BHPW and Secretary, Department of Social Services (Social services second review) - [2022] AATA 325

BHPW and Secretary, Department of Social Services (Social services second review) [2022] AATA 325 (24 February 2022)
Division:GENERAL DIVISION
File Number: 2018/7427
Re:BHPW
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndHYGL
OTHER PARTY

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date of decision: 24 February 2022
Place:Hobart

The decision of the AAT1 is set aside and in substitute, the Applicant is entitled to receive Family Tax Benefit for the 14-week qualifying period, from 13 April 2018 to 20 July 2018.

.....................[sgd]................................................
A G Melick AO SC, Deputy President
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
Family Tax Benefit – 14-week qualifying or interim period – departure from care arrangement – reasonable action to comply with care arrangement – whether special circumstances exist – whether allegations are sufficient to support a finding of special circumstances – whether s 23 or s 35C of the A New Tax System (Family Assistance) Act 1999 should apply – decision set aside and substituted.
LEGISLATION
A New Tax System (Family Assistance) Act 1999
CASES
Arnold and Secretary, Department of Social Services [2016] AATA 1080
MDXJ and Secretary, Department of Social Services [2019] AATA 177
SECONDARY MATERIAL
Australian Government, Family Assistance Guide (Version 1.235 – Released 7 February 2022)
REASONS FOR DECISION
A G Melick AO SC, Deputy President
24 February 2022
INTRODUCTION AND BACKGROUND

