Harpley and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2052
•1 July 2020
Harpley and Secretary, Department of Social Services (Social services second review) [2020] AATA 2052 (1 July 2020)
Division:GENERAL DIVISION
File Number(s): 2018/4266
Re:Vincent Harpley
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
AndSusan Harpley
OTHER PARTY
Decision
Tribunal:Senior Member Linda Kirk
Date:1 July 2020
Place:Sydney
The Reviewable Decision is set aside and substituted with the following determinations with respect to the care of the Children:
1) the Applicant’s percentage of care and that of the Other Party for the purposes of Family Tax Benefit during the period from 16 March 2017 to 15 November 2017 was 59% and 41% respectively; and
2) the Applicant was the principal carer of the Children and entitled to parenting payment for the period 1 August 2017 to 15 November 2017.
.............................[sgd]...........................................
Senior Member Linda Kirk
Catchwords
FAMILY TAX BENEFIT – percentage of care – factors relevant to the determination of actual care – principal carer – revoking a care determination – financial circumstances –– pattern of care – hours in care rather than nights in care – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 37
A New Tax System (Family Assistance) Act 1999 (Cth) ss 22, 35B, 35J, 35M, 35P, 35Q
Social Security Act 1991 (Cth) ss 5, 500, 500D
Cases
Brightman and Secretary, Department of Family and Community Services and Another [2004] AATA 405
Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533
Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473
Irving and Secretary, Department of Social Services [2016] AATA 949
Moore and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 400
P v Child Support Registrar [2013] FCA 1312
Petrie and Secretary, Department of Social Services [2018] AATA 1641
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Another [2008] AATA 607
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461; [2000] FCA 513Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22
Secondary Materials
Guides to Social Security Law, Social Security Guide
REASONS FOR DECISION
Senior Member Linda Kirk
1 July 2020
Application for review
Mr Vincent Harpley (‘the Applicant’) and Ms Susan Harpley (‘the Other Party’) are the parents of A1 born in 2010 and A2 born in 2013 (‘the Children’). The Applicant and the Other Party separated in January 2015.
On 23 September 2015, the Department of Human Services – Child Support, now known as Services Australia – Child Support, (‘Child Support’) determined that the Applicant had 5% and the Other Party 95% care of the Children.
On 23 May 2017, the Applicant lodged with the Secretary, Department of Social Services (‘the Respondent’ or ‘the Department’) claims for Family Tax Benefit (‘FTB’) and parenting payment single (‘parenting payment’) in relation to the Children.[1]
[1] T18, pp 302-316.
On 1 August 2017, Child Support advised Centrelink that from 1 November 2015 the Applicant and the Other Party each had 50% care of the Children (‘the existing care determination’).[2] This was consistent with the arrangement reached by the Applicant and the Other Party whereby the Applicant had five nights care of the Children in one week, and two nights in the following week.[3]
[2] T14, p 247.
[3] T2, p 5 at [15].
On 31 August 2017, the Applicant advised Centrelink that he had 62% care of the Children and would like his parenting payment application reviewed on this basis.
On 5 September 2017, the Department granted the Applicant’s application for FTB on the basis that he provided 50% care to the Children with effect from 1 June 2016.
On 19 October 2017, the Applicant lodged an application for FTB on the basis that he provided 234 nights or 64% care of the Children from 16 March 2017.[4]
[4] T12, p 225.
On 24 October 2017, an officer of the Respondent rejected the Applicant’s claim for parenting payment on the basis that he was not deemed to be the principal carer of the Children from 10 May 2017.[5]
[5] T29, p 503.
On 30 November 2017, an officer of the Respondent rejected the Applicant’s application for a new care percentage determination and assessed the Applicant’s FTB shared care percentage from 16 March 2017 in respect of the Children as 50%.
On 11 January 2018, an Authorised Review Officer (‘the ARO’) affirmed both the 24 October 2017 and the 30 November 2017 decisions.[6] The ARO found that there was insufficient evidence to support a finding that the Applicant had 64% of the care of the Children during the period 16 March 2017 to 15 November 2017 (‘the relevant period’). The ARO further reasoned that the Other Party was ‘most in need of a favourable determination at the time and should continue to be deemed the principal carer’ of the Children from 10 May 2017.
[6] T12, pp 221–229.
On 10 April 2018, the Applicant sought review of the ARO’s decisions before the Social Services and Child Support Division of the Administrative Appeals Tribunal (‘AAT1’).
In a decision dated 15 June 2018 (‘the Reviewable Decision’ or ‘AAT1 decision’),[7] AAT1 affirmed the ARO’s decisions and made the following findings:
(a)having taken all the evidence into consideration, it calculated that the Applicant had a 49.5% share of the care of the Children and found that it was likely this care arrangement would continue indefinitely;[8]
(b)it was not satisfied that there were grounds to revoke the existing care determination and found that the Applicant and the Other Party equally shared care of the Children;[9]
(c)it was not satisfied that any party had a significantly greater need for parenting payment than the other, and found the effect of reversing the decision would radically affect the Other Party’s entitlements and give rise to an entitlement for the Applicant where he previously had not had such an entitlement, such that to do so would cause a drastic change to the ‘status quo’ which it found was not justified on the balance of considerations;[10] and
(d)having not been persuaded that as at 23 May 2017 there should be a change to the principal carer determination previously in force, it found that the Applicant was not qualified for parenting payment and that his claim was properly rejected.[11]
[7] T2, pp 3–15.
[8] T2, p 11 at [31]
[9] T2, p 11 at [32]
[10] T2, pp 14–15 at [51]
[11] T2, p 15 at [52].
On 30 July 2018, the Applicant lodged an application for review with the General Division of the Administrative Appeals Tribunal (‘the Tribunal’).
