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

[2018] AATA 21

Murphy and Secretary, Department of Social Services (Social services second review) [2018] AATA 21 (15 January 2018)

Division:General Division

File Number(s):       2017/0371

Re: Mr Jamie Murphy

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

And Ms Megan Murphy

JOINED PARTY

DECISION

Tribunal:Anna Burke, Member

Date:15 January 2018

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that Mr Murphy had a care percentage of 35% of their son, and Mrs Murphy had 65% care percentage of their son, as from 1 April 2012 – 1 August 2015.

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Ms Anna Burke, Member

FAMILY TAX BENEFIT – FTB – whether there has been a change in child’s care circumstances – whether Applicant had care of child – whether child was an FTB child of the Applicant or Other Party – inability to establish finding of fact in relation to plausible care of child – percentage of care decision – 35/65 percent care determined - decision under review set aside

Legislation
Child Support (Assessment) Act 1989
Registration and Collection Act 1988
A New Tax System (Family Assistance) Act 1991
A New Tax System (Family Assistance) (Administration) Act 1999

Cases
Polec v Staker and Another [2011] FMCAFAM 959

Secondary Materials

Family Assistance Guide
Child- Support Guide

REASONS FOR DECISION

Ms Anna Burke, Member

15 January 2018

INTRODUCTION

1. Mr Murphy is seeking a second tier review of a determination of Centrelink which found that he was not entitled to Family Tax Benefit (FTB) and school kids bonus for the 2012-2013 and 2013-2014 financial income years and that he has a subsequent debt to the Commonwealth as a consequence of this. The determination was based on the shared care of his son from 1 April 2012 to 1 August 2015 being 86% to Mrs Murphy and 14% to himself. Centrelink is the service provider for the Department of Social Services.

2. The application was heard on 14 August 2017. Mr Murphy represented himself and Mrs Murphy, who had been joined as a party, was also self-represented. Ms Vincci Chan, a government lawyer from the Department of Human services appeared for the respondent, the Secretary of the Department of Social Services. Mrs Lorraine Murphy, the mother of Mr Murphy and Mr Michael Carabott, Mrs Murphy’s partner, gave evidence under oath.

   BACKGROUND

3. Mr and Mrs Murphy are the separated parents (having married in 1997 and separated in 2004) of two children: a son now aged 17 and a daughter aged 15. This decision relates only to Mr and Ms Murphy’s son. There is no formal care arrangement in place for the Murphys’ children and they have a private child-support agreement between themselves.

4. On 19 October 2015 an authorised review officer from Centrelink stated in a letter to Mr Murphy that the following findings of fact had been found:

   ·on 6 August 2015, the child support agency assessed your level of shared care for …. was 93% from 1 April 2012

   ·on 20 August 2015, the other carer requests a review of the decision

   ·on 8 October 2015, you advised that Child support agency that …..stayed overnight with the other carer for one night per week from 1 August 2015

   ·I have found your level of shared care for ….. is 86% from 1 August 2015

5. A note taken by an Authorised Review Officer (ARO) dated 16 October 2015 states:

   Child support agency records show that the other carer had previously advised the care arrangement commence from 1 April 2012, and the customer had confirmed the arrangement without realising what was actually being agreed to. It appears the decision was changed when both parties agreed that it commenced from 1 August 2015, however appeared to be reversed again on CUBA for an unknown reason.

   Customer has also provided bank statements from 2012/13 financial years to the child support agency to show the other carer was paying for private child-support for …. during the period until August 2015.

   Set aside – I have found the customer’s level of shared care for …. is 14% from 1 August 2015, not 7% from 1 April 2012.

6. Mr Murphy applied to the the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) to appeal the decision about the care percentage used to determine whether he was entitled to family tax benefits in the period 1 April 2012 to 1 August 2015.

