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

[2019] AATA 672

FCLQ and Secretary, Department of Social Services (Social services second review) [2019] AATA 672 (29 March 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1609

Re:FCLQ

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndLTCF

JOINED PARTY

DECISION

Tribunal:Senior Member D. J. Morris

Date:29 March 2019

Place:Melbourne

The Tribunal decides to affirm the decision of the Social Services and Child Support Division of the Tribunal dated 16 February 2018.

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

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – family tax benefit – was there a change in pattern and percentage of care of FTB children – signed form submitted by both parents advising of parenting plan – Social Services & Child Support Division decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 37

A New Tax System (Family Assistance) Act 1999 (Cth), ss 22, 25, 58, 34J, Sch 1, cl 11

REASONS FOR DECISION

Senior Member D. J. Morris

29 March 2019

1. FCLQ has asked the General Division of the Tribunal to review a decision by the Social Service and Child Support Division of the Tribunal (the tier one decision) on 18 February 2018. The tier one decision set aside a 19 April 2016 decision of an Authorised Review Officer (ARO) of the Department of Human Services (the Department) and, in substitution, found that FCLQ had 10 per cent of the care of two children under the age of 16, called in these reasons ‘T’ (born 2007) and ‘M’ (born 2010), for the period from 30 June 2014 until 14 September 2015.

2. T and M are the children of their separated parents, FCLQ and the Joined Party, LTCF.  There are other children in FCLQ’s and LTCF’s respective care, but they are not relevant to the Tribunal’s decision.

3. The hearing was held on 27 November 2018 by telephone.  The Applicant was self-represented, as was the Joined Party.  Mr Cameron Munro, a legal officer of the Department, represented the Respondent.  A friend of LTCF participated in the hearing as a support person for LTCF.  FCLQ’s sister was in the company of the Applicant as a support person.

4. The Tribunal received into evidence a bundle of documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act)(‘T’ documents). FCLQ lodged a bundle of documents received by the Tribunal on 5 July 2018 (Exhibit A1), and a document dated 3 August 2018, described as a summary of the bundle of documents. The Secretary submitted a Statement of Issues, Facts and Contentions dated 10 August 2018. The Tribunal made an order under section 35 of the AAT Act to assign pseudonyms to the Applicant and the Joined Party.

   Legislative framework

5. The legislation applicable to this matter is the A New Tax System (Family Assistance) Act 1999 (Cth) (‘the Act’). Subdivision D of Division 1 of Part 3 of the Act contains the relevant provisions.

6. Section 58(1) of the Act states that the annual rate of Family Tax Benefit (FTB) is to be calculated in accordance with the Rate Calculator which is in Schedule 1 of the Act. If more than one adult has care of an FTB child, clause 11 in Schedule 1 sets out how to assess the rate on the basis of the shared care percentage. Section 22 of the Act and Part 4 – Division 1 of the Act contains the rules for determining a person’s percentage of care of an FTB child.

7. Section 22(2) of the Act states that an individual is an FTB child of the adult if:

   (a)the individual is aged under 16 and the individual is in the adult’s care; and

   (b)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and

   (c)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in subsection 22(5).

8. Section 22(7) of the Act further provides that, if an individual’s percentage of care for a child during a care period is at least 35 per cent, the child is taken to be an FTB child of that individual for the purposes of the section on each day in that period, whether or not the child was in that individual’s care on that day. There is a note at the end of section 22(7) that provides that if an individual’s care for a child during a care period is less than 35 per cent, the child is taken not to be an FTB child under section 25 of the Act, for any part of that period.

9. Section 35J of the Act provides for the method of working out the actual care, and extend of care, of a child. Section 35J relevantly states:

   (1)The actual care of a child that an individual has had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.

   (2)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.

   (3)For the purposes of this section, a child cannot be in the care of more than one individual at the same time.

   …

   Background to this matter

10. On 10 June 2014 FCLQ and LTCF signed a written parenting plan in which they agreed to a pattern of care for the children T and M.  The plan was at T7, p 36-38.

