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

[2018] AATA 769

Brown and Secretary, Department of Social Services (Social services second review) [2018] AATA 769 (22 March 2018)

Division:GENERAL DIVISION

File Number:          2016/6341

Re:Ellen Brown

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndRaymond Spokes

OTHER PARTY

DECISION

Tribunal:Senior Member R W Dunne

Date:22 March 2018

Place:Adelaide

The Tribunal affirms the decision under review.

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Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Family Tax Benefit - apportionment of shared care of children – correct percentage of care – decision under review affirmed.

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth), s 22, 25, 26 & 59

A New Tax System (Family Assistance) (Administration) Act 1999

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SECONDARY MATERIALS

Family Assistance Guide

REASONS FOR DECISION

Senior Member R W Dunne

22 March 2018

INTRODUCTION

1. The applicant and the Other Party are the parents of Child N born in December 2010 and Child W born in November 2012 (“the Children”).

2. At all relevant times there were no court orders or parenting plans regarding the care of the Children.

3. From December 2010 the applicant had 100% care of Child N and from  November 2012 the applicant had 100% care of Child W.

4. On 8 January 2016 the Other Party made a claim for FTB in respect of the Children.

5. On 1 June 2016 Centrelink decided that in the period 7 January 2016 to 19 May 2016 the applicant had nil care of the Children and that the Other Party had 100% care of the Children.

6. When an Authorised Review Officer (“ARO”) varied the decision, the ARO decided that the Children ceased living with the applicant on 7 January 2016 and returned to her exclusive care on 17 January 2016.

7. When the applicant requested a further review, the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) decided to vary the decision relating to the care, so that the applicant had nil care of the Children in the period 3 January 2016 until 26 January 2016, when the Children returned to the 100% care of the applicant.

8. A hearing was listed to take place before me on 30 January 2018 at 10:00am.  A listing notice had been sent to the applicant and although not initially present the applicant eventually attended the listed hearing.  The Other Party did not attend. 

9. At the hearing, the respondent was represented by Ms Odgers (a senior government lawyer with the Department of Human Services). Nevertheless, I noted that the T documents had been lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.

   ISSUE FOR THE TRIBUNAL

10. The issue the Tribunal is to determine is the correct percentage of care to be recorded for the applicant and the Other Party in respect of the Children.

11. Upon attendance of the applicant in the hearing room, she started telling her story and why she had been delayed.  However, I made it clear to her that I was not taking her story as evidence.  My role, pursuant to her application, was to review the AAT1 decision on shared child-care made on 20 October 2016.

    LEGISLATION

12. The relevant legislation that applies in this case is contained in provisions in A New Tax System (Family Assistance) Act 1999 (“the FA Act”) and the A New Tax System (Family Assistance) (Administration) Act 1999 (“Administration Act”).

13. Subsection 21(1) of the FA Act prescribes the FTB qualification criteria and includes the requirement that the person involved should have at least one FTB child. Subsection 22(2) of the FA Act sets out the requirements for an individual to be an FTB child.

14. Paragraph 22(2)(d) of the FA Act refers to the circumstances surrounding legal responsibility for the care of the individual, which is further defined in subsection 22(5) of the FA Act.

15. Section 25 of the FA Act provides that if an individual’s percentage of care for a child during a care period is less that 35%, the child is taken, despite s 22, not to be an FTB child of that individual for any part of the period. 

16. Section 59 of the FA Act relates to shared care percentages where the individual is an FTB child of more than one person who are not members of the same couple. To apply s 59 of the FA Act, there must be a determination of the individual’s percentage of care. It is uncontested that, from the date of birth of each child, there was an initial determination made under s 35A of the FA Act that the applicant had 100% care of each child. Before this determination could be revoked, it was necessary to consider the circumstances involved.

