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

[2019] AATA 4966

Louis and Secretary, Department of Social Services (Social services second review) [2019] AATA 4966 (25 November 2019)

Division:GENERAL DIVISION

File Number:           2019/1861

Re:Skye Louis

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndJosephine Harris

JOINED PARTY

DECISION

Tribunal:Dr L Bygrave, Member

Date:25 November 2019

Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides that Miss Skye Louis had 100% care of the child ‘R’ in the period from 1 August 2017 to 1 November 2017.

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

Dr L Bygrave, Member

CATCHWORDS

FAMILY TAX BENEFIT – percentage of care – date on which child left applicant’s care contested – whether change of care or delegation of care – legal responsibility – insufficient evidence to establish which party had legal responsibility of child in care period –  where child transient – decision set aside and substituted

LEGISLATION

A New Tax System (Family Assistance) Act 1999(Cth) ss 21, 22
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, 11 November 2019

REASONS FOR DECISION

Dr L Bygrave, Member

25 November 2019

INTRODUCTION

1. The applicant, Miss Skye Louis, is the biological mother of ‘R’ who is currently 15 years old. Mrs Josephine Harris, the other party in this application, is the paternal grandmother of ‘R’ and Mr Glen Harris, the second other party, is the biological father of ‘R’. Mrs Harris and Mr Harris reside at the same address.

2. The parties agree that ‘R’ was in the care of Miss Louis until 1 August 2017.

3. On 20 November 2017, Mrs Harris lodged a claim for family tax benefit (FTB) on the basis that she had 100% care of ‘R’ from 1 August 2017. The Department of Human Services (the Department) subsequently made a care decision on 21 December 2017 that ‘R’ was 100% in the care of Mrs Harris from 1 August 2017 (the care decision).

4. On 22 May 2018, an authorised review officer of the Department set aside the care decision and decided that:

   ·‘R’ did not enter Mrs Harris’ ongoing care on 1 August 2017;

   ·Miss Louis had 100% care of ‘R’ from 1 August 2017;

   ·‘R’ left Miss Louis’ care and was temporarily in Mr Harris’ care for a period of three weeks from 20 November 2017 (the temporary care period); and

   ·the care of ‘R’ may have been delegated to Mrs Harris during the temporary care period but Mr Harris did not relinquish his legal responsibility for the care of ‘R’.

5. On 12 March 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) decided that Mrs Harris had 100% care of ‘R’ in the period from 1 September 2017 to 12 January 2018.

6. Miss Louis subsequently applied to the General Division of the Tribunal for review and determination about the percentage of care for ‘R’ that should be assigned to Miss Louis and Mrs Harris during the period from 1 August 2017 to 12 January 2018.

7. The matter was heard by the Tribunal in Sydney on 3 October 2019. Miss Louis appeared by telephone and Mrs Harris appeared in person at the hearing. They both filed supporting documents and provided oral evidence to the Tribunal.

   RELEVANT LEGISLATION AND ISSUE

8. The relevant legislation to this application is A New Tax System (Family Assistance) Act 1999 (Cth) (the 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.

9. Pursuant to section 21 of the 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 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]

10. This means that for Miss Louis to be eligible for FTB, she must be able to show that she was legally responsible for the day-to-day care, welfare and development of ‘R’ or that ‘R’ was not in the care of anyone with legal responsibility for him.

11. ‘Legal responsibility’ is defined in the Guide as:

    …the right to have and to make decisions concerning the day-to-day care, welfare and development of a child. Both parents are legally responsible for their child, except where:

    ·they agree that one parent should have greater or sole responsibility, or

    ·a court makes an order that changes their responsibility in a particular matter.[2]

    [2] See chapter 1.1.L.20

12. In considering whether Mrs Harris meets subsection 22(5) of the Act, it is therefore relevant to consider whether there was a change of care or a delegation of care. Relevantly, the Guide sets out the following in relation to delegation of care in informal care situations:

    Where an individual delegates the care of their child to another individual, FTB is not payable to the other individual. Common examples of delegated care include a child attending child care (either formal child care or care by a relative/friend), attending boarding school or staying with a grandparent, other relative or family friend.

    The following circumstances should exist for a care arrangement to be considered a delegation of care:

    ·The individual should retain overall responsibility for the child including the ability to make major decisions about the child such as those relating to the child’s health and education and the length of time they spend with the other carer.

    ·The care arrangement should be short term and temporary (rather than open ended or ongoing). There should be a defined end date to the care arrangement. Where there is no documentary evidence which confirms when the care arrangement will end (such as a letter…from an employer, school), the intention of the individual should be considered.

    ·The individual should be meeting, or at least substantially contributing to, the child’s costs. This includes day to day costs (food, accommodation, transport etc) and long term costs (school fees, clothing, health and dental care).[3]

    If it cannot be established that delegation of care exists, it is likely that a change of care has occurred.

    [3] See chapter 2.1.1.85.

