Higgins and Secretary, Department of Social Services (Social services second review)
[2022] AATA 1535
•8 June 2022
Higgins and Secretary, Department of Social Services (Social services second review) [2022] AATA 1535 (8 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/5086
Re:Paul Higgins
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndNicole Murray
OTHER PARTY
DECISION
Tribunal:Member W Frost
Date:8 June 2022
Place:Canberra
Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and makes a decision in substitution that the Applicant and the Other Party both had 50% care of the relevant children from 28 November 2019 to 25 November 2020. From 26 November 2020, the Applicant had 100% care of the children.
.........[sgd]............
Member W Frost
Catchwords
SOCIAL SECURITY – Family Tax Benefit – establishing a pattern of care – percentage of care – determination of the extent of actual care – where both parents claimed 100% care in the relevant period – relevant factors – desire for a flexible approach - limited and conflicting evidence – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975, ss 43(1)(c)
A New Tax System (Family Assistance) Act 1999, ss 21, 22, 25, 35B, 35J, 35P, 35Q, 58(1)
Cases
Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405
Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634
Drury and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] AATA 533
Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473
Parent A and Child Support Registrar and Parent B [2013] AATA 562
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159
Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607
Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22
Wade v Secretary of Family and Community Services (2004) 139 FCR 285
Secondary Materials
Family Assistance Guide, version 1.2317 released on 9 May 2022
REASONS FOR DECISION
Member W Frost
8 June 2022
INTRODUCTION
The Applicant, Mr Paul Higgins and the Other Party, Ms Nicole Murray, are the separated parents of two children relevant to this proceeding, aged 10 and 12 (the Children).[1] The parents dispute the percentage of care each of them had of the Children from 28 November 2019. The care of a third child is not in dispute; Mr Higgins has 100% care of this child. The parents’ percentage of care of the Children determines their respective eligibility for Family Tax Benefit (FTB).
[1] Exhibit 2.
During the relevant period from 28 November 2019, Ms Murray received FTB for 100% care of the Children. In November 2020, after Mr Higgins was granted an Apprehended Domestic Violence Order (ADVO) against Ms Murray, Mr Higgins applied for FTB and claimed that he had 100% care of the Children from 28 November 2019. Ms Murray also applied for FTB claiming that she had 100% care of the Children up until 25 November 2020, being the day before the ADVO commenced. That is, Ms Murray claimed she had 100% care of the Children in the same 12 month period from 28 November 2019 in which Mr Higgins also claimed that he had 100% care of the Children.
After Services Australia and an Authorised Review Officer (ARO) determined that Mr Higgins had 100% care of the Children from 28 November 2019, Ms Murray applied for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 set aside the ARO’s decision and in substitution determined that Ms Murray had 100% care of the Children from 28 November 2019 to 26 October 2020 and Mr Higgins had 100% care from thereon. Mr Higgins applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for review of the AAT1 decision.
The Tribunal held a hearing by telephone. Ms Murray did not answer the Tribunal’s telephone calls to attend the hearing, noting that she had the day beforehand told the Tribunal by telephone that she would not be participating in the hearing and would not answer the Tribunal’s calls to attend. Ms Murray also did not respond to the Tribunal’s earlier written invitation to consent to the Tribunal determining the application without holding a hearing. She had also earlier refused to participate in a pre-hearing directions hearing held by the Tribunal. The Tribunal proceeded with the substantive hearing in Ms Murray’s absence in circumstances where it was satisfied that she was given reasonable notice of the hearing, had told the Tribunal she would not participate and failed to answer repeated telephone calls to attend to hearing in this proceeding.
ISSUE
The issue for the Tribunal to determine is what percentage of care should be assigned to each of Mr Higgins and Ms Murray from 28 November 2019 in relation to the Children.
The issue of any debts raised against either Mr Higgins or Ms Murray relating to care of the Children for the purpose of FTB is not before the Tribunal in this proceeding.
