Mr R and Secretary, Department of Social Services Ms I OTHER PARTY
[2014] AATA 628
•3 September 2014
[2014] AATA 628
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0798
Re
Mr R
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Ms I
OTHER PARTY
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 3 September 2014 Place Sydney The decision under review is set aside. In substitution it is determined that:
·During the period 28 January 2012 to 31 October 2012, the percentage of care for both children was 67% in favour of the father (Mr R), and 33% in favour of the mother (Ms I).
·During the period 1 November 2012 to 21 December 2012, the percentage of care for S was 74% in favour of the father (Mr R) and 26% in favour of the mother (Ms I)
·During the period 1 November 2012 to 21 December 2012, the percentage of care for M was 41% in favour of the father (Mr R) and 59% in favour of the mother (Ms I).
........................[sgd]................................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – percentage of care – shared care – care periods - decision under review set aside
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth), ss 3, 22(7), 25, 35B, 35M, 35P, 35J, 35P, 35Q, 59
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), s 111(1)
CASES
Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405
Re Drake and Minister for Immigration and Ethnic Affairs (1979) AATA 17
Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 73
QFZS and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2013] AATA 98Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607
SECONDARY MATERIALS
Guide to Family Assistance Law, Pt 2.1.1.25
REASONS FOR DECISION
Ms N Isenberg, Senior Member
3 September 2014
INTRODUCTION
The applicant Mr R (‘the father’), and the other party, Ms I (‘the mother’), are the parents of two children, S and M, now aged 13 and 9, respectively.
Since the couple separated, their arrangements with respect to the children have been determined by successive Orders of the Federal Magistrates Court/Federal Circuit Court or Family Court of Australia (‘the Orders’) commencing in February 2007:
·On 22 February 2007, the orders were that the children were to live with the mother but spend specified periods of time with the father.
·On 1 April 2008, orders were made that the children were to continue to live with the mother, but varying the periods the children were to spend with the father.
·On 7 February 2012, interim consent orders were made that for a period of six months, the children were to live with the father, with specified periods to be spent with the mother.
·On 23 July 2012, orders were made under which, relevantly, the interim orders made on 7 February 2012 were to cease on 7 August 2012, after which the orders made on 1 April 2008 were to again apply.
·On 15 August 2012, the mother’s solicitor wrote to the father’s solicitors, proposing changes to the care arrangements set out in the interim orders dated 7 February 2012. On 19 September 2012, the father’s solicitors agreed to the care arrangements proposed by the mother, but did not agree to meet the children's costs of travelling to visit her on the Gold Coast.
·Further orders were made on at least 3 subsequent occasions from 2013.
BACKGROUND TO APPLICATION
On 6 September 2012 Centrelink determined that the mother should be recorded as having 22% care of the children from 28 January 2012 to 22 July 2012 and 73% care of the children from 23 July 2012. Because her percentage of care was less than 35% for the period 28 January 2012 to 22 July 2012 she received no Family Tax Benefit (FTB) for that period: see s.22(7) A New Tax System (Family Assistance) Act 1999 (Cth) ('the FA Act').
On 2 February 2013, an Authorised Review Officer (ARO) decided as follows:
·the father had 67% care of S from 28 January 2012;
·the father had 67% care of M from 28 January 2012 to 8 December 2012;
·the father had less than 35% care of M from 9 December 2012 to 20 December 2012;
·the father had 67% care of M from 21 December 2012.
The mother sought review by the SSAT and on 31 January 2014 the SSAT varied the ARO’s decision of 2 February 2013 and found that:
·the father had 67% care of the children from 28 January 2012 to 30 November 2012; and
·each parent had 50% care of the children from 1 December 2012.
The father now seeks review by this Tribunal.
PERIOD UNDER REVIEW
The Secretary submitted that the relevant period under review in this application is from 28 January 2012 to 21 December 2012. The original decision determined percentages of care, including the percentage of care of the children ‘from 23 July 2012’. On 2 February 2013, an ARO varied that decision and made findings in relation to the parents’ respective care percentages for the period including the percentage of care of the children ‘from 21 December 2012’. That decision was reviewed by the SSAT pursuant to s 111(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘the Administration Act’). The SSAT’s decision was made within the temporal scope of the ARO’s decision, namely for the period 28 January 2012 until 1 December 2012, and from 1 December 2012. It did not, however, review the ARO’s decision ‘from 21 December 2012’.
