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

[2022] AATA 11

Farrugia and Secretary, Department of Social Services (Social services second review) [2022] AATA 11 (6 January 2022)

Division:GENERAL DIVISION

File Number(s):      2021/2008

Re:Charles Farrugia

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndKelli McDowell

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:6 January 2022

Place:Brisbane

The Tribunal sets aside the reviewable decision dated 11 March 2021 and in substitution finds the care of the Daughter during the period 12 January 2020 to 10 October 2020 was 50% to the Father and 50% to the Mother.

...........................[SGD]........................

Member P Ranson

Catchwords

SOCIAL SERVICES – Family Tax Benefit – care percentage determinations – contested evidence – shared care – no parenting orders – decision set aside and substituted.

Legislation

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

Child Support (Assessment) Act 1989 (Cth)

Cases

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

Secondary Materials

Family Assistance Guide (Cth)

REASONS FOR DECISION

Member P Ranson

6 January 2022

BACKGROUND

1. The Applicant (The Father) and the Other Party (The Mother) are the separated parents of the daughter born in 2004 (the daughter). Her care has been shared between her parents since separation.

2. From 2016 until early 2020, the daughter was recorded as in the care of The Father 100% of the time with occasional visits with the Mother. In January 2020 it seems an incident occurred where there was a disagreement between the daughter and the (now ex) partner of the Father after which the Mother claims the daughter moved in with her and only spent limited time with the Father. The Mother notified Services Australia and a change of care decision was recorded giving her 80% care of the daughter to the Father’s 20% for 12 January 2020 to 10 October 2020.

3. That care decision was varied internally by Services Australia and changed to 72% to the Father and 28% to the Mother. Dissatisfied with that decision the Mother applied to the Social Security and Child Support Division (SSCSD) of this Tribunal and in March 2021 that decision was swapped around such that the care became 72% to the Mother and 28% to the Father, based on the evidence of the Mother (the Father did not attend the hearing).

4. The Father was dissatisfied with that decision and, claiming he did not appreciate the consequences of not appearing at the AAT1 hearing, applied to the General Division of this Tribunal for a review of it. The Father did not attend the hearing in the first Tribunal decision however he and the Mother both attended the hearing that preceded this decision.

5. In a separate decision, Services Australia also recorded the care as 50/50 as between the Father and the Mother from October 2020.

6. At its heart, this case is all about entitlement to Family Tax Benefit (FTB), that is, how much FTB is the Father entitled to and how much is the Mother entitled to during the period January 2020 to October 2020.

7. Throughout this matter both in Services Australia and in this Tribunal, the evidence of the Father and the Mother has been highly conflicted and in some cases of limited reliability. There is some doubt as to whether a change of care occurred at all in January 2020 and whether the change might have occurred from February 2020. Part of the conflicted evidence in this decision is that care potentially changed again in July 2020. The Father contends he had 100% care of the daughter yet his evidence, at best, suggests around 50% care. The Mother contends she had 80% care of the daughter during the period from January 2020 to October 2020. Clearly, they can’t both be correct.

8. Despite the highly conflicted evidence in this case the Tribunal concludes a change of care did occur in January 2020, and for the reasons that follow, concludes the correct and preferable decision is to record the care as 50/50 as between the Father and the Mother from January 2020. This means the 50/50 care arrangement applies from 12 January 2020 to 10 October 2020.

PROCEDURAL HISTORY

1. The Respondent in this case is the Secretary of Department of Social Secretary.  

2. The hearing for this current application was held before this Tribunal on 25 October 2021 (the Hearing). The Father, the Mother and all the witnesses attended the hearing and gave affirmed evidence. Mr Christopher Murphy (Mr Murphy) also attended the Hearing representing the Secretary.

3. All parties attended the Hearing by video or audio link facilitated by the Tribunal utilising Microsoft Teams. Due to technical difficulties, the Mother and her witnesses were unable to attend by video link and instead attended by audio link. The Hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied all parties were given a fair opportunity to give evidence and present arguments.

4. The Secretary identified the issue to be decided as what percentage of care should be assigned to the Applicant and the Other Party for the period 12 January 2020 to 10 October 2020.

