Arnold and Secretary, Department of Social Services (Social services second review)
[2016] AATA 1080
•23 December 2016
Arnold and Secretary, Department of Social Services (Social services second review) [2016] AATA 1080 (23 December 2016)
Division
GENERAL DIVISION
File Number
2015/5215
Re
Samuel Arnold
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Clara Da-It Arnold
OTHER PARTY
DECISION
Tribunal:Senior Member P Britten-Jones
Date:23 December 2016
Place:Adelaide
The Tribunal affirms the decision under review.
.....................[Sgd]...................................................
Senior Member P Britten-Jones
CATCHWORDS
Social Security – eligibility for family tax benefit – FTB child ceasing to be in individual’s care without consent – exercise of discretion to shorten qualifying period where special circumstances exist - determination of percentage of care – relationship between sections 23 and 35C of the A New Tax System (Family Assistance) Act 1999 – decision affirmed.
LEGISLATION
A New Tax System (Family Assistance) Act 1999, ss 21, 22, 23, 35A and 35C
Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (No 65/2010)
CASES
Re Evans and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 747
Re Lomas and Secretary to the Department of Family and Community Services and Anor [2004] AATA 278, 81 ALD 251
Re PNZY and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 525
Beadle and Director-General of Social Security (1984) 6 ALD 1
Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Lyons v Registrar of Trade Marks (1983) 59 ALR 596Ross v R (1979) 141 CLR 432
REASONS FOR DECISION
Senior Member P Britten-Jones
23 December 2016
BACKGROUND
This is an application for review of a decision from the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT 1st Review). The application was made out of time but was extended by order of the Tribunal on 17 November 2015.
The applicant, Mr Arnold, and his former partner, Mrs Da-It Arnold, are the separated parents of a child (the Child). Both parents gave evidence before the Tribunal. Much of their evidence concerned the circumstances surrounding events on 17 October 2014 when Mrs Da-It Arnold picked up the Child from his primary school. For the relevant period prior to that date, by an order of the Federal Circuit Court dated 10 May 2013, the parents shared the care of the Child on a 50/50 basis. Since 17 October 2014 the Child has been in the care of Mrs Da-It Arnold and Mr Arnold has had limited and restricted contact with the Child.
The Child Support Agency made a care percentage decision that mirrored the actual care as from 17 October 2014, namely that Mrs Da-It Arnold’s percentage of care was 100% and Mr Arnold’s was 0%. Mr Arnold applied for a review and on 7 April 2015 an Authorised Review Officer (the ARO) from the Department of Human Services changed the decision, with the effect that both parents’ entitlements, until 23 January 2015, remained as they had been prior to 17 October 2014, namely 50/50 care.
It was Mrs Da-It Arnold who applied on 23 April 2015 for a review of the decisions as substituted by the ARO. On 4 August 2015, the AAT 1st Review set aside the decisions of the ARO and substituted the original determinations, namely that:
(a)the percentages of care for the Child from 17 October 2014 are 100% for Mrs Da‑It Arnold and 0% for Mr Arnold; and
(b)the Child remained a family tax benefit (an FTB) child of Mrs Da-It Arnold at all relevant times.
THE HEARING
I conducted a hearing in Adelaide on 12 August 2016. Mr Arnold gave his evidence by telephone. Mrs Da-It Arnold gave evidence in person. Mr Hay appeared for the Secretary of the Department of Social Services and made no contentions as to what finding the Tribunal should make, but helpful written submissions were provided by way of the Secretary’s Statement of Facts and Contentions dated 4 April 2016, and the Secretary’s Submissions dated 2 August 2016 on the relationship between ss 23 and 35C of A New Tax System (Family Assistance) Act 1999.
Most of the facts relevant to the issues for determination are not in dispute.