The application for review was heard at a hearing in Sydney on 7 February and 10 March 2020. The Applicant and the Other Party attended both hearings and gave oral evidence.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 28 November 2019;
·Respondent’s Further Submissions dated 19 March 2020;
·Exhibit A1 – Departmental filenote of Vincent Harpley dated 6 June 2017;
·Exhibit A2 – Department record of Vincent Harpley dated 31 August 2017;
·Exhibit A3 – Text messages from Vincent Harpley to Susan Harpley commencing on 7 September 2017 and text messages dated 21 September 2017;
·Exhibit A4 – Medical certificates of Vincent Harpley provided to Centrelink from 14 May 2018 to 14 March 2019;
·Exhibit A5 – Company Extract – Shalom Group Holding Pty Ltd dated 9 December 2018;
·Exhibit A6 – Westpac bank statement of Susan Harpley from 4 January 2016 to 27 January 2016;
·Exhibit A7 – Centrelink factsheet relating to income levels;
·Exhibit A8 – Bundle of miscellaneous documents primarily consisting of text message conversations between Vincent Harpley and Susan Harpley;
·Exhibit A9 – Child support assessment letters dated 13 December 2018 and 1 February 2018 and a factsheet on parenting payment.
·Exhibit R1 – 2017 diary of Susan Harpley;
·Exhibit R2 – 2018 diary of Susan Harpley;
·Exhibit R3 – Text messages between Susan Harpley and Vincent Harpley;
·Respondent’s calculation of each parent’s entitlement to parenting payment and family tax benefit in accordance with the percentage of care filed 5 March 2019;
·Statement of Susan Harpley filed 29 October 2019; and
·Tribunal documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘T1-T33’).
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
ISSUES FOR DETERMINATION
The issues to be determined by the Tribunal are:
1)the percentage of care that the Applicant provided to the Children during the relevant period (‘Issue 1’); and
2)whether as at 23 May 2017 there should be a change to the determination that the Other Party was the principal carer of the Children, in favour of the Applicant (‘Issue 2’).
LEGISLATIVE FRAMEWORK
Legislation relevant to the Tribunal’s task of resolving the two issues identified above is contained in the:
·Social Security Act 1991 (Cth) (the Act); and
·A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act).
Policy guidance relevant to both issues is contained in the Guides to Social Policy Law, Social Security Guide (‘the Guide’). The Guide reflects government policy and should be followed unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Issue 1 - Family Tax Benefit
In relation to FTB generally, a person is eligible for FTB if, amongst other requirements, they have a ‘FTB child.’
Section 22(2) of the Family Assistance Act provides that an individual aged under 16 years is a FTB child of the adult if:
·the individual is aged under 16; and
·the individual is in the adult’s care; and
·the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
·the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
Section 22 of the Family Assistance Act requires a person receiving FTB to have the care of a FTB child.
Where two separated parents are both eligible for FTB in relation to the same FTB child, section 59 of the Family Assistance Act allows for FTB to be shared between the two parents. The amount payable to each parent will depend in part on the percentage of care that each parent has of the FTB child.
Section 59 of the Family Assistance Act provides:
59 Shared care percentages where individual is FTB child of more than one person who are not members of the same couple
(1) An individual has a shared care percentage under this section for an FTB child of the individual if:
(a) the Secretary has determined the individual’s percentage of care for the child during a care period; and
(b) that percentage is at least 35% and not more than 65%.
Note: Paragraph 27(2)(b) deals with the percentage of care in a blended family case.
(2) The individual’s shared care percentage for the FTB child is the relevant percentage specified in column 2 of the table.
(3) If the shared care percentages, specified in the table, of all of the individuals of whom the child is an FTB child add to less than 100%, then the Secretary may determine a different whole percentage for one or more of those individuals for the FTB child. Despite subsection (2), the individual’s shared care percentage for the child is the percentage so determined for that individual.
Percentage of care
Part 3, Division 1, Subdivision D of the Family Assistance Act contains a number of provisions regarding the determination of a percentage of care.
Section 35J of the Family Assistance Act provides that the Secretary (or Tribunal upon review) may determine the percentage of care based on the number of nights that a child is in the care of the adult. That section provides:
35J Working out actual care, and extent of care, of a child
(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.
(4) This section does not limit section 35B, 35C, 35D or 35H.
Revoking a care determination
The provisions relating to revoking an existing care determination are contained in Part 3, Division 1, Subdivision E of the Family Assistance Act.
Sections 35P and 35Q of the Family Assistance Act set out the circumstances in which an existing care determination must be or may be revoked. Those sections provide as follows:
35P Determination must be revoked if there is a change to the individual’s shared care percentage etc.
(1) If:
(a) a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and
(b) if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and
(c) 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
(d) 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 35B, 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;
the Secretary must revoke the determination.
Note: The Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) 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%.
(3) The 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.
35Q Secretary may revoke a determination of an individual’s percentage of care
(1) If:
(a) a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and
(b) if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and
(c) 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
(d) 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
Section 35P does not apply; the Secretary may revoke the determination.
Note: If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) If the Secretary revokes the determination, the revocation 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. Determining a new percentage of care—Pattern of care and percentage of care
Section 35B of the Family Assistance Act relevantly provides:
35B Determination of percentage of care—child is in the adult’s care
Initial determination
...
Determination after revocation
(2) If:
(a) the Secretary revokes, under Subdivision E of this Division, 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
(3) The 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.
Issue 2 - Parenting payment
Section 500 of the Act provides that a person is qualified for parenting payment (‘PP’) if, among other things, ‘the person has at least one PP child’: subsection 500(1)(a) of the Act. Subsection 500D(2) provides that a child is a ‘PP child of a person’ if, among other things, the person is the ‘principal carer of the child’: subsections 500D(2)(a)–(d) of the Act.
