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

[2021] AATA 2672

Hof and Secretary, Department of Social Services (Social services second review) [2021] AATA 2672 (30 July 2021)

Division:GENERAL DIVISION

File Number(s):      2020/2335

Re:Guy Hof

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndKZGB

OTHER PARTY

DECISION

Tribunal:Senior Member B J Illingworth

Date:30 July 2021

Place:Adelaide

The decision under review is affirmed.

..........................[SGND]...............................

Senior Member B J Illingworth

Catchwords

FAMILY ASSISTANCE – court orders – shared care – percentage of care – actual care – family tax benefit child – other party’s evidence preferred – decision under review affirmed

Legislation

A New Tax System (Family Assistance) Act 1999 (Cth)

Secondary Materials

Family Assistance Guide

REASONS FOR DECISION

Senior Member B J Illingworth

30 July 2021

Introduction

1. The applicant and the other party are the separated parents of their son CH who was born in October 2002. By order of the Federal Circuit Court of Australia dated 2 September 2013 (the court order) the parents had the equal shared parental responsibility of CH.

2. This application relates to the review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 31 March 2020 which set aside the decision of the former Department of Human Services, now known as Services Australia (the Agency), made on 17 September 2019 that CH had left the other party’s care on 9 September 2017.

   Background

3. On 21 May 2019, the applicant notified the Agency that CH had left the other party’s care on 9 September 2017 and that he thereafter had 100% of the care of CH.

4. The other party was sent a letter by the Agency and was requested to provide information with respect to the care of CH by 18 July 2019. No information was provided.

5. On 17 September 2019, a decision was made that the applicant had 100% of the care of CH from 9 September 2017 and the other party had zero percentage of care.

6. On 23 September 2019, the other party sought review of that decision, and on 25 November 2019 an authorised review officer (ARO) affirmed the decision.

7. On 4 February 2020, the other party applied for a review of the decision of the ARO to the AAT1 and on 31 March 2020 the AAT1 decided as follows:

   The Tribunal sets aside the decision under review and, in substitution, decides that the existing percentage care for [CH] in effect as at 9 September 2017 is not revoked.

8. On 23 April 2020, the applicant applied to the Tribunal for review of the decision of the AAT1 which is the application now before me.

   Issues

9. In the respondent’s Statement of Facts, Issues and Contentions (SOFICs), the issues to be determined by the Tribunal were correctly summarised as follows:       

   (a)whether there was a change in the pattern of care of CH; and, if so

   (b)what percentage of care should be recorded for the applicant and other party in respect of CH.

10. The decision with respect to the shared percentage of care of CH was relevant in determining the Family Tax Benefit (FTB) entitlement of the applicant and the other party and, if there had been a change in the care percentage, the Tribunal must revoke the earlier determination and make another determination in accordance with A New Tax System (Family Assistance) Act 1999 (the FA Act).

11. The respondent submitted that in this matter the question of the care of CH ought to be calculated with reference to the number of nights he spent in the care of the applicant and the other party[1]. I agree with that submission, which was not in dispute.

    [1] Respondent’s SOFICs at [38].

12. The applicant and the other party do not agree about the pattern of care and the change of such pattern which is the issue to be determined by the Tribunal based upon the available evidence.

    Legislative Framework

13. The relevant legislation and policy are contained in the FA Act and the Family Assistance Guide. In particular, several sections of the Act are relevant in determining whether there was a change in the pattern and percentage of care that the applicant provided to the child and, if there was a change, when it took place.

14. The respondent correctly summarised the legal principles to be considered in this matter in their Statement of Facts, Issues and Contentions:

    If the Tribunal finds that there was a change in the percentage of care, it is required to revoke the existing determination if the ‘other percentage would not be in the same percentage range as the individual’s existing percentage of care’ (subsection 35P (d)(ii) of the FA Act).

    Should the Tribunal find 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’ (subsection 35Q(d) of the FA Act).

    If the Tribunal revokes the existing care determination, it must determine a new percentage of care based on the actual care that the Applicant provided (section 35P of the FA Act).

