Dimer and Secretary, Department of Social Services (Social services second review) - [2024] AATA 78

Dimer and Secretary, Department of Social Services (Social services second review) [2024] AATA 78 (29 January 2024)
Division:GENERAL DIVISION
File Number: 2023/0259
Re:Sharon Dimer
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndTempest Perri Stellena Mona Combo
FIRSTOTHER PARTY

AndLinden Tucker
SECOND OTHER PARTY

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:29 January 2024
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 19 December 2022, is set aside and substituted with the decision that there was a change in the care of the children (C and A) from 12 November 2021 and that both children were the FTB children of the Grandmother (Applicant) from 12 November 2021 to 11 February 2022.
..........................[Sgd]..............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit (FTB) – whether a change in care occurred – dispute between Mother and Grandmother about whether there was a change of care for two children – finding that the children were the FTB children of the Grandmother – Reviewable Decision set aside and substituted
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21(1), 22, 22(5)(a), 22(5)(c)
CASES
Reece and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Parsons (Party Joined) [2008] AATA 525
Secretary, Department of Social Security v Lowe [1999] FCA 705
Secretary, Department of Education, Skills and Employment and Awur [2020] AATA 4091
SECONDARY MATERIALS
Family Assistance Guide topics 1.1.C.90, 2.1.1.20, 2.1.1.60, 2.1.1.85
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
29 January 2024
BACKGROUND