Principal carer
The Act defines the term ‘principal carer’:
5 Family relationships definitions—children
...
Principal carer
(15) A person is the principal carer of a child if:
(a) the child is a dependent child of the person; and
(b) the child has not turned 16.
(16) For the purpose of determining whether a person is the principal carer of a child, the person is taken to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the child if:
(a) the person is the step-parent of the child; and
(b) the person is living with the child and a parent of the child; and
(c) the person and the parent are members of the same couple.
This subsection does not, by implication, affect the determination of whether a person is taken to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of a child in cases to which this subsection does not apply.
In most situations in which separated parents share the care of a child this definition would include both parents. However, subsection 5(18) of the Act imposes the limitation that only one person at a time can be the principal carer of a particular child.
Under subsection 5(19) of the Act, when there would otherwise be more than one principal carer under the general definition, the Department must make a written determination and give a copy of the determination to each person.
(19) If the Secretary is satisfied that, but for subsection (18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must:
(a) make a written determination specifying one of the adults as the principal carer of the child; and
(b) give a copy of the determination to each adult.
(20) The Secretary may make the determination even if all the adults have not claimed a social security payment that is based on, or would be affected by, the adult being the principal carer of the child.
EVIDENCE BEFORE THE TRIBUNAL
Care arrangement
The Applicant and the Other Party confirmed that they separated in January 2015. They attempted mediation on two occasions but were unable to reach a formal care agreement. With the assistance of a family dispute resolution practitioner, they agreed to an informal care arrangement whereby the Applicant had five nights care of the Children one week and two nights care the following week (‘the care arrangement’).[12] The care arrangement follows the following pattern:
Week A
From Sunday evening until Tuesday evening the Children sleep in the Applicant’s home on Sunday and Monday nights and they have dinner with him on Monday and Tuesday nights and then return to the Other Party.
Week B
From Thursday evening until Tuesday evening the Children sleep in the Applicant’s home Thursday, Friday, Saturday, Sunday and Monday nights and have dinner on Friday, Saturday, Sunday, Monday and Tuesday nights and then return to the Other Party.
[12] T12, p 225.
The Applicant claims that the care arrangement was not followed during the relevant period. He told AAT1 and the Tribunal that he had care of the Children on a greater number of nights at this time, and that if actual hours of care were considered it would equate to him having 10-11 days per fortnight. He estimates that his actual care during this period was 158 nights out of 245 nights or about 64.49%.[13]
[13] T12, p 225 (Statement of the Applicant dated 21 November 2017).
Applicant’s diary records
The Applicant told AAT1 and the Tribunal that he kept a contemporaneous diary during the relevant period that substantiates his claim that he had 64% care of the Children. He commenced the diary after being advised by Centrelink that this was the best method of substantiating his care of the Children.[14]
[14] Transcript p 8.
The Applicant provided copies of this diary to AAT1 and the Tribunal covering the period from 16 March to 7 June 2017,[15] 8 June to 18 October 2017[16] and from 19 October to 15 November 2017[17] and 16 November 2017 to 31 December 2017.[18] These records indicate that the Applicant had care of the children on the following days during the relevant period:
[15] Exhibit R1; T6, pp 97-120.
[16] Exhibit R1; T9, pp 155-192.
[17] Exhibit R1; T10, pp 207-214.
[18] Exhibit R1; T26, pp 392-404.
March 2017
16 – 20, 25 – 27, 30 – 31
(10 nights)
April 2017
1 – 3, 9 – 18, 23 – 24, 26 – 30
(19 nights)
May 2017
1, 6 – 8, 11 – 15, 18 – 22, 26 – 31
(20 nights)June 2017
3 – 5, 8 –14 and 17 – 25
(19 nights)
July 2017
1– 6, 8 –17, 20 – 24, 27 – 28 and 30 – 31 (25 nights)
August 2017
3–7, 12–21, 26–28, 31
(19 nights)September 2017
1 – 4, 7, 9 – 11, 14 – 18 and 21 – 25 (18 nights)
October 2017
2 – 5, 7 – 9, 12 – 16, 20 – 24, 26 – 30
(21 nights)November 2017
3 – 6, 9 – 13
(9 nights)
AAT1 put to the Applicant that the diary did not appear to be created contemporaneously as the same black pen was used throughout and it appeared to be written at the same time. The Applicant denied this to both AAT1 and the Tribunal. He explained that he kept the diary in the same place in his home, he always used the same pen when completing it, and it has been his practice to use a black biro since he first commenced work.[19]
[19] Transcript p 90.
Childcare attendance records
Attendance records (‘attendance records’) (see Tables below) from A2’s childcare centre, the Children’s Spot in Hurstville (‘the childcare centre’), record A2’s attendance at childcare and the parent who signed him in and out during the relevant period.
In his written statement to AAT1 dated 30 May 2018, the Applicant said that the attendance records align with his diary record, but he was not aware of the requirement for parents to sign children in and out of the childcare centre until the afternoon of 26 May 2017. The Applicant told AAT1 and the Tribunal that the attendance records contained errors as there were regular technological problems with the electronic device used by the childcare centre for the signing in and out by parents of their children. The device would regularly be switched off or not working when he would drop off A2 at the childcare centre. The Applicant claimed that as a consequence of this, the attendance records falsely recorded that the Other Party had signed A2 either in or out when, in fact, the Applicant had done so.[20]
[20] Transcript p 78.
The Other Party did not provide any diary or other records to the Tribunal to substantiate her claims in relation to the nights during the relevant period that the Children stayed with her.[21] She told the Tribunal that she did not experience any difficulties signing A2 in and out of childcare, and that there was a well-established procedure for doing so which included the use by parents of a passcode to enter the centre.[22]
[21] Transcript p 151.
