Beakey and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1221

Beakey and Secretary, Department of Social Services (Social services second review) [2017] AATA 1221 (4 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2626

Re:Deborah Beakey

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Sean BeakeyAnd  

OTHER PARTY

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:4 August 2017

Place:Brisbane

I affirm the decision under review.

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Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – FTB – whether there has been a change to child’s care circumstances – whether the Applicant had care of child – whether child was an FTB child of the Applicant or Other Party – finding of fact in relation to plausible care of child – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 5, 7, 10, 13, 16

CASES

Polec v Staker and Another [2011] FMCAFAM 959

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

4 August 2017

BACKGROUND

1. The applicant was a recipient of a family tax benefit (“FTB”) in respect of her four children, “S”, “I(1)”, “A” and “I(2)”.

2. On 23 June 2015, a delegate of the respondent cancelled the applicant’s FTB due to an assessment that the applicant no longer had full-time care of the children and that the children were in the full-time care of the other party.

3. On 17 July 2015, an Authorised Review Officer (“ARO”), delegated by the respondent, affirmed the original decision to cancel the applicant’s FTB.

4. On 19 January 2016, the applicant applied for review of the ARO decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”). On 21 April 2016, the decision under review was affirmed by the AAT1.

5. On 18 May 2016, the applicant applied to this Tribunal for review of the AAT1 decision.

   HISTORY

6. The applicant and the other party were a married couple. The other party was incarcerated and returned to the family home on or after 12 May 2015. Shortly after that, the couple became estranged.

7. The other party notified Centrelink of the change in circumstances on 3 June 2015, stating that he had full-time care of all children dating back to 26 May 2015.

8. The applicant originally contended that she had full-time care of all children at the time of cancellation, however she then conceded prior to the hearing of the matter before AAT1 that she did not have full-time care of three of the four children prior to the cancellation.

9. The applicant pursued the review on the basis that she continued to have 100% care of the fourth child, S, after 26 May 2015. The other party submits that he had 100% care of the child, S, from 26 May 2015 to 21 January 2016 when he advised Centrelink that he was no longer financially supporting the child.

10. The parties have not disputed care of the child beyond 21 January 2016 which is the date that the other party advises he stopped supporting the child financially. I accept that the period in which I must determine the care of the child for the purposes of this review is from 26 May 2015 to 21 January 2016 (the “relevant period”), and as such, whether the applicant or other party is entitled to FTB for the relevant period. It should be mentioned that there is no contention by the applicant and the other party that they had shared care of S.

    LEGISLATION

11. A New Tax System (Family Assistance) Act 1999 (“the Act”) sets out the qualifying criteria and provisions to calculate FTB including in the case of shared care arrangements.

12. Section 22 provides:

    22       When an individual is an FTB child of another individual

    (1)  An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

    Individual aged under 16

    (2)An individual is an FTB child of the adult if:

    (a)the individual is aged under 16; and

    (b)the individual is in the adult’s care; and

    (c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and

    (d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).

    …

    Legal responsibility for the individual

    (5)The circumstances surrounding legal responsibility for the care of the individual are:

    (a) the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; or

    (b) under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or

    (c)the individual is not in the care of anyone with the legal responsibility for the day to day care, welfare and development of the individual.

    …
    

    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.

13. The term percentage of care is defined in section 3 of the Act:

    percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.

14. Section 23 of the Act makes provision for where an FTB child is prevented from being in the care of a person who is eligible for FTB.

15. Section 25 of the Act provides:

    25       Effect of an individual’s percentage of care for a child being less than 35%

    If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.

16. The Act sets out the requirements for the Secretary to determine the percentage of care in relation to a child not in the care of a person: see section 35A. Section 35B sets out the requirements of the Secretary to determine the percentage of care in relation to a child when in the care of a person.

17. Section 59 of the Act provides:

    59Shared care percentages where individual is FTB child of more than one person who are not members of the same couple

    (1)  An individual has a shared care percentage under this section for an FTB child of the individual if:

    (a)  the Secretary has determined the individual’s percentage of care for the child during a care period; and

    (b)  that percentage is at least 35% and not more than 65%.

