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

Case •

[2018] AATA 2248

•

6 July 2018

GCFD and Secretary, Department of Social Services (Social services second review) [2018] AATA 2248 (6 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3297

Re:GCFD  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndMTWR

OTHER PARTY

DECISION

Tribunal:Member C Edwardes

Date:06 July 2018

Place:Perth

The decision under review is affirmed.

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

Member C Edwardes

CATCHWORDS

Family Tax Benefit – FTB –was there a change in the pattern and percentage of care of children – review of revocation of determination – determination of percentage of care – whether an interim period percentage should be applied  - lack of corroborating evidence  decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act – ss 35(4)

A New Tax System (Family Assistance) Administration Act - ss 128(1)

A New Tax System (Family Assistance) Act 1999 – s 3, s 22, s 35B, s 35C, s 35J, s 35L, s 35M, s 35P, s 35Q, s 59

CASES

Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Another [2008] AATA 607

Brightman and Secretary, Department of Family and Community Services and Another [2004] AATA 405
Polec v Staker and Another (SSAT Appeal) [2011] FMCAfam 959

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179

SECONDARY MATERIALS

Family Assistance Guide 1999 – point 2.1.1.50, point 2.1.1.45, point 2.1.1.70

REASONS FOR DECISION

Member C Edwardes

06 July 2018

THE APPLICATION

  1. This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 28 April 2017 (T2 3-8)(R1). This decision affirmed a decision by an Authorised Review Officer (ARO) dated 2 November 2016 (T23 707-709) and relates to percentage care determinations for the GCFD (the Applicant) and MTWR (the Other Party).  The percentage care determinations relate to the care of “K” and “E” (the children), and are relevant for the purpose of family tax benefit (FTB).   

  2. The Tribunal has jurisdiction to hear this matter pursuant to subsection 128(1) of A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).  

    ISSUE

  3. The issue for the consideration by the Tribunal is to determine the percentage of care that should be applied for the children to the Applicant and Other Party for the purposes of determining the Applicant’s fringe benefits tax. (FBT)

    RELEVANT PERIOD

  4. The Tribunal notes that the Applicant previously stated:

    The information (evidence) I provided was not taken into account. A different decision needs to be made in which all the evidence is reviewed to ascertain which party had the children on each night for the period in question from 1/8/15 to 30/4/16

    (Emphasis added) (T1 2)

  5. The Secretary’s submissions on page 2 of Exhibit A1 state:

    The issue for consideration by the Tribunal is what percentage of care should be applied for two children (E and K) to the Applicant and Other Party from 1 August 2015. (Emphasis added)

  6. The Tribunal considers that the relevant period in question was clarified during the hearing as a period from 1 August 2015 to 7 March 2016.  

  7. For the sake of completeness however, the Tribunal will consider the relevant period from 1 August 2015 onwards.

    BACKGROUND

  8. The Applicant and the Other Party are legally divorced parents of the children.  (A46 1)

  9. On 17 June 2015, the Magistrates Court in Perth made parenting orders by consent of the Applicant and the Other Party. The terms of the parenting orders were:

    a.the Applicant and the Other Party have equal shared parental responsibility for the children.

    b.the children live with the Applicant and the Other Party on a shared equal time basis (and more specifically on a week about basis, with handover to take place each Sunday).

    c.the children spend equal time with the Applicant and the Other Party by alternating special events (including school holidays, Christmas, public holidays, birthdays) each year.

    d.the Applicant and the Other Party "facilitate any additional time any of the children seek to spend with the other parent according to their wishes. (T6 91)

  10. On 4 March 2016, the Magistrates Court in Perth varied the parenting orders made on 17 June 2015 and ordered that the children live with the Applicant and the Other Party on a week about basis, with handover to take place each Tuesday   (T9 99).

  11. On 31 May 2016, the Other Party lodged a Details of your child's care arrangements form (T12 104-111). In this form, relevant to the date period 1 August 2015 to 7 March  2016, the Other Party stated that the care arrangements for the children were as follows:

    From 1 June 2015 to 31 May 2016

[E]

·    Applicant's percentage of care was 32%; and

·    The Other Party's percentage of care was 68 %.

From 1 August 2015 to 30 April 2016:

[K]

·    Applicant's percentage of care was 34%; and

·    The Other Party's percentage of care was 66%.

  1. On 22 July 2016, the Department of Human Services (the Department) revoked the existing care determinations for the children and , relevant to the period in question of 1 August 2015 to 9 March 2016, made the following new care determinations with effect from 3 June 2016 (T15 120):

    From 1 June 2015 to 30 April 2016:

[E]

·    Applicant’s percentage of care was 32%; and

·    Other Party’s percentage of care was 68%

From 1 August 2016 to 30 April 2016:

[K]

·    Applicant's percentage of care was 34%; and

·    The Other Party's percentage of care was 66%.