7. On 3 January 2017 the AAT1 affirmed the decision of Centrelink that Mr Murphy was not entitled to FTB as the existing care of his son was found to be 86% to Mrs Murphy and 14% to himself from 1 April 2010 until 1 August 2015. The Tribunal Member stated:

   On 1 August 2016 Mr Murphy lodged a request for an independent review with the tribunal in regard to 19 October 2015 Centrelink authorised review officer decision. While it was apparent to the tribunal that an appeal of the child-support decision 9 October 2015 would be the preferable method of appeal to the Tribunal nevertheless a Centrelink authorised review officer decision has been made and the Tribunal considered Mr Murphy is entitled to appeal that decision. In so doing the Tribunal will consider the percentage care applicable to the care of ….. for the period from 1 April 2012 to determine his entitlement to FTB.

8. On 18 January 2017 Mr Murphy requested a review of the AAT1 decision by the General Division of the Tribunal (Tier 2) on the basis that :

   The other party originally confirmed the dates were in fact correct until she was instructed to pay a bill of $18,000+ and then disputed the decision because she claims that she was distracted when she was asked to confirm. How does this just slide? I believe my 5 ‘Statutory Declarations’ were not taken into consideration and I am appalled the member stated they are “potentially influenced by close relations of the statement maker”. One was made by my son himself confirming the dates in question. How does this differ from the second hand written statements supplied by the other parties De Facto and close personal friend that were mentioned? Correspondence from the paediatrician dated 2012 to the GP stating care arrangement five nights a week in my favour is indisputable.

   ISSUES FOR DETERMINATION

9. The issues in contention are:

   ·what is the percentage of care attributable to Mr and Mrs Murphy during the period  1 April 2012 to 1 August 2015

   ·whether Mr Murphy is therefore subsequently entitled to FTB for this period

   LEGISLATION

10. FTB is worked out as an annual entitlement, in accordance with schedule 1 of the A New Tax System (Family Assistance) Act 1999 (“the Act”) based on the combined adjusted income of the recipient and their partner or the recipient inclusive of any entitlement to child support. Alternatively they could elect to receive their full FTB entitlement after the end of the financial year.

11. The Act sets out the qualifying criteria and provisions to calculate FTB including in the case of shared care arrangements. Section 22 provides:

    When an individual is an FTB child of another individual

    (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 visa holder 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).

    Legal responsibility for 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.

    Percentage of care at least 35%

    (7)  If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.

    Note:         If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).

12. The term percentage of care is defined in section 3 of the Act:

    percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.

13. Section 35B of the Act provides:

    Determination of percentage of care—child is in the adult’s care

    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, under Subdivision E of this Division, 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.

    (4)  Despite subsection (3), if section 35C, 35D or 35G applies in relation to the adult, the Secretary must determine the adult’s percentage of care under subsection (1) or (2) in accordance with that section.

14. Whilst the Act does not define a care period, the Australian Government’s Child Support Guide  provides the following policy formula:

    Care period

    A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

    Care periods other than 12 months

    While a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the appropriate care period.

15. The Family Assistance Guide provides the following policy advice on determining a pattern of care:

    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.

    If the care percentage for a child is not agreed between carers, it is necessary to establish a pattern of care (1.1.P.70) to make a shared care determination for FTB. A pattern of care is generally established by using the number of nights in care (1.1.N.15) for each FTB child. The percentage of care for each FTB child is then calculated and applied to the standard rate (1.1.S.103) of FTB Part A and FTB Part B.

    How to establish a pattern of care

    The pattern of care to be generally used in the shared care assessment is the actual care arrangements for the child. As much as possible, the pattern of care should be the pattern as agreed to by all parties who care for the child. Otherwise, Centrelink must carry out further investigation to determine the actual pattern of care.

16. Section 59 of the Act provides:

    Shared care percentages where individual is FTB child of more than one person who are not members of the same couple

    (1)  An individual has a shared care percentage under this section for an FTB child of the individual if:

    (a)  the Secretary has determined the individual’s percentage of care for the child during a care period; and

    (b)  that percentage is at least 35% and not more than 65%.

    Note:         Paragraph 27(2)(b) deals with the percentage of care in a blended family case.

    (2)  The individual’s shared care percentage for the FTB child is the relevant percentage specified in column 2 of the table.