It is the SSAT’s decision which is for review. The Tribunal has previously recognised that it has no power to make a decision 'outside the scope' of the decision under review: QFZS and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2013] AATA 98 at [11]. Therefore, the relevant period for this review can be no greater than that addressed by the SSAT, namely 28 January 2012 to 21 December 2012. If the pattern of care in respect of the children changed after that date, it is appropriate for the parties to apply to Centrelink for a determination in respect of the new care period(s).
Much of the evidence given by the parties related to what had occurred after 21 December 2012 and was therefore irrelevant to the matter under review.
LEGISLATIVE SCHEME
Subsection 22(7) of the FA Act provides FTB is not payable if an individual's percentage of care for a child during a care period is less than 35%.
Section 59 of the Act deals with situations where an FTB Child is an FTB Child in relation to two or more individuals, who are not members of a couple. Section 59 allows FTB to be apportioned between those two people. In order to apply s 59, a determination of the individual's percentage of care must be made by the Secretary under s 35A or s 35B of the Act.
Section 35B is relevant to this application and provides, relevantly, as follows:
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.
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.
Section 35J of the Act deals with the determination of actual care and states as follows:
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.
Aside from s 35J, the Act is not prescriptive as to how the decision-maker determines the actual care a person has in respect of an FTB Child. However, the Guide to Family Assistance Law (‘the Guide’) does offer some further guidance on the department's approach to determining percentage of care in shared care situations.
Part 2.1.1.25 of the Guide (reproduced in full at T4, p19-21) states as follows in relation to determination of a person's percentage of care:
Where 2 or more adults, who are not members of a couple, have care of an FTB Child, a determination must be made as to each adult's percentage of care for the child.
Where possible, the percentage to be applied in the shared care determination should be:
·The percentage of care agreed to by all parties who share the care of the child; or
·The agreed pattern of care.
Where the carers do not agree on the care arrangements, the decision maker will determine the care percentage to be applied based on the available evidence of the actual pattern of care.
Part 2.1.1.50 of the Guide (T4, p27-30) sets out the department's policy on steps to be taken in making a determination where there is no agreed percentage of care, by reference to a pattern of care:
Step 1 - Establish the pattern of care: In cases such as the present matter in which there is disagreement over the pattern of care, the decision maker should establish the pattern of care for the relevant care period. Guidance for the purpose of establishing the pattern of care is contained at section 2.1.1.45 of the Policy. In general, 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.
Step 2 - Work out the percentage of care: After establishing the pattern of care during the care period, the number of nights in care is divided by the number of days in the care period. That number is then multiplied by 100 to determine the percentage of care.
Step 3 - Rounding the percentage of care: If the percentage of care is not a whole percentage, it must then be rounded. If the percentage is greater than 50% - the percentage is rounded up to the nearest whole percentage; and if the percentage is less than 50% - the percentage is rounded down to the nearest whole percentage: s.35M of the Act.
Step 4 - Calculating the rate: The percentage of care of each person for the care period is then applied to the standard rate of FTB Part A and FTB Part B for that period to determine their rate.
In Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405 the Tribunal made the following observations in relation to determining a pattern of care;[1]
When looking at that pattern of care the Tribunal is not restricted to the extent of contact set out in the court order. As was said in Re Nowicz and Department of Family and Community Services [2001] AATA 628 at [15] (per Senior Member Kiosoglous) "a common sense approach necessarily means that ...this Tribunal considers the relevant documentation, and the evidence of both parties as to what has been happening in the past and what is intended to happen in the future, if such differs from the documentary evidence. Based upon such consideration, [the Tribunal] is then in a position to determine what pattern of care has existed, or will exist in relation to the relevant FTB child." The Senior Member went on to say that "once established it is appropriate that variation only occur where there is to be a significant departure in an established pattern of care. This may occur, for example, when contact weekends are changed from fortnightly to monthly. It would not occur when the odd weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period.
[1] See also Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607, [18] to [20].
Under s 35P of the Act, if a pattern of care changes such that the percentages of care under an existing determination are no longer accurate, the original determination must be revoked and a new determination must be made. As such, when the pattern of care changes such that the percentages of care change, a new determination must be made to reflect the new pattern of care.
