HSBC and Secretary, Department of Social Services (Social services second review)
[2020] AATA 4417
•4 November 2020
HSBC and Secretary, Department of Social Services (Social services second review) [2020] AATA 4417 (4 November 2020)
Division:GENERAL DIVISION
File Number: 2018/2722
Re:HSBC
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndNKTQ
OTHER PARTY
And TBMF
OTHER PARTY
DECISION
Tribunal:Member G Hallwood
Date:4 November 2020
Place:Adelaide
The decision under review is affirmed.
.....................[sgnd]...................................................
Member G Hallwood
CATCHWORDS
SOCIAL SECURITY –– Pensions, benefits and allowances – Family Tax Benefit – Running away from home not “an event” preventing return – “Reasonable steps” to return the child to mother’s care - Whether FTB child is not in the care of anyone with the legal responsibility - Whether FTB child ceased to be in mother’s care – Whether FTB child returned to mother’s care - Decision under review is affirmed.
LEGISLATION
A New Tax System (Family Assistance) Act 1999
Administrative Appeals Tribunal Act 1975
Evidence Act 1995
Listening and Surveillance Devices Act 1972 (SA)Social Security Act 1991
CASES
Cassidy and Secretary, Department of Family and Community Services [2006] AATA 97
LYPG and Secretary, Department of Social Services and Anor [2013] AATA 719
Nowicz and Secretary, Department of Family and Community Services [2001] AATA 628
Re Drake and Minister for Immigration and Ethnic Affairs (no 2) [1979] AATA 179
Secretary, Department of Social Security v Lowe [1999] 92 FCR 26
Wade v Secretary, Department of Family and Community Services [2004] FCA 1660SECONDARY MATERIALS
Family Assistance Guide
REASONS FOR DECISION
Member G Hallwood
4 November 2020
HSBC seeks review of a decision dated 2 May 2018 by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). That decision, which set aside a decision of an authorised review officer (ARO), substituted a decision that from 21 January 2015 the Family Tax Benefit (FTB) child was in the care of NKTQ to the exclusion of all others.
The Department of Human Services’ (the Department) original decision of 20 October 2016 was that NKTQ, who is the mother of the FTB child’s school friend had 100% care of the FTB child from 21 January 2015. On 8 June 2017 an ARO changed that decision determining that NKTQ had 50% shared care of the FTB child from 1 July 2016.
The impact of the administrative decisions relates to who should have been receiving family assistance payments in the form of FTB and from when.
THE ISSUES
FTB is a government payment that helps eligible families with the cost of raising children. This matter is effectively a dispute between the Applicant, HSBC, and an ‘Other Party’, NKTQ, about who had responsibility for the care of the FTB child for the purposes of claiming FTB during the relevant period of 21 January 2015 until 19 May 2017.
HSBC seeks to demonstrate that her son, the FTB child, was in her care alone until 30 June 2016 and that his care was then divided 50% with her and 50% with NKTQ from 1 July 2016 until 19 May 2017.
NKTQ contends that the FTB child was 100% in her care alone during the relevant period.
In order to succeed with her application HSBC needs to satisfy the Tribunal that during the period from 21 January 2015 to 19 May 2017 the FTB child was in her care.
The issues to be determined are:
(a)Did the FTB child ever cease to be an FTB child of HSBC during the relevant period?
(b)If so, during what period, if ever, was the FTB child the FTB child of NKTQ?
(c)If he was ever the FTB child of NKTQ, did the FTB child return to the care of HSBC during the relevant period?
BACKGROUND
On 9 September 2016 NKTQ lodged a claim for FTB stating that she had taken care of the FTB child from 21 January 2015.[1]
[1] T5 pp31-35.
On 20 October 2016 the Department granted NKTQ FTB for 100% care of the FTB child from 21 January 2015.
On 26 February 2017 HSBC lodged a claim for FTB during the period 1 January 2015 to 19 May 2017 (the relevant period) stating that NKTQ had 50% care of the FTB child and HSBC had 50% of his care during the period 1 July 2016 to 19 May 2017.[2] On the claim form HSBC also noted “I agreed for [NKTQ] to receive payment from July 2016 onwards.”[3]
[2] T6 pp36-43.
[3] T6 p38.
On 8 June 2017 an ARO set aside the decision of 20 October 2016 finding that the FTB child had not been in the care of NKTQ at all until 1 July 2016 and that from that date onward his care had been provided 50% each by HSBC and NKTQ.
On 2 May 2018 AAT1 set aside the ARO’s decision, finding as the Department had in the original decision that the FTB child was in the care of NKTQ from 21 January 2015, to the exclusion of all other individuals including HSBC.
The Tribunal received 164 pages of Tribunal documents (T) from the Department, 18 documents from HSBC (A), and 38 documents from NKTQ (OP). The Secretary submitted two documents (R) in addition to the T documents.