    (2)The individual’s shared care percentage for the FTB child is the relevant percentage specified in column 2 of the table.

Shared care percentages
Item	Column 1 Individual’s percentage of care	Column 2 Shared care percentage
1	35% to less than 48%	25% plus 2% for each percentage point over 35%
2	48% to 52%	50%
3	more than 52% to 65%	51% plus 2% for each percentage point over 53%

(3)If the shared care percentages, specified in the table, of all of the individuals of whom the child is an FTB child add to less than 100%, then the Secretary may determine a different whole percentage for one or more of those individuals for the FTB child. Despite subsection (2), the individual’s shared care percentage for the child is the percentage so determined for that individual.

EVIDENCE

1. The parties have agreed to the matter being heard on the papers without a hearing in person. The factual circumstances must be established from the documentation submitted which includes information provided by the parties to Centrelink initially, submissions made to the ARO within Centrelink reviewing the initial decision and the evidence given to and subsequently recorded in the AAT1 decision of 21 April 2016. No further information has been provided by the applicant or other party for the purposes of this review.

2. The applicant submits that she maintained full time care of the child S at all times during the relevant period. She stated to the AAT1 that she was homeless during the latter part of 2015 and that S lived with her. The applicant submitted to the ARO at Centrelink the medical certificate of Dr Josephsen[1] who certified that the applicant had been the sole provider for S “since before [the child’s] father Sean went to jail, for the duration of that time and since then”. The applicant further submitted a certificate from TAFE Queensland which shows that the child S successfully completed a Certificate II in Hospitality and Responsible Service of Alcohol during the period of August 2015 to December 2015.[2]

   [1] T-documents, T23 at pp. 201-202

   [2] T-documents, T23 at p. 203

3. The other party submits that the child S stayed with friends and grandparents in the Gold Coast area during the latter part of 2015 but that “he maintained regular contact with her” and “he supported her financially by giving her regular cash payments”.[3] The other party gave evidence at the AAT1 that he stopped providing financial support to S on 21 January 2016 and “he would be agreeable to Centrelink recording him as having 0% care of S from that date”.[4] The other party provided a letter from his solicitors, Federov Lawyers, which outlines that all children, including S, were in his sole care from 26 May 2015[5] as well as a letter from Ms Deb Olson, Program Manager at Intensive Family Support Service, which states that the other party sought their support services and that the family would be placed on a waiting list[6].

   [3] T-documents, T2 at p. 5

   [4] Ibid

   [5] T-documents, T29 at p. 234-235

   [6] T-documents, T29 at p. 233

4. There is a letter in evidence from the applicant’s solicitors, Mark Treherne and Associates, which is addressed to Centrelink. This letter attaches the Temporary Protection Order which prevented the applicant from following or approaching her other child, I, and commenting that “The order probably prevents her from going back to her home.”[7] This letter states that the Order was extended until 14 September 2015, however the Order states[8]:

   THIS ORDER SHALL REMAIN IN FORCE UNTIL A FURTHER ORDER IS MADE IN THE PRESENCE OF THE RESPONDENT OR IS SERVED UPON THE RESPONDENT OR THE RESPONDENT IS TOLD BY A POLICE OFFICER ABOUT THE EXISTENCE OF SUCH FURTHER ORDER OR UPON THE WITHDRAWAL OR DISMISSAL OF THE APPLICANT FOR A PROTECTION ORDER BY THE COURT.

   [7] T-documents, T8 at p. 84

   [8] Ibid at p. 85

   CONSIDERATION

5. I must determine whether the applicant or the other party had care of S. As there are differing factual accounts by both parties, I must weigh the conflicting evidence.

6. The applicant has submitted a medical certificate from Dr Josephsen which states that the applicant has been the sole provider for S at all times before the father was incarcerated, for the time of his incarceration and “since then”. The relevant care period is a time period after the other party was released from prison. Dr Josephsen is a general practitioner who is qualified in that capacity to give his medical opinion about medical issues. The applicant indicated to AAT1 that Dr Josephsen’s opinion would have been based on what the doctor had been told.