BACKGROUND
On 2 December 2020, Mr Higgins applied for FTB, claiming he had 100% care of the Children from 28 November 2019.[2]
[2] Exhibit 1, T6, pages 56-63.
On 11 December 2020, Services Australia cancelled Ms Murray’s FTB payments because it decided that the Children were no longer in her care.[3] There were no accompanying reasons before the Tribunal for Services Australia’s decision.
[3] Exhibit 1, T27, pages 161-162.
On 13 January 2021, Ms Murray applied for FTB, claiming she had 100% care of the Children since birth until these care arrangements changed from 25 November 2020, following the ADVO commencing on 26 November 2020.[4]
[4] Exhibit 1, T9, pages 68-75.
On 25 February 2021, an ARO affirmed the Services Australia decision from December 2020 that Mr Higgins had 100% care of the Children from 28 November 2019.[5] The ARO relevantly stated that ‘the objective evidence supports that you [Mr Higgins] had 100% of care of the children from 28 November 2019’.[6] The ARO’s notes, that were before the Tribunal in this proceeding, stated that there ‘is no evidence to support that [the Children] were in [Ms Murray’s] care as at 28 November 2019’, but ‘there are Letters from Birrang Enterprise Development Company Ltd that support the children returned to care in late 2020’ and noted that Ms Murray was able to make a claim for FTB if this was correct.[7]
[5] Exhibit 1, T10, pages 76-78; T11, pages 79-83; T17, pages 117-119; T23, pages 137-141.
[6] Exhibit 1, T10, page 76.
[7] Exhibit 1, T11, page 83.
On 17 June 2021, following Ms Murray’s request for review, the AAT1 set aside the ARO’s decision and in substitution determined that Ms Murray had 100% care of the Children from 28 November 2019 to 26 October 2020, but that Mr Higgins had 100% care of the Children from 27 October 2020.[8]
[8] Exhibit 1, T2, pages 3-10.
On 27 July 2021, Mr Higgins applied to this Tribunal for review of the AAT1 decision.[9]
LEGISLATION & POLICY
[9] Exhibit 1, T1, pages 1-2.
Eligibility for FTB
Subsection 58(1) of the A New Tax System (Family Assistance) Act 1999 (Act) states that the annual rate of FTB is to be calculated in accordance with the Rate Calculator in Schedule 1. If more than one adult has care of an FTB child, clause 11 of Schedule 1 provides for the rate to be assessed on the basis of the shared care percentage. Section 21 of the Act provides that a person is eligible for FTB if they have at least one ‘FTB child’.
Section 22 of the Act relevantly defines ‘FTB child’ as follows:
(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). [emphasis in original]
There was no dispute that each of the Children was an ‘FTB child’ in accordance with the Act during the relevant period the subject of this proceeding.
In relation to legal responsibility for the care of an FTB child for the purposes of subsection 22(2)(d) of the Act, subsection 22(5) states that:
(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.
Pursuant to subsection 22(7) of the Act, 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. Accordingly, for both parents to be eligible for FTB during the relevant period, Mr Higgins and Ms Murray must each have had at least 35% care of an eligible FTB child during that period. Under section 25 of the Act, if an individual’s percentage of care for a child during a care period is less than 35%, the child is not an FTB child of that individual for any part of the period and that person is therefore ineligible for FTB.
Shared care
Subsection 59(1) of the Act relevantly provides that:
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%.
Accordingly, if a ‘shared care percentage’ applies pursuant to section 59 of the Act, there must be a determination of the individual’s percentage of care.
Determining the percentage of care
A determination of a person’s percentage of care of an FTB child is set out in Division 1, Subdivision D of Part 3 of the Act. Section 35B of the Act relevantly provides that:
(1) If:
(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
(2) If:
(a) the Secretary revokes or suspends, under Subdivision E of this Division (except under paragraph 35PA(3)(b) or 35QA(3)(b)), 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. [emphasis in original]
Section 35J of the Act is relevant in working out the actual care and extent of care of a child and provides:
(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, 35GA or 35H.