From 1 May 2016

[E]

·    Applicant's percentage of care was 51%; and

·    The Other Party's percentage of care was 49%.
[K]

·    Applicant's percentage of care was 51%; and

·    The Other Party's percentage of care was 49%.

  1. On 29 August 2016, the Applicant contacted the Department and indicated that she disagreed with the Department's decision of 22 July 2016 (T28 970). The Applicant requested for an internal review of the 22 July 2016 decision.

  2. On 2 November 2016, the ARO decided that there were four distinct care periods in the care period under review.  These care periods were 1 June 2015 to 31 July 2015, 1 August 2015 to 31 December 2015, 1 January 2016 to 7 March 2016 and from 8 March 2016 (T24 715).  Relevant to the period in question of 1 August 2015 to 9 March 2016, the ARO found:

    From 1 August 2015 to 31 December 2015:

[E]

·    Applicant's percentage  of care was 36%; and

·    The Other Party's percentage of care was 64%.

[K]

·    Applicant's percentage  of care was 40%; and

·    The Other Party's percentage of care was 60%.

From 1 January 2016 to 7 March 2016:

[E]

·     Applicant's percentage of care was 16%; and

·     The Other Party's percentage of care was 84%.

[K]

·     Applicant's  percentage of care was 15%; and

·     The Other Party's percentage of care was 85%.

From 8 March 2016

[E]

·     Applicant's percentage of care was 50%; and

·     The Other Party's percentage of care was 50%.

[K]

·     Applicant's  percentage of care was 50%; and

·     The Other Party's percentage of care was 50%.

  1. On 30 January 2017, the Applicant applied to the AAT1 for review of the ARO's decision. (T1 4)

  2. On 28 April 2017, the AAT1 made a decision affirming the decision under review. The AAT1 was satisfied generally, that the ARO's percentage of care assessment was a reasonably determination based on the evidence before it (T2 3). The AAT1’s findings were:

    From 1 August 2015 to 31 December 2015 [the Applicant] had 40% care of [E] and 36% care of [K] and [the Other Party] had 60% care of [K] and 64% care of [E];

    From 1 January 2016 to 7 March 2016 [the Applicant] had 15% care of both children and [the Other Party] had 85% care of both children

    From 9 March 2016 [the Applicant] had 50% care of [E] and 50% care of [K] and [the Other Party] had 50% care of [K] and 50% care of [E]

  3. On 6 May 2017, the Applicant made an application for review with the General Division of the Administrative Appeals Tribunal:

    The information (evidence) I provided was not taken into account. A different decision needs to be made in which all the evidence is reviewed to ascertain which party had the children on each night for the period in question from 1/8/15 to 30/4/16

  4. The matter was heard in Perth on 8 June 2018. The Applicant appeared in person, Ms Jones – Bolla appeared for the Respondent and the Other Party appeared in person.

  5. The Tribunal would like to thank the Applicant and Respondent and the Other Party for their assistance during the hearing.

    EVIDENCE

  6. The Tribunal has received the following evidence:

    ·Exhibit A1 – Statement of Facts, Issues and Contentions dated 4 April 2018.

    ·Exhibit A2 – Comments on Party comments on Applicant witness statement dated 4 April 2018.

    ·Exhibit A3 – Appendices to Witness statement of Facts, Issues and Contentions dated 4 April 2018.

    ·Exhibit A4 – Appendix 1 – Report of [witness] dated 20 February 2017.

    ·Exhibit A5 – Appendix 2 – Emails of Applicant and Other Party.

    ·Exhibit A6 – Appendix 3 – Find Law Australia – How can I get a copy of my medical record.

    ·Exhibit A7 – Appendix 4 – Meredith Saayman Lawyers letter dated 28/2/18.

    ·Exhibit A8 – Appendix 5 – Meredith Saayman Lawyers letter dated 24/5/16.

    ·Exhibit A9 – Appendix 6 – Carr & Co Lawyers letter dated 26/5/18.

    ·Exhibit A10 – Appendix 7 – Meredith Saayman Lawyers letter dated 27/5/16.

    ·Exhibit A11 – Appendix 8 – Removal of injunction from Applicant’s Partner.

    ·Exhibit A12 – Appendix 9 – [Witness’s] email dated 27/10/17.

    ·Exhibit A13 – Appendix 10 – Email from Other Party dated 20/9/17 and email from Applicant dated 22/9/18.

