MHVN and Child Support Registrar (Child support second review)

[2020] AATA 158

MHVN and Child Support Registrar (Child support second review) [2020] AATA 158 (12 February 2020)

Division:GENERAL DIVISION

File Number(s):2019/3131      

Re:MHVN  

APPLICANT

Child Support RegistrarAnd  

RESPONDENT

AndHVXL

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:12 February 2020

Place:Brisbane

The decision under review is affirmed.

........................................................................

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 (Cth).

CATCHWORDS

CHILD SUPPORT – care arrangements – percentage of care – whether special circumstances apply – determining the length of the interim care period - decision under review affirmed

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

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

SECONDARY MATERIALS

Faye Scanlan and Rosemary Purcell, ‘MythBuster: Suicidal Ideation’ (Report, National Youth Mental Health Foundation headspace, 2009)

Guides to Social Policy Law: Child Support Guide, Department of Social Services, Version 4.45 released 2 January 2020

Safe Work Australia, ‘Managing Electrical Risks in the Workplace: Code of Practice (February 2016)

REASONS FOR DECISION

Member P Ranson

29 January 2020

BACKGROUND

1. On Wednesday 12 September 2018, an 11 year old boy, who was alone in his bedroom at the time, inserted two metal darts into the socket of a power board and as a result received a minor shock. The boy was not injured by his actions. As he was in the care of his mother at the time, he told her what he had done claiming he was depressed and suicidal because she had taken his iPad from him. The mother assessed he was not physically harmed by the incident noting the power board had an in-built circuit breaker. The mother and the boy’s elder sister spent several hours ‘hanging out’ with him that night and the next to ensure he really was okay.

2. The boy went to stay with his father the following Friday and attended little athletics that night. He didn’t tell his father about the darts incident. Perhaps he was afraid of how his father might react. In any event, the mother sent an email to the father on the Saturday night advising him of the darts incident and asking him not to get angry with the boy. The father sought further information about what had happened and what had been done about it and the mother chose not to reply.

3. The father and the mother do not get on well and at the time they were sharing care of the boy 50/50.

4. The father was understandably distressed by the incident and the lack of information about it. He proceeded to contact relevant authorities about gaining full custody of the boy. Medical assessments were instigated by the father who refused to allow the boy to return to his mother’s care. Mediation initiated by the mother occurred six weeks later which reinstated some regular contact between the boy and his mother.

   FACTS

5. The Applicant (the Father) and the Other Party (the Mother) are the separated parents of a daughter now aged 16 (the Daughter) and a son now aged 13 (the Son). The Respondent is the Child Support Registrar.

6. The Respondent’s Statement of Facts, Issues and Contentions dated 30 September 2019 (‘SFIC’) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its attachments was provided to the Applicant and the Other Party prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation and policy is contained in:

   (a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act);

   (b)The Child Support Guide (the Guide).

7. The following documents were admitted into evidence:

Exhibit 1	Section 37 T-Documents.
Exhibit 2	Respondent’s Statement of Facts, Issues and Contentions with two attachments.
Exhibit 3	Applicant’s evidence with two attachments.
Exhibit 4	Applicant’s evidence – Summary Statements of Services from Family Relationship Centre.
Exhibit 5	Other Party’s evidence with two attachments.
Exhibit 6	Other Party’s Reply to Respondent’s SFIC and copy of Court Order dated 19 September 2019.
Exhibit 7	Applicant’s evidence – Open Arms medical report dated 18 December 2018.[1]

[1] The Tribunal sought the views of the parties on 30 January 2020 to add Exhibit 7 to the Register. The Tribunal decided to exhibit this material.

1. On 4 February 2020, the Tribunal received a request from the Mother to add additional evidence. On 6 February 2020, the Tribunal asked the Mother to file the documentation she sought to include by 7 February 2020. No material was provided to the Tribunal for consideration.

