Awur; Secretary, Department of Education, Skills and Employment and (Social services second review) - [2020] AATA 4091

Awur; Secretary, Department of Education, Skills and Employment and (Social services second review) [2020] AATA 4091 (14 October 2020)
ReviewNumber: 2020/1189 and 2020/1191
Division:GENERAL DIVISION
File Number: 2020/1189
Re:Secretary, Department of Education, Skills and Employment
APPLICANT

AndAkur Awur
RESPONDENT

File Numbers: 2020/1191–3
Re:Secretary, Department of Social Services
APPLICANT

AndAkur Awur
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:14 October 2020
Place:Melbourne

The Tribunal:
(a)Affirms the decision of the Social Services & Child Support Division of this Tribunal (“AAT1”) under review in relation to applications 2020/1191–3; and
(b)Sets aside the decision in application 2020/1189, as varied by the First Applicant on 18 June 2020, and remits the matter to the First Applicant for reconsideration in accordance with the direction that, pursuant to these reasons, there are no Child Care Benefit (“CCB”) debts.

....[sgd]...................................................................
R Cameron, Senior Member
Catchwords
SOCIAL SECURITY – family tax benefit – parenting payment – adult legally responsible – in the adult’s care – making decisions concerning daily care and control of child – decision affirmed
SOCIAL SECURITY – child care benefit –adult legally responsible – in the adult’s care – making decisions concerning daily care and control of child – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975
A New Tax System (Family Assistance) Act 1999
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Reece and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Parsons (Party Joined) [2008] AATA 525
Secretary, Department of Social Security v Lowe (1999) 92 FCR 26
Secondary Materials
Family Assistance Guide
REASONS FOR DECISION
R Cameron, Senior Member
14 October 2020
INTRODUCTION