This review arises as a result of a dispute about the percentage of family tax benefit (FTB) payable to the Other Party during a 14-week period following a change in the care of the children she shares with the Applicant.
There is a complicated history and there were matters that needed to be resolved before the review could be finalised, including criminal charges against the Applicant which were not sustained and the use, if any, that could be made of Exhibit 3.
I note from the outset that the Applicant objected to the tendering of Exhibit 3, a matter which was not ruled upon during the hearing. Subsequent to the hearing I made inquiries of the Family Court of Australia as to the status of Exhibit 3 which appeared to be produced pursuant to a s 69ZW order. The Court confirmed the document was produced pursuant to such an order and that there was no order made allowing its use any other proceedings.
Accordingly, I uphold the Applicant's objection, but unfortunately, I not only read the document but heard submissions upon it during the hearing. Upon becoming aware of the s 69ZW order, I decided to delay considering my decision in an effort not to be influenced by Exhibit 3. The file was put to one side for longer than anticipated but at least I had no clear memory of the details of Exhibit 3 at the time of writing this decision.
As indicated to the parties at the hearing, I was unable to make any detrimental findings with respect to credit against the Applicant or the Other Party.
Facts
The Applicant and the Other Party are the biological parents of A, AM, O and M, all between eight and four years old (the children).
In February 2016, the Applicant and the Other Party separated.
Under a Family Court order dated 1 August 2017 (the Family Court order), the Applicant and Other Party each have 50% care of the children.
Prior to 13 April 2018, the Applicant and Other Party were paid FTB in equal shares for care provided to the children.
Under the Family Court order, the Other Party was to return the children to the Applicant’s care on 21 April 2018. However, it was agreed between the Applicant and the Other Party that the children would be returned to the Applicant’s care on 22 April 2018 at 4:00pm, to allow the Other Party to attend a concert in Hobart with the children.[1]
[1] T-documents, 48.
Shortly before 22 April 2018, the Other Party became aware of allegations that the Applicant had sexually interfered with their eldest son. The matter was reported to Child Safety Services (Child Safety) and Tasmania Police, who recommended to the Other Party that the children remain in her care.
The Other Party did not return the children to the Applicant’s care on 22 April 2018.
The Other Party had retained 100% care of the children since 13 April 2018.
On 2 May 2018, the Other Party notified the Department that the children were in her full-time care from 13 April 2018.[2]
[2] T-documents, 197.
On 8 May 2018, the Other Party lodged a ‘Details of child’s care arrangement’ form with the Department.[3] Relevantly, that form noted that in respect of each of the children:
(a)the current care arrangement commenced on 13 April 2018;
(b)there is a parenting plan, court order or written agreement that shows where the children stay; and
(c)the arrangements in the agreement were not being followed
[3] T-documents, 29-40.
Relevantly, the form states the following about the care arrangements:[4]
Our 50/50 care arrangements have currently changed due to a current police investigation, due to sexual child abuse towards my eldest son. Father is denying it. Child safety have recommended that I keep the children in my care. According to the police this investigation could take anywhere from weeks to months. (Father is accusing me of only doing this for the money).
[4] T-documents, 39.
Names and contact information for the relevant Child Safety and Tasmania Police investigative officers were also included. A number of supporting statements were also attached.[5]
[5] T-documents, 41-44.
On 18 May 2018, an officer of the Department decided to pay the Other Party the full rate of FTB, based on the Other Party having 100% care of the children from 13 April 2018 (original decision). In making this decision, the officer contacted Child Safety and Tasmania Police, who confirmed that an investigation into the allegations was underway.[6]
[6] T-documents, 124.
On 21 May 2018, the Applicant requested a review of the original decision.[7] In making the request, the Applicant told the Department that the children were out of his care without consent, and that he was seeking a recovery order to have them returned to his care. There is evidence of correspondence between the Applicant, his solicitor and the Other Party’s solicitor regarding the Applicant’s request that the children be returned to his care.[8]
[7] T-documents, 115.
[8] T-documents, 47-64.
