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

[2023] AATA 2475

KYRZ and Secretary, Department of Social Services (Social services second review) [2023] AATA 2475 (13 July 2023)

Division:GENERAL DIVISION

File Number(s):      2022/1507

Re:KYRZ

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndHHDZ

OTHER PARTY

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:13 July 2023

Date of written reasons:        11 August 2023

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that the decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 31 January 2022 is set aside; and in substitution, decides that HHDZ had 100% care of the children until 27 March 2021 and KYRZ had 100% care of the children from 28 March 2021.

......[SGD]..................................................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – Entitlement to Family Tax Benefit Payments – Pattern of care between parents – Determination of care percentage – Decision under review set aside and substituted

LEGISLATION

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

Child Support (Assessment) Act 1989 (Cth)

SECONDARY MATERIALS

Social Security Guide

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

11 August 2023

1. The Applicant (father) and the Other Party (mother) are the separated parents of three children, aged 10, 8 and 6. The reviewable decision relates to the two older children, a son, and a daughter (the children). The Tribunal is required to determine childcare percentages for the children for the purposes of distributing Family Tax Benefit (FTB) between the parents. The Respondent adopted a neutral position on factual issues. Mr M. Gauci, solicitor, appeared for the Respondent.

2. The reviewable decision was made on 31 January 2022 by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).[1] The AAT1 found that the mother had 100% care of the children until 5 May 2021 and that the father had 100% care from 6 May 2021.

   [1] T2, 8.

3. The AAT1 set aside a decision made by an authorised review officer (ARO) of Services Australia (Centrelink), that the children were in the Applicant’s care from 28 March 2021.[2] The ARO had affirmed a decision previously made by Centrelink.[3]

   [2] T20, 119.

   [3] T19, 117.

4. The present application by the father for review of the AAT1 decision was heard on 6 and 13 July 2023. The father attended the hearing and gave evidence. He was self-represented.

5. The mother did not appear at the hearing. I am satisfied that she had adequate notice of the hearing.  

6. I am satisfied that the father had care for the children from 28 March 2021. I am satisfied that there was no agreement to support a finding that their stay in Sydney was intended by the parents to be of a finite or limited duration.

7. I therefore decided to set aside the AAT1 decision and, in substitution, determined that the mother had 100% care of the children until 27 March 2021, and the father had 100% care of the children from 28 March 2021.

8. The Applicant requested written reasons which I now provide.

   MATERIALS BEFORE THE TRIBUNAL

9. The Tribunal was provided with the following materials:

   (a)Applicant’s statement filed on 9 November 2022 together with various documents relating to ongoing proceedings in the Family Court.

   (b)Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 31 January 2023

   (c)Documents provided under section 37 of the AAT Act (the T docs) (240 pages) divided as follows:

   (i)Section I (both parties)

   (ii)Section II – Applicant only

   (iii)Section III – Other Party only

10. The Other Party did not file any materials in these proceedings in addition to those contained within the T docs.

    LEGISLATIVE FRAMEWORK

11. FTB is provided for under the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act). Section 21 of the Act provides for a person’s eligibility for FTB if they have at least one ‘FTB child’ in their care. If more than one adult has care of an FTB child, 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 section 59 of the Act.

12. Legislative provisions relating to the determination of the percentage of care are set out in Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).  Section 49 applies where there is no pattern of care. Section 50 applies where there is a pattern of care.

13. I also note paragraph 2.1.1.85 of the Social Security Guide, which provides:

    Temporary & short term care

    Where possible, FTB should be paid to the individual who has the care of a child. However, in some situations, FTB may continue to be paid to a parent who does not have the care of a child. For example, if the change of care is temporary, short term, and informal and the intention is that the child will return to the parent within a short period, the parent will continue to be paid FTB. However in all but the most extenuating circumstances, the total temporary and short-term absence for FTB purposes, should not exceed 4 weeks. After this period, the actual carer should receive the FTB, provided they are eligible and entitled. The continued payment of FTB beyond a 4-week absence to the parent could only occur if the parent's involvement in the child's care increased to a sufficient degree.

    …

    Ongoing care

    When it is clear from the outset that a child will be in ongoing care, then the carer will be eligible for FTB from the date the child enters their care. When care has been on a temporary and short-term basis and it subsequently becomes ongoing, a change of care applies at the point it becomes ongoing and FTB may be payable.

14. Instruction 2.1.1.70 of the Guide provides further details with respect to actual care in circumstances where there is no care arrangement:

    Where there is no care arrangement (1.1.C.05) in place for the care of the child, an interim period will not apply. A care arrangement does not exist where parents have only a verbal agreement for the care of a child.

    In cases where individuals are in dispute about care and they do not have a care arrangement in place, the care in the assessment will be based on the actual level of care each parent is providing.