Revocation of percentage of care determination
Division 1, Subdivision E of Part 3 of the Act sets out the provisions in relation to the revocation and suspension of a percentage of care determination. Relevant to this proceeding, sections 35P and 35Q of the Act provide as follows:
35P Determination must be revoked if there is a change to the individual’s shared care percentage
(1) The Secretary must revoke a determination of an individual’s percentage of care (the existing percentage of care) for a child made under section 35A or 35B if:
(a) 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
(b) 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; and
(c) subsection (2) applies in relation to the individual.
Note: The Secretary must make another determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) This subsection applies in relation to an individual if:
(a) disregarding paragraph 35F(1)(c), section 35C did not apply in relation to the individual; or
(b) section 35C did apply in relation to the individual but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 35C did apply in relation to the individual;
(ii) the maximum interim period for an earlier determination of the individual’s percentage of care for the child has not ended;
(iii) an interim period for the earlier determination does not currently apply;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 35C does not apply, see section 35F.
(3) The revocation of the determination takes effect at the end of:
(a) if the change of care day for the individual occurs during an 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) The Secretary may revoke a determination of an individual’s percentage of care (the existing percentage of care) for a child made under section 35A or 35B if:
(a) 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
(b) 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
(c) sections 35P and 35PA do not apply; and
(d) subsection (2) applies in relation to the individual.
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) This subsection applies in relation to an individual if:
(a) disregarding paragraph 35F(1)(b), section 35C did not apply in relation to the individual; or
(b) section 35C did apply in relation to the individual but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 35C did apply in relation to the individual;
(ii) the maximum interim period for an earlier determination of the individual’s percentage of care for the child has not ended;
(iii) an interim period for the earlier determination does not currently apply;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 35C does not apply, see section 35F.
(3) The revocation of the determination takes effect at the end of:
(a) if the change of care day for the individual occurs during an 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. [emphasis in original]
The Tribunal notes that, in relation to the ‘existing percentage of care’ under subsection 35P(1) of the Act, Ms Murray was recorded by Services Australia as having 100% care of one of the two Children from 30 June 2011 and from 17 September 2015 for the other relevant child. This was a private arrangement between the parents and not the subject of a formal court order.[10]
[10] Exhibit 1, T14, pages 87-88; T14, pages 102-103.
As a result of the above, if the Tribunal finds that there was a change in the percentage of care for the Children from 28 November 2019, it is required to revoke the existing determination regarding the percentage of care if:
(a)Mr Higgins’ shared care percentage for the Children would change if the Tribunal were to determine, under section 35B of the Act, another percentage to be Mr Higgins’ percentage of care for the Children (subsection 35P (1)(b)(i) of the Act); or
(b)the Tribunal were to determine under section 35B of the Act another percentage to be Mr Higgins’ percentage of care of the Children, the ‘other percentage would not be in the same percentage range’ as Mr Higgins’ existing percentage of care (subsection 35P(1)(b)(ii) of the Act).
Additionally, under subsection 35Q(1)(b) of the Act, if the Tribunal finds that there was a change in the percentage of care, it has a discretion to revoke the existing determination if the ‘other percentage would not be the same as the individual’s existing percentage of care’.
Pattern of care
As set out above in this decision, in order to make a determination regarding the percentage of care in accordance with section 35B of the Act, it is necessary for the Tribunal to decide whether there is a ‘pattern of care’. This has been considered in numerous Tribunal decisions.[11]
[11] See, by way of example, Parent A and Child Support Registrar and Parent B [2013] AATA 562; Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405; Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607.
Subsection 35N(1) of the Act provides that the Secretary may, by legislative instrument, make guidelines relating to the making of determinations regarding the percentage of care. In this regard, the Secretary has made guidelines in the form of the Family Assistance Guide, version 1.2317, released on 9 May 2022 (Guide).
Instruction 2.1.1.50 of the Guide states that:
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.
