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

[2018] AATA 3011

Jorgensen and Secretary, Department of Social Services (Social services second review) [2018] AATA 3011 (17 August 2018)

Division:GENERAL DIVISION

File Number(s):      2016/5267

Re:Gary Jorgensen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndSarah Rose

OTHER PARTY

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:17 August 2018

Place:Brisbane

The decision under review is affirmed.

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Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – family tax benefit – percentage of care – whether there was a change in the percentage of care – when the parties had care of the child – percentage of care is correct – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999

CASES

Re Warne and Department of Families, Community Services and Indigenous Affairs [2006] AATA 159

SECONDARY MATERIALS

Decision-making in the public sector: getting it right, The Honourable Justice Garry Downes AM, former President of the Administrative Appeals Tribunal

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

17 August 2018

BACKGROUND

1. The applicant and the other party are the separated parents of the relevant child. The applicant was a recipient of a family tax benefit (“FTB”) in respect of the child.

2. On 9 December 2010, the Federal Magistrates Court of Australia made orders relating to the parenting and care arrangements for the child.[1]

   [1] Exhibit A, T-Documents, T4.

3. In 2012, the applicant and the other party agreed to vary the court orders such that the applicant and the other party had 44 per cent care and 56 per cent care of the child respectively.[2]

   [2] Exhibit A, T-Documents, T5.

4. On 16 October 2012, the Social Security Appeals Tribunal confirmed this care percentage calculation.

5. On 7 March 2016, the Department of Human Services revoked the existing care arrangements and determined that from 14 April 2014, the applicant had 99 per cent care of the child and the other party had 1 per cent care.[3] This determination was made on the basis of several third party statements and other documents suggesting the child lived primarily with the applicant.[4]

   [3] Exhibit A, T-Documents, T38, at p. 217, and T46.

   [4] Exhibit A, T-Documents, T9 - T33.

6. On 17 May 2016, the other party applied for review of this determination by an Authorised Review Officer (“ARO”), submitting that she had 56 per cent care of the child.[5]

   [5] Exhibit A, T-Documents, T76, at p. 476-478.

7. On 15 June 2016, the ARO affirmed the decision under review.[6]

   [6] Exhibit A, T-Documents, T34 & T64.

8. On 24 June 2016, the other party applied for review to the Social Services and Child Support Division of this Tribunal.

9. On 15 August 2016, the Social Services and Child Support Division varied the decision of the ARO such that the percentage of care for the child during the period of 14 April 2014 to 7 March 2016 was 44 per cent to the applicant and 56 per cent to the other party.[7] 

   [7] Exhibit A, T-Documents, T2.

10. On 30 September 2015, the applicant applied for review of this decision with this Tribunal.[8]  

    [8] Exhibit A, T-Documents, T37.

    LEGISLATION

11. A New Tax System (Family Assistance) Act 1999 (“the Act”) sets out the qualifying criteria and provisions to calculate FTB including in the case of shared care arrangements.

12. Section 22 provides:

    22       When an individual is an FTB child of another individual

    (1)  An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

    Individual aged under 16

    (2)An individual is an FTB child of the adult if:

    (a)the individual is aged under 16; and

    (b)the individual is in the adult’s care; and

    (c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and

    (d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).

    …

    Legal responsibility for the individual

    (5)The circumstances surrounding legal responsibility for the care of the individual are:

    (a) the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; or

    (b) under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or

    (c)the individual is not in the care of anyone with the legal responsibility for the day to day care, welfare and development of the individual.

    …

    Percentage of care at least 35%

    (7)If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.

13. The term ‘percentage of care’ is defined in section 3 of the Act:

    percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.

14. Section 23 of the Act makes provision for where an FTB child is prevented from being in the care of a person who is eligible for FTB.

15. Section 25 of the Act provides:

    25       Effect of an individual’s percentage of care for a child being less than 35%

    If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.

16. The Act sets out the requirements for the Secretary to determine the percentage of care in relation to a child not in the care of a person: see section 35A.

17. Section 35B sets out the requirements of the Secretary to determine the percentage of care in relation to a child when in the care of a person.

    35B     Determination of percentage of care—child is in the adult’s care

    Initial determination

    (1)  If:

    (a)  the Secretary is satisfied that there has been, or will be, a pattern of care for a child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of more than one individual; and

    (b)  one of those individuals (the adult), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and

    (c)  the adult is not a partner of at least one of the other individuals referred to in paragraph (a);

    the Secretary must determine the adult’s percentage of care for the child during the care period.

