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

[2022] AATA 273

GRFT and Secretary, Department of Social Services (Social services second review) [2022] AATA 273 (9 February 2022)

Division:GENERAL DIVISION

File Number(s):2021/9045      

Re:GRFT  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

And: MJXH

Other Party

INTERLOCUTORY DECISION

Tribunal:Mr S. Webb, Member

Date:9 February 2022

Place:Canberra

Reinstatement application refused.

……….[sgd]………..

Mr S. Webb, Member

PRACTICE AND PROCEDURE – percentage of care – reinstatement following dismissal for failure to appear – discretion not exercised – reinstatement refused

REASONS FOR INTERLOCUTORY DECISION

Mr S. Webb, Member

9 February 2022

1. GRFT and MJXH have 3 children. There is a dispute between them about the percentage of care each for the children from 1 May 2017. GRFT applied for 2nd review of a decision of this Tribunal on 1^st review (AAT1) with which he disagrees.

2. In the course of the proceedings, without notice, GRFT failed to appear at a telephone directions hearing. This resulted in his application being dismissed. Subsequently, he applied for the application to be reinstated. It is this matter, alone, that is the subject of this interlocutory decision.

3. The children are not to be identified and they will be referred to as XA, XB and XC in this decision.

4. The uncontroversial background facts are set out in the AAT1 decision. I adopt those facts, as follows:

   1. MJXH was in receipt of family tax benefit (FTB) by instalments for XA, XB and XC based on her having full-time (100%) care of all three children.

   2. On 1 March 2020 Services Australia (the agency) received a claim for FTB from GRFT which said he had 98% care of XA, XB and XC and that care arrangement had commenced on 5 April 2018.

   3. On 1 March 2020 GRFT also provided the agency with a “Details of your child’s care arrangements” (FAO12) form dated 1 March 2020 signed by GRFT and co-signed by MJXH. This form said MJXH had 10% care and GRFT had 90% care of XA, XB and XC from 1 May 2015.

   4. The FAO12 form also said XA, XB and XC were in MJXH’s care from 3pm Friday until 9am Monday on alternate weekends.

   5. On 4 March 2020 GRFT provided the agency with another version of the FAO12 form with the date the care arrangement changed altered to 1 May 2017. The change was initialled by GRFT.

   6. The agency attempted to contact MJXH by telephone on 2 March 2020, 3 March 2020 and 11 March 2020 to confirm the change in care on the form but no contact was made.

   7. On 11 March 2020, based on the FAO12 form, the agency made a care decision that MJXH had 21% care and GRFT 79% care of XA, XB and XC from 1 May 2017. These care percentages were calculated based on MJXH having three nights care from Friday to Monday every fortnight.

   8. On 14 March 2020 the agency sent MJXH a notice informing her she had 21% care of XA, XB and XC and this may affect her rate of FTB.

   9. On 2 December 2020 MJXH requested a review of the decision of 11 March 2020.

   10. On 21 December 2020 an authorised review officer (ARO) affirmed the decision of 11 March 2020.

   11. On 18 January 2021 MJXH made an application to the Tribunal for a review of the care percentage decision.

   12. On 23 February 2021, having incorrectly treated the application as a child support and not an FTB case, the Tribunal dismissed the application.

   13. When the error was recognised the application was reinstated.

5. The AAT1 decision was made on 8 November 2021:

   The Tribunal sets aside the decision under review and, in substitution, decides that there was no change of care on 1 May 2017 or any other date and that MJXH has a percentage of care for XA, XB and XC of 100% and GRFT of 0%.

6. On 25 November 2021, GRFT lodged the following application for review:

   I’m writing this email in regards to a ACAT tribunal hearing Q401/K418702 in regards to myslef and MJXH of 311/10 Parbery St, Kingston. We recently had a phone hearing a few week’s ago in regards to MJXH appealing a FTB upon review. I have never received any correspondence or emails stating I had to attend this hearing nor receive any correspondence in regards to this matter as my payments have now been cut off.

