He and Secretary, Department of Social Services (Social services second review)
[2020] AATA 1491
•27 May 2020
He and Secretary, Department of Social Services (Social services second review) [2020] AATA 1491 (27 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/5008
Re:Jian He
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndMin Zhou
JOINED PARTY
DECISION
Tribunal:Member D Mitchell
Date:27 May 2020
Place:Brisbane
The decision under review is varied to provide that during the period 22 January 2018 to 22 April 2018, the Applicant had 50% care of the Child.
............................[SGD]...................................
Member D Mitchell
Catchwords
FAMILY ASSISTANCE – family tax benefit – percentage of care – whether there was a change in the percentage of care – what is the correct percentage of care – decision under review varied.
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Cases
Confidential and Social Security Appeals Tribunal and Anor [2010] AATA 1
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159
Secondary Materials
Family Assistance Guide, 2 July 2018
REASONS FOR DECISION
Member D Mitchell
27 May 2020
INTRODUCTION
The Applicant, Mr Jian He (the Father), and the Other Party, Ms Min Zhou (the Mother), are the separated parents of a child born June 2013 (the Child).
The Father and Mother separated on 24 May 2016.[1]
[1] Exhibit 1, T Documents, T9, Details of your child’s care arrangement form, signed by the Applicant on 27 July 2016 and by the Other Party on 30 July 2016, page 100.
At all relevant times, up to 24 May 2016 the Father was in receipt of family tax benefit (FTB) in relation to the Child.[2]
[2] Exhibit 1, T Documents, T15, Decision and Notes of Authorised Review Officer, pages 132-140; Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, paragraph 56.
On 27 May 2016, the care of the Child was recorded as 0% to the Father and 100% to the Mother from 24 May 2016.[3]
[3] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, paragraph 9.
The Federal Circuit Court made interim consent parenting orders in relation to the Child on 12 July 2016.[4]
[4] Exhibit 1, T Documents, T4, Federal Circuit Court Orders, pages 66-70.
In accordance with the orders of the Federal Circuit Court, on 1 August 2016, the care of the Child was recorded as 14% to the Father from 12 July 2016.[5]
[5] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, paragraph 11.
On 1 July 2017, the Respondent received a letter from the Father confirming that he now had “roughly equal shared responsibility” of the Child.[6]
[6] Exhibit 1, T Documents, T11, Applicant’s statement regarding parenting time and responsibility (undated), pages 110-113.
On 24 July 2017, a decision was made that the Father provided 42% care of the Child from 1 July 2017.[7]
[7] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, paragraph 13.
On 15 August 2018, a decision was made that the Father provided 50% care of the Child from 23 April 2018.[8]
[8] Exhibit 1, T Documents, T12, Letter from Child Support to the Applicant – change to percentage of care (50% care of child from 23.04.2018), page 114.
On 6 May 2019, the Father contacted the Respondent to request a review of the FTB decisions made during the period 24 May 2016 to 22 April 2018 on the basis that he had 50% care of the Child.[9]
[9] Exhibit 1, T Documents, T20, Customer contact file notes for period 15 March 2016 to 16 May 2019, page 188.
On 9 May 2019, an authorised review officer (ARO) reviewed the decision, she:[10]
(a)affirmed the decision made on 27 May 2016 that the Father provided 0% care of the Child from 24 May 2016;
(b)affirmed the decision made on 1 August 2016 that the Father provided 14% care of the Child from 12 July 2016;
(c)
varied the decision made on 24 July 2017 and decided that the Father provided 28% care of the Child from 21 October 2016 and 42% care of the Child from
1 April 2017.
[10] Exhibit 1, T Documents, T15, Decisions and Notes of Authorised Review Officer, pages 132-140.
The Father sought a review of the ARO decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which on 1 August 2019 affirmed the decision of the ARO.[11]
[11] Exhibit 1, T Documents, T2, Decision of the SSCSD, pages 5-8.
Following this, the Father sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 15 August 2019.[12]
[12] Exhibit 1, T Documents, T1, Application for Review, pages 1-4.
