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

[2020] AATA 654

CTXL and Secretary, Department of Social Services (Social services second review) [2020] AATA 654 (23 March 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5063

Re:CTXL

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndJLQZ

OTHER PARTY

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:23 March 2020

Place:Sydney

The Tribunal affirms the reviewable decision of AAT1.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – percentage of care – separated couple still living together – whether care provided by paternal grandmother should be attributed solely to the father – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 35

A New Tax System (Family Assistance) Act 1999 (Cth) ss 22, 35J

CASES

Secretary, Department of Social Security v Lowe (1999) 92 FCR 26

Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402

SECONDARY MATERIALS

Family Assistance Guide, c 2.1.1.25

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

23 March 2020

OVERVIEW

1. Family Tax Benefit (“FTB”) is a social security payment to families to assist them in raising a child. It is a modest sum, amounting to a base rate of $186.20 per fortnight.

2. As with nearly all such payments, the payment is subject to asset and income tests and various eligibility rules.

   LEGISLATION

3. Subsection 22 of the A New Tax System (Family Assistance) Act 1999 (Cth), (“the Family Assistance Act”) states:

   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 child

   (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.

   Note:          If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).

4. In assessing the factual circumstances of the case it is important to remember that legal responsibility does not require that the adult in whose care the child is said to be has immediate physical control of the child at all times: see Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402; see also Secretary, Department of Social Security v Lowe (1999) 92 FCR 26.

5. When there is a dispute regarding the level of care provided by each party over a period of time in the past, as there is in this case, difficult factual questions arise.

6. FTB is redistributed between eligible caregivers after separation according to the percentage level of care that each provides. The basic rule is that: 

   The actual care of a child that an individual has 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.[1]

   [1] A New Tax System (Family Assistance) Act 1999 (Cth), s 35J.

7. In the present case the Tribunal is required to make a shared care determination about the percentage payable to each party. In such cases the Tribunal must do its best to reach a fair and reasonable conclusion based on the evidence before it, frequently no more that the oral testimony of the parties, sometimes supplemented by diary entries.

8. A feature of this case is that the mother and father of the child continued to cohabit after separation and each contributed to the care of the child. In such cases, the general rule is that where each contributes in a similar manner to the care of the child, the care percentages will be 50%.[2]

   [2] Family Assistance Guide, chapter 2.1.1.25.

9. That was indeed the determination made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) in its decision dated 9 August 2019.

10. The applicant is not content with this determination and seeks a review of the AAT1’s decision. He alleges that the other party contributed less than he did to the care of the child. He said that he would regard 63% as an acceptable determination of his level of care throughout the period in question. The mother objects to such a determination but would be content to accept the decision of AAT1 resulting in equal division.

    THE HEARING

11. The parties appeared before me on 24 February 2020.

12. For convenience, I will refer to the applicant as “the father” and the other party as “the mother”. I will refer to the father’s mother as “the grandmother”. I will refer to the child in respect of whom the FTB claim arises simply as ”the child”.

13. Both mother and father were unrepresented, although the mother was assisted by a Thai interpreter. She is a newcomer to Australia and English is not her native language.

14. The Secretary’s solicitor appeared as is customary in such matters and made helpful submissions on the law, whilst maintaining a neutral position in relation to the issues under review.

15. Given certain aspects of the case I have decided that the names of the parties should be anonymised pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth).

16. This case is concerned with the period from 19 October 2016, when the couple separated, until 12 September 2017 (“the relevant care period”), a period of 329 days, more than two years ago.

17. It is agreed that the child was born to the couple in 2015 and that, by reason of s 22(2) of the Family Assistance Act, the child was an “FTB child” of the father and the mother throughout the relevant care period.

18. There was no dispute between the parties that during the relevant care period each had more than 35% percentage of care and that therefore, in relation to each, the child was an FTB child.

19. The couple separated on 19 October 2016 but, as noted above, they continued to occupy the same bedroom until the mother moved out on 12 September 2017.

20. Following the birth of the child, the father initially received 100% of the FTB, and he continued to receive 100% even after the parties separated on 19 October 2016. However, on 11 March 2017 the Department determined that 100% of the payment should be paid to the mother.

21. On 14 March 2017, the father lodged details of the care arrangement for the child with the Department, claiming that the child stayed with him for seven nights per week. In view of evidence provided by the father, on 16 March 2017 a departmental officer decided that from the date of separation the father was entitled to 50% shared care.