13. ‘Care’ is not defined in the Act; however, the Guide provides the following guidance:

    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.[4]

    [4] See chapter 1.1.C.90.

14. The Guide also provides the following policy guidance regarding a care period for FTB assessments:

    …A care period of 12 months from the commencement of the care arrangements will generally be used where the care arrangements are ongoing. The same care arrangements will be assumed to apply for subsequent 12 month periods, unless otherwise advised. If there is no agreed ongoing pattern of care and the care arrangements only apply to a period shorter than 12 months, a one-off shorter care period may be determined.[5]

    [5] See chapter 1.1.C.100.

15. The Secretary’s written submissions prior the hearing set out the care period for the purpose of Miss Louis’ application as the period from 1 August 2017 to 12 January 2018. At the hearing, however, Miss Louis conceded that she did not have care of ‘R’ for the period from 2 November 2017 to 12 January 2018. Mrs Harris also conceded to the Tribunal that she did not have care of ‘R’ from 1 August 2017 to 1 October 2017.   

16. Based on these concessions by the parties, the issue for determination by the Tribunal is when the change in who provided care for ‘R’ occurred, and who had care for him during the subsequent care period.

    EVIDENCE

17. The following chronology is not in dispute between the parties.

18. ‘R’ commenced high school in January 2017. Due to behavioural issues, ‘R’ was suspended from high school on five occasions during the 2017 school year.

19. In the period from January 2017 to 22 September 2017, all correspondence regarding ‘R’’s behaviour, misconduct, discipline and suspensions from his high school (including from the deputy principal, school counsellor, head teacher and class teacher) was sent solely to Miss Louis.

20. New South Wales school holidays commenced on 23 September 2017 and finished on 8 October 2017.

21. On 11 October 2017, the high school head teacher sent Miss Louis a parent notification letter stating that ‘R’ was required to attend ‘after school reflection’.[6]

    [6] Exhibit T-T6, page 41.

22. A letter from ‘R’’s high school principal dated 2 November 2017 addressed to Miss Louis stated that ‘R’ was suspended from attending high school for the period from 2 November 2017 to 29 November 2017 inclusive. This letter noted that ‘R’’s support person during his meeting with high school staff on 2 November 2017 was his father, Mr Harris. The letter also requested Miss Louis assist the school principal to ‘resolve the matter’ and to attend ‘a resolution meeting’ at the school, and ‘be responsible for the supervision, care and safety of [R] while on suspension’.[7]

    [7] Exhibit T-T6, page 42.

    Evidence of Miss Louis

23. Miss Louis told the Tribunal that, following her separation from Mr Harris in March 2009, ‘R’ has lived with her except for specified occasions that were set out in final orders made in the Family Court in October 2015. During the period from January 2017 to October 2017, Miss Louis said that ‘R’ was 100% in her care: she explained that ‘R’ stayed most nights with her although he would sleep one or two nights each fortnight at the home of his close friend. Miss Louis described preparing breakfast, afternoon tea and dinner for ‘R’; engaging with high school staff in relation to his behaviour, discipline and conduct; and organising and purchasing a new school uniform for ‘R’. In the period prior to 1 November 2017, Miss Louis said that ‘R’ ‘rarely’ stayed with his father, Mr Harris, who lived at his parent’s home that was approximately 200 metres ‘down the road’ from Miss Louis’ home.  

24. Miss Louis said that ‘R’ was suspended from high school for the fifth time on 2 November 2017. She described him as ‘out of control’ and she told him to stay with his father, Mr Harris, because his behaviour was ‘taking a toll’ on the family. She said that ‘R’ packed a small bag of clothes and left the home. From 2 November 2017, Miss Louis continued to have regular telephone contact with ‘R’ and she saw him each Monday to give him lunch money. Miss Louis said that ‘R’ told her that he was staying with his aunt (Mr Harris’ sister, Julie) from mid-November 2017. She said that when school holidays commenced on 16 December 2017, ‘R’ would spend every second or third day with Miss Louis and/or his siblings. By 12 January 2018, ‘R’ had showed remorse for his behaviour and Miss Louis allowed him to return home.

25. Miss Louis’ mother, Ms Susan Mason, provided oral evidence that her mother (Miss Louis’ grandmother) passed away on 18 September 2017 and the funeral was on 25 September 2017. Ms Mason stated to the Tribunal that ‘R’ attended the funeral with his mother and was living with Miss Louis at that time. She said that ‘R’ was not living with Miss Louis during November to December 2017, although he spent part of Christmas day with his maternal family.