Instruction 1.1.P.70 of the Guide provides that, for the purpose of FTB, a pattern of care exists when the care of an FTB child alternates between two or more adults.
Chapter 2.1.1.25 of the Guide provides the following relevant guidance in relation to the shared care of an FTB child:
Two or more adults who are not members of the same couple (1.1.M.50) and who care for an FTB child can each be eligible for FTB for that child at the same time, provided each adult cares for the child between 35% and 65% of the care period (1.1.C.100). A determination must be made regarding the percentage of FTB to which an individual is entitled in respect of the FTB child. Once a determination has been made to share FTB for a child, eligibility for FTB is continuous for each person, regardless of which person actually has the physical care of the child at any given point in time.
…
A couple who have separated, but are still sharing a home may share the care of an FTB child. Centrelink will determine FTB eligibility and the relevant shared care percentages for each individual based on their individual circumstances and the evidence available. Generally, where each individual contributes in a similar manner to the care of the child, the care percentage will be 50%. The care percentage determined by Centrelink will remain in place until either individual provides evidence that the care arrangements for the child have changed.
Instruction 2.1.1.45 of the Guide provides that the pattern of care to be generally used in the shared care assessment is the actual care arrangements for the child. However, it notes that where carers do not agree on the actual pattern of care for the child, Centrelink (or here, the Tribunal) must determine the actual pattern of care on the basis of the available evidence.
In this regard, Instruction 2.1.1.45 of the Guide notes that generally a pattern of care is based on the number of nights in a care period where the person has overnight care of the FTB child and a person having overnight care of a child is regarded as having had care of the child for that day. It also notes that 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.
The Tribunal in earlier decisions has indicated a preference for a flexible approach to determining a pattern of care for a relevant child.[12]
[12] See, by way of example, Drury and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2010] AATA 533; Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159; Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473; and Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22.
In this proceeding, neither Mr Higgins nor Ms Murray contended that there was a pattern of shared care of the Children; they both claimed they had 100% care of the Children during the relevant care period and that the other parent had 0% care of the Children.
Care
‘Care’ is not defined in the Act. However, the Guide at Instruction 1.1.C.90, relevantly provides that:
For the purposes of being considered an FTB child, [Family Assistance] legislation refers to being in the care of an adult. Reference is also made to legal responsibility for the day-to-day care, welfare and development of the individual.
Care generally includes physical care; however, the importance of physical care decreases as the child (also refers to a young person) becomes older. For example, a baby or toddler's care needs are largely immediate and physical (feeding, nappy changing, bathing, supervision). As the child grows older, they will gradually start to meet many of their physical care needs themselves.
Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child's mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child.
Some examples of care include:
·having control of the child, including making major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities
·having major daily responsibility for caring for the child and making the major decisions (e.g. meal preparation, hygiene, transport, discipline, emotional and moral support and guidance)
·bearing the costs of the child's daily life (e.g. food, accommodation, transport, clothing, schools fees, health and dental care etc.)
·making arrangements related to the child's needs (e.g. appointments at school or with doctors or dentists and accompanying them on those appointments), and/or
·being the main person for the day care, school, or college to contact in emergencies.
When assessing levels of 'care' consideration of the full circumstances of each case must be taken into account to decide whether care remains with a parent, is shared with others, or is not present.
The care period
The Act does not specify the duration of a care period. However, the Guide, at Instruction 1.1.C.100, relevantly provides that:
The care period for working out the percentage of care provided by an adult:
·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 (2.1.1.45) changes, and
·ends when there is a subsequent change in care.
Explanation: A care period of 12 months from the commencement of the care arrangements will generally be used where the care arrangements are ongoing. The same care arrangements will be assumed to apply for subsequent 12 month periods, unless otherwise advised. If there is no agreed ongoing pattern of care and the care arrangements only apply to a period shorter than 12 months, a one-off shorter care period may be determined.
In Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473, the Tribunal at [11], cited Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634 at 645 and Wade v Secretary of Family and Community Services (2004) 139 FCR 285 and confirmed that it is appropriate to have regard to the Guide in contested cases of shared care, as follows:
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.