CONSIDERATION
At the outset I sought to narrow the period or periods about which there was a dispute in respect of the appropriate split of the FTB payable to each party. The father said he agreed with 67/33 split in his favour for the period 28 January 2012 to 30 November 2012, as found by the SSAT. He disagreed though with the 50/50 split the SSAT found to apply from 1 December 2102.
The mother said she agreed with the 67/33 split but only to July 2012 but said that after that the children lived with her considerably more, in accordance with new court orders. She said the situation changed again in March 2013.
28 January 2012 to July/August 2012
There was no dispute in relation to the pattern of care that existed between 28 January 2012 and the commencement of the Orders of 23 July 2012, where it was noted that the Orders which had been in place from 7 February 2012 would cease on 7 August 2012 and the orders made on 1 April 2008 would again apply after that date.
I accept that the care arrangements followed the Orders dated 7 February 2012. There was some discussion about the school holidays in July 2012 but I am satisfied that the Orders were in place until 7 August 2012 and that they were substantially complied with. I therefore accept that a ‘split’ of 67/33 in favour of the father is appropriate for the period 28 January 2012 to 7 August 2012.
Shared care arrangements from 8 August 2012
The Orders applicable from 8 August 2012 were to the effect that the children were to live with the mother, and specified the periods they were to spend with the father. However, as the mother was said to have moved to the Gold Coast (see paragraph [30] below), on 15 August 2012 the mother’s solicitor sought a variation, which was agreed to by the father’s solicitors, such that the children would spend time with her during school time (sic) every three weeks from Friday after school to Sunday evening and the first half of each school holidays. The father, through his solicitors, agreed to the proposal (‘the agreement’) but refused to pay the children‘s cost of travel to the Gold Coast.
The mother gave evidence that, notwithstanding the Orders that the children were, from 8 August 2012 to live with her, or the subsequent agreement that the children would spend every three weeks from Friday after school to Sunday evening and the first half of each school holidays with her, the children in fact lived with the father, but they frequently stayed with her during the week. The father claimed that he had the children continuously because the mother had moved to the Gold Coast. The mother’s evidence was that while she had bought a house on the Gold Coast in July 2012, she had rented it out. Although she frequently travelled to the Gold Coast because she was setting up her business there, she did not start living there permanently until June 2013.
The SSAT found the letter from the mother’s solicitors dated 15 August 2012 supported the father’s claim that the mother was living at the Gold Coast and found that the arrangements that had previously been in place continued until 30 November 2012.
The mother’s solicitor’s letter is quite clear in its terms:
‘We refer to our prior correspondence and advise that our client instructs us that the home that she was living at in Marrickville is now no longer available to her due to the fact that she had moved to Queensland at the beginning of this year which you were aware but it was a direct result of which the community housing has elected that she has no further opportunity of staying in that property.
Our client in these circumstances in light of the imminent Hearing in 2013 to be appointed for determination of relocation has moved to live in Queensland as she could not afford housing in Sydney.’
In her evidence the mother denied that she had moved to Queensland at the beginning of 2012 or even by 15 August 2012, the date of the letter. The papers provided by the mother refer to her having sought counselling on the Gold Coast in April 2012. Correspondence from the Queensland Residential Tenancies Agency dated 24 April 2012 also refers to her having two Gold Coast addresses, although notes the Marrickville address as her permanent address and that she was living on the Gold Coast only temporarily. Material provided by the parties from airlines shows that the children flew, unaccompanied, to the Gold Coast about once a month in the first half of 2012. This is consistent with the mother not living in Sydney during that period. It is also consistent with the Orders in place at that time that for a period of six months, the children were to live with the father, with specified periods to be spent with the mother.
It appears that in about July 2012 efforts were made to evict the mother from the Marrickville premises because the children were no longer living with her. Because she told the housing provider that she needed appropriate accommodation so the children could live with her, no further action was apparently taken. In correspondence with her solicitor dated 31 July 2012 the mother was expressing an interest in moving permanently to Queensland and taking the children with her. She wrote of needing the father to continue paying for their flights to Queensland and to fund her trips to Sydney to be with the children. As part of their negotiations, the mother emailed the father on 11 October 2012 stating that she would bear the cost of the children’s flights to the Gold Coast if she ‘got the FTB’.