22. On 29 May 2018, an Authorised Review Officer (“ARO”) set aside the care decision and varied it in favour of the father as follows: 63% for the period 19 October 2016 to 6 March 2017, and 50% (for the period 7 March 2017 to 12 September 2017.[3]

    [3] T4/42

23. On 9 August 2019, the AAT1 decided that the father was entitled to 50% of the FTB throughout the relevant care period.[4] On 19 August 2019, the father applied to this Tribunal for review of the AAT1’s decision.

    [4] T2/7

    THE HEARING

24. Each of the parties gave evidence before me. 

25. The mother gave the following evidence:

    (a)She was employed in a legitimate massage business and she was not a prostitute. Her role was to coordinate the other employees and to coordinate bookings for legitimate massages with clients;

    (b)When the first business was sold she worked at another similar establishment;

    (c)She worked in the evenings and returned most nights around midnight to one o’clock;

    (d)While the relationship with the father continued she was not opposed to the grandmother having a caring role for the infant, because she had no family support of her own;

    (e)The relationship deteriorated in 2017 and in October the father ordered her to leave the house. She could not because she had nowhere to go. The child was not yet two years old, and she had no family to turn to. She lacked the money to move; 

    (f)She was not happy when following the ‘separation’ the grandmother became more involved but she felt helpless to do anything about it. She had little choice. She stressed that although she had accepted the involvement of the grandmother prior to separation, after separation she felt she had no choice but to go along with whatever was decided because she was powerless in the relationship. She needed to work and she needed the family assistance provided by the grandmother;

    (g)She agreed that on a number of occasions she left the house but never for long periods of time. On one or two occasions she was gone for more than 24 hours but she was never away for more than two nights. During these absences she was trying to organise practical matters such as accommodation and employment in the new circumstances in which she found herself after separation;

    (h)She displayed ongoing consideration for the father and said on two occasions that she loved him but recognised that the relationship was over.  She wanted to cooperate with the father for the benefit of the child.

26. The father gave evidence to the following effect:

    (a)In 2015, prior to the birth of the child, he and the mother occupied a single room in commercial premises from which they operated a business;

    (b)He owned the business and the mother worked as a receptionist and manager for the business;

    (c)The business was a massage parlour;

    (d)When the child was born he signed a lease on a suburban five bedroom house. The other rooms in the house were rented out. The father took responsibility for collecting rent and money for utilities from the tenants;

    (e)After the birth of the child, the mother continued to manage the massage parlour.  Approximately six months before they separated she sold the business without telling him and kept the proceeds of sale. She continued to work in the same role but at another massage parlour;

    (f)Throughout this period he did odd jobs as a mechanic in his garage at home and did occasional work as a flood remediation technician;

    (g)He was concerned that the mother was taking the child with her when she went to work, and this caused strain in their relationship;

    (h)He was also concerned about her gambling and said that he had evidence of her losses at the casino;

    (i)The grandmother had a role in looking after the infant child. She would come to the house at about midday and take the child back to her house. He would collect the child around the evening meal time, often staying for a couple of hours;

    (j)The mother was aware of the grandmother’s involvement in caring for the child and did not oppose it;

    (k)On or about 19 October 2017, following a major row, he told the mother to leave the house. She had nowhere to go so he agreed to let her stay;

    (l)On 19 October 2017 their relationship as a couple came to an end, although they continued to occupy the same room in the share house;

    (m)He asked the grandmother for more help and she agreed to take time off work to look after the child. He tendered the grandmother’s pay summaries as evidence that she had taken annual leave during the relevant care period;

    (n)The mother was often away without notice and during these periods he and the grandmother were the only carers;

    (o)He said that on these occasions she was away without telling him where she was going and when she would be back;

    (p)In relation to her alleged absences, he tendered two diaries, and pointed to various diary entries over the relevant care period. He said that he was not a diarist by nature and had not kept a diary before the separation. He kept the diaries for ‘defensive’ purposes relating to contested legal proceedings of one kind or another;

    (q)The frequency of her alleged absences were as follows:

Date	Number of periods of absence	Number of hours of each period of absence
October 2016	2	16*, 16*
November 2016	2	23, unknown
December 2016	1	36*
January 2017	4	22.5*, 37*, 31*, 36*
February 2017	4	22*, 19*, 16*, 16
March 2017	3	41*, 18, 36*
May 2017	2	43**
July 2017	2	16.5, 16
August 2017	4	16, 18, 17, 15
Total	38/329 nights

*Indicates a period of absence over two consecutive nights

**indicates a period of absence over three consecutive nights

(r)The father said that he did not know where the mother and child presently live. He has no contact with the child who resides, as far as he knew, exclusively with the mother. He does not pay child support for fear that she will gamble it away.

