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

[2017] AATA 23

Davidson and Secretary, Department of Social Services (Social services second review) [2017] AATA 23 (17 January 2017)

Division:GENERAL DIVISION

File Number(s):      2016/0944

Re:Carmelina Davidson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndGarry Davidson

OTHER PARTY

DECISION

Tribunal:Ms N Isenberg, Senior Member

Date:17 January 2017

Place:Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – shared care percentage – pattern of care – less than 35% care – decision affirmed

LEGISLATION

A New Tax System (Family Assistance) Act1999 (Cth) ss 25, 35J(2), 59, Sch 1

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

Family Law Act 1975 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Drury and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] AATA 533

SECONDARY MATERIALS

Australian Government, Family Assistance Guide (version 1.190, 7 November 2016)

REASONS FOR DECISION

Ms N Isenberg, Senior Member

17 January 2017

BACKGROUND

1. Mr and Mrs Davidson are the parents of three children K, C, and B who are presently aged 16, 13, and 11 respectively.  Family Tax Benefit (FTB) was initially paid to Mrs Davidson.  Mr and Mrs Davidson lived with the children at a property in Lisarow although they were “separated under one roof” for a period of about 15 months.

2. On 21 March 2015, Mr Davidson left the Lisarow property and took the children with him to a rental property in Niagara Park. 

3. As a result, Mrs Davidson’s FTB was cancelled and Mr Davidson received 100% of the FTB.  That decision was affirmed on internal review and by AAT1.  Mrs Davidson now seeks a second tier review.

   ISSUE

4. What are the correct care percentages for each of the children as between Mr and Mrs Davidson which will determine the percentage of FTB payable to each parent?

   PERIOD UNDER REVIEW

5. At the outset of the hearing the representative for the Secretary informed me that on 9 June 2016 a fresh FTB determination had been made with respect to the period from 4 September 2015.  This was confirmed by the parties, and there is no application for review in respect of that decision.  Consequently the period for consideration was 21 March to 3 September 2015 only.

   RELEVANT LEGISLATIVE SCHEME

6. The statutory provisions relevant to the determination of care percentages are found in Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (the Act), and in the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). Section 25 of the Act provides that a person cannot be paid FTB for a child if they have less than 35% care of the child. Section 59 provides that if a child is an FTB child of two different people, Centrelink must determine the percentage of care each person has, and pay them that percentage of FTB. The process for making such a determination is not contained in the law, but Centrelink’s policy deals with it in some detail.

7. Whilst I am not bound to apply policy guidelines of the kind referred to, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.

   CONSIDERATION

8. Mrs Davidson contended that the children were taken from her without her consent, and in any event, Mr Davidson did not have the children exclusively during the period under review. 

9. Mr Davidson said that he and Mrs Davidson had been living separately in the Lisarow house but he could no longer stand the arguing in front of the children so he had left on 21 March 2015, taking the children with him.  He had arranged the accommodation the previous week and had told Mrs Davidson he was leaving.  Mrs Davidson said he had not told her he was taking the children.  Mr Davidson said the children had said they were going too.  Mrs Davidson said that the children were screaming in the car and Mr Davidson had made them go.  He had arranged a removalist and loaded up the children’s beds and clothing and the washing machine.  Mrs Davidson said that because they knew the house was to be repossessed no care was taken in the moving and there were holes in the wall about which Mr Davidson was disinterested.  Mrs Davidson said she called the police.  She said she did not know where he was taking the children, but it is unclear then how the police knew to attend the new premises.  She said she saw the children the next day at school but they were too frightened [of their father] to tell her where they had moved. 

10. Under the Family Law Act 1975, both parents have joint parental responsibility for children.  In the absence of a court order or parenting plan to the contrary, a child can be with one or other of the parents.  Mrs Davidson gave evidence that she had asked the police to intervene but they had declined.  Mr Davidson said the police had subsequently attended the new premises and had found the children happily playing in the pool and had left.

11. On 26 March 2015, Mrs Davidson informed Centrelink that Mr Davidson had taken the children and left the Lisarow home; he had taken the children’s beds and she was in the process of obtaining assistance to enable her to obtain replacement beds. 

12. Mrs Davidson told me that, on about 28 March 2015, she obtained beds from Vinnies and at the first level hearing, provided copies of receipts for bedding dated 27 March 2015.  Her evidence before me, and before AAT1 was that from “the following weekend” (4-5 April 2015, it would appear), the children started staying with her Friday, Saturday, and Sunday nights.  

13. Mrs Davidson said that because Easter is the busiest time in Mr Davidson’s business, the children stayed with her during that holiday period.  (Easter in 2015 fell on the weekend of 4 April).  Mrs Davidson conceded that K had a job, and did not spend the days with her.  Mr Davidson agreed Easter was his busy time but he said Mrs Davidson had no money so the children would only have stayed 1-2 nights.  Mrs Davidson gave evidence of having provided low-cost activities. 

14. In her evidence however she said that between 21 March and June/July the children stayed on average 1-3 nights a week, or about five nights per fortnight.  Mr Davidson denied that it was that often, saying that they would spend one night only at the Lisarow property before asking to return to the new premises.     