The First Applicant, the Secretary of the Department of Education, Skills and Employment, and the Second Applicant, the Secretary of the Department of Social Services (“the Applicants”), seek review of a decision of the Social Services & Child Support Division of this Tribunal (“AAT1”) made on 23 January 2020 (“the reviewable decision”). The reviewable decision set aside two previous decisions made by an authorised review officer (“ARO”). The ARO decisions determined the Respondent had the following debts:
(a)Family Tax Benefit (“FTB”) debt of $4,678.40 for the period 6 July 2015 to 3 July 2016;[1]
(b)Child Care Benefit (“CCB”) debt of $215,126.96 (subsequently varied by the First Applicant on 18 June 2020 to $110,165.45);[2]
(c)Parenting Payment (“PP”) debt of $10,344.49;[3] and
(d)FTB debt of $1,681.68 for the period from 1 July 2016 to 25 August 2016.[4]
[1] Tribunal application number 2020/1191; T17 and T19 of the documents lodged by the Applicant pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”).
[2] Tribunal application number 2020/1189; T17 and T19 of the T documents.
[3] Tribunal application number 2020/1193; T17 and T19 of the T documents.
[4] Tribunal application number 2020/1192; T17 and T19 of the T documents. See, also, the Applicants’ Statement of Facts, Issues and Contentions (“SFIC”) at 9 [61].
The AAT1 remitted the matters to the Applicants for reconsideration with a direction that two children were FTB and PP children of the Respondent, from 10 September 2015 until 25 August 2016, and consequently no debts for PP, FTB or CCB were owed by the Respondent.
In seeking the review, the Applicants do not dispute the findings of AAT1 concerning the entitlement to the FTB during the period 10 September 2015 to 15 February 2016.
THE ISSUES BEFORE THE TRIBUNAL.
The Tribunal has considered the parties’ submissions on the issues for its consideration. The following questions arise for determination:
(a)During the period 16 February 2016 to 25 August 2016 (“the relevant period”), was the Respondent entitled to payment of the FTB, the PP and the CCB;
(b)If she was not entitled to the FTB, PP and CCB, whether payments made to her during the relevant period are recoverable debts; and
(c)If such overpayments are recoverable debts, whether any or all of the debts can be waived or otherwise written off.
THE EVIDENCE.
There was documentary and oral evidence before the Tribunal. The documentary evidence consisted of the following:
(a)The documents lodged by the Applicants under section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents);
(b)The Supplementary T documents;
(c)Witness statement of Suchet Jagota;
(d)Witness statement of Lois A Maker (“Ms L Maker”); and
(e)Witness statement of Adhieu Maker (“Ms A Maker”).
There was oral evidence from Ms Jagota, Ms L Maker, Ms A Maker and the Respondent, Ms Akur Awur.
THE HEARING.
The hearing was held by telephone and commenced on 22 June 2020. Ms Jagota, Ms L Maker and Ms A Maker gave evidence on that day. However, the Respondent was not available and did not intend to give evidence in relation to the matter. The reason for this was that the Applicants were relying upon the contents of a witness statement made by Ms Jagota on 24 April 2020, which contained an attached telephone attendance note concerning a conversation that she had with Ms A Maker on 4 October 2018 at 1:50 PM. The position of the Respondent, who was legally represented by Mr Mayek, was that because in effect the case the Respondent relied upon was whether the version of this telephone conversation was accepted, as contended for by the Applicants, it was not necessary to call the Respondent, nor have her available for cross-examination.
Mr Noonan, solicitor with Services Australia and representative for the Applicants, submitted that he wished to cross-examine the Respondent on behalf of the Applicants. As she was not available, Mr Noonan sought an adjournment to procure the Respondent’s attendance for such purposes. Accordingly, an adjournment was granted, and the hearing resumed on 25 August 2020. The Respondent gave evidence and was extensively cross-examined by Mr Noonan on behalf of the Applicants.
SOME RELEVANT FACTS.
Background to the benefits concerned with this application.
Ms A Maker is the mother of five children: Child 1 (born in 1999), Child 2 (born in 2012), Child 3 (born in 2014), Child 4 (born in 2017) and Child 5 (born in 2019). The applications for review concern the care of only two children, Child 2 and Child 3.
On 11 September 2015 the PP was granted to the Respondent for Ms A Maker’s children Child 2 and Child 3 effective from 10 September 2015.
On 19 October 2015 the FTB was granted to the Respondent for Ms A Maker’s children Child 1, Child 2 and Child 3 effective from 9 September 2015.
On 22 October the CCB was granted to the Respondent for Ms A Maker’s children Child 2 and Child 3 effective from 10 September 2015.
On 2 September 2016 the Department of Human Services (“the Department”) notified the Respondent of decisions to cancel:
(a)The FTB from the grant date and to recover a debt of $10,182.40 for the period 6 July 2015 to 3 July 2016; and
(b)The CCB from the grant date and to recover a debt of $228,604.32 for the period 6 July 2015 to 3 July 2016.
On 1 December 2016 the Department notified the Respondent of a decision to cancel the PP from the grant date and to recover a debt of $19,437.27 for the period 10 September 2015 to 25 August 2016.
On 1 December 2016 the Applicant notified the Respondent of a decision to recover an FTB debt of $1,681.68 for the period 1 July 2016 to 25 August 2016.
On 23 October 2018 an Authorised Review Officer (“ARO”) notified the Respondent of two decisions to vary the original decisions on the basis that Child 2 and Child 3 were in the care of the Respondent and not Ms A Maker in the period 9 September 2015 to 15 February 2016. This resulted in each of the claimed debts being varied as follows:
(a)FTB: $4,678.40 for the period 6 July 2015 to 3 July 2016;
(b)CCB: $215,126.96 for the period 6 July 2015 to 3 July 2016 (subsequently reduced to $110,165.45 on 18 June 2020);