[22] Transcript p 119.
Both parties provided to the Tribunal a number of text messages that record their conversations in relation to the care of the Children during the relevant period.[23] These are referred to below where relevant.
[23] Exhibits A3, A8 and R3.
AAT1 noted that a comparison of the attendance records with the Applicant’s diary during the period 31 May 2017 to 24 November 2017 identified five days that were inconsistent. These discrepancies, and other dates during the relevant period where either the Applicant or the Other Party claims the Children stayed overnight with them and these dates conflict with the attendance records, were discussed at length at the Tribunal hearing.
Discrepancies between Applicant’s diary and attendance records
30 March 2017
The Applicant’s diary records that he had the Children overnight on 30 and 31 March 2017. The attendance records indicate that the Other Party signed the children in and out (9.04am and 5.48pm) on 30 March 2017.
26 April 2017
The Applicant’s diary records that he had the Children overnight from 26 to 30 April 2017. The attendance records indicate that the Other Party signed A2 in and out (9.01am and 5.49pm) on 26 April 2017.
18 and 19 May 2017
The Applicant’s diary records that he had the Children overnight from 18 to 22 May 2017. The attendance records indicate that the Other Party signed A2 in and out (9.01am and 5.49pm) on 18 May 2017 and then signed him in and out again (10:57am and 2:09pm) on 19 May 2017.
22 and 23 June 2017
The Applicant’s diary records that he had the care of the Children overnight from 17 to 25 June 2017. The attendance records indicate that the Applicant signed A2 in and out (8:54am and 4:06pm) on 21 June 2017 and signed him in and out (8:54am and 3:37pm) on 22 June 2017. However, the attendance records show that the Other Party signed A2 in on the morning of 23 June 2017. At the hearing, the Applicant told the Tribunal that in accordance with the care arrangement, the Children would have been with him on 22 and 23 June 2017.[24]
27 and 28 July 2017
[24] Transcript p 82-83.
The Applicant’s diary records that he had the care of the Children on the nights of 27 and 28 July 2017. His diary records on 27 July 2017 'BOYS — I PICKED THEM UP' and on 28 July 2017 ‘BOYS — SHE PICKED THEM UP'. The childcare attendance records indicate that the Other Party both dropped off and collected A2 from childcare on both these dates (9:05am and 5:35pm on 27 July 2017 and 9:26am and 5:26pm on 28 July 2017).
At the hearing, the Other Party told the Tribunal that the Children stayed with her on both 27 and 28 July 2017. She provided photographs of the Children which were taken by her at the school disco they attended on Friday, 28 July 2017, and text messages between her and the Applicant to demonstrate they were in her care that night.[25]
31 August 2017
[25] Transcript p 122-123.
The Applicant’s diary records that he cared for the Children on the night of 31 August 2017. The childcare attendance records indicate that the Other Party signed in A2 at 9:17am on 31 August 2017 and the Applicant signed him out at 3:24pm.
At the hearing, the Other Party told the Tribunal that she collected A2 on 31 August 2017 and provided text messages between her and the Applicant to demonstrate that the Applicant only collected A1 from school and did not collect A2 from childcare on the evening of 31 August 2017.[26]
7 September 2017
[26] Transcript p 126.
The Applicant's diary entry states that he cared for the Children overnight on 7 September 2017. His diary records he collected A1 from school after an incident when A1 apparently hit another student. The attendance records indicate that the Other Party signed A2 in and out of childcare on 7 September (9:01am and 6:14pm) and 8 September 2017 (9:01am and 5:30pm).
At the hearing, the Other Party told the Tribunal that on 7 September 2017 the Applicant only collected A1 from school and he did not collect A2 from childcare. She claims that on this date the Applicant only cared for A1 overnight.[27] The Applicant told the Tribunal that the boys were rarely separated overnight as they are very close.[28]
21 to 25 September 2017
[27] Transcript p 127.
[28] Transcript p 94.
The Applicant's diary records that he cared for the Children on the nights of 21 and 22 September 2017. His diary entry of 21 September 2017 notes that it was A1's last day of school for the term and that 22 September 2017 was a pupil free day. The childcare attendance records indicate that the Other Party signed A2 in and out of childcare on both days (9:12am and 5:33pm on 21 September 2017 and 9:19am and 5:15pm on 22 September 2017).
At the hearing, the Other Party claimed that on 22 September 2017 only A1 stayed overnight with the Applicant.[29] She provided text messages between her and the Applicant in support of her claim. She also claimed that on the weekend of 23 and 24 September 2017 the Applicant was moving house, and only A1 stayed with him during this period.[30]
18 to 20 October 2017
[29] Transcript p 130.
[30] Transcript p 130.
The Applicant told AAT1 and the Tribunal that, in addition to his care percentage of 64%, his cost percentage was greater, as the Children stayed additional hours with him and had extra meals. He claimed that in the week beginning 20 October 2017 he had five days of care instead of two days, as stipulated by the care arrangement. The childcare attendance records indicated that the Applicant signed A2 in and out of childcare on 18 October 2017 (9:15am and 5:37pm), 19 October 2017 (10:12am and 5:53pm) and 20 October 2017 (9:46am and 3:54pm).
31 October to 3 November 2017
The Applicant claims that he also provided additional care in the week beginning 31 October 2017 when he had four nights care instead of two nights. He also stated that he collected the Children on alternate Thursdays between 3-4 pm, bathed and fed them, took them to rugby league training and then returned them to the Other Party in the evening.
The childcare attendance records indicate that the Other Party signed A2 in and out of childcare on 1 November 2017 (9:09am and 6:01pm), 2 November 2017 (9:08am and 5:33pm) and the Applicant signed A2 in and out of childcare on 3 November 2017 (9:22am and 3:30pm).
