PCHH and Child Support Registrar (Child support second review)

[2022] AATA 165

PCHH and Child Support Registrar (Child support second review) [2022] AATA 165 (7 February 2022)

Division:GENERAL DIVISION

File Number(s):      2021/2176

Re:PCHH

APPLICANT

AndChild Support Registrar

RESPONDENT

AndLRSD

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:07 February 2022

Place:Brisbane

The Tribunal sets aside the reviewable decision and in substitution finds the care percentage during the care period is the actual care of the sons, that is, 100% to the Mother and 0% to the Father.

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

Member P Ranson

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

Catchwords

CHILD SUPPORT – objection to care percentage change – special circumstances – interim care determination – Federal Court parenting orders – COVID-19 Lockdowns – illness – decision set aside and substituted

Legislation

Child Support (Assessment) Act 1989 (Cth) .

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

Family Law Act 1975 (Cth)

Cases

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

Secondary Materials

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

REASONS FOR DECISION

Member P Ranson

07 February 2022

BACKGROUND

1. A common tragedy associated with marital breakdown, other than the divorce and property settlement, is the effect on the children of the breakdown in relations between the parents, which is often toxic. Sadly, that is the case for the two sons of PCHH (the Mother) and LRSD (the Father) since they separated in February 2012, and possibly before that. Domestic violence is abhorrent regardless of whether it is physical or verbal.

2. Family reports prepared after the marriage breakdown found the Father needed counselling for anger management and was prone to excessive discipline of the sons. That is not to say the Father does not have a relationship with his sons. They engage in recreational activities such as camping and fishing, which the sons say they enjoy. What they don’t enjoy and are fearful of is the violent mood swings of the Father.

3. Court orders were made in April 2016 which effectively granted equal shared custody of the two sons to their parents. At that time, they were aged seven and four. An incident involving the Father and the elder son occurred in January 2020 when the boys were aged eleven and eight, which resulted in the Mother withholding care of the sons from the Father as she feared for their safety. The police, the courts and a Family Relationship Centre were all called on to help resolve the matter, which saw the Father regain visiting rights without overnight care and eventually four nights of overnight care per fortnight. The law provides where a parent with reduced care takes reasonable action to restore an existing care arrangement then, in the absence of special circumstances, the care arrangements for child support and other purposes remains as per that arrangement rather than the actual care.

4. The Father took action to restore care as he believes the incident was no more than required discipline of the elder son in the circumstances. A report by Child Safety found the children were not in danger. The Family Report author was not of the same opinion, which is set out in further detail at [42] – [47]. A police interview with the elder son and their report also suggests otherwise.

5. Special circumstances, which will prevent the restoration of court ordered care, include domestic violence against the child or exposing the child to domestic violence. Sadly, for all concerned, that is what has occurred in this case and, for the reasons that follow, that prevents the Father from benefiting from an interim care determination. Previous decision makers may not have had access to the suite of information available to this Tribunal in this case.

PROCEDURAL HISTORYS IN THIS CASE ARE:

Applicant	PCHH (the Mother)
Registrar	Child Support Registrar (the Registrar)
Other Party	LRSD (the Father)

1. The decision under review was made by the Social Services and Child Support Division (SSCSD) of this Tribunal on 3 March 2021 which affirmed the decision of an objections officer of the Child Support Registrar (the Registrar) made on 5 November 2020 to apply an interim care determination continuing the previous care percentages for the sons, of 51% for the Mother and 49% for the Father, for the period 14 February 2020 to 21 May 2020, with actual care to be applied from 22 May 2020 (AAT1). That decision also found there were no special circumstances in relation to the sons such that an interim period should be applied.

2. The Hearing for this current application was held before this Tribunal on 19 November 2021 (the Hearing). PCHH attended the Hearing, together with Mr Samuel Harvey representing the Registrar. The video hearing was facilitated using Microsoft Teams and PCHH gave affirmed evidence. No witnesses were called.

3. LRSD (the Father) chose not to attend the Hearing. On 18 November 2021, the Father sent the following e-mail to the Tribunal:

   ‘To whom it may concern, I apologise for the late reply, it was to my fault I did not see the possible duration of the hearing and also my work schedule will limit the opportunity to be present for the hearing. On that note this is my notification that I will not be present to be heard nor to answer questions tomorrow and in turn I respect the decision handed down. Thanks.’

