He v Secretary, Department of Social Services
[2021] FCCA 2035
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
He v Secretary, Department of Social Services [2021] FCCA 2035
File number(s): BRG 558 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 27 August 2021 Catchwords: ADMINISTRATIVE LAW – Social Security – Appeal from decision of the Administrative Appeals Tribunal – decision of Administrative Appeals Tribunal affirmed decision of Social Services and Child Support Division of the Tribunal – Social Services and Child Support Division affirmed decision of Department of Human Services. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s. 44(1)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth), ss. 3, 17, 22, 22(2), 22(2)(d), 22(5)(a), 22(5)(b), 22(3), 22(4), 23, 25, 26, 35A, 35A(1)(a)(i), 35(1)(b), 35(1)(c), 35(1)(d), 35B, 35C, 35G 35J, 35P, 59
Child Support (Assessment) Act 1989 (Cth), s. 4(1)
Family Law Act 1975 (Cth), ss. 4, 61B, 61C, 61DA, 63C, 64B, 65DAA, 65DAA(1), 65DAA(2), 65DAC
Federal Circuit Court Rules 2001 (Cth), Sch. 1
Marriage Act 1961 (Cth) 50(1)(a), 50(1)(b), 50(4)(a)(i)
Cases cited: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Haritos v Commissioner of Taxation (2015) 233 FCR 315
He and Secretary, Department of Social Services (Social services second review) [2020] AATA 1491
Sharma v LGSS Pty Ltd [2018] FCA 167
Number of paragraphs: 77 Date of last submission/s: 17 March 2021 Date of hearing: 17 March 2021 Place: Brisbane The Applicant appeared in person Solicitors for the Respondent: Mills Oakley The Second Respondent appeared in person ORDERS
BRG 558 of 2020 BETWEEN: JIAN HE
Applicant
AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
First Respondent
MIN ZHOU
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The amended notice of appeal filed on 9 October, 2020 is dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the amended notice of appeal fixed in the sum of $7,200.
REASONS FOR JUDGMENT
JUDGE JARRETT:
In this application, Jian He challenges a decision of the Administrative Appeals Tribunal made on 27 May, 2020: He and Secretary, Department of Social Services (Social services second review) [2020] AATA 1491. The decision concerned the percentage of care of a child born to the applicant and the second respondent as between them for family tax benefit purposes.
BACKGROUND
A chronology is helpful and an accurate chronology is set out in the written submissions filed on behalf the first respondent.
The applicant and second respondent are the separated parents of Alex who was born 27 June, 2013. On 24 May, 2016 the applicant and second respondent separated. At all relevant times, up to 24 May, 2016 the applicant was in receipt of family tax benefit in relation to Alex.
On 27 May, 2016, the first respondent (via his delegate) made a determination about the percentage of care for family tax benefit purposes in respect of Alex and found that the applicant had 0% care of Alex with effect from the date of the parties’ separation.
On 12 July, 2016 the Federal Circuit Court made interim orders for the parties to have equal shared parental responsibility for Alex, that he live with the second respondent and that he spend time with the applicant, his father.
On 1 August, 2016 the first respondent (by his delegate) made a determination about the percentage of care for Alex for family tax benefit purposes in accordance with the parenting orders made on 12 July. The determination was that the applicant had 14% care of Alex with effect from 12 July, 2016, which was the date of the parenting orders.
On 24 July, 2017 the first respondent made another determination about the percentage of care for Alex for family tax benefit purposes and found the applicant had 42% care of Alex with effect from 1 July, 2017. Although no further parenting orders have been made in the Federal Circuit Court of Australia, Alex’s parents reached agreements about his care, changing the existing interim orders. Those changes were taken into account when re-determining the care percentages.
On 15 August, 2018 the first respondent made another determination about the percentage of care for Alex for family tax benefit purposes and found that the applicant had 50% care of Alex with effect from 23 April, 2018.
On 6 May, 2019 the applicant sought internal review of the first three decisions made on 27 May, 2016, 1 August, 2016 and 24 July, 2017.