15 to 17 November 2017
The Applicant further claims that he provided additional care in the week beginning 14 November 2017. The childcare attendance records indicate that the Other Party signed A2 in and out of childcare on 15 November 2017 (3:48pm and 5:21pm), 16 November 2017 (9:05am and 6:00pm), and 17 November 2017 (9:05am and 5:42pm).
Applicant’s financial circumstances
The Applicant explained to AAT1 and the Tribunal that when he and the Other Party were married, they were directors of a company, First Australia Pty Ltd (‘the company’), that operated a business that was licenced by NRMA to provide a roadside battery service.[31] In about June 2016, he reduced his hours to a part-time role due to his caring responsibilities and because he was no longer able to lift the 30kg weight of the batteries as he had a shortened tendon in his hand. He sold the company for $12,000, which included the cost of the van from which the battery replacement service operated.[32] He is currently one of two directors of the company, which he registered and incorporated in late 2016 following the Other Party deregistering the original company.[33] Following the sale of the business, he was retained as a director to complete returns each month, assist with other paperwork and to certify that worker's compensation has been paid. His only remuneration for his work for the company is the provision to him of a mobile telephone which he also uses for personal calls.[34]
[31] Transcript p 35.
[32] Transcript p 36.
[33] Transcript p 35-36.
[34] Transcript p 36.
The Applicant told AAT1 and the Tribunal that he has been in receipt of Newstart Allowance since January 2017.[35] He had a heart attack in mid-2016 and ceased all work, though he was medically cleared to return to work six months after his surgery.[36] He had sought employment before his heart attack, but said that at his age and with his health conditions his employment prospects are not good.[37] The Applicant's taxable income in the 2016 and 2017 financial years was approximately $10,000 per year.[38] He is currently registered with a disability employment service and is required to try and find 15 hours of work per week.[39] In December 2019 he worked a few shifts as a deckhand and did waiting and bar work.[40]
[35] Transcript p 31.
[36] Transcript p 95.
[37] Transcript pp 35, 37, 40.
[38] Transcript p 33.
[39] Transcript pp 31, 37, 41.
[40] Transcript pp 31-32.
The Applicant resides in the rental accommodation in Hurstville that he and the Other Party were living in prior to their separation. He moved back alone to this accommodation in October 2017.[41] The rent for the property is $600 per week but he has boarders who reside with him and contribute to the rent and he pays $260 per week.[42] Prior to moving to his current accommodation, he was living in Hillsville and paying $550 per week.[43]
[41] Transcript p 71.
[42] Transcript p 42.
[43] Transcript p 51.
The Applicant told AAT1 and the Tribunal that he is reliant on support from family and friends in order to meet his and the Children’s needs.[44] He loaned his daughter $12,000 and the assistance she provides him he regards as repayment of this loan. He owes his sister about $8,000 however she is ‘not overly concerned’ that this debt be repaid.[45] In 2016 he received a lump sum payment of about $50,000 to $60,000 from his mother's estate, which he has now exhausted.[46]
[44] Transcript p 53.
[45] AAT1 decision at [47].
[46] AAT1 decision at [47].
The Applicant gave evidence to AAT1 and the Tribunal of his discretionary spending, including eating out with the Children at the local club and attendance at rugby league games.[47] He owns a car and has no other liabilities or debts.[48]. The Applicant told the Tribunal that he re-married in November 2018.[49]
[47] Transcript p 42.
[48] Transcript p 71; AAT1 decision at [47].
[49] Transcript p 136.
The Applicant told the Tribunal that he has tried to contribute approximately 50% to A1’s school costs but the Other Party has paid up to 75% of these costs when times were tough for him.[50] He told AAT1 he had recently bought some uniforms for the children, and in May 2018 he made his first contribution to A2's private school fees. He was unable to estimate his portion of outstanding private school fees but said that he must contribute about $1,200 going forward.[51] At the hearing, the Applicant confirmed that he is not currently contributing to the payment of the Children’s school fees.[52]
[50] Transcript pp 44, 54.
[51] AAT1 decision at [48].
[52] Transcript p 151.
The Applicant claimed that the Other Party is not entitled to parenting payment as she had a taxable income of $44,906 in the 2016/2017 financial year.[53] He also told the Tribunal that during the relevant period she was receiving undeclared rental income of $650 per week (or $34,000 per year) from boarders who lived at the property in Hurstville.[54] He claimed that the Other Party has less need than he does for the parenting payment due to her more favourable financial circumstances, and he would be entitled to a higher rate.[55]
[53] Transcript p 35, 50.
[54] Transcript p 35.
[55] Transcript p 49
Other Party’s financial circumstances
The Other Party told the Tribunal that after she separated from the Applicant she did not have a job and her youngest child was only two years old. She had to pay the rent at their property in Hurstville as the Applicant did not contribute to the rent nor did he give her any of the income he derived from the operation or sale of their business.[56] As she could not pay the $600 per week rent herself she rented out rooms to boarders so she could meet the rental payments.[57] The rental payments were deposited into A1’s youth saver account.[58] Prior to moving to her current accommodation in Hurstville, she lived with the Children in a granny flat in Penshurst.[59] She told the Tribunal she lives with her current partner and they jointly pay the $600 rent per week.[60] He is employed in the building industry.[61] She said that she was not in a relationship with her current partner in 2017, and they have been living together for only a few months.[62]
[56] Transcript p 134.
[57] Transcript p 47
[58] Transcript p 134.
[59] Transcript p 135.
[60] Transcript p 104.
[61] Transcript pp 105, 107.
[62] Transcript pp 104, 107.