    The Evidence

    The Applicant

15. At the time of the hearing, CH had turned 18 years of age. The applicant provided to the Tribunal a copy of the court order dated 2 September 2013[2], which ordered that the applicant and the other party have equal shared parental responsibility of CH. That arrangement generally continued from the date of that order.

    [2] Exhibit B.

16. The applicant said that arrangement changed on 9 September 2017. He said that the other party came to his home and said that for the last two months she had barely been able to get out of bed. She said that she did not want CH or her other daughter to see her that way. The applicant explained that the other party said she could have a brain tumour, and that she would not know until she had scans. He agreed immediately to have the care of CH.

17. The applicant had a vague memory of the change in arrangement but said he identified the date of change with the assistance of a friend. It was that friend’s birthday the following day. He said he relied on the temporal relationship to his friend’s birthday to identify the date of change. They had celebrated the birthday at his home. He said the friend was Traci Borg who provided a handwritten statement dated 6 October (but no year) to the Tribunal[3]. Also in attendance was Mr Peter Bicanin who provided a handwritten statement dated 6 September 2019[4], Matthew who was living at the applicant’s home for a period of time and provided an email statement dated 1 August 2019[5], CH and a couple of friends. The applicant said there were others who came and went.

    [3] T32, page 94.

    [4] T23, page 59.

    [5] T22, page 58.

18. The applicant said the other party “asked me to have CH”. In response to questions from the Tribunal, he said that CH had belongings at both his home and the other party’s home, but he could not recall whether CH brought his belongings to his home.

19. The applicant then said that he went to the other party’s residential unit on Goodwood Road where most of the “stuff” was packed up in boxes and ready. However, the applicant did not know what happened to that “stuff” or who owned it. He said it was their belongings, not his. He did not know why they were packed or whether some of the packed items belonged to CH. When asked if the other party remained in the unit, he first said that he thought that the other party was evicted from the premises but then said he did not know. His evidence was vague and unclear about when he went to the unit and saw the packed boxes, and whether the other party remained living at the unit.

20. The applicant then said that after the other party asked him to have the care of CH, he went to her unit on two or three occasions but could not recall why. He said it could have been after 9 September 2017.

21. The Tribunal asked if CH was in his care after 9 September 2017 and what reason did he have to go to her unit. He said he did not know.

22. The applicant said that there was no restraining order or other order preventing him from associating with the other party. The Tribunal referred the applicant to paragraph 12 of the court order which states that the parties are restrained, and an injunction is granted restraining each of them, from abusing, harassing, intimidating, denigrating or criticising the other or members of their family in the presence of CH. He said there was no issue between them and that paragraph was standard in all forms of orders of this kind.

23. The Tribunal notes that at paragraph 13 of the court order it was ordered that the handover of the care of CH was to occur inside the Sturt Police Station.

24. The Tribunal asked the applicant for how long after 9 September 2017 did CH remain in his care. His response was until May 2019. He checked his papers and then said 24 May 2019. When asked what happened on that date that gave rise to the change in care arrangement, he said that the other party contacted CH and told him she wanted day-to-day care again.

25. The applicant said that he did not know that the other party had made contact with CH. He said he telephoned CH who said he was at his mother’s house and said his mother wanted to start 50/50 care again. He did not know why the other party wanted to revert to the previous arrangement.

26. During the period between September 2017 and May 2019 he said there was an occasion when CH went with his mother. The other party was living in a caravan at her mother’s house. She also took him to the other party’s friend’s house at Woodville where CH stayed for one night. The other party called in a few times to see CH but there were a lot of gaps in between those attendances. She took him bowling and to the pictures. When asked how often she saw him in that period, he said she saw him a bit but not much. She turned up occasionally at rugby games. For the 2018 season she attended on two or three occasions.

27. The Tribunal referred the applicant to evidence that suggested the other party was not aware she had a brain tumour until November 2019 and asked whether the date of 9 September for the commencement of the change in care arrangement might be incorrect. He maintained that 9 September was correct and said he relied on circumstances surrounding that date in support of that change but could not refer to anything other than the friend’s birthday. He said when the other party came to see him, she had been unable to get out of bed for two months.