(c)PP: $10,344.49 for the period 16 February 2016 to 25 August 2016; and
(d)FTB: $1,681.68 for the period 1 July 2016 to 25 August 2016.
As noted above, on 23 January 2020, AAT1 made the reviewable decision for which review was sought in this application.
The ARO’S witness statement and the grounds relied upon for the 23 October 2018 decision.
The ARO, Ms Jagota, made a witness statement and gave evidence at the hearing of the application.
The key aspect of her evidence both in the witness statement and from the witness box concerned a telephone conversation that she had on 4 October 2018 with Ms A Maker. There is no dispute that a telephone conversation took place between them on that date. To her credit, both in her witness statement and from the witness box, she stated that she had no independent recollection of the content of the telephone call concerned. She stated that her practice was to make handwritten notes at the time of the telephone conversation and then type them up straight away in the ARO notes, which were attached to her witness statement.
It is perhaps appropriate to reproduce the critical passage of the telephone attendance note as recorded by Ms Jagota in the ARO Notes.
Ms Maker lived close by. [Ms Awur] would take them over to Ms Maker’s house for a few hours, 3-4 days a week. The children had their belongings at [Mrs Awur] and Ms Maker’s place. Ms Maker was providing little financial support towards looking after the children. Whenever, the children required any medical attention, Ms Maker would take them to the doctor because [Mrs Awur does] not drive. Ms Maker advised me that she is responsible for any major decisions in relation to health and education of the children.
Ms Jagota did however, recall in cross-examination that Ms A Maker said she did not get her children back in her care on her return because she had a miscarriage and was unable to look after them. She also said in cross-examination that Ms Maker said she was unable to look after them for the whole period.
It was put to Ms Jagota, in cross-examination, whether it is possible the statement was wrong or embellished. She steadfastly maintained that her notes were as she recorded them as advised by the customer.
The Respondent’s evidence.
The Respondent is the mother of Ms A Maker and Ms L Maker. As was noted earlier, all gave evidence at the hearing of this application. They were all born in Sudan. English is not their first language. Indeed, the Respondent does not speak English at all. She has limited literacy skills. In addition to not speaking English, the Respondent does not drive. Similarly, while her daughters have some knowledge of English, it is extremely limited. It is apparent that both daughters have limited literacy and comprehension skills. They obviously were educated to a limited level. The Tribunal considers it is important that this perspective not be lost with respect to the disposal of this application.
On or about 1 November 2015 Ms A Maker travelled to Uganda for approximately three months to visit her husband who resided there. When she departed for Uganda, she left her children with her mother, as she put it, to look after them as their primary carer on a full-time basis. The Respondent, Ms A Maker’s mother, at that time in November 2015 resided with another daughter of the Respondent who also gave evidence at the hearing of this application, Ms L Maker. It is apparently not uncommon amongst families of Sudanese origin for parents and children to reside under the one roof. In these settings it seems also apparent that the grandparents, or a grandparent, will assume the role of primary carer for those children.
After the children concerned were left with the Respondent, they attended family day care. On most days they attended family day care from approximately 8:00 AM until 6:30 PM. The evidence before the Tribunal was that an educator from a family day care centre arranged to collect the children and returned them at the end of the day.
Both in her witness statement and in cross-examination Ms A Maker described her mother as basically the children’s primary carer after 1 November 2015. She gave evidence, which was not challenged in any serious way during the hearing and in cross-examination, that she notified Centrelink of the arrangement with her children and her mother. Indeed, upon her return to Australia, she reported to Centrelink every fortnight. Centrelink did not raise any questions about the caring arrangements of her children. The evidence (from all witnesses) was consistent that the children over the relevant time from February to August 2016 stayed with the Respondent. The children kept most of their belongings at the Respondent’s house. There were a few clothes at their mother’s house, but most of their possessions were with her mother (the Respondent in this application).
The Respondent paid all living expenses for the children. When specifically asked who made major decisions concerning the health and education, Ms A Maker consistently stated that it was her mother. (This was not challenged in cross-examination.) She went further to say that her mother was the one taking them places, looking after them and addressing all major decisions, and that Ms A Maker had nothing to do with it. Additionally, her evidence was also (which was not challenged in cross-examination) that any expenses relating to the children were paid for by her mother because the Respondent was receiving government benefits. This included health, education and food. She did concede, quite fairly to her credit, occasionally when the children needed to see the doctor, she would accompany them with her mother. The transport was arranged by one of her siblings. She consistently maintained that her mother looked after the children as the primary carer until she resumed care for them in August 2016.