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

   a. Whether the existing determination of the percentage of care ought to be revoked pursuant to s54F, s54G or s54H; and if so,

   b. What percentages of care ought to be determined for the Applicant and the Other Party under s49 and/or s50 of the Child Support (Assessment) Act 1989 (the Assessment Act)?

   c. If a determination is made under either s49 or s50 of the Assessment Act, does an interim care period arise such that s51 applies; and if so for how long?

5. The parties agree there was a change of care of the sons on and from 14 February 2020 being 100% to the Mother and 0% to the Father. In his absence, the only issue for the Father appears to be whether he took reasonable action to enforce court orders in place at the time. The Mother argues there were special circumstances which prevent the Father from benefiting from an interim care determination. As there is no dispute about when the change of care occurred and the percentages of care thereafter, the Tribunal will only consider whether the Father took reasonable action to enforce the court orders and whether there were special circumstances which prevent an interim care determination from applying.

6. Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 4 and agreed they were the only documents to be exhibited. The following documents were then admitted into evidence:

Number	Description
Exhibit 1	Section 37 T-Documents of 279 pages
Exhibit 2	Registrar’s Statement of Facts, Issues and Contentions (SFIC) of 13 pages dated 20 August 2021 including the Registrar’s List of Authorities.
Exhibit 3	Family Report by Charlie Howe dated 10 September 2021.
Exhibit 4	Queensland Police Service (QPS) Summons Material.
Exhibit 5	Extract from affidavit of the Father (pages 5 to 6)
Exhibit 6	Timeline of events following the incident as recalled by the Mother.

1. Exhibits 1 to 5 were identified at the Hearing. Exhibit 6 was received after the Hearing at the request of the Tribunal. A copy of Exhibit 6 was sent to the Registrar and the Father.

2. Upon receipt of Exhibit 6, the Father responded to the Tribunal by email with the following:

   This doc was not submitted to the family courts as it’s all incorrect and false. 

   The dates are not correct. The boys didn’t tell their mother until after I mentioned it some 2 weeks after the event and the mother was the listening in on the conversation between the boys and myself over the phone.

   [The Mother] did not know about the alledged [sic] incident and the police report also did not reflect was has been written in the attached. 

   The Tribunal is tasked with making the correct and preferable decision, and whether a document has been provided to the Federal Court previously or not has no bearing on this decision. It should be acknowledged that the Mother and Father have different recollections of the timeline of events as set out below at [36 – 37]. The Tribunal’s decision in unaffected by this point. It is the Tribunals view that though the parties disagree about the exact order, or date of events, they for the most part, agree on the actions taken in that period.

3. The Registrar’s Statement of Facts, Issues, and Contentions dated 5 November 2021 (Exhibit 2) 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 were provided to PCHH and LRSD, prior to the hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

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

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

4. The Registrar’s SFIC also refers to the Child Support Guide (the Guide) and especially Chapter 2.2.[1] The Tribunal notes where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision  … cogent reasons will have to be shown against its application”.[2] The Tribunal considers there are no pressing reasons to depart from the policy outlined in the Guide.

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

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

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

THE LAW

Reasonable action

1. Subsections 49(3) and 50(3) of the Assessment Act says the care percentage must correspond with the actual care a person has of the child during the care period. Section 51(1) of the Assessment Act goes on to outline the exceptions to this requirement and enables the Registrar to make what is called an interim care determination in circumstances where a care arrangement in relation to a child is not being complied with and a person who has reduced care of the child is taking reasonable action to ensure the care arrangement is complied with.

2. Absent a definition of reasonable action in the Assessment Act, the Tribunal turns to the Guide which provides examples of reasonable action at chapter 2.2.4. It is important to note the following list is neither prescriptive nor exhaustive as other actions can be considered reasonable action in the circumstances of the case:

   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 relationships Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement adhered to,

   c. Seeking or obtaining legal advice regarding the making of a court order,

   d. Following an application to a court to have an order made or enforced, or

   e. Notifying the lease child has been taken without consent.