On 28 June 2018, an Authorised Review Officer (ARO) of the Department set aside the original decision and found that the Applicant was entitled to be paid FTB based on 50% care (as reflected in the Family Court order), for the period 13 April 2018 to 20 July 2018.[9] Relevantly, the ARO found:
Generally when there is a Court Order, Parenting Plan or written agreement in place regarding the care of a child/ren, it is expected that this agreement will be complied with and family assistance is paid accordingly. ...
I have accepted that [the Applicant] have taken reasonable action to have the Court Order complied with and get the children back into [the Applicant’s] care. ...
In reviewing this matter, I must make a finding of fact that serious allegations have [been] made against the Applicant which is under investigation by Tasmania Police. However, allegations by one party to another is not uncommon during family disputes, and as such not a special circumstances by definition as being uncommon or unusual. It is also noted that given the serious nature of the allegations it is expected that the matter will be investigated by the Police.
Given that there is a Court Order in place, I must find that an interim period of 14 weeks is to be applied which means [the Applicant] is entitled to FTB based on the court order that [the Applicant] had 50% care of the children from 13 April 2018 to 20 July 2018. (sic)
[9] T-documents, 76-8.
The Other Party sought review of the ARO’s decision by the Tribunal’s Social Services and Child Support Division in the first instance (AAT1). On 20 November 2018, the AAT1 set aside the ARO’s decision, and found that the 14-week qualifying period under section 23 of the A New Tax System (Family Assistance) Act 1999 did not apply.
Accordingly, the AAT1 found the Other Party was entitled to be paid FTB on the basis that she had 100% care of the children from 13 April 2018.
In its written reasons, the AAT1 noted the following:
(a)following their eldest son’s disclosure that the Applicant had sexually abused him, the Other Party reported the matter to Tasmania Police and Child Safety, who recommended that the children should not be returned to the Applicant’s care;
(b)Child Safety decided to take no further action as Tasmania Police were handling the matter; and
(c)the Applicant was charged with rape on 11 September 2018,¹¹ and was released on bail.¹²
In reaching its decision, the AAT1 noted:¹³
I understand that [the Applicant] is defending the charge and believes it to be untrue, however I do not believe that the matter would have proceeded to this advanced stage unless there are serious concerns for the safety of the children.
Accordingly, the AAT1 found that there was supporting evidence of unreasonable behaviour by the Applicant, which led to the change of care, and that special circumstances existed in relation to the children, which supported exercise of the discretion not to pay FTB to the Applicant between 13 April 2018 and 20 July 2018.
On 18 December 2018, the Applicant lodged an application for review in this Tribunal. The Applicant’s ‘reasons for the application’ were stated as follows:
The Tribunal member erred in finding special circumstances in allowing payment of the Family Tax Benefit to the mother.
On 22 February 2019, the Tribunal issued a stay on implementation of the AAT1’s decision, which operates until further order of the Tribunal.
Evidence
Applicant
The Applicant gave oral evidence at the hearing and provided a written statement taken into evidence.[10]
[10] Exhibit 2.
The Tribunal asked the Applicant what efforts he had made, once his children were removed from his care, to re-establish a connection with them. He gave evidence that he contacted his lawyer and spoke to the police three to four times. During the hearing, it was agreed between the parties that the issue of whether the Applicant had made reasonable efforts to access his children was not in contention. There was clear evidence to support the Applicant’s efforts to access his children.
The main tenor of the Applicant’s evidence was that because the charges laid against him had been subsequently dropped, it was not open to the Tribunal to make a finding of special circumstances, because special circumstances related only to findings of fact and not belief. The Applicant drew the Tribunal’s attention to the decision of the AAT1 where the Tribunal expressed a belief that the matter would not have proceeded to an advanced stage unless there had been serious concerns for the safety of the children. The Applicant contended that the Tribunal had erred in relying on a belief to substantiate a finding of special circumstances, particularly now that the charges underpinning that belief had been dropped.
When it was explained to the Applicant during the hearing that there was legal authority to support a finding of special circumstances from allegations alone, the Applicant contended that there was no basis for the allegations, and therefore no basis for the action to remove the children from his care.[11] The Applicant gave evidence that the Other Party coached their son to make false allegations and maintained his innocence throughout proceedings.
