SVFG and Child Support Registrar (Child support second review)

SVFG and Child Support Registrar (Child support second review) [2021] AATA 473 (26 February 2021)
Division:GENERAL DIVISION
File Number(s): 2019/6979
Re:SVFG
APPLICANT

AndChild Support Registrar
RESPONDENT

AndXSFR
OTHER PARTY

DECISION
Tribunal:Senior Member B J Illingworth
Date:26 February 2021
Place:Adelaide

The decision under review is affirmed.
................[SGND]................
Senior Member B J Illingworth
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 there was a change in the care percentage of the child –Assessment of actual care – Whether changes to care arrangement – Decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth).
Child Support (Registration and Collection) Act 1988 (Cth).
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.
SECONDARY MATERIALS
Child Support Guide, Department of Social Services, 8 February 2021.
REASONS FOR DECISION
Senior Member B J Illingworth
26 February 2021
INTRODUCTION

The Applicant and the Other Party are parents of two boys namely, A born in 2007 and B born in 2010, in respect of whom child support assessments were in place that reflected the care arrangement for each child. That care arrangement was evidenced in an order of the Federal Circuit Court of Australia dated 17 December 2018 (the December Court Order).
The percentage care of A and B changed from on or about 1 April 2019 and the Applicant thereafter applied to the Respondent for a change in the care percentage with respect to each child to 100% in her favour.
On 20 July 2019, an officer of Services Australia (formerly the Department of Human Services) (the Agency) decided that the Other Party had taken reasonable steps to ensure the December Court Order was complied with and an interim care period of 52 weeks from 17 December 2018 applied[1].
[1] T20, pages 111 – 114.
The Applicant applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) for review of that decision and on 16 September 2019 the AAT1 affirmed the decision.
The Applicant has applied to review the decision of the AAT1 which application is now before the Tribunal (AAT2).
BACKGROUND
The December Court Order included orders with respect to the care arrangement for A and B during the 2018 – 2019 Christmas school holidays, and a future care arrangement commencing from the start of school term 1, 2019.
The December Court Order was silent with respect to the care arrangement for any school holidays thereafter. The assessment period commenced on 29 January 2019 and the Other Party’s child support liability was determined by reference to the percentage of care he and the Applicant had of A and B namely;
Child A - 65% for the Applicant and 35% for the Other Party; and
Child B - 72% for the Applicant and 28% for the Other Party.
From the start of April 2019 issues arose with respect to the care arrangement of both boys, which coincided with the Other Party’s wedding on 6 April 2019. On 4 April 2019 the Other Party’s solicitor wrote a letter to the Applicant asking that she facilitate both boys’ attendance at the Other Party’s wedding and reception and advised that they were both part of the wedding[2]. The boys did not attend the wedding.
[2] T6, page 59.
On 15 April 2019 the solicitors for the Other Party wrote to the Applicant by email and advised that the Applicant did not make the boys available on 13 April 2019 for agreed school holiday care from 6.00pm on Saturday 13 April 2019 until 6.00pm on Saturday 20 April 2019[3]. The solicitor requested both boys be made available for school holiday care from 20 April 2019 – 27 April 2019. Further, that a court application would be filed should the request be declined.
[3] T7, page 61.
On 16 April 2019 the Applicant responded by email and advised, amongst other things, that there had been a conflict between the Other Party and both boys, that child A had issues with the Other Party’s now wife, that the Other Party had refused to take annual leave during periods of school holidays leaving both boys in the care of his now wife, and that A and B did not wish to go to the Other Party’s house[4]. She also advised that the Other Party had not made contact with A and B since 4 April 2019. The Applicant referred to offers to book professional assistance to address the problems and renewed that offer.
[4] T7, page 60.
On 30 April 2019 the Other Party filed an initiating application in the Federal Circuit Court of Australia seeking orders that he and the Applicant each have 50% care of A and B[5].
[5] T8, pages 63-70.
On 4 May 2019 the Applicant contacted the Agency. She advised that the previous care arrangement was not occurring and that she had 100% care of A and B[6].
[6] T26, page 189.
On 6 May 2019 the Other Party contacted the Agency. The Agency record indicates that the Other Party said that he had 100% care of both children[7]. That was plainly wrong and may have been an error in the record.
[7] Ibid, page 193.
On 6 May 2019 the Agency decided to change the care determination to reflect the Applicant having 100% of the care of A and B[8]. That same day the Other Party objected to the decision[9].
[8] Ibid, page 206.
[9] Ibid, page 195.
Subsequently, the Agency records dated 13 May 2019 indicate that the Other Party’s recorded care arrangement of 100% was incorrect, that the Applicant was withholding care, that the Other Party had taken action to have care reinstated and that the matter was in court on 5 June 2019[10].
[10] Ibid, page 206.
On 21 May 2019, the solicitor for the Other Party wrote to the Applicant and advised, amongst other things, that despite his efforts the Other Party had not spent time with A and B for approximately eight weeks since late March 2019; that the Applicant commenced withholding the children from the Other Party and that the Other Party proposed to collect the children from school on Friday 24 May 2019 and return them to the school on Monday, 27 May 2019[11].
[11] T15, pages 102-103.
On 24 May 2019 the Other Party attended the school. An incident occurred between the boys, the Other Party and his wife (the May Incident). A and B did not enter into the care of the Other Party and remained in the care of the Applicant.
