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

[2019] AATA 3246

DYBM and Secretary, Department of Social Services (Social services second review) [2019] AATA 3246 (23 August 2019)

Division:GENERAL DIVISION

File Number:           2018/7060

Re:DYBM

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndHRBW

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:23 August 2019

Place:Brisbane

The decision under review is set aside and the matter is remitted to the Department of Social Services for redetermination on the basis that the Care Period is 12 months from 6 December 2017 and the Care Arrangements are 38% for the mother (DYBM) and 62% for the father (HRBW).

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Member P Ranson

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit (FTB) – percentage of care – care arrangements – decision under review remitted for reconsideration

Legislation

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

REASONS FOR DECISION

Member P Ranson

23 August 2019

1. The Applicant in this matter is DYBM (the Applicant).  The Respondent is the Secretary, Department of Social Services represented by Mr Summers (the Respondent).  The Other party is HRBW.

2. The Hearing was held on 9 August 2019 (the Hearing) and HRBW chose not to participate.  The Tribunal attempted twice to call HRBW and messages were left on his voicemail on each occasion.  The Tribunal is satisfied that HRBW received proper notice of the date and time of the Hearing, which proceeded in his absence.

3. The following documents were admitted into evidence:

Exhibit 1:	The Section 37 T-Documents filed on 8 January 2019;
Exhibit 2:	A 2018 calendar of care filed by the Applicant on 18 March 2019;
Exhibit 3:	The Secretary’s Statement of Facts and Contentions dated 24 April 2019 and filed on 29 April 2019; and
Exhibit 4:	An undated letter from the Applicant setting out her basis for calculating her percentage of care filed on 1 April 2019.

BACKGROUND

1. The Applicant and HRBW are the parents of three children, currently aged 12, 8 and 7 (collectively the Children).  There is no dispute that the Children are each an FTB child[1] for the purposes of Subsection 59(1) of A New Tax System (Family Assistance) Act 1999 (the Act).

   [1] A New Tax System (Family Assistance) Act 1999 (Cth), s 22(2).

2. The matter before the Tribunal is an application for a change in the care arrangements.  The Respondent also identified the need for a determination of the commencement of the care period.  The Department of Social Services currently records the Applicant as having care of the Children for 30% of the year and HRBW having care of the Children for the remaining 70% of the year.[2]  This arrangement is based on an Order by the Family Court dated 6 December 2017 dealing with the care of the children (the Court Orders).[3]

   [2] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 24 April 2019, para 9.

   [3] Exhibit 1, Section 37 T-Documents, T5 pp 25-31.

   WHAT DO THE COURT ORDERS SAY?

3. Clause 6 of the Court Orders provides as follows:

   That the children are to live with, spend time with and/or communicate with their parents, as agreed between the parties and if they fail to agree as follows.[4]

   [4] Exhibit 1, Section 37 T-Documents, T5 p 27.

4. Further, clause 7 of the Court Orders provides as follows:

   That the children shall live with the mother during each school term as follows:

   (a)In week one (being the week the mother is not at work) from after school (or 3.00pm) Monday until before school (or 9.00am) Tuesday or 9 AM and each alternative week thereafter;

   (b)In week two from after school (or 3 PM) on Friday until before school (or 9 AM Tuesday; and

   (c)That the regular term time is suspended during school holidays and the cycle will resume with the mother having the children in accordance with 7a and 7b above in accordance with her work schedule provided that the mother is to advise the father no less than seven days before the start of the next term as to whether the time will commence in the first week of term with week one or week two regime.[5]

   [5] Exhibit 1, Section 37 T-Documents, T5 pp 27-28.

5. The meaning of clauses 7a and 7b has been considered at various times by decision-makers in the Department of Social Security[6] and at the AAT in 2018[7] and each time the decision that the care is shared 30% to the mother and 70% to the father has been affirmed.

   [6] Exhibit 1, Section 37 T-Documents, T8 pp 46-52.

   [7] Exhibit 1, Section 37 T-Documents, T2 pp 5-9.

   WHAT HAS BEEN THE PATTERN OF CARE?

6. The Applicant had been of the view until the Hearing that the Court Orders resulted in her having care of the Children for five nights per fortnight.  Relevantly, the Applicant and HRBW had adopted the interpretation of five days per fortnight care during school terms by the Applicant since the Court Orders were made and had established a pattern of care for the Children on that basis throughout the year ended 31 December 2018.

7. At the Hearing, the Tribunal explained to the Applicant that the correct interpretation of clauses 7a and 7b is that the mother has care of the Children for 4 nights per fortnight.  It was explained to the Applicant that when she has care of the Children for the block of four days from Friday afternoon to Tuesday morning, being week 2 as per clause 7b, the Monday of that block of 4 days is also the Monday referred to in clause 7a.  The Applicant ultimately agreed with that interpretation.

8. The Applicant provided the Tribunal with a detailed calendar for the whole of the 2018 year in which she had marked up each day when she had care of the Children including holidays and school terms.[8]  Relevantly, a version of this calendar had not been provided to previous decision-makers.

   [8] Exhibit 2, 2018 calendar of care filed by the Applicant on 1 April 2019.

9. A review of the contents of that calendar by the Tribunal revealed that the Applicant had care of the Children for 140 days during the year ended 31 December 2018.  The Applicant confirmed this calculation in her covering e-mail to the Registry dated 18 March 2019, which attached Exhibit 2.  As HRBW did not participate in the Hearing, his agreement to the record of care as shown on Exhibit 2 was taken as given.

10. The Respondent advised at the Hearing that it adopts a neutral view of the validity of Exhibit 2 and so it is accepted by the Tribunal as a correct representation of the factual arrangements for the care of the Children.

11. Accordingly, the Tribunal revokes the existing care determination and instead finds that there has been a change of care and the actual care arrangements of the Children are 140 days per year for the mother, DYBM, and the balance for the father, HRBW.  This means the mother has 38% of the care and the father has 62% of the care.

    WHEN DOES THE CARE PERIOD START?

12. The Court Orders are dated 6 December 2017.  The Respondent and the Applicant both agreed that this is the relevant date for the Care Period to commence.

13. The Applicant advised the Hearing that the care arrangement which applied during the year ended 31 December 2018 had continued to date and she was not aware of any intention by either party to alter those arrangements.

14. Accordingly the Tribunal finds that the Care Period is 12 months from 6 December 2017.

    CONCLUSION

15. The decision under review is set aside and the matter is remitted to the Department of Social Services for redetermination on the basis that the Care Period is 12 months from 6 December 2017 and the Care Arrangements are 38% for the mother and 62% for the father.

19.     I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

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Dated: 23 August 2019

Date of hearing:	9 August 2019
Applicant:	By telephone
Other Party:	No appearance
Representative for the Respondent:	Andrew Summers
Solicitors for the Respondent:	Department of Human Services