This application concerns who is entitled to Family Tax Benefit (FTB) for two children, C (born in 2017) and A (born in 2019) for the period 12 November 2021 to 11 February 2022 (the Relevant Period).
The First Other Party is the mother of the children (Mother), and the Second Other Party is the father of the children (Father). The Mother and Father are separated.
The Applicant is the grandmother of the children (Grandmother).
During the Relevant Period the children, who normally live in Perth, went to stay with their Grandmother in a regional town, which is more than six hours drive from where the children had been residing with their Mother. The Father lives in the same house as the Grandmother.
There is a dispute between the Grandmother and the Mother regarding whether there was a change of care of the children during the Relevant Period.
From 1 February 2019 the Mother had been assessed as having 100% care of the children.
However, on 6 December 2021, the Grandmother lodged claims for FTB and Parenting Payment (Single). She stated in her FTB claim that the children came into her care on 12 November 2021 and that she did not share their care with anyone else.
Further, on 7 December 2021, the Grandmother lodged a Details of your child’s care arrangements form (Form FA012) where she stated that she had 100% care of the children from 12 November 2021 (T29/310-312).
On 8 January 2022, Centrelink wrote to the Mother asking for more information and evidence that the children were in her care from 12 November 2021 (T23/271).
On 14 January 2022, the Mother lodged a Form FA012 stating that the children were in her care on an ongoing basis (T19).
The Grandmother provided a letter dated 17 January 2022 from a friend stating that the Grandmother “has currently had her two grandsons [names omitted] living with her for the past 2 months” (T30/317). The Grandmother provided another letter of the same date from the children’s grandfather stating that she “has had the grandchildren for the past 2 months in [the regional town]” (T30/318). On 22 February 2022, the Grandmother submitted another undated letter to Centrelink from another friend stating “she had them [the children] and they are still in her CARE now 22/2/202” (T31/321).
On 23 February 2022, an officer from Centrelink contacted the Mother to discuss the actual care of the children. The Mother advised that the children went to stay with their Father and Grandmother from 12 November 2021 “on a holiday” and that they returned to live with her in the new year, although she could not recall the date in January. She agreed that the children returned to live with their Father and Grandmother from 12 February 2022. The Mother told the Centrelink officer that she was looking for accommodation and dealing with mental health issues and felt it best that the children went to stay with their Grandmother and Father while she managed her issues (T21/257).
Similarly, an officer from Centrelink called the Father on 23 February 2022 to discuss the care of the children. The Father advised that he lived with the Grandmother but that he was working all the time and so the Grandmother was caring for the children. He further stated that the children were not in his care and that they were in the Grandmother’s care because she was the one caring for them. He confirmed that the children came into the Grandmother’s care on 12 November 2021 (T26/293).
On 28 February 2022, the Grandmother lodged a further Form FA012 which also stated that she had 100% care of both children from 12 November 2021 and that the care arrangement was ongoing (T32). On 28 February 2022 the Grandmother also attended the Centrelink office in the regional town and advised that the Father lived with her, but that he worked and so she was the one caring for the children (T34/348).
On 13 March 2022, a manager from Centrelink decided that the Grandmother had 100% care of the children from 12 November 2021 (T35/372). Centrelink also wrote to the Mother to advise that their records had been updated to show that she had 0% care of the children from 12 November 2021 (T23/281).
On 27 July 2022, the Mother requested a formal review of the decision dated 13 March 2022. She advised that the children did not leave her care until 18 February 2022 (T21/263).
The Mother provided childcare records in support of her request for review, and a copy of an “exit letter” to C’s school stating that C would be leaving school on 28 February 2022 to live with his father in the regional town (T20). The childcare records for the child A contain redactions and I can only see one entry on 30 November 2021 where the mother signed in at 7:36 AM and signed out at 2:42 PM (T20/248). The attendance summary reports from the childcare show multiple attendance entries but do not show the dates of each entry.
On 6 September 2022, an Authorised Review Officer (ARO) set aside the decision dated 13 March 2022, deciding that a change of care occurred on 12 November 2021 and that at that date the children became the FTB children of the Father (ARO Decision). The ARO found that the Father was the one who was entitled to FTB because he was legally responsible for the children, despite the children living at the Grandmother’s house and her contributing to their care from 12 November 2021 (T18, T25, T28).
The Mother lodged an application in the Social Services and Child Support Division of this Tribunal (AAT1) on 29 September 2022, seeking a review of the ARO Decision (T17).