On 9 May, 2019, an authorised review officer decided that:
(a)the decision made on 27 May, 2016 be affirmed;
(b)the decision made on 1 August, 2016 be varied and the applicant found to have 28% care of Alex from 12 July, 2016; and
(c)the decision made on 24 July, 2017 be varied and the applicant found to have 42% care of Alex with effect from 1 April, 2017.
Dissatisfied with that result, the applicant lodged an application for first review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal.
On 1 August, 2019 the Tribunal affirmed the decision. However, still dissatisfied, on 15 August, 2019 the applicant lodged an application for a second review in the General Division of the Administrative Appeals Tribunal.
On 27 May, 2020 the Tribunal delivered its reasons and orders on that review. It varied the decision under review such that:
(a)the decision made on 27 May, 2016 was affirmed;
(b)the decision made on 1 August, 2016 was varied and the applicant was found to have:
(i)14% care of Alex with effect from 12 July, 2016; and
(ii)28% care of Alex with effect from 21 October, 2016; and
(c)the decision made on 24 July, 2017 was varied and the applicant found to have:
(i)42% care of Alex with effect from 1 April, 2017; and
(ii)50% care of Alex with effect from 22 January, 2018.
On 2 July, 2020 the applicant filed this appeal in the Federal Court of Australia. An amended notice of appeal was filed on 9 October, 2020. On 14 October, 2020 the appeal was transferred to this Court for hearing and determination.
THE CONTEXT OF THE PRESENT APPLICATION
By this the applicant appeals pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), from a second review decision of the Tribunal. An appeal made pursuant to s.44(1) of the Administrative Appeals Tribunal Act is on a question of law. It is an exercise of the Court’s original jurisdiction rather than an appeal proper. In the context of s.44(1) of the AAT Act, it is the question of law that is the subject matter of the appeal: Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [84] – [90]. In that case the Full Court of the Federal Court of Australia (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) said:
62. We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows:
(1) The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.
(2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.
(3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.
(4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.
(5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.
(6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.
(7) A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.
(8) The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.
(9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.
(10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.
…
94. In our opinion, the issue must be approached as one of substance. In cases of doubt, the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law.
The Federal Court authorities have been decided in the context of the rules of that court which provide for a particular form to be utilised in such an appeal. Presently that is Form 75. It requires the specification of the question or questions of law that are the subject of the appeal. It provides thereafter for specification of the grounds relied on in the application. These are two different matters and their relationship was addressed by Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 where, speaking of the former Federal Court Rules, they observed at [18] (my emphasis):
In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.
Although Birdseye was overruled in Haritos (as I have set out above), the ratio in Haritos says nothing about the emphasised sentence in the passage from Birdseye above. It continues to be applied. In Sharma v LGSS Pty Ltd [2018] FCA 167, Gleeson J observed at [30]:
The questions of law are to be stated separately from the grounds relied upon in support of the orders sought in the notice of appeal: P v Child Support Registrar [2013] FCA 1312 at [50] (“P”). In P at [51], Wigney J said:
The specification of the grounds relied upon in support of the orders sought should expose the links between the question of law, the circumstances of the particular case and the orders sought on the appeal: Birdseye [2003] FCAFC 232 at [17]-[18]. It is not legitimate to call in aid the grounds specified in the notice to read down the questions of law stated in the notice to what are truly questions of law. If the order sought is that the decision of the Tribunal be set aside, the grounds in support of that order should assume the resolution of the specified question of law in favour of the applicant and indicate, in a summary way, why that resolution requires the decision of the Tribunal to be set aside: Lambroglou at 524. Grounds drawn up in that way could not elucidate a question of law.
Thus, the subject matter of the review is the question or questions of law identified by the applicant for review and which emerges from the processes and reasons of the administrative decision maker. The review is confined to the questions of law so identified. The question or questions identified in the review application need not be “pure” questions of law, but might be seen as mixed questions of law and fact. But a question of law must be involved. The statement of the question of law is important, but a failure to so state the questions in the application for review is not fatal. It is the substance of the application which is important. Observance of these matters ensures that the merits of a case are dealt with, not by the Court, but by the Tribunal.