    Example: When Karen and Tony separated, they entered into a verbal agreement for the care of their children. Under the agreement, Karen had care of their children. On one particular occasion, the children visit Tony, and he decides not to return the children to Karen as he wishes to retain care. Tony lodges a claim for FTB for the children. Karen does not consent to the change of care. Karen applies for a hearing at the Family Law Court to get sole legal responsibility for the children and have them returned to her care. Karen loses eligibility for FTB as soon as the children leave her care. She does not meet the requirements to have her eligibility extended because a verbal agreement does not constitute a care arrangement. Tony has retained joint legal responsibility for the children, they are in his care, and he meets the eligibility requirements for FTB.

15. The Respondent helpfully summarised the approach that should be followed by the Tribunal in a case such as the present:[4]

    68. The Tribunal is required to consider whether there was a change in the pattern and percentage of care that the Applicant provided to the children in the care period and, if there was a change, when it took place.

    69. In circumstances where the parties disagree on the pattern of care, the Tribunal must determine the actual pattern of care based on the available evidence.

    70. If the Tribunal finds that there was a change in the percentage of care, it must revoke the existing determination if it determines that the shared care percentage would change as a result of new care percentage, or it determines that the new care percentage would not be in the same percentage range as the individual’s existing percentage of care (subparagraph 35P(1)(b)(i) and (ii) of the Act.)

    71. If the Tribunal finds that there was a change in the percentage of care, it has a discretion to revoke the existing determination if the ‘other percentage would not be the same as the individual’s existing percentage of care’ and section 35P does not apply (subsection 35Q(1) of the Act).

    72. If the Tribunal revokes the existing care determination, it must determine a new percentage of care based on the actual care that the Applicant provided in the care period (subsection 35B(2) of the Act).

    [4] See Respondent’s Statement of Facts, Issues and Contentions.

    ORAL EVIDENCE

16. The father gave the following evidence:

    (a)He was the father of three children, aged 10, 8 and 6.

    (b)The mother lived with him in the family home in Sydney until 20 April 2020, when she took all three children to Bundaberg, Queensland.

    (c)He did not consent to the relocation of the children to Queensland.

    (d)He did not institute proceedings for the recovery of the children.

    (e)He was unable to get an exemption to cross into Queensland because of border restrictions. 

    (f)In August 2020, his youngest son was the victim of child abuse, while in the mother’s sister’s care.[5]

    [5] See Applicant’s Materials, 22 [61]-[70].

    (g)In December 2020, he went to Queensland and with the agreement of the mother stayed with the children in hotel accommodation. He had not seen the children since they left Sydney in April 2020.

    (h)His relationship with the mother was ‘on a thin hope and prayer’. She had severe health problems. The children told him that they often stayed with Katrina, a childcare worker. Their mother told him to collect the children from Katrina.

    (i)The mother made a complaint about him to child welfare authorities, and he had some contact with a welfare officer but resented the intrusion.

    (j)The mother asked him to take the youngest child back to Sydney when he returned in January 2021. This child has developmental issues and suffers from facial dysmorphism with chromosomal mutation.

    (k)The older children remained in Queensland.

    (l)In March 2021, the mother asked him to collect the children because she was ‘not coping’. He flew to Brisbane and returned with the children on 28 March 2021.

    (m)He had the sole care of the children from 28 March 2021.

    (n)There was no agreement as to how long the children would stay in Sydney. He did not broach the issue because, as he put it, ‘I was a yes man at that point’.

    (o)On 4 May 2021, his daughter had dental surgery, a complex procedure requiring anaesthesia.

    (p)On 6 May 2021, the children spoke to their mother by video. They said they wanted to stay in Sydney. The call was recorded. He spoke to the mother. She said that she wanted the children back and that she would start legal proceedings.

    (q)In the days following, he communicated with the mother about the children’s belongings. He offered to drive to Queensland to collect them. She agreed and packed their things into boxes. He drove to Bundaberg and collected them.

    (r)On 19 May 2021, he contacted Centrelink.

    (s)On 24 May 2021, he enrolled the children into their previous NSW school.[6]

    (t)There were no court orders in place. He had not been served with any legal process.

    (u)She provided no financial support for the children.

    [6] T5, 51, T6, 56; T11, 76, T12, 78. See AAT1, T2, 12 [25].

17. The Respondent identified the following documents within the T docs relevant to the father’s exposition:

    (a)Flight itinerary for 28 March 2021 for father and the children.[7]

    (b)Various photographs relating to boxes.[8]

    (c)Documents relating to medical treatment for daughter scheduled for 4 May 2021.[9]

    (d)Letter from a pastor dated 16 May 2021.[10]

    (e)School enrolment forms dated 24 May 2021.[11] 

    (f)Form FA012 (‘Details of your child's care arrangements’ form) lodged on 27 May 2021.[12]

    [7] T8, 64; T29,165.