    Shared care percentages

Shared care percentages
Item	Column 1 Individual’s percentage of care	Column 2 Shared care percentage
1	35% to less than 48%	25% plus 2% for each percentage point over 35%
2	48% to 52%	50%
3	more than 52% to 65%	51% plus 2% for each percentage point over 53%

(3)  If the shared care percentages, specified in the table, of all of the individuals of whom the child is an FTB child add to less than 100%, then the Secretary may determine a different whole percentage for one or more of those individuals for the FTB child. Despite subsection (2), the individual’s shared care percentage for the child is the percentage so determined for that individual.

Subdivision E—Revocation of determination of percentage of care

1. Section 35P of the Act provides:

   Determination must be revoked if there is a change to the individual’s shared care percentage etc.

   (1)  If:

   (a)  a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and

   (b)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and

   (c)  the Secretary or the 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

   (d)  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;

   the Secretary must revoke the determination.

   Note:         The Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

   (2)  Each of the following is a percentage range:

   (a)  0% to less than 14%;

   (b)  14% to less than 35%;

   (c)  48% to 52%;

   (d)  more than 65% to 86%;

   (e)  more than 86% to 100%.

   (3)  The revocation of the determination takes effect at the end of:

   (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

   (b)  otherwise—the day before the change of care day for the individual.

2. Mr Murphy must therefore be found to have had at least 35% of the shared care of his son during the period in question to be eligible for FTB. Section 35Q of the Act provides:

   Secretary may revoke a determination of an individual’s percentage of care

   (1)  If:

   (a)  a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and

   (b)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and

   (c)  the Secretary or the 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

   (d)  the Secretary is satisfied that, if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child, the other percentage would not be the same as the individual’s existing percentage of care for the child; and

   (e)  section 35P does not apply;

   the Secretary may revoke the determination.

   Note:         If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

   (2)  If the Secretary revokes the determination, the revocation takes effect at the end of:

   (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

   (b)  otherwise—the day before the change of care day for the individual.

   (e)  the individual’s percentage of care for the child applies, for the purposes of this Act as it applies to such a claim, in the same way, and in the same circumstances, in which it would apply if it had been determined by the Secretary under such a provision; and

   (f)  the child support care determination may cease to apply, or be revoked, under Subdivision D or E of this Division in the same way, and in the same circumstances, in which a determination made under Subdivision D of this Division may cease to apply, or be revoked.

   (2) This section ceases to apply to the child support care determination if the determination ceases to apply, or is revoked, under Subdivision B or C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989.

   CONSIDERATION

3. The respondent stated in its Statement of Facts, Issues and Contentions that:

   Given the application is essentially a dispute between parents as to the care provided by Mr Murphy to …. during the relevant period, the Secretary considers that his role should be confined to assisting the tribunal identifying and applying the relevant legislative provisions to the evidence. Accordingly the Secretary does not wish to advance a position in relation to the finding of fact that the tribunal is called to make. The Secretary makes no contentions to what is the correct and preferable decision.

1. The respondent’s representative attended the hearing but played no part in the proceedings. At the conclusion of the hearing the Tribunal requested additional information from the respondent regarding certain jurisdictional issues discussed at hearing. The respondent submitted further information which stated:

   Simply put, Mr Murphy could have sought review by an authorised review officer (ARO) under the family assistance law or by an objection officer under the child support legislation of a care percentage determination made under either legislation. The effect of this review would apply for both under the family assistance law and the child support legislation. It would then be open for either party to seek review of either decision to the Social Services and Child support Division of the Administrative Appeals Tribunal (AAT1). This is for the parties to decide. In this case, Mr Murphy sought review of the ARO decision under the family assistance law. The decision of the AAT1 applies for family assistance law purposes and because of section 54K of the Child Support (Assessment) Act 1989 it also applies for child support purposes.

   Either party can seek review of either decision to this Tribunal. If they seek review under the child support legislation, this Tribunal is limited by section 96A of the Child Support (Registration and Collection) Act 1988. However, as Mr Murphy sought review under the family assistance law there is no such restriction. The only decision considered by the AAT1 was a percentage of care decision and therefore any decision as to entitlement/eligibility or debt are not before this Tribunal.

