MRLH and Child Support Registrar (Child support second review)

MRLH and Child Support Registrar (Child support second review) [2020] AATA 4727 (26 November 2020)
Division:GENERAL DIVISION
File Number(s): 2019/6908
Re:MRLH
APPLICANT

AndChild Support Registrar
RESPONDENT

AndYTSS
OTHER PARTY

DECISION
Tribunal:Ms A E Burke AO, Member
Date:26 November 2020
Place:Melbourne

The Tribunal affirms the decision under review.
…………….[sgd]………………
Ms A E Burke AO, Member
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 – whether interim care period applies – where family court order regarding care of child in force – child refusing to participate in contact – whether reasonable action to ensure compliance with care arrangement was taken – whether special circumstances existed – commencement of an interim care period – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Confidential and Social Security Appeals Tribunal and Anor [2010] AATA 1.
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Secondary Materials
Australian Government, Family Assistance Guide, Version 1.202 (20 March 2018)
Australian Government, Child Support Guide, Version 4.31 (3 April 2018)
REASONS FOR DECISION
Ms A E Burke AO, Member
INTRODUCTION

MRLH is seeking a second-tier review of the care determination of the Child Support Registrar (the Registrar) that from 30 December 2018 he had 0% care of his child.
The application was heard on 29 September 2020 by telephone. MRLH and the other party, YTSS were respectively self-represented. Ms Maleah Underhill, a seconded lawyer in the Freedom of Information and Litigation Team, Department of Human Services appeared for the respondent, the Registrar.
BACKGROUND
MRLH and YTSS are parents of a child now aged 17. On 13 June 2013 Court Orders were made which provided that the child have regular contact with both parents. The parties have always accepted the Registrar’s assessment of the percentage of care as being 33% to MRLH and 67% to YTSS.
On 10 January 2019 an Interim Intervention Order was made in the Warrnambool Magistrates’ Court against MRLH. The Order prohibited him from committing family violence, contacting or communicating, approaching or remaining within 5 meters; and/or to go within or remain within 50 meters of the home of his child. The order provided MRLH may:
(a)do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or
(b)communicate with a protected person through a lawyer or mediator; or
(c)arrange and/or participate in counselling or mediation: BUT ONLY IF the respondent does not commit family violence while doing so.
On 20 March 2019 MRLH was advised by the Registrar that his child support percentage had been updated to 0% based on advice received from YTSS on 21 January 2019 that their child had been in her care 100% of the time since 30 December 2018.
On 20 March 2019 MRLH lodged an objection, with the Registrar, to the decision to change his care percentage to 0%.
On 9 May 2019 an Intervention Order against MRLH, which he agreed without admission in the same terms as the Interim order, was made at the Warrnambool Magistrates’ Court which expired on 9 November 2019.
On 6 June 2019 the Registrar advised MRLH they had disallowed his recent objection to the decision made on 20 March 2019 to reflect YTSS had 100% and he had 0%. The reason for the decision was as follows:
REASONS FOR THE DECISION
YTSS reported a new care change in the care arrangements for the child on 21 January 2019 effective 30 December 2018.
During our discussions with MRLH and YTSS, they have confirmed YTSS has full care of the child, however MRLH is stating YTSS is withholding care, and prior to this care was in accordance with court orders dated 13 June 2013.
The child support assessment may continue to be based on the court ordered care dated 13 June 2013, during an interim period due to the care of the child being withheld from MRLH.
In order for us to continue to reflect the parenting plan dated 13 June 2013, for an interim period, we must be satisfied that MRLH has taken reasonable steps to ensure that the court ordered care is complied with.
In accordance with the correspondence provided by MRLH that consisted of an application and summons for an intervention order, the interim intervention order and the letter from his lawyers to initiate court proceedings, we are satisfied that he has taken reasonable steps to ensure the court ordered care dated 13 June 2013 is complied with.
However, we have discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.
We will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed.
·A police report detailing violent behaviour towards a child or the person with increased care,
·An intervention order preventing contact with the child or person with increased care, or
·Statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.
With the evidence that has been supplied being the intervention order made by Victoria Police and the Victim Impact statement from the child, we are satisfied special circumstances exist and we have therefore determined not to apply an interim care decision.
On 9 July 2019 MRLH requested a review of the Registrar’s decision by the Social Security and Child Support Division of this Tribunal (AAT1 or First Tier) on the basis that:
I was wrongly accused by Objection Officer N of assaulting my daughter. If N had correctly read my Daughters statement to Police she would have realised that my Daughter actually admits assaulting me. My Daughter admits in her statement that "Dad did not hit me at all" and I was not scared" at the time of our argument. My Daughter was taken to the Police station and made to give a statement by her vindictive, manipulating mother. The Police had no choice but to apply for an intervention order which i eventually consented too because i did not have the money to contest the issue. Clause 9 of the IVO still allowed me contact as per current Family Law Orders dated 13/6/2013. However the Mother has refused to abide by these Final Orders and is denying me access to my Daughter. The mother immediately applied to CSA for a change in percentage care. CSA, as usual applied their anti-men agenda and believed the Mothers lies.
On 16 September 2019 the AAT1 affirmed the decision under review. The Presiding Member at AAT1 stated:
In this case the tribunal was satisfied that MRLH was taking reasonable action to have the court order complied with until at least April 2019 and that an interim care order could therefore be made.
The Act provides that, if special circumstances exist in relation to the child, a single percentage of care - rather than two percentages of care - may be determined based upon the actual care taking place. The meaning of special circumstances is not defined in the Act, but is described in the Guide, which states:
Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.
MRLH is submitting that he did not physically assault the child and that she is now trapped into a lie about what happened because she made a statement to the police with these allegations. The tribunal accepted that it is feasible that a teenager could fabricate a story about their parent acting in an abusive manner. However the fact is that the child did make a statement to a police officer and went on to make a victim impact statement is not typical behaviour and goes beyond "acting up".
