JDKD and Secretary, Department of Social Services (Child support second review)

JDKD and Secretary, Department of Social Services (Child support second review) [2021] AATA 4434 (30 November 2021)
Division:GENERAL DIVISION
File Number: 2021/4392
Re:JDKD
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndPVBS
OTHER PARTY

DECISION
Tribunal:Member West
Date:30 November 2021
Place:Melbourne

The Tribunal affirms the decision under review.
........[Sdg]..........................................................
Member West
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
FAMILY TAX BENEFIT- shared care of child - change of care percentage – date of change – determination of new percentage of care - application for review – decision affirmed
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
P v Child Support Registrar [2013] FCA 1312

Polec v Staker and Another [2011] FMCAfam 959
Secondary Materials
Family Assistance Guide
REASONS FOR DECISION
Member West
30 November 2021
BACKGROUND

This matter concerns an application for review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal of 1 June 2021 affirming a decision of an authorised review officer of Services Australia on 2 September 2020 that the Applicant had 40% care of his son from 5 September 2019.
The Applicant (Father) and the Other Party (Mother) are the separated parents of their son B.
The Respondent’s records state that the percentage of care for the Father was assessed as 50% as at 28 March 2018 and 39% as at 29 August 2019.[1]
[1] T13 at p.150.
On 18 October 2019 the Federal Circuit Court made consent parenting orders[2] providing for the care of B (Court Order). The Court Order relevantly provided for the discharge of previous court orders and provided for B to live with the Mother and for both parents to have equal shared parental responsibility. It further provided for B to spend time and communicate with the Father on a two-week rotation with week 1 commencing on Thursday 5 September 2019.
[2] T4.
On 4 March 2020 the Mother signed a Details of your child care arrangements form[3] stating that the care arrangement under the Court Order started on 5 September 2019.
[3] T5.
On 9 April 2020 Services Australia decided that the Applicant had 38% care of B from
[4] T6.
5 September 2019[4] (Original Decision).
On 27 July 2020 the Father wrote to Services Australia and asked for a reassessment of the percentage determined in the Original Decision.[5] On 19 August 2020 the Father lodged calendars for the 2019 and 2020 years and a care estimator.[6]
[5] T7 at p.91.
[6] T8.
On 2 September 2020 an authorised review officer (ARO) made a decision[7] to vary the Original Decision by changing the care percentage for the Father to 40% from 5 September 2019 (ARO Decision).
[7] T9.
On 31 March 2021 the Father applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal to review the ARO decision (AAT1 Review).[8]
[8] T11.
On 1 June 2021 the Social Services & Child Support Division affirmed the ARO Decision[9] (AAT 1 Decision).
[9] T2.
On 29 June 2021 the Father applied to the General Division of the Tribunal for a review of the AAT 1 Decision (Application).
HEARING
A hearing of the Application was conducted by telephone on 4 November 2021. The Mother and the Father were self-represented. The Respondent was represented by Mr Tim Noonan, a solicitor with Services Australia. Mr Noonan appeared on the basis that the proceedings were essentially concerned with a dispute between the parents and his role was confined to assisting the Tribunal in eliciting evidence and identifying and applying the relevant legislative provisions to the evidence.
In conducting the Second Tier Review, the Tribunal has had regard to:
(a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (‘T-Documents’ and Supplementary or ‘ST Documents’);
(b)the oral submissions of the Mother and the Father;
(c)a draft minute of consent order with handwritten notations and bearing the date
28 August 2019; and
(d)
a bundle of letters from the Father to Services Australia, dated 7 October 2021,