2. The SFIC and the Father identify the issues as follows:

   (a)Whether there was a change in care in relation to the Son; and if so

   (b)What percentage of care should be reflected in the Child Support Register from the date the care changed?

   (c)Whether or not an interim care determination should be made from 21 September 2018.

3. On 9 February 2013 the Department of Human Services – Child Support (the Department) recorded the parties shared the care of the Daughter and the Son and this was confirmed by orders of the Federal Circuit Court of Australia (FCCA) on 29 September 2016 (the 2016 FCCA Orders), which specified the Daughter and Son would live with the parents on a week about basis with changeover to take place at 3.00 pm on Fridays unless otherwise agreed [2].

   [2] FCCA orders dated 29 September 2016 at paragraph 7.

4. An incident occurred on 12 September 2018. The Mother had taken away the Son’s iPad as a disciplinary measure that day. The Son, alone in his bedroom at his Mother’s house, claimed to have inserted two metal darts into a socket on a power board from which he received a slight shock which he described as a ‘tingle’ (the Darts Incident). The Son then left the room, found his Mother and told her what he had done. He told her he was depressed and suicidal because she had taken away his iPad. There is further discussion about the Darts Incident later in this decision.

5. In accordance with the 2016 FCCA Orders, the Son went to stay with his Father the following Friday in the normal manner and did not tell him about the Darts Incident. The Mother sent a handover email to the Father on the Saturday evening advising him of the Darts Incident and asking him not to get angry with the Son.

6. The Father was understandably distressed by the news of the Darts Incident and requested further information from the Mother which was not forthcoming. As a result, the Father instigated contact with various authorities and arranged certain medical appointments. The Son was due to return to the Mother’s care on Friday, 21 September 2018 in accordance with the 2016 FCCA Orders. However the Father made the decision he would not allow the Son to return to his Mother’s care for the foreseeable future as he believed the Mother had not taken appropriate action in dealing with the consequences of the Darts Incident.

7. On 25 September 2018 the Father contacted the Department and advised he had 100% care of the Son since 21 September 2018 and the Son would not be returning to the Mother’s care for the foreseeable future. The Father concluded the Mother had been negligent in her handling of the Darts Incident in not seeking immediate medical attention including mental health services for the Son. On 16 November 2018 the Department made the decision to record the Father as having 100% care of the Son from 21 September 2018.

8. The Mother agreed the care of the Son had changed to 100% to the Father from that date and asserted she had done everything she could to have her Son returned to her care. On 3 December 2018 she lodged an objection to the decision of the Department. That objection was subsequently disallowed by an objections officer on 25 March 2019.

9. Dissatisfied with the outcome of the objection decision the Mother then appealed to the Social Security and Child Support Division of this Tribunal which heard the matter on 21 May 2019. The Tribunal set aside the Department’s decision and instead decided an interim care percentage of 50/50 should apply from 21 September 2018 to 17 January 2019 and the Father should have 100% care of the Son from 18 January 2019 (AAT1).

10. On 19 September 2019 the FCCA suspended the 2016 FCCA orders in relation to the Son spending time with the Mother and instead ordered the Son spend time with the Mother for three hours on Saturday or Sunday every week at a time to be arranged between the parents in consultation with the Son (2019 FCCA Orders).[3]

    [3] 2019 FCCA Orders at paragraphs 1 and 4.

11. The Father was dissatisfied with AAT1 and sought a review of that decision. The matter was heard by the General Division of this Tribunal on 15 October 2019. The Father and the Mother attended in person and gave affirmed evidence.

    THE DARTS INCIDENT

12. The Son had been staying with his Mother in accordance with the 2016 FCCA Orders. On Wednesday, 12 September 2018 the Mother had confiscated the Son’s iPad as a disciplinary measure. The evidence of the Mother at the Hearing was the Son went to his room and had taken two plastic Kmart brand children’s darts with metal tips and inserted them into the power board located on his desk. The Son later came out of his room and said to his Mother: ‘Mum, I’ve done this thing. I put darts into the power-’.