MRLH said that on the night of the incident she was behaving badly and his response was appropriate. MRLH has only denied physical assault but has not denied verbal assault. MRLH’s own evidence is that the police have decided to charge him for assault; a decision that would not have been made lightly.
It is clear from the evidence provided that the child has not wanted to have any contact with MRLH since 30 December 2018 and it is more likely than not that this is due to her being fearful of him.
The tribunal decided that it was more likely than not that an incident occurred on 29 December 2018 where MRLH behaved in an aggressive manner towards the child and as a result she has not wanted to return to his care. The tribunal decided that special circumstances exist such that an interim care period should not apply.
On 22 October 2019 MRLH requested a review of the AAT1 decision by the General Division of the Tribunal (Tier 2 or second tier) on the basis that:
clearly paid no attention to the documented information i supplied in my appeal. She interrupted me on several occasions during my presentation. Definite Misandrist overtones from member …. during appeal hearing. Can I please have a Male oversee the appeal process this time.
On 29 October 2019 MRLH’s lawyers advised the following:
We confirm the advice from the prosecution that the unlawful assault matter has been withdrawn upon you providing a criminal statement to police.
This is a very pleasing and sensible result and it is hoped that the parties can put this incident behind them and move on and hopefully rebuild family relationships.
This concludes all your current matters with this firm and we shall seek to close all files.
ISSUE FOR DETERMINATION
The issue in contention is whether an interim care period should apply.
THE LEGISLATION CONTEXT
The relevant legislation, the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act), contains a complex and confusing scheme for the determination of the pattern of care for a dependent child. The scheme determines the percentage of care, in this case, for each parent. The percentage of care is generally determined by the actual care each parent is providing the child and often guided by a care agreement. In this case, the original determination of care was based on the court orders issued in 2013.
Section 51 of the Assessment Act provides that an interim care period can be determined if care agreements such as courts orders are not being complied with, and the parent who is having reduced time with their child is taking reasonable steps to enforce the order. Additionally, the Assessment Act provides that if special circumstances exist a single percentage of care determination may be made based upon the actual care being taken and not based on the care agreement.
The Tribunal is assisted by the Guide to Social Policy Law: Child Support Guide (the Guide). The Guide provides assistance to those who administer the Act. While it is not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guide provides the following outline of when an interim determination can be made:
When can an interim determination be made?
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. If an interim care determination is made, the Registrar will determine 2 percentages of care for each party under section 51 of the CSA Act. The first percentage is the amount of care the person should have of the child under the care arrangement. The second percentage is the amount of care the person actually has of the child. The first percentage of care will apply during the interim period, which means child support (and FTB, if relevant) will continue to be assessed in accordance with the care arrangement for the interim period. The length of the interim period will depend on a number of factors. The second percentage of care will apply after the interim period has ended.
Generally, there must be a care arrangement in place that is being followed at the time the care changed, in order for an interim determination to be considered. If a care arrangement exists but the parents were not adhering to the care arrangement prior to the disputed care change occurring, an interim period will not apply.
The provisions relating to the determination of the percentage of care of a child are contained in Part 5, Division 4 of the Assessment Act. Section 50 of the Assessment Act states:
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) both of the following apply:
(i) the determination of a responsible person's percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person's percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 applies in relation to the responsible person.
Section 54A(1) of the Assessment Act provides for how the actual care, and extent of care, is to be calculated:
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4) This section does not limit section 50, 51, 53B or 54.
Section 51 of the Assessment Act states:
(1) This section applies if:
(a) the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and
(b) a care arrangement applies in relation to the child; and
(c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d) a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
...
(5) If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.
(6) The single percentage of care is to be:
(a) for a determination under section 49 - 0%; or
(b) for a determination under section 50 - a percentage that corresponds with the actual care of the child that the registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.
The term “reasonable action” is not defined in the Assessment Act, however the Guide at Chapter 2.2.4 provides the following examples of reasonable action:
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.
This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:
a. a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative,
b. documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or
c. documentation of police or court action.
The guide also outlines the reasonable action that must be taken by the parent who has increased care of the child and states:
Taking reasonable action to participate in family dispute resolution
The person with increased care must take continuous reasonable action to participate in family dispute resolution in order for a shorter interim period to apply, and to avoid a later interim period applying. Reasonable action means initiating or participating in family dispute resolution with an accredited family dispute resolution practitioner within a reasonable period of the change of care day (subsection 53A(3)). If the action did not occur within a reasonable period of the change of care day, the Registrar may determine that reasonable action started on a later date.
It is up to the Registrar to determine what is considered a 'reasonable period' in which the reasonable action started, and it will depend on the individual circumstances of each case. If the person with increased care does not take reasonable action within a reasonable period, the length of the interim period will be determined from the day the person began taking reasonable action, rather than the change of care day.