On 10 July 2019 an Objections Officer of the Agency allowed the Other Party’s objection to the changed care determination[12]. The Objections Officer was satisfied that (i) the Other Party had taken reasonable steps to ensure the December Court Order was complied with, (ii) an interim period was 52 weeks from 17 December 2018 and (iii) the decision dated 6 May 2019 be set aside. The Objections Officer made a decision to reflect an interim care determination in accordance with the December Court Order from 1 April 2019.
[12] T20, page 109.
On 15 July 2019 the Applicant applied to the AAT1 for review of that decision and on 16 September 2017 the AAT1 affirmed the decision of the Objections Officer[13].
[13] T2, pages 7-16.
On 25 October 2019 the Federal Circuit Court of Australia made interim orders suspending the Other Party’s care of A and B[14].
[14] T25, pages 173 – 175.
On 29 October 2019 the Applicant applied to the AAT2 for review of the AAT1 decision.
LEGISLATIVE FRAMEWORK
The relevant legislation and policy are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Collection Act). In particular, several sections of the Act are relevant in determining whether an interim period should be applied.
The policy advice contained within the Child Support Guide (the Guide) is also relevant. At paragraph 28 of the Respondent’s Statement of Facts, Issues and Contentions, the Respondent correctly notes that the Tribunal is not bound by policy but must take it into account and will usually follow it unless there are cogent reasons not to do so[15]. The Tribunal is not aware of any cogent reason why it should not take the Guide into consideration in this case.
[15] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.
The interim period under s 51 of the Assessment Act, is enlivened in circumstances where:
(a)a care arrangement is in place;
(b)that care arrangement is not complied with; and
(c)the party who asserts non-compliance has made reasonable attempts to have the arrangement complied with; and if the answer to (c) is yes
(d)whether there were special circumstances that would justify lengthening, shortening or waiving the interim period.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The issues to be determined by the Tribunal are:
(a) What percentage of care should be applied for A and B; and
(b) Whether, despite the actual percentage of care, an interim period adjusting the percentage of care should be applied according to s 51 of the Assessment Act.
Therefore, it must be further determined whether:
(a)There was a care arrangement prior to 1 April 2019 and the nature of that care arrangement;
(b)Whether there was a departure from the care arrangement;
(c)Whether the Other Party took reasonable action to ensure that the care arrangement was complied with; and
(d)Whether there are any special circumstances that would justify lengthening, shortening, or waving the interim period.
It is agreed between the parties that prior to 1 April 2019 there was a care arrangement in place pursuant to s 5 of the Assessment Act, being the December Court Order, and that there was a departure from the care arrangement from 1 April 2019 when the Applicant took 100% of the care of A and B.
The Respondent correctly submitted that should the AAT2 determine that an interim care period applied, and the special circumstances discretion was not enlivened, the interim care period ended from the date of the order of the Federal Circuit Court dated 25 October 2019 when the December Court Order was suspended.
DID THE OTHER PARTY TAKE REASONABLE ACTION TO ENSURE COMPLIANCE WITH THE CARE ARRANGEMENT?
The term “reasonable action” is not defined in the Act, however guidance is provided at Item 2.2.4 of the Guide which relevantly states that typical examples of reasonable action might include:
(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 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.
THE EVIDENCE
The Applicant
The Applicant agreed that the December Court Order was made on 17 December 2018 which established a care arrangement for A and B, but the care arrangement changed from the beginning of April 2019, from which time the Other Party ceased to have care of A and B.
The last time the Other Party had the care of A and B was 29 March 2019. There was no incident on 1 April 2019 that brought the care arrangement to an end, however on 4 April 2019 the Other Party was to collect A for Thursday night access. The Other Party and A had an argument which involved issues A had with the Other Party’s fiancé. The Applicant said A did not like the fiancé who had said bad things about the Applicant to A and B. A did not go with his father or enter into his care.
The Applicant said that she tried to encourage A and B to go with their father, but they refused. They were, at the time of the hearing, aged approximately 12 years and 10 years respectively and residing with her.
The change in care arrangement occurred at or about the time of the Other Party’s wedding which was on 6 April 2019. Both boys did not attend the wedding. There was also an agreement in place for access during the school holidays commencing shortly after the wedding which did not occur. The Applicant said that she had asked the Other Party to confirm that the children would be in his care during school holidays, but he would not do so.
The Applicant said that from January 2019 it was difficult to get the boys to attend access.
Following the incident on 4 April 2019, the Applicant subsequently received a letter from the Other Party’s solicitor on the same date about the care arrangement, the boys’ attendance at the Other Party’s wedding which was to occur on Saturday 6 April 2019, and asked that the Applicant arrange for the boys to be at the wedding[16]. The Applicant said they did not go to the wedding because both boys did not want to attend. She tried to encourage them to attend but they refused. They said they had not been invited. There was a lot of tension.
[16] T6, page 59.
The Applicant said that the arrangements for the children should have been better organised and that the boys said the fiancé told them she did not want them at the wedding. She said the Other Party did not organise the arrangements for the wedding and she put the children’s wishes first.