The Federal Circuit Court of Australia made orders by consent on 10 May 2013 for the Child to spend equal time with the parents. Since 17 October 2014, the Child has been in the care of Mrs Da-It Arnold. Mr Arnold has had limited and restricted contact with the Child since that time. Mr Arnold claimed that the Child had been abducted by Mrs Da‑It Arnold when she picked up the Child from primary school on 17 October 2014. After 17 October 2014, Mr Arnold engaged lawyers who sent legal notices to Mrs Da‑It Arnold alleging breaches of the Family Court orders. Mrs Da-It Arnold denied any wrong doing on her part and said that she acted with the authority of an SA police officer who had been investigating on behalf of Families SA and had allegedly told her not to let the Child go back to Mr Arnold. The issue as to custody was resolved by a Federal Circuit Court order made on 5 February 2015, which resulted in Mrs Da-It Arnold having 100% care of the Child.
The following key facts are not in dispute:
(i)the Child was in 50/50 care pursuant to a court order made on 10 May 2013;
(ii)the actual care changed to 100/0 in favour of Mrs Da-It Arnold on 17 October 2014 and that occurred against Mr Arnold’s wishes and without his consent; and
(iii)the Federal Circuit Court order of 10 May 2013 was still in effect as at 17 October 2014 from which date Mr Arnold took action through his lawyers for a recovery order. The Federal Circuit Court ruled against him and in favour of Mrs Da‑It Arnold on 5 February 2015 when an interim parenting order was made. Final orders were made on 2 December 2015.
ISSUES
The issues for determination are:
(i)whether the Child remained an FTB child of Mr Arnold at all relevant times; and if so,
(ii)what were the percentages of care for the Child from 17 October 2014 until 5 February 2015.
THE LEGISLATIVE SCHEME
The relevant legislation is entitled A New Tax System (Family Assistance) Act 1999 (the Act). Division 1 of Part 3 of the Act provides the circumstances in which an individual is eligible for family tax benefit.
Eligibility for family tax benefits in normal circumstances
Under s 21 of the Act an individual will be eligible for FTB if he or she has an FTB child. Section 22 of the Act then sets out the cases in which a child is an FTB child of an individual. Those cases include where:
(a)the child is in the adult’s care – ss (2), (3) and (4);
(b)the adult has legal responsibility for the child including under a family law order – subs (5);
(c)the adult’s percentage of care for a child during a care period is at least 35% - subs (7).
If any of the cases provided for in ss 22(2), (3), (4), (5) or (7) apply, then the child will be an FTB child and the adult will, subject to the satisfaction of the other criteria in s 21 (not relevant here), be eligible for FTB.
Section 23 of the Act expands the circumstances in which a child will be an FTB child. It provides as follows:
23 Effect of FTB child ceasing to be in individual’s care without consent
(1) This section applies if:
(a)an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3); and
(aa)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph 22(5)(a) or (b); and
(b)an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and
(c)the adult takes reasonable steps to have the child again in the adult’s care.
When the child remains an FTB child of the adult
(2)Subject to subsection (4A), the child is an FTB child of the adult for that part of the qualifying period (see subsection (5)) for which:
(a)the child would have been an FTB child of the adult under subsection 22(2) or (3) if the child had not ceased to be in the adult’s care; and
(b)the circumstances surrounding legal responsibility for the care of the child are those mentioned in paragraph 22(5)(a) or (b).
(3)The reference, in paragraphs (1)(a) and (2)(a), to an FTB child of an individual or adult under subsection 22(2) or (3) includes a reference to:
(a)a child who is an FTB child under subsection 22(2) or (3) in its application by virtue of subsection 22(7); and
(b)a child who is an FTB child under subsection 22(2) or (3), but who is taken not to be an FTB child under section 25.
Note:As a result of subsection (2) of this section, a child who is taken not to be an FTB child under section 25, but who is a regular care child, will remain a regular care child for the part of the qualifying period referred to in subsection (2) of this section.
(4)Except as provided in subsection (2), the child cannot (in spite of section 22) be an FTB child of any individual during the qualifying period.
When subsection (2) does not apply
(4A)If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may determine that subsection (2) does not apply in relation to the child and the adult.