In this regard, and for the avoidance of doubt, the Tribunal applies government policy set out in the Guide in the absence of cogent reasons to not follow such policy.
On the available evidence, the Tribunal is satisfied that the relevant care period for the Children is from 28 November 2019 until 25 November 2020. The Tribunal finds that Mr Higgins had 100% care of the Children from 26 November 2020 when the ADVO commenced.
CONTENTIONS & EVIDENCE
Mr Higgins
As previously stated in these reasons, Mr Higgins’ submission was that he had 100% care of the Children from 28 November 2019 and provided the following documentary evidence in support of these claimed care arrangements:
(a)letter from the Principal of the Children’s school dated 18 November 2020, which stated that Mr Higgins ‘had care of the children over the past year’ and he is ‘the person who attends meetings and appointments for all of the children’, he is ‘the person the school contacts if the children are sick or if the children need supplies or permission for excursions and activities’.[13] It also noted that ‘while the children have been living with you, their school attendance has been consistent, they are always well dressed and clean and have food for their school day’;
(b)undated letter from a neighbour, Janice Anne Glover, which stated that ‘[s]ince November last year Paul has had care of 3 children’;[14]
(c)his completed FTB claim dated 2 December 2020 in which he recorded having 100% care of the Children from 28 November 2019;[15]
(d)Provisional Apprehended Domestic Violence Order dated 28 November 2019, which was addressed to Ms Murray and made to protect Mr Higgins;[16] and
(e)Apprehended Domestic Violence Order dated 26 November 2020, which was addressed to Ms Murray and made to protect Mr Higgins, the Children and the third child for 12 months until 25 November 2021.[17]
[13] Exhibit 1, T4, page 51.
[14] Exhibit 1, T13, page 86.
[15] Exhibit 1, T6, pages 56-63.
[16] Exhibit 2.
[17] Exhibit 1, T5, pages 52-55.
Ms Murray
While Ms Murray failed to attend the Tribunal hearing to give evidence and make submissions, based on her contentions to the AAT1, her submission is taken to be that she had 100% care of the Children from 28 November 2019. The following documentary evidence was before the Tribunal in support of these claimed care arrangements:
(a)Statement from Shannen White of Birrang Enterprise Development Company Ltd (Birrang) dated 5 January 2021, which stated that the Children were living with Ms Murray and that Mr Higgins visits regularly and ‘occupies the home regularly also’, although he ‘lives in his own home’ and ‘supports Nicole in parenting and home based duties every day’;[18]
(b)Statements from Birrang dated 6 January 2021, which stated that the Children ‘reside with Nicole and has [sic] done so up until the 26/10/2020’;[19] and
(c)her completed FTB claim dated 13 January 2021, in which she reported having 100% care of the Children from their birth to 25 November 2020.[20]
[18] Exhibit 1, T7, pages 64-65; T20, pages 125-126.
[19] Exhibit 1, T8, pages 66-67; T21, page 127; T22, page 128.
[20] Exhibit 1, T9, pages 68-75.
Secretary
While the Secretary provided submissions in relation to the facts and legislation applicable in this proceeding, it adopted a neutral position regarding the evidence and contentions and made no submissions in relation to the correct or preferable decision of the Tribunal. The Tribunal records its appreciation for the assistance it received from the Secretary and its legal representative through the submissions and during the course of the proceeding.
CONSIDERATION
As set out above, there was minimal evidence before the Tribunal to indicate with any certainty whether either parent had 100% care of the Children during the relevant period from November 2019. The Tribunal was also not assisted by Ms Murray’s refusal to participate in the hearing. It has had to rely on the sparse documentary evidence and the submissions of Mr Higgins at the hearing, together with the AAT1’s reasons, which contain the parents’ respective evidence to that Tribunal.