28. In that two-month period when the other party said she could not get out of bed, the care of CH was still shared, but the applicant said he did not know if the other party in fact cared for CH. He did not know she was unwell during that period. CH did not tell him. He said perhaps he (CH) did not know. However, when the Tribunal asked that given she could not get out of bed, it would be unusual that CH did not know his mother was unwell. His response was “I don’t know”.

29. He did not take any notice whether or not the other party went to rugby in that two-month period. When she was at rugby, he denied the other party remained in her car. He said she used to walk around with the baby. He thought the baby was her daughter’s child. He did not know she had a baby. I note that the other party gave birth to that child in May 2019.

30. The applicant did not see any other member of the other party’s family. They did not have any mutual friends.

31. The applicant first notified the Department that there had been a change in care when he went to Centrelink at Marion to discuss arrangements for CH after he turned 16 and whether he would continue to go to school[6]. He spoke to a lady and that’s when it first came up in a conversation. I note that CH would have turned 16 in October 2018.

    [6] T10, page 39.

32. CH was having trouble at school at that time. He was suspended from school. The Tribunal referred the applicant to a notice of suspension dated 18 October 2018[7]. He did not speak to the other party about the suspension. He had no contact with her. CH was also suspended from school from 18 March 2019 to 20 March 2019[8].The applicant’s evidence about the issues with CH and his schooling was vague. He could not expand upon the issues which gave rise to the suspensions.

    [7] T11, page 40.

    [8] T14, page 43.

33. The Tribunal asked the applicant why he did not advise Centrelink about the change in percentage care arrangement until 2019. He said the other party was still receiving 50% of the FTB entitlement. She had no interest in the school issues. The applicant said the paperwork at the school changed in which he was CH’s sole contact.  He did not answer the question.

34. The Tribunal again referred to the change in care percentage which would have impacted upon his FTB entitlement. The applicant agreed he was in financial difficulty at the time including in October 2018 when non-payment of school fees had been referred to debt collectors[9]. He said he did not know what was happening with CH’s mother. When asked again why, given he had 100% care of CH and was in financial difficulty and receiving final notices from the school, he did not advise Centrelink about the change in care, he said it came up in conversation when he went to Centrelink in May 2019. The change in care he said was from 9 September 2017. 

    [9] T9, page 38 and T10, page 39.

35. As for the change in arrangement on 24 May 2019, the applicant said he had no contact with the other party and it was only when CH told him that his mother wanted to return to the 50/50 care arrangement, that this change occurred.

36. The applicant referred to various SMS telephone messages he produced to the Tribunal[10]. He referred to a number of photographs of SMS communications which appear to be undated relating to CH returning to the equal 50% care arrangement.

    [10] Exhibit B.

37. He referred to a series of photographs of SMS messages that were dated in September 2018 and following. The Tribunal asked the applicant to explain the relevance of the messages. The applicant said these were relevant in response to the other party’s allegation that she had been subject to domestic violence and that she did not leave her car when she attended CH’s rugby games. One example is 27 September 2018 at 11:20 am, when it is said the other party messaged the applicant to come to his new place to shower.

38. The applicant had in his possession a document from the Magistrates Court relating to a restraining order. He said the application was made on 31 January 2014 and the order was granted on 25 June 2014. He also referred to an intervention order previously made on 18 January 2013. The applicant produced the document to the Tribunal. The document was an order dated 27 June 2014 revoking an intervention order made on 18 January 2013.  Hence, for about 18 months there was an intervention order in place. The parties to the order were the applicant, the other party and her daughter. The applicant said that there had never been a similar order in place.

39. The Tribunal referred the applicant to the various letters that he produced to the Tribunal. The letter from Peter Bicanin was dated 6 September 2019[11].The Tribunal asked when the applicant requested that statement. He said the lady at Centrelink told him to get the paperwork in support of the change in percentage care of CH and so he asked people for help which lead to the various letters being produced.

    [11] T23, page 59.

40. The Tribunal asked the applicant what he asked Mr Bicanin to do. He said that after his meeting with the lady from Centrelink he received from them a letter telling him to submit statements from people about the change in care arrangement. He could not recall who he approached first. Mr Bicanin lived around the corner. The applicant said he provided Mr Bicanin with no information. He showed him the Centrelink letter and asked that he provide a statement saying what happened. The applicant said he was not present when the letter was written.