A USB memory stick was supplied by HSBC that she informed the Tribunal would provide video evidence that the FTB child was paying rent to NKTQ. The Tribunal notes that this evidence had been provided to AAT1 and was obtained without the knowledge or consent of the FTB child, who at the time was a minor. The Tribunal weighed the desirability of admitting a video that had not been lawfully made, with the desirability of admitting it – pursuant to s138(1) of the Evidence Act 1995 (Cth) (the Evidence Act). While the Tribunal is not bound by the rules of evidence per s33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) it is guided in these circumstances by the Evidence Act. In applying the Evidence Act which at s138(3) contains a non-exhaustive list of factors to determine what factors should be considered or not, the Tribunal was satisfied that the gravity of the potential unlawfulness, the penalty that could be imposed on the Applicant, and the limited utility of the recording (a finding made at AAT1), all militated against the video evidence being admitted. Following submissions from the Respondent, the Applicant and NKTQ as well as discussion at the hearing, the Tribunal found that the video in question should be excluded from evidence. None of the parties objected to the Tribunal’s finding.
In light of the Tribunal excluding this recording from evidence under s138 of the Evidence Act, the Tribunal cautioned the Applicant against self-incrimination as:
·Her action in making the recording may amount to an offence under s4 of the Listening and Surveillance Devices Act 1972 (SA) (the LSAD Act); and
·Providing the recording to the Tribunal may amount to publication of the recording, a further offence under s5.1 of the LSAD Act.
The Applicant represented herself at the hearing and called witnesses including two of her children; her partner, and her brother.
NKTQ represented herself at the hearing as an interested party calling the FTB child as a witness as well as her own son.
TBMF, the FTB child’s father, did not participate in the hearing or make any submissions.
It was apparent throughout the hearing that there is significant and continuing acrimony and emotional investment between the parties to this dispute. There are also financial implications arising from debts to the Commonwealth in this matter. Which party may owe a debt to the Commonwealth is not before this Tribunal. Both parties are strongly contesting who was caring for the FTB child from 21 January 2015 to 19 May 2017 (the relevant period). The FTB child turned 18 years of age on 19 May 2017.[4]
[4] T20, p143.
THE LEGISLATION
The relevant law is contained in the A New Tax System (Family Assistance) Act 1999 (the FA Act).
Section 21 of the FA Act relevantly states that “an individual is eligible for family tax benefit if (a) the individual: (i) has at least one FTB child…”.
Section 22 of the FA Act sets out when an individual is an FTB child of another individual.
Subsection 22(5) of the FA Act sets out the circumstances surrounding the legal responsibility for the care of the FTB child.
Section 23 of the FA Act describes the effect on FTB payments when an event occurs in relation to a child without the adult’s consent that prevents the child from being in the adult’s care.
THE HEARING
In oral evidence HSBC described the HSBC family household as one that was frightening and dysfunctional while the FTB child was growing up. She said that her ex-husband had been removed from the house “because he was assaulting myself and my children – that is where [the FTB child’s] anxiety stems from”. HSBC’s partner, stated in oral evidence “[The FTB child’s father was very abusive”. HSBC’S mother, wrote: “… his father was removed from the house in 2012…”.[5]
[5] T19, p119.
From the 9th to the 28th of December 2014 the FTB child and his family went on a cruise to Hawaii which was paid for by HSBC’s stepfather (now deceased). HSBC in oral evidence describes the FTB child as being very anxious and aggressive during the cruise throwing furniture across the deck and yelling abuse. HSBC’s youngest son stated in oral evidence that the FTB child had been fine while he was in a hotel in Hawaii but “he hated the cruise” and just wanted to fly home.
During the latter months of 2014 the FTB child stayed over occasionally at the home of his school friend, NKTQ’s son. The frequency increased from January 2015 when the FTB child started a relationship with his school friend’s sister.
CONTENTIONS
As is usual in matters where care is disputed, the Secretary as the Respondent took a neutral position on the facts and appearing to assist the Tribunal to reach a correct or preferable decision. The Respondent took no position in relation to the factual dispute between the parties.
The frequency and nature of care and living arrangements from January 2015 is disputed by the parties.
There is no dispute that the FTB child was an FTB child of HSBC up until the beginning of January 2015 and the Tribunal is satisfied based on the evidence presented that at that time the FTB child met the criteria set out in subsections 22(2) of the FA Act:
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).
HSBC contends that the FTB child lived with and was cared for by her until April 2017.[6]
[6] T1 p4.
NKTQ contends that the FTB child moved into her home and that she cared for him from 21 January 2015.
The Tribunal notes that a number of witnesses appeared before the Tribunal. While all of the oral evidence was considered, the Tribunal found that the oral evidence critical to the decision in this matter was that of HSBC, NKTQ, and the FTB child. Only limited discussion is provided by the Tribunal in relation to the other witnesses called, reflecting only where weight was added by their respective evidence.
Written evidence was also supplied by people in support of both HSBC’s and NKTQ’s contentions. These corroborators fall solidly into two camps with those in support of NKTQ generally stating that the FTB child spent almost all of his time living at her house from the beginning of 2015; and those in support of HSBC stating that the FTB child lived with her until mid-2017. Clearly both cannot be correct. While the Tribunal has considered all of this evidence, much of the information referred to by these corroborators will not be referred to in this decision as they also provide little in terms of either weight or further knowledge.