3. The Registrar must revoke any existing care determination pursuant to section 54F of the Assessment Act where a new percentage determination was made under sections 49 or 50 which would change cost percentage for the child.

4. If reasonable action has been taken to ensure the care arrangement has been complied with, section 51(5) of the Assessment Act then provides if special circumstances exist in relation to the child a single care percentage rather than two percentages care may be determined based upon the actual care taking place.

5. Again, the Assessment Act does not define the term special circumstances, so the Tribunal returns to the Guide at chapter 2.2.4, which relevantly states:

   The registrar has discretion to decide in special circumstances the percentage of care be immediately based on the actual care and no interim period will apply. … This discretion is only to be exercised in unusual circumstances, 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 if a person’s own unreasonable or inappropriate actions are a significant cause of the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking 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 family violence (within the meaning of section 4AB of the Family Law Act),

   ·Violence towards the person with increased care,

   ·Directly involving the child in a criminal act,

   ·Exposing the child 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 et cetera.

THE FACTS AND EVIDENCE

1. The Tribunal understands the parents agree the care of the sons changed on 14 February 2020 such that the Mother had 100% care and Father had 0% care. Previous decision makers, including in AAT1, found the Father had taken reasonable action to ensure the care arrangement was complied with. At the hearing the Mother stated she did not agree the Father had taken reasonable action and, in any event, there were special circumstances which should deny him an interim care determination. The Father believes he did take reasonable action and there are no such special circumstances in this case.

2. Therefore, the Tribunal must decide whether the Father took reasonable action and whether there were special circumstances which should deny him an interim care determination. After making those determinations, the law as set out in detail in the SFIC will apply.

Orders of the Federal Circuit Court of Australia

1. On 6 April 2016 the then Federal Circuit Court of Australia (FCCA), now the Federal Circuit and Family Court of Australia, made orders for the sons to live with their parents in a week-about arrangement with the Father having 49% care and the Mother having 51% care (the Care Orders).

What happened – the incident?

1. The sons spent the last three weeks of the January 2020 school holidays with the Father in accordance with the Care Orders. During the third week, on 21 January 2020, the sons were involved in an incident with their father as he was driving them back to his place following a visit to his mother, that is, the paternal grandmother of the sons.[3] The details of the conversation which led to the incident are not recalled by the elder son however Exhibit 4 records the events that followed this way:

   ‘Between the nominated dates and times, the subject person [the father] has begun yelling "you’re a [redacted]" at the victim child [the elder son] while driving the children home from their grandmother's house. The subject child [sic – subject person] has then stated to both children "I don't think I have said [redacted] enough yet, do you?". Both children have replied yes, and the subject [person] has stated "no I don't think I have”. The victim child has then said something that he cannot recall, and the subject [person] has braked suddenly at speed causing the vehicle to ho along the road before veering off the road with force causing the vehicle to skid. The subject [person] has then gotten out of the car and opened the victim child's door and grabbed the victim child around the throat and chin with one hand with a considerable amount of force causing slight discomfort. The victim child has begun to cry and feel scared. The subject has then released the child and gotten back into the car and started to drive again.’

   [3] Exhibit 5.

2. An extract from the diary of the older son was submitted as evidence to the AAT1. It states at paragraph 9:[4]

   ‘dad picked us up from spending the day with grammar [grandma] and dad said were you good with [Step-mother] the morning and I said no I back chatted twice and he lost it and I said something then he full on skid and pull over and got out of the car and put his hand around my throwt [throat] and it really heart [hurt] so when we went to mums we didn't go back to dads the next week and he was getting up us over the phone we were scared to talk to him at night for the first couple of nights we weren't there we are still at mums and haven't bean [been] since the 14 of February and now it's the 14 April.

   That was all I can remember but trust me there's a lot more and all of its true. I'm [redacted – the older son] I was bourn [sic -born] on the [redacted] and that was just a little bit of my diary.’

   [4] Exhibit 1, T Documents, page 194.

What constitutes domestic violence?

