Neville Crockett and Secretary, Department of Social Services Janita Crockett OTHER PARTY
[2013] AATA 928
[2013] AATA 928
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1415
Re
Neville Crockett
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Janita Crockett
OTHER PARTY
DECISION
Tribunal Regina Perton, member
Date 20 December 2013 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, member
SOCIAL SECURITY – family tax benefit – shared care – whether child chose not to come to parent – whether parent entitled to payment for some weeks even though child not with him – dispute over nature of notification of non-attendance – decision affirmed
A New Tax System (Family Assistance) Act 1999 sections 21, 22, 23, 59
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Wade v Department of Family and Community Services (2004) 139 FCR 285
REASONS FOR DECISION
Regina Perton, member
20 December 2013
When a couple who have dependent children split up and then share their children's upbringing, the total amount of family tax benefit (FTB) to which they may be entitled can be split with the payment to each parent based on the percentage of time that each parent cares for the children. This is generally based on court orders relating to future care arrangements. However, if Centrelink, which administers FTB for the Department of Social Services (the Department) is advised that the care arrangements differ from the court orders, or if there is no court order but some other form of agreement, Centrelink may adjust the rate of payment based on the information provided by one or both parents.
Neville Crockett and Janita Crockett are the parents of two dependent children. They have not been a couple for many years. Mr Crockett raised the children on his own for several years after they split up. Mr Crockett and the Department of Human Services were concerned about the appropriateness, and ability, of the children’s mother to care for the children and Mr Crockett was awarded sole care of them. However, in due course, his ex-wife succeeded in her quest to share care of the children. A shared care order was made and both parents received FTB in relation to care of the children.
Mr Crockett has indicated that there have been a number of breaches of the shared care orders, resulting in one child remaining in her mother’s care for the relevant period. He attributes this to their mother’s influence through more extravagant spending and a laissez-faire approach in contrast to his more humble means and more disciplined style. He has initiated court action in an attempt to remedy the situation. There is great hostility between him and his former spouse.
The dispute that is before this Tribunal concerns the elder child and whether Mr Crockett is still entitled to FTB after she did not come to her father’s home when scheduled to do so despite there being a shared care order in place.
As at 2 June 2012 Mr Crockett was paid FTB for the two children on the basis that he was caring for them for 86 per cent of the time. On 7 July 2012, Mr Crockett advised Centrelink that the care arrangements for both children had changed and that their care was now shared equally with their mother. The new arrangements were that the children would spend one week with Mr Crockett and the following week with their mother. Ms Crockett also signed the relevant form provided to Centrelink. Centrelink then adjusted the FTB so that each parent received 50 per cent.
On 26 November 2012 the children’s mother contacted Centrelink stating that there had been a change in care arrangements as the elder girl no longer wished to have, and was not having, contact with her father. Centrelink sent a notice to Mr Crockett on 26 November stating that he would still receive 50 per cent of FTB for the younger child but there was no longer an FTB payment for the elder child.
Mr Crockett contacted Centrelink a number of times over the following week days providing documentation to back up his assertion that he was still entitled to FTB for the elder child. The documentation included a copy of consent orders endorsed by the Magistrates’ Court on 7 November 2012 maintaining the 50 per cent care of both children. The agreement also contained a clause that allowed for a child to express a wish not to spend time with one of the parents and for that wish to be conveyed either in writing or through an independent third party. Mr Crockett was not satisfied that his elder daughter had expressed a wish in accordance with the agreement. The mother’s solicitor had been the source of the advice that the elder child did not wish to spend time with her father.
Mr Crockett challenged Centrelink's decision to stop payment of FTB in relation to the elder child. On 4 December 2012 an authorised review officer (ARO) of Centrelink affirmed the decision under review. On 11 December 2012 Mr Crockett made application to the Social Security Appeals Tribunal (SSAT). On 27 February 2013 the SSAT affirmed the decision concerning FTB, posting the decision on 12 March 2013. On 2 April 2013 Mr Crockett lodged an application with this Tribunal.