    ·Exhibit A14 – Appendix 11 – Cleared and bigger texts used in the Applicant’s Statement of Facts dated 4/4/18 and Cleared and also in response to [Other Party’s] comments. 

    ·Exhibit A15 – Appendix 12 – Meredith Saayman lawyers letter dated 10/3/16.

    ·Exhibit A16 – Appendix 13  - Meredith Saayman Lawyers letter dated 21/3/16.

    ·Exhibit A17 – Applicant’s comments to [Other Party’s] Appendices submitted 19/2/18.

    ·Exhibit A18 – Applicant’s Witness Statement dated 24/11/17.

    ·Exhibit A19 – Covering email for Appendices for Applicant’s Witness Statement.

    ·Exhibit A20 – Appendix A – NSW Marriage Certificate dated 30/3/2008.

    ·Exhibit A21 – Appendix B – Domestic Violence Evidence.

    ·Exhibit A22 – Appendix C – Divorce Order dated 3/6/14.

    ·Exhibit A23 – Appendix D – MRI Report dated 27/11/15.

    ·Exhibit A24 – Appendix E – Letter from [doctor] dated 9/6/16 and letter from Bentley Hospital dated 24/6/16.

    ·Exhibit A25 – Appendix F – Single Expert report – [Witness] dated 20/2/17.

    ·Exhibit A26 – Appendix G – Court Hearing Transcript dated 4/3/16.

    ·Exhibit A27 – Appendix H – [Other Party] redacted case Information Affidavit dated 26/5/16.

    ·Exhibit A28 –Appendix I – [Witness] testimonial letter and text messages dated 5/9/16.

    ·Exhibit A29 – Appendix J – [Witness] testimonial letter and text messages dated 5/9/16.

    ·Exhibit A30 – Appendix K – [Witness] testimonial letter and text messages dated 5/9/16.

    ·Exhibit A31 – Appendix L – [Witness] testimonial letter and text messages dated 5/9/16.

    ·Exhibit A32 – Appendix M –[Witness] testimonial letter and text messages dated 5/9/16.

    ·Exhibit A33 – Appendix N – Testimonial letter from [Witness] dated 27/10/16.

    ·Exhibit A34 – Appendix O – Clearer copies of tables and clear copy of T25 provided at AAT Hearing on 28/4/17.

    ·Exhibit A35 – Appendix P – OP’s false allegation made at AAT Hearing on 28/4/17.

    ·Exhibit A36 – Appendix Q – Evidence and summaries for disputed days of care – 1/8/15 to 1/5/16.

    ·Exhibit A37 – Appendix R – Court order hearing transcript dated 1/8/17.

    ·Exhibit A38 – Appendix S – Evidence between parents and clarification of Order 9B.

    ·Exhibit A39 – Appendix T – Applicant’s redacted letter to the Court –dated 26 October 2017.

    ·Appendix A40 – Appendix U – Court rules on requesting permission for court documents to be released.

    ·Exhibit A41 – Appendix V – Letter from Family Court dated 3/11/17.

    ·Exhibit A42 – Appendix X – minute of Consent Orders dated 30/5/16.

    ·Exhibit A44 – Appendix Y – AAT’s letter dated 1/3/17.

    ·Exhibit A45 – Appendix Z – [Witness’s] Witness Statement dated 24/11/17.

    ·Exhibit A46 – Email and Agreed Statement of Facts.

    ·Exhibit A47 – Various witness statements of various dates.

    ·Exhibit A48 – Covering letter dated 12/10/17 enclosing documents.

    ·Exhibit A49 – Evidence and summaries of dates in dispute.

    ·Exhibit A50 – Email dated 30/6/16 and transcript of Court proceedings dated 1/8/17.

    ·Exhibit A51—Transcript of SSCSD hearing on 28/4/17.

    ·Exhibit A52 – letter of [Witness] dated 5/9/16.

    ·Exhibit A53 – Letter from [Witness] dated 15/9/16.

    ·Exhibit R1 – T documents.

    ·Exhibit R2 – Secretary’s Outline of Submissions dated 10/8/17.

    ·Exhibit R3 – Statement of Facts, Issues and Contentions (SOFIC) dated 2/11/17 and list of Authorities.

    ·Exhibit OP1 – Response to Applicant’s material dated 15/2/18.

    ·Exhibit OP2 – Statement of Facts dated 15/2/18.

    ·Exhibit OP3 – Comments on Applicant’s Appendix/Witness Statement dated 15/2/18.

    ·Exhibit OP4 – Letter from Meredith Saayman Lawyers with Case Information Affidavit dated 24 may 2016.