The Grandmother provided a statutory declaration dated 6 October 2022 where she stated that the children had been in her care for 100% of the time since 12 November 2021 (T33).
The AAT1 held a hearing on 19 December 2022 by Microsoft Teams. The hearing ended prematurely when the Mother, in response to a comment made by another party, ended the call. Nevertheless, the AAT1 decided that it had sufficient evidence to decide the application (T2/8).
On the same day the AAT1 set aside the ARO Decision. The AAT1 found that there was no change in care for the purpose of FTB in relation to the children from 12 November 2021. This meant that both children were the Mother’s FTB children from 12 November 2021 until 11 February 2022 (T2/7). The AAT1 Decision dated 19 December 2022 is the Reviewable Decision in this application.
The Grandmother lodged an application with the Tribunal dated 9 January 2023, seeking review of the Reviewable Decision.
THE HEARING
The application was heard by telephone on 12 September 2023. The Father did not attend the hearing.
Due to the Mother and Grandmother’s behaviour towards each other, which obstructed both myself and the Respondent’s representative from asking questions, I decided that the Grandmother and Mother would be questioned separately. After proceeding in that manner, I made directions for the transcript to be made available to the Mother and Grandmother after the hearing so they could comment on each other’s evidence by way of written submissions. I subsequently received written submissions from the Grandmother and the Respondent, but not from the Mother.
ISSUES
The issues for me to decide in this application are:
·whether there was a change of care with respect to the children on 12 November 2021; and
·whether the children where the FTB children of the Grandmother, Father or Mother from 12 November 2021 to 11 February 2022.
I only need to consider the period 12 November 2021 to 12 February 2022 because there have been subsequent determinations by the Respondent that from 12 February 2022 to 19 October 2022 the Father had 100% care of the children and from 20 October 2022 to the present time, the Mother had 100% care of the children.
LEGISLATION AND POLICY
The eligibility criteria for FTB is prescribed in s 21(1) of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) which provides:
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i) has at least one FTB child; or
(ii) has at least one regular care child who is also a rent assistance child; and
(b) the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A) or (1B); and
(c) the individual’s rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding section 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1, is greater than nil.
Relevantly, s 22 of the Act concerns when an FTB child is the child of another individual. The relevant parts provide:
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.
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.
In summary, a person is eligible for FTB if, amongst other requirements, they have at least one FTB child in their care for at least 35% of the time and specific circumstances surrounding legal responsibility for the care of the child are satisfied.
The whole of the arrangements for the care of the child should be considered when a determination is made as to whether the child is in a person’s care (Secretary, Department of Social Security v Lowe [1999] FCA 705 cited in Reece and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Parsons (Party Joined) [2008] AATA 525 at [30]).
Topic 1.1.C.90 of the Family Assistance Guide (the Guide) provides guidance about the definition of “care” for the purposes of a child being considered an FTB child. It explains:
Care generally includes physical care; however, the importance of physical care decreases as the child (also refers to a young person) becomes older. For example, a baby or toddler’s care needs are largely immediate and physical (feeding, nappy changing, bathing, supervision). As the child grows older, they will gradually start to meet many of their physical care needs themselves.
Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child’s mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child.
Some examples of care include:
·having control of the child, including making major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities,
·having major daily responsibility for caring for the child and making the major decisions (e.g. meal preparation, hygiene, transport, discipline, emotional and moral support and guidance),
·bearing the costs of the child's daily life (e.g. food, accommodation, transport, clothing, schools fees, health and dental care etc.),
·making arrangements related to the child’s needs (e.g. appointments at school or with doctors or dentists and accompanying them on those appointments), and/or
·being the main person for the day care, school, or college to contact in emergencies.
When assessing levels of ‘care’ consideration of the full circumstances of each case must be taken into account to decide whether care remains with a parent, is shared with others, or is not present.
The Guide, at 2.1.1.20, also provides some guidance as to when a change in care occurs. The Guide explains that “A change of care occurs if the FTB child leaves the daily care of an individual or ACO, either for a temporary period or permanently”.