1. Family violence is defined in the Family Law Act 1975 (Cth) (FLA) at section 4AB(1):

   ‘For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

2. The FLA at section4AB(2) and (4) goes on to provide examples of family violence:

   (a)  an assault; or

   (b)  a sexual assault or other sexually abusive behaviour; or

   (c)  stalking; or

   (d)  repeated derogatory taunts; or

   (e)  intentionally damaging or destroying property; or

   (f)  intentionally causing death or injury to an animal; or

   (g)  unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)  unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)  preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)  unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

3. Remembering the sons were at this time aged eleven and eight, the Father yelling at the sons and the language he used, which was redacted in the above at [] due to its crudeness and vulgarity, was completely inappropriate to be directed to young boys and especially by the Father, who should be a role model to them, regardless of the circumstances. In Exhibit 5, the Father does not acknowledge he was yelling or using inappropriate language.

4. The incident was made all the worse for the sons by the action of the Father in skidding the car to a halt, wrenching the elder son out of the car, and as the elder son describes in his diary holding him by the throat. The Mother asserts the Father was at this time red in the face from his anger and spitting in the face of his son. The Father denies he held the elder son by the throat. As evidenced in the Family Report, he acknowledges (a) the incident occurred, (b) he held his son by the cheeks albeit he did not leave red marks on his face, and (c) he should not have grabbed him in the first place.[5] Exhibit 4 notes the victim, the elder son, did not sustain any physical injury.

   [5] Exhibit 3, Family Report of CH, commissioned by the FCCA.

1. Both sons recalled the incident in similar terms to the Mother when she collected them on 24 January 2020 for a normal changeover saying they were frightened by the experience. The sons were due to return to school the following Tuesday for the start of term 1.[6]

   [6] Monday 27 January 2020 was a public holiday in Queensland for Australia Day.

2. Both the sons and especially the elder son were consistent in their recollection of the incident, that is, it involved yelling by the father of crude and abusive language followed by physical altercation in which the father grabbed the elder son by the throat. The elder son maintained this recollection at his interview with the child protection unit of Mackay police. The Tribunal is unable to find any deviation in the recollection by the elder son of the incident.

3. The father on the other hand acknowledges the incident occurred and denies he held the elder son by the throat rather holding him by the cheeks which left no red marks. He does not comment on whether he used crude and abusive language in front of the children prior to the physical altercation.

4. In an extract from a statutory declaration by the Father he states:

   ‘I acknowledge that during our relationship there were instances where l committed domestic violence. I am not happy with my behaviour in my past and accept that at times my behaviour towards [the Mother] was unacceptable.’[7]

   [7] Part of evidence filed by the Mother for the SSCSD (Tier 1 review) – date not identified.

5. Weighing the evidence of the Mother, the sons, the Father and the record of interview compiled by Mackay police, the Tribunal finds the actions of the father, described above as the incident, amounted to domestic violence directed at both the sons and particularly at the elder son.

What did the Mother do?

1. At the request of the Tribunal, the Mother provided a timeline of her recollection of the events in the three weeks that followed the incident, exhibit 6, from which the Tribunal has extracted the following:

Date	Event/Action
24-01-2020	The Mother collected the sons at a normal changeover, and they tell her about the incident. Absent legal advice she sends the sons back to the Father at the end of the next week as per the Care Orders. She asserts: ‘the boys were in tears and didn’t want to go back to their dads but were scared not to’.
31-01-2020	The sons returned to the Father for normal week about care.
04-02-2020	The Mother reported the incident to Queensland Police, Mackay Child Protection and Investigation Unit (CPIU).
08-02-2020	The Mother takes the sons to Mackay police to report suspected harm to the elder son. See exhibit 4, and [‎24], for details.
14-02-2020	The Mother receives legal advice from McKays Solicitors she has sufficient grounds to withhold care of the sons, collects the sons from school early and they speak with the school councillor about the incident. The Father is informed by the Mother she is withholding care.
15-02-2020	The elder son makes an official report to Mackay police.

1. Three months later, on 2 May 2020, the elder son makes a statement to Mackay police in which he confirms the language used by the Father and the physical altercation involving the Father grabbing him around the throat, see exhibit 4 and [‎24].

What did the Father do?