41. This letter was written two years after the alleged change in percentage care commenced. The Tribunal asked the applicant if he knew how Mr Bicanin was able to specify the period 9 September 2017 to 24 May 2019 as the period of change. The applicant said he was at the birthday party the following day after the commencement of the change in care arrangement, but otherwise he does not know how he was able to provide those dates. The applicant said he did not provide those dates to Mr Bicanin.

42. The Tribunal referred the applicant to his daughter’s emails dated 1 August 2019 and 12 September 2019. In the first email[12] she said that the applicant had 100% care of CH “as of September 2017 to May 2019 effectively.” The applicant said he did not know how his daughter could specify the dates and he had nothing to do with the provision of that statement. The second email[13] dated 10 September 2019 more specifically said the applicant had the care of CH from 9 September 2017 to 24 May 2019. When asked if he knew how the daughter could provide those specific dates, the applicant said that there was a communication from Centrelink who advised that others are able to assist by giving a specific date range, and as a result his daughter prepared the second statement.

    [12] T20, page 56.

    [13] T24, page 60.

43. The following statements before the Tribunal and the date ranges of the change in percentage care arrangement referred to are as follows:

    (a)31 July 2019 – email from Chanelle Hof – unspecified dates – September 2017 to May 2019;

    (b)1 August 2019 – email statement from Matthew Frances – who resided with the applicant from 21 September 2018 to June 2019 during which the applicant had 100% of the care of CH;

    (c)6 September 2019 – handwritten letter from Peter Bicanin – 9 September 2017 to 24 May 2019;

    (d)12 September 2019 – email from Chanelle Hof – 9 September 2017 to 24 May 2019; and

    (e)6 October (possibly 2019) – handwritten letter from Traci Borg – 9 September 2017 to 24 May 2019.

44. The applicant said that he did not inform the authors of those documents about specific dates. As for Ms Traci Borg, it was her birthday the day after the commencement of the change in care percentage which explains the date of 9 September 2017. He could not explain how she would know the end date of 24 May 2019.

45. The applicant said he saw Mr Peter Bicanin regularly, namely every couple of days. He spent a lot of time with Ms Borg and she stayed with him for a week but did not say when.

46. When asked how three different people two years after the commencement in the change of percentage care were able to specify the same date period of 9 September 2017 to 24 May 2019, the applicant said “Centrelink contacted us again and said we have to specify dates”. He could not otherwise explain how all three people gave the same date ranges and Mr Frances gave a similar period, albeit not as specific as to the dates.

    Other Party

47. The court order identified the care arrangement for CH. In the period March 2018 to December 2018 there were occasions when the applicant had CH for up to 8 to 9 nights in a row, but otherwise there was no change in the care arrangement.

48. The other party said that she had been living in rented accommodation in Goodwood from 2017 until March 2018. She left because she could not afford the rent and her daughter had left home. Between March 2018 to December 2018, the other party resided with a friend. She and CH each had their own bedroom and they had their own bathroom facility.

49. During that same period between June and August 2018, the other party’s mother was unwell. Her mother lived in a two-bedroom home with the other party’s disabled brother. To enable the other party to care for her mother she hired a caravan where she and CH resided. The applicant understood and agreed to CH residing in the caravan during that period. After eight weeks she and CH returned to live with her friend. In January 2019, the other party obtained a rented property in which she and CH resided.

50. The other party said that generally she had the equal care of CH, save for those occasional periods between March and December 2018 during which she may have had the care of CH for less than seven days in a row. She was dealing with health issues having been diagnosed with a brain tumour. When CH was not with her, she kept in contact with him and made sure he had money and food if he stayed an extra few nights at the applicant’s house. The other party said she would take him to rugby training and rugby games. She said the applicant had lost his driver’s licence on a number of occasions which put added pressure on her and that she made sure CH was able to get to rugby.

1. The other party said that she was first diagnosed with her brain tumour on 4 November 2017. Before that date she had no suspicion or indication that she had a tumour. Eight days prior to 4 November 2017, she had a headache which developed into a migraine and during days 4 and 5 she spent time in bed. CH was with her at the time and cared for her. She was taken to hospital by a friend. They performed a CT scan and discovered a brain tumour called a meningioma. The side effects are headaches and risk of seizure but at no time did she ask anyone to take over the care of CH due to her brain tumour. She was never incapable of parenting CH because of her health.