13. Investigations by the Tribunal reveal the outcome of someone inserting metal tipped objects into a power socket on a power board would likely be catastrophic.[4] Those investigations reveal circuit breakers built into power boards and fitted to fuses are designed to deal with an overload, that is, if an amperage drain on a circuit is greater than the circuit breaker is designed to cope with, the power will be cut off. Conversely, if the amperage drain on the circuit is less than the circuit breaker is designed to cope with, it does not cut the power.

    [4] Safe Work Australia, ‘Managing Electrical Risks in the Workplace: Code of Practice’ (February 2016) pages 17- 18.

14. Alternatively, if an earth leakage detector, otherwise known as a safety switch, was installed on the relevant circuit and the metal objects were inserted as the Son described, power to that circuit (and likely the whole house) would have been cut.

15. What actually happened in the Son’s bedroom on Wednesday, 12 September 2018 may never be fully known as only the Son was in the room at the time. The Tribunal considers the possible scenarios include:

    (a)Whether or not suicide was contemplated, the darts were inserted into a socket on the power board and only the plastic ends were touched resulting in no circuit being formed and so no harm done; or

    (b)The Son knew enough of what he was doing, perhaps from viewing a YouTube video (or similar) on the subject or from observing an electrician using testing equipment on a socket, and only inserted the darts into the neutral and earth outlet thus ensuring no harm was done or at worst he may have felt a slight tingle; or

    (c)The darts were not inserted into the socket at all and the Son made up the story of doing so for the purpose of getting back his iPad.

    WHAT DID THE MOTHER DO?

16. As part of her annual professional development, the Mother advised she had dealt with school children who had engaged in self-harm or who talked about suicide. Whilst she was distressed by the Darts Incident she chose not to panic and instead utilised her first-aid skills and experience to ascertain whether the Son had been physically harmed by the incident. The Mother noted she attended to the first-aid needs of the Daughter’s AFL games and regularly had practical first-aid experience.

17. In the Hearing, the Mother stated she had an app on her phone which would measure a person’s heart rate by placing their thumb on a heart-rate sensor. She then proceeded to check the Son’s heart rate using the heart-rate sensor. She determined the Son’s heart rate was ‘a bit elevated’ without identifying what the heart rate was.

18. Noting the electricity supply to the house had not been cut and there were no visible signs of any damage to the property or physical injury to the Son arising from the Darts Incident, the Tribunal concludes the Son’s elevated heart rate may have been caused by shock from the realisation of what he had done rather than shock from the incident itself.

19. The next four or five hours following the Darts Incident were spent in the Mother’s room with the Mother and the Sister talking to the Son about what he had done and why. As she said at the Hearing, they were ‘hanging out’. The Mother stated in her evidence:

    ‘So, I talked to [the Son] for ages about the things concerning him, he stayed in my room and I think [his Sister] stayed in the room as well, and the next night he wanted to sleep in [the Sister’s] room, which is right next to mine anyway.’

    The Mother noted the Son said to her: ‘please don’t tell dad that he’s done this’. The Mother concluded it was not necessary for the Son to be rushed to hospital as a result of the Darts Incident.

20. In accordance with the 2016 FCCA Orders, the Son returned to his Father’s care the following Friday at 3:00 pm in the normal manner. The Mother asked the Son to tell his Father about the Darts Incident explaining it was better to come from him than from her. Nonetheless, the Mother sent a handover email to the Father on Saturday, 15 September 2018 advising him of the Darts Incident and asking him not to get angry with the Son.

21. The evidence of the Mother is had there been any symptoms of an electric shock evident on the Son after the Darts Incident such as unconsciousness, difficulty in breathing or no breathing at all, weak, erratic pulse or no pulse at all, burns to the body or worse still the onset of cardiac arrest, she would have immediately sought emergency medical attention. As the power supply to the house was not cut, and absent any symptoms of electric shock, the Tribunal accepts why the Mother took no such action at the time.