The Other Party has a Bachelor degree in accounting.[63] She commenced part-time work in a real estate agency in April 2017 and remained there for about six months.[64] In late 2017, she started studying to attain her Certified Practising Accountant (‘CPA’) qualification. She left the real estate job and commenced work for 30 hours per week at an accounting practice and earns a net income of about $600 per week. During the Hearing, she stated that she expected to be fully qualified as a CPA and would hold a tax licence from May 2020.[65]
[63] Transcript p 69.
[64] Transcript p 69.
[65] Transcript p 104.
Evidence before the Tribunal from the Respondent is that the Other Party’s taxable income for 2016/2017 year was $44,906. She received a FTB payment of $17,454.58 and a parenting payment at the single rate of $19,254.00 for the 2016/17 financial year. Parenting payment is taxable income whereas FTB is not taxable.[66] The evidence before the Tribunal is that the Other Party disclosed her FTB income of $17,454.58 on her tax return for the 2016/17 financial year. Accordingly, her employment income for the 2016/17 financial year was $8,196.42.[67]
[66] Exhibit A9; Respondent’s Further Submissions at [5]-[8].
[67] Respondent’s Further Submissions at [10].
The evidence before the Tribunal is that the Other Party has savings of about $7,000-$8,000, owes about $20,000 on a motor vehicle which she is repaying at $111 per week, and has no other assets.[68] She has met all of A2's childcare costs, vacation care, purchased all uniforms for A1 to attend his local Catholic school and A2 to attend his local public school, as well as their tuition and other costs associated with their education.[69]
CONSIDERATION AND REASONS
Issue 1 - Family tax benefit
[68] AAT1 decision at [48]; Transcript p 104.
[69] Transcript p 63.
What is the pattern of care?
The Guide at Topic 2.1.1.50 provides 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.
The Guide at Topic 2.1.1.45 provides further assistance in relation to establishing a pattern of care and says:
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.
An assessment of care arrangements that is determined by either Centrelink for FA purposes or Child Support for child support purposes will have effect for the other agency in relation to care periods that begin on or after this date. This means where a care percentage has been determined by Child Support, that determination will be aligned for the purpose of FA and will be applied in determining the individual's care percentage for FTB purposes. Centrelink will only be able to make a new care determination if there has been a change in the care arrangements.
...
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.
…
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 FTB child. A person with the overnight care of a child is regarded as having had care of the child for that day.
Previous Tribunal decisions provide further guidance on determining a pattern of care and deciding whether there should be a change to the shared care percentage. For example, in Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Another [2008] AATA 607, Senior Member Levy stated at [18]-[20]:
18. The essential decision must therefore be made in terms of s 59(1) of the Act, ie. 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 is 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 Affairs, DP Hack held that a “broad brush basis” is an appropriate method of making decisions in relation to these provisions. [footnotes omitted]
In Brightman and Secretary, Department of Family and Community Services and Another [2004] AATA 405, Member Allen stated at [27]:
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 [2001] 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.”
The Tribunal has indicated a preference for a flexible approach to the determination of the pattern of care. For example, in Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533 (‘Drury’), the Tribunal concluded that a more equitable outcome to reflect a greater financial contribution was obtained by calculating the hours in care rather than the nights in care. The Tribunal stated at [14]:
In my view and based on the evidence, the use of the nights in care method seems to me to yield a result which is inequitable. I believe it is preferable, in a case such as this, that an hours of care method is used. Moreover, in support of the use of hour of care and adopting the approach taken by Deputy President P E Hack SC in Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159, I believe it is appropriate to have regard to the greater financial responsibility that has been case upon Ms Drury by virtue of the share care arrangements.
The Tribunal approved of the approach taken in Drury in Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473 (‘Gillson’). The Tribunal stated at [12]:
The Guide process that, generally, a pattern of care is based on the “number of nights in a care period where an individual had the care of a FTB child”. The Guide also provides that “there may be some occasions where only counting the night in care does not accurately reflect the caring arrangements for the child”. I appreciate that in some cases it may be appropriate to assess care arrangements on an “hours in care” basis where a greater financial burden is placed on one parent. However, there is no evidence that one party has made a greater financial contribution which would warrant a departure from the “nights in care” basis of calculation.
The Tribunal in Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22 (‘Vendrell’) found that hours in care more accurately reflected the actual care arrangements than nights in care. Although Mr Vendrell had overnight care, Ms Vendrell had daily care for extensive periods. The Tribunal stated at [44]:
It is immediately apparent that the arrangement between Ms Vendrell and Mr Vendrell does not fit this pattern. On Mondays and Tuesdays when Mr Vendrell has overnight care, Ms Vendrell has care of the child from 7.30am to 5.30pm. On Fridays, when the child spends the night with Mr Vendrell, Ms Vendrell has, until recently, had care of him for four hours during the day while he was not at kindergarten. (In the last eight weeks of last terms this reduced to three hours).
In these circumstances, I am satisfied that hours in care more accurately reflects the actual care arrangements than nights in care.
The Tribunal in Vendrell did not interpret Gillson as suggesting that the cost associated with caring for a child is more important than other considerations. Rather, the Tribunal noted that, only in some cases, financial responsibility might favour an assessment of the hours in care rather than nights in care. The Tribunal stated at [34]:
I do not read the decision in Gillson as suggesting that the cost associated with caring for a child is necessarily more important than other considerations, only that in some cases, it might favour assessment of hours in care rather than nights in care.
The Federal Court in P v Child Support Registrar [2013] FCA 1312 observed at [108]:
... [t]he weight to be given to financial arrangements will differ in each case. In some cases financial considerations will be paramount, in some cases they may not.
What was the pattern of care during the relevant period?
