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

[2016] AATA 875

Devlin and Secretary, Department of Social Services (Social services second review) [2016] AATA 875 (4 November 2016)

Division	GENERAL DIVISION
File Number	2016/1866
Re	Mr Paul Devlin
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Ms Lana-Jayne Heuvel
OTHER PARTY

DECISION

Tribunal	Mr Conrad Ermert, Member
Date	4 November 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Mr Conrad Ermert, Member

FAMILY ASSISTANCE - Court Orders - non-compliance - reasonable action to comply - interim period - percentages of care - whether Family Tax Benefit child - decision affirmed

Legislation

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

Secondary Materials

Family Assistance Guide (the Guide)

REASONS FOR DECISION

Mr Conrad Ermert, Member

4 November 2016

INTRODUCTION

1. Mr Paul Devlin, the Applicant, and Ms Lana-Jayne Heuvel, the Other Party, are the separated parents of two children, Child A and Child B. Mr Devlin and Ms Heuvel separated on 17 December 2011.

2. On 29 April 2014 the Federal Circuit Court of Australia made Orders under the Family Law Act 1975 (the Court Orders) which set out the care arrangements for the children. This order required that both Child A and Child B live with Ms Heuvel, with arrangements for the children to spend time during certain days and occasionally overnight with Mr Devlin.

3. Percentages of care are assigned in order to determine entitlement to Family Tax Benefit under the A New Tax System (Family Assistance) Act 1999 (the Act). As such, Mr Devlin and Ms Heuvel are required to report changes to the percentages of care in relation to Child A and Child B in order to determine the allocation of Family Tax Benefit. Care had initially been assessed as being that Ms Heuvel had 100 per cent care of Child A and Child B following the separation.

4. On 24 July 2014 Mr Devlin informed the Department of Social Services (the Department) that the actual care for Child A was 79 per cent for Ms Heuvel and 21 per cent for Mr Devlin under arrangements which accorded with the Court Orders.  The care of Child B remained at 100 per cent with Ms Heuvel.

5. On 27 August 2014 after considering information provided by Ms Heuvel and Mr Devlin, an officer of the Department determined a new assessment period from 24 July 2014 with Ms Heuvel having 93 per cent care of Child A and Mr Devlin having 7 per cent of the care (the Child Support Program Decision).

6. In February 2015 a delegate of the Department of Human Services decided to assess Ms Heuvel’s entitlement to Family Tax Benefit on the basis of the following care percentages:

Child A
Period	Ms Heuvel	Mr Devlin
17 December 2011 to 29 April 2014	100%	0%
29 April 2014 to 19 June 2014	83%	17%
20 June 2014 to 25 September 2014	78%	22%
26 September 2014 to 29 January 2015	81%	19%
From 30 January 2015	80%	20%
Child B
Period	Ms Heuvel	Mr Devlin
17 December 2011 to 25 September 2014	100%	0%
26 September 2014 to 29 January 2015	93%	7%
From 30 January 2015	85%	15%

1. On 11 February 2015, family assistance care percentages were applied for Child A and Child B (the Family Assistance Program Decision).  On 20 February 2015, Ms Heuvel requested internal review of this decision on the grounds that Mr Devlin had never had care of the children within the scope of the arrangements set out in the Court Orders. 

2. On 30 April 2015, an Authorised Review Officer (ARO) of the Department reviewed the Family Assistance Program Decision.  The ARO decided that the Family Assistance Program Decision should not have been made because the Child Support Program Decision had not been revoked. The ARO decided the Child Support Program Decision was correct and that the care percentages were therefore as follows:

Child A
Period	Ms Heuvel	Mr Devlin
17 December 2011 to 19 June 2014	100%	0%
From 20 June 2014	83%	7%
Child B
Period	Ms Heuvel	Mr Devlin
From 17 December 2011	100%	0%

1. Mr Devlin sought a review of the ARO decision.  On 25 February 2016 the Social Services & Child Support Division of this Tribunal (AAT1) affirmed the ARO decision.

2. This matter is an application for review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal. Mr Devlin argues that the care periods determined under the Child Support Program Decision are incorrect as:

   1.    The care period determined under the Child Support Program Decision was factually incorrect; or

   2.    Alternatively, that Mr Devlin has care percentage allocated to him under a court order which would result in the raising of an ‘interim period’ of care, irrespective of the actual percentage of care.

   HEARING

3. Mr Devlin and Ms Heuvel appeared in person and represented themselves.  They each gave their evidence under affirmation.  Ms Belinda Lewis appeared for the Respondent.

4. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). 

5. For Mr Devlin I took into evidence:

   ·Exhibit A1 – Application for review of decision – 2016/1866; and

   ·Exhibit A2 - Federal Circuit Court of Australia Affidavit filed on behalf of Paul Andrew Devlin.

6. For Ms Heuvel, I took into evidence as Exhibit OP1 a bundle of notes and computer and mobile telephone screen shots numbering 21 pages.

7. For the Respondent, I took in for consideration the Respondent’s Statement of Facts, Issues and Contentions dated 24 June 2016.

   ISSUES

8. The issues I must determine are:

   ·What percentage of care should be applied for Child A and Child B;

   ·Whether, despite the actual percentage of care, an interim period adjusting the percentage of care should be applied according to section 35 of the Act.

   LEGISLATION

9. The relevant legislation is contained in the A New Tax System (Family Assistance) Act 1999.  Policy on the application of the provisions of the Act is contained in the Family Assistance Guide (the Guide). In particular, several sections of the Act are relevant in determining whether an ‘interim period’ should be applied.

10. The ‘interim period’ that the Applicant seeks arises under sections 35A, 35B and 35C of the Act. By way of explanation, care percentages are normally allocated on the basis of actual care of a child. This rule is subject to exceptions, and the means of calculating percentages are found in the provisions in Part 3, Division 1, Subdivision D of the Act.

11. Section 35A of the Act provides a mechanism for calculating percentages of care in circumstances where a child is not in an adult’s care but is an FTB child for that adult, or would be an FTB child for that adult if there had been, or were to be, a pattern of care for the child over a period under a care arrangement relating to the child.

12. Section 35B of the Act provides a similar mechanism for calculating percentages of care where a child who is an FTB child for two adults and is in the care of both adults. Both provisions stipulate that, as part of the application of the respective section, the calculation provisions in section 35C should be applied if that section is enlivened.

13. Section 35C modifies the operation of sections 35A and 35B of the Act. It is enlivened in circumstances where a care arrangement is in place, and that care arrangement is not complied with, and the party who asserts non-compliance has made reasonable attempts to have the arrangement complied with.

14. Once enlivened, section 35C modifies the calculations of sections 35A and 35B by establishing a period in which care percentages are allocated on the basis of those the parties have under the care arrangements rather than the actual care. This is the ‘interim period’ that Mr Devlin seeks to have raised.

    EVIDENCE

    Mr Devlin   

15. Mr Devlin stated that he relied on the evidence contained in his sworn affidavit.  He said the Court Orders provided for a gradual increase in his contact with the children in 2014 to reach a steady state in 2015.  However, he submitted Ms Heuvel did not comply with the provisions of the Court Order. He was not seeing the children at all so he spoke to his father-in-law.  He also submitted a contravention application with the Court; but has been advised that the date for the hearing will not be before two years.  He has now sought the assistance of a lawyer.

16. Mr Devlin stated he agreed with the statement at paragraph 4.26 of the Respondent’s Statement of Facts, Issues and Contentions that he should have at least 14 per cent care of Child A and Child B under the Court Order.  He submitted that, if the actual level of care is disputed, he seeks a determination for an interim period to apply from January 2015 for a period of 26 weeks. 

    Ms Heuvel

17. Ms Heuvel said that since 2014, Mr Devlin had cancelled the agreed collection of the children or had not shown up.  In support of this statement, Ms Heuvel referred to the copies of emails and text messages contained in her bundle of notes.  She said that the T‑Documents showed that the Child Support Agency tried on numerous occasions to contact Mr Devlin.  Ms Heuvel said that holiday periods for Child B amounted to only a few days.

18. Ms Heuvel contends that the decision of the ARO is correct.

    TRIBUNAL CONSIDERATIONS

    Interim Period

19. Mr Devlin contends that an interim period should be applied for the application of care percentages from January 2015 onwards.  He contends that he took reasonable action to ensure compliance with the provisions of the Court Order.  Mr Devlin’s evidence in this regard is contained in his application for review of the Tribunal decision (Exhibit A1) and in his Affidavit (Exhibit A2).

20. If a care arrangement applies to a child and the Secretary (the Tribunal in place of the Secretary) is satisfied that an individual has taken reasonable action to ensure the care arrangement is complied with, section 35C of the Act provides that the Secretary must determine percentages of care under the provisions of sections 35A or 35B. 