   I am appalled that your member went with MJXH’s story and went against my information. I want to appeal this decision please.

7. On 17 December 2021, listing notices were emailed to the parties for a telephone directions hearing at 10.00am on 14 January 2022.

8. On 10 January 2022, the parties were sent a reminder of the telephone directions hearing by SMS.

9. Shortly before the hearing on 14 January 2022 was due to commence, GRFT telephone the Tribunal and advised that he would not be able to attend due to work commitments. He informed the Tribunal that he would be available at 2pm on 20 January 2022.

10. The telephone directions hearing was vacated and relisted to accommodate GRFT’s availability.

11. A listing notice of the relisted telephone directions hearing was sent by email to the parties forthwith.

12. On 17 January 2022, the Tribunal sent a reminder of the telephone directions hearing to the parties by SMS.

13. At 2.00pm on 20 January 2022, the telephone directions hearing was slated to commence. The Tribunal attempted to contact GRFT on 5 occasions before and during the directions hearing. GRFT did not answer his telephone.

14. The respondent and the Other Party were heard on procedural issues. Submissions were made for the application to be dismissed forthwith.

15. I was satisfied that GRFT had been given adequate notice of the time and location of the telephone directions hearing and that it was appropriate in all the circumstances to dismiss his application under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

16. On 24 January 2022, GRFT sent an email to the Tribunal in the following terms:

    I have received an a email in regards to yesterday’s hearing in which I was stuck out of town working in a no phone service area. If you can please contact me in regards if I can reschedule this hearing.

17. He informed the Tribunal in another email on that day that he wanted his application reinstated.

18. On 25 January 2022, listing notices for a reinstatement hearing at 10.00am on 8 February 2022 were sent to the parties by email. Also attached to the email were directions in the following terms:

    1. On or before 1 February 2022 the Applicant must give to the Tribunal, the Respondent and Other Party a document setting out:

    (i)the grounds on which he seeks reinstatement of this application;

    (ii)an explanation of his failure to:

    a.    appear at the telephone directions hearing at 2:00pm on 20 January 2022; and

    b.    inform the Tribunal and the other party; and

    (iii)submissions addressing why the discretion to reinstate the application under s 42A(9) of the Administrative Appeals Tribunal Act 1975 should be exercised in the circumstances.

    2. On or before 8 February 2022 the Respondent and the Other Party must give the Tribunal and other parties written submissions in reply or inform the Tribunal that no written submissions will be made.

19. GRFT did not comply with these directions.

20. The reinstatement hearing proceeded with all parties in attendance.

21. GRFT asserted that he had been involved in pouring concrete footpaths at a job in Burra, just outside the ACT, on 20 January 2022. It is his contention that he did not have any mobile telephone reception and he was too busy to leave for the purposes of either attending the telephone directions hearing at 2.00pm on that day or alerting the Tribunal of his inability to attend. He informed the Tribunal that they were short-staffed on the day as some workers were absent due to Covid 19.

22. It is also GRFT’s assertion that he did not receive any attachments to the email from the Tribunal on 25 January 2022.

23. When asked to explain his reasons for seeking reinstatement, GRFT informed the Tribunal that he contested the findings of the AAT1 decision. He informed the Tribunal that he should not have to bear the consequences of the AAT1 decision. GRFT explained that he faced a family tax benefit overpayment debt of approximately $40,000. It is his assertion that MJXH is a liar who has duped the Tribunal. In response to a question from the Tribunal about the conflicting information in the FAO12 documents he gave to Centrelink, GRFT explained that this was in response to information he was given by a Centrelink officer about percentages of care. When he was informed that, in fact, the conflicting information in the FAO12 documents related to the date on which he alleged a change in the percentages of care had occurred, GRFT revised his explanation to another about different information he alleges he was given by a Centrelink officer, in respect of back-dating.

24. GRFT informed the Tribunal that, if his application is reinstated, he intends obtaining evidence from his ex de facto partner and friends who are lawyers who know the real situation.