Definition of parent and qualifying period
(5) In this section:
parent includes a relationship parent.
qualifying period means the period beginning when the child ceases to be in the adult’s care and ending at the earliest of the following times:
(a)if the child again comes into the adult’s care at a later time—that later time;
(b)either:
(i) after 14 weeks pass since the child ceased to be in the adult’s care; or
(ii) if the Secretary specifies, under subsection (5A), a day that is earlier than the last day in that 14 week period—the end of that earlier day;
(c)if:
(i) the adult is a parent of the child; and
(ii) no family law order, registered parenting plan or parenting plan is in force in relation to the child; and
(iii)the child comes into the care of the other parent at a later time;
that later time.
Shorter qualifying period
(5A)If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may specify a day for the purposes of subparagraph (b)(ii) of the definition of qualifying period in subsection (5).
Parents of relationship children
(6)If a child (other than an adopted child) is a relationship child of a person because he or she is a child of the person, and of another person, within the meaning of the Family Law Act 1975, the person and the other person are taken to be the child’s only parents for the purposes of paragraph (c) of the definition of qualifying period in subsection (5).
Section 23 applies where an FTB child is in the adult’s care under a family law order and is removed from the care of a person who is eligible for FTB without their consent. Essentially, the section provides that they continue to be qualified for FTB for up to 14 weeks provided they take “reasonable steps to have the child again in the adult’s care” – s 23(1)(c).
In Re Evans and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[1], the Tribunal described the effect of s 23:
8.In general terms, the effect of this provision is that, for any period (up to 14 weeks) during which a child should have been in the care of a particular person pursuant to a family law order but they were prevented from having the child in their care, the child is nevertheless treated as an “FTB” child of that person for that period, and any entitlements to FTB must be assessed accordingly.
9.It follows that whilst questions of entitlement to FTB are more typically determined by reference to the factual question of how much time the child or children spent or are expected to spend in the care of the claimant, where s 23 is invoked, that question becomes irrelevant and the person’s entitlement to FTB must be determined by reference to the relevant family law order or plan.
[1] [2010] AATA 747.
As to what constitutes taking reasonable steps under s 23(1)(c), the Tribunal in Re Lomas and Secretary to the Department of Family and Community Services and Anor[2] referred with approval to the Centrelink Policy Manual on “reasonable steps”:
[11]It will be seen from the terms of s 23(1) that for payment to continue, the adult must take “reasonable steps” to have the child returned to their care. Where the child has not returned to the adult’s care after 14 weeks, the payment of FTB will cease. Centrelink policy provides that “reasonable steps” to have the child returned to an adult’s care might include:
•notifying the police that the child has been taken from the adult’s care without consent;
•applying to the Family Court to have a new or replacement Parenting Plan issued;
•taking out a recovery order through the Family Court.
[2] [2004] AATA 278; 81 ALD 251.
In Re PNZY and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[3], the Tribunal pointed out at [26] that:
… The test is not whether all reasonable steps were taken to have the child returned, but whether reasonable steps were taken. In deciding that question, all relevant circumstances must be taken into account. …
[3] [2011] AATA 525.
There is a sting in the tail provided by ss 23(4) which says:
Except as provided in subsection (2), the child cannot (in spite of section 22) be an FTB child of any individual during the qualifying period.
This subsection operates to disentitle an individual from FTB except in the circumstance of s 23(2). Section 23 gives with the one hand under s 23(2) (to the individual who no longer has care of the child) but takes with the other hand under s 23(4) (from the individual who now has care of the child due to, for example, breaching a family law order). If the family law order is breached then the contravener is, in effect, penalised by losing an entitlement which would otherwise be available by operation of s 22.
I agree with the AAT 1st Review at [41] where the Member said:
… The provision for a qualifying period or an interim period is clearly intended to remove any incentive to contravene a parenting order as to care of a child. Subsection 23(4) goes even further, to punitively disqualify the contravenor for family tax benefit for the child.
