Murdoch and Secretary, Department of Social Services (Social services second review)
[2016] AATA 669
•1 September 2016
Murdoch and Secretary, Department of Social Services (Social services second review) [2016] AATA 669 (1 September 2016)
Division
GENERAL DIVISION
File Number(s)
2015/6064 and 2015/6885
Re
Peter Murdoch
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Debra Broomhall
OTHER PARTY
DECISION
Tribunal Ms S Taglieri, Member
Date 1 September 2016 Place Hobart The decision under review is set aside and the matter is remitted to the Respondent to give effect to these reasons.
........................................................................
Ms S Taglieri, Member
CATCHWORDS
Family tax benefit - shared care of teenage child - whether change in percentage of care - no change in care period - dissection into shorter care period not warranted - decision under review set aside and remitted
LEGISLATION
Family Assistance Act 1999
CASES
Parent A and Child Support Registrar and Anor [2013] AATA 56
Polec & Stalker & Anor [2011] FMCAfam 959
Gillson and Secretary of Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473
SECONDARY MATERIALS
Child Support Agency Guide
Family Assistance Guide, 1.1.C.100
REASONS FOR DECISION
Ms S Taglieri, Member
This application concerns a dispute about the payment of Family Tax Benefit (“FTB”) to Mr Murdoch and Ms Broomhall, the parents of G, who was born on 29 September 1997.
By virtue of a decision of the Administrative Appeals Tribunal (“AAT”) of 9 August 2013, FTB was payable on the basis of the parents having a 50/50% shared pattern of care.[1]
[1] Parent A and Child Support Registrar and Anor [2013] AATA 56
In February 2014 G’s mother notified the Respondent that a change in care had occurred and in consequence the Respondent altered the percentage of care determined by the AAT to 100% care for Ms Broomhall from October 2013.
Essentially G’s father disputes there was a change in care. He contends that the care arrangements for G remained substantially unchanged from what they were when the AAT decided it was a 50/50% pattern of care for G. He applied for a Tier 1, AAT review.
As a result of the AAT Tier 1 review a determination was made that G’s mother did not have 100% care, but that it was not 50/50% shared care either. The decision is dated 6 October 2015 and need not be detailed further as on this review, the issue needs to be considered and decided afresh.
A hearing was conducted in regard to this review on 11 July 2016. Mr Murdoch and Ms Broomhall both participated in the hearing and Mr Sparkes appeared as Counsel for the Respondent.
The evidence received at the hearing comprised of documents only[2]. No party chose to directly challenge any of the documentary materials put before the Tribunal (save for one exception referred to below) or give oral evidence, to assist the Tribunal in making findings regarding facts that were in dispute.
[2] T Documents (incomplete) 59 pages and Exhibits A1 to A6
It became apparent during the hearing that not all materials before the Tier 1 reviewer were contained in the T Documents filed by the Respondent. Directions were therefore made for the location of documents that were considered at Tier 1 review and for filing them with the AAT and serving them on the parties.
Further directions were also made permitting either parent to file additional evidence or submissions in writing:
a.In response to any additional documents filed by the Respondent, noting that these would form part of the evidence before me; or
b.relevant to the care provided to G in the period after October 2013.
The Respondent filed and served a bundle of papers considered at Tier 1 review that were omitted from the T Documents. They are marked at the bottom right of each page as 17 to 93 (“Additional T documents”). They have been considered for the purpose of the determination which follows.
Mr Murdoch or Ms Broomhall did not file written submissions or further evidence after the hearing.
THE EVIDENCE RELATING TO CARE
There was narrow dispute about the facts, as each parent appeared to concede that they were both involved in caring for G and that the care afforded related to financial support, provision of accommodation and necessaries of living, education, medical needs and emotional support.
The only clear dispute was whether the care calendar at page 43 of the T Documents was an accurate record of care. The calendar was created by Mr Murdoch and purported to be a record of nights G spent in the care of either parent and at school, but only covered the period to 18 December 2013.
Ms Broomhall agreed the calendar could be received as a record made by Mr Murdoch purporting to reflect the nights of care for G with each of them and while at school.
As the calendar ended at 19 December 2013 and there was no calendar or record of care produced by either party after that date, it gives little assistance to determination of the issues in this case.
The evidence given at the Tier 1 review was that Mr Murdoch did not begin residing in Tasmania due to work commitments until December 2013. Mr Murdoch maintained that position at the hearing on 11 July 2016. Ms Broomhall did not challenge this fact.
Mr Murdoch has given specific evidence that on particular nights in October, November and December 2013, G was in his care[3]. Ms Broomhall has had opportunity to dispute this and tender evidence supporting the dispute, but has chosen not to do so, other than to assert that she does not admit the accuracy of Mr Murdoch’s calendar record.
[3] See paragraphs 22 and 23 of Tier 1 decision and page 43 of T documents
Having observed Mr Murdoch and being satisfied by the consistency of his position about the care of G that continued between October and December 2013, I am satisfied that the care arrangements for G did not change prior to December 2013.
Mr Murdoch says and the Tribunal accepts that he did not relocate to Tasmania until December 2013. This event is capable of triggering a change in care, but the evidence before the Tribunal about what the care arrangements were after G finished school for the year and throughout 2014 is limited.
There is some evidence about the care arrangements for G after December 2013, as this subsequent period is the subject of the annexures to the statutory declarations of Mr Murdoch and Ms Blenkenhorn (Mr Murdoch’s partner)[4].