Ms A Maker gave evidence that, while overseas in Uganda, she became pregnant and then suffered a miscarriage. The miscarriage occurred shortly before she was due to return to Australia in February 2016. Her evidence was, and the Tribunal accepts it, that following the miscarriage in Uganda she was left with severe abdominal pains, frequent bleeding, back pain and sprains. She stated that she was not feeling at all well shortly before and continuing after her return. This was her first of three miscarriages. Her evidence was that she suffered further miscarriages relatively soon after her return to Australia, one in March 2016 and another one in approximately May/June 2016. The Tribunal accepts this evidence.
Ms A Maker returned to Australia on or about 16 February 2016. The evidence of the Respondent, Ms L Maker and Ms A Maker herself, was that she was really unwell. Her evidence was that she sought medical attention from Dr Myra Mpungu, general practitioner, for the conditions that she experienced following the first miscarriage in February 2016. She also said that at the time she was not feeling well and still experiencing bleeding as a result of the miscarriage in addition to the other symptoms described. Dr Mpungu advised Ms A Maker that she could not care for her children because of the miscarriage. She also advised Ms A Maker to not undertake any heavy work or heavy duties, and to rest. Following this advice, and due to the continuing conditions experienced by Ms A Maker, the children continued to reside under the care of her mother (the Respondent). Ms A Maker also gave evidence that throughout the relevant period, due to the complications of the miscarriages and the symptoms she was experiencing, she was just not able to look after the children. This evidence was not really challenged by the Respondent. The Tribunal accepts this evidence.
The arrangement for continuing care of the children by the grandmother was discussed between the Respondent and Ms A Maker. The substance of the discussions was that because she was continuing to experience significant symptoms as a result of the miscarriage the children would stay with their grandmother. Ms A Maker gave evidence, which the Tribunal accepts, that she told her mother to look after the children until she recovered. The Respondent said words to the effect that that was fine with her. This discussion took place on two occasions, the substance being as recounted.
The Respondent’s evidence about the conversations between her and Ms A Maker following Ms A Maker’s return to Australia in February 2016 was largely the same. She stated that they discussed who was to be responsible for taking care of the children on Ms A Maker’s return. Ms A Maker told her that she was feeling unwell and asked her mother if she could take care of the children. The Respondent was well aware that her daughter was suffering as a result of her miscarriages, that she had endured one miscarriage while overseas and another two upon her return. The Respondent knew that these miscarriages were the cause of her daughter being quite unwell.
The Respondent was also probed as to what kind of care she provided to her grandchildren while her daughter was sick. Her response was that it was whatever needs the children had. She gave detailed evidence of washing nappies and clothes by way of example. Additionally, she was probed about whether she paid for the cost of caring for them, such as purchasing their food. She stated she did and that these payments came from the money she received from Centrelink.
Subsequently, following her return to Australia Ms A Maker became pregnant again and experienced two more miscarriages between April and August 2016. Ms A Maker gave evidence that during this period she was tired and unwell for most of the time and could not look after her children. In response to a question in cross-examination she stated that it was decided between her and her mother following the advice of Dr Mpungu that she could not look after her children. The Tribunal accepts the Respondent’s evidence in all respects.
Ms A Maker was probed fairly searchingly in cross-examination about the complications she experienced during her pregnancy, as identified in paragraph 12 of her witness statement. She stated that the complications included back pain, bleeding and dizziness. The spells of dizziness sometimes occurred when she was walking. She did refer to two medical certificates which were annexed to her witness statement. The first of those certificates was prepared for Centrelink for the period from 16 August 2016 until 15 November 2016 inclusive. Although, later in the period under consideration, the symptoms are described as “lower abdominal pains, vaginal bleeding”. These symptoms are consistent with, among others, the symptoms that she stated she experienced from time-to-time from the first miscarriage through to the third one. The Tribunal accepts this evidence from her.
Several things should be observed on the question of the discussions with Ms Jagota. In paragraph 14 of Ms A Maker’s witness statement she addresses the evidence of Ms Jagota. In contrast to the telephone file note recorded by Ms Jagota, Ms A Maker stated that she only said that the children would come and visit her. She described that as natural. She asserted that she never said that they had ceased being in her mother’s care, as she was not physically able to look after them. Consistently, in her oral evidence she maintained that this was what she told Ms Jagota. In cross-examination, interestingly, it was not specifically put to her that she might be mistaken, reconstructing or even untruthful. The Tribunal accepts her evidence as to what she said to Ms Jaogota in the telephone conversation on 4 October 2018. Indeed, aspects of the conversation recounted in paragraph 21 above by Ms Jagota in cross-examination are largely consistent with the evidence she gave to the Tribunal. It is a reason, amongst others, for accepting her evidence. Having had the opportunity to hear evidence from her over the telephone, the Tribunal finds that it would be very easy for someone to misunderstand what she was saying, or otherwise misconstrue it, as at times it is not easy for her or the listener.