The guide provides guidance on when an interim period begins and states: “The interim period begins on the first day that the actual care of the child ceased to correspond with the care provided for under the care agreement.”
The term “special circumstances” used in section 51(5) is not defined in the Act. The Guide, at 2.2.4, sets out special circumstances where an interim period does not apply and states:
The Registrar has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person’s own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.
The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed. Examples of unreasonable or inappropriate behaviour of the parent include:
·violence towards the child,
·exposing the child to family violence (within the meaning of section 4AB of the FL Act),
·violence towards the person with increased care,
·directly involving the child in a criminal act,
·exposing the child to alcohol, drugs or substance abuse,
·substantially failing to comply with legal schooling requirements, and/or
·neglecting the child’s basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.
EVIDENCE
The child’s statement to the Police at Stawell Police station on 31 December 2018 at 2:45am, which states (errors in the original):
2.I am making this statement at Stawell Police station in the presence of my mother…..
3.Both my parents have been separated for the last 16 years and i live with my mother while my dad lives at another address.
4.On Friday the 28th of December 2018, my dad drove … and me from …. to halls gap to spend some time together over the school holidays.
5. … and I go to the same school and we've been friends for over 10 years.
6.We got there, dad had started to drink beer at around 6pm and everything was fine.
7.On Saturday the 29th December 2018, at approximately 8pm at night, dad came into the bedroom yelling at me to clean up my bathroom because I left 2 towels on the bathroom floor. He was also upset that … and I had used up all the hot water. … was sitting on the bed at the time and she saw what happened.
8.At the time, I was standing in the door way and dad grabbed me on the shoulder by the jumper and dragged me out of the bedroom and into the bath room. I told him at least twice to let me go but he wouldn't so I used my left hand and punched him in the middle of his chest. He did not feel a thing and didn't react to my punch, instead pulled me closer to him then raised his right fist over me as if to hit me. He paused for a moment, but he didn't hit me. I was wondering he was going to hit me or not but I didn't feel scared at the time but I was scared afterwards.
9.Dad did not hit me at all. I do not have any bruises on me. He then told me to suck a cock and I went into my bedroom where ….was
10.Tonight at around 8:45pm, dad got angry at …. and I because we did not cook the pizza correctly. Dad had been drinking again and called us cunts, dumb and told us to pull our heads in.
11.I don't know the address of the place in Halls Gap where we had been staying because Dad never told us.
12.Dad told us to get out of the house, to fuck off and we took out personal belongings and walked down the street and waited outside the police station.
13.At around I0pm, 2 police officers came to the police station, picked us up and dropped us at the Stawell Police Station.
14.I waited with … at the police station for my mum and … (step dad) to come,
The child’s Victim Impact Statement of 19 February 2019, which states (errors in the original):
Following the assault, by my Dad, I was very upset, I was crying and shut myself in the bedroom with my friend and I were sharing in holiday house dad had rented for the holiday, I stayed there all night with my friend, … , to be away from Dad because I was scared of seeing him again.
During the next day, .. and I stayed in the bedroom for most of the day. Dad had gone out but I did not know when he would be back and I was worried he would still be angry with me. Both … and I were frightened of what would happen if Dad saw me.
When he did come home … and I were worried about what might happen so we kept our distance from him. Eventually we needed dinner and he was disinterested in making anything and told us to get something ourselves. We made pizza which caused the next outburst because we had not done it the way he wanted, … and were upset and frightened by what he said and we left the house to go for a walk because we were too scared to stay there. We were so fearful of how Dad was behaving I rang mum to come and get us. When we got home from the walk much later, it was getting dark and he had locked us out, I was scared he would not let us back in and we would not be able to get our stuff. Eventually he let us in and when we tried to leave with our things he became abusive again. … was crying and frightened about what would happen next. Finally he let us leave and we went to the police station to wait for mum.
Now I am very scared about what will happen when I go to Dad's for my regular access which is fortnightly, I do not want to see him because he always yells and says horrible abusive things to me so I have not been to stay with since this all happened over the holidays.
I had trouble steeping for the first few weeks and I still have trouble sleeping some nights. I am scared I will see him in the street because he lives next to school.
Dad is still trying to call me and text me. …. answered one of these calls and he was very abusive to her, we were both so scared that we would not leave school until mum came to get us.
…. was very upset following the incident in Halls Gap and although she seemed ok at the time she was in tears when we got home and she was telling her mum what had happened She is also worried she will see him in the street.
A letter form MRLH’s lawyers to YTSS of 7 February 2019 requesting the recommencement of care with his child. The letter states:
We act for MRLH in Family Law matters in respect of the child …..
We are aware there is a current Family Violence Interim Intervention Order in place that was made on the 21^st of January 2019, returnable on the 21^st of February 2019.
The application was brought following an argument between the child and our client on the 29th of December 2018 that resulted in you unilaterally collecting the child from my client and failing to make her available for the remainder of the holiday period.