    Determination after revocation

    (2)  If:

    (a)  the Secretary revokes, under Subdivision E of this Division, a determination of an individual’s (the adult) percentage of care for a child that was made under section 35A or this section; and

    (b)  the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and

    (c)  the adult is not a partner of at least one of those other individuals;

    the Secretary must determine the adult’s percentage of care for the child during the care period.

    Percentage of care

    (3)  The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.

    (4)  Despite subsection (3), if section 35C, 35D or 35G applies in relation to the adult, the Secretary must determine the adult’s percentage of care under subsection (1) or (2) in accordance with that section.

18. Section 35J of the Act outlines that care can be determined with reference to the number of nights a child is in the care of an adult:

    35J      Working out actual care, and extent of care, of a child

    (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, 35D or 35H.

19. Section 59 of the Act provides:

    59Shared care percentages where individual is FTB child of more than one person who are not members of the same couple

    (1)  An individual has a shared care percentage under this section for an FTB child of the individual if:

    (a)  the Secretary has determined the individual’s percentage of care for the child during a care period; and

    (b)  that percentage is at least 35% and not more than 65%.

    (2)The individual’s shared care percentage for the FTB child is the relevant percentage specified in column 2 of the table.

Shared care percentages
Item	Column 1 Individual’s percentage of care	Column 2 Shared care percentage
1	35% to less than 48%	25% plus 2% for each percentage point over 35%
2	48% to 52%	50%
3	more than 52% to 65%	51% plus 2% for each percentage point over 53%

(3) If the shared care percentages, specified in the table, of all of the individuals of whom the child is an FTB child add to less than 100%, then the Secretary may determine a different whole percentage for one or more of those individuals for the FTB child. Despite subsection (2), the individual’s shared care percentage for the child is the percentage so determined for that individual.

1. Any new care determination cannot be made unless the existing care determination is revoked. The provisions relating to the revoking of an existing care determination are contained in sections 35P to 35S of the Act. The relevant sections provide:

   35P      Determination must be revoked if there is a change to the individual's shared care percentage etc.

   (1)  If:

   (a)  a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and

   (b)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and

   (c)  the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child; and

   (d)  the Secretary is satisfied:

   (i)  that the individual’s shared care percentage for the child would change if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child; or

   (ii)  that, if the Secretary were to determine under that section another percentage to be the individual’s percentage of care for the child, the other percentage would not be in the same percentage range as the individual’s existing percentage of care;

   the Secretary must revoke the determination.

   Note:          The Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

   (2)  Each of the following is a percentage range:

   (a)  0% to less than 14%;

   (b)  14% to less than 35%;

   (c)  48% to 52%;

   (d)  more than 65% to 86%;

   (e)  more than 86% to 100%.

   (3)  The revocation of the determination takes effect at the end of:

   (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

   (b)  otherwise—the day before the change of care day for the individual.

   35Q     Secretary may revoke a determination of an individual’s percentage of care

   (1)  If:

   (a)  a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and

   (b)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and

   (c)  the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child; and

   (d)  the Secretary is satisfied that, if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child, the other percentage would not be the same as the individual’s existing percentage of care for the child; and

   (e)  section 35P does not apply;

   the Secretary may revoke the determination.

   Note:          If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

   (2)  If the Secretary revokes the determination, the revocation takes effect at the end of:

   (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

   (b)  otherwise—the day before the change of care day for the individual.

   EVIDENCE

2. The statements provided by the applicant’s witnesses supported the contention of the applicant that the child resided with him at least 80 per of the time, with their percentage of care apportionments ranging from 80 per cent to 100 per cent care.

3. The applicant gave evidence that while the amended court orders were in place during the relevant period, they were not being followed and that he had the child for the majority of the time since 2013. The applicant asserted that he provided full care of the child and that the other party was rarely interested in seeing the child. The applicant submitted that the other party’s care of the child varied and several weeks would pass without her making contact with the child.[9] The applicant gave evidence that he had care of the child at least 80 per cent of the time during the relevant period.[10]

   [9] Exhibit A, T-Documents, T30.

   [10] Exhibit A, T-Documents, T37, at p. 207; and applicant’s oral submissions.

4. When the other party completed the “details of your child’s care arrangements” form on

   
   

   7 December 2015 she reported that she had the child 60 per cent of the time and the applicant had him 40 per cent of the time.[11] She reiterated this percentage of care in the care arrangements form dated 4 January 2016.[12]

   [11] Exhibit A, T-Documents, T43.