[11] Transcript, 29.
Other Party
The Other Party gave evidence that she was acting on the suggestion of police and Child Safety when she prevented the Applicant from accessing the children. She maintained her children would be at a risk of harm should she have complied with the Family Court order.
When asked whether she would have complied with the Applicant’s attempt to access his children, she asserted that she would not have complied with his attempts, even if they were reasonable.
When asked to explain what the special circumstances were in this matter, the Other Party stated that her son’s complaint formed sufficient grounds for her to believe that sexual abuse had occurred, and that she was keeping her children safe by preventing the Applicant’s access to them.[12]
[12] Transcript, 47.
She explained her reluctance to contact Centrelink to change the FTB percentages out of fear that the Applicant would accuse her of coaching her son into making the complaint. She only contacted Centrelink when she was experiencing severe financial hardship.[13]
[13] Ibid.
Contentions
The Applicant contended as follows:
The single issue which I believe is in dispute in this matter is whether there are “special circumstances” not to have the 14 week interim period paid as provided under T documents p 27 (A New Tax System (Family Assistance) Act 1999). My argument is simply that there are no “special circumstances” and decisions otherwise need to be made on the basis of relevant findings of fact not belief or emotion.
The Tribunal Member erred in finding special circumstances in allowing payment of the family tax benefit to the mother.
The Evidence [the Member] relied upon was inaccurate as the bail notice she relied upon was not current at the time it was presented to her.
I refer to the t documents T2 p8 paragraph 26 & 27 in that just because there is an allegation on foot, she has taken that to be evidence to be used in this matter and relied on it by giving it too much weight.
I refer to the t documents T3 p 27 (A New Tax System (Family Assistance) Act 1999) where it states
“Decisions should be made on the basis of evidence that supports relevant findings of fact. Allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.”
My argument is that these are allegations that were brought maliciously and vindictively by the other party in the context of a Family Dispute. An allegation is not a finding of fact as it has not been tested therefore should not be relied upon when making decisions.
I refer to the t documents T10 p77 Paragraphs 2 & 3 the ARO has stated that findings should be made on evidence that supports relevant findings of Fact as per Section 2.1.1.70 of the FA Guide, “In reviewing this matter I must make a finding of fact that serious allegations have made against the applicant which is under investigation by Tasmania Police. However, allegations by one party to another is not uncommon during family disputes, and as such not a special circumstances by definition as being uncommon or unusual.”
The ARO applied the legislation correctly and made the correct decision based on the evidence.
I continue to rely upon the evidence already submitted by me contained in the t documents.
[…]
I am no longer charged and have never been convicted of any offence relating to this matter. The fundamental basis of the justice system and basic human rights in Australia is that someone is presumed innocent until proven guilty. A finding adverse to me in these circumstances would result in a Denial of natural justice and procedural fairness. The allegations brought against me by the other party are malicious and vindictive and as such are designed to do as much harm as possible to me in an effort to remove me from the children’s and the other party’s lives while also benefiting the other party financially without any concern in how it will affect the children’s emotional & psychological wellbeing.
Legislation
The relevant legislation is contained in the A New Tax System (Family Assistance) Act 1999 (FA Act). Government policy set out in the Department’s Family Assistance Guide (Guide) is also relevant. Policy in the Guide should be applied unless there are cogent reasons not to do so.
The Respondent made submissions regarding the relationship between two sections of the FA Act, in particular, the applicability of s 35C over s 23.
Section 21 of the FA Act provides that a person is eligible for FTB if that individual has at least one FTB child.
An FTB child is defined in s 22 of the FA Act. The provision that applies to children the age of the Applicant and Other Party’s is as follows:
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).
Section 23 of the FA Act sets out circumstances where a child can remain an FTB child of a person, despite being removed from their 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.
The “qualifying period” is defined in s 23(5) to include:
"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;