The Tribunal must determine whether the elder child was out of Mr Crockett’s care without his consent and, if relevant, whether he took reasonable steps to try and have his older child returned to his care.
RELEVANT LEGISLATION AND GUIDELINES
Part 3 of Division 1 of A New Tax System (Family Assistance) Act 1999 (the Act) sets out the circumstances in which an individual has an FTB child and is therefore eligible to receive FTB. Section 22(5) of the Act applies where the adult is legally responsible for the day to day care, welfare and development of the child whether alone or jointly with someone else. Section 22(7) of the Act allows for a child to be the FTB child of more than one person. Section 25(1) of the Act states that a person is not entitled to be paid FTB where the level of care is less than 35 per cent.
The Act does not explain how the Secretary is to determine the person's percentage of FTB. Centrelink sets out the usual tests it adopts in the policy guidelines contained in the Family Assistance Guide 1999 (the Guide). This Tribunal is guided by government policy unless there are sound reasons to depart from it (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).
Section 23 of the Act sets out a number of limited circumstances where a person can be paid FTB for up to 14 weeks when a child ceases to be in the care of an individual without that person's consent:
(1) This section applies if:
(a) an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3); and
(aa) the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph 22(5)(a) or (b); and
(b) an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and
(c) the adult takes reasonable steps to have the child again in the adult’s care
…
(5) In this section:
…
“qualifying period” means the period beginning when the child ceases to be in the adult's care and ending at the earliest of the following times:
(a) if the child again comes into the adult's care at a later time - that later time;
(b) either
(i) after 14 weeks pass since the child ceased to be in the adult's care;
….
The section of the Guide concerning Disputed Care Arrangements (at 2.1.1.70) describes what the Department considers to be reasonable steps including taking out a recovery order through the court.
SHOULD MR CROCKETT HAVE RECEIVED FTB FOR HIS ELDER CHILD AFTER 26 NOVEMBER 2012?
The Tribunal received extensive documentation from Mr Crockett and took oral evidence by telephone as he lives in a regional city. Although the child’s mother had indicated that she wished to give oral evidence, she did not answer her telephone on the morning of the hearing.
Mr Crockett provided statements, copies of relevant court orders as well as correspondence prepared by solicitors representing each parent. He also told the Tribunal orally and in writing what had happened when the child did not come to his town from the one in which her mother lived and what he had done to try and ameliorate the situation.
Mr Crockett sought his solicitor’s assistance when his daughter failed to arrive at the station to spend the following week with him after spending a week with her mother. He also initiated further court action to seek the resumption of the agreed care orders.
On 1 May 2006, orders were made in the Federal Magistrates’ Court that the children reside with Mr Crockett, that he had sole responsibility for decisions about schooling, medical treatment and the like and limiting the mother’s access to the children. The mother’s contact with the children was to be quite limited with stringent arrangements due to the mother’s lifestyle and habits. This order reflected the care arrangements that the Department of Human Services had agreed to in protection orders made during 2004.
As indicated earlier, the mother had sought and ultimately it was agreed in 2012 that the parents would share the care of the children on a 50/50 basis.
On 7 November 2012, Mr Crockett and the mother signed hand-written consent orders which stated the following:
Until further order –
1. That the Status Quo prior to October 2012 resume that in that the children….live with the mother from Tuesday until the following Tuesday and in the alternate week live with the father alternating each week thereafter, with the children to live with the Father on 13 November 2012.
2. Any time to be spent with a parent and a child pursuant to Order 1 is subject to the expressed wishes of that child, such expression to be either in writing or to an Independent Third Party such as (but not limited to) a lawyer, schools, teacher or a DHS worker and contain a reason for such expression.
…
On 12 November 2012, a magistrate in the regional town endorsed the consent orders. The typed order effectively contained the same wording as the hand-written consent orders which included an order that the parents participate in further dispute resolution through Victoria Legal Aid, that the matter be transferred to the Federal Magistrates Court and that there be a child inclusive conference as soon as possible. At the end of the court’s order, the following was noted:
IT IS NOTED
That the child… [elder child] has currently expressed that she does not wish to spend time with the father, to the mother’s solicitor.