    Evidence of Mrs Harris

26. Mrs Harris provided an undated written statement and gave oral evidence to the Tribunal.

27. On 20 November 2017, Mrs Harris lodged a claim for FTB for the care she provided to ‘R’ from 1 August 2017. At the hearing, Mrs Harris stated that she ‘made a mistake’ and ‘R’ did not live with her until 1 October 2017. Mrs Harris said that she believed that her care for ‘R’ commenced on 1 October 2017 when he ‘brought his clothes over’. She said that ‘R’ was at school at this time and she described getting ‘R’ up for school, feeding him and washing his clothes. She noted that she was primarily taking care of ‘R’ even though ‘R’’s father was living at the same home and said their care arrangement was ‘informal’. Mrs Harris acknowledged that she had no interactions with ‘R’’s high school or with anyone outside her family regarding her care of ‘R’.

28. Mrs Harris told the Tribunal she shared the care of ‘R’ with her daughter, Julie, from 1 October 2017 to 1 November 2017. She said that after ‘R’ was suspended from high school on 2 November 2017, he lived with his aunt (Julie) at least four or five nights a week. Mrs Harris said she gave money to Julie to purchase ‘R’ a mobile phone and shoes: she said she gave Julie ‘all the FTB money’ because she was ‘providing more care for ‘R’’. Mrs Harris stated that she paid for food, a couple of shirts and $10 phone credit while ‘R’ was in her care. Mrs Harris accepted that ‘R’ returned to live with Miss Louis from 12 January 2018.

29. Mr Harris gave evidence to the Tribunal that his mother (Mrs Harris) and his sister (Julie) shared care of ‘R’ in the period from September 2017 to January 2018. He explained the arrangement was that ‘R’ would stay with his aunt (Julie) at least four nights a week as ‘R’ had a close relationship with his cousins.

30. Mrs Harris also filed various statements with the Tribunal. These included a handwritten statement signed by Mr Harris (written by Mrs Harris) and typed statements from two friends / neighbours that stated ‘R’ resided with Mrs Harris from 17 August 2017 to 17 December 2017. I note the dates in each of these statements about when ‘R’ resided with Mrs Harris is not consistent with Mrs Harris’ oral evidence to the Tribunal; as I was unable to verify the origin of two of the statements, I place no weight on this evidence.

    CONSIDERATION

31. Applications relating to the care percentage of a FTB child in circumstances where parents have separated can lead to heightened emotions and unpleasant conduct. This matter was no different with the behaviour of the parties affecting the credibility of their oral evidence to the Tribunal.

32. I make the following observations about the evidence of the parties.

33. The oral evidence of Mrs Harris and Mr Harris contained significant inconsistencies in relation to Mrs Harris’ care for ‘R’ during the relevant care period. While Mrs Harris told the Tribunal that ‘R’ did not live at her home until 1 October 2017, Mr Harris contended in his written statement that ‘R’ lived with them from 17 August 2017 and he told the Tribunal in his oral evidence with ‘R’ stayed with them from September 2017. These inconsistencies undermined the credibility of their evidence. There were also clear errors about dates in the oral evidence of Mrs Harris: for example, she stated that ‘R’ was attending school when he began to live at her home from 1 October 2017. However, this would not have been possible as New South Wales school holidays continued until 8 October 2017.

34. I accept Mrs Harris’ evidence to the Tribunal that ‘R’ lived with his aunt (Julie) five days a week and at her home two days a week from when he was suspended from high school on 2 November 2017 until he returned to live with Miss Louis on 12 January 2018. This was supported by Mrs Harris’ statement that she gave Julie ‘all the FTB money’ because she was ‘providing more care for ‘R’’.

35. I further note there is no objective evidence before me to support Mrs Harris’ contention that she had 100% care of ‘R’ in the period from 1 October 2017 to 1 November 2017.

36. Conversely, Miss Louis’ oral evidence about her care for ‘R’ during the period from 1 August 2017 to 1 November 2017 was supported by objective evidence in the form of numerous letters addressed solely to her from ‘R’’s high school until 2 November 2017. These letters support Miss Louis’ evidence that ‘R’ resided with her until 2 November 2017, the date ‘R’ was suspended from school and she told him to live with his father, Mr Harris.      

37. Weighing all the evidence before me, I am satisfied that Miss Louis was legally responsible for the day-to-day care, welfare and development of ‘R’ for the period from 1 August 2017 to 1 November 2017. This means that she had 100% care of ‘R’ from 1 August 2017 to 1 November 2017, which was consistent with the normal pattern of care already existing.

38. However, for the purposes of eligibility for FTB pursuant to the Act, I cannot be satisfied about who had legal responsibility for the day-to-day care, welfare and development of ‘R’ for the period from 2 November 2017 to 12 January 2018. This is because ‘R’ was effectively transient during this period, staying between the home of Mrs Harris and Mr Harris and the home of Ms Julie Harris, and I am unable to be satisfied that any formal care arrangements were in place.

    DECISION

39. The decision under review is set aside and, in substitution, the Tribunal decides that Miss Skye Louis had 100% care of the child ‘R’ in the period from 1 August 2017 to 1 November 2017.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 25 November 2019

Date(s) of hearing:	3 October 2019
Applicant:	By telephone
Solicitors for the Respondent:	S Agnello, Department of Human Services
Other Party:	In person