My client instructs that the child is a strong-willed young person and he could appreciate at the time of the court hearing on the 21^st of January 2019 that she needed some time and space. For that reason he consented to a longer than usual adjournment in anticipation that once things had settled, the parties would return to the previous arrangement as prescribed by the Family Law orders of the Federal Circuit Court dated 1 of June 2013.
As the holiday period has now concluded, our client is expecting the child spend time with him in accordance with order 5(i) commencing 14th of February 2019.
Our client also acknowledges the difficulty for both of you in parenting a teenager that is expressing rebellious behaviours in the context of parental conflict. He suggests that the Family (including the child) would benefit from Family Therapy and we have made enquiries of services in this regard and shall advise. We seek your consent for the child and confirmation that you also shall participate in Family Therapy in an effort to co-parent more effectively and manage Lacey's challenging adolescent behaviours.
We wish to remind you of your obligations and responsibilities under the Federal Circuit Court orders to promote and encourage the relationship between the child and her father. The Family Law orders protect the relationship between the child and the time spent with' parent and it simply will not be accepted by a court that a child of …’s age can choose for herself whether she has a relationship with that parent.
We put you on Notice therefore that if the child does not attend for her time with my client on the 14th of February and every alternate weekend thereafter as stated in the orders, he has no option but to enforce these orders in a court exercising Family Law jurisdiction by way of Recovery and we hold instructions to proceed in that event.
An email from YTSS to MRLH’s lawyers dated 23 February 2019, in response to a request to participate in family mediation.
I refer to your letter dated 7 February 2019 regarding our daughter….
I think that mediation may be of some benefit as long as your client and I are in separate rooms during the process.
Following the assault on … by your client on the 30/12/2018, Police obtained an intervention order against him on her behalf. The child is refusing to see her father because she feels unsafe. I am not breaching the Family Law orders dated 13th June 2013 as I have serious concerns for … safety in her father's care.
A letter form MRLH’s lawyers to the Registrar dated 11 April 2019, which outlines the reasonable steps MRLH is taking to recommence care with his child. The letter states:
We confirm that there are final Family Law orders in place of the Federal Circuit of 13 June 2013 whereby the child .. lived with the mother and spent significant and substantial time with the father pursuant to the Family Law Act 1975.
There was an incident between the child and the father on the 29th of December 2018 whereby the mother elected to collect the child whilst she was spending time with the father and thereafter refused to make her available pursuant to the orders.
The police made an application for a Family Violence Safety Notice on the basis of the incident. This application did not displace the Family Law orders still in force. The mother refused to make the child available.
On the 21st of January 2019 the matter was listed in Warrnambool Magistrates Court and an interim order was agreed. The interim order still allowed for contact to occur under the Family Law orders. The mother instructed through the police prosecutor that the child was not wishing to spend time with the father.
Upon instructions, the writer wrote to the mother of the child and agreed that time would not be enforced during the school holiday period but that our client would again seek to commence spending time with the child at the commencement of the academic year. Under the orders, our client was due to spend time with the child on the 14th of February 2019, this did not occur. The mother refused to abide by this request and no further time occurred.
In response to the request for time the mother sent an email on the 23rd of February whereby she maintained that the child was at risk and so she was not in breach of the orders.
When the matter returned to court on the 21st of February 2019, as the Family Law orders were not being complied with by the mother and the mother maintained that the child was at risk, the Family Law orders were suspended by consent and by order of the court until the 11th of April to allow the mother the opportunity to bring an application in the Federal Circuit Court to vary the orders, with a circuit commencing in Warrnambool on the 25th of March 2019.
Under instruction I again wrote to the mother seeking time with the client pursuant to the orders on behalf of our client.
The mother has again refused to make the child available.
The mother failed to bring any application. On the 11^th of April 2019 the suspension of the Family Law orders under s.68R of the Family Law Act came to an end.
Our client has been seeking time with the child since time was unilaterally suspended by the mother. In the course of facilitating access he has consented to the child remaining in the mother's care for the duration of the summer holiday period from the 29th of December and for the suspension of the Family Law orders under s.68R of the Family law Act from the 21st of February to the 11th of April 2019. Our client has at all other times sought to have the child in his care pursuant to the orders and the mother has unilaterally withheld the child.
A letter to the child from a law firm dated 14 May 2019, in respect of the Intervention Orders:
We refer to your Intervention Order matter which was listed before the Warrnambool Magistrates' Court on 9 May 2019.
