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

[2015] AATA 522

Grimes and Secretary, Department of Social Services (Social services second review) [2015] AATA 522 (17 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6414
Re	Nicole Grimes
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Richard King
OTHER PARTY

DECISION

Tribunal	Mr S. Webb, Member
Date	17 July 2015
Place	Perth

The decision under review is set aside. The matter is remitted to the Secretary to determine the shared care percentages and the FTB amounts for Ms Grimes and Mr King on the basis that, from 22 May 2014:

(a)Ms Grimes cares for KS for 90 percent of the time; and

(b)Mr King cares for KS for 10 percent of the time.

....(Sgd) S. Webb....................................................................

Mr S. Webb, Member

SOCIAL SECURITY – family tax benefit – percentage of care of a child – care period – change in pattern of care – revocation of previous determination – change in percentage of care – decision set aside

Legislation

A New Tax System (Family Assistance) Act 1999 ss 3, 25, 35A, 35B, 35J, 35M, 39J, 59

Secondary Materials

The Family Assistance Guide Part 2.1.1.50

REASONS FOR DECISION

Mr S. Webb, Member

17 July 2015

LEGISLATIVE SCHEME

1. Nicole Grimes and Richard King are the separated parents of a child, ‘KS’. Each parent claimed and was paid amounts of Family Tax Benefit on the basis that each of them had 50 percent care of KS. This was subject to a ‘percentage of care’ determination, consistent with Court orders. A dispute has arisen about each parent’s percentage of care of KS.

2. Ms Grimes claimed that she had 90 percent care of KS from 22 November 2013. Centrelink determined that this was correct. In consequence of this decision, Centrelink determined to raise and recover an overpayment debt from Mr King.

3. Mr King applied for review. An Authorised Review Officer affirmed the original decision. But this was upset on further review by the Social Security Appeals Tribunal, which decided that there had been no change in the pattern of care on 22 November 2013, but the pattern of care changed on 22 May 2014, such that Ms Grimes had 58 percent care and Mr King had 42 percent care. In consequence of this decision, I understand that Centrelink decided to raise and recover an overpayment debt from Ms Grimes.

4. Ms Grimes is not happy with this result and she applied for review by this Tribunal.

5. In the course of the hearing it became apparent that all of Ms Grimes’ relevant Centrelink records had not been given to the Tribunal in the T documents. I ordered that this was to be done in a manner that protected her privacy.

6. Documents were filed on 15 July 2015. It is appropriate for me to order that these documents are to be added to the bundle of T documents in respect of Ms Grimes and the confidentiality order over those documents will extend to include those filed on 15 July 2015.

   Issues

7. The issues to be determined in respect of Ms Grimes and Mr King are –

   (c)whether the pattern of care existing prior to 22 November 2013 has changed; and, if so

   (d)whether there are grounds to revoke the previous percentage of care determination; and, if so

   (e)the percentage of care of KS provided by Ms Grimes and Mr King from the date of the changed pattern of care.

   Change in pattern of care

8. Ms Grimes says that the pattern of care for KS changed on 22 November 2013, when KS came into her care for 90 percent of the time. She relies on supporting statements from her mother[1], friends and support workers.[2] She maintains that Mr King cares for KS only rarely and points to calendars marked to this effect. She says that this is presently ongoing and there has been no other change since 22 November 2013.

   [1] T9 folio 39.

   [2] T8 and Exhibits

9. Mr King appeared only briefly at the hearing by telephone. He told me that he accepted Ms Grimes had 90 percent care of KS from 22 May 2014, but maintained that previously he and she had equal care. Mr King did not want to give evidence and he did not want to participate any further in the hearing. This was stated in full knowledge that the matter would proceed on without him and it would be decided on the evidence before the Tribunal. Mr King told me that he did not have any further documents and that he had nothing further to say. As Mr King has not applied for an adjournment, I will proceed on the basis of the material before me.

10. It is clear enough that Mr King disputes Ms Grimes’ assertion that the pattern of care changed on 22 November 2013. Mr King relies on supporting statements from friends.[3]

    [3] T10, T11 and T12.

11. Ms Grimes told me that she agrees with Mr King that she has had actual care of KS 90 percent of the time since 22 May 2014 and presently. She maintains, however, that she has had this level of care for KS since November 2013 and probably much earlier, from August of that year.

12. The Secretary takes no position in respect of these matters.

13. The issue is to be decided under the A New Tax System (Family Assistance) Act 1999 (the FA Act). The term ‘care period’ is given meaning under s 3 by reference to paragraphs of s 35A and s 35B – it is a period in which a pattern of care for a child is established. The term ‘pattern of care’ is not given any special meaning.

14. I am satisfied that the pattern of care prior to 22 November 2013 was one in which each of the parents cared for KS week and week about, in accordance with the Court orders in T3.