    WHAT DID THE FATHER DO?

22. Following receipt of the handover email from the Mother on Saturday, 15 September 2018 which advised the Father about the Darts Incident, the Father replied on two occasions on Sunday, 16 September 2018 seeking further information about the incident and what if anything had been done as a result. The Mother agrees she did not respond to either of those two emails explaining the severe animosity between the parents was the reason for not doing so.

23. As mentioned above, the Father was understandably concerned by the Darts Incident and more importantly its cause, which from the handover email he understood to be the Son had attempted suicide and had suicidal thoughts. Lacking further and better particulars from the Mother about the Darts Incident and with only the comments of the Son to go on, the Father set about a course of action whereby he sought advice from the police, child safety, his lawyer and medical professionals as to the best way forward for the Son’s immediate and long-term care.

24. The Father decided not to return the Son to the care of the Mother on 21 September 2018 as required by the 2016 FCCA Orders. The Father later notified Centrelink the Son was in his 100% care from 21 September 2018 and the care percentages were adjusted accordingly. The Mother agrees the care changed to 100% to the Father on that date however she disputed the decision of Centrelink to record the change as she had done all she could to have the Son returned to her care in accordance with the 2016 FCCA Orders.

25. The Father has provided a chronology of the actions he took following the Son entering his care on Friday, 14 September 2018. They are as follows:

    (a)Sunday, 16 September 2018: Two emails are sent to the Mother asking when the Darts Incident occurred and what action she had taken to get necessary help for the Son. (As mentioned above the Mother agrees she did not reply to either of those emails.)

    (b)Sunday, 16 September 2018: Phone call to the local police station to seek advice about a course of action for the Son to be kept safe. The Father was advised to call the Department of Child Safety, Youth and Women as the police would not get involved provided the child is safe.

    (c)Sunday, 16 September 2018: Phone call to the Department of Child Safety, Youth and Women to explain the Darts Incident. Father advised to contact the Son’s school guidance officer and Child and Youth Mental Health Services (CYMHS).

    (d)Monday, 17 September 2018: Phone call to QLD Medical Doctors (a local GP clinic). Appointment made for the Son to see a doctor at 5.00 pm that day during which the doctor examined the Son to determine if he was physically okay and to commence a mental health plan. The doctor also referred the Son to North West Community Health Centre.

    (e)Monday, 17 September 2018: Phone call to the Son’s school. Appointment made to speak with the guidance officer at 2:00 pm. The deputy principal of the school attended that meeting during which the Darts Incident was discussed and request was made for the Son’s teacher to be advised so all concerned could keep an eye on his behaviour. The guidance officer also referred the Father to CYMHS.

    (f)Monday, 17 September 2018: Return call received from CYMHS with advice a referral would be required and they would not be able to see the Son until 25 September 2018.

    (g)Monday, 17 September 2018: Phone call to the Family Relationship Advice Line (FRAL). Brief conversation and advised to call back and speak to a family adviser. Subsequently unsuccessful in getting through to a family adviser.

    (h)Tuesday, 18 September 2018: Phone call to Family Relationships Centre (FRC) at [redacted] to enquire about mediation regarding changing the care of the children. Called CYMHS to confirm the Son’s intake on 25 September 2018. Phone call to Northside Family Law Centre to discuss urgent ongoing emergency care for the Son, the 2016 FCCA Orders, Son not wanting to return to the Mother’s care, application to the court to vary and communication with the Mother to notify the change.

    (i)Tuesday, 18 September 2018: Son taken to the emergency Department of Prince Charles Hospital to get immediate care regarding his mental health. The Son is spoken to by a GP and then a counsellor from CYMHS who advised the Mother of the situation.

    (j)Wednesday, 19 September 2018: Email from the Father to the Mother informing the Son had been taken to hospital and of the ongoing care plan initiated by the Father.