15. In contrast to her evidence before me, on 19 May 2015, Mrs Davidson reportedly advised Centrelink that, at that time, she had no care of the children.  She advised that she had had B for one night since 21 March 2015.  I prefer this account, to her more recent evidence.  In coming to that view I observe that the file contains a letter from the principal of B and C’s school dated 12 May 2015 which notes that according to information provided to the school, both children were, at that time, in the full care of their father.

16. In the two weeks of the June and July school holidays, Mrs Davidson said the children stayed with her most days while Mr Davidson was at work.  C and B stayed a few nights, including having a sleepover with their friends from the neighbourhood.  K was working and may have stayed only one night each week.  Mr Davidson conceded that the younger children went there during the day but said they seldom stayed the night - he estimated 1-2 nights each week during the holidays.  They only liked going to their mother’s, he said, because of their friends.   

17. Between July and August 2015 Mrs Davidson said she had to enrol C in high school.  There was no discussion about where she would go, because, Mr Davidson said, there was only one option.  Mrs Davidson said that she went to the orientation evening, whereas Mr Davidson said he went to the evening to obtain uniforms and books, because Mrs Davidson had no money to buy those things.  Mrs Davidson said the children stayed with her on average 2-3 nights per week including the weekend, whereas Mr Davidson thought it was more likely to be 1-2 nights per fortnight for the younger two and no more than one night per fortnight for K, because she has friends of her own.  Mrs Davidson said that C would stay after Monday night dance class and that B had stayed over after two school excursions in that period.     

18. In July 2015 Mr and Mrs Davidson were given notice that the house was to be repossessed and were given an order to vacate it by 10 August.  Mrs Davidson claimed that when the sheriff’s officers arrived she had time only to load the car, which would appear to be at odds with the advance notice she was provided.  She said the children were distraught.  She went to a shelter and got some temporary assisted accommodation and she and the children stayed in a motel.  In contrast to this evidence, Mrs Davidson said that C and B had stayed with her in a motel financed by the refuge for only two nights. 

19. In the first week of September she found some rental accommodation at The Entrance.  B liked it because there was a skate park directly opposite and he stayed 3-4 nights a week.  Also, from that time onwards C and K started to come more.  Before AAT1 Mrs Davidson said that the accommodation was shared, and the children were hesitant to stay with her until the flatmate moved out and that they did not stay with her overnight until that occurred, which she said she had reported to Centrelink, was on 4 September 2015.  Mr Davidson said it was still only about one night a week.  As it was, Mrs Davidson, he said, claimed to not be able to afford petrol and would have him collect the children.    

20. As was discussed by AAT1, where two or more adults care for an FTB child each can be eligible for FTB for that child at the same time.  Each of those adults however, needs to provide care for the child for at least 35% of the time. 

21. It was clear that the relationship between Mr and Mrs Davidson is very strained.  There have been domestic violence allegations; there is acrimony.  In those circumstances it is unsurprising that the evidence of Mr and Mrs Davidson was, for the most part, conflicting.

22. I am prepared to accept that, on the evidence,  B may have spent a little more time with his mother than the other two children in that he stayed one night with Mrs Davidson between 19 and 29 May 2015 and that he stayed with her for about two nights from 10 August 2015.  K spent less time than her siblings because of her age and job commitments.  It is unclear how many nights the children may otherwise have spent with their mother as the evidence of Mr and Mrs Davidson was, for the most part, clearly irreconcilable.  Neither kept contemporaneous notes for the relevant period.  

23. Subsection 35J(2) of the Act provides as follows:

    The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.

24. Where the pattern of care for an FTB child for a period shows that two parties share qualification for FTB for that child, then the decision maker is required to make a shared care percentage determination about the percentage of FTB payable to each party, weighing the available evidence in deciding whether there is a pattern of care and decide the appropriate shared care percentages arising from that pattern of care.  Instruction 2.1.1.45 of the Family Assistance Guide sets out how a pattern of care may be determined, in particular the actual pattern of care for the child which is generally based on the number of nights the child is in an individual’s care. 

25. The available evidence about the pattern of care in respect of each of the children does not demonstrate that Mrs Davidson had overnight care of the children in any regular pattern.  On balance, I accept that both parents had some care of all three children from at least June to 4 September 2015, but there was no "pattern of care".  Whilst there is some evidence that Mrs Davidson cared for the children at least during some of the period under review, it was ad hoc and not necessarily overnight and certainly not with the regularity that would support a “pattern of care” that would warrant a change of care percentage.  In any event, by far, Mr Davidson had the majority of care throughout the period under review.  The available evidence does not in my view establish that Mrs Davidson had a pattern of care with respect to any of the children for at least 35% of the time (that is, at least 127 nights per year, or more than two nights a week). 

26. Even if I were to apply a broader test (such as that applied in Drury and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] AATA 533) looking beyond the formulaic approach focussing on overnight stays and instead the hours of care, the outcome would, in my view, be the same.

    DECISION

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Associate

Dated: 17 January 2017

Date(s) of hearing:	7 December 2016
Applicant:	In person
Solicitors for the Respondent:	C Alexander, Department of Human Services
Other Party:	By telephone