25. MJXH’s legal representative, Ms Bolton, submitted that the reinstatement should not be granted in the circumstances. She asserted that GRFT had been allowed an accommodation by the Tribunal in respect of the relisting of the telephone directions hearing, but he had still not appeared, despite the attendance of other parties. Furthermore, it was her submission that GRFT’s account of the discrepancies in the FAO12 documents revealed an inconsistency that raises questions about the reliability of his account. In her submission, the findings made about such matters in the AAT1 decision are indicative of the merits of reinstating his application.

26. The Secretary, unsurprisingly, adopted a neutral position.

27. On balance, I am satisfied that it is not appropriate to reinstate GRFT’s application under s 42D(9) of the AAT Act.

28. GRFT has produced no evidence whatsoever to support his assertions about the reasons for his failure to attend the telephone directions hearing on 20 January 2022. The account he provided orally was far from persuasive. He has provided no explanation why he was unable to inform the Tribunal when travelling from his home in Canberra to the alleged worksite in Burra; nor has he provided any explanation why he was unable to leave the worksite for a short time during a break to travel to a site with reception where he could call the Tribunal. The account he gave of the nature and the size of the job and the number of concrete trucks evolved in the telling when asked questions by the Tribunal.

29. GRFT’s assertion that he failed to comply with the 25 January 2022 directions is also far from persuasive. Ms Bolton informed the Tribunal that she had received the email and the attached listing notices and directions. GRFT agreed that he received the email but then asserted that the attachments were merely copies of the email addressed to each party. It is conceivable that GRFT has issues with his email, but I note there is a pattern of complaints from him about not receiving documents he has been sent by the Tribunal. He made the same kind of assertion about the AAT1 hearing documents.

30. These matters weigh against exercising the discretion to reinstate his application.

31. With regard to GRFT’s assertions about materials and evidence, as I understand his submissions, he intends to obtain evidence from people with whom he has had close relations or his friends. Part of the difficulty with materials he produced for the AAT1 hearing, as identified in that decision, is the lack of impartiality and independence of the witness evidence GRFT produced, against which the evidence produced from the principal of the public school where the children were pupils was found to be compelling.

32. Without any intention to provide impartial or independent evidence that might be probative and reliable, and in consideration of the inconsistencies I have referred to, GRFT’s case has little prospect of success should his application be reinstated.

33. This, too, weighs against reinstating his application.

34. On the other hand, if his application is not reinstated, GRFT will lose his right to further review of the percentage of care decision. This is significant not only on grounds of fairness but also as the percentage of care is a determinant of family tax benefit for GRFT and MJXH, and it is for this reason that family tax benefit overpayment debts might arise. It can be accepted that GRFT may face serious consequences should the application not be reinstated. These considerations weigh in favour of reinstating GRFT’s application.

35. That said, the interests of other parties in this matter must also be considered. No doubt, for MJXH, reinstating this application will result in ongoing uncertainty and further costs, although I note that she is represented by Canberra Community Law. It is conceivable that serious consequences might flow to MJXH should the application be reinstated and the percentages of care determined in the AAT1 decision be upset.

36. I have reviewed the materials available to the Tribunal and, on a very preliminary view, it appears to me that GRFT’s case is weak. He did not adduce impartial supporting evidence in the AAT1 proceedings and he has not referred to obtaining evidence of that kind presently. Of course, given opportunity, he may be able to do so.

37. Weighing all these considerations and factors, I have come to the conclusion that GRFT has not made out a sufficient case for reinstatement of his application in the circumstances.

    Decision

38. Reinstatement application refused.

39.     I certify that the preceding 38 (thirty eight) paragraphs are a true copy of the reasons for the interlocutory decision herein of Mr S. Webb, Member.

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

Associate

Dated: 9 February 2022

Solicitor for the Applicant: Self - Represented

Solicitor for the Respondent: Mr James Bernasconi, Services Australia

Solicitor for the Other Party: Ms Genevieve Bolton, Canberra Community Law