Unfortunately, the Tribunal considers this case is a classic example of why witness actions such as those in issue here, should not be heard by way of a telephone hearing. If important credit findings are to be made, at the very least, such hearings should be undertaken by way of a video link. The Tribunal did not find that Ms A Maker or the Respondent were unreliable witnesses or whose evidence should not be accepted. They did their best in the alien environment of a Tribunal hearing over the telephone. If anything, Ms A Maker was overborne by it and the Respondent, it would be fair to say, was somewhat challenged. It should be recalled that she is a woman of limited education and language skills. She did her best at all times in the witness box to assist the Tribunal and did not strike one as in any way untruthful, prone to exaggeration or reconstruction. More likely than not, this is just a classic example of cultural differences and limited comprehension of several things combining in this environment to a misunderstanding of what was probably said. Lest it needs to be repeated, the Tribunal accepts Ms A Maker’s and the Respondent’s evidence.
CONSIDERATION.
As noted earlier the Applicant does not take issue with the decision of AAT1 concerning entitlement to the FTB during the period 10 September 2015 until 15 February 2016.[5] As is evident from the earlier observations, this largely covers the period during which Ms A Maker was absent in Uganda.
[5] This concession is made in paragraph 2 of the Applicants' Statement of Facts, Issues and contentions.
The issue for determination centres around whether Respondent was legally responsible for the children concerned in the relevant sense after Ms A Maker’s return to Australia.
Section 21 of A New Tax System (Family Assistance) Act 1999 (“FA Act”) prescribes when an individual is eligible for family tax benefits in normal circumstances. These are sometimes referred to as the “eligibility criteria”. One of the pre-requisites of the eligibility criteria is that the individual must have at least one “FTB child”.
To determine whether an individual is an FTB child of an adult for the purposes of the eligibility criteria, section 22(2) of the FA Act identifies four matters that must be satisfied. The Tribunal finds that the requirements of subsections (a), (b) and (c) are satisfied. The key question for this matter is to establish whether the adult (the Respondent) was legally responsible for the day-to-day care, welfare and development of the child (section 22(5)(a) of the FA Act.)
The Applicants refer to the definitions contained in the Family Assistance Guide (“FA Guide”). The Applicants correctly contend that although such policy is not binding, it is customary to apply it unless there is good reason not to do so, relying upon the well-known decision of Drake v Minister for Immigration and Ethnic Affairs (No 2).[6]
[6] (1979) 2 ALD 634.
Reference is made by the Applicant to the definition of “Informal care” in the FA Guide and also “Delegation of care in informal care situations.” Concerning “Informal care”, the FA Guide notes that in informal care situations eligibility to receive FTB depends on whether there has been a change of care or a delegation of care. The FA Guide provides that where there has been a delegation of care of a child to another individual the FTB is not payable to the other individual. The key consideration identified in the FA Guide in classifying a care arrangement as a delegation rather than a change of care, is whether the individual concerned retains overall responsibility for the child, including the ability to make major decisions about the child such as those relating to the child’s health and education, and the length of time they spend with the other carer. The decision of this Tribunal in Reece and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Parsons (Party Joined)[7] was referred to. Helpfully, in that decision, Senior Member Fice considered the state of the authorities, including the decision of the Full Federal Court in Secretary, Department of Social Security v Lowe,[8] which suggested the whole of the arrangements for the care of the child should be considered when such a determination is made.
[7] [2008] AATA 525.
[8] (1999) 92 FCR 26.
The Applicants in advancing the contention that the Respondent did not have legal responsibility for the care of the children or as required by section 22 of the FA Act nailed its flag to the masthead by relying on the contents of the conversation between Ms Jagota and Ms A Maker on 4 October 2018. In particular, the notation recorded that Ms A Maker advised Ms Jagota that she was responsible for any major decisions in relation to health and education of the children. This, the Applicants contended, was adequate evidence that Ms A Maker retained overall responsibility for the children.
The Applicants submitted that Ms Jagota’s record of the telephone conversation with Ms A Maker on 4 October 2018 about the day-to-day care of the children — and, therefore, the legal responsibility in the relevant sense — is more likely to be reliable.
Four grounds were relied upon by the Applicants in support of this contention. It is appropriate to reproduce them. They were:
(a)There is nothing to suggest that Ms Jagota either misunderstood Ms A Maker’s advice or inaccurately recorded it.
(b)The record of the discussion between them was more contemporaneous with the period than the more recent witness statement and evidence given to the Tribunal (including AAT1). Ms A Maker’s recollection in October 2018 of the Respondent’s care of the children in the relevant period was likely to be more accurate compared with the more recent account given.
(c)Ms A Maker had no apparent reason to give incorrect advice to Ms Jagota.
(d)Since Ms A Maker is the Respondent’s daughter, her evidence is not impartial, and the Tribunal should weigh it accordingly.
When the Tribunal takes into account the whole of the arrangements for the care of the children concerned from the evidence before it, it considers that , the legal responsibility for the children within the meaning of section 22 of the FA Act vested in the Respondent from 16 February 2016 to 25 August 2016. Their biological mother did not retain overall responsibility for the children, including major decisions relating to their health and education. Ms A Maker was simply unable to do so by reason of the complications from her miscarriages and surrendered responsibility for such tasks to her mother. She did so on medical advice.
This conclusion is reached for several reasons. The acknowledgement by the Applicants that the decision of AAT1 for the period of 10 September 2015 to 15 February 2016 does accord with the reality of the situation. The biological mother of the children was not present in the country. Clearly, the children were in the custody of the Respondent, their grandmother, who assumed responsibility for all major decisions such as those relating to their health and education whilst their mother was in Uganda. If one might use a term that is probably somewhat unfashionable in these times, but helpful nonetheless, she became a de facto parent.
The Tribunal accepts that Ms A Maker was extremely unwell on her return to Australia. It must be repeated that her evidence, and that of the Respondent and her sister, Ms L Maker, is accepted by the Tribunal. She had one miscarriage shortly prior to her return and two afterwards. Acting on medical advice, and because of the symptoms from which she suffered, the arrangements that were in place while she was away in Uganda were continued. In other words, the grandmother became the de facto parent. The contents of the discussions between mother and daughter that have been recounted earlier in these reasons are repeated. The evidence concerning the recommendations given by the doctor concerning Ms A Maker’s care for the children and the symptoms she experienced are also referred to. It should be approached with a degree of realism. Three miscarriages within a very short time span would be a most daunting experience for anyone. Not only physically but mentally. One must have sympathy for Ms A Maker in that situation. It is perfectly understandable that she would have allowed the continuation of the existing arrangements which encompassed legal responsibility for the children, as she was not in a fit state to undertake parental responsibilities, and was not prepared to do so in the situation she found herself in. She surrendered parental responsibility to her mother.
The conflict between the contents of the file note and the evidence given by Ms A Maker must be considered.
Ms A Maker denied she used the words ascribed to her in the telephone attendance note as recorded by Ms Jagota. She explained why she disagreed with it. As noted earlier, the Tribunal accepts her evidence.
The Tribunal acknowledges that the telephone attendance note is largely contemporaneous with the conversation concerned. It is a factor that must be taken into account. However, it is not necessarily determinative.
The fact that Ms A Maker is the Respondent’s daughter does not necessarily make her incapable of being impartial. It is a factor that must be duly considered. However, the Tribunal found her truthful. Her evidence was not unreliable, exaggerated, reconstructed or embellished. It should be repeated that she did her best in an alien environment of the Tribunal hearing by telephone.
It should be recorded that the Tribunal finds Ms Jagota a fair-minded and dedicated public servant. She gave her evidence in an impartial and proper way. To her credit, she readily conceded she had no independent recollection of the telephone conversation. Unlike the Tribunal, she did not have the benefit of more detailed and extensive evidence from Ms A Maker, the Respondent and Ms L Maker. This does place things in a different light. The Tribunal also concludes that on the preponderance of the evidence, Ms A Maker’s evidence should be accepted, given the observations in paragraph 21 above concerning the telephone conversation on 4 October 2018 between Ms A Maker and Ms Jagota. In that paragraph it will be recalled Ms Jagota made the concession that Ms A Maker certainly said to her that she did not get her children back when she returned to Australia because she had a miscarriage and was unable to look after them. That concession is consistent with Ms A Maker’s evidence.
The discrepancy between the contents of the file note and the evidence of