    (k)Thursday, 20 September 2018: Phone call to the FRC to arrange mediation. Intake booked for 16 October 2018. Email copy of the 2016 FCCA Orders. Phone call to FRAL. Unable to speak to a family adviser. Exchange of emails between the Father and the Mother disputing the handling of the situation.

    (l)Saturday, 13 October 2018: Email from the Mother to the Father with threats of legal action for not complying with the 2016 FCCA Orders.

26. As can be seen from the above list, the Father initiated a considerable amount of activity in dealing with the Darts Incident and his understanding of its causes. Like so many issues in this case, no one will ever know whether the Father would have gone to so much trouble if the Mother had responded to his requests for further and better particulars about the Darts Incident.

    WHAT DO THE MEDICAL REPORTS SAY?

    QLD Medical Doctors – 17 September 2018

27. QLD Medical Doctors provided a referral for the Son to North West Community Health Centre on 17 September 2018. Attached to the referral was a DASS-21, which was completed, together with a mental health assessment form. DASS is an acronym for ‘Depression Anxiety Stress Scales’. The totals on the DASS-21 form were depression 11, anxiety 15 and stress 13. No explanation was provided as to the meaning of those scores.

1. Part 1 of the form identified the problems as anxiety and family issues coupled with stress. There was no diagnosis associated with the problems identified. Other than listing the Son’s current medications the remainder of the form was incomplete. The medical conditions were described as separation anxiety, Enuresis during the day and allergic Purpura. In particular, the risk assessment section of the form, which deals with suicidal ideation and suicidal intent, was left blank as was the formulation section which deals with, inter alia, depression and anxiety disorder. Part 2 of the form is similarly incomplete. It lists anxiety and stress as the problems but does not provide any goal or plan for review. The mental health review form is signed by the Father, the Son and the attending GP.

2. The Tribunal notes that less than a week after the Darts Incident, which supposedly arose because the son was depressed and suicidal, the mental health assessment form makes no mention of depression or suicidal thoughts notwithstanding the form provides for that.

   CYMHS – 26 September 2018

3. CYMHS wrote to the Father and the Mother on 26 September 2018. [5] The salutation on the letter is to the Father alone and not to the Mother and the Father. The letter reports on an appointment with the Son the previous day to discuss the Son’s difficulties and to consider what support services could be offered or recommended. The second paragraph of the letter begins with: ‘… you identified your primary concerns across several domains including’. The concerns listed were the Darts Incident, a four-month history of reported suicidal ideation and depressed mood and the Son refusing to return home to his Mother’s care. What is not clear to the Tribunal is who is referred to when it says ‘you’. As the salutation on the letter is to the Father the Tribunal concludes the reference to ‘you’ is to the Father.

   [5] T9 Child Mental Health Letter dated 26 September 2018.

4. The third paragraph of the letter identifies the issues discussed at the appointment which included the Son being encouraged and supported to achieve his academic and athletic pursuits, feeling safe to talk to his parents or counsellors if he was feeling emotionally distressed and unsafe and the Father seeking legal advice regarding the Son staying in his full-time care. The Tribunal finds it strange the Father would discuss seeking legal advice regarding the Son in the Son’s presence if in fact that happened as the letter asserts.

5. The fourth paragraph of the letter notes the Son is not willing to engage in counselling at that time and does not pose any identified risk to himself and currently remains safe in his father’s care. The fifth paragraph offers the names of three recommended therapists who may be able to help the Son through his difficulties.

6. Again the Tribunal notes this letter makes no mention of depression or suicidal thoughts other than as reported by the Father.

   Prince Charles Hospital Emergency – 18 September 2018

7. The treating doctor’s report identifies the Son was seen at 6:35 pm and discharged to home at 8:53 pm the same day with no medication prescribed. This report does include a primary diagnosis of suicidal ideation. The Tribunal understands this term refers to thoughts that life isn’t worth living, ranging in intensity from fleeting thoughts through to concrete, well though-out plans for killing oneself, or a complete preoccupation with self-destruction.[6] Consultations were done by a social worker and the triage and acute care team.

