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

Mintoff and Secretary, Department of Social Services (Social services second review) [2021] AATA 4294 (19 November 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3604
Re:John Mintoff
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndIva Mintoff
OTHER PARTY

DECISION
Tribunal:Dr L Bygrave, Member
Date:19 November 2021
Place:Sydney

The decision under review is affirmed.
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Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – percentage of care – whether change in the percentage of care – date percentage of care should apply from – types of care provided – decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) pt 3, ss 21, 22, 35B, 35P
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179.
SECONDARY MATERIALS
Family Assistance Guide, Department of Social Services, Version 1.233 released 8 November 2021.
REASONS FOR DECISION
Dr L Bygrave, Member
19 November 2021
BACKGROUND

The applicant and the other party are the separated, biological parents of five children.
The applicant was in receipt of family tax benefit on the basis that he had 100% care of their four youngest children (the children) who are currently aged between 14 years old and 18 years old.
On 30 August 2020, the other party submitted a claim for family tax benefit in which she declared that she was separated from 1 July 2018 and did not share the care of the children with another person.
Services Australia, both initially and on review, subsequently determined:
·the applicant had 50% care of the children from 1 July 2018 to 12 October 2020; and
·the other party had 50% care of the children from 1 July 2018 to 12 October 2020.
This decision was affirmed by the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) on 6 May 2021.
The applicant subsequently applied to the General Division of the Tribunal for review.
The matter was heard by the Tribunal in Sydney on 1 November 2021. The applicant and the other party appeared by videoconference; they both filed written submissions and provided oral evidence to the Tribunal.
RELEVANT LEGISLATION
The legislation relevant to this application is A New Tax System (Family Assistance) Act 1999 (Cth) (the Act). The Family Assistance Guide (the Guide) also sets out relevant government policy and 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.
Eligibility for family tax benefit
Part 3 of the Act outlines the eligibility requirements for family tax benefit: division 1, subdivision A sets out eligibility of individuals for family tax benefit in normal circumstances.
Pursuant to section 21 of the Act, a person is eligible for family tax benefit if they have at least one ‘FTB [family tax benefit] child’ in their care. Subsections 22(1) to (3) of the Act defines ‘FTB child’ when an individual is a ‘FTB child of another individual’ as follows:
(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 visaholder 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).
Individual aged 16-17
(3) An individual is an FTB child of the adult if:
(a) the individual has turned 16 but is aged under 18; and
(b) the individual is in the adult’s care; and
(c) the individual is an Australian resident, is a special category visaholder 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); and
(e) the individual is a senior secondary school child. [emphasis added]
The circumstances ‘surrounding legal responsibility for the care of the individual’ are described in subsection 22(5) of the Act as:
(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]
The Guide outlines that ‘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] Family Assistance Guide released 8 November 2021, chapter 1.1.L.20
Subsection 22(7) of the Act requires that an individual must have at least 35% care of an eligible ‘FTB child’ to be eligible for family tax benefit.
Care
Although ‘care’ is not defined in the Act, the Guide provides the following guidance about the aspects of care that should be considered:
For the purposes of being considered an FTB child, [Family Assistance] legislation refers to being in the care of an adult. Reference is also made to legal responsibility for the day-to-day care, welfare and development of the individual.
Care generally includes physical care; however, the importance of physical care decreases as the child (also refers to a young person) becomes older…
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.
When assessing levels of ‘care’ consideration of the full circumstances of each case must be taken into account to decide whether care remains with a parent, is shared with others, or is not present.[3] [emphasis added]
[3] Family Assistance Guide released 8 November 2021, chapter 1.1.C.90.
Percentage of care
Subdivision D of Part 3, Division 1 of the Act sets out determination of percentage of care. Section 35B of the Act relevantly provides:
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 or suspends, under Subdivision E of this Division (except under paragraph 35PA(3)(b) or 35QA(3)(b)), 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.
The Guide explains the following about the ‘pattern of care in a shared care determination’:
The pattern of care to be used in the shared care determination is either the pattern agreed to by all carers of the child or, if there is no such agreement, the pattern of care as established by the decision maker for the care period. A care period is the period over which care is assessed to determine the care percentages for each carer. A care period begins on the day on which the care of a child starts to be shared between 2 or more adults, or the day on which the pattern of care changes and ends when there is a subsequent change in care. It should be noted that a care period will generally be a 12 month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12 month periods, unless otherwise advised. A care period may be shorter than 12 months where the level of care is unsettled and changes on a regular basis.[4]
[4] Family Assistance Guide released 8 November 2021, chapter 2.1.1.50.
The provisions relating to the revocation of determination of percentage of care are set out at Part 3, Division 1, Subdivision E of the Act. Relevantly, section 35P of the Act states:
Determination must be revoked if there is a change to the individual’s shared care percentage
(1) The Secretary must revoke a determination of an individual’s percentage of care (the existing percentage of care) for a child made under section 35A or 35B if:
(a) the Secretary or 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
(b) 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; and
(c) subsection (2) applies in relation to the individual.
Note: The Secretary must make another determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
ISSUES
The issues for determination by the Tribunal is:
·the date the percentage of care should apply from; and
·the percentage of care that should be assigned to the applicant and the other party during the care period.
EVIDENCE
The following facts are not in dispute between the parties:
·the applicant and the other party married in 2000 and have five biological children who were born between 2001 and 2007;
·the applicant and the other party signed consent terms of settlement in the Family Court of Australia on 19 August 2020, which set out the final separation between the applicant and the other party ‘occurred in July 2018’ and made orders relating to financial payments and the ‘former matrimonial home’;[5] and
·the other party departed the former matrimonial home on 13 October 2020 with the three youngest children.