THE FAMILY TAX BENEFIT SCHEME
A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) set up the family tax benefit scheme. Eligibility for family tax benefit requires that a person has at least one FTB child and that their rate of family tax benefit as worked out under the Family Assistance Act is greater than nil.
Section 22 of the Family Assistance Act provides for when a child is an FTB child of another individual:
22 When an individual is an FTB child of another individual
1.An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
2.An 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
5.The 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%
7.If 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 s.3 of the Family Assistance 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 Family Assistance 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 family tax benefit 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.
The term care arrangement is defined in s.3 of the Family Assistance 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: s.25 of the Family Assistance Act.
Section 26 of the Family Assistance Act provides that where 2 people who are members of a couple would otherwise be eligible at the same time for family tax benefit in respect of one or more FTB children only one person is eligible. In relation to which person receives the family tax benefit 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 family tax benefit in respect of the person: s.17 of the Family Assistance Act.
A determination of an individual’s percentage of care for a child is made under ss.35A (Determination of percentage of care—child is not in the adult’s care) or 35B (Determination of percentage of care—child is in the adult’s care) of the Family Assistance Act. Section 35A(1) has particular relevance in this case and so I will set out:
35A Determination of percentage of care—child is not in the adult’s care
Initial determination
(1) If:
(a) the Secretary is satisfied that an individual (the adult) has no care of a child but that:
(i) the child is an FTB child of the adult under section 23; or
(ii) the child would, under subsection 22(2), (3) or (4), be an FTB child of the adult if there had been, or were to be, a pattern of care for the child over a period (the care period) under a care arrangement relating to the child; and
(b) 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 other individual who has a pattern of care for the child such that the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the other individual or individuals; and
(d) section 35C or 35G applies in relation to the adult;
the Secretary must determine the adult’s percentage of care for the child during the care period in accordance with that section.
Section 35C applies to a parent where:
(a)there is a care arrangement in place in relation to a child; and
(b)the first respondent is satisfied that the actual care of the child that the parent has had or will have during a care period does not comply with the extent of care of the child that the parent should have had or is to have under the care arrangement during the care period; and
(c)the parent who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
Where s.35C applies, the first respondent must determine for the purposes of s.35A or 35B two percentages of care in relation to the adult.
Section 35J provides that the actual care of a child that an individual has had, or will have or 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 according to the number of nights that the child was, will be, ought to have been or is to be in the care of that individual.
Complications arise where parents of a child are separated. 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%.
2.The 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
Column 2
Individual’s percentage of care
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%
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.
THE DECISION THE SUBJECT OF THIS APPEAL
In its reasons for decision dated 27 May, 2020 the Tribunal set out the statutory framework that I have just traversed as well as some other provisions of the Family Assistance Act. The Tribunal recorded that in working out the actual care and extent of care of a child for the purposes of the Act, reference could be had to a publication called Guides to Social Policy Law – Family Assistance Guide which is used by Centrelink officers (as they were then known) to assist them in interpreting and applying the Family Assistance Act. The Tribunal noted that while it was 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.
The Tribunal then set out the relevant sections of the Guide concerning the phrase pattern of care. That was relevant to the determination of the percentage of care under ss. 35A or 35B of the Act.
The Tribunal recorded that the issue before it was the correct shared care percentages in relation to Alex during the period between 24 May, 2016 and 22 April, 2018.
The Tribunal set out, at length, the oral and documentary evidence and submissions of the parties. It found that Alex was an FTB child for the purposes of s.22 of the Family Assistance Act at all material times. It recorded that prior to the parties’ separation only one parent was entitled to receive family tax benefit and that the applicant had been receiving that benefit.
After recording that there was no dispute that during the period 24 May, 2016 to 12 July, 2016 Alex ceased to be in the applicant’s care, the Tribunal considered the applicant’s argument that Alex was removed from his care without his consent and as such he believed that he should have remained eligible for family tax benefit during this period pursuant to the interim period provisions of the Family Assistance Act. However, the Tribunal determined that against him. In essence, the applicant’s argument to the Tribunal was that s.23 of the Family Assistance Act applied. For that to be so, the following matters needed to be established:
(a)Alex was an FTB child of the applicant under s.22(2) or (3);
(b)the circumstances surrounding legal responsibility for the care of Alex were those mentioned in s.22(5)(a) or (b); and
(c)an event occurs in relation to Alex without the applicant’s consent that prevented Alex being in the applicant’s care; and
(d)the applicant took reasonable steps to have Alex again in his care.