The mother said that after the end of each school holidays the elder child wanted to stay with the father, whereas the younger wanted to stay with her. She did not keep notes of when the children stayed with her. On 9 December 2012 the father emailed the mother complaining that she was collecting the younger son from school ‘almost every day’ and that ‘at first’ it was ‘only for a night or two’.
She said that until her move to Queensland in June 2013 the father had no objection to her having the children as frequently as she liked, so long as it did not impact upon his FTB. In contrast, the father’s evidence was that between July and December 2012 the children did not stay with the mother during the week at all, and that the only contact with the mother was on the weekend in accordance with the agreement. He said that the 2008 Orders could not resume, as planned, because the mother was in Queensland. His evidence was that from July 2012 (until March 2013) the children lived with him ‘continuously’.
The mother said that notwithstanding the 2008 Orders the children lived with the father because he put pressure on them and they remained with him. She said that ‘very frequently’ between August and December 2012 the children were with her at Marrickville and she would make the round trip of over an hour to get them to the school, which was near the father’s home. This contrasts with her submissions to the Tribunal that she had ‘driven every day for 40 minutes each way to drop and collect the children from school’. She said the children lived with her most of the school week and were with the father on the weekend, staying with him Friday to Monday. Somewhat inconsistently, she said she would have the elder child 2-3 days per week and the younger, 4 days per week. In contrast, the father said they stayed ‘every single school night’ with him until December 2012, when the younger child spent 2 weeks with the mother. The mother’s version also appears to be inconsistent with the agreement negotiated on her behalf.
The Orders made on 23 July 2012 note the mother’s intention that the children were to remain at enrolled at their (then) current school. In an email from the mother to the father dated 17 September 2012 the mother wrote “the children live with you because it’s closer from your residence to their school”. This suggests that the mother was not in fact living on the Gold Coast at that time, and I accept it is likely that she was at least maintaining a residence in Marrickville, as she claimed. However, it also tends to suggest that the children may not have been living with her with the frequency she claimed, that is, 2-3 school nights per week (the elder child) and 4 school nights per week (the younger child).
In the email of 17 September 2012 the mother also wrote that the children could remain with the father so long as they visited her regularly until the next scheduled court date which was in the following November. On 11 October 2012 the mother emailed the father that she was available to have the children the following weekend. On 26 October 2012 she sent the father a similar email about the upcoming weekend.
Overall I have come to the view that the evidence supports a finding that both children lived, from time to time, with each parent from 8 August 2012 to 8 December 2012. I do not accept the father’s evidence that from July 2012 the children lived with him continuously, nor that they stayed every single school night with him until December 2012. By the same token, I do not accept the mother’s evidence that both children lived with her most of the school week and were with the father only on the weekend or that every (week) day she had driven for 40 minutes each way to take and collect them from school.
I accept that the evidence supports a finding that the father continued to have 67% care of the children until 31 October 2012 (see below).
Shared care arrangements: from 1 November 2012 to 21 December 2012
The father was recorded as having told a Centrelink officer on 22 January 2013 that the mother had the ‘majority care’ of the younger child from 9 to 20 December 2012, when the school holidays commenced.
I accept that sometime after 17 September 2012 when the mother wrote the children were living with the father because it was closer to their school, and before 9 December 2012 when the father complained, that the mother commenced having the elder child on average for 2-3 nights per week and the younger child 4 days per week, the latter being over the objection of the father. As this date is unable to be ascertained with any precision, an approximate midway point is 1 November 2012. Therefore, from 1 November 2012, in respect of the elder child, the mother’s 2.5 nights is 36% and in respect of the younger, her 4 nights is 59%.
DECISION
For the reasons outline above, I set aside the decision of the Social Security Appeals Tribunal made on 31 January 2014. In substitution I determine the percentage of care for the relevant periods as follows:
·During the period 28 January 2012 to 31 October 2012, the percentage of care for both children was 67% in favour of the father (Mr R), and 33% in favour of the mother (Ms I).
·During the period 1 November 2012 to 21 December 2012, the percentage of care for S was 74% in favour of the father (Mr R) and 26% in favour of the mother (Ms I)
·During the period 1 November 2012 to 21 December 2012, the percentage of care for M was 41% in favour of the father (Mr R) and 59% in favour of the mother (Ms I).
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ........................................................................
Associate
Dated 3 September 2014
Date of hearing 17 July 2014 Applicant In person Solicitors for the Respondent Mr David McLaren, Department of Human Services Other Party In person
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