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

[2019] AATA 5397

JTCV and Secretary, Department of Social Services (Social services second review) [2019] AATA 5397 (12 December 2019)

Division:GENERAL DIVISION

File Number:          2019/2927

Re:JTCV

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndPLVJ

OTHER PARTY

DECISION

Tribunal:Dr L Bygrave, Member

Date:12 December 2019

Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides that the applicant’s percentage of care is 33% and the other party’s percentage of care is 67% for the period of 12 months from 28 November 2017.

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Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – percentage of care – whether pattern of care should be based on hours of care or nights in care – where final court orders – where no basis to enliven the discretion to use the actual number of hours of care to determine pattern of care arrangements – decision set aside and substituted

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 25, 35B, 35J, 59
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179

SECONDARY MATERIALS

Guides to Social Policy Law, Family Assistance Guide

REASONS FOR DECISION

Dr L Bygrave, Member

12 December 2019

INTRODUCTION

1. The applicant (JTCV) and the other party (PLVJ) are the parents of ‘A’ who is nine years old.

2. JTCV and PLVJ claim they separated and lived under the same roof from 5 February 2014 until 27 November 2017.

3. On 23 November 2017, Harper J of the Federal Circuit Court of Australia made final orders regarding the time that ‘A’ spends with JTCV and PLVJ (the final court orders).

4. PLVJ lodged a ‘Details of your child’s care arrangements’ form with the Department of Human Services (the Department) on 7 December 2017. The Department subsequently decided, both initially and on review, that PLVJ’s percentage of care for ‘A’ was 73% and JTCV’s percentage of care for ‘A’ was 27% for the period of 12 months from 28 November 2017.

5. JTCV applied for review to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) and, on 30 April 2019, the SSCSD decided that PLVJ’s percentage of care for ‘A’ was 72% and JTCV’s percentage of care for ‘A’ was 28% for the period of 12 months from 28 November 2017.

6. JTCV subsequently applied to the General Division of the Tribunal for review.

7. The matter was heard in Sydney on 3 December 2019. JTCV appeared in person and PLVJ appeared by telephone at the hearing. They both filed supporting documents and provided oral evidence to the Tribunal.

   ISSUES

8. The issues for determination by the Tribunal are:

   ·what percentage of care should be assigned to JTCV and PLVJ for the period of 12 months from 28 November 2017 (the relevant care period); and

   ·whether the pattern of care for this matter should be based on ‘hours of care’ or  ‘nights in care’.

   RELEVANT LEGISLATION

9. The legislation relevant to this application is A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). Relevant government policy is set out in the Family Assistance Guide (the Guide), which should be considered unless there are cogent reasons not to do so.[1]

   [1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179.

10. Pursuant to section 21 of the Family Assistance Act, a person is eligible for FTB if they have at least one ‘FTB child’ in their care. In circumstances where an individual aged under 16 is the ‘FTB child’ of another person, subsection 22(5) of the Family Assistance Act sets out the following circumstances regarding ‘legal responsibility’ for the care of 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. [emphasis added]

11. Section 25 of the Family Assistance Act provides that if an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child of that individual for any part of the care period. A ‘care period’ is not defined in the legislation: however, the Guide sets out that a care period will generally be a 12 month period from the commencement of the care arrangements.[2]

    [2] See chapter 1.1.C.100.

12. Provisions for ‘shared care’ are further outlined in the Family Assistance Act: section 59 provides that an individual has a shared care percentage for an FTB child if their percentage of care for the child during a care period is at least 35% and not more than 65%.

13. There must be a determination of the individual’s percentage of care in order to apply section 59 of the Family Assistance Act. In accordance with subsection 35B(3), a percentage of care with respect to an FTB child must correspond with the actual care an individual has of the child during a care period.

14. Section 35J of the Family Assistance Act is relevant to working out the actual care and extent of care of an FTB child. In particular, subsection 35J(1) provides that:

    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.

15. The Guide also provides the following guidance regarding ‘nights in care’ versus ‘hours of care’:

    Generally a pattern of care is based on the number of nights in a care period where an individual has the overnight care of an FTB child. A person with the overnight care of a child is regarded as having had care of the child for that day…

    There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days in care.[3]

    [3] See chapter 2.1.1.45.