The Respondent submitted, however, that s 23 should not be applied in this matter as its operation is more relevant to circumstances where no shared care arrangement exists for a particular child, and an event occurs which prevents the child’s usual carer from providing care for that child without consent.
The Respondent relied on chapter 2.1.1.90 of the Guide, which contemplates that section 23 of the FA Act should apply in circumstances where a child is abducted, absent or missing, and states:
A parent always has legal responsibility for their child, unless it is taken away from them by an order of the Family Court. If a parent who still has legal responsibility for the child has taken the child away from the care of another person, it is considered to be a disputed care case rather than an abduction (2.1.1.70).
The Respondent submitted that if the Tribunal were to accept the Applicant met the criteria, s 23 of the FA Act could render the children to be the Applicant’s FTB children for a qualifying period of up to 14 weeks. Section 23 does not contain a discretion to lengthen the qualifying period. If one applies s 23 alone, the children must have ceased to be FTB children of the Applicant on 20 July 2018, 14 weeks after the change of actual care on 13 April 2018.
The Respondent submitted that the provision that has application in the circumstances of this matter is s 35C of the FA Act:
The alternative route was identified by this Tribunal in Arnold and Secretary, Department of Social Services [2016] AATA 1080. In that matter, the Tribunal explained that a child could remain an FTB child of an adult by way of the combined operation of subsection 22(7) and section 35C of the FA Act.¹⁷ In MDXJ and Secretary, Department of Social Services [2019] AATA 177 at [83], the Tribunal found that “section 23 is directed towards the eligibility criteria for FTB, while 35C ... works within a complex framework of care determination provisions to preserve the rate payable for periods in which eligibility [for FTB] is preserved”.
Section 35C operates in a similar way to section 23. A person who takes reasonable action to restore a pre-existing care arrangement is deemed to retain a percentage of care consistent with that original care agreement. As noted in Arnold, if this deemed percentage is equal to, or more than 35%, the child remains an FTB child of that adult, by virtue of subsection 22(7).
As with section 23, the period in which the child remains an FTB child of that adult under section 35C is, in the ordinary case, 14 weeks pursuant to subsection 35L(3). Unlike the qualifying period generated by section 23, the interim period may be extended under subsection 35L(4) beyond 14 weeks, to a maximum of 26 weeks.
In Arnold, the Tribunal explained that it was unnecessary on the facts of that case to differentiate between sections 23 and 35C. In this matter however, there is a real difference in the availability of legal remedy depending upon the route that is taken. As section 35C offers a broader scope for remedy, the Secretary respectfully submits that this should be preferred over section 23.
Section 35(C) of the FA Act provides:
(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 is taking 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.
In order to engage paragraph 35C(1)(a) of the FA Act, it is necessary to first establish that there existed a care agreement in relation to the children. The term “care arrangement” is defined in section 3 of the FA Act to mean:
(a) a written agreement between the parents of the child, or between a parent of the child and
another person who cares for the child, that relates to the care of the child; or
(b) a parenting plan for the child; or
(c) any of the following orders relating to the child:
(i) a family violence order within the meaning of section 4 of the Family Law Act 1975;
(ii) a parenting order within the meaning of section 64B of that Act;
(iii) a State child order registered in accordance with section 70D of that Act;
(iv) an overseas child order registered in accordance with section 70G of that Act
Section 35C operates in a similar way to s 23 of the FA Act. A person who takes reasonable action to restore a pre-existing care arrangement is deemed to retain a percentage of care consistent with that original care agreement. As noted in Arnold, if this deemed percentage is equal to, or more than 35%, the child remains an FTB child of that adult, by virtue of subsection 22(7).
As with s 23, the period in which the child remains an FTB child of that adult under s 35C is, in the ordinary case, 14 weeks pursuant to subsection 35L(3). Unlike the qualifying period generated by s 23, the interim period may be extended under subsection 35L(4) beyond 14 weeks, to a maximum of 26 weeks.
As set out above, the Respondent contended that in the circumstances of this case I should follow the operation of s 35C of the FA Act, rather than s 23. However, this matter has been previously decided pursuant to s 23 and a reading of that section doesn't limit its application to the circumstances as set out in the Guide which suggest that s 23 is intended to apply in circumstances such as abduction and kidnapping. As noted by the representative for the Respondent, the Tribunal hasn’t limited s 23 to such circumstances on several occasions.
During the hearing the Respondent reiterated that there were two issues which applied to both ss 23 and 35C of the FA Act being:
(a)Whether reasonable steps have been taken to recover the child or children.
(b)Whether there were special circumstances that would indicate that the qualifying period of s 23 or the interim period of s 35C ought not to apply or be extended or reduced.
Both the representative for the Respondent and I found the legislation at times confusing but towards the conclusion of the hearing it was agreed as follows:
(a)If Applicant had made reasonable efforts to regain care of his children under s 23 of the FA Act, he would normally be entitled to a qualifying period of 14 weeks and under s 35 of the FA Act he would ordinarily be entitled to an interim period of 14 weeks, up to 26 weeks, to be determined by reference to s 35L. If there were special circumstances, the Tribunal may waive or shorten the interim or qualifying period pursuant to s 23 or s 35(L) of the FA Act or lengthen the interim period pursuant to s 35(L).
The AAT1 determined the application for review pursuant to s 23 of the FA Act. The ARO, in the reviewable decision before the AAT1, referred to both s 35C and s 23 of the FA Act as powers that would support a finding that a party was entitled to the 14-week interim or qualifying period.[14] I find that in the circumstances of this case, there will be no practical difference in the result no matter which section is applied and have decided this matter pursuant to s 23 of the FA Act.
[14] T-documents, 76.
My reasons for so doing are that the Other Party was only on notice of a possible detriment relating to a 14-week period, because that is the maximum applicable under s 23 of the FA Act, the section upon which the decision to be reviewed applied. Although a longer period may have been available pursuant to s 35C, the Applicant did not seek such a longer period and aside from the Respondent’s submission that the Applicant could be entitled to broader remedy, no submissions were made as to why the circumstances of this matter would justify an extension of the 14-week period.
As set out in my reasons below, I find there are no special circumstances in this case. Accordingly, in this matter, for the reasons set out above, no practical difference arises from the application of s 23 over s 35C of the FA Act. I see no reason not to apply s 23 of the FA Act in this matter.
Issues
This matter relates to the applicability of section 23 of the FA Act and whether the Applicant should remain eligible for a percentage of FTB for care provided to the children. To this end, the issues can be set out as follows:
(a)were the children FTB children of the Applicant and in his care?
(b)did an event occur in relation to the children, without the Applicant’s consent, that prevented the children from being in the Applicant’s care?
(c)did the Applicant take ‘reasonable action’ to ensure the children were in his care?
(d)are there special circumstances that would justify shortening or waiving the period (if one exists) after 22 April 2018, in which the Applicant remained eligible for a percentage of FTB relating to the children?
Were the children FTB children of the Applicant?
To engage s 23(1) of the FA Act, it is necessary to establish the children were FTB children of the Applicant. This requires that the Applicant be legally responsible for the children and that the children be in his care. The term “legal responsibility” is defined in s 22(5) of the FA Act to include circumstances where:
(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.
In this matter, there is an order of the Family Court, being an order that the Applicant will retain equal shared parental responsibility for the children and that they would be returned to him on 22 April 2018. Accordingly, I find the Applicant was legally responsible for the children and that they were in his care.
Did an event occur in relation to the children, without the Applicant’s consent, that prevented the children being in the Applicant’s care?
It is not in dispute that the Other Party did not return the children to the Applicant on 21 April 2018, as required under order of the Family Court.
It is understood that the children have remained 100% in the Other Party’s care since 13 April 2018. Accordingly, I find that an event occurred in relation to the children, without the Applicant’s consent, that prevented the children from being in the Applicant’s care.
Did the Applicant take ‘reasonable action’ to ensure the children returned to his care?
Section 23(1)(c) of the FA Act requires that an adult takes ‘reasonable action’ to have the FTB children returned to the adult’s care.
The term reasonable action is not defined by the legislation. The Respondent referred the Tribunal to the Guide, specifically at chapter 2.1.1.70, which explains that reasonable action may include:
-    negotiating with the Other Party in a genuine attempt to ensure compliance with a written agreement, or
-    making and/or attending an appointment at a Family Relationships Centre (FRC) or similar dispute resolution service with the aim of ensuring the care arrangement is adhered to, or
-    obtaining or seeking legal advice regarding the making of a court order, or
-    filing an application to a Court to have an order made or enforced, or
-    attending a hearing at Court to seek an order to be made or enforced, or
-    notifying the police that the child has been taken without consent.
...
The individual making the claim to continue to receive their FTB entitlement during the interim period must take reasonable action to ensure compliance with the existing care arrangement. Where an individual simply complains about the loss of care to Centrelink, this does not meet the requirement of taking reasonable action.
I refer to the matters set out above at [29], together with the summary of actions taken by the Applicant in Exhibit 1[15] and find that the Applicant had made sustained attempts including seeking advice from a lawyer to ensure compliance with the care arrangement.
[15] Exhibit 1, 57.
I note at [29] it was also agreed between the parties that the Applicant had made reasonable efforts to ensure compliance with the care arrangement.
Even without that agreement, I am satisfied on the evidence that the Applicant had taken reasonable action to ensure compliance and I so find.
Were there special circumstances that should operate to shorten or waive the qualifying period?
Given I have found the Applicant’s FTB children were removed from his care without his consent, and that the Applicant did take reasonable action to ensure the children were returned to his care, the ordinary course would be to apply a 14-week qualifying period. During that period, the Applicant would continue to be entitled to the percentage of FTB in relation to the children that he would have received, had the event that prevented the children from being in his care have not occurred.