On 12 March 2020, a Hearing was held for this application. At the Hearing, the Father and Mother were self-represented, appeared in person and gave evidence under affirmation. The Mother was assisted throughout the Hearing by an interpreter.
The Respondent submitted that they see their role in this matter as being limited to identifying the relevant facts in dispute and assisting the Tribunal in applying the appropriate legislative provisions.[13]
[13] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, paragraph 5.
THE LAW
The relevant legislation in relation to this matter is the A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the FA Admin Act).
Eligibility for FTB requires that a person has at least one FTB child and that their rate of FTB as worked out under the FA Act is greater than nil.[14]
[14] Section 21 of the FA Act.
Section 22 of the FA relevantly outlines when a child is an FTB child of another individual as follows:
22 When an individual is an FTB child of another individual
1An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
2An individual is an FTB child of the adult if:
(a)the individual is aged under 16; and
(b)the individual is in the adult’s care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
Legal responsibility for the individual
5The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; or
(b)under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)the individual is not in the care of anyone with the legal responsibility for the day to day care, welfare and development of the individual.
…
Percentage of care at least 35%
7If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
The term ‘percentage of care’ is defined in section 3 of the FA Act:
percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.
Section 23 of the FA Act outlines the effect of an FTB child ceasing to be in a person’s care without their consent and provides for an interim period to be put in place whereby that person continues to receive the FTB even though they do not have care of the FTB child during that period. Such an interim period however only applies to those cases where a care arrangement in relation to the FTB child has been put in place.[15]
[15] Sections 23, 35A and 35C of the FA Act.
The term ‘care arrangement’ is defined in section 3 of the FA Act:
care arrangement in relation to a child means:
(a)a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or
(b)a parenting plan for the child; or
(c)any of the following orders relating to the child:
(i)a family violence order within the meaning of section 4 of the Family Law Act 1975;
(ii)a parenting order within the meaning of section 64B of that Act;
(iii)a State child order registered in accordance with section 70D of that Act;
(iv)an overseas child order registered in accordance with section 70G of that Act.
If a person’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child of that person for any part of the period.[16]
[16] Section 25 of the FA Act.
Section 26 of the FA Act provides that where 2 people who are members of a couple would otherwise be eligible at the same time for FTB in respect of one or more FTB children only one person is eligible. In relation to which person receives the FTB consideration is given to whether 1 member of the couple is the primary carer of the child and whether they have made a written agreement nominating one of them as the member who can make a claim for payment of FTB in respect of the person.[17]
[17] Section 34 of the FA Act.
Section 59 of the FA Act provides:
59Shared care percentages where individual is FTB child of more than one person who are not members of the same couple
1An 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%.
2The individual’s shared care percentage for the FTB child is the relevant percentage specified in column 2 of the table.
Shared care percentages
Item
Column 1
Individual’s percentage of care
Column 2
Shared care percentage
1
35% to less than 48%
25% plus 2% for each percentage point over 35%
2
48% to 52%
50%
3
more than 52% to 65%
51% plus 2% for each percentage point over 53%
3If 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.
Any new care determination cannot be made unless the existing care determination is revoked. The provisions relating to the revoking of an existing care determination are contained in sections 35P to 35S of the FA Act. The relevant sections provide:
35P Determination must be revoked if there is a change to the individual's shared care percentage etc.
1If:
(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).
2Each 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%.
3The revocation of the determination takes effect at the end of:
(a)if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or
(b)otherwise—the day before the change of care day for the individual.
Section 35B of the FA Acts set out the requirements to determine the initial percentage of care in relation to a child in the care of a person and also to determine the percentage of care in relation to a child in the care of a person after revocation of an initial determination.
Relevantly, section 35B of the FA Act provides:
35B Determination of percentage of care—child is in the adult’s care
Initial determination
1If:
(a)the Secretary is satisfied that there has been, or will be, a pattern of care for a 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 more than one individual; and
(b)one of those individuals (the adult), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and
(c)the adult is not a partner of at least one of the other individuals referred to in paragraph (a);
the Secretary must determine the adult’s percentage of care for the child during the care period.