2. Insofar as the applicant said on 9 September 2017 he took over the care of CH because it was alleged that she told him that she had been in bed for two months and had a suspected brain tumour, the other party said that did not occur. The first time the other party learned of the brain tumour was on 4 November 2017.

3. To the extent that there was any change in the care arrangement for CH, the other party said that it was over a period of seven months during which there were occasions when CH stayed some extra days with the applicant. She said that this had also occurred since the court order. She would on occasions have CH in her care extra nights when that occurred to make up for lost time. If there was a special occasion in the applicant’s life, she would agree to CH staying for an extra day or two with him. There were occasions when there was an increase or reduction in care but, overall, the pattern of care was 50/50.

4. The other party said that her concern about the timing of the applicant’s report to Centrelink was that in May 2019 she gave birth to her daughter. Prior to that event, the applicant did not raise any concern about Centrelink payments or the percentage care of CH. If there was a change in the pattern of care, she would have told Centrelink. She would not have defrauded the government. The applicant raised this change of care with Centrelink on 24 May 2019 shortly after she gave birth to her daughter. She believes that the birth was the reason he made the statement to Centrelink.

5. The other party was referred to written statements she provided from her cousins Ms CP and Mr TP[14]. A further letter was received from another cousin, Ms AK. None were dated. They were prepared in late 2020. She said she did not receive prior to then, any written communication from Centrelink about a change in care percentage because Centrelink records are endorsed not to communicate in writing with the other party because the applicant had a history of going through her and her family’s letterboxes. Hence, the first time she became aware of any issue with FTB was when she checked her Centrelink record which said she had a debt in the sum of $15,000.  That is when she contacted Centrelink and the process, including with the Tribunal and obtaining witness statements, occurred.

   [14] T36, page 99 and T37, page 100.

6. The other party would see her cousins once or twice a month. She spoke to Ms CP daily. Ms CP knew that CH was in her care and would speak to him. They have teenage sons that are the same age and if the other party had issues such as CH’s schooling she would speak to Ms CP and discuss issues they had with their children. She saw Mr TP less than Ms CP because of his work commitments.

7. As for Ms AK, she lives at Moonta. They would see each other about 5 times a year and would speak perhaps fortnightly.

8. The other party conceded that those witnesses could not speak to every occasion she had care of CH, but they could confirm that he was in her care during the relevant period and she did not cease caring for CH.

9. As for attendance at rugby, the other party would generally not go to the games when CH was in his father’s care, save when the applicant lost his driver’s licence which has occurred on numerous occasions in the last 4 – 5 years. In the period 2018 – 2019, there were a couple of occasions when he lost his licence. Training was twice a week and the other party always took CH to training when he was in her care and often did so when he was in the applicant’s care. At rugby games she usually remained in the car because on occasions the applicant would turn up unexpectedly with friends.  

10. In cross-examination, the other party said she did not receive the text messages produced by the applicant prior to the hearing. The telephone number referred to in the text message was her mobile number. The other party said that in May 2019 CH wanted to spend time with his new baby sister. To the extent that the text message from the applicant in or about May 2019 referred to returning to the 50% care arrangement and referred to September 2017 as the date that care arrangement ceased,  the other party said that did not reflect what had previously been occurring with respect to the percentage care arrangement for CH. She suggested the applicant was up to something and, coincidently, that same month (May2019) he went to Centrelink and advised of the change in percentage of care.

11. The Tribunal then put to the other party on behalf of the applicant, some additional text messages for comment, however that evidence did not assist the Tribunal in relation to the care percentage of CH.

    Consideration

12. The applicant says that there was a change in the percentage care arrangement for CH from 9 September 2017 until 24 May 2019, during which period he had 100% of the care. He remained adamant that those were the correct dates. He said that the other party came to his home and said that for the last two months she had barely been able to get out of bed, that she did not want CH to see her that way, that she could have a brain tumour and asked the applicant to have the care of CH. The applicant agreed and immediately assumed 100% care of CH for that period of time.