2. Whilst the above statement may be self-evident to the respondent, the Tribunal was not of the view that Mr Murphy or Mrs Murphy were aware that their actions would limit their ability to seek redress in respect of entitlement/eligibility or debt in respect of FBT. Further, whilst the AAT1 determination made a determination in respect of percentage of care it did also address the issue of entitlement to FTB. The decision stated:

   For the sake of completeness the tribunal notes, as it has found the care maintained until 1 August 2015 is correct, there is no basis for revoking the care determined applicable to that period of time. The tribunal noted that neither party disputes the care of … being maintained by Centrelink after 1 August 2015. It follows that Mr Murphy was not entitled to FBT in the period 1 April 2012 to 1 August 2015. In passing the tribunal also noted that section 10 of the FAA act generally places time restrictions on claims for FBT in respect to past periods. This would preclude Mr Murphy from being paid FTB for much of the period in question. The Tribunal also noted, while this decision had the potential to change the care percentage maintained by Child-Support, no such change will occur as a result of this decision.

3. The genesis of this appeal is not an action by Mr Murphy but one by Mrs Murphy, which the Tribunal assumes commenced when Mrs Murphy was sent a debt notice in respect of previously claimed FBT and school kids bonus for her son, as the ARO letter clearly states:

   I am undertaking this review because the other carer requested a review of the share care assessment for… from 1 April 2012.

4. At the Tribunal hearing Mr Murphy relied upon his statement of 30 July 2017 which stated:

   2 November 2015, I made an application for Family Tax Benefit and Schoolkids bonus for 2014-2015 through Centrelink and Child Supports advice after contacting them in relation to my care percentage being incorrect. At that time Child Support had on record that ….. was in my Regular care up until 1 August 2015 when in fact I had had ….. in my primary care since 28 April 2012. Following this adjustment I received an abusive call from Megan in an attempt to have me change it back. Megan stated that “the kids would suffer”.

   Centrelink processed the application and after speaking to Megan, who confirmed all dates to be correct, approved the payment and transferred it to my account on 13 January 2016. Following this approval Megan was ordered to pay back Centrelink approx. $18,000 for falsely claiming benefits.

   29 February 2016, Centrelink attempted to claim payment back due to a data entry error. I requested an investigation and it was found that the care percentage was incorrect imputed by Child Support in Megan’s favour. The claim was subsequently dropped.

   June 2016, I was contacted by Centrelink again and advised that the Family Tax Benefit and School kids bonus that I received for 2014-2015 would need to be returned. No formal letter or explanation was received. Again I requested an investigation and escalated the matter to the Administrative Appeals Tribunal. 20 July 2016, the AAT dismissed the application because it had not been reviewed by an authorised review officer. 3 August 2016, I received the second notice of dismissal due to the same reason. 8 August 2016, I contacted Centrelink again in an attempt to speak to a senior representative. ‘Alan’ assisted me and it was discovered that all data in relation to my case had in fact been “deleted” and was apparently “unrecoverable”. 8 August 2016, the AAT again decide(sic) to review only to be dismissed for the third time on the 22nd August 2016 due to Centrelink again failing to complete their internal review. I lodged two formal complaints with Centrelink with no reply to either.

   15 August 2016, both the 2014-2015 Family Tax Benefit and school kids bonus to the value of $6525.05 were forcibly taken from my account whilst the claim was under review.

   25 August 2016, I spoke to both Social Security Rights Victoria and the Commonwealth Ombudsman’s for advice.

   26 August 2016, I received recovery letter from Centrelink and the ANZ bank.

   3 October 2016, Administrative Appeals Tribunal approved my application for review and scheduled a hearing with Member P Noonan for Wednesday, 19 October 2016 at 10:30am. After meeting with Mr Noonan he decided at that time that due to the effect my claim would have on Megan he would prefer to reschedule the hearing and have Meagan attended a later date.