It explains that “Short-term absences do not affect FTB eligibility … A short-term absence is generally less than 4 weeks”. It gives the example, “Sally goes on an interstate holiday with her grandparents for 2 weeks, and then returns home to her parent. Sally's parent does not lose eligibility for FTB for Sally”.
The Guide, at 2.1.1.60, explains the circumstances in which FTB may continue to be paid. It states:
FTB may also continue to be paid to an individual in circumstances where there is a short-term deviation from the normal care arrangements for a child, such as when care of the child has been delegated (2.1.1.85) to another individual or organisation. For example, when the child is with another carer … on holidays, or where the usual parent or carer is in hospital receiving medical care.
And further, at 2.1.1.60:
As part of the process of determining whether there has been a change in care for FTB purposes, the decision-maker must verify who is actually caring for the child.
If legal responsibility for the child has been transferred to the new carer (formal care), the relevant court or state/welfare authority can assist in verifying care. However, evidence of who is actually caring for the child should also be obtained. Evidence may be obtained from a range of sources, including:
·      confirmation of play group, kindergarten or school enrolment
·      proof of attendance or membership of local organisations or activities
·      receipts for expenses incurred while the child was in care
·      confirmation of the level of care from close family friends or relatives
·confirmation from professional members of the community who have regular contact with the family, such as teachers, social workers, police, ministers of religion, accountants, lawyers or doctors, and
·records from Centrelink or other government agencies which confirm the care.
It may be more difficult to verify who is caring for the child where legal responsibility has not been transferred (informal care). If a new carer does not have legal responsibility for the child, it is necessary to confirm that the child is not in the care of a person who does have legal responsibility for the child. Evidence of who is actually caring for the child may be obtained from a range of sources, as outlined above.
Relevantly, the Guide at 2.1.1.85, concerns the payment of FTB where there are informal care arrangements, such as private arrangements with grandparents.
Informal care
Informal care is a private arrangement between the parent and another party, where there is no change to any form of legal responsibility. Informal carers will usually be grandparents, other relatives or family friends. In informal care situations, who is eligible to receive FTB for a child depends on whether there has been a change of care or a delegation of care.
Delegation of care in informal care situations
Where an individual delegates the care of their child to another individual, FTB is not payable to the other individual. Common examples of delegated care include a child attending child care (either formal child care or care by a relative/friend), attending boarding school or staying with a grandparent, other relative or family friend.
The following circumstances should exist for a care arrangement to be considered a delegation of care:
·The individual should retain overall responsibility for the child, including the ability to make major decisions about the child such as those relating to the child's health and education and the length of time they spend with the other carer.
·The care arrangement should be short term and temporary (rather than open ended or ongoing). There should be a defined end date to the care arrangement. Where there is no documentary evidence that confirms when the care arrangement will end (such as a letter of from an employer, school), the intention of the individual should be considered.
·The individual should be meeting, or at least substantially contributing to, the child's costs. This includes day to day costs (food, accommodation, transport etc.) and long term costs (school fees, clothing, health and dental care).
…
The Guide further explains:
Change of care
If it cannot be established that delegation of care exists, it is likely that a change of care has occurred. Whether FTB can be paid to the new carer will depend on whether the care is of a temporary and short term or an ongoing nature.
Temporary & short term care
Where possible, FTB should be paid to the individual who has the care of a child. However, in some situations, FTB may continue to be paid to a parent who does not have the care of a child. For example, if the change of care is temporary, short term, and informal and the intention is that the child will return to the parent within a short period, the parent will continue to be paid FTB. However in all but the most extenuating circumstances, the total temporary and short-term absence for FTB purposes, should not exceed 4 weeks. After this period, the actual carer should receive the FTB, provided they are eligible and entitled. The continued payment of FTB beyond a 4-week absence to the parent could only occur if the parent's involvement in the child's care increased to a sufficient degree.
…
Ongoing care
When it is clear from the outset that a child will be in ongoing care, then the carer will be eligible for FTB from the date the child enters their care. When care has been on a temporary and short-term basis and it subsequently becomes ongoing, a change of care applies at the point it becomes ongoing and FTB may be payable.