As discussed with you during our telephone conversation on 8 May 2019, we indicated to the Court that you were supportive of the Intervention Order as you do not want to spend time with or communicate with your father. Accordingly, the Warrnambool Magistrates' Court granted a Full Final Intervention Order in place for your protection. We enclose a copy of this Intervention Order for your information and retention. We suggest you keep this Intervention Order in a safe place. We advise that this Intervention Order will remain in place until 9 November 2019, In the event that your father breaches this Order, we strongly suggest that you contact Victoria Police.
CONTENTIONS
Fundamentally, for an interim care decision to be made, the Tribunal must be satisfied that MRLH took reasonable action to ensure the care arrangement was complied with, and that there are no special circumstances that otherwise weigh in favour of an interim care decision not being made.
There was no dispute between the parties that Court Orders made in 2013 formed the care agreement for the child; and that the child had spent 67% of her time with YTSS and 33% with MRLH until 30 December 2018.
Reasonable action
MRLH contended he had taken all reasonable action to ensure the care arrangement was complied with through the following actions:
·by having inserted in the IVO taken out against him provision for him to continue to have access to his child in accordance with the court orders;
·that he had initiated contact through his lawyer to recommence care arrangements;
·that he had allowed his child some space over the school holidays in 2018/19 but had fully expected his child to resume visits when school commenced in 2019;
·he had initiated contact through his lawyer to arrange for family mediation with his child and YTSS, but YTSS had never confirmed their child would be present during medication so medication had never taken place;
·he had not initiated any further proceeding in the family court to enforce the court orders as it would be a costly futile excise given his child’s age; and
·that YTSShad taken reasonable action to ensure the care agreement was complied with.
YTSS contended she had always been willing to participate in family mediation, but she would not consent to be in the same room as MRLH.
The Registrar accepted that MRLH had engaged a lawyer to resume care of his child in accordance with the court orders and subsequently had reached agreement with YTSS to suspend the court orders until 11 April 2019 to allow a variation of the orders to be sought.
The Registrar drew the Tribunal’s attention to Confidential and Social Security Appeals Tribunal and Anor [2010] AATA, where Deputy President Hack stated:
As it seems to me the issue of whether a child has been made available is not one capable of determination by reference to any overarching principles. It will invariably be a question of fact to be determined by reference to the particular circumstances.
In their original Statement of Facts, Issues and Contentions the Registrar submitted that consistent with published policy guidelines, the Registrar agrees with the findings of the AAT1, that MRLH was taking reasonable action to facilitate the resumption of care of the child pursuant to the Court Orders.
Special circumstances
There was no dispute between the parties that an incident occurred between the child and MRLH when they were holidaying in Halls Gap. There is dispute between the parties as to the severity of that incident; and whether it amounts to special circumstances, in accordance with the guidelines, to weigh in favour of a care agreement being made.
MRLH disputed that there were special circumstances to warrant not granting an interim care period. He maintained he had never assaulted his child; and that this was borne out by his child’s Police statement, which clearly indicates that during the incident “that she was not scared of him. … but he didn't hit me. I was wondering he was going to hit me or not but I didn't feel scared at the time but I was scared afterwards. Dad did not hit me at all. I do not have any bruises on me.”
MRLH contended that on the advice of his solicitor he had given his child some time over the holidays to cool down and had then sought to resume his normal pattern of care. He said that he had wanted to contest the IVO but, on his lawyer’s advice that his child would have to be a witness in the proceedings, he determined not to put his child through this very traumatic experience. He said that his lawyer had instead ensured the IVO had a provision which allowed him to do anything permitted by a written agreement about child arrangements. He has since regretted not contesting the IVO.
MRLH contended that the allowance under the IVO for him to have contact with his child indicated that the court had accepted he was not a risk to his child.
MRLH maintained there is no evidence his child does not wish to have contact with him.
MRLH contended that as the police have dropped all charges against him, this was clearly an indication that he did not assault his child and had not behaved in an aggressive manner towards his child.
YTSS maintained that special circumstances exist which warrant not granting an interim care period. She stated that MRLH assaulted their child while the child was in his care at Halls Gap. She said that their child is scared of MRLH, as he has been abusive and aggressive towards the child. She also said that she has tried to encourage the child to recommence a relationship with MRLH, such as going out to lunch; but the child is not interested in seeing MRLH.
The Registrar contended that special circumstances exist based on the available evidence, which identifies that:
a. an incident between MRLH and the child occurred on 29 December 2018;
b. the child made and signed a statement to police on 31 December 2018 alleging physical and verbal abuse by MRLH;
c. subsequently, on 19 February 2019, the child made a Victim Impact Statement in respect of how the 29 December 2019 incident had affected the child in the intervening period and ongoing;
d. following an application for an intervention order against MRLH, on 21 February 2019 an interim intervention order was made against the MRLH for the protection of the child;
e. YTSS continued to assert that the child was refusing to see MRLH because she “feels unsafe”;
f. the child was “supportive of the Intervention Order” as she did not want to spend time or communicate with MRLH; and
g. that MRLH was subsequently charged by police in respect of the 29 December 2018 incident between himself and the child.

