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

Coombes and Secretary, Department of Social Services (Social services second review) [2020] AATA 3782 (29 September 2020)
Division:GENERAL DIVISION
File Number: 2019/8290
Re:Raylyn Coombes
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndLinda Coombes
OTHER PARTY

DECISION
Tribunal:Mr S Evans, Member
Date:29 September 2020
Place:Sydney

The decision under review is set aside, and in substitution, the Tribunal decides that the Applicant’s percentage of care was 31% during the care period 9 March 2018 to 27 April 2018 and 35% during the care period 28 April 2018 to 21 July 2019.
.....[sgd]...................................................................
Mr S Evans, Member
CATCHWORDS
CARE PERCENTAGE – percentage of care provided in relevant care period for family tax benefit – whether applicant provided 35% of care in relevant care period – every Friday and Saturday night – every Sunday preceding public holiday Monday – half of all school holidays – care period A – care period B – where applicant provided 35% of care in care period B – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
SECONDARY MATERIALS
Guides to Social Policy Law – Family Assistance Guide, released 21 September 2020
REASONS FOR DECISION
Mr S Evans, Member
29 September 2020
INTRODUCTION

The Applicant in this matter is the mother of three children aged under 16 years; child ‘KA’, ‘ME’ and ‘MA’. The Applicant’s mother is the other party (“the Other Party”) and at various times the Applicant and Other Party have shared care of the Applicant’s three children.
From 24 September 2015, the Other Party was in receipt of Family Tax Benefit (“FTB”) in respect of the care she provided to the three children. This rate was calculated based on 100% care of the children.
On 12 March 2018, the Applicant lodged a claim for FTB claiming to have 28% care of the children from 9 March 2018. On 4 July 2018, the Applicant advised the Department of Social Services, now Services Australia (“the Department”) that she had 35% care of the children.
On 28 December 2018, the Department determined that the Other Party had provided 61% care of the children from 9 March 2018 to 21 May 2019. This was affirmed by an Authorised Review Officer (“ARO”) on review. The Other Party lodged an application for review to the Social Services and Child Support Division (“AAT1”) of this Tribunal.
On 23 October 2019, the AAT1 determined that the Other Party’s entitlement to family tax benefit is to be calculated on the basis of the following care arrangements:
·70% care of KA, ME and MA from 9 March 2018 to 5 July 2018;
·0% care of the children during the periods from:
o6 July 2018 to 21 July 2018;
o28 September 2018 to 13 October 2018; and
o21 December 2018 to 5 January 2019;
·Equal to or greater than 73% care of the children during the periods from:
o22 July 2018 to 27 September 2018;
o14 October 2018 to 20 December 2018; and
o6 January 2019 to 20 May 2019;
·69% care of ME and MA from 21 May 2019 to 21 July 2019; and
·0% care of KA from 21 May 2019.
The Applicant seeks review of the decision of the AAT1.
The hearing of this application was held before the Tribunal on 22 July 2020. Both parties, and the representative of the Department appeared by telephone or video conference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).
CONTENTIONS OF THE PARTIES
Both parties are satisfied that the relevant care period is 9 March 2018 to 21 July 2019 (“the relevant period”).
In relation to the relevant period, the Applicant has provided a letter from the NSW Communities & Justice (previously known as Family and Community Services or “FACS”) case worker assigned to children ME and MA. In a recent, but undated letter, the case worker writes that she has been the allocated caseworker for children ME and MA since February 2020 and that whilst the Other Party has ‘parental responsibility’ for the children they have been having ‘regular, unsupervised time’ with the Applicant since March 2018. The case worker writes in part:
…the Department understands between the dates of 9 March 2018 and 21 May 2019 [the Applicant] was caring for [child ME] and [child MA] every weekend from Friday evening to Sunday evening, as well as periods of school holidays. It is noted that [the Applicant] had extra care of the children between 30 March [2]018 to 2 April 2019 and 6 July 2018 to 22 July 2018. Between 21 May 2019 and 5 July 2019 [the Applicant] was caring for the children every second weekend from Friday afternoon to Monday morning, as well as half of all school holidays. Throughout these periods, [the Applicant] was solely responsible for all of the children’s day to day care needs.
It is on the basis of this letter that the Applicant seeks review of the care arrangements for the children during the period 9 March 2018 to 21 July 2019.
The Applicant submits that she had 38% care of the children during the relevant period whereby she would take care of the children from Friday afternoon through until Sunday night. This pattern of weekend contact commenced on 9 March 2018 and correspondence from FACS dated 26 April 2018, confirms this to be the case. The only exception to this is that where a public holiday fell on a Monday; in which case the Applicant would have care of the children for an additional Sunday night that weekend. I will refer to this as “the weekend care arrangements”.
Additionally, the Applicant contends that she had care of the children for half the school holidays during the relevant period.
The Other Party contends that she provided 71% of the care of the children since March 2018. She contends that she had 100% care of the children for the entire school holiday period in April 2018 and that the records of the childcare attendance demonstrate this.
ISSUES TO BE DETERMINED
The issues to be determined by the Tribunal are:
·the appropriate percentage of care for each party during the relevant period, being 9 March 2018 to 21 July 2019; and
·if there has been a change in the level of care, the date of effect of the care change and the extent of the care change.
LEGISLATION AND POLICY
The legislation relevant to this application is contained in A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”), A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“the Administration Act”) and the Family Assistance Guide (“the Guide”).
Section 21 of the Act provides that a person is eligible for FTB if they have at least one “FTB child” in their care. Section 22 of the Act relevantly defines “FTB child” as follows:
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.
Subsection 22(7) of the Act stipulates that to be eligible for FTB, the Applicant must have at least 35% care of an eligible FTB child during the relevant period.
Whilst the Act does not define a ‘care period’, chapter 1.1.C.100 of the Family Assistance Guide provides the following policy formula:
1.1.C.100 Care period for FTB assessments
Definition
The term 'care period' is used in relation to assessing shared care for the purposes of FTB.
The care period for working out the percentage of care provided by an adult:
·begins on the day on which the care of a child starts to be shared between 2 or more adults, or the day on which the pattern of care… changes, and
·ends when there is a subsequent change in care.
Explanation: A care period of 12 months from the commencement of the care arrangements will generally be used where the care arrangements are ongoing. The same care arrangements will be assumed to apply for subsequent 12 month periods, unless otherwise advised. If there is no agreed ongoing pattern of care and the care arrangements only apply to a period shorter than 12 months, a one-off shorter care period may be determined.
Further, chapter 2.1.1.50 of the Guide also states:
A care period is the period over which care is assessed to determine the care percentages for each carer. A care period begins on the day on which the care of a child starts to be shared between 2 or more adults, or the day on which the pattern of care changes and ends when there is a subsequent change in care. It should be noted that a care period will generally be a 12 month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12 month periods, unless otherwise advised. A care period may be shorter than 12 months where the level of care is unsettled and changes on a regular basis.
Division 1, Subdivision D of Part 3 of the Act sets out the legislation in relation to a percentage of care determination.
Relevantly, section 35J of the Act outlines how to work out ‘actual care’ and requires in part that the:
actual care of a child that an individual had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.
Sections 35P and 35Q of the Act set out the circumstances in which an existing care determination must be, or may be, revoked. Relevant to this matter, paragraph 35P(1)(b) provides:
Determination must be revoked if there is a change to the individual’s shared care percentage
(1) The Secretary must revoke a determination of an individual’s percentage of care…if:
(b) the Secretary is satisfied:
(i) that the individual’s shared care percentage for the child would change if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child; or
(ii) that, if the Secretary were to determine under that section another percentage to be the individual’s percentage of care for the child, the other percentage would not be in the same percentage range as the individual’s existing percentage of care;
Paragraph 35Q(1)(b) of the Act provides:
Secretary may revoke a determination of an individual’s percentage of care
(1) The Secretary may revoke a determination of an individual’s percentage of care… if:
(b)the Secretary is satisfied that, if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child, the other percentage would not be the same as the individual’s existing percentage of care for the child; …
EVIDENCE
Records of the Applicant’s interactions with the Department confirm that on 11 April 2018, the Applicant sought to have the care arrangements changed for her three children. On 4 July 2018, it is recorded that the Applicant advised the Department all three children were in her care every Friday and Saturday nights, 4 weeks of the school holiday (28 nights) and every Sunday night where the following Monday is a public holiday. It is recorded that at the time she believed it ‘adds up to over 35% care’.
Correspondence from FACS dated 18 September 2018 relevantly states that the Applicant ‘will be having the children over the school holidays each school term; this includes term 1-4 during the school year and on long weekends’.
A Departmental record dated 30 October 2018 observes that in relation to the Applicant:
letters from FACS [Applicant] has 28% which equates to 2 nights per week as confirmed by FACS, outbound call to case worker and outbound to [Other Party]. Then from 6//7/18 [Applicant] also has school holidays, every 2^nd weekend and an extra night on a long weekend which equates to 167 nights or 45% this has been confirmed by all parties plus documentation from FACS.
Further correspondence from FACS dated 29 November 2018 confirms this arrangement with a commencement date of 9 March 2018.
Departmental records dated 28 December 2018 confirm that the Other Party disagreed with the previous care assessment. It is later recorded that ‘[a]fter speaking to customer and oc it has been agreed by both parties from 09032018 customer had 61% and oc 39%’.
It is also recorded following a call from the Other Party on 12 April 2019 that:
The information provided by FACS is contradictory, the initial letter confirms the [Applicant] had the children every weekend from 09/03/18 and this was supported by the [the Applicant’s] online claim for FTB where she indicated that she had 28% care of the children.