In Secretary, Department of Education, Skills and Employment and Awur [2020] AATA 4091 at [42], the Tribunal summarised these relevant provisions of the Guide:
Reference is made by the Applicant to the definition of “Informal care” in the FA Guide and also “Delegation of care in informal care situations.” Concerning “Informal care”, the FA Guide notes that in informal care situations eligibility to receive FTB depends on whether there has been a change of care or a delegation of care. The FA Guide provides that where there has been a delegation of care of a child to another individual the FTB is not payable to the other individual. The key consideration identified in the FA Guide in classifying a care arrangement as a delegation rather than a change of care, is whether the individual concerned retains overall responsibility for the child, including the ability to make major decisions about the child such as those relating to the child’s health and education, and the length of time they spend with the other carer.
(Emphasis added.)
Thus, to consider whether there was a change in care, it is necessary to consider whether there was a delegation in care (which is a more short-term arrangement such as going on a holiday), or whether the care was more accurately characterised as ongoing which would suggest a change in care.
In order to consider this, I will first turn to the evidence given by the Grandmother and Mother.
THE EVIDENCE OF THE GRANDMOTHER AND THE MOTHER
Both the Mother and Grandmother agreed that the children went to stay with the Grandmother on 11 or 12 November 2021.
Grandmother
The Grandmother’s evidence was that the Mother had contacted the Father the night before the children arrived and that he had told her the Mother was bringing the children to stay. The Father lived with the Grandmother in her home, but would spend time away from the home working.
The Grandmother stated that when the children arrived, they were sick for approximately three and a half weeks and that the Mother had not been caring for them properly. She said that on 11 December 2021 she organised a birthday party for C and that she had taken them shopping to get clothes and nappies for them. She said that she made sure the children were active and that they went to the park and swimming. She said that she had bought them swing sets and three-wheel bikes and that she had turned the spare bedroom into a toy room for the children.
The Grandmother also said that sometimes she would supervise the children’s baths, and the Father would prepare their meals, or vice versa. She said that the Father would work two weeks on, one week off, and that he was also absent for a funeral and visiting family for several days. She said that he had no responsibility for the children and that “I had the children” (transcript/8). The Grandmother said that she was a spiritual healer and that during the Relevant Period she made all the decisions about the children’s health. She took C to have a vaccination on 13 January 2022. The evidence was somewhat unclear, but the Grandmother said she had to get information from the Mother “about where the vaccination was occurring”, that she took C for the vaccination, and that the Father had communicated to the Mother that the child had a vaccination (transcript/10-11).
With respect to whether the Mother was involved in making decisions about the children during the period 12 November 2021 to 11 February 2022, the Grandmother stated (transcript/11):
when it comes to making those decisions, those decisions were always relayed. Now if – anything [the Father] told me, I got that done, and I told [the Father], and [the Father] done that, you know, spoke to [the Mother] about it. I was – we did not – me and [the Mother] did not have any communication whatsoever.
I infer from this evidence that if the Father told the Grandmother to do anything regarding the children, the Grandmother would carry out his instructions, and the Father would keep the Mother informed about what had been done.
The Grandmother also gave evidence that although it was the school holidays, she had made some enquiries with local schools about the children starting school in February “just in case if it ever did happen” but had been advised that the children needed to be out of nappies to attend school.
Mother
The Mother’s evidence was that the children did not go to live with the Grandmother on 12 November 2021. She said that they went there for the school holidays and Christmas. She said that the children returned to her care at the end of January, approximately two weeks before school started.
She maintained that the children never left her care and that she still had 100% of care including “making full decisions” about the children (transcript/18).
She said that she did not have any contact with the Grandmother during time the children were there, but that she spoke to the Father about the children every day by Facebook, phone and text messages. She did not visit the children during that time but also had contact with them by Facebook, phone, and text messages.
The Mother stated that she intended for the Father to have day-to-day care of the children, but that “he took off doing drugs. So that’s why [the Grandmother] said she’s got full custody” (transcript/19).
She stated that she had not given permission for the Grandmother to take one of the children, C, to receive a vaccination on 13 January 2022. She did not know that the Grandmother had taken C for a vaccination and said “I never told her to take him to the doctors” (transcript/20).
WAS THERE A CHANGE IN THE CHILDREN’S CARE FROM 12 NOVEMBER 2021?
The children went to stay with the Grandmother, in her house where the Father also lived, on 12 November 2021. They may have returned briefly to the Mother, as suggested by the day-care record of 30 November 2021, but the evidence before me suggests that they were with the Grandmother for the entirety of the Relevant Period.
Although the Mother stated that the children were there on a holiday, the length of time of the Relevant Period that the children were with their Grandmother (a period of approximately three months) was far more than the period of four weeks contemplated as indicating a short-term arrangement in the Guide. This weighs against a finding that the arrangement was a short-term one and suggests that there was a change of care.
Also, during the relevant period, the Mother was facing personal issues including mental health issues and instability in her accommodation which made it difficult for her to care for the children, and when they arrived at the Grandmother’s house they were unwell for several weeks. The Mother had sent the children to their Grandmother’s home for a “holiday” because she was having difficulty addressing her personal issues and looking after the children. The evidence suggests that the Father would convey information about the children to the Mother to keep her informed, but it does not suggest that the Mother undertook or retained any responsibility for any decision-making with respect to the children. Based on this evidence, it is unlikely that the Mother was practically able to make decisions about the children during the Relevant Period.
Although the Father had legal responsibility for the children as their parent, the evidence suggests that he was not caring for them. The contemporaneous record of a telephone call between a Centrelink officer and the Father (which I outlined at paragraph [13] above) records that the Father reported the Grandmother was caring for the children and that they were not in his care because he was working.
The evidence supports a finding that the Grandmother was responsible for the children’s day to day care, and their mental, moral and emotional support during the Relevant Period. This included looking after and making decisions about their health, as evidenced by the Grandmother caring for the children for several weeks when they were sick, making sure they undertook healthy outdoor activities, and organising a vaccination for one of them. The Grandmother also attempted to make arrangements for the children’s schooling, although she had difficulty doing so because they were not toilet trained. The Grandmother also appears to have been the person paying for the essential costs of caring for the children, including the cost of food.
The Grandmother was also able to provide corroborating evidence that she had daily care of the two children during the Relevant Period in the form of the two letters from friends and the letter from the children’s Grandfather.
Based on the evidence before me, I find that the Grandmother satisfies the eligibility criteria for FBT under s 21(1) and 22 of the Act for the Relevant Period. The children were the FTB children of the Grandmother for the Relevant Period because they were in her care (s 22(5)(c) of the Act), and not in the care of the Mother or the Father who would have had legal responsibility for them (s 22(5)(a) of the Act).
Consequently, I find that:
·There was a change of care with respect to the children, C and A, on 12 November 2021 from which time the Grandmother had 100% care of them.
·For the Relevant Period, the children were the FTB children of the Grandmother.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 19 December 2022, is set aside and substituted with the decision that there was a change in the care of the children (C and A) from 12 November 2021 and that both children were the FTB children of the Grandmother (Applicant) from 12 November 2021 to 11 February 2022.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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Associate
Dated: 29 January 2024

Date of hearing:

Date final submissions received:

12 September 2023

31 October 2023

Representative for the Applicant:

Representative for the First Other Party:

Representative for the Second Other Party:

Self-represented

Self-represented

Did not participate in the hearing

Representative for the Respondent:

Ms G Gehrke, Services Australia