As previously stated in this decision, neither Mr Higgins nor Ms Murray contended that there was a pattern of shared care of the Children at any time between November 2019 and November 2020. They each claimed that the children were in their respective care for 100% of this time. Ms Murray did not dispute that she did not have care of the Children from 26 November 2020 when the ADVO commenced.
In addition to the abovementioned contentions and evidence in support of Mr Higgins’ position, his primary contention was that he had 100% care of the Children following an incident with Ms Murray on 27 November 2019. The Provisional ADVO dated 28 November 2019 is addressed to Ms Murray and was made to protect Mr Higgins. It did not cover the Children. Mr Higgins told this Tribunal that he took two children from Ms Murray’s home immediately after this incident and returned for the third child a short time later. He was unclear in his evidence about why the Provisional ADVO did not apply to the Children if he had them from this time, including to protect them from their mother, Ms Murray. Conversely, the AAT1 recorded that Ms Murray ‘vehemently denied’ that the Children had left her care in November 2019 and ‘said they had been with her, in her home, throughout 2020, until Mr Higgins took them’.[21]
[21] Exhibit 1, T2, page 6.
Additionally, while the AAT1 found Ms Murray to be ‘a somewhat difficult witness’ and her truthfulness was difficult to gauge, it recorded that she ‘repeatedly and strongly emphasised that the children were with her during 2020 and although Mr Higgins came to stay at times, the children were not living with him’.[22]
[22] Ibid.
When this Tribunal put to Mr Higgins that there was evidence that he had visited the children at Ms Murray’s home and had occasionally stayed overnight, he denied this was during the relevant period, but agreed that he had visited during the day when he took the Children to see their mother. He confirmed to the Tribunal his contention that he had 100% care of the Children from November 2019. The AAT1 recorded that Mr Higgins ‘gave evidence of frequently seeing the children for school drop-offs and pick-ups and time spent with them at Ms Murray’s home’ and that he ‘variously claimed that the children lived with him, or that he spent significant time in Ms Murray’s home or that he took the children from Ms Murray’s home at times’.[23] This conflicting evidence from Mr Higgins led the AAT1 to describe it as ‘vague and difficult to follow’ and to some extent ‘self-serving and deliberately vague’.[24]
[23] Ibid., page 8.
[24] Ibid., page 6.
In this regard, Mr Higgins gave unclear evidence to this Tribunal about why an occupational therapist undertook an assessment at Ms Murray’s home in relation to one of the Children during the relevant period if they did not live with her at that time. As the AAT1 noted, it is ‘remarkable’ that Mr Higgins would not have mentioned to these support workers that he was then primarily responsible for the Children.[25]
[25] Ibid., page 8.
Conversely, the undated letter from Mr Higgins’ neighbour states that he had 100% care of the Children from ‘November last year’, which the Tribunal assumes to be a reference to 2019. However, it was unclear how this opinion had been formed and its impartiality. Weighing in Mr Higgins’ favour is the letter from the principal of the school attended by the Children. The Tribunal accepts that evidence, which aligns with both Mr Higgins’ and Ms Murray’s recorded evidence that the former was the main contact for the school for all matters. While this letter states that Mr Higgins ‘had care of the children over the past year’,[26] it is unclear whether this relates to care of the Children in respect of their schooling or more broadly. Unlike other independent sources, such as employees of Birrang, there was no evidence that anyone from the school had personally inspected the home where the Children were said to reside, although it is not suggested that this would ordinarily occur. As the AAT1 correctly stated in its decision, ‘any opinion formed by these [third] parties is limited by their respective areas of concern and the glimpses of the family they had from their respective vantage points’.[27]
[26] Exhibit 1, T4, page 51.
[27] Exhibit 1, T2, page 7.
The AAT1 asked the parents about the arrangements during the height of the COVID-19 pandemic when the Children were not attending school in person. It was recorded that Ms Murray agreed the Children had been at home, ‘but she was vague about the study arrangements and the Tribunal was not persuaded that she had any real awareness of the school arrangements at that time’.[28] Conversely, the AAT1 found Mr Higgins’ description of the Children’s activities at this time to be ‘more detailed, informed and credible’.[29] However, the AAT1 ‘could not positively conclude that this meant the children lived with him exclusively during the period as he also appeared to suggest that he would attend Ms Murray’s home to help them with work’, noting that this ‘does not necessarily entail a change of overnight care’.[30]
[28] Ibid., page 8.