7. I do not give great weight to this medical certificate in supporting the actual care arrangement for S during the relevant care period. This is because the opinion of the doctor is based on what the doctor had been told. His medical certificate is not completed based on independent knowledge of the care arrangement situation.

8. The applicant stated that she was homeless during the latter part of 2015 and that S remained with her during this time. The applicant submitted a statement that S successfully completed a Certificate II in Hospitality between 21 August 2015 and 10 December 2015. I find that this evidence does not support the applicant’s claim that S remained in her care during the time. I have also taken into account that the applicant has not been consistent in her statements concerning the care of her children.[9]

   [9] See paragraph 8 of these reasons

9. The other party states that S lived on the Gold Coast with grandparents and friends during which time he financially supported her and noted that the financial support he provided ended on 21 January 2016. The other party has not submitted any financial records which support this claim.

10. In the absence of further and definitive documentary evidence, I find that the other party’s submission is more plausible. I find it is more likely than not that the child S stayed between family and friends owing to the instability of the applicant’s housing situation. The applicant has admitted she was homeless throughout August to December 2015 and this was at a time when the child was completing a course of study; the child is more likely to have required a home base and monetary support during that time, which weighs in favour of the other party’s submission.

11. The applicant and other party have not made any claim of shared care for the child. The respondent submits that there has been no determination made with respect to a shared care percentage to be afforded each party, according to sections 59 and 35A/35B of the Act, and so it cannot be established that:

    (a)    there was a pattern of care for S;

    (b)    S was under the care of more than one individual; and

    (c) the applicant or other party had less than 35% care and so S could not be an FTB child of either under section 25.

    The respondent also submits that there was no care arrangement in place and as such even if it were shown that the child S was prevented from being in the care of a person eligible for FTB, the applicant would not be able to rely on section 23 of the Act.

12. I accept these submissions of the respondent. There is no evidence submitted by the applicant or other party about a percentage of care determination under the Act or of a formalised care arrangement for S which would lead me to conclude otherwise. On this basis section 25 of the Act cannot be relied upon to determine that the child was not an FTB child of either the applicant or the other party, despite the fact I have determined on the balance of probabilities that the child lived with friends and family during the relevant period. The evidence and submissions of each party indicate that both the applicant and other party claim full time care of the child in the relevant period.

13. There is no definition of the term ‘care’ in the Act, rather there are a number of cases which provide guidance as to the matters to be considered in determining the extent of care of a child. For example, in the matter of Polec v Staker and Another [2011] FMCAFAM 959 (“Polec”) at [56] Federal Magistrate Hughes outlined that it was necessary to consider the following:

    (a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

    (b)To what extent does the person make arrangements for others to meet the needs of the child?

    (c)To what extent does the person pay for the costs of meeting the needs of the child?

    (d)To what extent does the person otherwise provide financial support for the child?

    (e)To what extent does the child provide for his or her own needs or have those needs met from another source?

    (f)To what extent is the child financially independent or financially supported from another source?

14. It must be noted that the matter of Polec was not in relation to the care of a child in terms of a party’s eligibility for FTB but refers to helpful considerations in this context.

15. I accept the submission of the other party about the housing arrangements for S during the relevant period. The other party has further submitted that he provided financial support for S during this period. This is a factor indicative of the other party’s care of the child.

16. I do not accept the submission of the applicant that the child remained with her throughout the relevant period. I accept the applicant’s statement that she was homeless.  The applicant’s evidence that S successfully completed a course of study during the relevant period lends weight to the fact that the child was financially supported and housed during this period.

17. On the balance of probabilities, I accept that the other party provided financial support to the child and so provided ‘care’ for the child in that sense. There is no evidence to support the fact that the applicant provided support of any kind to the child during the period.

18. In these circumstances, I find that the child was not the FTB child of the applicant during the relevant period.

    CONCLUSION

19. I affirm the decision under review.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 4 August 2017

Date of hearing: On the papers