In terms of encouragement, she told the boys the wedding would be fun and that it was important to the Other Party despite what the fiancé had said, that there would be lots of food and they could “run amuck”. But they said they didn’t want to go, they did not like the fiancé and the Other Party would not care whether they were there or not.
The Applicant said that she told the Other Party’s solicitor that the boys would not attend the wedding in an email communication the following day but did not provide to the AAT2 a copy of that email. She said that the material had been previously produced to the AAT1 but had gone missing.
The Other Party would not advise the Applicant if he was taking annual leave during the school holidays. The Applicant advised the Other Party’s solicitor that the boys would not be in his care for the school holidays. She said the December Court Order did not specify arrangements for the school holidays and so she cancelled the “extra time” that was to occur because of the ongoing tension that was surrounding the school holiday period. The Applicant also said that even if she was advised that he was taking leave, it would not be reliable information. Her concern was that the boys would be in the care of the Other Party’s wife.
On the first Thursday night in the new school term, the Applicant sent A to school with an overnight bag to resume the terms of the December Court Order and the Other Party did not turn up to collect A. A then decided to go for a walk around Walkerville. The Applicant’s later evidence was that A said he walked the long way home to avoid the Other Party. The Applicant said she had no communication from the Other Party and his solicitor regarding why the Other Party did not attend the school to collect A.
The Applicant said that subsequently, on a couple of occasions, she sent the boys to school with overnight bags for access, but the Other Party did not attend to collect them. She said that the boys just came home. She lived next door to the school. There was no communication from the Other Party.
The Applicant said that at the start of term two the Other Party made no attempt to have access to the boys. The first time the Applicant did attend the school for access was on 24 May 2019, but he could not locate the boys.
The Tribunal referred the Applicant to a letter from the Other Party’s solicitor dated 21 May 2019 which said, amongst other things, that despite the Other Party’s “efforts” he had not spent time with A and B since late 2019. The Applicant said there had been no efforts as suggested and maintained there had been no attempt by the Other Party to see the boys.
The Applicant said that in Family Court of Australia proceedings the lawyers for the Other Party referred to letters having been sent that she never received. The Applicant maintained that she did not know what the solicitor was referring to when she referred to the Other Party’s efforts to see the boys. The Applicant then said she did not believe he had even spoken to the boys on the phone.
On the date of the May Incident, it was intended that the Other Party would collect the boys from school. The Other Party rang her at work that afternoon saying he was at the school but could not find the boys. She told the Other Party that A had road crossing duty and indicated where he might find him. She then received telephone calls or text messages from A and B that the Other Party was attacking them. She tried to contact her solicitor and was also in contact with her mother.
The Applicant said she left work and found the boys at Walkerville oval. B “ran off”. She took A by the hand and followed B. She spoke to B on the phone and told him to proceed to the office of Mr TD who was a psychologist that they knew. When they met up at Mr TD’s office it was closed. They walked home. B was very upset.
The Applicant said that the Other Party’s wife was also involved in the incident. The Applicant referred to affidavit material filed in the Family Court of Australia. The Tribunal asked her to explain what she understood happened. She said that when the Applicant could not get the boys to do what he wanted his wife grabbed B and tried to get him into a car.
The Applicant referred to the video taken by A on his mobile phone during the course of the May Incident. The Applicant said that, when speaking to A on the telephone, he said that they were being assaulted and she told him to take the video on his telephone. She said the video demonstrated that the boys were behaving quite well, and that A was trying to defuse the situation.
The video was played during the hearing by consent.
The video was largely unhelpful. Much of the image was of the ground or a fence. There was a brief glimpse of the Other Party’s wife approaching B from behind. The audio demonstrated A chastising his father and B in a state of distress. Both the Other Party and his wife were telling the boys to do as they were told and get into the car. There was nothing on the video that indicated inappropriate physical violence. A could be heard to say on the audio “we didn’t say we’d come, mum said we’d come”. The Applicant said that statement was correct and that she told them they had to go to their dad’s house.
The Applicant said that she arrived at the end of the incident when B was walking away. She described what she saw, namely B walking away and she taking A by the hand and following. She did not witness any assault.
The Applicant said the incident enlivened special circumstances. She referred to the report of psychologist Ms Lohen dated 4 March 2020 that was before the Tribunal, which suggested B may have a hypersensitive personality disorder. The Applicant said this was evidenced by B hiding behind a chair when his father would telephone.
In reference to the May Incident, the Applicant said that, in the context of family violence, the incident was minor but neither child had been handled that way when in her care.
The Applicant then raised an incident with the Other Party’s stepson who was about 18 years at the time. She referred to an incident on access when B complained that the stepson lifted him up and put him over the other side of the neighbour’s fence, and an occasion when he fed B a spoonful of chilli. A also videoed that incident. She said the incident was in April and then later said it was in February 2019. That video was never produced to psychologist Ms Lohen. The Tribunal did not view it.