[29] Ibid.
[30] Ibid.
The Tribunal agrees with the AAT1’s statement that the available evidence was ‘impossible to reconcile’, including the relevant third party evidence.[31] As a result, based on the evidence, the Tribunal is not satisfied that a complete change of care occurred from November 2019, such that Ms Murray no longer had any care of the Children and Mr Higgins had 100% care. But the Tribunal is also not satisfied that Ms Murray retained 100% care of the Children from November 2019. Having regard to the limited available evidence in this proceeding, the Tribunal finds that there was a change in the pattern and percentage of care that Mr Higgins provided to the Children in the care period, however it also finds that he did not have 100% care of the Children during this time.
[31] Ibid., page 9.
As noted above in these reasons, the Guide, at Chapter 2.2.2.25, states that generally, ‘where each individual contributes in a similar manner to the care of the child, the care percentage will be 50%’. Based on the limited and conflicting evidence, the Tribunal finds that both Mr Higgins and Ms Murray had 50% care of the Children from 28 November 2019 and up until 25 November 2020. This decision regarding each parent’s level of care of the Children was based on an assessment, to the extent possible given the minimal probative evidence, of the number of nights or hours they were in each parent’s care during the relevant period, but also, as provided under the Guide, a consideration of the parents’ respective responsibility for the care of the Children, including their financial contribution, and the extent to which they met the needs of the Children through, among other things, accommodation, health care and education in order for the Tribunal to seek to reach an equitable conclusion regarding the parents’ respective percentage of care.
The Tribunal also finds, on the available evidence, that the Children were in Mr Higgins’ full-time care from the commencement of the ADVO on 26 November 2020. While there was some evidence that Ms Murray did not have any care of the Children from an earlier point in time, such as from 26 October 2020, the Tribunal is not satisfied that her percentage of care reduced from 50%, determined by this Tribunal to have been her percentage of care from 28 November 2019, to 0%, any earlier than 26 November 2020.
On the whole, as the AAT1 astutely observed, the evidence leaves the Tribunal in ‘significant uncertainty’ about the care arrangements for the Children between November 2019 and November 2020. The Tribunal does not in any way seek to detract from the decision-making process of the AAT1 given the state of the evidence. As the AAT1 noted, while it is possible that Mr Higgins had 100% care of the Children before late 2020, ‘no earlier date of change is strongly suggested by the evidence’.[32] The Tribunal has attempted to make the correct or preferable decision regarding the percentage of care of the Children given the evidence before it in this proceeding and having regard to the terms of the Act and Guide. The Tribunal is satisfied, based on the available evidence, which is limited, conflicting and inconsistent, that such a decision should be that both parents had 50% care of the Children in the relevant period because there is credible evidence that they both cared for the Children during this time and such care was not limited to one particular parent to the total exclusion of the other parent.
[32] Exhibit 1, T2, page 10.
CONCLUSION
As the Tribunal has determined under section 35B of the Act that Mr Higgins’ percentage of care of the Children during the relevant care period from 28 November 2019 changed from 0% to 50%, it must revoke the existing percentage of care determination in accordance with subsection 35P(1)(b)(i) of the Act.
DECISION
Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and makes a decision in substitution that the Applicant and the Other Party both had 50% care of the relevant children from 28 November 2019 to 25 November 2020. From 26 November 2020, the Applicant had 100% care of the children.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
.............................[sgd]...........................................
Associate
Dated: 8 June 2022
Date(s) of hearing: 3 June 2022 Date final submissions received: 20 December 2021 Applicant: By telephone Solicitor for Respondent: Ms Amy Simpson, Services Australia
Other Party: No appearance
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