Determination after revocation
2If:
(a)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
3The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.
4Despite subsection (3), if section 35C, 35D or 35G applies in relation to the adult, the Secretary must determine the adult’s percentage of care under subsection (1) or (2) in accordance with that section.
Section 35J of the FA Act outlines that care may be determined with reference to the number of nights a child is in the care of an adult:
35J Working out actual care, and extent of care, of a child
1The actual care of a child that an individual has had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.
2The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.
3For the purposes of this section, a child cannot be in the care of more than one individual at the same time.
4This section does not limit section 35B, 35C, 35D or 35H.
In working out the actual care and extent of care of a child the Respondent referred the Tribunal to the Guides to Social Policy Law – Family Assistance Guide (the Guide) which is used by Centrelink officers to assist them in interpreting and applying the FA Act.[18]
[18] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, paragraphs 38-39
While the Tribunal is not bound by policy, to aid consistency, it will usually be taken into account and followed unless there are cogent reasons not to do so.[19]
[19] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.
The Guide at Chapter 2.1.1.50, provides guidance in relation to determining the percentage of care where 2 or more individuals share the care of an FTB child and there is disagreement over the percentage of care. It provides that the first step is to establish the pattern of care:
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 is the period over which care is assessed to determine the care percentages for each carer. 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 month 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.
’Pattern of care’ is not defined in the FA Act, however, was considered by the Tribunal in Parent A and Child Support Registrar [2013] AATA 562, at [33] which said:[20]
The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act [Child Support (Assessment) Act 1989 (Cth)]. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care.
[20] The references to the Child Support (Assessment) Act 1989 (Cth) are directly comparable to those in the FA Act.
The Guide at Chapter 2.1.1.45 provides guidance in relation to establishing a pattern of care was follows:
The pattern of care to be generally used in the shared care assessment is the actual care arrangements for the child. As much as possible, the pattern of care should be the pattern as agreed to by all parties who care for the child. Otherwise, Centrelink must carry out further investigation to determine the actual pattern of care.
…..
Where the carers do not agree on the actual pattern of care for the child, Centrelink must determine the actual pattern of care on the basis of available evidence. This applies even if a formal care arrangement exists. If the carers do not agree on the care percentage, each carer should be asked to provide additional evidence to support their declared arrangements in order for Centrelink to make a decision as to the actual pattern of care.
……
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.
……..
There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days in care.
It is noted that the Tribunal said that it is appropriate to have regard to the Department’s policy in contested cases of shared care in Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473:
... The respondent has submitted that it is appropriate to have regard to Centrelink's policy guidelines. From the inception of this Tribunal there has been judicial guidance concerning the need of the Tribunal to have regard to policy. Centrelink decisions about shared care are generally made with reference to the Family Assistance Guide 1999 ("the Guide"). In my view it is appropriate to have regard to this policy document in contested cases of shared care; the application of the policy encourages consistent decision-making.
The Tribunal uses a broad-brush approach when making decisions in relation to determining the pattern of care for FTB purposes. This approach was established in Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159 by Deputy President Hack SC who stated at [25]:
In approaching the task of determining the pattern of care I have considered the matter with a broad brush. The Guide, rightly in my view, accepts that no adjustment to FTB is warranted for minor variation sin case arrangements.
Where a person’s percentage of care is not a whole percentage but is greater than 50% the percentage is rounded up to the nearest whole percentage. Where the percentage is less than 50% the percentage is rounded down to the nearest whole percentage.[21]
[21] Section 35M of the FA Act.
ISSUES
The Father is seeking review of the recorded
care percentages of the parents in relation to the Child from 24 May 2016.[22] The Tribunal notes that a subsequent care determination was made on 15 August 2018 that the Father and Mother had 50% care of the Child from 23 April 2018. Decisions made in relation to care periods beyond
22 April 2018 are not before this Tribunal. As such the Tribunal is limited to considering the care arrangements as they related to the Child between 24 May 2016 and
22 April 2018.
[22] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, paragraphs 7-22.