Each of these elements were established. Alex was an FTB child of the applicant for the purposes of s.22(2). The applicant was legally responsible, together with the second respondent, for the day-to-day care, welfare and development of Alex because he had parental responsibility for Alex by reason of s.61C of the Family Law Act 1975 (Cth). An event occurred in relation to Alex without the applicant’s consent that prevented Alex from being in the applicant’s care. That event was the separation of Alex’s parents and the refusal by the second respondent to permit Alex to spend any time with the applicant. The applicant took reasonable steps to have Alex again in his care by commencing proceedings in the Federal Circuit Court of Australia. Thus, s.23 of the Family Assistance Act was engaged. That meant that Alex was an FTB child of the applicant for the period between the parties separation and the making of the order in the Federal Circuit Court of Australia and, by operation of s.22(4) of the Family Assistance Act, Alex could not be an FTB child of any other individual.
The percentage of care to be worked out for the interim period between the date of separation and 12 July, 2016 was to be determined according to s.35A of the Family Assistance Act if that section applied. It did not apply because although s.35A(1)(a)(i), (b) and (c) might have been satisfied by the applicant, s.35A(1)(d) was not satisfied. Neither of ss.35C or 35G applied to him. Section 35C did not apply to the applicant because there was no care arrangement that applied to Alex. The Tribunal concluded that for this period the applicant’s percentage of care was 0%.
It is the Tribunal’s determination that there was no care arrangement that applied to Alex for this period that forms the focus of part of the applicant’s appeal.
As to the next period (covered by the decision dated 1 August, 2016) the Tribunal noted that the care arrangements for Alex were formalised by the applicant and the second respondent in writing in the form of interim consent parenting orders made by the Federal Circuit Court on 12 July, 2016. The parties reached a further agreement about parenting orders for Alex in October, 2016 and the applicant and the second respondent signed written terms to that effect on 21 October, 2016. Those terms were never formally reduced to a consent order made by the Court. The Tribunal considered that the evidence before it established that largely the arrangements set out in the initial orders and the parties subsequent agreement were followed.
It recorded the applicant’s argument that the actual care of Alex rendered by the parties should be calculated by considering the hours of care provided rather than counting the nights in care. The applicant contended before the Tribunal that the time Alex spent at day care during the period between 12 July, 2016 until when he commenced school should be attributed to Alex actually being in his care because he was responsible for paying the child care fees.
After reiterating that the general proposition as set out in s.35J of the Family Assistance Act, the Guide and established case law was that actual care is calculated taking into consideration nights in care unless there is good reason to depart from this approach and considering the actual care hours provided to Alex, the Tribunal determined this argument against the applicant. In doing so it considered that there was no evidence before it that indicated that the general proposition should not be followed or that there would be a material injustice or unfairness should the applicant’s care be calculated using the nights in care approach.
The Tribunal went on to find that the pattern of care for Alex during the period 12 July, 2016 to 22 April, 2018 had been generally agreed by the applicant and second respondent and was consistent with the actual care arrangements in place between them for Alex.
The Tribunal was satisfied that from the time Alex commenced school, his care arrangements provided that he would spend alternating weeks with the applicant and second respondent. The Tribunal considered that there was no reason to deviate from this arrangement being considered to reflect the actual level of care provided by the applicant and second respondent from 22 January, 2018. Thus, the Tribunal determined that pursuant to ss.35P and 35B of the Family Assistance Act, the applicant and second respondent each provided 50% care of Alex from 22 January, 2018.
Accordingly, the Tribunal varied the decision under review in accordance with that finding.
THE APPEAL
As the first respondent submits, the applicant’s case is somewhat difficult to discern. He has represented himself in these proceedings and English is not his first language. That has presented some difficulty in understanding the written grounds of the appeal and the written submissions belatedly delivered by him. His oral submissions helpfully elucidated some of the arguments he wished to make.