   [12] Exhibit A, T-Documents, T45.

5. The other party gave evidence that at all times to the best of her ability she tried to abide by the court order and that the child was in her care approximately 56 per cent of the time. She considered that most of the time the court order was followed unless she was studying or the applicant refused to return the child. There is evidence in the T-Documents that the applicant would withhold the child on various occasions.[13] There is also evidence of a history of domestic violence between the applicant and the other party.

   [13] Exhibit A, T-Documents, T44.

6. The other party submitted various statements and the general consensus was that she usually had the child every Monday, Tuesday and Wednesday; every second Thursday; every second weekend and most of the school holidays during the relevant period.[14]  

   [14] Exhibit A, T-Documents, T64.

7. Mr Mobbs and Mr Wooley considered that the child was with the other party most nights during the week and a lot on weekends and holidays.[15]

   [15] Exhibit A, T-Documents, T49, at p. 257.

   CONSIDERATION

8. The relevant care period under review is from 14 April 2014 to 7 March 2016. At the commencement of this care period the court order which was in force (as amended by consent in 2012) provided for the care percentage for the child to be 56% for the other party and 44% for the applicant. 

9. To determine the relevant percentage of care, I have to determine the pattern of care for the child based on the evidence, including the three volumes of T-Documents and the other documentation which has been tendered. As explained by Deputy President Hack in Re Warne and Department of Families, Community Services and Indigenous Affairs,[16] the Tribunal uses a “broad brush approach” when making decisions.

   [16] [2006] AATA 159, [25] DP Hack S.C.

10. I am also required to consider whether there has been a change in the pattern of care and if there has been, when this change occurred. The respondent pointed out that potentially the “hours in care” approach may be more suitable than the “nights in care” approach as the evidence indicates irregular hours of care when the other party was studying or on placement.[17] Certainly, in making a determination under section 35J of the Act the Secretary is not restricted to using the “nights in care” approach. However, there is no cogent evidence before me which would enable me to make a determination based on the “hours in care” approach. I see no reason not to apply the “nights in care” approach. It is the only method of assessment referred to in section 35J of the Act and, while not mandatory, is usually followed in cases such as this.

    [17] Exhibit B, Respondent’s Statement of Facts, Issues and Contentions, at p. 9.

11. When considering the pattern of care of the child, this Tribunal is not restricted to the contact outlined in any court orders. The Tribunal must consider the evidence to determine the pattern of care. Before the Social Services and Child Support Division the applicant contended that the court order was not being followed in 2013. However, the applicant only claimed that there was a change to the FTB care percentage of the child from 14 April 2014 when he moved into a new residence. Sometime after moving house the applicant provided an undated statement to the Department in which he remarked: “Since moving house in April 14th 2014 [the child] has been living with me 99%. [The child’s] Mother knows that he is here with me and has minimal contact with [the child]”.[18] The applicant also provided a number of statements in support of his contention.

    [18] Exhibit A, T-Documents, T8, at p. 115.

12. On 7 March 2016 it was determined that the care percentage for the child was 99% to the applicant and 1% to the other party. Shortly after this decision was made the Department wrote to the other party on 18 March 2016 to invite her to support her contention that her care percentage was 1%. It is not apparent why that letter was sent to the other party, because the contention that the care percentage was 1% was in fact advanced by the applicant.

13. It is also not apparent that the other party was aware of this contention before the decision was made on 7 March 2016. A fundamental difficulty with the process of making that decision of 7 March 2016 is that it was made without the other party being consulted. A previous President of the Tribunal has pointed out that, in cases involving child support payments, “both parties have an interest”.[19] The other party was not given an opportunity to make submissions to counter this contention or provide evidence on this issue.

    [19] Decision-making in the public sector: getting it right, The Honourable Justice Garry Downes AM, former President of the Administrative Appeals Tribunal, delivered to The Law Society of New South Wales Government Solicitors, CLE Conference, NSW Parliament House, 15 September 2009.

1. There were a number of reasons why there was a need to ensure that the other party was accorded procedural fairness. The applicant had quite properly disclosed in his undated statement that the school records had the applicant down as the primary carer. In such circumstances the contention of the applicant that he had the care of the child for “99%” should not have been readily accepted without further enquiry. Another matter of concern is that in 2012 both the applicant and the other party had consented to a court order that provided for the applicant to have 44% care of the child. It is, of course, quite possible for the applicant to have care of the child substantially in excess of what was provided in the court order but before such a finding can be reached further enquiries should have been made. This is particularly the case where prior to the decision being made on 7 March 2016 the other party had provided forms to the Department on 7 December 2015[20] and 4 January 2016[21] in which she stated that she had the child 60% of the time and the applicant had the child for 40% of the time.