However, s 23(4A) provides for the waiving of the qualifying period in ‘special circumstances’:
(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.
Under subsection 23(4A), I can decide, if satisfied that special circumstances exist, not to apply a qualifying period at all. In such circumstances, the new actual care percentage takes effect from the date of the care change. Under subsection 23(5A), I can decide, if satisfied that special circumstance exist, to shorten the qualifying period so that the actual care percentage takes effect from a date later than the care change but less than 14-weeks afterward.
The term ‘special circumstances’ is incapable of precise definition but is ordinarily taken to refer to circumstances that are sufficiently different or out of the ordinary to justify departure from the ordinary course.²² If I am not satisfied that special circumstances exist, the standard 14-week qualifying period would apply, during which the Applicant will continue to be entitled to FTB.
Chapter 2.1.1.70 of the Guide offers guidance on what may constitute ‘special circumstances’ in this context:
Special circumstances where an interim period does not apply
Centrelink has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual level of care and no interim period applies. The discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other unusual behaviour by the person who has reduced care which led to the change in care.
The discretion to immediately base the percentage of care on the actual level of care in special circumstances is designed to recognise that if a person's own unusual and unreasonable actions are a significant cause for the agreement, plan or order not being complied with, the person should not expect to benefit from an interim period, even if the person is seeking the return of the child.
The need for special circumstances to apply would ensure that the discretion has limited application. The discretion would not be exercised just because there is a dispute between separated parents about the care of a child.
Examples of unreasonable and unusual behaviour of the parent:
·     Violence towards the child,
·     Exposing the child to family violence...;
·     Violence towards the person with increased care,
·     Directly involving the child in a criminal act,
·     Exposing the child to alcohol, drugs or substance abuse,
·     Involving the child in criminal, sexual or unhealthy activities,
·     Substantially failing to comply with legal schooling requirements, and/or
·     Neglecting the child’s basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc
Decisions should be made on the basis of evidence that supports relevant findings of fact. The decision should take into account any information provided by the person with reduced care, as well as information from the person with increased care. Where a parent has been violent towards their child, the absence of a child welfare order would not prevent the discretion being exercised. Allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.
Examples of evidence Centrelink may use in deciding whether special circumstances apply:
·     police reports,
·     verification with the Department of Community Services and/or the police, or
·     statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.
Whenever possible, written evidence should be sought. However, where Centrelink staff (such as a social worker) has sought and documented verbal verification from the relevant state department and/or the police. For example, this may be used to determine if special circumstances exist, and whether an interim period does not apply.
The Respondent correctly stated that the existence of special circumstances is a question of fact and made no submission as to whether such circumstances existed in this matter.
I now turn to consider whether special circumstances existed in this matter. There was no direct evidence before me if any of assault, sexual or otherwise, on any of the Applicant’s children.
There was evidence of a complaint made by a child to the Other Party but no details were supplied.
The fact that the Applicant was charged is not evidence that the alleged acts occurred, and I agree with the comments made by the ARO to the fact that allegations made by one party to another during family disputes are not uncommon, and as such are not special circumstances by definition by being uncommon or unusual.
I do not find that the Other Party fabricated an allegation, but I am not satisfied there is sufficient evidence to support a finding of unreasonable or unusual behaviour by the Applicant. Such a finding does not amount, as contended by the Other Party, to a vilification of her, but it arises as a result of a balancing exercise upon the evidence before me that I was entitled to take into account.

The fact that the charges were dropped assists the Applicant to some degree, but there can be many reasons for charges not to be proceeded with.
The question as to whether there were “special circumstances” is finely balanced, but I do not find that such circumstances existed in this matter.
Because I have found that there were no special circumstances, the ordinary course pursuant to s 23 would be to apply a 14-week qualifying period during which the Applicant would continue to be entitled to the percentage of FTB in relation to the children that he would have received had the event preventing his care have
The decision of the AAT1 is set aside and in substitute, the Applicant is entitled to receive FTB for the 14-week qualifying period, from 13 April 2018 to 20 July 2018.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

.........................[sgd]...............................................
Associate

Dated 24 February 2022

Date of hearing: 15 January 2020

Applicant:

Solicitor for the Respondent:

Other Party

Self-represented

Mr Brian Sparkes
Services Australia

Self-represented