After the May Incident, the Applicant said that she did not hear from the Other Party again until court. There was an exchange of legal documents including the Applicant’s application for cessation of access. They attended court in June and July 2019 and then in October and, following a report from child and family consultant RJ and legal argument, the December Court Order was suspended.
While the matter was before the Family Court of Australia, the Other Party’s solicitor sent to the Applicant’s solicitor a letter dated 21 June 2019 inviting the Applicant to consent to the engagement of a counsellor RH directed to reunification of the Other Party and A and B. The letter said the Other Party had not seen the boys since late March 2019[17]. Enclosed was a proposed draft letter of instruction to RH[18].
[17] T17, page 105.
[18] T18, pages 106-107.
The Applicant said she did not agree with the appointment of RH, but agreement was subsequently reached to engage a counsellor RJ and that counselling occurred in August 2019.
The Applicant then said that RJ first started to see the boys and the Applicant and Other Party in about September 2019.
The Applicant said that the Other Party insisted the December Court Order remain in place when they were attending court. The Applicant requested the cessation of access, which the Other Party refused, yet he did not attend to collect the boys. The Applicant acknowledged that the boys were not going to enter into access if he did attend.
On 25 October 2019 the Family Court of Australia made an order suspending the care arrangement for the children.
The Tribunal asked the Applicant what she said the Other Party should have done that he did not reasonably do.
She said that there should have been communication and, if the Other Party insisted that the December Court Order care arrangement continue, with the child support being maintained in accordance with that rate of care, she believed he should have turned up and been a visible presence to demonstrate to the boys that he wanted to see them. He should have done that on any of the occasions he was to present to the school to pick them up.
She said that after the May Incident, as they were walking home, she and the boys saw and spoke with the Other Party. She said she encouraged A to unblock his father’s number from his mobile phone so the Other Party could speak to him. The Applicant said that in May she told the Other Party that he could ring her, and she would pass on comments to the boys or ask that they speak to him. He did this on one occasion.
Insofar as the Applicant said that after the May Incident the Other Party should have made contact with the boys, the Tribunal asked how this was to occur if A had blocked the Other Party’s telephone number. She then said that A unblocked his mobile phone in early June having negotiated this with the Other Party in her presence, and they did make contact. She also said that B had blocked the Other Party from his mobile phone and only unblocked it after the reunification therapy occurred.
She said the Other Party should have engaged with A and B on a regular basis to set a foundation of stability and consistency. They needed a stable and consistent father.
The Applicant did not agree that her relationship with the Other Party was acrimonious at that time. She said that she was “extremely emotionally detached”. She said the last time she spoke with the Applicant was 4 April 2019 and she found the conversation nonsensical. The next time they spoke was in December, but she could not say in which year, and then said, “we don’t talk”. She then conceded she and the Other Party do not communicate. In response to further questions from the Tribunal, the Applicant agreed that after the May Incident she would not expect the Other Party would want to ring and speak with her.
The Applicant then said that, if the Other Party was not going to attend to collect the boys for access, he should apply or consent to amend the December Court Order.
In response to the Tribunal’s question, the Applicant denied that the Other Party applied to amend the December Court Order. The Tribunal referred to the Other Party’s application in the Federal Circuit Court dated 30 April 2019 and her cross-application, all of which was ongoing at the time of the May Incident. When again the Tribunal asked what more he could reasonably have been expected to do, her response was that she could not see how the Other Party could put in an application to the court for something he was not doing, namely, turn up to have access.
The Applicant then conceded that the boys would not go with the Other Party; she encouraged them to go but they would not. She said the May Incident was a further indication of their unwillingness to go to access. The Applicant accepted that, at that time and following, there were proceedings before the Family Court of Australia to try and address the issue of access, in circumstances where the Applicant and the Other Party did not communicate.
In response to questions from the Respondent, the Applicant conceded that the May Incident was subsequent to the change of care, and that there were no incidents enlivening special circumstances which occurred prior to, and led to, the change of care.
The Applicant referred to the Other Party’s wife not being permitted to touch the children and said that her conduct during the May Incident was family violence because it was outside of a childcare centre and was not appropriate behaviour. When further pressed, she then conceded it was not family violence in a legal context, but the behaviour was not appropriate.
Other Party’s Evidence
In respect of the December Court Order, the Other Party said there was no reference to access during the school holidays at the end of term 1. Until April 2019, he was having access in accordance with the terms of the Order.
He said his relationship with A and B up to April 2019 was “pretty good”. The Other Party was at this time, engaged to be married on 6 April 2019. He described the relationship between his fiancé and the boys as also “pretty good”.
However, things changed as the wedding approached and escalated proximate to the wedding day. He referred to B indicating the week before the wedding that he did not want to attend access with the Other Party.
The Other Party explained that, before the incident on 4 April 2019, the access arrangements had been generally satisfactory. On 4 April 2019 thereafter, things deteriorated. On that evening B said he did not want to attend the wedding and A did not want to attend access.