   28 October 2016, I received notice with a new hearing time for Monday, 14 November 2016 10:30. The hearing was conducted with me in person [with} Megan via telephone conference.

   15 November 2016, Megan’s de facto Michael Carabott visited my parents at their home in Epping and attempt to “talk me out of taking any further” in hope that they didn’t have to pay back the $18,000.

   3 January 2017, decision under review was affirmed on the basis of first thing Megan had changed in mind about the percentage care she had agreed to because she had been distracted when questioned. Megan informed child-support of this change after receiving the debt of $18,000 from Centrelink. I was never consulted about the care reversal. It is my understanding that changes cannot be made without the approval of both parties. Megan also spoke to my mother Lorraine in relation to the debt at the time and commented that “I had dobbed her in” as a result of the changing care.

5. Mr Murphy tabled numerous statutory declarations which all attested to the fact that his son was in his primary care from April 2012 to the present day. At the hearing Mr Murphy was asked to supply any corroborating evidence to substantiate these claims. He was unable to do so and stated the declarations should be accepted as sworn testimony by the Tribunal.

6. The statutory declaration submitted by Mr Murphy and signed by his son stated:

   Between 27 April 2012 and 3 February 2016 I have been in the Primary Care of my father, Jamie Patrick Murphy, spending every night with him except Thursday’s where I was in my mother’s care.

   Prior to 27 April 2012 following my parent’s separation I was on my father’s regular care, 1 weekend a fortnight.

   As of 3 February 2016 when I started senior school, my father’s care percentage increase to above primary care.

   Now I am only in my mother’s care 1 night a fortnight.

7. Mr Murphy tabled a letter from his son dated 29 November 2015 which was his son’s application to the Northern College of Arts and Technology, in which he stated

   My life began in Bundoora at Northpark Private Hospital on the 11 of March 2000 which now makes me 15 years of age. I resided in South Morang until I was 11 but due to my parents separation I now live with my dad Jamie in Epping North….. My education started at Morang South Primary school where I successfully completed year 6 in 2012 and continued onto The Lakes P-9 school in which I will complete in December 2015.

8. Mr Murphy also tabled and relied upon a letter from Dr Ian Rawlinson, consultant paediatrician dated 23 August 2012 in which he states:

   The thing that impressed me today was that his separated parents could openly sit and discuss the issue. He is now staying with his father except one day a week when he goes to his mother and the arrangement seems to be happy for everybody. This is a fairly amicable relationship between them all and openly discussed the issues and I encouraged this to be continued without any particular professional support.

9. A subsequent letter from Dr Rawlinson, dated 5 December 2016 states:

   I last saw …. on 23 August 2012. At that time his parents had separated when he was living with his father. I understand from his father that he seeking an application for backdated funding from Centrelink.

   At my last contact this was the case. I have not seen him since so I cannot comment on the ongoing arrangements; this will need to be clarified with his parents.

10. Mr Murphy advised the Tribunal that he had not been seeking to recover child-support payments paid to Mrs Murphy for the period 2012 - 2015 for their son and that as the matter had dragged on he was now considering his options. The Tribunal referred to a Statement of Facts he addressed to the Tribunal dated 30 July 2017 in which he states:

    It was not my intention to incriminate Megan in any way and the money in question was of no benefit to myself, but was set aside for ….. future. This situation could have been resolved at the second hearing; however I am unable to accept Megan’s false declarations and untrue statements about the circumstances of this case. It is my hope that we can reach a resolution of the next hearing. If Megan continues to deny her wrongdoing I have no choice but to escalate the matter to a Federal court where I will be seeking compensation for defamation.

11. Mrs Murphy provided a statement from the principal of Morang South Primary School which indicated that she had met financial commitments for her son’s education and that to the best of the principal’s knowledge Mrs Murphy had cared for her son and dealt with all school interactions or issues during 2011 and 2012.

12. Mrs Murphy also provided a statement from the principal of The Lakes South Morang P-9 School which indicated that according to records Mrs Murphy’s son resided at his mother’s address and she was the principal point of contact.