   [6] Faye Scanlan and Rosemary Purcell, ‘MythBuster: Suicidal Ideation’ (Report, National Youth Mental Health Foundation headspace, 2009).

8. The emergency department clinical record attached to the report states the presenting problem is the Darts Incident and notes the patient (the Son) presents as normal albeit talking slowly and only giving some eye contact. The Son denies ingesting any tablets and the Tribunal notes this report is six days after the Darts Incident occurred. The hand written notes on the clinical record state, inter alia, the Son says he has had suicidal thoughts since mid-last term and thinking ‘what’s the point in living if mum doesn’t love.’ Another comment from the Son is recorded as ‘They’ll put you in a medical home’ and he tried counselling but didn’t open up. There are other comments in the hand written notes that do not appear to be related to the Darts Incident.

9. The typed notes from the social worker record the Son as providing input and eye contact and appeared to be in a flat mood. There is no further diagnosis other than suicidal ideation. There is a reference to comments by the Father as follows:

   ‘Father provided minimal details regarding marriage breakup which has resulted patient in 50/50 care with both parents. Father states because of this presenting situation he does not feel he is going to return the patient to his mother on Friday which would be the usual changeover. Father states he feels he cannot do this until the patient has commenced some therapy. Father asking what the process is to prevent handover. Father states he has informed QPS & Child Safety of his concerns believing mother has not acted appropriately by informing father immediately of attempted suicide and arranged MH [mental health] support.’

10. The social worker explained to the Father they are unable to provide legal advice and he should discuss the matter with a legal professional. The social worker acknowledged mental health have conducted a review and a referral has been made to CYMHS suggesting family therapy or parental separation counselling through Child Aware may be beneficial for the Son.

11. Bearing in mind this report is based on an examination conducted eight days after the Darts Incident and, other than confirming the diagnosis of suicidal ideation, without indicating whether that was determined based on comments by the Son or the Father, it appears to the Tribunal the Father was primarily concerned with ascertaining the process to prevent handover in accordance with the 2016 FCCA Orders of the Son to the Mother.

    Open Arms – Veterans & Families Counselling Report – 6 November 2019

12. This report was provided to the Tribunal during the Hearing and a clearer a copy was provided afterwards. The report records nine sessions between 30 October 2018 and 26 February 2019 of which one was cancelled and one is recorded as a no-show. This report does provide a different slant on the thoughts and views of the Son following the Darts Incident.

13. The presenting issues are recorded as the Father seeking counselling for the Son due to a recent suicide attempt while in the care of the Mother. The Son reports he wants no contact with his Mother at all and presented closed body language when discussing her. When discussing time with his Father, the Son’s body language opened up and he reported feeling safe and happy noting he felt he could discuss anything in front of his Father.

14. Importantly, the presenting issues include the Father saying he wants the Son to be able to open up to someone and he would like the Mother to be part of the counselling if the Son agrees. He spoke about the importance of having both parents in the Son’s life and he wanted the Son to be reassured it would be the Son’s decision whether and when his Mother would be involved in the counselling.

15. A Strengths & Difficulties Questionnaire (SDQ) was completed by the Father and recorded the Son’s emotional symptoms and hyperactivity as normal and his conduct problems as borderline.

16. The Son reports enjoying school, in particular, maths, athletics and sport. He is happiest when he is active and outside rather than inside when he plays with his iPad. When discussing his Mother the son did not (emphasis added) report wishing to never speak to her again noting he wants space from her stating she yells (presumably at him). He did become upset when discussing her coming to his school and trying to take him to her house stating she tries to bribe him by offering to buy him things. The Son reports having supportive friendships at school and looking forward to the start of high school the following year.

17. The care plan begins with a DASS assessment recording depression and anxiety as normal and stress as mild with an overall assessment of low risk. The Tribunal notes these scores appear to be significantly better than those recorded on the report of QLD Medical Doctors dated 17 September 2018. As the Son has been assessed as low risk, there is no Risks & Safety Plan included in the report.