The Tribunal asked the Other Party about access that occurred in the period immediately before 4 April 2019. There was an occasion when B feigned illness to avoid attending on access. The weekend before 4 April 2019 the Other Party had access to A.
The Other Party outlined the arrangements made for both boys with respect to the wedding. A letter had been sent by his lawyer to the Applicant in December 2018 advising her of the date of the wedding, that the boys would be involved, and wanting to make sure that would occur. His fiancé had taken the boys out shopping and purchased them outfits because they were going to be ushers. They had been involved in wedding practice runs so that they knew what they had to say and their usher duties. They bought them flowers for their lapels. Both A and B had an active role to play in the wedding.
The Other Party said that the first time he became aware that the boys were not going to the wedding was on Thursday, 4 April 2019. The Applicant spoke to him and said that they were not even invited to the wedding. He told her that they were invited to the wedding and that they had a role as ushers. He then said to the Applicant that they had court orders which included his access for the wedding. The Applicant responded they did not. The Other Party then checked the December Court Order, was surprised no order was in place with respect to the wedding, spoke to his lawyer and, consequently, the letter of 4 April 2019 was sent in an endeavour to have the boys at the wedding.
The Other Party said that, from his memory, the response that he received from the Applicant was that they were not going to the wedding and it was the Applicant’s decision.
At this time, the Other Party said his communication with the Applicant was usually between solicitors, save for any smaller logistical matters which they would arrange by email. However, it was from 1 April 2019 that things changed.
As for the school holidays, shortly after the wedding they tried to arrange access through the lawyers, but they could not reach agreement. He agreed he did not assure the Applicant that he would be able to take time off work or that he would take annual leave to coincide with school holiday access. As for the start of the second term and the return to the December Court Orders, there was also an issue with the interpretation of the orders and letters were passed between lawyers.
In reference to the December Court Order, he understood that it applied only to the extent of term 1. He brought the application before the Federal Circuit Court on 30 April 2019 to try and get some court orders in place. From 1 April 2019 to the date of the application he had no access. He could not remember whether he had contact with the boys. He tried to ring but their mobile phones were blocked. He did not try and contact the Applicant because he preferred to communicate through the lawyers. This, he said, was likely to be more productive and result in less drama.
The Other Party described his relationship with the Applicant at this time as poor. They could not come to a sensible arrangement by simply having a telephone discussion. Previous attempts had failed.
The Other Party said that this was an acrimonious relationship. He agreed that he did not go to the school for access. He thought about doing so but was not sure that there were proper orders in place, and he wanted an orderly and organised arrangement with certainty.
On 24 May 2019 he attended the school. Prior to that, letters had been sent and it was arranged through his lawyer. This was a Friday. He went to the pickup spot. The boys were not there. He went to the Applicant’s house. They were not there. He then saw them in the park which was very close. He walked over to them, said they were supposed to come with him and asked why they weren’t at the pickup spot and asked them to get in the car. They got upset and said they did not want to come. The Other Party said the incident depicted on the video was at the park. His wife’s involvement was to the extent of joining them to help sort it out. Her contact with B was an attempt to help take off his backpack so he could get into the car. She did not assault B. The Applicant then turned up as B walked down the street. She and A followed B. He then joined his wife who was by now around the corner. He and his wife returned to the car. As they drove around the area they saw, stopped and spoke to the Applicant and the boys. The Applicant spoke mainly to A.
The Other Party subsequently spoke to his solicitor. There were already Family Court of Australia proceedings on foot.
The Other Party acknowledged that he had initially been opposed to a further counsellor being engaged for the purpose of reunification. The boys were already seeing a counsellor and a specialist, and he was concerned about adding to that and causing further confusion. On advice from his lawyers, he agreed to further counselling. Counsellor RJ was eventually agreed upon and a number of counselling sessions took place.
RJ came up with a plan which started with the Other Party having dinner with A and B. Letters passed between lawyers and he then had dinner with them both at a Mexican restaurant. It was a nice dinner. There were no further access arrangements because of the speed with which the whole process and counselling occurred. He agreed with the Applicant that it took time to get the matter dealt with by the Family Court of Australia.
As for the Applicant’s criticism of the Other Party failing to contact A and B, he said that he did do a number of things to try and sort out the continued access to the boys. He tried to get interim orders, arranged reunification therapy and there were letters between lawyers trying to sort things out. He did not think he could have communicated more. He wanted to defuse the situation, give people space and have a smooth transition.
As for the blocked mobile phones, he telephoned and spoke to the Applicant on one occasion and then spoke to A on the Applicant’s telephone, but it did not go very well. He told A that he wanted to spend more time with him and have a parenting role. He did not speak to B. He thought this conversation occurred before RJ was engaged as a counsellor.
The Other Party said that he hoped, at the time of the telephone conversation with A, that they would be able to renew access, but after that telephone conversation he decided that the best way to progress access was through the reunification process.
The Other Party said that he did not regard the May Incident as family violence. He described it as a stressful incident. A and B were not assaulted