Did the FTB child ever cease to be an FTB child of HSBC during the relevant period?
In order for HSBC’s application to succeed the Tribunal must be satisfied that during the period from 21 January 2015 to 19 May 2017 the FTB child was in her care either fully or partially. When the FTB child was not in the care of HSBC, it is not disputed that he was in the care of NKTQ. There was no evidence presented to the Tribunal that would suggest the FTB child was ever in the care of his father during the relevant period.
There are irreconcilable differences in the evidence relating to when the FTB child left his mother’s home.
HSBC’s oral evidence about whether and when the FTB child moved out of her house was inconsistent at times and conflicted with other evidence she presented. Variously HSBC stated that the FTB child lived with her until April 2017, but also put to the Tribunal that the FTB child had been paying $90 a week rent to NKTQ during the period HSBC claims he was living at HSBC’s home. HSBC also stated that she had always agreed that NKTQ should receive FTB for the FTB child from 1 July 2016 on the basis that the FTB child was staying at NKTQ’s home which conflicted with HSBC’s evidence that the FTB child did not move out of home until April 2017.
Written and oral witness statements about whether or when the FTB child moved out of the family home were generally of little value to the Tribunal as they were prepared long after the relevant period and aligned with the arguments being put by either HSBC or NKTQ depending on who had sourced the evidence.
The Tribunal found NKTQ’s oral evidence and the FTB child’s oral evidence to be more balanced and consistent than the evidence provided by HSBC. Both said that the FTB child had been increasingly staying at the NKTQ household since early January 2015 and the FTB child had moved into the NKTQ’s household by about 21 January 2015. Both NKTQ and the FTB child stated that on occasion during the relevant period the FTB child had stayed at the home of HSBC.
The only contemporary written evidence that the Tribunal considers to be independent is a letter from Amanda Veal, who was the FTB child’s youth case worker. Ms Veal stated: “I have known [the FTB child] since June 2015. Since I have known [the FTB child], I have only ever picked him up from [NKTQ’s address].[7] I have had several case management meetings with [the FTB child] at this address and have only ever known [the FTB child] to reside at this address”. This evidence is preferred by the Tribunal as it predates the dispute between HSBC and NKTQ. Ms Veal’s conflicts with HSBC’s evidence about when the FTB child left home but does not conflict with the evidence of NKTQ or the FTB child. On balance the Tribunal found the evidence of the FTB child and NKTQ together with the written evidence of Amanda Veal to be more reliable than the evidence of Amanda Veal in relation to whether and when the FTB child moved out of home.
[7] T16 p112.
The FTB child stated that he was anxious to leave what he saw as a hostile environment.
The Tribunal is satisfied that on or about 21 January 2015 the FTB child, who was then a 15-year-old, left his mother’s house to stay at NKTQ’s house.
Did an event occur that prevented the FTB child from being in his mother’s care without her consent?
The FA Act provides for the possibility that an FTB child can, as a result of an event, be prevented from returning to the care of an adult with the legal responsibility for the child. Section 23 of the FA Act sets out the effect of an FTB child ceasing to be in an individual’s care without consent:
Effect of FTB child ceasing to be in individual's care without consent
1. This section applies if:
a. an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3); and
aa. the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph 22(5)(a) or (b); and
b. an event occurs in relation to the child without the adult's consent that prevents the child being in the adult's care; and
c. the adult takes reasonable steps to have the child again in the adult's care.
Section 23(5) of the FA Act provides that an adult can continue to qualify for FTB for up to 14 weeks after an FTB child is removed from their care.
Instruction 2.1.1.90 of the Family Assistance Guide (the Guide) describes the application of s23(1)(b) and (c) stating:
“If a person takes a child away from the person who is legally responsible for that child, or if a child leaves care or refuses to return to care, without the consent of the person who is legally responsible for them, the child can be considered to be an abducted, absent or missing child.” [emphasis added]
This view envisages a child leaving home of their own volition to live with someone who has no legal responsibility for them without their parent’s consent.
The Guide is not an authority that must be used to interpret legislation. It represents the Secretary’s view of how the law should be interpreted and applied. The Guide is useful, for the reasons explained in Re Drake and Minister for Immigration and Ethnic Affairs (no 2) [1979] AATA 179, when considering how a discretion may be exercised or a law may be interpreted.
In a similar set of circumstances to the matter currently before the Tribunal and in which a 14 year old child voluntarily left his mother’s home to move into the home of his friend’s mother, then Senior Member and now Deputy President McCabe in LYPG, held that a voluntary departure of this nature did not fall within the language of para (b) of s23(1) of the FA Act as that paragraph was confined to an external event occurring which prevented the child from returning rather than a voluntary decision of the child:
8. The use of the words “event” and “prevents” in s 23(1)(b) is interesting. They certainly cover a situation where a third party or external circumstances intervene to create an obstacle to the child remaining in the home. Examples are not hard to imagine: if the child were taken into care, or into custody, or fell ill, or if he were stranded in a remote place – these are all events that would prevent the child from being in his parent’s care. But is John’s voluntary departure an event that prevents him being in his mother’s care?