13. Mrs Murphy provided a statement from the principal of the Northern College of the Arts and Technology which states:

    When …. was enrolled in NCAT, his mother Megan Murphy made the point that …. was staying with his father, Jamie, who would also be responsible for all materials charges and fees. She explained that they had joint custody but that she was the one who was always contactable for any issues that should arise as Jamie’s job meant that he was not always able to take phone calls.

    Thus, when filling in the second page where we take details of the key contacts, she put herself down as the primary contact person. The form says ‘Primary carer’ but in actual practice, the person we put first, is the one most easily available should we have to contact a parent/guardian for any issue.

    Megan has been the one who has contacted the college when … has been unwell or to discuss any school issues with teachers. She has also been the only one who has attended parent teacher student conferences which are held to review student progress.

14. Mr Murphy advised the Tribunal that he had written to the Department of Education and Training to complain about the provision of these letters to his former partner.

15. Mrs Murphy provided numerous statements from family and friends indicating that her son was in her primary care until August 2015. She provided numerous bank statements, receipts for payment of educational expenses; health costs and ambulance membership. In a statement submitted to the original AAT1 hearing dated 8 January 2017 Mrs Murphy stated:

    In conclusion I feel like I could challenge every statement Jamie has written but will leave it here as I’ve been as open and honest as I can and sent all the relevant evidence I have. Why would Jamie pay child support for… if he was in his care it just doesn’t make sense especially knowing him personally and that money means the world to him. It is simply a case of wanting to put me in financial debt out of spite. I have paid for ….  every need for the said period and to pay for it twice would be a non-justice in my opinion.

16. Mrs Murphy advised the hearing that her son had been an anxious child and that is why they had sought help from a paediatrician. In 2012 she did not believe her son was old enough to stay with his father full-time but by August 2015 and with the move to the new school she believed it would assist him if he stayed at his father’s place on a more permanent basis. Mrs Murphy did concede at the hearing that it was possible her son had slightly increased the time he spent at his father’s residence and may have been there for more than two nights a fortnight during 2012 and 2015, but there was not a permanent pattern of care and it changed very much depending on how her son was feeling at the time.

17. Mr Murphy’s mother Mrs Lorraine Murphy, provided evidence under oath at the hearing. She stated that she remembered her grandson commenced living with his father halfway through grade 6 which would have been in 2012. She recalls this as she was driving to Megan’s four days a week to drop him off on her way to work and Megan would then take him to school. She advised the Tribunal that she makes dinner for her son and grandson each night and drops it around to them and has been doing this for many years. She recalls this commenced in 2012.

18. Mr Murphy’s mother advised the Tribunal that she had received an abusive phone call from Megan and a visit from Megan’s partner Michael Carabott, both concerned about the situation and the debt they would face if the matter proceeded.

19. Mr Carabott provided evidence under oath at the hearing. He stated that Mrs Murphy’s son had been in their primary care until August 2015 and he had spoken to Mr Murphy’s parents about the situation in a polite manner to try and explain the seriousness of the accusations Mr Murphy was making.

    FINDINGS

20. The Tribunal is in the difficult position of having limited assistance from the respondent and little corroborating evidence from the applicant or the joined party. It must also find that not all four witnesses have been truthful with their evidence under oath, as the one child cannot have been sleeping in two residences on the same nights during the period 2012 – 2015. The Tribunal must determine to what extent Mr Murphy and Mrs Murphy had care of their son during the period in dispute. As there are differing factual accounts by both parties, I must weigh the conflicting evidence.

21. There is no definition of the term ‘care’ in the Act, rather there are a number of cases which provide guidance as to the matters to be considered in determining the extent of care of a child. For example, in the matter of Polec v Staker and Another [2011] FMCAFAM 959 (“Polec”) at [56] The Honourable Justice Hughes outlined that it was necessary to consider the following:

    (a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities?

    (b)To what extent does the person make arrangements for others to meet the needs of the child?

    (c)To what extent does the person pay for the costs of meeting the needs of the child?