As for the letter of 21 May 2019[19] and the reference to efforts the Other Party made to have access, he said those efforts included instructing his lawyer to write to the Applicant and to arrange for him to spend time with the boys during the school holiday and to file an application in the Family Court of Australia.
Statutory Declaration of the Applicant’s mother dated 5 June 2019.
[19] T15, page 102.
The statutory declaration states that the Other Party ceased access from 1 April 2019 to both A and B and both boys refused to enter their father’s care. She deposed to the Applicant not withholding the boys from the Other Party.
Psychological evidence from RJ and ML
The Tribunal received Family Court of Australia pleadings and a number of reports including from psychologist RJ which included:
(a)Summary Therapy Report dated October 2019; and
(b)Progress Report dated February 2020.
RJ in a joint letter from the solicitors was instructed to engage with the relevant parties for the purpose of reunification therapy. In the October 2019 report, RJ said that she met with the family members as follows:
(a)1 August 2019, appointment with the Other Party;
(b)15 August 2019, appointment with the Applicant;
(c)29 August 2019, appointment with A and B;
(d)24 September 2019, appointment with Other Party; and
(e)25 September 2019, appointment with A and B.
In her Progress Report dated February 2020, RJ reported a further four appointments and three telephone conversations with various family members between October and December 2019.
The Tribunal also received a Family Court Assessment Report from ML psychologist dated 4 March 2020. I will not detail its contents. It described the events of 2019 in relation to the conflict between the Applicant, Other Party and the boys in similar terms to the evidence before the Tribunal. ML reported that in a June 2018 family assessment report there was no issue preventing the Other Party playing a role in the boys’ lives, but when the Other Party’s new wife became involved, “things went pear-shaped”.
CONSIDERATION
Until on or about 1 April 2019, the Applicant and the Other Party’s care arrangement of A and B was in accordance with the terms of the December Court Order. But it was clear that by April 2019 there was tension and upset, particularly on the part of the children, and directed to the Other Party and his then fiancé. It was not a coincidence that this tension coincided with the Other Party and his fiancé’s upcoming wedding on 6 April 2019.
The Applicant gave evidence that the boys refused to go to the wedding. She said that the boys told her they were not invited to the wedding, as if to suggest that this was a contributing factor to the discontent, and from which the Tribunal might make an adverse finding in respect of the Other Party. She said the Other Party did not organise the arrangements for the wedding and she put the children’s wishes first.
In giving that evidence the Applicant was being less than frank with the Tribunal.
The Applicant’s evidence is to be contrasted with the evidence of the Other Party. He said that in December 2019 the Applicant had been advised by email of the wedding, the boys had been taken shopping by the Other Party’s fiancé, wedding outfits had been purchased and the boys had been involved in wedding rehearsals so they knew what they were to say and do in their roles as ushers.
On 4 April 2019, the Other Party learned for the first time that the boys did not wish to attend the wedding, and he had a conversation with the Applicant about the December Court Orders which he believed were in existence and provided that the boys attend the wedding. When the Applicant told him told there were no court orders, he checked and then immediately instructed solicitors to send a letter to the Applicant in an attempt to ensure the boys’ attendance at the wedding.
The Tribunal accepts the evidence of the Other Party about the communication advising the Applicant of the wedding and the boys’ involvement in wedding preparations, including their role as ushers. The Tribunal is satisfied the Other Party was shocked when he was told that A and B were not attending and does not accept that the Applicant was not generally aware of the wedding plans and the role that A and B were to play in it. There is no merit in the criticism she makes of the Other Party that he did not organise arrangements for the wedding.
Further, the Applicant said that she tried to encourage the boys to attend the wedding. Having regard to the whole of the evidence, and having heard from the Applicant in person, the Tribunal is not satisfied about the genuineness or level of the Applicant’s encouragement given to A and B to attend the wedding. Her evidence was unconvincing.
The Applicant and Other Party do not dispute that there was a care arrangement in place in accordance with the terms of the December Court Order and that there was a departure from that care arrangement. That concession was appropriate.
Hence, the remaining issues are whether the Other Party took reasonable action to ensure that the care arrangement was complied with and, if that question is answered in the affirmative, whether there are special circumstances justifying lengthening, shortening or waving the interim period.
The Other Party last had access to the boys on or about 29 March 2019. It was apparent to him, for the first time on or from 4 April 2019, that there was a level of tension, particularly with respect to A and B’s attendance at the wedding and the boys’ relationship with the Other Party’s then fiancé.
The Applicant did not agree that her relationship with the Other Party was acrimonious, but said she was “emotionally detached”; that after 4 April 2019 she did not speak to the Other Party until December – but could not say which year – and then said they did not talk. They did not communicate, and she did not expect the Other Party would want to telephone and speak to her.
The Other Party described their relationship as poor and acrimonious. They could not come to a sensible arrangement by simply having a telephone conversation and previous attempts had failed.
The Tribunal is satisfied that the description given by the Applicant and Other Party generally reflects the nature of their relationship which was very poor and lacking in meaningful discussion and negotiation, particularly as it related to A and B.
The Tribunal is satisfied that immediately after the attempted access on 4 April 2019 the Other Party instructed his solicitor and, that same day, the solicitor sent a letter by email to the Applicant to ask that she facilitate the boys’ attendance at the wedding. They did not attend the wedding.