An increase to care has commenced from 06/07/18 as per the subsequent letter from FACS where holidays were included. However the most recent letter from FACS states that both weekends and holidays commenced on 09/03/19.
It appears the information that was provided at the tim[e] was more accurent [sic], that is the change to 72% from 09/03 and as holidays are only for 2 weeks, the change from 06/07/18 should be 61%, not 55% as previously assessed.
I reccomend [sic] shared care assement [sic] for the three children from 09/03/18 72% and from 06/07/18 at 61%.
At the hearing, the Other Party was dismissive of the information provided by FACS. She submitted that whilst FACS correspondence may state that the Applicant had care during certain periods, it is incorrect. Specifically, the Other Party maintains that she alone was authorised to pick up the children from childcare and consequently where it is recorded the children were in childcare, they were in her care. Relevantly, records of the children’s attendance at the childcare indicates that KA and ME were in childcare between 16-20 April 2018, 23 (KA absent), 24, 26, 27 and 30 April 2018. The Other Party submits that the childcare records confirm she had care of the children during these times.
Both parties agree that the Applicant had the children for half of the school holidays during the relevant period. The AAT1 determined that the Applicant had 100% of care for the entirety of school holidays during the relevant period after 6 July 2018, but it is agreed by both parties that this does not reflect the actual care arrangements during this time.
In relation to the care arrangements, the Applicant told the Tribunal she had care of the children:
for every weekend from Friday to Sunday evening, I’d drop them home at 5 o’clock. I would pick them up on Fridays and every long weekend I would have them to – I would have them Sunday nights and drop them off on a Monday and … I had them every half the school holidays, just like DOCS have put in their [letter].
Whilst it is agreed by both parties that they had an equal share of the care of the children in the school holidays during the relevant period, there is disagreement over the care arrangements during the April 2018 school holidays. The Other Party contends that she had 100% care of the children during the April 2018 school holidays. The Applicant notes that this is inconsistent with the most recent letter from FACS outlining the care arrangements.
The Applicant also submits that she never missed a day when she had been allocated care for her children. She contends that consequently she would have had care of the children for half of the April 2018 school holidays as per the expectations outlined in the recent letter from FACS.
The Other Party maintains that during the two weeks of the April 2018 holidays, she had 100% care of the children because the care orders changed. She submits that the arrangements at the time were based not on court orders but where the case workers determined the children were to be. Consequently, she submits that the orders do not necessarily reflect the reality of the care arrangements.
CONSIDERATION
Determining the facts of this matter is not assisted by some of the evidence upon which the Tribunal could normally be expected to rely, particularly the correspondence from FACS, which, on occasion, appears inconsistent or lacks sufficient detail. I acknowledge and agree with the observations recorded by the Departmental officer that ‘the information provided by FACS is contradictory’.
The recent letter from FACS states that the Applicant:
had extra care of the children between 30 March [2018] and 2 April 2019 and 6 July 2018 to 22 July 2018. Between 21 May 2019 and 5 July 2019 [the Applicant] was caring for the children every second weekend from Friday afternoon to Monday morning, as well as half of all school holidays.
However, this appears to be contrary to some previous documentation provided by FACS, including a 26 April 2018 letter which confirms only that the Applicant ‘commenced weekend contact’ on 9 March 2018. It is also inconsistent with the evidence of the Applicant and Other Party during the hearing.
It was agreed by both parties that the Applicant had care of the children each weekend on Friday and Saturday nights during the relevant period and half of all school holidays - with the notable exception of the April 2018 school holidays – which the Tribunal is satisfied was the case.
In regard to the April 2018 school holidays I am satisfied that the Other Party continued to provide exclusive care for the children during this period with the exception of the Friday and Saturday nights and any long weekends which may have fallen during that period. I base this conclusion on the following evidence:
·correspondence from FACS dated 26 April 2018 which states that the Applicant ‘currently has weekend contact’ but makes no mention of having the children during school holidays;
·the ARO notes which record on 10 May 2018 the Applicant said ‘she has the children every Friday and Saturday nights’; and
·the records of the childcare centre which confirm that the children were in care during the April school holidays.
I am also satisfied that the Applicant had care of the children each Friday and Saturday night as agreed by both parties.
It was agreed by both parties that the Applicant had exclusive care of child KA as of 23 May 2019, and this is accepted by the Tribunal.
Subparagraph 35P(b)(ii) of the Act requires that in circumstances where there is a change in the percentage of care, the Tribunal is required to revoke the existing determination if the ‘other percentage would not be in the same percentage range as the individual’s existing percentage of care’. Whereas paragraph 35Q(1)(b) of the Act provides the discretion to revoke the existing determination if the ‘other percentage would not be the same as the individual’s existing percentage of care’.