    EVIDENCE

16. The final court orders made on 23 November 2017 outline the following times ‘A’ was to spend time with JTCV during the relevant care period:

    During school terms:

    Week 1: from after school Tuesday to before school Wednesday;

    Week 2: (a) from after school Tuesday to before school Wednesday;

    (b) from after school Friday to 5pm Saturday…

    During school holidays:

    (i) one half of the school holidays between terms 1 and 2, 2 and 3, 3 and 4…

    (ii) week about during the Christmas school holiday period…

    During Easter:

    From 5:00pm Easter Saturday until 5:00pm Easter Monday…

    During Christmas:…

    From 12 noon Christmas Day until 12 noon on Boxing Day…

17. The final court orders also set out that in the event PLVJ travels overseas without ‘A’, then ‘A’ shall remain in JTCV’s care until PLVJ returns.

18. In their oral evidence to the Tribunal, both JTCV and PLVJ confirmed that they abided ‘strictly’ and ‘100%’ by the final court orders made on 23 November 2017.

19. However, JTCV submitted that previous calculations of the number of nights he had care for ‘A’ did not include an additional nine nights of care he provided ‘A’ from 7 April 2018 to 16 April 2018 when PLVJ travelled overseas without ‘A’. He also contended that he had care of ‘A’ for half of the school holidays: he noted that school holidays commenced after school on a Friday and resumed before school on a Tuesday and therefore there are an additional ‘16 days of school holidays’ that he shares care of ‘A’ with PLVJ.

    CONSIDERATION

20. Based on the evidence, I am satisfied that JTCV had care of ‘A’ for the following number of nights during the relevant care period:

    ·School terms: three nights per fortnight for 40 weeks of school = 60 nights;

    ·School holidays: NSW public schools holidays (including ‘school development days’) were:

    oFriday 15 December 2017 to Tuesday 30 January 2018 (46 nights / 2);

    oFriday 13 April 2018 to Tuesday 1 May 2018 (18 nights / 2);

    oFriday 6 July 2018 to Tuesday 24 July 2018 (18 nights / 2); and

    oFriday 28 September 2018 to Monday 15 October 2018 (17 nights / 2) = 49.5 days;

    ·PLVJ overseas: JTCV provided care for ‘A’ from 7 April 2018 to 16 April 2018 = 9 nights (in addition to the usual nights he provided care for ‘A’);

    ·Easter: 5pm Easter Saturday (31 March 2018) to 5pm Easter Monday (2 April 2018) = 2 nights;

    ·Christmas: 12 noon Christmas Day to 12 noon Boxing Day = 1 night.

21. Therefore, the total number of nights JTCV had care of ‘A’ from 28 November 2017 for a period of 12 months was 121.5 (33%). In making this finding, I note the final court orders only describe JTCV’s and PLVJ’s care for ‘A’ as ‘week about during the Christmas school holiday period’: however, neither JTCV nor PLCJ provided evidence to the Tribunal about the number of nights of care they provided ‘A’ during the school holidays period from Friday 15 December 2017 to Tuesday 30 January 2018. This means that, depending on the ‘week about’ of care JTCV provided for ‘A’, the calculation above may include an extra night of care (Christmas night) for JTCV.

22. Having regard to government policy set out in the Guide, I am satisfied that generally a pattern of care is based on the number of nights in a care period because a person with the overnight care of a child is regarded as having care of the child for that day. JTCV provided no evidence to the Tribunal that demonstrated how counting the nights of care did not accurately reflect the caring arrangements for ‘A’ during the relevant care period. I therefore find no reason to enliven the discretion in the Guide to use the actual number of hours of care to determine the pattern of care arrangements.

    DECISION

23. The decision under review is set aside and, in substitution, the Tribunal decides that JTCV’s percentage of care is 33% and PLVJ’s percentage of care is 67% for the period of 12 months from 28 November 2017.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 12 December 2019

Date(s) of hearing:	3 December 2019
Applicant:	In person
Solicitors for the Respondent:	B Salaji, Department of Human Services
Other Party:	In person