Thereafter, the Other Party’s solicitor and the Applicant corresponded with respect to access for the April school holiday period. When the initial agreement for access commencing 13 April 2019 did not occur, the Other Party’s solicitor wrote to the Applicant on 15 April 2019 in an endeavour to rearrange access for the period of 20 – 27 April 2019. The Applicant replied by email dated 16 April 2019, and said, amongst other things, that the Other Party had refused to discuss the problem with her, that he had not called to speak with the boys since 4 April 2019, and at no time had she blocked the Applicant from calling her telephone; she renewed her previous offer of engaging professional assistance to address the problem.
The Applicant made similar criticisms of the Other Party’s failure to communicate as a basis to suggest that he did not take reasonable action to ensure compliance with the care arrangement. But this lack of direct communication has to be taken in context. This was at a time when, on the evidence of the Applicant, she and the Other Party were not on speaking terms, that she did not believe the Other Party would want to speak to her by telephone and, in response to questions from the Tribunal, both boys had blocked the Other Party from telephoning them.
In those circumstances, the Applicant’s criticism lacks merit.
The Tribunal received copies of Family Court of Australia pleadings which included an application for urgent consideration of access orders, variation of the December Court Order and supporting affidavit, which was filed and served on the Applicant under a covering letter dated 8 May 2019, advising her that the matter was listed before the Federal Circuit Court of Australia on 5 June 2019 and requesting her responding documents[20].
[20] T11, page 95.
The Other Party’s solicitor emailed a letter dated 21 May 2019 to the Applicant proposing the Other Party have access to the boys on Friday 24 May 2019, returning them to school on Monday 27 May 2019. The Other Party and his wife attended the school on 24 May 2019 for the purpose of access when the May Incident occurred.
On 21 June 2019, the Other Party’s solicitor sent a letter by email to the Applicant’s solicitor to engage a therapeutic counsellor, with the aim of reunification of the Other Party and the children. The parties subsequently agreed on and engaged RJ for that purpose and that consultation process commenced on 1 August 2019 and continued.
The Applicant and the Other Party continued with reunification counselling which included the Applicant engaging with A and B and having a meal at a Mexican restaurant.
Hence, in summary, on 4 April 2019, the Other Party attended the Applicant’s home for the purpose of access which failed to occur. Immediately following he instructed his solicitor to write to the Applicant with respect to the boys attending the wedding and thereafter, through his solicitor, communicated with the Applicant about school holiday access. The Other Party instructed his solicitor to file proceedings in the Family Court and arrange access on Friday 24 May 2019 which failed to occur. He telephoned the Applicant to speak to A and expressed his wish to have access with A and B and continue in a parenting role and pursued reunification counselling. It is also noteworthy that during this period the Other Party’s Family Court application was first before the Court on 5 June 2019. It was not until 25 October 2019 that the December Court Order was suspended from operation.
The Applicant’s criticisms of the Other Party which she asserts renders his conduct unreasonable are as follows:
(a) that the Other Party should have turned up on the days he was due to have access and be a visible presence indicating to the boys he wanted to see them;
(b) he should have attended the school on those days he was due to pick up the boys; and
(c) he declined to consent to changes to the December Court Order that she proposed, such that her liability for child support continued in accordance with the December Court Order.
CONCLUSION
At the relevant time, there was a breakdown in the relationship between the Applicant and the Other Party. They were not on speaking terms, including by telephone. Communication was usually through legal practitioners because they could not engage with each other and reach agreement about the boys. This was the case before April 2019.
On 4 April 2019, there was clear tension between the Other Party and the boys commensurate with the Other Party’s upcoming wedding on 6 April 2019. That continued after the wedding and they refused to attend on periods of access with the Other Party.
To the extent that the Other Party did not inform the Applicant whether he was taking leave during the period of the April school holidays to be with the boys, this was an example of the breakdown in their relationship and ongoing communication issues. The Other Party said that the reason he did not confirm he was taking leave was because he was not sure that an application for leave would be granted and, in any event, there was uncertainty about the access arrangement. But this was simply another occasion when the parties did not communicate appropriately with each other.
It was not unreasonable that the Other Party failed to turn up on every occasion he was due to have access given his genuine belief the children would not be attending. This would only have served to inflame what was already a very difficult and tense relationship between the Applicant, Other Party and both boys. The Other Party’s decision to give the boys space and have a smooth transition to the return to the care arrangement was reasonable and in the best interests of everyone involved. He immediately undertook that process through his solicitor and the Family Court of Australia.