    (d)To what extent does the person otherwise provide financial support for the child?

    (e)To what extent does the child provide for his or her own needs or have those needs been met from another source?

    (f)To what extent is the child financially independent or financially supported from another source?

22. The Tribunal places little weight on the statutory declarations provided by Mr Murphy as all contained the same wording with no other corroborating evidence provided to support the claims made. The Tribunal did not consider the statutory declaration provided by Mr Murphy’s son as he was under 18 at the time he signed it and the wording used bore little resemblance to what a child of his years would assert. The Tribunal accepted the qualified information of Dr Rawlinson. He rightly indicates that he is unable to assert the child’s living arrangements.

23. The Tribunal places little weight on the evidence provided by Mrs Murphy, as again there was little corroborating evidence to substantiate the claims made. The Tribunal accepted the statements provided by the principals in good faith as they were reflecting the school records at the time; however they could not attest to where Mr Murphy’s son resided overnight during the period in question.

24. The Tribunal had no reliable evidence on when Mr Murphy’s son supposedly altered his care arrangements prior to the accepted date of 1 August 2015 (as agreed by both parties), outside of that attested by Mr Murphy and his mother.

25. The Tribunal accepts that Mrs Murphy is to a significant extent meeting the caring needs of her son by providing him with accommodation, clothing, food, education, health care, emotional support, supervision, transport and extracurricular activities.

26. The Tribunal also accepts that Mr Murphy is meeting a majority of the financial costs in respect of his son. The Tribunal finds that during the period 1 April 2012 to 1 August 2015 Mr Murphy’s son was spending a greater amount of time in his fathers’ care, but there was no settled pattern of care. The Tribunal accepted the statement of Mr Murphy’s mother that she was driving and feeding her grandson during this period, however this did not establish a pattern of care on which to base the determination.

27. The Tribunal concurs with the original finding of the AAT1 that Mr Murphy’s lack of action to correct the basis of the shared care percentage with the child support agency and Centrelink and his lack of action in respect of claiming FTB and school kids bonus until some three years later all indicated that the pattern of care had not altered completely until 1 August 2015 and that Mr Murphy did not have primary care of his son during the period in question. When the Tribunal enquired what had triggered the movement of his son to his care Mr Murphy pointed to his son’s need for a stable environment to deal with his anxiety. Additionally he said he had heard a radio advertisement about school kids bonus and made enquires with Centrelink about the payment. None of this provided the Tribunal with a concrete answer as to when his son had entered his care.

28. Although the Tribunal did not place much weight on any of the overall evidence provided, it did place some weight on Mrs Murphy’s concession that her son increased the time spent at his father’s to some extent during the period in question. When considered in the context of the available evidence, the Tribunal finds this indicates Mr Murphy provided a not insignificant level of care despite not being the primary carer. Based on the best evidence available the Tribunal finds that Mr Murphy’s son’s pattern of care altered from 1 April 2012 to 1 August 2015 and that he was with his father 35% of the time and with his mother 65% of the time. It revokes the existing determination in accordance with s 35Q of the Act and determines a new percentage of care under s 35B based on these findings. Mr Murphy is therefore entitled to FTB for the period in question.

1. The Tribunal is not in a position to consider more than the percentage of care, as this was the only matter addressed at the AAT1 hearing. Any decision as to entitlement, eligibility or debt in respect of FBT and school kids bonus can be appealed by either Mr or Mrs Murphy to Centrelink.

   CONCLUSION

2. For the reasons outlined above, the Tribunal sets aside the decision under review and substitutes a decision that Mr Murphy had a care percentage of 35% of their son, and Mrs Murphy had 65% care percentage of their son, as from 1 April 2012 – 1 August 2015.

50.     I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Anna Burke, Member

...............[sgd]....................

Dated: 15 January 2018          

Date of hearing:	25 September 2017
Date of final submissions:	2 November 2017
Applicant:	Self-represented, in person
Advocate for the Respondent:	Ms Vincci Chan Government Lawyer FOI and Litigation Branch
Other party:	Self-represented, in person