17. The Family Assistance Guide (“Guide”) contains Instructions relating to percentage of care.  Instruction 2.1.1.50 suggests that the first step in determining the percentage of care is to establish the pattern of care.  Instruction 2.1.1.45 provides further assistance in relation to establishing a pattern of care.  The pattern of care to be generally used in the shared care assessment is the actual care arrangements for the child.  As much as possible, the pattern of care should be the pattern as agreed to by all the parties who care for the child.  Otherwise, Centrelink must carry out further investigation to determine the actual pattern of care.

    BACKGROUND AND EVIDENCE

18. The factual background in this case can largely be taken from the reasons for decision of AAT1. 

19. Although the Other Party was not present at the listed hearing, I have no reason to doubt the background established by AAT1 or the story related by the applicant.  As previously mentioned, evidence was not taken from the applicant, but I have no reason to doubt the story she was telling me.  I noted the information contained in paragraphs 21 and 22 of the AAT1 decision relating to the applicant’s care of the children.

20. For the Secretary, Ms Odgers noted the following salient facts:

    (a)On 8 January 2016, the Other Party made a claim for FTB in relation to his care of the Children;

    (b)On 20 May 2016, the applicant stated that the Children had never left her care;

    (c)On 1 June 2016, Centrelink decided that the care of the children was nil to the applicant in the period 7 January 2016 to 9 May 2016;

    (d)On 19 July 2016 the ARO decided that the applicant had nil care of the children for the period 7 January 2016 to 16 January 2016, and 100% care from 17 January 2016; and

    (e)On 20 October 2017 the AAT1 decided that the applicant had nil care and the Other Party 100% care of the children from 3 January 2016 until 26 January 2016 when the children returned to the 100% care of the applicant.

    CONSIDERATION

    What is the correct percentage of care recorded for the applicant and the Other Party in respect of the children?

21. In its reasons for decision, AAT1 said that it found virtually all of the evidence before it to be quite unreliable as it varied significantly and the most reliable sources were unable to provide direct evidence of the actual care arrangements.  AAT1 found it extremely difficult to arrive at the precise date when the Children returned to the applicant’s care, although it was satisfied that they were in her care on 9 February 2016.  Moreover, the Motel accommodation in which the Other Party was residing with the Children was until 26 January 2016 and AAT1 was satisfied that this was the latest possible date that the Children were in the care of the Other Party.  It was unlikely that an invoice for Motel accommodation up to and including 26 January 2016 would have been issued if the Other Party had not been staying there with the Children.  Thus, it is clear that the Other Party checked out of the Motel on 27 January 2016 and this time frame is consistent with the Children moving from the applicant’s care on 3 January 2016 and returning to her care on 26 January 2016, and AAT1 so concluded.

22. The AAT1 decision indicates that the applicant was recorded in the Centrelink records as having 100% care of the Children for FTB purposes.  This was the existing care determination prior to the Other Party having the children in his 100% care from 3 January 2016 to 25 January 2016.  AAT1 found that subsequently the care of the Children changed again and that from 26 January 2016 the applicant had 100% care and the Other Party had nil care.  AAT1 thus concluded that this was 100% care to the applicant and nil care to the Other Party beginning from 26 January 2016.

    CONCLUSION

23. From an analysis of its decision, it is clear that AAT1 found it almost impossible to arrive at a precise date when the Children returned to the applicant’s care.  In the end result, AAT1 determined that the care of the Children, was nil to the applicant and 100 percent to the Other Party from 3 January 2016, and then 100 percent to the applicant and nil to the Other Party from 26 January 2016.  In the period 3 January 2016 to 25 January 2016 the applicant was not entitled to receive FTB for the children (because Child N and Child W were not her FTB children in the period 3 January 2016 to 25 January 2016).

    DECISION

24. The Tribunal affirms the decision under review.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated: 22 March 2018

Date(s) of hearing:	30 January 2018
Applicant:	In person
Advocate for the Respondent:	Ms L-A Odgers
Solicitors for the Respondent:	Department of Human Services
Other Party:	In person