The issue for the Tribunal to consider in this matter is, what was the correct shared care percentages in relation to the Child during the period between 24 May 2016 and
22 April 2018.EVIDENCE
The interim consent parenting orders made by the Federal Circuit Court on 12 July 2016 provided that:[23]
[23] Exhibit 1, T Documents, T4, Federal Circuit Court Orders, pages 66-70.
a.The Father and Mother shall have shared parental responsibility in relation to all major long term issues in respect of the Child.
b.Each parent shall have responsibility for the daily decision about the day to day care, welfare and development of the Child while in his or her care.
c.The Child live with the Mother.
d.The Child spend time with the Father at all times as can be agreed and failing agreement as follows:
a.Each Tuesday and Thursday after day-care between 5.00 pm and 8.00pm; and
b.Each Friday from after day-care at 5.00pm and 8.00pm Saturday.
e.The Child will attend child care 4 days a week.
Consent parenting orders dated 21 October 2016 provided that the Father and Mother agreed that:[24]
[24] Exhibit 1, T Documents, T5, Family Court of Australia Consent Orders (filed 21 October 2016) and Registrar’s Response (dated 26 October 2016).
(a)Parental responsibility for the Child remained unchanged.
(b)In principal the Father and Mother agreed they will adopt an equal shared care parenting arrangement around the time when the Child commences school.
(c)The Father and Mother agreed that the Court orders dated 12 July 2016 are extended to allow the Child to commence spending two nights per week with the Father forthwith and that if the Child was coping well with that arrangement, a third night would be trialled after about six months.
(d)The Child lives with the Mother as follows:
(i)Each Tuesday from 8.00pm to 5.00pm Thursday; and
(ii)Each Thursday from 8.00pm to 8.00am Friday before 1st April 2017; and/or
(iii)Each Thursday from 8.00pm to 8.00am Friday until the Child attends a third night with the Father after 1st April 2017 if the Child is coping well; and
(iv)Each Sunday from 10.00am to 8.00am Tuesday; and
(v)Every second week when the Child starts commencing school.
(e)The Child lives with the Father as follows:
(i)Each Tuesday from 8.00am to 8.00pm; and
(ii)Each Thursday from 5.00pm to 8.00pm before 1st April 2017; and
(iii)Each Friday from 8.00am to 10.00am Saturday before 1st April 2017; and/or
(iv)Each Thursday from 5.00pm to 10.00am Sunday after 1st April 2017 if the Child is copping well;
(v)Every second week when the Child starts school.
(f)The Child will spend time at child care between 8.00am and 5.00pm each Tuesday, Wednesday, Thursday and Friday before the Child commences attending school.
(g)Arrangements were put in place for school holidays and special occasions.
The Father confirmed at Hearing that these consent parenting orders were drafted after he and the Mother had attended the Court ordered Child Inclusive Conference[25] and were not formalised by the Court. Further these consent parenting orders were updated due to the Registrar’s notice that they could not be made in their filed form, an updated copy of these orders were provided to the Tribunal.[26] The care arrangements were consistent with those set out in the consent parenting orders dated 21 October 2016. The Father confirmed that these orders had also not been formalised by the Court.
[25] Exhibit 1, T Documents, T6, Child Inclusive Conference appointment letter enclosing report of Margaret Egan, Family Consultant, pages 81-83.
[26] Exhibit 1, T Documents, T7, Parenting Orders, received by the Respondent on 31 May 2017.
Both the Father and Mother at the Hearing confirmed that the care arrangements relating to the Child set out in the interim consent parenting orders and subsequent draft consent parenting orders were generally followed.
In an email provided by the Applicant he outlined the care he has provided for the Child since the Child commencement school on 22 January 2018. There is no dispute that the Child did commence school on 22 January 2018. The Father’s evidence shows that the arrangements of equal care agreed to with the Mother in the draft consent parenting orders were being followed.[27]
[27] Exhibit 1, T Documents, T14, Emails from the Applicant to the Child Support Agency during the period 23 July 2018 to 22 November 2018 – dates of care, pages 125-126.