Care arrangement
Both the applicant and the respondent group what are described in the amended notice of appeal as questions of law 1, 2, 3 and 4 together. That seems appropriate because they concern the phrase care arrangement as defined in the Family Assistance Act. The applicant contends that the Tribunal was in error when it concluded that for the period between the applicant and the second respondent’s separation on 26 May, 2016 and 12 July, 2016 when an interim parenting order was made, the applicant’s care percentage was 0%. He contends that there was a care arrangement in place and his percentage of care should have been assessed at 50%. He says that the care arrangement was constituted by one or all of three separate matters namely:
(a)the parties’ Certificate of Marriage (described by the applicant as Marriage Certificate of Queensland);
(b)the signed “Centrelink CCB/CCR application form” as “Details of your child’s care arrangement”; and
(c)the incidence of parental responsibility cast on the applicant and the second respondent by the Family Law Act 1975 (Cth).
However, none of these arguments can be accepted.
There is no Marriage Certificate of Queensland as contended for by the applicant. Certificates of a marriage must be prepared as directed by ss.50(1)(a) and 50(1)(b) of the Marriage Act 1961 (Cth) where an authorised marriage celebrant solemnises a marriage. One of the official certificates prepared as directed by s.50(1)(b) of the Act must be sent to the appropriate registering authority of a State or Territory ascertained in accordance with the regulations: s.50(4)(a)(i) of the Marriage Act. The state registration body might issue an extract of the information contained a register of marriages, certified by the Registrar of Births, Deaths and Marriages to be a correct extract. None of these documents, however, meets the description of a care arrangement for the purposes of s.3 of the Family Assistance Act. It is not a written agreement between the parties, but rather a certificate of the solemnisation of their marriage. Nor does it relate to the care of a child. It is not an order. Nor is it a parenting plan for the purposes of s.63C of the Family Law Act. The definition of parenting plan in the Family Law Act is incorporated by reason of the definition of that term in s.3 of the Family Assistance Act.
The second document to which the applicant refers is not a written agreement, parenting plan or an order for the purposes of the definition of care arrangement in the Family Assistance Act. To the extent that such a document was before the Tribunal, the Tribunal was correct not to treat it as a care agreement. The applicant argues that the CCB/CCR payments needed to be claimed using a form that was signed by both parties. He argues that the payment had been granted to him since 15 March, 2016 and it was granted to him on the basis that he was either the primary carer for Alex or there was a written agreement between the parties nominating one of them is the person who could make a claim for family tax benefit. However, that form (and to the extent there was more than one of them those forms) predated the parties’ separation. It is uncontroversial that the care arrangements for Alex changed upon separation such that he lived full-time in the second respondent’s care and spent no time in the physical care of the applicant. Whatever the case might have been before the parties separated, their separation introduced a new factual substratum which necessarily affected any arrangements, including arrangements for family tax benefit, that had gone before. There is nothing to suggest that any agreement that might be constituted by the signing of the relevant forms was intended by either party to govern their arrangements and the arrangements for the payment fringe tax benefit upon the separation. But in my view, the signing of such forms does not constitute a written agreement for the purposes of the definition of care arrangement in any event.
The incidence of parental responsibility of children is dealt with in s.61C of the Family Law Act which provides that each of the parents of a child who is not 18 has parental responsibility for the child. Section 61B of the Act defines the phrase parental responsibility in relation to a child as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Further, as the applicant points out, the Child Support (Assessment) Act 1989 (Cth) in s.4(1) provides that the principal object of that Act is to ensure the children receive a proper level of financial support from their parents.
However reference to these sections does not assist the applicant’s argument. Neither of those legislative provisions are a written agreement between Alex’s parents. Nor do they constitute a parenting plan as that term is defined in the Family Law Act. They are simply not an order of the type described in the definition of care arrangement for the purposes of the Family Assistance Act.