1. The following documents were admitted into evidence:

Number

Description

Exhibit 1

T Documents

Exhibit 2

Respondent’s Statement of Facts, Issues and Contentions

Exhibit 3

Other Party Supporting statements

-    Ms SS

-    Mr JF

Exhibit 4

OP Calendar of Care

Exhibit 5

Applicant Submission re: Calendar of Care

Exhibit 6

Applicant Calendar of Care

Exhibit 7

Applicant Calendar of Care (Jan 2020 only)

Exhibit 8

Statement of RF

Exhibit 9

Statutory Declaration of Applicant

Exhibit 10

Statement of Child

Exhibit 11

Statement of BB

Exhibit 12

Statement of AH

Exhibit 13

Further Statement of AH

Exhibit 14

Statement of CH

Exhibit 15

Statement of TW

Exhibit 16

Letter from Roberts Family Law

Exhibit 17

Submission re: School Fees

Exhibit 18

Receipt of School Fees

Exhibit 19

Submissions re: Various photos

Exhibit 20

Further Submissions re: Various photos

Exhibit 21

Various Photos (x9)

Exhibit 22

Various Photos (x8)

Exhibit 23

Text Message between Child and Applicant

Exhibit 24

Further Text Message between Child to Applicant

Exhibit 25

Letter re: Hearing Impairment

Exhibit 26

Letter re: Hearing Impairment (Worksafe Vic #1)

Exhibit 27

Letter re: Hearing Impairment (Worksafe Vic #2)

Exhibit 28

SSCSD Email (Non-attendance of Hearing)

Exhibit 29

SSCSD Non-Disclosure Refusal

Exhibit 30

SSCSD Letter – Notice of Hearing

Exhibit 31

Further Statement of JF

Exhibit 32

Further Statement of SS

Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 30. Exhibit 31 and Exhibit 32 were received after the Hearing and were provided to all parties.

1. The Tribunal has considered all the material supplied to it and the evidence produced by the Father, the Mother and the witnesses. Not all the evidence is referred to at length in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

2. Remembering this case is all about entitlement to FTB, the Secretary’s Statement of Facts and Contentions dated 16 August 2021 (the SFIC) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its attachments were provided to the Father and the Mother prior to the hearing, that law will not be reproduced in detail in this decision other than to confirm the relevant legislation is contained in:

   a)A New Tax System (Family Assistance) Act 1999 (Cth) (the Act).

3. The Respondent’s SFIC also refers to the Family Assistance Guide (the Guide). The Tribunal notes that, where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[1] The Tribunal considers that there are no pressing reasons to depart from the policy outlined in the Guide.

   [1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

THE FACTS AND EVIDENCE

1. The care decisions which precede this decision are as follows:

Decision by	From	To	% Father (Applicant)	% Mother (Other Party)
Services Aust 22-08-2016	22-08-2016	11-01-2020	100%	0%
Services Aust 23-09-2020	12-01-2020	10-10-2020	20%	80%
ARO 21-10-2020	12-02-2020	10-10-2020	72%	28%
AAT1 11-03-2021	12-01-2020	10-10-2020	28%	72%
Services Aust 11-10-2020	11-10-2020	Current	50%	50%

1. Based on the above, this case relates to a closed period from 12 January 2020 to 10 October 2020 (the Care Period).

2. The ARO found there was no evidence to support a finding there had been a change of care for the daughter on 12 January 2020[2] and went on to find a change of care began on 12 February 2020[3]. In AAT1, the Member referred to the ARO decision as from 12 January 2020 however the ARO decision clearly says from 12 February 2020, with no change from 12 January 2020. In any event, the AAT1 decision relies almost exclusively on the sworn evidence of the Mother at the hearing as the Father did not attend that hearing.

   [2] Exhibit 1, T Documents, T23, page 125.

   [3] Exhibit 1, T Documents, T23, page 126.

3. Both the ARO and the Member in AAT1 relied on evidence the parties agreed:

   a)    The daughter spends every Sunday night and every Tuesday night with her father (the Applicant).

   b)    The daughter spends every Monday night and every Wednesday night with her mother (the Other Party).

4. That being the case, this decision is all about what happened on the other three nights each week, viz, Thursday, Friday and Saturday as each can already claim a minimum of 29% care of the daughter.

5. In an unrelated SSCSD decision, with which I concur, the Tribunal summarised the law relevant to care percentage determinations as found in the Child Support (Assessment) Act 1989 (Cth):

   Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent "has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances". Section 50 applies, relevantly, if the parent "has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances". Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

Calendars of care

1. The Father provided two calendars of care.[4] The first included a legend identifying the nights he asserts the daughter was overnight in his care, the nights he agrees the daughter was overnight in her mother’s care, the nights she stayed overnight with friends and the nights where he has no evidence of where she stayed. This calendar asserts the daughter was in his care or her mother’s care at various times each month throughout the Care Period. The Tribunal has analysed this calendar of care and ascertained it shows the daughter was in his care for 151 of 273 days during the Care Period which represents 55% of the time.

   [4] Exhibit 6 and post hearing submission filed by Applicant.