At Hearing the Mother said that the 50% care arrangement did not commence as soon as the Child started school but rather in April 2018, as she could not bear for the Child to be away from her for so long at one time. However, the Mother subsequently contradicted this when she told the Tribunal that the dates of care provided by the Father for January to April 2018 were roughly consistent.
At Hearing the Father told the Tribunal that the FTB percentage of care decisions were important to him in relation to the child care benefit and child care rebate as it impacts upon his entitlement to them.
The Father, in both his written submissions[28] and at Hearing, provided background details around what has occurred between him and the Mother since their separation. This information provided context, however, does not need to be reiterated in this decision. Despite any issues between the Father and Mother, what was evident at all times was that they were primarily concerned focused on what was in the best interest of the Child.
[28] Exhibit 1, T Document, T11; Exhibit 2, Applicant’s statement regarding parenting time and responsibility (undated); Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions received by the Tribunal on 23 January 2020; Exhibit 3, Applicant’s written submissions and supporting documents received by the Tribunal on 2 December 2019.
The Father submitted that:[29]
(a)The percentage of care of the Child should have been 50% each from the date of separation as that would reflect the parent’s intentions.
(b)The Mother took the Child away from their home on 24 May 2016 and denied him access to the Child until 12 July 2016, some 50 days. He applied to the Federal Circuit Court for a parenting order on 25 May 2016.
(c)The initial care of the Child provided for nights to be with the Mother as she was more experienced with a small child, he suffered from sleep disorder and was also working nights as an Uber driver.
(d)The Child had language problems and needed to go to child care to assist with the development of his language skills.
(e)He considers that equal care of the Child was agreed to at the Child Inclusive Conference and was reflected in the consent parenting orders signed and dated 21 October 2016.
[29] In both his written submissions as outlined in footnote 27 and at Hearing.
The Father contended in his Statement of Facts, Issues and Contentions, received by the Tribunal on 23 January 2020, that:[30]
[30] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions received by the Tribunal on 23 January 2020, paragraphs 55-68. Noting the dates referred to in paragraph 48 reflect the dates provided by the Applicant and those provided at paragraph 48(k) are more reflective of the correct care periods.
(a)An FTB child existed at all times.
(b)He was paid the FTB before 24 May 2016 and that means he had 50% care or at least 48% care at that time.
(c)
The Mother took the Child away without his consent between 25 May 2016 and
12 July 2016 and as he immediately took action to apply for a parenting order it created a disputed care arrangement and an interim period should apply so that his percentage of care of the Child during that period was 50%.
(d)
That care change events happened after 12 July 2016 due to the interim consent parenting orders made on 12 July 2016, consent parenting orders were made on
21 October 2016, temporary domestic violence protection orders were made and revoked and he asked the Child Support Agency to make a determination on the care percentage after 22 January 2018.
(e)He has more than the percentage care of the Child than recorded by the Respondent based on the hours or actual hours he cared for the Child.
(f)The pattern of care between 12 July 2016 and 22 January 2018 would be more fairly reflected if based on hours as he:
(i)Has a sleep disorder that made the over-night care more difficult.
(ii)Had the time to look after the Child during the day time as he was self-employed and working at night as an Uber driver.
(iii)Lived at the same property as the Child after 18 July 2016.
(iv)Clause 1 of the interim consent parenting orders and draft consent orders has the wording ‘equal share’.
(v)Does have more than 48 hours care on the temporary parenting order and more than 72 hours care on the draft consent orders.
(vi)Paid more money in relation to the Child then he had to.
(vii)He was not getting the parenting payment.
(g)
The total hours that he is entitled to care of the Child between 12 July 2016 and
21 October 2016 are 77 hours per week, being 41% care. This takes into consideration the hours set out in the interim consent parenting orders and the hours he paid for child care.
(h)The total hours that he is entitled to care of the Child between 21 October 2016 and 1 April 2017 are 65 hours per week, being 38% care. This takes into consider the hours set out in the draft consent parenting orders and the hours he paid for child care.