    ·Exhibit OP5 – Notice of Child Abuse or Family Violence form dated 26/5/16.

    ·Exhibit OP6 – Letter from Meredith Saayman dated 27/5/16.

    ·Exhibit OP7 – Letter from Family Court of WA, dated 9/8/17, enclosing copy of transcript of hearing 1/8/17.

    ·Exhibit OP8 – Letter from DHS dated 2/11/17 re care arrangement.

    ·Exhibit OP9 – various emails between Applicant & [Other Party]

    ·Exhibit OP10 – Report of [Witness] dated 16/2/15.

    ·Exhibit OP11 – Letter from [Witness] dated 15/2/18.

    ·Exhibit OP12 – Bentley Hospital Inpatient Discharge letters.

    ·Exhibit OP13 – Various emails re mental health up date.

    ·Exhibit OP14 – text messages re applicant’s mental health.

    ·Exhibit T1-T8 – various directions.

  7. The Respondent provided a copy of the “Disputed Care Arrangements” contained in the Family Assistance Guide. This document will be consolidated within the T documents T4, and marked as Exhibit R1.

  8. The Tribunal notes that on 8 September 2017 the following directions were issued pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to the effect of:    

    ·    Direction 1): The Tribunal prohibits disclosing “T36 to T37” of the “T-documents” (documents filed with the Tribunal pursuant to section 37 of the AAT Act) to the Applicant;

    ·    Direction 2): The Tribunal prohibits the disclosing “T30 to T35” of the “T-documents” (the documents filed with the Tribunal pursuant to section 37 of the AAT Act) to the Other Party; and

    ·    Direction 3: The Tribunal prohibits the disclosure of the documents filed with the Tribunal pursuant to section 37 of the AAT Act is restricted to members and staff of the Tribunal.”

  9. The Tribunal, after having discussed the Directions with the Respondent, has revoked Direction 3 in paragraph 25 in order to give effect to Directions 1 and 2, and to provide for greater clarity.

  10. The Tribunal notes that the following events occurred during the hearing on 8 June 2018:

    ·The Applicant raised some issues with respect to the ARO’s calculations, but indicated that such issues had no impact on the proposition outlined in respect to her agreed position.

    ·The Tribunal asked if, apart from Exhibits tendered to the Tribunal, if there were any further materials that the Applicant would like to present to the Tribunal.  The Applicant stated there was no further evidence to provide to the Tribunal other than what was already before the Tribunal.

    ·The Tribunal asked the Other Party what his position was in respect to care arrangements. The Other Party stated there had already been 3 decisions concerning the care arrangements, and he supported the AAT1 decision.  The Other Party stated that he had no further material to present other than a matter relating to an allegation concerning that he illegally withheld the children from the Applicant.  The Tribunal is not in a position to consider and make determinations relevant to such matters.The Tribunal is satisfied that all relevant evidence was before it and that all parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.

    RELEVANT LEGISLATION

  11. The legislation that is relevant to this application is A New Tax System (Family Assistance) Act 1999 (Act) and A New Tax System (Family Assistance) Administration Act 1999 (the Administration Act)

  12. The policy relevant to this application is titled the Family Assistance Guide (the Guide). The Tribunal applies the provisions in the Act with the assistance of, and in accordance with, policy contained in the Guide.  The Tribunal notes that it is not bound by this policy, but must take it into account, and will usually follow it unless there are cogent reasons not to do so – Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

    Shared care

  13. A person may qualify for FTB if he or she has an “FTB child” pursuant to section 22 of the Act.

  14. Where two legally divorced parents are both eligible for FTB in relation to the same FTB child, section 59 of the Act allows for FTB to be shared between two parents.  The amount payable will depend in part on the percentage of care that each parent has of the FTB child.   Thus, to determine the rate of FTB to which the Applicant and the Other Party are eligible for, it is necessary to consider their respective percentages of care for the two children.

    Determining a percentage of care  

  15. Part 3, Division 1, Subdivision D of the Act contains a number of provisions regarding the determination of a percentage of care.

  16. In the present case, a care determination had previously been made in respect of each of the two children (E and K) prior to the Other Party's notification on 31 May 2016 (the existing care determination).  

  17. The Tribunal notes the Respondent’s contentions that any new care determination would not be made unless and until the existing care determination is revoked. (A1 27)

  18. The Tribunal notes section 35B of the Act, dealing with ‘Determination of percentage of care -- child is in the adult’s care.’

    Revoking a care determination

  19. The provisions relating to revoking an existing care determination are contained in Part 3, Division 1, and Subdivision E of the Act.