15. The evidence of Ms Grimes and those who support her claim and the evidence of Mr King and those who support his claim is starkly inconsistent and cannot be reconciled. Mr King’s concession that Ms Grimes had 90 percent care of KS from 23 May 2014 is not consistent with the unsworn statement of Georgie Winks in T10. I give that statement no weight. Nevertheless, Mr King’s concession is consistent with Ms Grimes’ sworn evidence.

16. Ms Grimes relies on calendars in which she has recorded when KS was in her care or in Mr King’s care.[4] The calendars commence from July 2014 and run through to May 2015. She says the documents were created contemporaneously, and her mother has signed a statement to that effect. I accept that the calendars were produced in the manner described by Ms Grimes.

    [4] Exhibits 6 and 8.

17. Weighing the conflicted evidence, it appears to me that Mr King’s care of KS from 23 November 2013 was erratic and unpredictable for a time. Ms Grimes told me that Mr King’s personal circumstances changed at or about this time - he moved house and he was homeless for a time, before finding new stable accommodation. Her evidence is that this resulted in a significant change to the previously existing pattern of care. Her evidence is that in a week when Mr King was due to have care of KS, he would drop KS off at her house on most days and go off, sometimes for days at a time. Sometimes KS would spend nights with Mr King, sleeping in his car when Mr King was without regular stable accommodation. In her estimation, in the period from November 2013 to May 2014, Mr King would drop and collect KS from school “about 30 percent of the time”.

18. Ms Grimes told me that she contacted Centrelink in November 2013 and subsequently on many occasions to notify a change in care, but she was not believed. It appears that Ms Grimes attended a Centrelink office on 30 December 2013 to follow up an earlier claim made in August of that year that she had 90 percent care. She asserts that this was in respect of KS, but the record is not clear on this point.

19. On 4 November 2014, Stephen Cannell, KS’ school Principal, wrote a letter to the SSAT.[5] In this letter, he says –

    “From 22 November through to the end of the 2013 academic year (19^th December 2013) [KS’s] father Rick had apparently moved to either Bunbury or Busselton area. His mother Ms Nicole Grimes was responsible mainly for bringing him to school. During this timeframe Ms Nicole Grimes and his grandmother Ms Claire Grimes were responsible for collecting him from school.

    From the beginning of the new academic year in 2014, February 3^rd, through to 2^nd April, both parents were responsible for dropping [KS] to school. This was observed by my staff to be evenly split between the two parents, but always separately. During the afternoon however his grandmother also has been involved in collecting [KS] from school. It has been estimated that she collected him 40% of the time, while his mother and his father collected him approximately 30% of the time each.

    From 3^rd April to today, Rick has not had any school contact dropping off or picking up his son [KS]. This responsibility has been left to his mother Nicole, who brings him into school. [KS] is either collected by his mother or his grandmother from these dates.”

    [5] Exhibit 11.

20. To my mind, Mr Cannell’s evidence is largely consistent with the evidence given by Ms Grimes. She acknowledged that Mr King may have dropped KS off at school about 30 percent of the time in the period after November 2013, although she could not be sure of the dates.

21. Ms Grimes alleges that Mr King falsely amended KS’s school ‘communication book’[6] by inserting his signature over hers, after the fact. She says that there are obvious discrepancies in the way in which Mr King’s signature and her initials appear in the book – her evidence is that she initialled the pages of this book rather than using a full signature. For example, Mr King’s signature on page 2 of Exhibit 10 (marked as page 77) – it appears that the word ‘King’ is written in different pens: one used for the letters ‘Ki’, and another used for the letters ‘Ng’. Ms Grimes’ initials - ‘Ng’ - appear on page 6 of Exhibit 10 (marked as page 81). As can be seen, these initials are very similar to those in the word ‘KiNg’ on page 2 (marked as page 77). On this analysis it is possible that Ms Grimes’ allegations may have substance. The original communication book is not in evidence. I have carefully examined the document in Exhibit 10, but without the original communication book I can go no further with this.

    [6] T14.

22. Furthermore, she says that Mr King alleges the alternate week care arrangement for KS persisted until May 2014, but he has signed the book on days during weeks when under such an arrangement KS was in Ms Grimes’ care. This, she says, demonstrates that the unreliable nature of this evidence. This does not follow, however, if Mr King collected KS from school in weeks when he was in Ms Grimes’ care.

23. Mr Cannell’s evidence that Mr King was involved in dropping off (50 percent) and collecting (30 percent) KS from school from 3 February to 2 April 2014, suggests that Mr King was regularly involved in caring for KS for a period of at least 8 weeks or so. Ms Grimes says that Mr King dropped KS at school approximately 30 percent of the time, but she or her grandmother collected him from school and his level of care for KS was only 10 percent of the time.

24. The unsworn statement of Luke Martin and Warren Potter suggest that Mr King had care of KS over some but not all week ends from May 2014. Mr Martin says that Mr King had care of KS one week each fortnight prior to May 2014.