The Registrar submitted that given the special circumstances of this case, which was the unreasonable and inappropriate behaviour of MRLH towards his child, that an interim care period should not apply. Instead, a single care percentage of 0% for MRLH applies, as there has been no pattern of care for his child since 29 December 2018.
When can an interim care period commence?
At the conclusion of the hearing the Tribunal asked the Respondent to clarify when an interim care period can commence. The Tribunal requested this on the basis that the evidence of special circumstances relied upon by the Registrar and the AAT1 had concluded on 29 October 2018, as the IVO was no longer in place and the police had determined not to proceed with charges of assault against MRLH.
The Respondent provided the following advice
“Reasonable action” does not include efforts to challenge the care arrangements as they are recorded under relevant child support and/or family tax benefit legislative regimes. This is in no way related to re-establishing compliance with a care arrangement for the child, whether that be aligned with an existing care arrangement, or directed toward obtaining a new care arrangement.
Section 53A(1) of the Assessment Act defines an “interim period” as beginning on the day the actual care being provided to the child ceased to correspond with the care arrangement. In this case, if an interim period is to be applied, the start date is 30 December 2018, for a maximum period of 26 weeks.
The Registrar noted that section 53A(1)(b) of the Act defines when an interim period comes to an end. Relevantly, s 53A(1)(b)(iii) provides that an interim period ends on the day the care arrangement in respect of the child ceases to apply. Relying on the applicant’s solicitor’s letter of 11 April 2019, the Orders ceased to apply on 21 February 2019 following their suspension; and a care arrangement no longer applied in respect of the child as is required by s 51(1)(b) of the Assessment Act. Accordingly, if an interim period is applied, it must end on 21 February 2019.
Section 53A(2) of the Assessment Act, which governs whether a “later interim period” can apply, is only enlivened in circumstances where the initial “interim period” comes to an end under items 2, 4 or 5 of the table in section 53A(1) “before the end of the maximum interim period for the determination”. In the circumstances of this case, the “interim period” ended because the underlying care arrangement ceased to apply in respect of the child, and not under items 2, 4 or 5. The Registrar therefore submits that the Tribunal has no power to make a later interim care determination in this matter.
In any event, if the Tribunal was to disagree with the Registrar’s contention in respect of when an “interim period” in this case must end, before it could apply a “later interim period’ it must be satisfied that the applicant continued to take “reasonable action”, and that the other party was not taking “reasonable action”.
The available evidence regarding the “reasonable action” being undertaken by either party from 11 April 2019 is thin. It comprises the other party’s email of 12 April 2019. On its face, this correspondence indicates the other party was willing to engage in mediation provided the condition of the parties being in separate rooms was met. There is no further evidence before this Tribunal with respect to any action taken by MRLH or YTSS subsequent to 12 April 2019 to reinstate care of the child in accordance with the care arrangement, or to make an alternative care arrangement.
In the absence of any tangible evidence that MRLH was taking steps to reinstate care or otherwise have the Orders modified, he ceased taking “reasonable action” on 11 April 2019 which would preclude a “later interim period” applying.
MRLH provided the following in response to the Registrar’s advice:
·His solicitor's letter of 7 February 2019 to YTSS advised YTSS that MRLH “suggests that the Family (including the child) would benefit from Family Therapy and we have made enquiries of services in this regard and shall advise. We seek your consent for the child and confirmation that you also shall participate in Family Therapy”.
·In her e-mail reply dated 23 February 2019, YTSS stated “I think that mediation may be of some benefit as long as your client and I are in separate rooms during the process”. No mention is made by YTSS confirming “the child” would be present and no consent was given by YTSS for “the child” to participate.
·His solicitor's letter of 11 April 2019 to the Objections Team at CSA advises CSA that “the Family Law orders were suspended by consent and by order of the court until the 11th of April to allow the mother the opportunity to bring an application in the Federal Circuit Court to vary the orders, with a circuit commencing in Warrnambool on 25th of March 2019. The mother failed to bring any application. On the 11th of April 2019 the suspension of the Family Law orders under s.68R of the Family Law Act came to an end”.
·The Registrar acknowledged YTSS’s reply in their submission. YTSS states “I refer to your e-mail dated 11 April. As previously advised in my e-mail to you dated 23 April 2019 [sic] I am prepared to participate in mediation as long as your client and I are in different rooms during the process”. YTSS's reply fails to address why she had not initiated an application to the Federal Circuit Court to vary final orders dated 13 June 2013. In addition, YTSS has again failed to confirm “the child” would be present during mediation and no consent was given by YTSS for “the child” to participate in mediation.