However, there is a discretion available to the Secretary under s 23(5A) which if exercised would have the effect of avoiding this disentitlement. Both ss 23(2) and 23(4) operate so as to affect FTB eligibility during the qualifying period which is defined in s 23(5)(b) to be up to the last day in a 14 week period or, if the Secretary specifies under subsection (5A), an earlier day. Special circumstances need to be established before the Secretary exercises the discretion to shorten the qualifying period. If the Secretary is satisfied that special circumstances exist then the qualifying period may be shortened by specifying an earlier date which could result in the qualifying period being reduced to zero days. This is consistent with what the Family Assistance Guide[4] provides at 1.1.Q.10 Qualifying Period (FTB):
Special circumstances where the qualifying period does not apply
If a child ceases to be in an individual's care without their consent, the child may immediately cease to be an FTB child or regular care child of the individual in special circumstances. The change would result in the individual's eligibility for FTB or CCB for the child ceasing. It would also enable the individual who has actual care of the child to become eligible for FA payments for the child if they meet normal eligibility criteria.
[4] The Family Assistance Guide may be taken into account: see Re Lomas (2000) 81 ALD 251 which approved Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
The effect of exercising the discretion under s 23(5A) such that the qualifying period is reduced to zero days is to uphold the entitlements to FTB set out in s 22 despite the child being taken without consent.
Determination of percentage of care
Part 3, Division 1, Sub-division D of the Act provides for the determination of percentage of care. It was inserted by Part 1 in Schedule 2 of the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act2010 (No 65/2010), commencing on 1 July 2010, as part of measures to align care determinations made under the family assistance law and the child support legislation. The Explanatory Memorandum explained the background to the changes, at pages 18 and 19, as follows:
…
The Family Assistance Act and the Child Support Assessment Act differ in how they deal with care percentages and changes in care. This can, and often does, result in different percentages of care being determined for the purpose of assessing a person’s FTB and for a person’s child support assessment, causing confusion for families. It can also mean that families do not receive their correct assessments of FTB and child support unless they separately notify the family Assistance Office and Child Support Agency.
A parent’s eligibility for FTB and ultimately their rate or entitlement may be affected by their percentage of care. The percentage of care may also affect a parent’s child support assessment as a payee or a payer.
This Schedule aligns care determinations made under the family assistance law and the relevant child support legislation. This will allow parents or carers who are entitled to FTB and are also child support payers or payees to have the same care determinations applied for a child where the care of the child involves more than one carer.
This measure will remove duplication of effort in the administration of the family assistance law and the child support legislation and will simplify the service delivery arrangements. It will also mean that families will have a consistent decision regarding care across both agencies that will assist in their dealings with government.
…
Part 3, Division 1, Subdivision D applies so as to determine percentage of care under s 22(7). Within subdivision D is s 35A which applies where the child is not in the adult’s care. It provides as follows:
35A Determination of percentage of care—child is not in the adult’s care
Initial determination
(1) If:
(a)the Secretary is satisfied that an individual (the adult) has no care of a child but that:
(i) the child is an FTB child of the adult under section 23; or
(ii) the child would, under subsection 22(2), (3) or (4), be an FTB child of the adult if there had been, or were to be, a pattern of care for the child over a period (the care period) under a care arrangement relating to the child; and
(b)the adult, or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and
(c)the adult is not a partner of at least one other individual who has a pattern of care for the child such that the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the other individual or individuals; and
(d)section 35C, 35D or 35G applies in relation to the adult;
the Secretary must determine the adult’s percentage of care for the child during the care period in accordance with that section.
Section 35C is found within Part 3 of Division 1, Sub-division D of the Act and provides as follows:
35CPercentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1)This section applies in relation to an individual (the adult) if:
(a)a care arrangement applies in relation to a child; and
(b)the Secretary is satisfied that the actual care of the child that the adult has had, or will have, during a care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil); and
(c)an individual who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.
Note: This section does not apply in certain circumstances, see section 35F.
2 percentages of care in relation to the adult
(2)Subject to subsection (5), the Secretary must determine, under section 35A or 35B, 2 percentages of care in relation to the adult.
(3)The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil).
(4)The second percentage of care is to be:
(a) if section 35A applies in relation to the adult—0%; or
(b)if section 35B applies in relation to the adult—a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed.
Single percentage of care in relation to the adult
(5)If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may determine, under section 35A or 35B, a single percentage of care in relation to the adult.