The Applicant’s criticism that the Other Party should have engaged with the boys on a regular basis lacks merit in circumstances where both boys had blocked the Other Party from telephone communication. The only option was to telephone the Applicant in the hope of speaking with A or B in circumstances where the Applicant and the Other Party were generally not talking to each other. As she said in her evidence, “we don’t talk”.
The Other Party took steps to reinstate the care arrangement immediately upon it ceasing. Item 2.2.4 of the Guide provides what may be regarded as typical examples of reasonable action. Consistent with those examples the Other Party took the following steps:
(a) he instructed his solicitor, and was negotiating with the Applicant through his solicitor, in a genuine attempt to ensure compliance with the December Court Order;
(b) he filed proceedings in the Family Court for the enforcement of the December Court Order and/or variation of that order to ensure the reinstatement of access to the boys;
(c) he attended court hearings;
(d) he pursued engagement of a reunification counsellor through his solicitor and attended counselling for that purpose; and
(e) attended on arranged occasions in expectation of access occurring and for the purpose of ensuring compliance with the December Court Order.
The fact that the Other Party did not consent to cessation or variation of the December Court Order as requested by the Applicant during the period from 4 April 2019 until 25 October 2019, was not unreasonable in the circumstances this matter.
The Tribunal is satisfied that the Other Party took reasonable action to ensure compliance with the December Court Order and the care arrangement for A and B.
ARE THERE SPECIAL CIRCUMSTANCES THAT WOULD JUSTIFY LENGTHENING, SHORTENING OR WAVING THE INTERIM PERIOD?
The Guide at item 2.2.4 elaborates on special circumstances that might result in the special circumstances discretion being exercised.
…This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by a 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…
The Guide also addresses the kind and quality of evidence that should be considered before exercising the discretion:
The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.
Suitable evidence may include (but is not limited to):
· a police report detailing violent behaviour towards a child or the person with increased care,
· an intervention order preventing contact with the child or the person with increased care…
The Applicant relied on the May Incident, which she initially said was family violence, as enlivening the special circumstances consideration. However, this was not a significant cause of the cessation of the care arrangement. It had already ceased.
Underpinning the Applicant’s submission that the special circumstances discretion was enlivened was an allegation that one or both A and B had been assaulted during the May Incident which was in part was captured on video by A.
The Applicant was not present during the interaction between the Other Party, his wife and the boys, and only arrived on the scene after B started to walk away from the Other Party. The Applicant said that the boys telephoned her shortly before and said they were being assaulted. She said that she told A to video what was happening.
The video evidence produced by the Applicant did not support an allegation of assault on either boy by the Other Party or his wife. As the Tribunal has said, the majority of the video recording was of the ground or a fence. During the audio, the Other Party’s wife can be heard to say to B words to the effect of “you are 9 years old, do as you are told and get in the car.” She can be seen, momentarily, to be behind B which the Other Party says, and the Tribunal accepts, was to assist him to remove his backpack so he could get in the Other Party’s car. During the video, A can be heard chastising his father. The Tribunal rejects the Applicant’s description of the video as depicting the boys behaving quite well and that A was trying to defuse the situation, as an accurate description. It was not a calm event.
The audio/video depicted a disturbing incident occurring between two young boys, their father and his new wife, which demonstrated the conflict that was infecting the relationship at the time. The Tribunal does not accept that an assault occurred nor that an incident of family violence occurred as originally asserted by the Applicant in her evidence. In cross examination the Applicant conceded that it was not an act of family violence within the law but that it was not appropriate.
The May Incident was an unfortunate display of the ongoing conflict and tension, but there was no aspect to the incident that might be regarded as a special circumstance within the meaning of the Act, or as informed by the Guide.
It is also appropriate to mention that the Applicant referred to earlier incidents when the son of the Other Party’s wife was said to pick up B and put him over the neighbour’s fence and gave him a spoon of chilli to eat. The Applicant did not rely on those alleged incidents as special circumstances. Those alleged events were not relevant to any issue to be determined by the Tribunal, and in particular whether the Other Party took reasonable action to ensure compliance with the care arrangement.
The Tribunal is satisfied that the Other Party took reasonable action to ensure the care arrangement was complied with, and no special circumstance arose that would justify lengthening, shortening, or waving the interim period.
DECISION
The decision under review is affirmed.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

................[SGND]...................
Administrative Assistant Legal
Dated: 26 February 2021

Date of hearing: 20 October 2020

Applicant: Self-represented

Advocate for the Respondent: Mr Christopher Bishop, Mills Oakley

Other Party:
Self-represented

[2021] AATA 473

26 February 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Remedies

Consent

Date of hearing:	20 October 2020
Applicant:	Self-represented
Advocate for the Respondent:	Mr Christopher Bishop, Mills Oakley
Other Party:	Self-represented