2. The Father’s second calendar of care was provided after the hearing at the request of the Tribunal. It was intended to provide direct evidence to support his assertion the daughter was in his overnight care on any given date. Whilst most entries on this calendar indicate the evidence is either a ‘Text’ message or ‘Messenger’ message, it was difficult to marry up the copies of such messages with the dates on the calendar. Most of the messages made nebulous references which neither supported nor refuted where the daughter stayed overnight. Some messages showed a time but not the date, so they had to be disregarded. The Tribunal has analysed this calendar of care and ascertained it shows the daughter was in his care for 127 of 273 days during the Care Period which represents 47% of the time.

3. Prior to the Hearing, the Mother provided a calendar of care[5] covering the Care Period. She did not provide a second calendar after the Hearing even though she was invited to do so. According to that calendar, the Mother asserts the daughter had no contact at all with her father for the months of March, April, May, September and October 2020 and only limited contact in June, July and August 2020. During January and February 2020, the calendar indicates the daughter spent Sunday night and Tuesday nights with very occasional other nights in the overnight care of the Father, which is consistent with the findings by the ARO and the Member in AAT1. The Tribunal has analysed the calendar of care provided by the Mother and ascertained it shows the daughter was in her care for 261 of 273 days during the care period which represents 96% of the time. The Tribunal notes the Mother had told Centrelink the daughter was with her 80% of the time during the Care Period and that was later changed to 72% in AAT1.

[5] Exhibit 4.

1. In assessing the weight the Tribunal can place on the calendars of care provided by the Father and the Mother, the Tribunal notes both the Father’s calendars produce a result of 50% plus or minus 5% care to him yet few of the entries on the calendar are directly supported by messages which clearly indicate the daughter was in his overnight care on any on any given date. The Mother’s calendar asserts the daughter had no care at all with the Father for five months during the care period and only limited contact in the other months. Yet she previously advised Centrelink and the ARO she and the Father agreed the daughter consistently spent two nights a week with her and two nights a week with him and the remaining three nights may or may not have been with either of them, they may have been with friends, see [‎20].

2. The Tribunal finds little weight can be placed on calendars of care provided by both the Father and the Mother.

Witness statements

1. The Father and the Mother provided witness statements in support of the case. These are summarised below for the Father:

Author	Date	Content
Ms TW[6]	10-09-2020	Previous partner of the Father indicating the time they were together the daughter was full-time in his care and remains so with the exception while two days a week at her mother’s or a friend’s house.
Ms CH[7]	Undated	Close family friend of the Father for over two years. Asserts full-time care of the daughter by the Father with infrequent visits with her mother on special occasions.
Mr RF[8]	17-05-2021	A brother of the Father. Recalls the daughter living full-time with her father until January 2020 after which she started visiting her mother approximately two times per week which gradually eventuated to twice per week overnight until around September 2020 after which she spent 50% of the time with each parent.
Mr BB[9]	09-05-2021	A friend of the Father for 16 years. Asserts the daughter has been living full-time with the father and occasionally two days a week staying with her mother during 2020 and she felt comfortable to do so. This he says is based on his visits to the Father’s house and phone calls which occur a few times each week.
Ms AH[10]	24-05-2021	Older sister of the Father. Lives in Melbourne and visits brother from time to time. Asserts the daughter has been living full-time with her father approximately 4 ½ years until January 2020 when she began to spend more time with her mother until around September 2020 when the arrangement became 50/50.
Ms CH	October 2021	Statutory declaration witnessed by Ms P Auger. Poor quality scanning unable to be read.

[6] Exhibit 15.

[7] Exhibit 14.

[8] Exhibit 8.

[9] Exhibit 11.

[10] Exhibit 12.

1. For the Mother the witness statements are summarised below:

Author	Date	Content
Ms HM[11]	13-07-2020	Auntie of the daughter. Asserts the daughter moved back in with her mother several months ago and is spending two nights per week with her father at his residence.
Ms ED[12]	17-07-2020	Friend of the Mother for over five years. Claims to have seen the daughter stay at her mother’s house more and more and lately over 85% of the time.
Dr WD[13]	20-07-2020	A medical certificate which states the daughter lives with her mother and stays with her father two days per week.

[11] Exhibit 1, T Documents, T17, page 107.

[12] Ibid T18, page 108.

[13] Ibid, T19, page 109.

1. Mr JF, who is the adult son of the Father and the Mother and the brother of the daughter, provided an undated witness statement claiming his sister was staying with their mother full-time since January 2020. Mr JF gave oral evidence at the Hearing to the effect his statement was not relevant to this matter as it was prepared for his mother for ‘another purpose’. Mr JF confirmed his sister had been living full-time with her father and then two nights per week with her mother until an argument with the Father’s partner after which his sister did not spend much time with their father. He could not be any more specific other than to say no set dates could be identified as the time spent with each parent was ‘very up-and-down’ and both his parents are ‘useless with dates’. The Tribunal considers little weight can be placed on this evidence as it was incredibly vague and did not assign percentages of care for the period the Tribunal must review.