(6)The single percentage of care is to be:
(a) if section 35A applies in relation to the adult—0%; or
(b)if section 35B applies in relation to the adult—a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed.
The Secretary provided submissions on the relationship between ss 23 and 35C of the Act so as to address purported tensions between the two provisions that had been identified in the decision of the AAT 1st Review.
APPLICATION OF THE LAW TO THE FACTS
From 17 October 2014, Mrs Da-It Arnold had 100% care of the Child. Consequently, the Child (who was aged under 16) was no longer in the care of Mr Arnold and, by the operation of s 22(2) of the Act, the Child was no longer an FTB child of Mr Arnold.
Child taken without consent
I am satisfied of the criteria required by s 23(1), because there was a family law order and Mr Arnold did take reasonable steps through his solicitors to have the Child returned to his care. By operation of s 23 of the Act, the Child could continue to be an FTB child of Mr Arnold for the qualifying period but that is subject to the exercise of the discretion in s 23(5A) and the discretion in s 23(4A). The practical operation of s 23 presents some difficulties particularly with respect to the exercise of the discretions in the two separate subsections. The purpose of s 23 is to provide a benefit to a person in the position of Mr Arnold from whose care the Child was taken but also to give the Secretary the power to not provide that benefit if special circumstances exist under s 23(4A). That would be an appropriate thing to do if it did not have the additional consequence of disentitling Mrs Da‑It Arnold from her FTB because of the sting in the tail provided by s 23(4). I agree with the Senior Member at [45] in the AAT first review who said:
“Although its language is not well suited to the purpose, I consider it preferable to apply subsection 23(5A) on the basis of the special circumstances in relation to [the Child] to shorten the qualifying period so that it ends on 17 October 2014, at the same time as it starts and has no effect…”
Special circumstances exist
I am satisfied that special circumstances exist in relation to the Child such that the discretion provided for in s 23(5A) should be exercised. The term “special circumstances” is not defined in the child support legislation, however, it has been extensively considered in case law such that it requires circumstances that are unusual, uncommon or exceptional[5] and there must be something that distinguishes the case from the ordinary or usual case.[6]
[5] Beadle and Director-General of Social Security (1984) 6 ALD 1.
[6] Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25.
The “special circumstances” in this case are as follows. Mrs Da-It Arnold acted with the authorisation of an SA police officer who told her not to let the Child go back to Mr Arnold. Mrs Da-It Arnold gave evidence, which I accept, that this unusual circumstance was raised subsequently in the Federal Circuit Court which I infer accepted that Mrs Da‑It Arnold was justified in picking up the Child because the Court made an interim order and later a final order giving Mrs Da-It Arnold 100% care of the Child.
Child not an FTB child of Mr Arnold by operation of s 23
Having exercised the discretion under s 23(5A) so that the qualifying period has no effect, there is no need to consider special circumstances under s 23(4A). The result of the discretion being exercised pursuant to s 23(4A) would be that s 23(2) does not apply, namely the Child would not be an FTB child of Mr Arnold and, accordingly, he would not be eligible for FTB for the Child during the qualifying period. But, as set out above, it would also have the undesirable effect of disqualifying Mrs Da-It Arnold from FTB for the qualifying period. To avoid that consequence I consider it appropriate to shorten the qualifying period to zero days so that Mrs Da-It Arnold maintains her entitlement. At the same time, Mr Arnold does not become entitled to FTB despite the child being taken from him. This is consistent with the outcome set out in the Family Assistance Guide at 1.1.Q.10 Qualifying Period (FTB).
The effect of s 23 is to operate as an exception to s 22 so that an adult may continue to receive benefits associated with having an FTB child in circumstances where that child is taken from the adult without his or her consent. The clear intention of s 23(4A) is to give the Secretary a discretion where there are special circumstances to determine that that exception does not apply. In this case it was appropriate to exercise the discretion under s 23(5A) so as to ensure Mrs Da-It Arnold maintained her eligibility despite contravening the family law order. In other circumstances it will be appropriate to exercise the discretion under s 23(4A) which would have the consequences set out above.