The Tribunal was correct to conclude that for the period between the parties separation on 12 July, 2016 there was no care arrangement in place for the purposes of the Family Assistance Act. The consequence of that conclusion was expressed at [54] of the Tribunal’s reasons as follows:
54. 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.
This conclusion was entirely correct and demonstrates no error, legal or otherwise. The matters described in questions 1, 2, 3 and four of the applicant’s amended notice of appeal filed on 9 October, 2020 do not reveal error by the Tribunal.
Equal shared parental responsibility
The orders made in the Federal Circuit Court of Australia on 12 July, 2016 provided:
1, That the mother and the father shall have equal shared parental responsibility in relation to all major long term issues in respect of the child ALEX HE born 27 June 2013 ("the child").
The orders went on to provide:
2. That each parent have responsibility for the daily decisions about the day to day care, welfare and development of the child while in his or her care.
3. That the child live with the mother.
4. That the child spend time and communicate with the father at all times as can be agreed and failing agreement as follows:
(a) Each Tuesday and Thursday from after day-care at 5.00pm to 8.00pm; and
(b) Each Friday from after day-care at 5.00pm to 8.00pm Saturday.
The parties’ subsequent agreement reached in October, 2016 also provided for them to have equal shared parental responsibility for Alex. The time spending arrangements between Alex and each of his parents, however, were changed but the details of those changes are not relevant for present purposes.
The Family Law Act draws a distinction between decision-making for children (referred to in the Act as parental responsibility) and the physical arrangements for the care of children such as with whom they should live and with whom they should communicate and spend their time. The definition of parenting order in s.64B makes that plain.
The parental responsibility conferred by order 1 was equal shared parental responsibility in relation to all major long-term issues for Alex. The phrase equal shared parental responsibility is not defined in the Family Law Act in terms. No definition of that phrase is to be found in s.4 of the Act. It is defined by its consequences. Such an order imposes consequences upon the parties and also upon the Court that made the order for equal shared parental responsibility.
The consequences that it imposes upon the Court if such an order is made are to be found in ss.65DAA(1) and 65DAA(2) of the Family Law Act. Those subsections require the Court to consider making particular types of orders about the living arrangements for children if a parenting order provides that a child’s parents are to have equal shared parental responsibility. Notably, the phrase equal shared parental responsibility only appears in ss.61DA and 65DAA of the Family Law Act. It appears nowhere else in that Act.
The consequences for parents of the Court making an order that they are to share parental responsibility (and an order for equal shared parental responsibility is such an order) are set out in s.65DAC of the Family Law Act. It will be observed from the text of that section that it is concerned with decision-making for children rather than the arrangements for their physical care and with whom it is that they might spend the time and communicate.
In a broad sense, an order for parental responsibility (whether that be equal shared parental responsibility or some other arrangements for the exercise of parental responsibility) concerns the care arrangements for children. That is so because in a general sense decision-making for children and in particular decision-making about major long-term issues as that phrase is defined in s.4 of the Family Law Act is about caring for them.
But the focus of the provisions in the Family Assistance Act dealing with care arrangements has a much narrower focus and is concerned with the physical care arrangements for children. So much is apparent from the text of ss.35A, 35B and 35J by way of example. Indeed, the Act itself draws a distinction between legal responsibility for a child and the actual care rendered to that child. For example the distinction is drawn in ss.22(2)(d), 22(5)(a) and 22(5)(b) of the Act where parental responsibility is distinguished from the time the child is supposed to live or spend with an adult under a family law order, registered parenting plan or parenting plan.
An order for equal shared parental responsibility is a parenting order for the purposes of the Family Law Act. It is therefore a care arrangement for the purposes of part (c)(ii) of the definition of that phrase in the Family Assistance Act. However, it is not an order that deals with the care arrangements for children in the sense in which the care of children is relevant under the Family Assistance Act. An order for equal shared parental responsibility does not deal with the time with which children should live with each of their parents or otherwise spend with them. It is an order that deals with decision-making only.
In working out the applicant’s percentage of care, parental responsibility is of no relevance and actual physical care of the child which may be calculated by reference to the number of nights a child is in the care of a particular parent, is critical. In circumstances where there is a parenting order in place which deals with where a child is to live or how much time a child is to spend with a parent, those terms of that order will be critical to working out a parent’s care percentage. An order for equal shared parental responsibility will be irrelevant to that task.