    Mandatory revocation

  20. Section 35P of the Act deals with the revocation of the individual’s shared care percentage, where a “Determination must be revoked if there is a change to the individual’s shared care percentage..”    Section 35P of the Act states that:

    1the Secretary must revoke a determination of an individual’s percentage of care (the existing percentage of care)  for a child made under section 35A or 35B if:

    (a)the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual's existing percentage of care for the child; and

    (b)the Secretary is satisfied:

    (i)     that the individual's shared care percentage for the child would change if the Secretary were to determine, under section 35A or 358, another percentage to be the individual's percentage of care for the child; or

    (ii)    that, if the Secretary were to determine under that section another percentage to be the individual's percentage of care for the child, the other percentage would not be in the same percentage range as the individual's existing percentage of care;

    Note: The Secretary must make a new determination under section 35A or 358 to replace the revoked determination: see subsection 35A(2) or 358(2).

    3The revocation of the determination takes effect at the end of:

    (a)if the change of care day for the individual occurs during the interim period for the determination-the day on which the interim period ends; or

    (b)otherwise--the day before the change of care day for the individual.

  1. “Percentage range” is defined in section 3 of the Act as:

    Each of the following is a percentage range:

    (a)0% to less than 14%;

    (b)14% to less than 35%;

    (c)48% to 52%;

    (d)more than 65% to  86%;

    (e)more than 86% to 100%.

    Discretionary  revocation

  2. The Tribunal notes section 35Q of the Act, “Secretary may revoke a determination of an individual’s percentage of care.”  Section 35Q of the Act states:  

    1The Secretary may revoke a determination of an individua’s percentage of care (the existing percentage of care) for a child made under section 35A or 35B if:

    (a)the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual's existing percentage of care for the child; and

    (b)the Secretary is satisfied that, if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual's percentage of care for the child, the other percentage would not be the same as the individual's existing percentage of care for the child; and

    (c)section 35P and 35PA does not apply; and

    (d)subsection (2) applies in relation to the individual.

    Note: If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 358 to replace the revoked determination: see subsection 35A(2) or 358(2).

    …

    3The revocation of the determination takes effect at the end of:

    (a)if the change of care day for the individual occurs during the interim period for the determination-the day on which the interim period ends; or

    (b)otherwise-the day before the change of care day for the individual.

  3. The Tribunal notes the Respondent’s contentions that in summary, for the purposes of the present application:

    ·if the Tribunal finds that there was a change in the percentage of care that each of the Applicant and the Other Party had in relation to the children, and that the new percentage of care for each parent is outside of the existing percentage range, the Tribunal must revoke the existing care determination and make a new care determination;

    ·if the Tribunal finds that there was a change in the percentage of care that each of the Applicant and the Other Party had in relation to the children, and that new percentage remains within the existing percentage range, the Tribunal has a discretion to revoke the existing care determination;

    ·if the Tribunal is not satisfied that there has been a change in the percentage of care that each of the Applicant and the Other Party provide in relation to the children, then the determination ought not be revoked. (R3 7)

    Pattern of care 

  4. Section 35B of the Act provides:

    Determination of percentage of care-child is in the adult's care

    Initial determination

    1If:

    (a)the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and

    (b)one of those individuals (the adult ), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and

    (c)the adult is not a partner of at least one of the other individuals referred to in paragraph (a);

    the Secretary must determine the adult's percentage of care for the child during the care period.

    Determination after revocation

    2If:

    (a)(a)  the Secretary revokes or suspends, under Subdivision E of this Division (except under paragraph 35PA(3)(b) or 35QA(3)(b)), a determination of an individual's (the adult ) percentage of care for a child that was made under section 35A or this section; and

    (b)the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period ) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and

    (c)the adult is not a partner of at least one of those other individuals;

    the Secretary must determine the adult's percentage of care for the child during the care period.

    Percentage of care

    3The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.

    …

  5. Generally, section 35J provides that the Secretary (or Tribunal upon review) may determine the percentage of care based on the number of nights that a child was, or will be  in the care of the adult. Section 35J provides:

    35J Working out actual care, and extent of care, of a child

    1The 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.

    2The 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.

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

    4This section does not limit section 35B, 35C, 35D or 35H.

  6. The Guide at point 2.1.1.50 suggests that the first step in determining the percentage of care is to establish the pattern of care. The Guide states:

    The pattern of care to be used in the shared care determination is either the pattern agreed to by all carers of the child or, if there is no such agreement, the pattern of care as established by the decision maker for the care period. A care period begins on the day on which the care of a child starts to be shared between 2 or more adults, or the day on which the pattern of care changes and ends when there is a subsequent change in care. It should be noted that a care period will generally be a 12 month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12 months periods, unless otherwise advised. A care period may be shorter than 12 months where the level of care is unsettled and changes on a regular basis.