Determination of percentage of care
I pause to note that the effect of my findings above is that Mr Arnold is not eligible for FTB despite the Child being taken without consent. However, that is not the end of the matter in terms of Mr Arnold’s eligibility because of the potential operation of s 22(7).
Mr Arnold may still be eligible for FTB if s 22(7) is satisfied. Section 22(7) provides as follows:
Percentage of care at least 35%
(7) If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
Note: If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).
It follows that if Mr Arnold can establish that his percentage of care is at least 35%, then he will be eligible for FTB. To determine his percentage of care, given that the Child is not in his care, one must apply s 35A(1).
Section 35A compels the Secretary to determine Mr Arnold’s percentage of care for the Child if the criteria in the subparagraphs to s 35A(1) are met. I find that those criteria are met for the reasons that follow.
First, there is no issue with respect to subparagraphs (b) and (c).
Next, with respect to subparagraph (a), I find that the second limb is satisfied because Mr Arnold has no care of the Child but the counterfactual is made out, namely the Child would under s 22(2) be an FTB child of Mr Arnold if there had been a pattern of care under the family law orders. That pattern of care would have been 50/50 if adhered to so that s 22(2) would have operated.
Next, subparagraph (d) is satisfied because it is my finding, for the same reasons set out above with respect to s 23(1), that each of the three subparagraphs in s 35C(1) is made out in relation to Mr Arnold.
Section 35C applies in circumstances similar to s 23 so as to determine the percentage of care in s 22(7). It would operate to the benefit of Mr Arnold unless special circumstances are established under s 35C(5) and the discretion is exercised. For the same reasons which supported the exercise of the discretion under s 23(5A), I consider that there are special circumstances that exist in relation to the Child and that the discretion in s 35C(5) should be exercised. Accordingly, the Tribunal, exercising the discretion in the shoes of the Secretary, determines under s 35A a single percentage of care such that Mrs Da‑It Arnold has 100% and Mr Arnold has 0%, which reflects the actual care of the Child. That single percentage applies from 17 October 2014, being the application day as defined in s 35K.
CONCLUSION
The issue for the Tribunal to determine is whether any of the cases set out in the subsections of s 22 are established. In this case, it is only subsections 22(2) and (7) that have potential application. When determining if s 22(2) is established the Tribunal considered the operation of s 23. When determining if s 22(7) is established the Tribunal considered the operation of the provisions within sub-division D of Part 3 Division 1 of the Act, namely ss 35A and 35C.
In the above circumstances, the effect of the legislation is that the Secretary will have to consider exercising, first, one of the two discretions available under s 23 and, second, the discretion in relation to the determination under s 35C(5). These statutory discretions are to be exercised in a way which advances the objects of the Act, which, since the introduction of Sub-division D of Part 3, Division 1 of the Act, is to align care determinations made under the Family Assistance Law and the relevant child support legislation so as to allow parents or carers who are entitled to FTB and are also child support payers or payees to have the same care determination applied for a child where the care of the child involves more than one carer. The discretions would be exercised consistently so as to achieve the purpose of the legislation. In this case I consider that it would have been inappropriate to exercise the discretion in respect of s 23 but not in respect of s 35C. They involve the same factors to be considered. I accept that it appears odd that the legislation requires a discretion to be exercised twice involving the consideration of the same or similar facts but that appears to be the effect of the legislation.
During the hearing, the Respondent contended that subdivision D and s 23 have conflicting effects in certain circumstances and hence should be interpreted so as to resolve those conflicts. On the findings that I have made no conflict arises so I do not need to consider those potentially conflicting circumstances.
I conclude that in the relevant period:
(a)the percentages of care for the Child are 100% for Mrs Da-It Arnold and 0% for Mr Arnold; and
(b)the Child remained an FTB child of Mrs Da-It Arnold.
DECISION
For the above reasons, the Tribunal affirms the decision of the AAT at first review.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Britten-Jones
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Administrative Assistant
Dated: 23 December 2016
Date(s) of hearing: 12 August 2016 Applicant: In person Advocate for the Respondent: Mr A Hay Solicitors for the Respondent: Department of Human Services Joined Party: In person
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