   [20] Exhibit A, T-Documents, T43, at p. 234.

   [21] Exhibit A, T-Documents, T45, at p. 248.

2. After the decision of the Social Services and Child Support Division was made the applicant then made submissions in his letter dated 25 September 2016. In that letter he confirmed that he did inform the Social Services and Child Support Division that the parenting order had not been followed since 2013 and asserted that he “did not realise or think that it would have an impact on things”. It can be inferred that the “impact” he referred to was the amount of FTB. He also asserted that the child “was living with me 85-90% of the time and occasionally would visit his Mother’s place during the day time and sometimes stay the night, never more than two nights”.[22]

   [22] Exhibit A, T-Documents, T37, at p. 206.

3. The applicant has given various estimates of the pattern of care of the child. In his initial statement to the Department he stated that he had the care of the child for “99%”. In his letter dated 25 September 2016 he claimed that the child “was living with me 85-90% of the time”. In his evidence before the Tribunal he stated that he had care of the child for at least 80% of the time. The evidence of the applicant has certainly not been consistent as to his care of the child and, for that reason, is not accepted by me as reliable.

4. The tenor of the various statements that the applicant had initially provided to the Department was that during the care period the applicant had sole care of the child.[23] However, the writer of one such statement informed the Social Services and Child Support Division that she was not in a position to give evidence as to the overnight care of the child. Statements dated 5 June 2015 and 21 July 2015 were similarly worded in containing assertions that the child was residing with the applicant for “nearly 100% of the time”.[24] Some other statements[25] contain assertions that the applicant had a 99% percentage of care. 

   [23] Exhibit A, T-Documents, T14, at p. 122; T19, at p. 140; T25, at p. 158.

   [24] Exhibit A, T-Documents, T11, at p. 119; T14, at p. 122; T24, at p. 155.

   [25] Exhibit A, T-Documents, T21, at p. 147; T22, at p. 150.

5. For a number of reasons, I do not give great weight to these statements which have been provided by relatives, friends and neighbours of the applicant. The statements are not consistent with the evidence of the applicant before this Tribunal that he had care of the child for at least 80% of the time. The statements do not assist me in my inquiry to ascertain the number of nights that the child was in the care of the applicant during the care period. The statements do not address this question.

6. Some persons who have provided statements have changed their estimates of the care percentage of the applicant contained in those statements. One statement that was provided on 18 January 2016[26] contained an assertion that the child was living with the applicant for 100% of the time; the person who provided that statement later provided another statement dated 3 February 2017 in which she asserted that the child lived with the applicant for 85-90% of the time during the relevant period. Another statement that was initially provided contained an assertion that the applicant had “the majority of care”[27] of the child; the person who provided that statement later provided another statement dated 6 March 2007 in which he stated that the applicant had “at least 80%” care. The later statement does not contain any explanation of why that percentage of care was selected; however, it is the same percentage of care that the applicant gave in evidence before this Tribunal. One person who stated that the child lived with the applicant “nearly 100% of the time”[28] later provided a statement dated 24 January 2017 in which she stated that the child lived with the applicant “for approximately 80-90% of the time”. These statements cannot be regarded as reliable indicators of the care percentage of the applicant during the care period.   

   [26] Exhibit A, T-Documents, T19, at p. 140.

   [27] Exhibit A, T-Documents, T12, at p. 120.

   [28] Exhibit A, T-Documents, T14, at p. 122.

7. I have already mentioned that the applicant has himself provided three different estimates about his percentage of care of the child. The applicant has not provided any calendar evidence to substantiate his care of his child during the care period. There is some calendar evidence which relates to after the care period. The statements provided by the applicant were made by persons who did not demonstrate that they have any first-hand knowledge in relation to the nights in care of the child. In contrast the accounts that were provided by the other party to the Department, to the Social Services and Child Support Division and to the General Division have been generally consistent. Her evidence is also plausible as it is consistent with the court order that was amended by consent. The other party was in my opinion a credible witness and I rely upon her evidence.

   DECISION

8. I affirm the decision under review.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated:            17 August 2018

Dates of hearing:  22 May 2017

10 August 2017         

The Applicant:  In person

The Other Party:  In person  

Advocate for the Respondent:           Claire Campbell       

Solicitors for the Respondent:           Department of Human Services