[5] Exhibit T-T6, pages 69-71.
Evidence of the applicant
The applicant disputes that he and the other party separated in July 2018. He told the Tribunal that, while he acknowledged there had been ongoing difficulties with their marriage, he did not consider the marriage was over until he contacted a solicitor in April 2019. He said that he had paid the credit card for the other party in September 2018, which he would not have done if he believed they were separated. However, he accepted that he and the other party celebrated birthdays and Christmas with their children separately from July 2018 because the situation in the household had become ‘toxic’. He also accepted that the terms of settlement stated he and the other party’s final separation was in July 2018 but said that, during the conciliation proceedings, he was more concerned with the details of settling their finances and property than with disputing the date of separation.
The applicant stated to the Tribunal that, as the sole income earner and contributor to the finances of the family, he paid all the bills including school and sporting fees, utilities and medical/private health insurance. He said he also paid the other party $1,000 per week to buy household groceries both prior to and after separation. He contended that, on the basis that he paid all the bills, he believed he was entitled to receive 100% of family tax benefit.
In a Centrelink ‘care arrangements’ form dated 30 November 2020, the applicant provided no details about other forms of care he provided his children.[6] However, he told the Tribunal had done ‘more than his fair share’ for the children including attending sport and parent-teacher interviews at school. He said he did not undertake tasks such as washing, cleaning or cooking for the children, although he periodically took the older two children out to dinner in 2019–2020. He said that both he and the other party were named as emergency contacts at the children’s schools.
[6] See Exhibit T-T11.
Both at the AAT1 hearing and this Tribunal hearing, the applicant said he provided 100% of financial care and 80% to 90% of all care to the children.[7] He provided no references from third parties or other documentation to support this submission.
[7] Exhibit T-T2, page 11.
Evidence of the other party
The other party provided written submissions and oral evidence to the Tribunal that she and the applicant separated on 1 July 2018, as this was the date of their wedding anniversary. She said that she had moved out of the marital bedroom two weeks earlier and had ceased doing the applicant’s washing and meal preparation. The other party stated that, from July 2018, she and the applicant celebrated their children’s birthdays and Christmas separately, purchased separate presents for their children, separately took their children on holidays, and their extended family members were aware they had separated. The other party said that she informed the children’s schools about their separation in early 2019.
The other party completed a Centrelink ‘care arrangements’ form on 19 November 2020 and declared that she provided 100% care of the children because she undertook 100% of the cooking, cleaning, washing, and driving to sports training, doctors, dentists, haircuts and social events. She also stated that she paid ‘half our bills whilst living together’.[8] She provided a detailed summary of the care she provided to the children in the period from July 2018 to June 2020 during a ‘typical school week’, ‘weekend activities’ and ‘school holidays activities’: this included meal preparation, driving the children to school and activities, housework, assisting the children with homework and shopping for groceries.[9]
[8] For example, see Exhibit T-T5, page 55.
[9] Exhibit T-T22.
At the Tribunal hearing, the other party said that she stopped paid employment prior to the birth of their oldest child, and the arrangement was that the applicant maintained an income and looked after the finances, and she looked after the children and their home. She said the applicant never informed her about his income, bank accounts, financial arrangements or tax returns during their marriage, or told her that he received family tax benefit until the process of financial and property settlement post-separation. She said the applicant gave her money each week to pay for groceries, petrol, chemist items, and presents and clothes for the children etc, and this had not been an issue during their marriage as they were financially ‘comfortable’. However, the other party contended that she had also contributed towards the household finances and financial care of the children because the applicant’s mother had loaned them money from 2015 and repayment of this loan was factored into the financial and property settlement.
Both at the AAT1 hearing and the Tribunal hearing, the other party submitted she provided 80% to 90% care for the children; she also filed written references about the other party taking the children to school or sport etc, and provided receipts for groceries, petrol and clothing etc for the period from March to June 2020.
CONSIDERATION
Issue: What is the date the care percentage should apply from?
The care period for the purpose of assessing the care percentage applies from the date the applicant and other party separated.
While it is not in dispute that the applicant and the other party separated and continued to live under the one roof with the children until 13 October 2020, when the other party moved out of the matrimonial home, the parties dispute the actual date of their separation.
The applicant contended that he did not separate from the other party until April 2019, while the other party submitted that they had separated by 1 July 2018.
I have considered the evidence in the terms of settlement signed by the applicant and the other party on 19 August 2020, which states the final separation occurred in July 2018. This is also consistent with the detailed chronology of dates and events filed by the other party explaining why she and the applicant had separated by 1 July 2018. This included acknowledging the marriage was over on their wedding anniversary, sleeping separately, the other party not cooking or washing for the applicant, and no longer celebrating birthdays and Christmas together, or holidaying together. In contrast, the applicant provided minimal detail for contending April 2019 was the date of separation, solely stating that this was the time he contacted a solicitor.
Weighing all the evidence before the Tribunal, I am satisfied the applicant and the other party had separated by 1 July 2018. I am also satisfied that the applicant and the other party continued to live under the one roof and the care period ended on 12 October 2020, the day before the other party moved out of the matrimonial home.
Issue: What is the percentage of care that should be assigned to the applicant and the other party during the care period?
I am satisfied the evidence before the Tribunal shows both parents were legally responsible for the care of the children in the period from 1 July 2018 to 12 October 2020.
However, the parties provide contrasting views about the care they provided the children during this care period. The applicant contended that he provided 100% of the financial care for the children as the sole income earner and also provided the majority of care for the children during the care period. In contrast, the other party submitted that she provided 100% care of the children because she undertook the day-to-day care of the children and housework.