1. The Father contacted the Mother on 17 February 2020 seeking an explanation for care being withheld and seeking an immediate return to care in accordance with the Care Orders. The Mother responded with her reasons. The Father then contacted his solicitor, see [‎39].

2. The Father and the Mother attempted to engage family dispute resolution on a timely basis. Both parents sought the assistance of Relationships Australia – Mackay, a local family dispute resolution practitioner. On 17 February 2020 the practitioner at Relationships Australia – Mackay provided a certificate in which she states:

   ‘[The father] did not attend family dispute resolution with me and the other party [the mother] or parties to the proceedings because I consider, having regard to the matters mentioned in subregulation 25(2), that it would not be appropriate to conduct the proposed family dispute resolution.’[8]

   [8] Exhibit 1, T Documents, T29, page 107.

3. The Father contacted his solicitor, from Kelly Legal, seeking advice about recovering care of his sons. On 20 February 2020 the solicitor wrote to the Mother advising her she was in contravention of the Care Orders and he had instructions to make an application to the court for a recovery order unless she returned care of the sons to the Father.[9] The Mother wrote to Kelly Legal on 26 February 2020 advising she would not be returning sons to the care of the father until the investigation by the Qld Child Protection Unit and the Department of Child Safety had concluded because she believed the children would come to harm if they return to the care of their father.[10] On 21 April 2020 the Father applied to the FCCA for parenting order to care for the sons.[11]

   [9] Ibid T45, page 178.

   [10] Ibid T45, page 179.

   [11] Ibid T45, pages 180 to 181.

4. The FCCA made orders on 10 June 2020 and again on 15 July 2020, which provided for the Father to spend some time with the sons, albeit initially not overnight care and not at his residence and not in the presence of his partner, and later some overnight care, being four nights per fortnight.[12] On 8 February 2021, the FCCA made a court order by consent on a final basis in which the sons are to live with the Mother and spend four nights per fortnight with the Father.[13]

   [12] Ibid T29, pages 108 to 113.

   [13] Ibid T45, page 196.

The Family Report

1. The FCCA requested a family report, which was prepared by Charlie Howe and dated 24 September 2020 (the Family Report).[14] The Family Report is based on interviews with the Father and his partner, the Mother and the sons both at the Father’s home and at the Mother’s home, which were obtained by the author during the period 5 September 2020 to 14 September 2020.

   [14] Exhibit 3.

2. The Family Report relies on certain historic documents including affidavits of the Father and the Mother deposed in April 2020, the orders of Judge Demack and the author’s own previous family reports from 2014 and 2016.

3. Without repeating the contents of the Family Report in detail, some extracts are insightful in this case:

   Paragraph 19:

   ‘There has long been allegations of the father losing his temper at the children. The incident that precepted the mother withholding the children, regardless as to whether or not he grabbed Jesse around the throat, was inappropriate and disproportionate (emphasis added). Both the boys mention their father 'in their face' and shouting and covering them in spittle. The father needs to deal with his anger as a matter of urgency.’

   Paragraph 25:

   ‘[The Father] acknowledged that whilst he did not grab [the elder son] by the throat, he may have overreacted but that this has been such a common situation he is frustrated and angry.’

   Paragraph 30:

   ‘When asked about the incident in the car, [the elder son] states that “it was almost the most angry I've seen him”. He indicated that his father just seemed “to lose it” and he acknowledged that when his father is like that, he becomes frightening.’

   Paragraphs 51 and 52:

   ‘The father's temper has always been an issue, in particular the level of aggression directed at both the boys when the father is angry. The boys both indicate that they are constantly vigilant regarding their father's mood and that they both indicated they felt afraid simply because he was in a bad mood which was likely to result in an outburst.

   The outbursts appear to be disproportionate, and it is difficult to understand why the father's reaction is so extreme given the behaviour of the boys. The father can make the choice to address the issues of his temper if he so wishes. In talking to the boys, they are positive about him, except the temper and aggression issues, and it would seem likely that in the future the boys are more likely to remember the ‘in your face loss of temper’ rather than the family life created by their father and stepmother including all their camping trips and good times.’