  7. The Guide at point 2.1.1.45 provides further assistance in relation to establishing a pattern of care, as follows:

    The pattern of care to be generally used in the shared care assessment is the actual care arrangements for the child. As much as possible, the pattern of care should be the pattern as agreed to by all parties who care for the child. Otherwise, Centrelink must carry out further investigation to determine the actual pattern of care.

    Where the carers do not agree on the actual pattern of care for the child, Centrelink must determine the actual pattern of care on the basis of available evidence. This applies even

    if a formal care arrangement exists. If the carers do not agree on the care percentage, each carer should be asked to provide additional evidence to support their declared arrangements in order for Centrelink to make a decision as to the actual pattern of care.

    Further guidance on determining a pattern of care and deciding whether there should be a change to the shared care percentage

  8. The Tribunal notes past Tribunal cases that provide guidance on determining a pattern of care and deciding whether there should be a change to the shared care percentage: 

    Senior Member Levy said in Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Another [2008] AATA 607:

    18. The essential decision must therefore be made in terms of s 59(1) of the Act, i.e. the Secretary may determine the percentage of family tax benefit for each child which is to be paid to each parent.  The Family Assistance Guide ("the Guide”) is of some use conducting this evaluation.   In particular, the Guide specifies that where the percentages or the care arrangements between the relevant parties are not agreed, then it is necessary to determine "a pattern of care". This is usefully done by adopting "either the number of nights in care ...” or the hours of care for each FTB child. The percentage of care for each FTB child is then calculated and applied to the standard rate....

    19. The application of s 59(1) and the Guide was amplified in Wade v Secretary, Department of Family and Community Services. The Court said that the purpose of the Act is to provide the proportion of the benefit to "... the person having the care of the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided by them ... The pattern of care is also used as the basis for calculation of the percentage…

    20. It has been previously determined in this Tribunal that exactness in calculations or determinations of "day-to-day variations in that care" is not intended. Also, in Re Warne and Department of Families, Community Services and Indigenous Affairs6, DP Hack held that a "broad brush basis" is an appropriate method of making decisions in relation to these provisions.”

    Member Allen in Brightman and Secretary, Department of Family and Community Services and Another [2004] AATA 405 said:

    When looking at that pattern of care the Tribunal is not restricted to the extent of contact set out in the court order. As was said in Re Nowicz and Department of Family and Community Services [2001J AATA 628 at [15] (per Senior Member Kiosoglous) "a common sense approach necessarily means that ... this Tribunal considers the relevant documentation, and the evidence of both parties as to what has been happening in the past and what is intended to happen in the future, if such differs from the documentary evidence. Based upon such consideration, [the Tribunal] is then in a position to determine what pattern of care has existed, or will exist in relation to the relevant FTB child." The Senior Member went on to say that "once established it is appropriate that variation only occur where there is to be a significant departure in an established pattern of care. This may occur, for example, when contact weekends are changed from fortnightly to monthly. It would not occur when the odd weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period.

  9. The Tribunal notes that point 2.1.1.45 of the Guide states that, “Generally, a pattern of care is based on the number of nights in a care period where an individual has the overnight care of an overnight care of an FTB child.  A person with the overnight care of a child is regarded as having had care of the child for that day.” 

  10. The Tribunal notes point 2.1.1.50 of the Guide generally states once the Tribunal has determined the pattern of care and the number of nights in care, the percentage of care can be calculated by dividing the number of nights in care by the number of days in the care period and multiplied by 100.

  11. Section 35M of the Act provides that if a person's percentage of care is not a whole number, it should be rounded up to the nearest whole number if it is above 50% and rounded down to the nearest whole number if below 50%. Thus, once the Tribunal has determined a percentage of care, that percentage should be rounded in accordance with section 35M.

  12. Section 35C of the Act in relevant in determining the percentage of care if action is taken to ensure that a care arrangement in relation to a child is complied with.  (situations where FTB can be paid during an interim period).  

  13. The Guide at topic 2.1.1.70 explains situations where FTB can be paid during an interim period:

    Where the care of a child is shared and the actual care corresponds with that in a care arrangement, each individual's percentage of care can be determined based on the care arrangement. If the actual care is different from the percentage of care determined on the basis of the care arrangement then, in normal circumstances, actual care must be used to determine each individual's percentage of care. However, if an individual's FTB child is prevented from being in their care in accordance with a care arrangement without their consent and they take reasonable steps to have the care arrangement (or a different care arrangement) complied with then there may be an interim period where care is determined by the care arrangement rather than actual care. This interim period can be up to 14 weeks for an individual and in special circumstances up to 26 weeks. The child continues to be an FTB child of the individual during the interim period if the individual takes reasonable action to ensure compliance with the care arrangement...