The existing care determination dated 1 August 2017 provides that the Applicant and the Other Party each had 50% care of the Children from 1 November 2015. This is consistent with the arrangement reached by the Applicant and the Other Party whereby the Applicant has five nights care of the Children in one week, and two nights in the following week.[70]
[70] T2, p 5 at [15].
The Applicant claims that the care arrangement for the Children was not followed during the relevant period and that this is substantiated by the entries in his diary. The Tribunal accepts that the Applicant’s diary records are generally a reliable indicator of the nights the Children were in his care in the relevant period. However, where these records conflict with the childcare attendance records, the Tribunal has given greater weight to these records in making its factual findings.
March 2017
The Applicant’s diary records that he had the Children overnight on 30 and 31 March 2017 whereas the attendance records indicate that the Other Party signed A2 in and out on 30 March 2017. The Tribunal places weight on the attendance records and finds that on 30 March 2017 the Children stayed overnight with the Other Party.
April 2017
The Applicant’s diary records that he cared for the Children overnight from 26 to 30 April 2017. The attendance records indicate that the Other Party signed A2 in and out on of childcare 26 April 2017. The Tribunal has placed greater weight on the attendance records and finds that the Children were in the care of the Other Party on 26 April 2017.
May 2017
The Applicant’s diary records that he had the Children overnight from 18 to 22 May 2017. The attendance records indicate that the Other Party signed A2 in and out on 18 and 19 May 2017. The Tribunal has placed greater weight on the attendance records and finds that the Children were in the care of the Other Party on 18 and 19 May 2017.
June 2017
The Applicant’s diary records that he had the Children overnight from 17 to 25 June 2017. The attendance records indicate that the Applicant signed A2 in and out of Childcare on 21 and 22 June 2017 and the Other Party signed A2 in on 23 June 2017. The Tribunal has placed greater weight on the attendance records and finds that the Children were in the care of the Other Party on 22 June 2017.
July 2017
The Applicant’s diary records that he cared for the Children on 27 and 28 July 2017. The childcare attendance records indicate that the Other Party dropped off and collected A2 from childcare on both these dates. On the basis of the attendance records and the Other Party’s evidence, the Tribunal finds that the Children were in the care of the Other Party on 27 and 28 July 2017.
August 2017
The Applicant’s diary records that he cared for the Children on the night of 31 August 2017. The childcare attendance records indicate that the Other Party signed in A2 on 31 August 2017 and the Applicant signed him out. On the basis of the Applicant’s evidence that the Children were rarely separated, and placing weight on the attendance records, the Tribunal finds that the Children were in the care of the Other Party on 31 August 2017.
September 2017
The Applicant's diary entry records that he cared for the Children overnight on 7 September 2017 and from 21 to 25 September 2017. The attendance records indicate that the Other Party signed A2 in and out of childcare on 7 September 2017 and 21 and 22 September 2017. The Tribunal has placed greater weight on the attendance records and finds that the Children were in the care of the Other Party on these dates. In relation to the weekend of 23 and 24 September 2017, on the basis of the Other Party’s evidence to the Tribunal, it finds that only A1 stayed with the Applicant during this weekend.[71]
October 2017
[71] Transcript p 130.
The Applicant's diary entry records that he cared for the Children overnight from 20 to 24 October 2017 and 26 to 30 October 2017. The childcare attendance records indicate that the Applicant signed A2 in and out of childcare on 18, 19, 20 and 30 October 2017. The Tribunal has placed greater weight on the attendance records and finds that the Children were in the care of the Other Party on 20 and 30 October 2017.
November 2017
The Applicant's diary entry records that he cared for the Children overnight from 2 to 5 November 2017. The attendance records indicate that the Other Party signed A2 in and out of childcare on 1 and 2 November 2017 and the Applicant signed A2 in and out of childcare on 3 November 2017. The Tribunal has placed greater weight on the attendance records and finds that the Children were in the care of the Other Party on 2 November 2017.
Having considered the evidence before it, the Tribunal makes the following findings in relation to the nights the Children stayed overnight with the Applicant during the relevant period:
92.
93. 16 March to
94. 15 November 2017
95. Applicant's diary
96. Tribunal’s calculations
97. March
98. 10 nights
99. 9 nights
100. April
101. 19 nights
102. 18 nights
103. May
104. 20 nights
105. 18 nights
106. June
107. 19 nights
108. 18 nights
109. July
110. 25 nights
111. 23 nights
112. August
113. 19 nights
114. 18 nights
115. September
116. 18 nights
117. 13 nights
118. October
119. 21 nights
120. 19 nights
121. November
122. 9 nights
123. 8 nights
124. Total number of nights
125. 160
126. 144
127. Total number of nights in period
128. 245
129. 245
The Tribunal has adopted a ‘nights in care’ approach to determining the pattern of care in relation to the Children for the reason that during the relevant period both boys attended either school or daycare during weekdays. Although it has adopted this method, it finds that an ‘hours in care’ approach to the determination would not materially affect the pattern of care nor, therefore, the percentage of care of both parties during the relevant period.
What is the percentage of care?
Having determined the pattern of care and the number of nights in care, as suggested by the Guide, this is to be converted to a percentage of care by dividing the number of nights in care by the number of days in the care period and multiplying by 100.[72]
[72] The Guide at Topic 2.1.1.50.
As the Tribunal has found the number of nights attributable to the Applicant during the relevant period is 144, this equates to a percentage of care of 58.7%. As required by section 35M of the Family Assistance Act, as the percentage of care is not a whole number, the Tribunal has rounded it up to the nearest whole number as it is above 50%. Thus, the Tribunal finds that the Applicant’s percentage of care during the relevant period was 59%.
As the new percentage of care for the Applicant is outside the 48% to 52% range, the Tribunal must revoke the existing care determination dated 1 August 2017 as required by section 35P of the Family Assistance Act, and make a new care determination for the relevant period.