    [8] T5, 54; T6, 57; T7, 59.

    [9] T9, 67; T10, 73; T30, 170; T31,176.

    [10] T13, 91; T32, 190.

    [11] T5, 52; T28, 162; T11, 77; T12, 79.

    [12] T13, 81; T31,180.

18. As noted above, the mother did not appear before the Tribunal.

19. However, she gave evidence to the AAT1 that she agreed to allow the children to spend the Easter holidays with him, and later agreed to an extension to allow her daughter to have the dental operation on 4 May 2021. She expected that the children would return to her care thereafter.

20. The Respondent identified documents within the T docs relevant to the mother’s position:

    (a)A letter from Mr Grey dated 15 April 2021 responding to her request for additional childcare for the children.[13]

    (b)Letter of Dr Nguyen dated 21 April 2021.[14]

    (c)Text messages between the Applicant and Other Party.[15]

    (d)Email exchange between the Other Party and the childcare provider.[16]

    (e)Correspondence from Legal Aid dated 15 September 2021.[17]

    (f)Statement of Mr Grey dated 24 December 2021.[18]

    [13] T4, 50; T38, 203.

    [14] T14, 93; T39, 205.

    [15]  T16, 97-103; T17, 105-113.

    [16] T22,122-126; T42, 212-216.

    [17] T22, 131-137; T42, 221-227.

    [18] T22, 138.

21. It is regrettable that the mother did not appear before the Tribunal. I note that according to the AAT1 decision:

    Ms [HHDZ] sought legal assistance to recover the children as evidenced by the email from Cranston McEachern Lawyers to Legal Aid dated 15 September 2021, letter dated 25 August 2021 from Edon Place, a domestic and family violence service in Bundaberg requesting assistance on her behalf to access legal services, and a certificate dated 21 May 2021 by a Dispute Resolution Services Co-ordinator indicating that [HHDZ] attempted to resolve the family dispute through family dispute resolution but that the conference could not be arranged.[19]

    [19] T2, 12.

22. This resort to legal process did not occur until September 2021, some six months after the children returned to Sydney with their father on 28 March 2021, and it appears that the consultation arose largely in relation to the mother’s application for a Protection Order based on text exchanges between the parents. It provides only a slender basis for finding that the parents had agreed to a short-term visit to Sydney over Easter.

23. It appears that in March 2021, while the relationship between the parents was strained, they were still capable of entering into cordial arrangements for the benefit of the children, and in cooperating for their mutual benefit. The underlying strain is nevertheless apparent in what appears as an intentional ambiguity in some of their caring arrangements. Hearing directly from the mother may have dispelled some of these ambiguities.

24. Nevertheless, the following findings are supported by the evidence before the Tribunal:

    (a)There was no formal agreement between the parents for the care of the children in the care period ending on 28 March 2021.

    (b)On 28 March 2021, the children travelled with their father to Sydney.

    (c)The mother agreed to the children going with their father to Sydney, and there was no agreement between them as to when, if at all, they would return.

    (d)On 6 May 2021, the children informed the mother that they did not wish to return to Bundaberg.

    (e)On 24 May 2021, the father enrolled the children in school in Sydney.

    CONSIDERATION

25. I accept the father’s evidence that there was no formal agreement between him and the mother regarding care of the children.

26. I am satisfied, on the balance of probabilities, that:

    (a)There was no formal agreement between the parents regarding care of the children during 2021.

    (b)There was no informal care agreement in place between the parents on 28 March 2021 when the children travelled to Sydney to the effect that they would be returned to Queensland at the end of the Easter holidays.

    (c)The mother agreed that her daughter should have dental work in Sydney after the Easter break.

    (d)On 24 May 2021, the children were enrolled in school in Sydney.

27. For these reasons, I am satisfied that the existing percentage of care determination should be revoked under section 35P of the Assessment Act, on the basis that as of 28 March 2021 the circumstances of actual care did not correspond with the existing determination. Under section 35K the revocation takes effect at the end of the day before the care determination ends, that being 27 March 2021. The new determination thus commences on 28 March 2021. In the absence of a formal agreement, the percentage of care should align with the actual care provided to the children.

28. I find that from the 28 March 2021 the father had 100% care of the children and the mother had 0% care.

    DECISION

29. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that the decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 31 January 2022 is set aside; and in substitution, decides that HHDZ had 100% care of the children until 27 March 2021 and KYRZ had 100% care of the children from 28 March 2021.

I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 11 August 2023

Date(s) of hearing:	6 and 13 July 2023
Applicant:	In person
Solicitors for the Respondent:	Mr M. Gauci, Hunt & Hunt Lawyers
Other Party:	No appearance