[4] Additional T documents numbered 17 to 31 and 49 to 62 travel fares
There is evidence that throughout 2014, G continued to attend Yanco Agricultural High School[5] and the evidence of the parents[6] is to that effect also. The evidence permits inference and the Tribunal finds that the arrangements continued in similar terms to that which existed in the 2013 school year. Namely, that G boarded at the school during the week in term and had significant influence in determining with whom she spent time when not at school. That she largely spent holiday periods with Mr Murdoch, weekends with Ms Broomhall and week nights at the school.
[5] Page 46 of Additional T documents
[6] Paragraphs 50 and 51 at page 7 of the T documents
Ms Broomhall provided little evidence about the costs of care. Her only statement about this is contained in her email of 8 March 2016. The tenor of the email is that her share of the costs of care for G are greater than Mr Murdoch’s because he has been geographically remote from G’s usual place of abode. She refers to phone re-charge, cost of friends over on weekends, movies, dining out, clothing, extra food to take back to school, use of her car, fines, driver training as examples.
In the absence of specific costs and corroboration of them, it is difficult to make any specific finding about the claimed additional financial cost provided towards G’s care. Further, that additional cost might be balanced out by the additional costs Mr Murdoch incurred to enable G to spend time with him due to the cost of travel. Arguably the costs mentioned as incurred by one parent and not the other can be described as discretionary[7] and will be considered further below.
[7] As per Member Webb at paragraphs 46 to 49 of Parent A and Child Support Registrar & Anor [2013] AATA 562; P v Child Support Registrar [2012] FCA 1398
The evidence also demonstrates that throughout 2014 the financial arrangements for support of G continued in similar terms as they had been in 2012 and 2013. Both parents were providing care for G according to the established meaning of that term. The care provided by each to varying degrees, included contributions of financial support, medical and travel arrangements, provision of daily living needs and also emotional support and guidance.[8]
[8] Polec & Stalker & Anor [2011] FMCAfam 959 and Child Support Agency Guide
WAS THERE A CHANGE IN CARE?
There is no dispute that G was at the relevant time a FTB child and there was eligibility for FTB in relation to her pursuant to ‘A New Tax System’ (Family Assistance) Act 1999 (“the FTAA”).
How the FTB was to be paid depended on the individual percentages of care for G, by virtue of section 25 and 35B of the FTAA.
Immediately prior to the period which is subject to review (which commences on 5 October 2013)[9], the parents of G had shared care within the meaning of section 59 of the FTTA and by virtue of the determination of Member Webb of 9 August 2013.
[9] Date referred to in the decision of the Authorised Review Officer’s decision at page 54 of T documents
Given the evidence referred to at paragraphs 16 to 18 and the finding at paragraph 19, the Tribunal is not satisfied that there was a change in care from October 2013 and no revocation of the shared care determination is warranted at that time.
It may be that a revocation of the shared care determination should be made if the actual care had by Mr Murdoch sometime after did not accord with the 50/50% determination in place at that time.
In view of the evidence and findings noted at paragraphs 20 to 24 of these reasons, I conclude that the care arrangements for G probably continued much as they were found to be by Member Webb in period 2012 and 2013, namely 50% to each parent.
Although Mr Murdoch relocated to Tasmania in December 2013, G’s living and other arrangements continued essentially as they had been before and his move made little if any real difference to how the parents jointly continued to provide for her overall care.
I agree entirely with the reasoning of Member Webb in the 2013 decision as to interpreting section 50(3) of the FTAA and the meaning of “actual care”.[10]
[10] Member Webb at paragraphs 36, 45 and 46, [2013] AATA 562
In view of the particular arrangements of care for G, involving her attending school during the week, her age and influence on where she spent time and with whom, a nights of care approach to determine percentage of care is not warranted in this case.
Although care periods may have varying durations[11], I consider the approach taken in the Tier 1 review to dissect the general 12 month care period into smaller periods apparently referable to school terms is not warranted. In my view it adopts an unnecessary and unduly myopic approach to the concept of actual care. Such approach does not reflect the nature of care for older children, who are usually more independent and have different needs, which does not necessarily involve hands on immediate physical presence.
[11] Family Assistance Guide, 1.1..C.100
In some cases where the evidence demonstrates greater financial contribution to the costs of care by one party, an hours of care approach may be appropriate to assess the percentage of care.[12] There is insufficient evidence in this case to demonstrate with any degree of satisfaction that one parent has contributed financially more to G’s costs of care. The evidence presented by the parties simply did not provide the required detail and corroboration.
[12] Gillson and Secretary of Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473
I am satisfied that each parent continued to contribute to the overall costs of G’s care and by other means to her needs generally (including emotional ones), regardless of whom she was physically with at any time. The strong weight of evidence is that care continued on a 50/50% basis when viewed overall.
Ms Broomhall rejects this, but the only evidence she has provided is general and to the effect which is referred to in paragraph 22 above. The Tribunal has no basis upon which it can evaluate the relative additional claimed care on her part, and is therefore not persuaded that there was a change in pattern of care as contemplated by section 35P of the FTAA.
Further, the nature of expenses Ms Broomhall referred to as noted in paragraph 22 above were incurred at her discretion. No doubt her decisions in that regard were made in good faith and with G’s interests at heart, but without her producing evidence of the value of the costs, the Tribunal is simply not in a position to assess and be persuaded that they warrant a conclusion that a change of care occurred.
The end result is that the Tribunal is not persuaded that a change of care occurred at any time after October 2013 and as such there is no basis for revoking the prior determination of 50/50% care.
By virtue of the operation of section 59 of the FTAA, the individual’s shared care percentage basis for each of the parents continued at 50% from 5 October 2013.
The decision under review is set aside and the matter is remitted to the Respondent to give effect to these reasons.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 11 July 2016 Applicant In person Solicitors for the Respondent Mr Brian Sparkes, Program Litigation and Review Branch
Other Party In person (by video-link)
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