(i)
The total hours he is entitled to care of the Child between 1 April 2017 and
22 January 2018 are 77 hours or 45% care. This takes into consider the hours set out in the draft consent parenting orders and the hours he paid for child care.
(j)The total hour that he is entitled to care of the Child since 22 January 2018 is 50% as the draft consent parenting orders provides for 1 week on, 1 week off. He submitted an application to the Child Support Agency on 13 March 2018 in relation to his care from 22 January 2018, so he took action and the 14 weeks of interim period should apply.
(k)His care percent history in relation to the Child is:
(i)50% before 25 May 2016.
(ii)50% between 25 May 2016 and 11 July 2016.
(iii)41% between 12 July 2016 and 20 October 2016.
(iv)38% between 21 October 2016 and 31 March 2017.
(v)45% between 1 April 2017 and 21 January 2018.
(vi)50% after 22 January 2018.
The Tribunal notes that in a previous statement provided to the Respondent on
1 July 2017, the Father provided different contentions in relation to the appropriate level of care that should be assigned to him in relation to the Child. In this statement the Father was largely seeking ‘roughly equal shared care time and responsibility all the time.’[31]
[31] Exhibit 1, T Documents, T11, Applicant’s statement regarding parenting time and responsibility (undated), pages 110-113.
At Hearing the Mother told the Tribunal that:
(a)The shared care of the Child was progressive.
(b)She agrees that the percentage of care should be based on the nights of care provided.
(c)She and the Father helped each other in relation to providing care to the Child when they needed to.
(d)The interim consent parenting orders and subsequent draft consent orders were generally followed.
The Respondent contended that in the circumstances of the current matter the care of the Child ought to be calculated with reference to the number of nights spent in the care of the Father and Mother.[32]
[32] Exhibit 4, Secretary’s Statement of Facts, Issues and Contentions, paragraph 42.
CONSIDERATION
Based on the evidence before the Tribunal it is clear that the Child was a FTB child for the purposes of section 22 of the FA Act at all material times and that up until
12 July 2016 there was no care arrangement in place in relation to the Child.Appropriately prior to the separation of the Father and Mother on 24 May 2016 as members of a couple only one parent was in receipt of FTB. Evidently the Father was prior to 24 May 2016 receiving the FTB in relation to the Child pursuant to section 26 of the FA Act.
It is not disputed that during the period 24 May 2016 to 12 July 2016 the Child ceased to be in the care of the Father. While the Tribunal notes the Father’s contentions that the Child was removed from his care without his consent and as such he believes that he should have remained eligible for FTB during this period pursuant to the interim period provisions of the FA Act, in the absence of a care arrangement these provisions do not apply to the Father’s circumstances. Verbal agreements or what was previously family norms do not constitute care arrangements for the purpose of the FA Act.[33]
[33] See the section 3 of the FA Act definition of ‘care arrangement’.
Consequently, the Tribunal considers that the decision that the Father provided 0% care of the Child from 25 May 2016 was correct.
The care arrangements in relation to the Child were formalised by the Father and Mother and expressed in writing in the form of an interim consent parenting orders made by the Federal Circuit Court on 12 July 2016 and draft consent parenting orders signed by the Father and Mother initially on 21 October 2016. The evidence before the Tribunal from both the Father and Mother is that largely the arrangements set out in these orders were followed.
The Father contended that the actual care of the Child should be calculated by considering the hours of care provided rather than counting the nights in care. To that end the Father contended that the time the Child spent at day care during the period between 12 July 2016 until when the Child commenced school should be attributed to the Child actually being in his care when he was responsible for paying the child care fees.
The general proposition set out in section 35J of the FA Act, the Guide and established case law is that actual care is calculated taking into consideration nights in care unless there is a good reason to depart from this approach and consider the actual care provided in relation to hours of care.
The Tribunal does not accept the Father’s contentions that as he paid for day care that means he was the parent caring for the Child during the hours of care being provided by the day care provider. At all material times that the care arrangements were in place, the responsibility for care of the Child on the days the Child attended day care was placed on the parent with whom the Child would also spend the night. This was regardless of whether the Father was able to spend time with the Child before or after day care on the days that the Child lived with the Mother (the Mother was providing overnight care). Provisions were made in the care arrangements for situations where the Child was unwell and unable to attend day care.