13. The applicant provided correspondence from his daughter and three friends who confirmed that CH was in his care during that period. These were all dated approximately two years after the applicant said that the change in care commenced on 9 September 2017.

14. His daughter first provided an email dated 31 July 2019, which stated that the applicant had 100% care of CH between September 2017 to approximately May 2019. A second email dated 12 September 2019 was more specific and confirmed the applicant had 100% day-to-day care of CH from 9 September 2017 to 24 May 2019. There is no evidence to explain why the daughter first gave a general indication as to change of care and subsequently a very specific date range.

15. The specific dates provided by the applicant’s daughter were the same dates contained in the handwritten statement of Mr Peter Bicanin dated 6 September 2019, six days before the daughter’s second email. There is no satisfactory explanation how Mr Bicanin was able to be so specific about the dates, albeit the applicant said that he attended the birthday celebration of Ms Traci Borg which was the day after the change commenced. A letter from Ms Traci Borg dated 6 October also specified the same dates. She said she was positive about the dates because of the date of her birthday. That may explain her recollection of the 9 September 2017 date, but not the end date of 24 May 2019.

16. Mr Matthew Frances was less specific and only referred to the period 21 September 2018 to June 2019 during which he said he lived with the applicant.

17. I asked the applicant how he was able to identify the specific dates. He referred to the birthday celebration of Ms Traci Borg occurring the day following the change, but he could not give any or adequate explanation for the end date. I asked the applicant if he could explain how the witnesses provided the same date range. He said he could not and that it was Centrelink that requested specific dates.

18. This was an issue which was considered by the AAT1. I note that the ARO found that “On 21 May 2019 the department was advised that [CH] left [the other party’s] care on 9 September 2017.[15]” This advice to the Department, I infer, was the occasion the applicant said he attended Centrelink to discuss arrangements for CH after he turned 16 years of age, when the change of arrangement came up in conversation. Hence, the applicant was the person who first nominated the date on which the care arrangement occurred. If this came up unexpectedly in conversation with Centrelink, he would not have yet had a discussion with Ms Traci Borg or his other witnesses.

    [15] T26, page 68.

19. I note that in relation to this issue the AAT1 said[16]:

    …the statements provided by Mr Hof’s family and friends are all very specific in identifying 9 September 2017 as the date that [CH] entered into Mr Hof’s sole care despite the statements not being prepared until the Centrelink decision-making process commenced two years later.

    …

    ...when pressed as to timing, Mr Hof conceded he couldn’t be sure about the dates, and could not explain why he had been so sure when notifying Centrelink that it was 9 September 2017.

    … I am concerned that the third-party statements relied upon by Mr Hof are all very specific as to the date that [CH] entered Mr Hof’s sole care even after several years, but Mr Hof could not be specific on that matter.

    [16] T2, pages 5-8.

20. The applicant said in evidence that he did not speak to any of his witnesses about the dates regarding the change of care period. He could not explain how those witnesses were able to be so specific.

21. The applicant’s evidence was vague and unconvincing. I am very troubled that his witnesses were able to be so specific about the dates of the change in care of CH from their independent memories and without consultation either with each other, the applicant or another, particularly when they were asked to provide specific dates approximately two years after the commencement of the change in care arrangement.

22. The reliability of the applicant’s evidence about the commencement date of the change in care percentage is underpinned by the occasion he said the other party came to his house, spoke to him about her health and said that she may have a brain tumour.

23. The other party’s evidence about the circumstances in which she became aware of her medical condition is strikingly different to that of the applicant.

24. The other party said that she had no suspicion or indication of a brain tumour but for a period of eight days in late October and early November 2017 when she was suffering a headache that developed into a migraine. She was taken by a friend to hospital. She had a CT scan which identified a brain tumour called meningioma. This diagnosis was on 4 November 2017, approximately 2 months after the applicant asserts the change in care occurred.

25. Further, the other party gave evidence that during that eight-day period CH was in her care and he helped look after her.

26. The other party’s evidence was detailed about the circumstances of her health and diagnosis of her condition. I prefer her evidence to that of the applicant who was vague and unimpressive. I am satisfied that the circumstances giving rise to the change in care arrangement asserted by the applicant, which underpinned the date of change as referred to by he and his witnesses, was not correct. Hence, this further adds to the concern I have about the credibility and reliability of the applicants evidence and those witness statements provided by the applicant and upon which he relies. I do not accept the applicant’s evidence or that of his witnesses as to the date of change in the care of CH was 9 September 2017.