    Percentage of Care

21. The Court Order set up arrangements resulting in the following care percentages for the children to apply from 30 January 2015:

    ·For Child B: 15 per cent for Mr Devlin, and 85 per cent for Ms Heuvel; and

    ·For Child A: 20 per cent for Mr Devlin, and 80 per cent for Ms Heuvel.

22. These percentages are accepted by the Secretary who submits that, based on the Court Order, Mr Devlin should have had at least 14 per cent care of Child B from 30 January 2015 and at least 14 per cent care of Child A from 29 April 2014. 

23. Mr Devlin’s evidence was that he had zero per cent actual care for the children during the period from January 2015 to December 2015.  He said the care stabilised in January 2016 to that specified in the Court Order.  Ms Heuvel did not contest this evidence.

24. In its first review, the Tribunal found that from February 2015 Mr Devlin had, at best, 7 per cent care of Child A and 0 per cent care of Child B.  The evidence provided by both Mr Devlin and Ms Heuvel does not support consideration of percentages of care for Mr Devlin greater than those previously found by the Tribunal. Accordingly, I have no reason to disturb the Tribunal’s findings.

    Application of Sections 35A and 35B

25. Both sections 35A and 35B of the Act, provide that the Secretary must determine the person’s percentage of care for the child if the Secretary is satisfied, amongst other things, that the child was or will be an FTB child of the adult and at least one other individual.

26. Mr Devlin argues that he meets the criteria set out in section 35A or section 35B of the Act, and therefore the operation of section 35C should establish an ‘interim period’ reflecting the care of Child A and Child B he was entitled to under the Court Orders rather than the actual care of the children. He argues this on the basis that Ms Heuvel was non‑compliant with the Court Orders, and that he made reasonable attempts to ensure that the Court Orders were complied with.

27. The problem with this argument is that Mr Devlin does not meet the criteria set out in section 35A or section 35B of the Act. Section 35A requires that Child A or Child B either be an FTB Child for Mr Devlin, or that they would be under a care arrangement relating to a child. Section 35B requires that Child A or Child B be a FTB Child for both Mr Devlin and another adult.

28. Subsection 22(7) of the Act provides that a child is taken to be an FTB child of an individual during a care period if the individual’s percentage of care for the child is at least 35 per cent.  The Note restates the provision as follows:

    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).

29. Section 25 of the Act states: If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.

30. As noted above, the maximum amount of actual care that Mr Devlin could have had was 7 per cent for Child A and 0 per cent for Child B. Under the Court orders, the maximum amount of care Mr Devlin could be said to be entitled to would be 20 per cent for Child A and 15 per cent for Child B.

31. As Mr Devlin’s care for Child A or Child B does not meet the 35 per cent threshold, in actuality or in circumstances in which the care percentages under the Court Orders were applied, he cannot have a percentage care amount calculated for him under s 35A or s 35B of the Act. It is therefore not relevant to apply section 35A(1)(a)(i) or 35B in terms of Child A or B being an FTB child of Mr Devlin or Mr Devlin and Ms Heuvel, or section 35A(1)(a)(ii) in terms of either Child being a FTB Child for Mr Devlin under a care arrangement.

32. The only adult for whom Child A and Child B are or would be FTB Children is Ms Heuvel. It is further unnecessary to apply sections 35A and 35B while assessing Ms Heuvel’s percentage of care for this reason.

33. Given sections 35A and 35B are not applicable, there is no scope for the Tribunal to apply section 35C. I am therefore not required to determine whether there has been non‑compliance with a care arrangement or any subsequent considerations regarding reasonable action to determine an interim period. I am satisfied that at no time during the period from 30 January 2015 to end of December 2016 could either Child A or Child B be FTB children of Mr Devlin.  I find accordingly.

    CONCLUSION

34. Mr Devlin sought the determination of an interim period to apply during 2015 on the basis of the care he should have had in accordance with the Court Orders.  Applying the care percentages of the Court Orders does not result in either child being an FTB child of Mr Devlin.  The provisions of the Act preclude the determination of an interim period under these circumstances.  There is no evidence of Mr Devlin’s actual care percentages being greater than those already determined.  There are no grounds for disturbing the earlier findings of the Tribunal.

    DECISION

35. The Tribunal affirms the decision under review.

I certify that the preceding 43 (forty‑three) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member

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

Associate

Dated 4 November 2016  

Date of hearing	19 September 2016
Applicant	In person
Advocate for the Respondent	Ms Belinda Lewis
Other Party	In person