·Mediation solely between the Applicant and the mother would be a complete waste of time even if both parties were in “different” buildings “during the process”.
·In the Registrar’s submission they state before the Tribunal can apply a “later interim period”, “it must be satisfied that the applicant continued to take 'reasonable action', and that the other party was not taking 'reasonable action'”. I have already highlighted YTSS failure to apply to the Family Law court to vary final orders plus her decision to disqualify my daughter from participating in any form of mediation. YTSS has not taken “reasonable action”.
YTSS submitted during the hearing that MRLH should not be rewarded with the provision of an interim care order as he had caused great harm and stress to their child who had been struggling for some time but was now in a good space. YTSS contented that regardless of the fact the police had dropped their proceedings and the IVO was no longer in place, the child was still scared of MRLH and did not want to have anything to do with him.
CONSIDERATION
The Tribunal, based on all the evidence before it, considers that MRLH had been actively engaged in trying to recommence his pattern of care through numerous avenues including obtaining legal advice and seeking to undertake family mediation. The Tribunal also relied upon MRLH’s lawyers’ letter to the Registrar of 11 April 2019 which outlined avenues taken to facilitate recommencement of care:
Our client has been seeking time with the child since time was unilaterally suspended by the mother. In the course of facilitating access he has consented to the child remaining in the mother's care for the duration of the summer holiday period from the 29th of December and for the suspension of the Family Law orders under s.68R of the Family law Act from the 21st of February to the 11th of April 2019. Our client has at all other times sought to have the child in his care pursuant to the orders and the mother has unilaterally withheld the child.
The Tribunal finds that MRLH, in accordance with Section 51(1)(d) of the Assessment Act, had taken all reasonable action to ensure the care arrangement pursuant to the court orders were being complied with.
The Tribunal finds YTSS, as the parent who has increased care of the child, had agreed to participate in family mediation in accordance with the policy guidelines.
The Tribunal, based on the evidence before it, considers that at 30 December 2018 there were special circumstances which warranted the refusal of an interim care order. The Registrar based their determination not to grant an interim care order on the evidence as presented at the time of their decision, which comprised the child’s Police Statement, Victim Impact Statement and the IVO. Subsequently, the AAT1 relied upon this evidence and MRLH’s advice that he had recently been charged in respect of the incident at Halls Gap.
The Tribunal considers that this evidence was sufficient for the Registrar and AAT1 to determine that there was a substantial risk to the physical, emotional and psychological well-being of the child if the care arrangement had continued to be followed.
As the Tribunal is hearing the matter de novo, that is afresh, it must consider the factual evidence before it, which now includes evidence the Police did not pursue assault charges against MRLH, and the IVO has concluded.
Given the child in question was 15 at the time she made the Police and Victim Impact statement, the Tribunal does not place significant weight on these documents. However, the Tribunal noted that the child consistently refers to being scared of MRLH whilst acknowledging he did not hit her.
The Tribunal is concerned by the lack of clarity of how the whole event at Halls Gap (which has been characterised as an assault) eventuated. But it is particularly concerned about how it ended with two 15-year-olds alone for a considerable period of time in a remote location. The Tribunal noted everyone has a different account and the child made two different statements:
·In the original Police Statement, the child states her father got angry and told her to leave so she and her friend walked to the local police station to wait for YTSS. In the other she states she and her friend went for a walk, she called her mother to come and get her; and on her return to the house MRLH had locked her out but eventually MRLH let her and her friend get their belongings and then they walked to the police station.
·MRLH stated the child had said she had called her mother to collect her and her friend; that he had agreed she could go but YTSS could not come to the house; and that she would need to meet her down the street at the shops. It was only later MRLH was advised YTSS was still on route to Halls Gap and the police had picked up the child and her friend.
·YTSS stated she was on the telephone to the child when MRLH was being abusive to the child and had overheard much of the abuse. That the child’s friend had also contacted her parents to say she wanted to go home. That she had left her home which was a two-hour drive from Halls Gap when the child rang to say they had left MRLH and that she had collected them from Stawell Police Station.
The Tribunal finds that an event obviously took place at Halls Gap over the two days the child and her friend were with MRLH and accepts the child’s Police Statement that she and her friend were scared by the event.