   Paragraph 60:

   ‘[The Father], in my view, needs to learn strategies that allow him to control his temper and more importantly make it proportionate to the issue at hand. When an adult’s reaction is disproportionate it tends to be dismissed (by the child) and instead of achieving the goal of change and learning becomes an exercise in fear and anxiety. [The Father] has to choose to explore these issues in order to make some changes, but he should realise that his temper and aggression is becoming the dominant feature in his relationship with his children.’

4. The issue in this case is whether the Father displayed domestic violence towards the sons and if that amounted to special circumstances to deny the Father an interim care determination. The above extracts from the Family Report were selected for that purpose.

5. That is not to say the Family Report was a glowing endorsement of the behaviour of the Mother or the stepmother (the current wife of the Father) as summed up in paragraph 62:

   ‘There is no suggestion that [the Father] and [the stepmother] are wrong and [the Mother] is right in the situation that the boys [the sons] find themselves in but is a product of the interaction of all the adults (emphasis added).’

6. The Tribunal understands the Father has since undertaken an anger management course conducted by Anglicare.[15] Whilst the Family Report was prepared nine months after the incident it came to similar conclusions to previous reports, that is, the Father has anger management issues, and his actions were inappropriate and disproportionate in the handling the incident.

   [15] Exhibit 1, T Documents, T45, page 188.

Child Safety report

1. As mentioned above, the Mother reported the incident to the Mackay Child Safety Service Centre, part of Queensland Department of Child Safety, Youth and Women (now the Department of Children, Youth Justice and Multicultural Affairs) (Mackay Child Safety Service). The letter in response is dated 28 May 2020 and in part reads as follows:

   This letter is to advise you an assessment of these worries [the incident as reported by the Mother] has been completed for your family and the outcome is Unsubstantiated – Children not in need of protection. This means that I do not believe that Billy and Jesse have suffered any harm of a significant or detrimental nature.’[16]

   [16] Ibid T16, page 81.

2. The author of the above letter is not identified, nor is the basis on which the outcome was arrived at or the evidence considered. It was also completed four months after the incident, which makes it less than contemporaneous. There is no evidence before the Tribunal to indicate whether the Police report, discussed at [‎24], the diary entry of the elder son dated 14 April 2020, see [‎25], or the statement made by the elder son to Mackay police on 2 May 2020, see [‎36], were made available to Mackay Child Safety Service, all of which support the view a domestic violence incident occurred on or around 21 January 2020 involving the sons especially the elder son. The Tribunal finds it difficult to reconcile the evidence before it with a conclusion the incident is unsubstantiated.

CONCLUSION

1. Despite the views of the Mother, it is clear to the Tribunal the Father took reasonable action to reinstate the care of the sons to be in accordance with the Care Orders. The action taken by the Father covered four of the examples of reasonable action included in the Guide, see [‎17].

2. It is clear to the Tribunal the incident was an act of domestic violence perpetrated by the Father against the sons. This is because:

   a.   the Mother’s recollection of how the sons described the details of the incident to her, accord with the statements of the sons themselves especially the elder son who was directly involved in the physical element of the incident;

   b.   The Father acknowledges the incident occurred though has a milder version of the events;

   c.   The sons have not deviated from their recollection of the events and previous decision makers did not have access to the contents of exhibit 4;

   d.   The Report of Mackay Child Safety was not prepared contemporaneously, possibly due to their workload and it is not clear if they had access to the contents of exhibit 4. The findings of the Report are difficult to reconcile with the contents of exhibit 4.

3. The Tribunal considers the domestic violence to be sufficiently severe as so to amount to special circumstances which deny the Father an interim care determination for the period from 14 February 2020.

DECISION

1. The Tribunal sets aside the AAT1 decision and in substitution finds the Father is not entitled to an interim care determination for the period from 14 February 2020 to 21 May 2020. That means the care during the care period is the actual care of the sons, that is, 100% to the Mother and 0% to the Father.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

…………………[SGD]………………………..
Associate
Dated: 07 February 2022

Date of Hearing:	19 November 2021, Post-Hearing material filed 22 November 2021
Applicants:	By Video
Solicitor for the Respondent:	Services Australia