2. The Father wrote to the Tribunal on 3 June 2021 in which he questions amongst other things how Ms ED could be living in the same residence as the Mother when she said she was because he is certain the property only had two functioning bedrooms and if one was occupied by the daughter then what were the sleeping arrangements for Ms ED. Whilst this may be a matter of concern for the Father and possibly Child Safety, it is not of itself relevant to this decision unless it is proven Ms ED was untruthful, which no one is asserting. Ms ED gave evidence at the Hearing and made no mention of living in the same residence as the Mother. She did state she was at the residence at least five days per week and stayed late most of the time and sometimes, but not a lot, overnight.

3. The Tribunal has considered all the witness statements set out above. The statement by Ms TW does not state when she and the Father lived together and therefore when she saw the daughter full-time in his care. The statement of Ms Halcrow does not state how she knows the daughter was in the full-time care of the Father and in any event it is undated. Mr RF and Ms AH are siblings of the Father and their witness statements appear to rely on statements made by the Father and the daughter during visits to Melbourne three months after the end of the Care Period and other times during visits to Cairns the timing of which was not identified.

1. For the Mother, the witness statement by Ms HM again does not state how she knows the daughter moved back in with her mother. Ms ED does provide what appears to be contemporaneous evidence of witnessing the daughter staying overnight at her mother’s house however her comment is that it occurred ‘more and more’ and lately over 85% of the time. Since this statement was made in July 2020 and is vague as to dates it hardly supports the assertion of the Mother the daughter was full-time or even 80% in her care throughout the Care Period. The statement by Dr WD appears to be based on hearsay as she also does not specify how she knows where the daughter stays overnight. Neither Ms HM, nor Dr WD were called to answer the gaps in their evidence.

What does custody (or care) mean?

1. Having considered the evidence of each party, it is appropriate to discuss the meaning of the term custody (or care) as this term is often used by parties to such matters, and by those who provide letters of support to them. The dictionary definition of custody (or care) is: ‘responsibility for the care, maintenance, and upbringing of a child or children’.[14]

   [14] Oxford Dictionaries Online, ‘Custody’ <>

   Exploring that definition, it is possible for someone to have custody (or care) of a child and yet the child does not stay overnight with them. This can occur, for example, where a solicitor is appointed custodian for a child under the Will of the child’s deceased parent, where they have responsibility for the care, maintenance, and upbringing of the child, yet the child lives with a relative. In this example, the custodian has legal responsibility whereas the relative has the day to day, including overnight, care of the child.

2. There may be a false assumption by both the Father and the Mother as to the importance and relevance of paying expenses for the daughter. The expenses paid by a parent or guardian for a child is their obligation as a parent or guardian. It usually has no bearing on where the child receives overnight care. To the extent expenses paid for the daughter are referred to in the various submissions of the parties in this case they are ignored unless they shed light on where the child received overnight care, which none did.

SUMMARY OF FINDINGS

1. The difficulty for the Tribunal in making this decision is the same difficulty faced by the ARO and the member in AAT1, that is, the hugely conflicting evidence of the Father and the Mother and the largely hearsay evidence of their witnesses. Sifting through the inconsistencies in the evidence and in particular the calendars of care, it seems clear to the Tribunal a change of care did occur on or about 12 January 2020 so a care decision must be made. From then on, the daughter appears to have spent some time each week with each parent despite the assertion of the Mother there were five months during the Care Period in which the daughter had no contact whatsoever with her father. The question is how many nights she was overnight with each parent.

2. The Father and the Mother agree two nights a week the daughter was overnight with each of them. It is apparent each parent provided care and supervision of the daughter when she was with them. Whilst the daughter may have spent from one to three nights per week staying with friends, she was still in the care of one or the other of her parents when she did so. That said, in 2020 the daughter was 16 and as a late teen she no doubt made up her own mind as to where she would stay and who she was in contact with.

3. There is insufficient evidence to support the assertion by the Mother she had 80% or more overnight care of the daughter during the Care Period. There is also no evidence the Father had 100% care of the daughter during the Care Period.  For the reasons above and on the evidence before the Tribunal for the relevant care period, it finds each parent had equal shared care of the daughter. This is the only possible decision the Tribunal considers that could be made with any reliability. 

CONCLUSION

1. As such, the Tribunal sets aside the decision of AAT1 dated 11 March 2021 and in substitution finds the care of the daughter during the period 12 January 2020 to 10 October 2020 was 50% to the Father and 50% to the Mother.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

…………………[SGD]…………………..
Associate
Dated: 6 January 2022

Date of Hearing:	25 October 2021; Post Hearing submission received 29 November 2021.
Applicants:	By Video via Microsoft Teams
Other Party	By Telephone via Microsoft Teams
Solicitor for the Respondent:	Services Australia