…
11. The only thing that prevented the child from being in his mother’s care in this case was his voluntary decision. I do not think that is the sort of thing contemplated by the use of the expression “an event [that] occurs in relation to the child without the adult's consent that prevents the child being in the adult's care”. I think the sub-section refers to an external event – a happening or circumstance apart from the child’s voluntary decision – that operates to prevent the child from being in the care of the parent. [8]
[8] ReLYPG and Secretary Department of Social Services and Anor [2013] AATA 719.
The Tribunal heard evidence from both the FTB child and HSBC that the HSBC household was dysfunctional and violent when the FTB child was growing up, and that there were levels of dysfunction and violence that continued beyond his father being removed from the household in 2012 and as late as March 2017. Oral evidence from the FTB child, HSBC and the FTB child’s two brothers indicate that in late 2014 and the beginning of 2015 the FTB child’s anxiety and aggression had been building, before he effectively ran away from home on 21 January 2015. The Tribunal is satisfied that the FTB child’s leaving home can be considered ‘an event occurring in relation to the child’.
HSBC was consistent in her evidence about the harm she believed was befalling the FTB child when he went to NKTQ’s house. HSBC stated that her son was allowed to smoke cigarettes, partake of drugs, and participate in underage sex while in the NKTQ household.
In her oral evidence HSBC made it clear to the Tribunal that she did not consent to the FTB child going to the NKTQ’s household. Quite the contrary; she indicated strongly that she was fearful of the environment her son was entering when he stayed with NKTQ. The Tribunal is satisfied that the event of the FTB child leaving the HSBC house for the NKTQ house occurred ‘without the adult’s consent’ where the adult was the FTB child’s mother, HSBC.
The third element of s23(1)(b) of the FA Act is that the event prevented the child from being in the adult’s care. In a letter dated 1 July 2018 the FTB child states “I have stayed with [NKTQ] since January 2015 and it has been the best decision I have made in my life”.[9] It was clear from the FTB child’s oral and written evidence, and the Tribunal does not doubt, that the FTB child believed he was escaping an abusive environment when he left the HSBC household.
[9] OP3, Letter from the FTB child.
In this matter the Tribunal is satisfied that the FTB child was escaping what he saw as a hostile environment at his mother’s house. The Tribunal can envisage situations where fear of abuse would prevent someone from returning to a household. In this case however; even though on his own evidence the FTB child became anxious, fearful or angry when he was at the HSBC residence; this may not be enough for him to have been prevented from returning to HSBC’s home.
The Guide simply requires the child to be absent, including by running away from home, for the child to be prevented to returning to the care of the person legally responsible. The Tribunal prefers the interpretation of s23(1)(b) in LYPG where more is needed than unwillingness to return on behalf of the child for the child to be prevented from returning to the adult’s care. The FTB child, his mother, and others provided evidence that the FTB child had returned to the HSBC home on many occasions over the next two years or so. For this reason, the Tribunal is not satisfied that the FTB child’s fears were so great that they prevented him from returning.
The FTB child put to the Tribunal that the main reason for his visits to the HSBC household was because he was afraid his little sister may be abused. This may have been a reason for his visits to his mother’s home, but the FTB child, NKTQ, HSBC and others described times when the FTB child entered, and on occasion stayed at the HSBC household, and the driving reason appears to have been to obtain money, to have a party, or to attempt to reconcile with his family.
For the reasons provided above the Tribunal is satisfied that the FTB child left home without his mother’s consent but that this did not prevent him from returning to his mother’s care. For this reason, s23(1)(b) of the FA Act is not met. As s23(1)(b) of the FA Act is not met, it is not possible for HSBC to be provided with payments available under s23(5) of the FA Act. In the interests of completeness, the Tribunal will consider s23(1)(c) of the FA Act.
Did HSBC take reasonable steps to have the FTB child again in her care?
The test in s23(1)(c) is not whether the Applicant did everything possible to have the child again in their care, the question is whether ‘reasonable steps’ were taken. The term ‘reasonable steps’ is not defined in the FA Act but it is well established that what is reasonable relates to the individual circumstances of the matter. In this case the circumstances include, on the one hand, that the FTB child was not living on the streets, nor was he in prison. On the other hand, HSBC has provided evidence that, at least in her belief, the FTB child was in danger.
HSBC told the Tribunal that the FTB child had moved into an unsafe environment when he moved into the NKTQ household. An environment that exposed her son to, and encouraged her son to participate in smoking, drug taking, underaged sex, and dropping out of school.
If HSBC genuinely held grave fears for her son’s well-being, the Tribunal considers it would be reasonable to expect her, in those circumstances, to have taken actions to secure the FBT child’s physical return to her care.
Instruction 2.1.1.90 of the Guide provides that:
“FTB can continue to be paid for up to 14 weeks if the individual is taking reasonable steps to have the child returned to their care. Reasonable steps include:
·notifying the police that the child is missing or has been taken from care without consent, or
·taking out a recovery order through the court.
Individuals who claim either past period or instalment payments or both must provide evidence that reasonable steps have been taken to recover care of the child. Acceptable evidence includes:
·documentation of police or court action, or
·contact information for the other person's legal representative if legal action has not yet commenced.