18. Goals and strategies recorded to assist the Son in dealing with his problems include assisting him to process and express emotional responses and to develop and maintain healthy relationships with the Mother and Father. To do this the Son is to adopt strategies around arousal reduction, identifying emotions and developing strategies and techniques to express his feelings towards his parents. It is expected the Son would then be able to identify his emotional responses more effectively and express and control these in healthy ways having the confidence to be able to express himself to his parents and in doing so spend more time with his Mother.

19. The last of the seven sessions was attended on 26 February 2019. By this time, five months had elapsed since the Darts Incident. The Son presents as low risk with normal scores on his DASS and SDQ assessments. The only issue appears to be he wants some time away from his Mother until he feels confident about being with her again on an ongoing basis such as contemplated by the 2016 FCCA Orders.

20. Absent a comprehensive report by a suitably qualified medical practitioner, tying together the various reports discussed above, the Tribunal concludes whilst the son may have had suicidal ideation at one time culminating in the Darts Incident, the real issue for him is his Mother set behavioural parameters, as every parent should do, particularly around the use of his iPad. When the iPad was taken away as a disciplinary measure the Darts Incident occurred.

21. As discussed above, it is conceivable the Son did not insert the metal tipped darts into the power board at all, rather, he told his Mother he had done so in order to get his iPad back. If he had inserted the darts into the power socket as he asserts, the likelihood of catastrophic consequences were high. Instead the Son was not injured and power was not cut to the Mother’s home. This is borne out by the evidence of the Father at the Hearing when asked about the Son’s behaviour and demeanour over the weekend following the Darts Incident. The Father confirmed the Son seemed normal and healthy and it was not until the handover email arrived from the Mother that any suggestion of suicidal ideation arose for him.

    DID THE MOTHER DO ENOUGH?

22. Where a care arrangement is in place such as determined by the 2016 FCCA Orders, and one party refuses to comply with those orders to the detriment of the other party, section 51 of the Assessment Act provides, inter alia, if the person who has reduced care of a child has taken reasonable action to ensure the care arrangement is complied with they are entitled to an interim care determination equivalent to that which applied prior to the change of care.

23. The AAT1 decision accepted the Mother took reasonable action to ensure the care arrangement contemplated by the 2016 FCCA Orders was complied with. This Tribunal accepts that decision. It is also agreed by all parties the actual care of the Son prior to 21 September 2018 was consistent with the 2016 FCCA Orders, that is, 50/50 care. However, the Father asserts there are special circumstances arising from the Darts Incident in relation to the Son, which precludes the Mother from obtaining an interim care determination.

24. If special circumstances exist in relation to a child, subsection 51(5) of the Assessment Act provides single percentage of care rather than two percentages of care may be determined based upon the actual care taking place. The term ‘special circumstances’ is not defined in the Assessment Act and is only to be exercised in unusual cases. The Guide, in particular Chapter 2.2.4, provides examples of unreasonable or inappropriate behaviour as follows:

    ·violence towards the child;

    ·exposing the child to family violence;

    ·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 the daily needs for food, shelter, hygiene etc.

25. The last point above, that is, neglecting the child’s basic needs such as withholding essential medical care, is the basis upon which the Father asserts there are special circumstances in relation to the Darts Incident which preclude the Mother from obtaining an interim care determination. The Father claims the Mother failed to provide the Son with appropriate medical care following the Darts Incident.

26. As discussed above in detail, the Mother, who is appropriately trained in first-aid and dealing with children who have suicidal ideation, determined the Son was not physically harmed and power was not cut to the house by the Darts Incident. Accordingly, she concluded it was not necessary to take the Son for emergency medical treatment. Further, the Father made no observation the Son had been injured when handover occurred at 3:00 pm the following Friday and it was not until receiving the handover email from the Mother on the Saturday evening the Father was even aware of the Darts Incident. The Mother concedes the wording of the handover email could have been better. Her failure to respond to the requests by the Father for further and better particulars of the Darts Incident only compounded the issue and left the Father understandably very concerned for the safety of the Son.