The Tribunal places no weight on YTSS’s continual assertions that the child was refusing to see MRLH because she “feels unsafe”: YTSS is the other party to this matter and not an advocate for the child.
The Tribunal could understand MRLH’s distress at the characterisation of the event as an assault as he is admitted that he never hit the child. And while he does not shy away from the fact that he and the child had a disagreement he contended this was not uncommon between a parent and a teenager.
The Tribunal also concurs with MRLH about the mixed messages being sent about the terms of the IVO. On one hand, he is advised he can have contact with his child in accordance with any family court orders, but on the other he is being breached for having contacted his child in contravention of the orders. YTSS advised she had been told clause 9 of the IVO was standard and there was no use seeking to challenging the terms. Additionally, the child had been advised by the court-appointed lawyer that the IVO prohibited MRLH from contacting her, but this does not appear to reflect the actual terms of the IVO.
The Tribunal does not concur with MRLH that the addition of the clause that MRLH may do anything that is permitted by a family Law Act order, a child protection order or written agreement about child arrangements was an indication he was not considered a risk to the child. If that had been the case the Court would not have granted an IVO.
The Tribunal does accept that the discontinuance of police charges indicates they did not consider that a serious assault took place in Halls Gap. However, this does not mean the event did not leave the child scared and feeling substantially at risk of physical, emotional and psychological harm if she was to be placed in MRLH’s care again.
The Tribunal, as with all child support matters, finds that somewhere in all the confusion lies the truth. But, as with all other child support matters, does not believe the whole truth has been shared with the Tribunal. In many respects the Tribunal does not believe anyone is lying in this particular matter. The question is really one of degree and perspective. MRLH is adamant he did not assault his child; while YTSS is adamant an assault occurred. Also, teenagers can be their own worst enemies.
The Tribunal has to determine, under section 51(5) of the Assessment Act and in accordance with the policy, if discretion should be exercised not to grant an interim care period because MRLH’s own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, and he should not benefit from an interim period, even though he is seeking the return of the child.
The Tribunal considers that, as at 30 December 2018, the factual evidence indicated that special circumstance existed to consider MRLH should be denied an interim care period.
The Tribunal then considers if an interim care period can commence on a later date than the date care ceased to be provided in accordance with the court orders, in this case 30 December 2018; or whether it could commence at a later date - 29 October 2019 - when the factual evidence indicates MRLH was no longer considered to pose a substantial risk to his child.
The Tribunal does not concur with the view of the Registrar that the Orders ceased to apply on 21 February 2019 following their suspension. The Tribunal, while not in possession of the court orders but relying on MRLH’s lawyer’s letter, accepts the orders were suspended by agreement to allow YTSS to bring further proceedings. As this did not occur then, the orders were reinstated on 11 April 2019 and the suspension of the Family Law orders under section 68R of the Family Law Act came to an end. The Tribunal accepted that the care agreement was continuing to be in place to allow the parties to attempt to resolve the care arrangements of the child. This did not occur. The Tribunal therefore did not consider that a later interim care period could be made as the care arrangement had not ceased.
The Tribunal finds the Assessment Act does not provide scope for a determination of an interim period to be made after the event. The Tribunal finds the care arrangements ceased on the 30 December 2018 and at the time there was sufficient evidence to consider MRLH posed a risk to his child to warrant not granting him an interim care determination regardless of the fact he was seeking to provide care to his child. The Tribunal determines, on the facts before it, that this risk was present for the maximum period of 26 weeks; and as such found there was no basis on which to determine a later interim care period.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 77(seventy-seven)paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO

............................[sgd]............................................
Associate
Dated: 26 November 2020

Date of hearing: 29 September 2020

Date of final submissions: 27 October 2020

Applicant: Self-Represented

Other Party: Self-Represented

Advocate for the Respondent: Maleah Underhill

Solicitors for the Respondent: Department of Human Services,
Freedom of Information and Litigation Branch

[2020] AATA 4727

26 November 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction

Date of hearing:	29 September 2020
Date of final submissions:	27 October 2020
Applicant:	Self-Represented
Other Party:	Self-Represented
Advocate for the Respondent:	Maleah Underhill
Solicitors for the Respondent:	Department of Human Services, Freedom of Information and Litigation Branch