    (emphasis added)

  14. Guide 2.1.1.70 of the Guide provides a description of what reasonable action could include:

    To be paid FTB during an interim period of up to 14 weeks; the individual must take reasonable action to ensure compliance with the care arrangement. Reasonable action could include:

    ·Negotiating with the other party in a genuine attempt to ensure compliance with a written agreement, or

    ·making and/or attending an appointment at a Family Relationships Centre (FRC) or similar dispute resolution service with the aim of ensuring the care arrangement is adhered to, or

    ·obtaining or seeking legal advice regarding the making of a court order, or

    ·filing an application to a Court to have an order made or enforced, or

    ·attending a hearing at Court to seek an order to be made or enforced, or

    ·notifying the police that the child has been taken without consent.

    Individuals who receive either a past period or instalment payment must provide evidence that reasonable action has been taken to ensure compliance with the care arrangement. Acceptable evidence includes:

    ·a written account of the steps an individual has taken to negotiate with the other parent, verified by Centre/ink with the other parent and/or an independent third party, such as a legal representative, or

    ·documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

    ·documentation of police or court action.

    Where possible, a copy of the documentation should be attached to the individual's request. Otherwise Centre/ink must sight the evidence and document the details with the individual's request.

    The individual making the claim to continue to receive their FTB entitlement during the interim period must take reasonable action to ensure compliance with the existing care arrangement. Where an individual simply complains about the loss of care to Centre/ink, this does not meet the requirement of taking reasonable action

    CONSIDERATION

  15. Written and oral evidence before the Tribunal shows that the Applicant and the Other Party had an agreed shared arrangement for the children prior to August 2015.  

  16. The Tribunal considers that complications may have set in when the Applicant became involved with another person.  (A18 4)

  17. The Applicant claimed this is when disruptions occurred, and at one stage, the Tribunal notes that the Applicant was considering remarrying the Other Party.  (A18 4)

  18. This did not eventuate and there is a claim by the Applicant that the Other Party, illegally withheld the children from her.  (A18 11)

  19. Evidence before the Tribunal shows that the Applicant secured a retrieval order (T9 99-100) (R1) from the Magistrate’s Court. The court ordered that the Other Party return the children from the 8 March 2016. The court further ordered 50% care arrangements from the 8 March 2016.  (T9 99-100) (R1)

  20. The Other Party claimed the reason for a change in the care arrangements was his concern for the welfare and safety of the children. This concern resulted from the Applicant having mental health issues  and issues with her new partner. (OP2 4))

  21. It is claimed the Applicant stayed with the Other Party in September 2015 for a period of 1 week as she was not feeling well enough to stay  in her own home. (OP2 4)

  22. The Tribunal considers evidence before that shows in November 2015 the Applicant became unwell and she decided to reside with her family in Bunbury. (OP2 2)  

  23. The Tribunal considers that the Other Party claimed during this period that the Applicant was unwell, resulting in the care of the children primarily becoming his responsibility.  (OP2 4)

  24. Evidence before the Tribunal shows that the Applicant was unwell again in January to February 2016, resulting in additional care responsibilities for the Other Party. (OP2 5-6)

  25. Both parties have produced records to the Tribunal outlining care arrangements. In the case of the Applicant,  evidence shows that she has reconstructed a list of text messages (T13 114-116) (R1) to assist the Tribunal.  The Other Party relies on information from his care calendar. (T12 112-3) (R1)

  26. The Applicant has provided the Tribunal with a number of letters (medical and legal), testimonials, and texts to support her contention relating to the disputed care arrangements.  This comprises of 53 exhibits. 

  27. The Tribunal notes the content of a letter from the Applicant’s sibling dated of 5 September 2016.  This letter states: (A28)

    I witnessed [the Applicant] having [E] and [K] in her care staying in my home on the following dates:

    20th & 21st November 2015

    27th & 28th November 2015 (Wharncliffe Mill extended family weekend away)

    4th & 5th December 2015

    [K] stayed extra nights on 8th,9th & 10th December 2015 (at the Other Party’s request

    11th & 12th December 2015

    18th until 24th December 2015

    27th and 30th December 2015”

  28. The Tribunal notes the content of another letter from the Applicant’s other sibling, dated 7 September 2016.  This letter states: (A29 1)

    My sister [the Applicant] and her ex-husband [the Other Party] went 50/50 shared care custody with their children from 25/11/2014, this arrangement has only ceased when [the Other Party] refused to hand back the [children] on two separate occasions being 23rd January 2016, 31st January to 7th March 2016. Since that occurrence [the Applicant] and [the Other Party] have continued to have 50/50 shared care in accordance with family court orders.