Where possible, a copy of the documentation should be attached to the individual's request. Otherwise Centrelink must sight the evidence and document the details with the individual's request. If there is no documentation available, Centrelink should confirm that the individual has sought legal advice with a legal representative.
What is considered reasonable for a person will depend on the circumstances of the case. The person making the claim must take reasonable steps for the recovery of the child.”
There is no evidence before the Tribunal that HSBC took any of the steps indicated in the Guide such as: notifying the police that the FTB child was missing from her care without her consent; seeking a court order for his recovery; enlisting the assistance of government departments to secure her son’s return. Given the level of concern HSBC stated that she held for the FTB child’s welfare, the Tribunal would see these or similar steps as being reasonable to expect.
While the Tribunal is satisfied that the FTB child left home on 21 January 2015 to move to the NKTQ household, I am not satisfied that, given HSBC’s expressed concerns for the FTB child’s welfare, reasonable steps were taken to compel the FTB child to return to the HSBC household. For this reason, the Tribunal finds that the FTB child had ceased to be in the care of HSBC and HSBC does not meet s23(1)(c) as she did not take reasonable steps in the circumstances for his return.
During what period, if ever, was the FTB child the FTB child of NKTQ?
It is important for the Tribunal to establish whether the FTB child was in the care of somebody other than HSBC during the relevant period in order to identify whether the FTB child returned to HSBC’s care. HSBC contends that the FTB child was in her care, variously:
· For the entire relevant period;
· Up until April 2017; and
· Up until 30 June 2016 and then 50% in her care from then on.
The FTB child was 15 years old between 21 January 2015 and 18 May 2015, and turned 18 years old on 19 May 2017 so subsections 22(2)-(3) of the FA Act are relevant and provide:
22(2) - Individual aged under 16
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).
22(3) - Individual aged 16 -17
An individual is an FTB child of the adult if:
(a)the individual has turned 16 but is aged under 18; 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); and
(e)the individual is a senior secondary school child.
This case is unusual in that there is no scope for the operation of the shared care provisions of the FA Act. For the FTB child to be in the care of NKTQ he cannot be in the care of an adult legally responsible for his care; or a person with whom he is supposed to spend time due to a family court order, registered parenting plan or parenting plan that is in force. That is, for the FTB child to be found to be the FTB child of NKTQ, the FTB child cannot have been in the care of anyone with the legal responsibility for his day-to-day care, welfare and development:
Section 22 - Legal responsibility for the individual
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.
As previously stated, the Tribunal is satisfied that the FTB child left home on 21 January 2015 and ceased to be in the care of HSBC on that date. This means that the FTB child was not in the care of anyone with the legal responsibility for his day-to-day care, welfare and development. Had the FTB child been partially in his mother’s care, he would have been in the care of a person with the legal responsibility for that care and so, could not be found to meet the circumstances of s22(c) of the FA Act. He can only be found to be the FTB child of NKTQ for periods when he was only in NKTQ’s care.
The term 'care' is not defined in the Act. Instruction 1.1.C.90 of the Family Assistance Guide (the Guide) (Annexure A) defines 'care':
For the purposes of being considered an FTB child, FA 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.
In Secretary, Department of Social Security v Lowe (1999) 92 FCR 26 the Full Court of the Federal Court considered the meaning of dependent child which was defined in s 5(2) of the Social Security Act 1991 (the Social Security Act) in terms which are identical to those set out in s 22(b) and (c) of the Family Assistance Act.
... It is wrong to regard these words as requiring the adult's immediate physical presence at all times over a period of a fortnight, or any other period. After all, most children will be at school for a large part of each year, and a few may board for weeks or months at some institution, such as a hospital, or a boarding school. Children stay at times with relatives. The delegation of daily care involved in such arrangements need not be regarded as denying the enduring role of a caring parent. While a child is at school, or in hospital, or staying with a relative, the child may remain, in a perfectly intelligible sense, "in the ...care" of a parent or parents...
The Tribunal has already discussed the finding that the FTB child moved into NKTQ house without his mother’s consent. This fact does not lend itself to there being a delegation of daily care.
Oral and written evidence indicates a meeting took place between HSBC and NKTQ in mid-2016 at which HSBC is purported to have agreed to sign over the right to family tax benefits to NKTQ from 1 July 2016 because the FTB child had been sleeping at the NKTQ household. The Tribunal attributes little weight to this evidence because the FTB child was, as we have seen, no longer in HSBC’s at that time unless it is evident that he had returned to his mother’s care before then. For this reason, the Tribunal is satisfied that HSBC did not delegate to NKTQ the authority for the FTB child’s care on 21 January 2015.
“Care period” as defined in subsection 3(1) of the FA Act “has the meaning given by subparagraph 35A(1)(a)(ii) or (2)(b)(ii) or paragraph 35B(1)(a) or (2)(b)".
The care period is the period over which care is assessed to determine the care percentages for each carer where there is more than one carer. A care period will usually (but not necessarily) begin on the day on which the care of a child starts to be shared between two or more adults, or the day on which the pattern of care changes. As previously discussed, in this case care cannot be shared so it is from the day on which the pattern of care changed, 21 January 2015.