In considering the pattern of care for the children, I am satisfied the applicant provided financial care to the children as he paid for the costs of food, education, sport and medical care. I am satisfied that he also contributed to making decisions in relation to the children by attending school and sporting events. I also find that, in the care period, the other party provided day-to-day care of the children and household through grocery shopping, the preparation of meals, cleaning and washing clothes, and making appointments related to the children’s medical, school and sporting needs. Further, she made arrangements and decisions in relation to the children. I also accept her proposition that, by factoring a share of the repayment of a loan to the applicant’s mother into the financial settlement of the legal separation, she also made a financial contribution to the care of the children.
Relevant to these circumstances, the Guide provides the following guidance in relation to the shared care of an ‘FTB child’ for a separated couple still living together:
A couple who have separated, but are still sharing a home may share the care of an FTB child. Centrelink will determine FTB eligibility and the relevant shared care percentages for each individual based on their individual circumstances and the evidence available. Generally, where each individual contributes in a similar manner to the care of the child, the care percentage will be 50%. The care percentage determined by Centrelink will remain in place until either individual provides evidence that the care arrangements for the child have changed.[10] [emphasis added]
[10] Family Assistance Guide released 8 November 2021, chapter 2.1.1.25.
While the evidence shows the applicant and the other party provided different care to the children during the care period, there is nothing in the Act or the Guide that distinguishes types of care, or elevates financial care or physical care or emotional care over another type of care. Indeed, the circumstances of the applicant and the other party – where one parent earns an income and provides financial care while the other parent undertakes the day-to-day care of the children and maintains the home – is not unusual.
I find no evidence that indicates the shared care provided by the applicant and the other party to the children during the care period should not follow the general proposition in the Guide. For these reasons, I am satisfied that both the applicant and the other party were contributing in a similar manner to the care of the children and therefore the care percentage for the applicant is 50% and the care percentage for the other party is 50%.
CONCLUSION
Section 35P of the Act requires that a determination of care percentage must be revoked if there is a change to the shared care percentage and the actual care of the children does not correspond with the existing percentage of care.
Based on the evidence, I am satisfied the existing percentage of care determinations for the children (of 100% for the applicant and 0% for the other party) must be revoked pursuant to section 35P of the Act. The date of effect of the revocation is 30 June 2018, the date prior to the day the change of care occurred.
In accordance with section 35B of the Act, I find the applicant’s percentage of care for the children was 50% and the other party’s percentage of care for the children was 50% for the care period from 1 July 2018 to 12 October 2020.
DECISION
The decision under review is affirmed.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 19 November 2021

Date(s) of hearing: 1 November 2021

Applicant: In person

Advocate for the Respondent: Ms Bellona Dzang, Services Australia

Other Party: In person

[2021] AATA 4294

19 November 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date(s) of hearing:	1 November 2021
Applicant:	In person
Advocate for the Respondent:	Ms Bellona Dzang, Services Australia
Other Party:	In person