That is what the decisions that were being reviewed by the Tribunal recognised here. Having regard to the orders that were made by the Federal Circuit Court of Australia on 12 July, 2016 and then the parties’ subsequent agreements the applicant’s percentage of care was worked out according to the actual time that Alex spent with him by reference to the number of nights per week. That was an entirely appropriate way to work out his percentage of care. The Tribunal considered his argument that it ought to be worked out on a different basis by reference to the amount of child care that Alex attended and for which the applicant paid but the Tribunal rejected that argument. In my view it was correct to reject that argument.
The fundamental misunderstanding that underpins the applicant’s argument is that an order for equal shared parental responsibility means that for the purposes of the Family Assistance Act Alex is being cared for by each of his parents equally. That understanding is for the reasons I have given above, incorrect.
Ground five of the amended application does not reveal an error of law by the Tribunal.
Other grounds
The other grounds identified by the applicant in his amended application concern the determinations made by the Tribunal about the pattern of care, care percentage, and care period in respect of the care of Alex. However, the applicant’s arguments about each of those matters depends upon his interpretation of the phrase equal shared parental responsibility as it appears in the order is made on 12 July, 2016 and the subsequent parenting plans. His arguments proceed on the mistaken understanding that an order for equal shared parental responsibility equates with 50% care for each parent for the purposes of the Family Assistance Act. For the reasons I have expressed above, that understanding is incorrect.
None of the grounds raised by the applicant in questions 6 – 11 demonstrate any error on the part of the Tribunal in the decision under review.
In his written submissions, the applicant suggests that the percentage of care attributed to him was wrongly calculated because the first respondent ought to have taken into account the actual hours that Alex was in his care. The applicant calculates those actual hours by reference to the time provided for in the orders for Alex to be in his care (from after daycare at 5:00pm to 8:00pm each Tuesday and Thursday and then from after daycare on Friday at 5:00pm to 8:00pm on a Saturday). But it would have been wrong of the Tribunal to take into account the hours that Alex spent at daycare as part of the applicant’s percentage of care because Alex was not in his care notwithstanding that the applicant was responsible for payment of the childcare fees. That is because the court orders only permitted Alex to be in the father’s care from after daycare at 5:00pm.
Further, to the extent that the applicant complains that the Tribunal was wrong to affirm the first respondent’s use of the number of nights Alex was in the applicant’s care rather than the actual hours alleged by the applicant that Alex was in his care (including his hours at daycare) the argument is one which seeks impermissible merits review. I accept the first respondent’s argument that it was a matter for the Tribunal to determine the relevant care periods, whether it was appropriate to determine the applicant’s percentage of care based on the number of nights in accordance with s.35J of the Family Assistance Act and from there, the applicant’s percentage of care.
In his written submissions, the applicant suggests that the first respondent’s Department and the Tribunal were biased against him. The reasons of the Tribunal reveal no bias or any appearance of bias. Rather, the reasons of the Tribunal reveal a careful recitation of the relevant statutory provisions bearing upon the matters before the Tribunal, a discussion of the relevant evidence before the Tribunal and the resulting outcome from an application of those facts to the statutory provisions. It is difficult to see how the Tribunal could have arrived at any other decision than that which it did.
CONCLUSION
The amended notice of appeal filed on 9 October, 2020 does not demonstrate any error on the part of the Tribunal and must be dismissed.
The first respondent seeks his costs of the application. Costs should follow the event. There are no circumstances brought to my attention that would suggest that such an order is not appropriate. The amount sought by the first respondent is $7200 in accordance with Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). That amount is, in my view appropriate and consistent with the schedule of costs contained within the Rules. I have taken into account that this matter was heard at the same time as the applicant’s other application in BRG559/2020. But the two applications dealt with different decisions of the first respondent and different decisions of the Tribunal that required separate consideration and separate preparation.
There will be orders accordingly.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 27 August, 2021. Associate:
Dated: 27 August 2021