The Tribunal is to decide, in this case, what care period should be used. The care period can be any length of time during which the carer has or will have a pattern of care for the child. The Guide at 2.1.1.50 states:
"It should be noted that a care period will generally be a 12 month period from the commencement of the care arrangements and the same care arrangements will be assumed to apply for subsequent 12 month periods, unless otherwise advised. A care period may be shorter than 12 months where care arrangements are unsettled and change on a regular basis."
The Tribunal has acknowledged that the FTB child was escaping what he believed was a hostile environment which he perceived could expose him to abuse; and he was provided with food, shelter and care at NKTQ’s. For this reason, the Tribunal is satisfied the immediate effect of the FTB child entering the NKTQ household was that he was 100% in the care of NKTQ. The Tribunal finds that the care period in this matter, absent a change in the pattern of care after 21 January 2015, is the entire relevant period from 21 January 2015 when the FTB child came under the care of NKTQ until 19 May 2017.
NKTQ in oral evidence said that the FTB child would return to the HSBC’s house during the care period, staying there up to two or three nights a month. The FTB child told the Tribunal that he returned to the HSBC home from time to time, received money and gifts, his health insurance was paid for, and HSBC signed documents for him for school and an apprenticeship. The Tribunal must determine whether, during the care period, the FTB child returned to his mother’s care.
Did the FTB child return to the care of HSBC during the relevant period?
Sections 35A and 35B of the FA Act provide that a "pattern of care" must be established over the care period so that the child was or will be the FTB child of the adult claiming FTB and at least one other individual.
The term "pattern of care" is not defined in the legislation. The use of the word "pattern" suggests that it may not include irregular or ad hoc care.
In Nowicz and Secretary, Department of Family and Community Services [2001] AATA 628 the AAT stated that:
"14. ... The apportionment must instead, be based upon a common sense appraisal of the pattern of care exhibited over a period of time. Minor variations do not affect the apportionment payable pursuant to the wording of sub-section 22(7).
15. In that regard, s 22(7) equally does not limit the Secretary's discretion to only consider care arrangements as stipulated in a Court order or parenting plan. A common sense approach necessarily means that the Secretary, and therefore this Tribunal, considers the relevant documentation, and the evidence of both parties as to what has been happening in the past, and what is intended to happen in the future, if such differs from the documentary evidence. Based upon such consideration, the Secretary is then in a position to determine what pattern of care has existed,or will exist in relation to the relevant FTB child."
In Cassidy and Secretary, Department of Family and Community Services [2006] AATA 97 it was found that in determining the pattern of care during a period of time, there is no need for precise and exact details of who cared for the child each night. Instead the FTB scheme is concerned with patterns of care over time rather than with day to day variations in that care.
The Federal Court found in Wade v Secretary, Department of Family and Community Services [2004] FCA 1660 that there was nothing in the FA Act which requires the percentage to be determined by reference to whole days that a person has care of the child. The Court accepted the overnight stay method of calculation as being consistent with the purpose and intended operation of the FA Act if it generally reflects the actual percentage of care provided.
In order to determine whether the FTB child returned to HSBC’s care during the relevant period the Tribunal has noted the qualifier in s22(7) of the FA Act and carefully considered a set of care factors from the Guide as they relate to the FTB child’s care needs and the efficacy of the care provided to him.
Section 22(7) of the FA Act operates as a qualifier to sections 22(2)(b) and (3)(b):
"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."
In this matter the Tribunal has considered a variety of approaches to determine how the facts in this case may be assessed to best ensure consistency with the purpose and intended operation of the FA Act and has settled on broadly reviewing the pattern of care in order to reflect whether that pattern changed within the relevant period following 21 January 2015 when the FTB child left his mother’s home.
Control
The Guide describes one example of care as 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.
NKTQ told the Tribunal that she had strict rules in her household about sleeping arrangements, drug use, treatment of others, maintaining school-work and general living conditions. The FTB child provided a similar story about life in the NKTQ household. NKTQ said that the FTB child followed the rules she had set and that he was a good, well-disciplined young man. This is in stark contrast with the description from HSBC who said that the FTB child, when he was around, was anxious, angry and violent kicking holes in walls, punching doors and yelling at her. HSBC said that he would steal and sell his step grandfather’s tools from the shed to feed his drug habits.
HSBC described involvement with the FTB child’s decisions about his health, education and discipline. In relation to health HSBC stated that she maintained the FTB child’s health insurance until he was 18 years old. HSBC’s evidence about involvement in decisions for the FTB child consists of her attempting to and failing to get a mental health order for the FTB child, and attempting a range of treatments to stop him smoking such as cigarette patches, kinesiology, and sound bathing (Tibetan bowls) to stop him smoking. HSBC took the FTB child to the doctors on occasion during the relevant period and paid for his health insurance as part of the family’s cover.
HSBC’s partner, NKTQ’s partner, described the FTB child as having dropped out of school and entered the FLO program where schoolwork could continue outside of a normal structured classroom environment. In oral evidence HSBC’s partner stated in oral evidence “He [the FTB child] was making his own decisions. His mother was not happy about him dropping out of school and into FLO”. HSBC’s partner in oral evidence said that he knew the FTB child from September 2014 and that he was a smart boy with potential but that he started going downhill when he got caught up with NKTQ’s daughter.