25 June 2021, 21 February 2021, 12 October 2020, 29 September 2020 and

20 August 2020 with attached care calculators.
LEGISLATION
The legislation relevant to the determination of the Application is:
(a)A New Tax System (Family Assistance) Act 1999 (Act)
(b)A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act); and
(c)The AAT Act.
The Act provides for the payment of the family tax benefit (FTB) to assist eligible families with the cost of raising children.
If more than one adult has care of an ‘FTB child’[10], clause 11 of Schedule 1 of the Act provides for the rate to be assessed on the basis of the shared care percentage as determined in accordance with s 59. This requires the decision maker to weigh the available evidence to decide whether there is a pattern of care and decide the appropriate shared care percentages arising from that pattern of care. This requires an assessment over a ‘care period’.[11] The terms ‘care’ and ‘care period’ are not defined in the Act.
[10] Section 22(7) of the Act states that 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.
[11] See ss 35A and 35B for how the determination is made.
Governmental policy as contained in the Family Assistance Guide[12] (Guide) indicates that a care period of 12 months from the commencement of the care arrangements will generally be used where the care arrangements are ongoing.
[12] The Tribunal is not bound by this policy but must take it into account and will usually follow it unless there are cogent reasons not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.
The extent of care that is provided is a question of fact and will depend on the facts and circumstances of the particular case.[13] While regard may be had to a range of factors, including the extent to which the person meets various needs of the child, such as accommodation, clothing, food, transport, education and health care and provides financial support[14], s 35J of the Act 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.
[13] P v Child Support Registrar [2013] FCA 1312.
[14]Polec v Staker and Another [2011] FMCAfam 959.
Under s 35P of the Act the Respondent must revoke a determination of an individual’s care percentage if it is notified or becomes aware that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care. This requires the decision-maker to determine the appropriate date for any change and to make a new determination.
ISSUES
The issues for determination in this matter are:
(a)whether there was a change in the percentage of care arrangement for B, warranting the revocation of the existing determination of percentage care, and if so,
(b)what new percentage of care should be determined and from what date.
CONSIDERATION
The issues in this case are easily stated.
In the ARO Decision (as affirmed in the AAT 1 Review) it was determined that the care arrangements for B were changed by the making of the Court Order with effect from
5 September 2019, and that this change warranted the revocation of the determination made in the Original Decision and the making of a new percentage determination. The ARO assessed the new percentage of care to be 40% based on the time B was to spend with the Father in the twelve months following the 5 September 2019 (Care Period) under the terms of the Court Order.
The Father’s sole assertion on review was that the effective date for the change of care arrangements under the Court Order was not 5 September 2019 but 29 August 2019. He argued that by applying this date to the time B was to spend with him during the twelve month period following the change, the new percentage of care should be determined as 41%.
Accordingly, an essential consideration on review is the question of the date upon which the changes to the care arrangements for B under the Court Order took effect.
The Court Order was made formally on 18 October 2019 and states that it was made ‘by consent in accordance with the attached Minutes of proposed orders signed by the parties and placed on the Court file’.[15] The engrossed minute annexed to the Court Order states clearly that ‘all previous orders with respect to…[B]… be discharged’ and that B ‘spend time and communicate’ with the Father in a two week rotation with the arrangements for Week 1 to commence Thursday 5 September 2019.
[15] T4 at p.59.
The Father asserted that minutes of a proposed consent order were presented to the Court on 28 August 2019 and that it was understood that the new arrangements for care of B would commence with the Week 2 arrangements from 29 August 2019 because Father’s Day fell on Sunday 1 September 2019. The Father produced a draft minute of consent order with some handwritten notations bearing the date 28 August 2019. There were no notations on the draft in relation to the specific clause related to the care arrangements which would indicate that Week 2 arrangements would apply from 29 August 2019. The Mother strenuously denied that this was ever agreed.
In the circumstances the Tribunal finds that the change of care arrangements resulting from the Court Order should be taken from the 5 September 2019. This is the date specifically ordered by the Court for the commencement of the arrangement and the Father has not produced any compelling evidence to persuade the Tribunal that it should not accept the date determined by the Court.
The basis for the finding of a care percentage of 40% is set out in some detail in the ARO Decision.[16] It lists some 148 days of care during the Care Period based on the Court Order. The Father also produced a list of days he said justified his calculation of a percentage of 41%. They were set out in a care estimator included in the bundle of documents he tendered. The Tribunal has closely examined the list of days used in each calculation. The Father’s list is in complete agreement with those used by the ARO for the months of September, October and November 2019 and February, March, April, May, June, July and August 2020. While there is some discrepancy between the actual days identified for the Father’s care of B during January 2020, both sets of dates total 18 for the month. The only month in which there is some inconsistency is in December 2019. In that respect the Father acknowledged that his record of days of care for that month were not completely reliable.
[16] T9 at pp.100-102.
On this basis the Tribunal accepts the finding of the ARO as confirmed in the AAT 1 Decision that the percentage of care should be based on 148 days of care by the Father in the Care Period commencing on 5 September 2019 and that this percentage is 40.55% which is to be rounded down to 40% in accordance with s 35M of the Act.[17]
[17] Section 35M of the Act states:
In view of these findings the correct and preferable decision is to affirm the decision under review.
DECISION
The decision under review is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member R West

...[SDG]..................................................................
Associate
Dated: 30 November 2021

Date of hearing:

4 November 2021

Applicant:
Other Party:

By telephone

By telephone

Solicitor for the Respondent:

Mr Tim Noonan

If an individual’s percentage of care determined under this Subdivision is not a whole percentage:
(a) if the percentage is greater than 50%—the percentage is rounded up to the nearest whole percentage; and

(b) if the percentage is less than 50%—the percentage is rounded down to the nearest whole percentage.

[2021] AATA 4434

30 November 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Statutory Construction

Procedural Fairness

Appeal

Jurisdiction