27. I asked the applicant about why it took approximately two years for him to advise Centrelink of the change in care arrangement. Again, his explanation was vague when he said it arose for the first time during a conversation with a Centrelink officer when he attended to discuss future arrangements for CH who had turned 16 years.

28. It is noteworthy that during the period 9 September 2017 to 24 May 2019 the applicant was having financial difficulties. In particular, a statement of account from CH’s school dated 19 July 2018[17] indicated the applicant was overdue in payment of school fees. Letters from a debt collecting agency dated 2 October 2018 and 9 October 2018[18], respectively advised that they were instructed to institute recovery proceedings on behalf of the school. In those circumstances, had the applicant been entitled to an increase in FTB, it is unbelievable that he waited until May 2019 to advise Centrelink of that change in care and that it came up in conversation in the manner described by the applicant.

    [17] T7, page 36.

    [18] T9, page 38 and T10, page 39.

29. I do not accept the applicant’s evidence about the reason for the delay in advising Centrelink of that change. I find that his evidence lacked both credibility and reliability.

30. The applicant also provided photographs of various telephone SMS exchanges between he and the other party. I will not detail all of those communications, some of which were of no assistance to the Tribunal. One message exchange appears to commence on Sunday, 26 May 2019, five days after the applicant had been to Centrelink and reported the change in care. In that message, he said he had just spoken to CH who said that the other party wanted to return to the 50% care arrangement, and that it had been since September 2017 that he was asked to have full-time care of CH due to the other party’s health issues.

31. The other party said she did not receive a copy of the messages prior to the hearing, but their contents were read to her. She agreed the telephone number appearing on the top left of the photograph was hers but could not accurately recall the exchange of messages. Other messages were also put to the other party for comment.

32. Having reviewed all of the SMS messages, I am not satisfied that they establish to any satisfactory degree both the fact and nature of the change in care percentage of CH during the relevant period.

33. The other party did concede in evidence that during March to December 2018 there were occasional changes to the care arrangement, such that she may have had less than 50% care of CH, namely less than seven days in a row.  But there were other occasions in which she had additional care of CH, including when the applicant lost his driver’s licence. However, when averaged out the care arrangement remained equal. She said that there was no change in the care arrangement of CH as a consequence of her health issue.

34. The other party provided brief handwritten statements from members of her extended family. It was conceded that they could not speak every day, but they were regularly in touch with the other party and could attest to the fact of her ongoing care of CH.

35. There was clearly a level of tension between the applicant and the other party. The other party referred in passing to the applicant’s criminal history. I have had no regard to that evidence in assessing the evidence and the percentage of care each had of CH.

36. However, I prefer the evidence of the other party to that of the applicant. The other party’s evidence was more compelling and she provided clear and cogent evidence including about her continued care of CH generally and in the relevant period, their regular attendance at rugby training and matches, and that she had no knowledge of her medical condition until 4 November 2017, which evidence I accept.

37. In accepting the other party’s evidence about her diagnosis on 4 November 2017, that raises concern about the credibility of the applicant and the applicant’s witnesses, the specified dates of change and, in particular, the commencement date of the alleged change of care, which was underpinned by the applicant’s health issues and suspected brain tumour. I prefer the evidence of the other party and her witnesses.

38. I am not satisfied that there was a change in the of percentage care arrangement of CH from 9 September 2017. Nor am I satisfied that until 24 May 2019 the applicant had 100% care and the other party had 0% care of CH. I am satisfied that there were occasions between March and December 2018 when CH was in the care of either the applicant or the other party for greater than seven consecutive days, but I am not satisfied that such change affected the care percentage when viewed as a whole in that relevant year.

    Decision

39. The decision under review is affirmed.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

…………………[SGND]……………………..

Associate

Date: 30 July 2021

Date of hearing

10 March 2021 

Applicant:           

Self-represented

Representative for the Respondent:

Maleah Underhill, Mills Oakley

Other party:

Self-represented