11. The plan provided that T and M live with LTCF from Sunday at 5 pm until Tuesday at 5 pm each week, commencing on 8 June 2014; that they live with FCLQ from 5 pm Tuesday to 5 pm Thursday commencing on 10 June 2014; that they live with LTCF from 5 pm Thursday to 5 pm Sunday each alternate week commencing 12 June 2014 and that they live with FCLQ from 5 pm Thursday to 5 pm Sunday each alternate week, starting on 19 June 2014.  The effect of this plan was that FCLQ and LTCF would each have 50 per cent care of T and M.

12. On 24 June 2014 (T3, p 8), LTCF provided a form to the Department declaring that the care of the children was being shared between her and the Applicant in accordance with a written parenting plan, court order or written agreement; and that the care arrangement had commenced on 10 June 2014.

13. On 22 August 2014 another form was received by the Department (T4, p 16), signed by FCLQ and LTCF and declaring that the care of T and M from 30 June 2014 was in accordance with a care arrangement; with FCLQ having 10 per cent care and LTCF having 90 per cent care.  On the same date, the Department made a determination revoking the existing care determination and determined that FCLQ had the children in his care for 10 per cent of the time and LTCF for 90 per cent of the time, with effect from 30 June 2014.

14. The Federal Circuit Court made an order by consent in relation to the care of the children on 14 September 2015 (T8, p 39 and T16, p 67).

15. On 21 January 2016 FCLQ applied for review of the 22 August 2014 decision.  He provided a form on 2 February 2016 declaring that the care of T and M was shared between him and LTCF from 10 June 2014 on a 50 per cent basis.  On 19 April 2016 an ARO set aside the 22 August 2014 decision and decided that FCLQ and LTCF each had 50 per cent care of T and M from 30 June 2014.

16. On 19 July 2017 LTCF sought review by the Social Services and Child Support Division (the tier one decision). On 16 February 2018 the Social Services and Child Support Division of the Tribunal set aside the ARO decision and decided that LTCF had 90 per cent of the care of the children and FCLQ had 10 per cent care from 30 June 2014 to 14 September 2015 (i.e. the date of the Federal Circuit Court consent order).  FCLQ has sought review of the tier one decision by the General Division of the Tribunal.

    Evidence of FCLQ

17. FCLQ told the Tribunal that he didn’t put up much of an argument at the tier one hearing and relied on an affidavit that he made declaring that he and LTCF each had 50 per cent care of the children T and M during the relevant period.

18. FCLQ agreed that there had been periods of volatility in dealings between him and his former partner, LTCF.  He was asked about a document (T4), which LTCF submitted to the Department, which stated that in the care period commencing 30 June 2014 she would have 90 per cent care and he would have 10 per cent, which (at T4 p 23), FCLQ had also signed.  FCLQ agreed with the Tribunal that it was his signature and that he was ‘happy enough to sign it’ but that he had not filled in the form; that had been done by LTCF.  In answer to a direct question from the Tribunal, FCLQ said he had actually signed a blank document.

19. FCLQ submitted time sheets from a primary school T and M attended at the time (Exhibit A1); which shows his signature at various times when he dropped off, or picked up the children.  Mr Munro asked him what probative value the timesheets had. FCLQ said it was difficult to prove actual days of care five years ago but that he felt the days his signature appeared on the timesheets would correlate with the parenting plan.

    Evidence of LTCF

20. LTCF agreed that she had filled in the form at T4.  She said she gave it to FCLQ, who took it home overnight, signed it and gave it back to her. She believed he had ample time to read it. 

21. LTCF was asked about an affidavit she made on 20 April 2015 (at T6, p 26) where she stated that final separation occurred on 1 April 2014, and went on to state, at paragraph [13]:

    After separation I relocated to a house in [location redacted] with the children.  Within weeks of separation the Respondent and I negotiated a verbal agreement providing for a 50/50 share care parenting arrangement for the children.

22. LTCF said that this affidavit stated she had been trying to achieve a 50/50 care arrangement with FCLQ but, in fact, it did not eventuate.