The FTB child discussed his difficulties at school commencing in 2013 when he was still living with HSBC: “I was actually not achieving at a high rate academically due to stress at home and constant mental and emotional abuse from my mother.” The FTB child provided school reports in evidence that demonstrated deteriorating results and 59.5 days of school absences in 2013 and 127.5 days of school absences in 2014.[10] The FTB child reported having improved his schoolwork, effort and grades once he was involved in the FLO program after moving into the NKTQ household.
[10] OP14.
It is clear from her own evidence that HSBC had little influence over the FTB child’s discipline with contact resulting in him yelling and breaking things. Based on HSBC’s evidence it appears to the Tribunal that she struggled to bring what was a violent and dysfunctional household back to a semblance of normality after her husband was removed. At the same time HTBC was attempting to deal with the impact that dysfunction had on her children and in particular the FTB child who was outwardly demonstrating that he was not coping.
HSBC described having concerns for the FBT child’s health and wellbeing, but her concern was insufficient in the view of the Tribunal for her to have demonstrated control.
The Tribunal, on balance, is satisfied that the FBT child did not return to HSBC’s ‘control’ as described in the Guide for the purposes of being an FTB child throughout the relevant period.
Daily responsibility for care and major decisions
The Guide provides another example of care as 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). HSBC told the Tribunal that the FBT child was always home for his meals. She stated that he would never shower anywhere but at her house, that she washed his clothes, and that she provided the moral compass attempting to save the FBT child from smoking, drug use and underage sex. Son 1 stated that the FBT child would usually eat fast food in his room at the HSBC household with his girlfriend, avoiding eating with the family.
The FBT child stated that he ate almost all meals at the NKTQ household and that his grandmother who lived with HSBC offered to do his washing for him. NKTQ also stated that she cooked the FBT child’s meals. NKTQ agreed that the FTB child sometimes took clothes to HSBC to be washed and may have showered there on occasion.
The Tribunal favours the evidence of the FTB child and NKTQ who both provided measured responses that appeared open and honest to the Tribunal. HSBC’s responses were one sided and evasive appearing to be designed to achieve the outcome she wanted from the Tribunal rather than genuinely answering the questions put to her. HSBC’s statements about the FTB child always being home for meals were not found by the Tribunal to be supported by evidence.
While HSBC asserted that the FTB child was not receiving decent emotional and moral support and guidance from NKTQ, the Tribunal is not satisfied that this is the case and HSBC’s assertions were not borne out by the FTB child’s evidence to the Tribunal which the Tribunal accepts as credible.
The Tribunal is satisfied that NKTQ was responsible from day to day for the FTB child’s care and guidance with his major decisions and that the nature of daily responsibility for his care and major decisions did not revert to HSBC during the relevant period.
Bearing the costs of daily life
FTB is a government financial support that assists families to meet the significant costs of food, accommodation, transport, clothing, school fees, health care and the like. These factors carry significant weight in relation to who provides care to an FTB child.
HSBC’s oral evidence was that she always had a bed available for the FTB child until he turned 18 years old.
The letter from the first half of 2016 from Amanda Veal, who was the FTB child’s youth case worker, that described having only picked up or met with the FTB child at NKTQ’s address has already been discussed. This letter, while undated, appears to pre-date the conflict caused by NKTQ’s claim for FTB and satisfies the Tribunal that the FBT child lived at the NKTQ’s household.
There is further evidence that the FBT child remained at the NKTQ household until late in 2016 and continued to avoid what he considered was a hostile environment at the HSBC household. Mentioning both the FBT child and his father’s views, the emotional crisis and stressors that continued in the HSBC household is recorded in a Discharge Letter from the Women’s and Children’s Hospital Registrar, Amy Tang dated 7 November 2016.[11] The FTB child, who was then 17 years old, had been delivered to hospital by police after a call out from his grandmother. The report provides some insight as to events and a diagnosis of “emotional crisis in a child or adolescent” and continues:
‘The FTB child was brought in by SAPOL after expressing thoughts about harming himself to grandmother. This is on a background of emotional stress with his family – was informed by mother yesterday that he will be kicked out of home so she could have an exchange student staying in his room when he’s moved out. He hadn’t been sleeping at home for the last 2 years as he was told he wasn’t allowed to bring his girlfriend home, hence he’s been sleeping at her house instead….
He admitted telling grandmother about him having self harm [he] thought were more of an “impulsive” act as he was “angry” at the time. Never had any plans and never will.’
[11] OP35.
The Women’s and Children’s Hospital report described the FTB child as medically and psychiatrically stable, not at acute risk to himself and others, and not psychotic. The report notes that a mental state examination had been carried out. The report also supports a conclusion that the FTB child did not believe he was welcome to return to HSBC’s household.