25. Weighing the conflicting accounts, on balance, I think that that the over-arching pattern of care established by Court orders in 2011 continued to underlie what actually occurred between Ms Grimes and Mr King in respect of KS’s care until 21 May 2014.

26. That is so, despite the variations in actual care that may have occurred from time to time. Despite Mr Cannell’s evidence that Mr King was residing in Bunbury or Busselton for a time, this is not supported by any other evidence. Ms Grimes says that he was homeless for a time. That may be true, but there is no other corroborating evidence to support it. Even if Mr King was homeless for a time, it does not mean that the pattern of care of KS was broken. Ms Grimes acknowledged that KS would stay with Mr King in his car on some nights.

27. By Ms Grimes’ own account, Mr King would visit her house almost daily in weeks when he was supposed to have care of KS during this period. She was annoyed by his behaviour because those alternate weeks were supposed to be weeks off for her. This clearly betrays her expectation in respect of the previous pattern of care.

28. Nevertheless, I am satisfied that by 21 May 2014, the previously existing week and week about pattern of care for KS had broken down.

29. Mr King has acknowledged that a change occurred in his pattern of care at that time, as of 22 May 2014. I am satisfied that this is correct and that the previously stable pattern of care broke down over time. I accept that Mr King’s care for KS became somewhat erratic after November 2013. But it was not until Ms Grimes contacted Centrelink again on 21 May 2014 in respect of a change in her percentage of care that this crystallized into something that gave rise to a new pattern of care, requiring a fresh determination of the respective percentages of care of Ms Grimes and Mr King.

    Grounds to revoke previous percentage of care determination

30. From 2011, the percentage of care of Ms Grimes and Mr King was previously determined to be 50 percent each. This determination must be revoked if there is a significant variation in ‘the care of the child that is actually taking place, such that the percentage of care is outside the range of 48 percent to 52 percent, otherwise there is discretion to vary the determination.

31. I am reasonably satisfied that there was a significant change in the pattern of care for KS as of 22 May 2014 and that, from that date Mr King’s percentage of care was substantially less than 48 percent.

32. This means that the previous determination must be revoked.

    Percentage of care

33. That being so, it is necessary to determine new percentages of care for each parent from 22 May 2014.

34. The percentage of care must correspond with ‘the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period’ – s 35B(3). The Family Assistance Guide provides at 2.1.1.50 that a ‘care period’ is generally taken to be a 12 month period, although it may be a shorter period ‘where the level of care is unsettled and changes on a regular basis”.

35. The method for working out the actual care of a child is set out in s 39J –

    39J (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.

36. The calendar records in Exhibit 8 reveal that, from 1 July 2014 to 31 December 2014, Mr King had care of KS for 19 nights out of 194 days. The calendar records in Exhibit 6 reveal that, from 1 January 2015 to 22 May 2015, Mr King had care of KS for 9 nights out of 142 days.

37. Ms Grimes has a poor memory and she gave inconsistent evidence on this point. The clear and consistent thrust of her evidence, however, is that she had 90 percent care of KS thereafter. Mr King has accepted this.

38. On the evidence of Mr Martin and Mr Potter, Mr King had care of KS on some weekends. This is not reflected in the calendar records. If their evidence about weekend care is correct, it would mean that Mr King had care of KS for 8 to 12 nights in the period from 21 May to 30 June.

39. Proceeding on this basis, I am satisfied that Mr King had care of KS for 39 nights in the period from 22 May 2014 to 31 May 2015. This equates to 10.68 percent.

40. Under s 35M of the Act, where a percentage of care is less than 50 percent and it is not a whole number, it is to be rounded down to the nearest whole number. This means that Mr King’s percentage of care of KS during this care period is 10 percent.

41. I am satisfied that Ms Grimes had care of KS for the remaining 326 nights during the 12 month care period is 89.32 percent. Under s 35M, where a percentage of care is greater than 50 percent and it is not a whole number it is to be rounded up. This means that Ms Grimes’ percentage of care of KS is 90 percent.

42. There is insufficient evidence before me to make any different determination of care percentages in respect of the period from 22 May 2015 to the present day.

43. That being so, the shared care percentage of Ms Grimes and Mr King remains to be calculated under s 59 of the Act. The matter will be remitted to the Secretary for this purpose.

    Decision

44. The decision under review is set aside. The matter is remitted to the Secretary to determine the shared care percentages and the FTB amounts for Ms Grimes and Mr King on the basis that, from 22 May 2014

    (a)Ms Grimes cares for KS for 90 percent of the time; and

    (b)Mr King cares for KS for 10 percent of the time.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

...(Sgd) A Tran.....................................................................

Administrative Assistant

Dated 17 July 2015

Date of hearing	10 July 2015
Applicant	In person
Representative for the Respondent	Ms A Ladhams
Solicitors for the Respondent	Australian Government Solicitor
Other Party	By telephone