Having determined that there was a change to the pattern of care following the April 2018 school holidays, it is appropriate that the relevant period is divided into two care periods:
·Care period A: 9 March 2018 to 27 April 2018; and
·Care period B: 28 April 2018 to 21 July 2019.
In relation to care period A, the care arrangements are to be calculated on the basis that the Applicant had care of all three children for the following nights between 9 March 2018 to 27 April 2018:
·Every Friday and Saturday night = 14 nights
·Sunday night preceding a public holiday Monday = 1 night
·49 nights in the care period
·Percentage of care = 31% (rounded)
In relation to care period B, the care arrangements are to be calculated on the basis that the Applicant had care of all three children for the following nights between 28 April 2018 to 21 July 2019:
·Every Friday and Saturday night = 130 nights
·Sunday night preceding a public holiday Monday = 4 nights
·Half of school holidays = 25 nights
·450 nights in the care period
·Percentage of care = 35%
·100% care of child KA from 23 May 2019
DECISION
The decision under review is set aside, and in substitution, the Tribunal decides that the Applicant’s percentage of care was 31% during the care period 9 March 2018 to 27 April 2018 and 35% during the care period 28 April 2018 to 21 July 2019.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

.........[sgd]...............................................................
Associate
Dated: 29 September 2020

Date of hearing: 22 July 2020

Date final submissions received: 31 July 2020

Applicant: Self-represented

Solicitors for the Respondent: Mr M Sheedy, Services Australia

Other Party: Self-represented

[2020] AATA 3782

29 September 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	22 July 2020
Date final submissions received:	31 July 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Mr M Sheedy, Services Australia
Other Party:	Self-represented