  29. The Tribunal notes the content of another witness’s testimonial letter of 10 September 2016 that is written is in similar vein to the letter that the Tribunal has considered in paragraph 64 of this decision.

  30. The Other Party has provided to the Tribunal a number of pieces of correspondence, reports, emails and text messages comprising of 14 exhibits

  31. The Tribunal notes the content of a statement written by the Other Party’s father dated 15 February 2018 (OP10).  This letter stated the following:

    …. I also confirm that on many occasions I have seen my son encourage [E] to attend her mother’s house and [E] has refused and become very upset when the point has been pushed.

    On 30th September 2017 [the Other Party] travelled overseas with his partner. During that period my daughter and I cared for [E] as she refused to stay with [the Applicant]. While I was visiting [a witness]  contacted me to collect [E]”.

  32. The Tribunal notes exhibits OP 12-14 that indicate the Applicant has been unwell from time to time during the relevant period 1 August 2015 to 7 March 2016.

  1. The transcript of the hearing of 1 August 2017 in the Family Court demonstrates differences of opinion between the parties as to the disputed care arrangements. (OP7)

  2. Neither party brought witnesses before the Tribunal to corroborate their written evidence.

  3. The Tribunal considers that each of the party’s substantive submissions take a particular point of view, and that the supporting positions of letters or testimonials come to their respective positions on the basis of the views that witnesses are in support of. The Tribunal notes each of the party’s submissions however, for the reasons mentioned earlier in this paragraph, the Tribunal does not attach much weight to them.  

  4. The Tribunal does not believe there is any deliberate act on the part of the Applicant to mislead, but merely a state of confusion in terms of dates and times, given the health issues she was confronting at the time.

  5. The Tribunal concurs with the original finding of AAT1 which is premised on the assessment undertaken by the ARO that on the basis of the evidence before it the calculations appeared reasonable: 

    22. the tribunal is satisfied that the calculations by the authorised review officer of care, based on all of the evidence submitted by the parties, is a reasonable calculation. Based on that evidence the Tribunal finds that the care was as follows:

    from 1 August 2015 to 31 December 2015 [the Applicant] had 40% care of [E]  and 36% care of [K] and [the Other Party] had 60% care of [K] and 64% care of [E];

    from 1 January 2016 to 7 March 2016 [the Applicant] had 15% care of both children and [the Other Party] had 85% care of both children;

    from 9 March 2016 [the Applicant] had 50% care of [E] and 50% care of [K]  and [the Other Party] had 50% care of [E] and 50% care of [K]

    23. As the existing percentage of care determination reflected that [the Applicant] had 70% care of [K] and 14% care of [E] and [the Other Party] had 30% care of [K] and 86% care of [E] the tribunal finds that the existing percentage of care detemrnation must be revoked from 31 July 2015 (under section 35P) and replaced by new percentage of care determinations (made under section 35B).

    24. The tribunal considered whether an interim care determination could be made under section 35C of the Act.  Section 35F of the Act provides that a determination under section 35 commenes from the change of care date and applies for 14 weeks.  The 14 week period commences from 1 August 2015; it had expired well before the period where [the Applicant] claims [the Other Party] was withholding care in contravention of the orders.  The tribunal finds that section 35C is not applicable in this case.

    25. the tribunal therefore finds that the following percentage of care determinations have effect in accordance with section 35B of the Act:

    from 1 August 2015 to 31 December 2015 [the Applicant] had 40% care of [E] and 36% care of [K] and [the Other Party]  had 60% care of [K] and 64% care of [E];

    from 1 January 2016 to 7 March [the Applicant] had 15% care of both children and [the Other Party] had 85% care of both children;

    from 9 March 2016 [the Applicant] had 50% care of [E] and 50% care of [K] and [the Other Party] had 50% care of [K] and 50% care of [E].  (T2 4)

    CONCLUSION

  6. For the reasons above, the Tribunal affirms decision of AAT1.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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

Associate

Dated: 06 July 2018

Date(s) of hearing: 08 June 2018
Applicant: In person
Solicitors for the Respondent: Daphne Jones-Bolla, Sparke Helmore Lawyers
Other Party: In person

Key Legal Topics

Areas of Law

  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Appeal

  • Judicial Review

  • Jurisdiction

  • Procedural Fairness

  • Standing

  • Statutory Construction

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