On the basis of the evidence before it, the Tribunal makes a new determination to the effect that the Applicant’s percentage of care and that of the Other Party during the relevant period from 16 March 2017 to 15 November 2017 was 59% and 41% respectively.
Issue 2 - Parenting Payment
Which parent is the principal carer of the Children?
The relevant legislation does not provide guidance as to the way in which the Tribunal should determine who is the principal carer of a child where the care is shared between two parents: Petrie and Secretary, Department of Social Services [2018] AATA 1641 at [16]. The evidence before the Tribunal is that the Other Party has been the principal carer of the Children since at least 23 September 2015. The Respondent’s records indicate that the Other Party has been receiving parenting payment continuously since 3 July 2015. The now revoked determination dated 1 August 2017 provided that the Applicant and the Other Party each had 50% care of the Children from 1 November 2015.
As at the time of the Applicant's claim on 23 May 2017, both he and the Other Party satisfied all parenting payment qualification requirements other than being declared principal carer. The Other Party and the Applicant are both eligible for parenting payment but for the operation of subsection 5(18) of the Act.
The Guide provides at Topic 1.1.P.416 as follows:
Principal carer – shared care
1 person provides greater degree of care
As [the Act] subsection 5(19) does not list any specific criteria that should or should not be taken into account in making a determination, all the circumstances of each case need to be considered. However, given that the principal carer determination is based upon majority care of a child, it will generally be appropriate to decide that the person providing the greater degree of care is the principal carer, EVEN if that person has not claimed income support.
Equal care
If the difference in the level of care provided by the 2 carers is less than 10%, care is considered to be shared equally.
In Moore and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 400 the Tribunal applied Guide at 1.1.P.416 and observed at paragraph [48]
… it is well established that the existence of an applicable government policy is a relevant factor for the Tribunal to take into account and an “unobjectionable” policy should generally be taken into account in the interests of consistency.
Further, in Irving and Secretary, Department of Social Services [2016] AATA 949 the Tribunal had regard to the equal care factors (contained in the Guide at 1.1. P.416) and took them into account in determining which carer was in most need of a favourable decision (at [34]). The Tribunal found that it was appropriate to consider departmental guidelines when undertaking the review (at [32]), having regard to Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461; [2000] FCA 513 at [18] per Gyles J.
The Tribunal has had regard to the Guide which provides that it is generally appropriate to determine that the person providing the greater degree of care is the principal carer even if they have not claimed income support. As stated above, the Tribunal has found that during the period 16 March 2017 to 15 November 2017 the Applicant had a greater percentage of the care of the Children being 59% compared to 41% by the Other Party. As the differential in the percentage of care between both parties exceeds 10% the Tribunal finds, applying the guidance in Topic 1.1.P.416 of the Guide, that they did not have equal share of the Children during the relevant period.
A decision that the Applicant was the principal carer of the Children from 23 May 2017 would require that the Other Party ceased to be the principal carer from that date and could not qualify for parenting payment during the relevant period. It would also result in a debt being raised for repayment by the Other Party. The effect of reversing the decision as to which parent was the principal carer would give rise to an entitlement for the Applicant to a parenting payment where he previously had no such entitlement.
The Guide provides at Topic 1.1.P.416 as follows
Change in existing shared care - different principal carer
To avoid a debt being created for payments received before the determination is made, if a person is already receiving income support as a principal carer after the commencement of shared care (or a decrease in the degree of shared care) and before a determination has been made under [the Act] subsection 5(19), consideration should be given to making different determinations for the period before and after the date of determination. This would only be necessary if the application of subsection 5(19) will result in a change of the determination as to who is the principal carer. In this situation, different determinations should be made if:
·the degree of shared care is approximately equal, or
·the current recipient has the lesser degree of care, and
o the recipient has not made a false statement and has complied with the notification requirements relating to shared care, and
o the other carer is not reliant on a favourable determination to be the principal carer for the period before the date of determination.
Having regard to the respective percentages of care of the Applicant and the Other Party during the relevant period, and following the policy in Topic 1.1.P.416 of the Guide, the Tribunal finds that as at 1 August 2017 the Applicant was the principal carer of the Children, and therefore he qualified for parenting payment.
To avoid a significant debt being raised for repayment by the Other Party of parenting payment she received during the relevant period, the Tribunal finds that the Other Party was the principal carer from 1 November 2015 until the date of the now revoked care determination (1 August 2017). The Tribunal makes this finding as it is satisfied that during the relevant period, the Other Party had a lesser degree of the care of the Children, she had not made a false statement, she complied with the notification requirements relating to shared care, and she is not reliant on a favourable determination to be the principal carer for the period before the date of determination as she was the recognised principal carer of the Children prior to 1 August 2017.
On the basis of the evidence before it and applying the Guidance in Topic 1.1.P.416 of the Guide, the Tribunal finds that the Applicant was the principal carer of the Children and entitled to parenting payment for the period 1 August 2017 to 15 November 2017. Prior to this date, the Other Party was the principal carer of the Children and entitled to the parenting payment paid to her with respect to the Children.
DECISION
The Reviewable Decision is set aside and substituted with the following determinations with respect to the care of the Children:
1)the Applicant’s percentage of care and that of the Other Party for the purposes of FTB during the period from 16 March 2017 to 15 November 2017 was 59% and 41% respectively; and
2)the Applicant was the principal carer of the Children and entitled to parenting payment for the period 1 August 2017 to 15 November 2017.
I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.........................[sgd]...............................................
Associate
Dated: 1 July 2020
Dates of hearing: 7 February 2020, 10 March 2020 Date final submissions received: 24 March 2020 Applicant: In person Solicitors for the Respondent: Dr Stephen Thompson, Services Australia Other Party: In person
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