There is no evidence before the Tribunal that indicates that the general proposition should not be followed, or that there would be a material injustice or unfairness should the Father’s care of the Child be calculated considering the nights in care. The Tribunal considers that the actual care of the Child provided during the care periods under consideration should be calculated based on the nights in care approach.
The pattern of care of the Child during the period 12 July 2016 to 22 April 2018 have generally been agreed by the Father and Mother, as being consistent with the care arrangements in place.
The percentages of actual care for the Child being sought by the Father, as outlined above, are contradictory. His claims vary from a position that at all times the care of the Child should be considered to be equal, and drift to him claiming different percentages for the various changes in the care of the Child as outlined by the care arrangements in place for the Child. At one point the Father contends that the intention of the Father and Mother was that they would share equal care of the Child and this was demonstrated in the care arrangements, as the orders commence by providing the Father and Mother with shared parental responsibility in relation to all major long term issues in respect of the Child. This of itself does not reflect the intention in relation to the actual provision of day to day care for the Child and the Tribunal considers that the care arrangements make that clear by providing a tiered approach to the sharing of care for the Child.
In relation to the period from when the Child commenced school on 22 January 2018 reference was made by the Father to an interim period applying, however his submitted evidence outlined the nights of care that he said he provided for the Child after
22 January 2018. The Mother made reference to the week on/week off arrangement not commencing until April 2018, however, also gave evidence that the dates submitted by the Father were generally correct and that overall the care arrangements were followed.It appears to the Tribunal that the Father and Mother, acting in the best interest of the Child, may have adopted a flexible approach to nights of care for the Child during the first few months of the Child commencing school. As such, using the broad brush approach and the premise that where care arrangements are in place they should be applied unless actual care provided is substantially different, the Tribunal does not consider that in this instance, there is evidence before it to establish that an interim period of care relating to the period between 22 January 2018 and 22 April 2018[34] should be applied, rather than determining the percentage of care of the Child for that period pursuant to section 35B of the FA Act.
[34] The Tribunal notes that a new care determination was made on 15 August 2018 with application from 23 April 2018. Review of that decision is not before this Tribunal and as such the period being considered by this Tribunal ends on 22 April 2018.
The Tribunal considers that based on the evidence before it, there was no change in the determined shared care percentages of the Child during the periods between
12 July 2016 and 21 January 2018 as provided for in the reviewable decision.From the time that the Child commenced school the care arrangements for the Child provided that he would spend week on/week off which the Father and Mother, as outlined above, the Tribunal considers based on the evidence before it there is no reason to deviate from this arrangement being considered to reflect the actual level of care provided by the Father and Mother for the Child from 22 January 2018.
Consequently, the Tribunal considers for the purposes of section 35P of the FA Act that a change of care from that reflected in the relevant section 35B of the FA Act determination occurred from 22 January 2018. The Tribunal determines that pursuant to section 35B(2) of the FA Act that for the period between 22 January 2018 until a new determination came into force from 23 April 2018 the Father provided 50% care of the Child.
DECISION
The Tribunal finds that the correct percentage of care provided by the Father in relation to the Child during the period between 24 May 2016 and 22 April 2018 is as follows:
(a)the Father provided 0% care of the child from 24 May 2016;
(b)the Father provided 14% care of the child from 12 July 2016;
(c)the Father provided 28% care of the child from 21 October 2016
(d)and 42% care of the child from 1 April 2017.
(e)provided 50% care of the child from 22 January 2018.
Accordingly, the decision under review is varied to the extent that that the percentage of care provided for the Child is 50% for the Father and 50% for the Mother from
22 January 2018.
I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
..........................[SGD].........................
Associate
Dated: 27 March 2020
Date(s) of hearing: 12 March 2020 Applicant: In person Solicitors for the Respondent: Jasmine Forsyth Other Party: In person
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