Even later in the relevant period there was an incident, on 24 March 2017[12], at the HSBC household when the FTB child had visited, apparently to demand money from his mother, and was involved in an altercation with his brothers that resulted in the FTB child, who was then 17 years old, receiving a black eye and various bruises from his then 20 year old brother. On 27 March 2017 Dr Tsakalos, in his consultation notes, recorded that the FTB child attended with his father.[13] That he had been punched in the face by his 20-year-old brother and presented with facial injuries. Dr Tsakalos notes that the FTB child and his father reported that HSBC was not parenting, and that the FTB child was largely living at his girlfriend’s house.
[12] OP1.
[13] OP34.
HSBC said she regularly gave the FTB child money, which she indicated he demanded for petrol and mobile phone credits. HSBC said she thought the money was being used by the FTB child to buy drugs and cigarettes. HSBC provided receipts which she claimed demonstrated that she paid for many of the expenses relating to the FTB child’s care. HSBC also bought the FTB child a car for his birthday.
The FTB child in oral evidence said that he did ask for money to survive, to buy petrol and food from time to time. He denied that he asked for money for drugs. He said that the only reason he went back to his mother’s house was because he was concerned for his little sister because he did not trust his mother’s new partner. The FTB child said that most of the money he received came from his grandmother, indicating on each of the receipts provided in evidence which of these were paid for by his mother, which by his grandmother, and which occasions he borrowed money which he repaid.
The FTB child indicated that NKTQ provided for his food and accommodation, some of his transport and phone costs, and some of his clothing. He stated that he was included in his mother’s health insurance and that he later found out that his mother had been insuring his car. The FTB child had not been receiving a regular allowance from his mother once he moved away from home, including when he was not working.
It is clear to the Tribunal from the evidence that the FTB child was living at the NKTQ household and that NKTQ had provided for the regular day to day costs of living for the FTB child, which he topped up to cover more discretionary items and services such as mobile phones, restoring vehicles and the like by coaxing money out of his grandmother, or demanded from his mother as he needed it.
For these reasons the Tribunal is satisfied that it was NKTQ who substantially bore the costs of the FTB child’s daily life for the purpose of FTB and that this factor weighs heavily against the FTB child having returned to HTBC providing care throughout the relevant period.
Arrangements related to the child's needs (e.g. appointments at school or with doctors or dentists and accompanying them on those appointments)
Evidence provided by both HSBC and NKTQ indicates that on the occasions the FTB child required medical or educational appointments each had taken responsibility from time to time during the relevant period. The Tribunal does not doubt this evidence. The FTB child was also taken to the doctor by his father, taken to educational institutions by his grandmother, by his uncle, and on occasion by his mother’s partner.
The Tribunal is satisfied that there were a few occasions when the FTB child needed to be accompanied to medical and educational appointments over the two-and-a-half-year period. Because of the FTB child’s age, level of independence, and willingness to seek help where he could get it, the Tribunal places little weight on this criterion compared with the criteria that deal with day to day care; and in particular accommodation, food, rules and support.
Being the main person for the day care, school, or college to contact in emergencies
HSBC identified documents in relation to the FTB child’s education that she had signed, and a resume she had helped the FTB child to prepare when he was seeking work.
During the relevant period the FTB child was not regularly attending school as he was in the FLO program where students complete their work off campus. The FTB child agreed that his mother continued to be listed as his contact for emergencies and that she had signed some documents.
The Tribunal is satisfied that HSBC continued to fulfill her responsibilities as HSBC’s legal guardian by signing papers for his education and health. As with the previous criterion, the Tribunal finds that this criterion carries little weight in this matter as it does not represent a significant amount of the FTB child’s care given his age, independence and capacity to seek assistance where he could get it.
Overall care
There is no evidence before the Tribunal that supports HSBC’s contention that there was a change in the FTB child’s care during the period 21 January 2015 to 18 May 2017.
The Tribunal is satisfied that the weight of evidence supports that the FTB child remained in the care of NKTQ from 21 January 2015 until 18 May 2017 and did not return to HSBC within the relevant period.
CONCLUSION
The FTB child met the criteria contained in s22(2) of the FA Act and the Tribunal is satisfied that the FTB child was in the care of HSBC until an event on 21 January 2015.
When the FTB child left home to live at the home of NKTQ on 21 January 2015, it was an event that was not consented to by HSBC. This event did not prevent the FTB child from returning to the care of HSBC. The Tribunal was not satisfied that HSBC took reasonable steps to have the FTB child returned to her care.
The FTB child ceased to be in the care of HSBC per s23(1) of the FA Act on 21 January 2015.
The Tribunal finds that the FTB child was the FTB child of NKTQ from 21 January 2015, and he did not return to the care of HSBC throughout the relevant period which the Tribunal finds matches the care period.
As the FTB child did not return to the care of HSBC up until the end of the relevant period HSBC cannot be successful in this review.
DECISION
For the above reasons the Tribunal affirms the decision under review.
I certify that the preceding one-hundred and seven (120) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood.
.............[sgnd]................................................
Administrative Assistant Legal
Dated: 4 November 2020
Date of hearing: 18 February 2019, 27 February 2019 & 2 May 2019 Applicant:
Self-represented
Solicitors for the Respondent: Ms L Odgers for Department of Social Services
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