Ms A Maker is more likely than not a reflection of the fact that English is not her first language, and she has had limited education and acquired also comparatively limited literacy skills. It was apparent to the Tribunal in the course of taking her evidence that it was to some extent a struggle. More likely than not, she probably did not appreciate the tenor or meaning of the conversation that she was having with Ms Jagota. If she used the words ascribed to her, she probably did so incorrectly and did not intend to convey the meaning that was recorded by Ms Jagota. Even if she used the words concerned, they were not in accord with the actual, factual situation that the Tribunal has found was the case concerning legal responsibility for the day-to-day care, welfare and development of the children during the relevant period.
Therefore, the Tribunal finds that Child 2 and Child 3 were FTB children of the Respondent during the relevant period. Given these findings, it also addresses the other issues in the applications. These include the questions of the Respondent’s eligibility for the CCB, and whether the Respondent qualified for the PP in the relevant period in the issue, relating to the alleged debts.
DECISION.
Accordingly, the Tribunal:
(a)Affirms the decision under review in relation to applications 2020/1191–3; and
(b)Sets aside the decision in application 2020/1189, as varied by the First Applicant on 18 June 2020, and remits the matter to the First Applicant for reconsideration in accordance with the direction that, pursuant to these reasons, there are no Child Care Benefit (“CCB”) debts.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....[sgd]..................................................................
Associate
Dated: 14 October 2020

Dates of hearing: 22 June and 25 August 2020

Advocate for the Applicants: Mr Tim Noonan

Solicitors for the Applicants: Services Australia

Advocate for the Respondent: Mr Maker Mayek

Solicitors for the Respondent: Mayek Legal

Dates of hearing:	22 June and 25 August 2020
Advocate for the Applicants:	Mr Tim Noonan
Solicitors for the Applicants:	Services Australia
Advocate for the Respondent:	Mr Maker Mayek
Solicitors for the Respondent:	Mayek Legal