27. That said, and notwithstanding the various actions taken by the Father following receipt of the handover email as set out above, the Father did not seek medical attention for the Son until the following Tuesday, six days after the Darts Incident. The various medical reports submitted by the Father and discussed in detail above do not support the view the Son was at risk of suicide notwithstanding his admission he had suicidal thoughts prior to the Darts Incident. The medical reports support the view the Son was unhappy with the Mother because she sometimes yelled at him and had taken away his iPad and he wanted limited contact with her until he was ready to resume 50/50 care.

28. With the benefit of hindsight the Mother may now be of the view it would have been best to take the Son to the emergency department of a local hospital immediately after the Darts Incident to confirm her observation he was unharmed.

29. In any event, the Tribunal finds the failure of the Mother to take the Son for emergency medical treatment immediately following the Darts Incident is not unusual and does not amount to special circumstances for the purposes of subsection 51(5) of the Act because:

    (a)the mother is trained in first-aid;

    (b)the Son was not physically harmed;

    (c)power was not cut to the house;

    (d)the medical reports obtained by the Father do not support the view the Son was in a high-risk situation; and

    (e)Notwithstanding the contents of the handover email, the Father did not seek emergency medical treatment for the Son until three days after the email; six days after the Darts Incident.

30. Accordingly, the Tribunal finds an interim care determination of 50/50 shared care applies for the interim care period.

    WHEN DOES THE INTERIM CARE PERIOD COMMENCE?

31. As mentioned above, the Respondent contends and the Tribunal agrees the 2016 FCCA Orders amount to a care arrangement for the purposes of section 51 of the Assessment Act. Those care orders provide for a 50/50 care arrangement and they were complied with up to 21 September 2018 when the Father should have returned the son to the Mother’s care.

32. Accordingly, the Tribunal finds the interim care period commences on 21 September 2018 in accordance with AAT1.

    WHEN DOES THE INTERIM CARE PERIOD END?

33. Where a court order is not being complied with, an interim care period will end on the later of:[7]

    [7] Child Support (Assessment) Act 1989 (Cth) s 53A.

When the interim care period can end	How the conditions apply
a.   At the end of the 52 week period starting on the day the court order commenced	The 2016 FCCA Orders are dated 29 September 2016. Therefore, 52 weeks from that date is 28 September 2017.
b.    The end of 26 weeks after the day the care changed – if the person with increased care is not taking responsible reasonable action to participate in an approved dispute resolution process.	The care changed on 21 September 2018 when the Father failed to return the son to the Mother in accordance with the 2016 FCCA Orders. Twenty-six weeks from that date is 21 March 2019.
c.     The end of the 14 weeks after the day the person with increased care started to take continuous reasonable action to participate in family dispute resolution – if the 14 week period ends before the end of the 26 week period referred to above.	On 12 October 2018, the Father agreed to attend mediation organised by the Mother. Mediation occurred on 15 November 2018 and an agreement was reached. For all intents and purposes 12 October 2018 is the date the Father started to take continuous reasonable action to participate in family dispute resolution. Fourteen weeks from that date is 17 January 2019.

1. As can be seen from the above the 52 week period does not apply because it ends almost a year before the care changed. On 12 October 2018 the Father agreed to attend mediation organised by the Mother which marks the start date for the Father taking continuous reasonable action to participate in family dispute resolution. Accordingly, the 26 week period does not apply and instead the 14 week period applies thereby determining the end date of the interim care period to be 17 January 2019 in accordance with AAT1.

   CONCLUSION

2. The decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

.....................................................................

Associate

Dated: 12 February 2020

Date of hearing:

15 October 2019

Applicant:

In person, self-represented

Solicitor for the Respondent:

Ms Donna Smith

Department of Human Services

Other Party:

In person, self-represented