1. The Tribunal was not provided with any evidence relating to current Family Court proceedings and I am unaware whether there are orders in place. When I asked the father whether the mother had ever made any allegations of domestic violence against him, he mentioned that there had been allegations of domestic violence but there were no details before the Tribunal. 

2. I note that overall the father displayed animus towards the mother and a lack of perspective in relation to the challenges of co-parenting after separation.  He said that he was motivated by ‘principle’ to secure a ruling in his favour. He was unaware of the monetary value, even in approximate terms, of the claim that he made. Therefore he was unable to assess its relative importance by comparison with all issues relating to the wellbeing of his child. He said merely that he was ‘very frustrated’. I note in passing that the dollar amount in dispute in this case amounts to approximately $568 (assuming a base rate of $186.20 per fortnight over 23.5 fortnights at 63% rather than 50%).

3. He made various unnecessary allegations about the mother’s conduct, referring to her selling the business they ran together without his knowledge and pocketing the money, alleged gambling and subsequent involvement with a ‘brothel’, although he did not allege that she was engaged in prostitution. The level of hostility he displayed towards the mother enters inevitably into the assessment of his evidence and the weight to be attached to it.

   CONSIDERATION

4. The mother said that during the care period each of them had contributed to the care of the child, and therefore, as suggested by the Family Assistance Guide referred to above, the care percentages should be 50% to each parent, as decided by AAT1.

5. The father’s critique of the AAT1’s determination of equal division was based on two grounds, the first relating to the mother’s alleged absences during the care period, and the second relating to the grandmother’s contribution to the care of the child. He argued in favour of the shared care determination made by the ARO, and that he should receive 63% of the FTB, except that this should be extended throughout the whole of the relevant care period. He submitted that the mother should not be ‘credited’ with the time the grandmother spent in caring for the child. 

6. As noted above, the relevant care period is 329 days. The alleged absences were usually for less than 24 hours at a time. I have carefully examined the diary entries made by the father. Even taken at face value, they do not establish a sufficient pattern to justify a percentage share change. In this respect I adopt the analysis of AAT1 that the various periods of alleged absence are not such that by reason of frequency or duration they change the basic care arrangement. They were at most minor variations, and can easily be understood within the context of the couple’s disintegrating relationship. 

7. In relation to the second ground, namely, the grandmother’s involvement with the care of the child, as noted above, the father provided a statutory affidavit attaching his mother’s pay slips.  These purported to show that she was required to take annual leave in order to look after the child. The pay slips did not provide a ready basis for determining precisely the amount of leave she had taken, nor am I able to infer that the leave was taken solely to provide care to the child.  In this context it is relevant to note that the father said that the grandmother was 70 years old.

8. It is quite likely that in this moment of crisis the grandmother stepped into the breach, as good parents do, and offered to and did in fact provide enhanced assistance to the couple, thus providing care and stability for the child. However, it does not follow that the assistance was provided only to the father, or that the mother’s percentage of FTB should be reduced as a result. 

9. The AAT1 said that it would not be just and equitable to reduce her percentage in this way. The mother had no family members to call on and given the assistance provided to the couple in the past by the grandmother it would be unfair to adjust this percentage after their relationship came to an end. 

10. It may be that after their ‘separation’ a slightly heavier burden fell on the grandmother, but the evidence before the Tribunal does not permit any finer calibration than the 50% shared care percentage suggested by the Family Assistance Guide. And significantly, it appeared that any additional burden fell on the grandmother rather than on the father.

11. I agree with AAT1 that it is not appropriate to assign the care that the grandmother provided exclusively to the father so as to increase his percentage of care.

    CONCLUSION

12. There is insufficient evidence to contradict the findings made by AAT1, with which I am in complete agreement. I find that the parties shared the care of their child equally from 19 October 2016 to 12 September 2017, and therefore the father’s percentage of care was 50% throughout the relevant care period.

13. I therefore affirm the reviewable decision.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 23 March 2020

Date(s) of hearing:	24 February 2020
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services
Other Party:	In person