    Consideration

23. LTCF told the Tribunal in the tier one hearing that Centrelink apparently doubted the authenticity of FCLQ’s signature on the 90/10 care advice submitted to the Department.  Because there was discussion at the hearing about the signing of this document, after the hearing the Tribunal obtained a transcript of the tier one hearing where the Member asked FCLQ about the document.  The transcript relevantly records:

    MEMBER: Just in terms of this form that we’ve been discussing, do you remember receiving that form, taking it away and signing it, and returning it at the next custody meeting?

    FCLQ: I remember one particular form, and I am – you know, again, forgive my memory, because it’s some years ago and I’m not great with it.  But I recall at one stage [LTCF] coming over to my house with some Centrelink paperwork for me to sign.  But again, I mean, aside from all that, what ended up occurring out of it all was never less than a 50/50 per cent care arrangement.

24. FCLQ and LTCF both confirmed to the Member and that hearing, and reiterated at this hearing, that they did not keep any records at the time of who actually had care of the children, and on what dates.

25. There was some dispute at the hearing about how the document came to be signed.  FCLQ said he signed it at the door of his house when LTCF brought it to him; he agreed it was his signature and both he and LTCF agreed that she had filled in the substantive part of the form.  LTCF said she had given the form to FCLQ for him to consider overnight, and he returned it to her, signed.  At the tier-one hearing, LTCF told the Member that she gave the form to FCLQ at a custody meeting.

26. The Tribunal finds that it is not strictly necessary to decide where the form was signed, or even if FCLQ had been able to consider overnight.  The fact that both the Applicant and the Joined Party agreed on was that both of them had signed it.  The Tribunal does not accept that FCLQ signed a blank document. If that was the case, the Tribunal believes he would have made that point to the tier one hearing, and he did not.

27. In any event, as mentioned above, there is documentary evidence that from 30 June 2014 the care percentage for T and M between FCLQ and LTCF had been agreed between them to be 90 per cent to LTCF and 10 per cent to FCLQ. 

28. The Tribunal notes that FCLQ has provided, in Exhibit A1, some evidence of times when he delivered T and M to their primary school, or collected them from the school at the end of the school day.  However, the Tribunal notes also the letter written by the Principal of the school (T11, p 51) dated 19 February 2016 which relevantly states:

    As Principal of [name of school redacted], I am unable to substantiate the percentage of care provided to their daughters by either parent.  I have seen the children with each parent.

29. As Mr Munro submitted to the Tribunal, the evidence of which parent took the children to school or picked them up is not necessarily evidence that the children were in the actual care of that parent the preceding, or the following, night, in terms of working out actual care of a child under section 35J of the Act.

30. If the Tribunal is satisfied that there has been a change in care, the next step is to calculate the percentage of care in the care period from the date of any change.  The pivotal piece of evidence in this matter is the care advice at T4, submitted by LTCF to the Department and signed by her and FCLQ.  As outlined above, that document advises that the percentage of care from 30 June 2014 is 90/10 between LTCF and FCLQ. As a matter of public policy, a decision-maker must place strong reliance on, in this case, a document that both parents agreed to the Tribunal they signed and which declared a certain pattern of care.  While there may have been, as FCLQ said, some different intention on behalf of one or both of the parties, or even an aspiration for them to share the care of T and M 50/50, the Tribunal prefers to rely on the percentage of care advice that both the Applicant and LTCF signed and submitted.

31. I am not satisfied that the Applicant has made out a case that the pattern of care was different from that which he and LTCF declared in the form she dated 15 August 2014 (noting that FCLQ did not date his signature).  In this situation, there is no need for the Tribunal to make any calculation to change the percentage of care period.  It follows, therefore, that the tier-one decision should be affirmed.

    DECISION

32. The Tribunal decides to affirm the decision of the Social Services and Child Support Division of the Tribunal dated 16 February 2018.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 29 March 2019

Date of hearing:	27 November 2018
Applicant:	Self-Represented
Joined Party:	Self-Represented
Advocate for the Respondent:	Mr Cameron Munro Department of Human Services