she regained her mental health. Clearly, this amounts to both a personal trauma and a serious illness for the Applicant.

5. Accordingly, the Tribunal finds there are special circumstances and find it appropriate to extend the time to make an objection to 11 May 2020 for the Applicant to formally object to the Care Decision dated 6 March 2020, which means her Objection was received within the requisite timeframe.

DECISION

1. The Tribunal sets aside the decision in AAT1 and in substitution decides for the care periods covered by this decision, interim care determinations in favour of the Applicant should apply as follows:

   (a)Care Decision 1 (3 June 2019 to 22 September 2019): as per the 2014 Care Orders, that is, 50/50 to the Applicant and the Other Party, and

   (b)Care Decision 2 (21 October 2019 to 15 June 2020):

   (i)for the period 21 October 2019 to 20 November 2019; actual care should apply, being, 100% to the Other Party and 0% to the Applicant; and

   (ii)for the period 21 November 2019 to 20 April 2020 as per the 2014 Care Orders, that is, 50/50 to the Applicant and the Other Party, being the care the Applicant should have had.

76.     I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

……………………[SGD]……………………..
Associate
Dated: 17 December 2021

Date of Hearing:	30 August 2021; Post Hearing submission received 13 December 2021.
Applicants:	By Telephone
Solicitor for the Respondent:	Services Australia