On 13 November 2012, Ms Crockett’s solicitor wrote to Mr Crockett’s solicitor concerning the elder daughter:
We refer to the Orders made on the 12 November 2012 and confirm that the child…is to live with your client from after school today until the following Tuesday.
We advise that the child ….has expressed that she does not want to live with the father and therefore she will not be attending at your client’s home. She has disclosed that she is fearful of your client.
Mr Crockett’s solicitor wrote to the mother’s solicitor on 4 December 2012 stating, amongst other things:
We note that your client, Ms Janita Crockett, has not complied with order 2 of the Orders on 12 November 2012 since 13 November 2012.
We confirm receipt of correspondence dated Tuesday 13 November 2012 wherein you advise of … [elder child’s] wish at that time not to live with the Father. No reason, as required by the Order, was provided. Thereafter, we have heard nothing from you, or any other relevant party, about … [elder child’s] desires and reasons therefore. Thus, your client has failed to comply with order 2 in relation to weeks commencing 13 November 2012 and 27 November 2012.
…
We refer to the Orders of 12 November 2012. Order 2 is quite clear: it notes that any time spent with a parent and a child pursuant to Order 1 is subject to the wishes of the child with such expression, along with reasons, to be either in writing or to be passed on to an independent third party. Thus, as Order 1 expressly stipulates that ….live with Mr Crockett each alternative week, our client is entitled to an explanation of the child’s wishes each Tuesday she is due to be handed over.
In the overall scheme of the orders, Order 1 must be read subject to Order 2. We refer to your letter of 13 November 2012 and ask if the statement of the child’s wishes and reasons is available for our scrutiny. Please discover to this office as soon as possible, the written reasons or the name of the person to whom those reasons were expressed.
…
On 5 December 2012 Mr Crockett’s solicitor wrote to him setting out his view that Order 2 entitled him to be informed of the daughter’s wishes each and every time she is due to live with you.
On 6 December 2012, in his application to the SSAT, Mr Crockett wrote:
I wish to advise that I do not agree with the reason given by my ex-wife as to… [elder child] not wishing to return to my home. I have never hurt my kids and have had no problems for 11 years. … School has praised me for how I have supported my 2 girls. The DHS & Police have no issues with me at all during this time. Now...is not going to school has not gone to dental appts or had vaccinations through school and is not wearing her glasses. Ex wife was meant to pay half school fees since she returned in July but hasn’t done this. Would like the court orders to be reread.
While Ms Crockett was not able to be contacted for this Tribunal’s hearing, she gave evidence and provided documentation to the SSAT. The Tribunal did not have access to all the material Ms Crockett gave to the SSAT. However, in its decision, the SSAT cites from a letter sent by Ms Crockett’s solicitor to Mr Crockett’s solicitor on 6 December 2012 (at paragraph 13 of the SSAT decision):
We advise that the child …continues to express her wishes and to that end she expresses that she does not want to see her father. She states that she is frightened of him which is in accordance with the disclosures made by her regarding his conduct towards her whilst residing with him.
We advise that our client will continue to meet obligations with regard to the interim orders but rightly points out that ... [the elder child’s] age makes it difficult to obtain compliance. In addition … [the elder child] has threatened to run away from school in the event she is forced returned to live or spend time with the father.
…
We confirm that her Honour Ms Stutheridge inserted a notation (despite your client’s objections) in the Orders made on the 7 November 2012 in the Magistrates Court …stating that …[the elder child] had expressed that she did not wish to spend time with her father.
We advise that our office does not intend to forward a response to your office regarding … [the child’s] wishes on a fortnightly basis given that she has expressed an unequivocal desire to not spend time with your client. In the event that… Should inform her mother differently or other professional we will then inform your office forthwith.
On 19 December 2012 Mr Crockett’s solicitor again wrote to the mother’s solicitor stating amongst other things:
…
On the basis that your client has sought to relieve our client of the Family Tax Benefit and, presumably, for the purposes of being able to provide the necessities of life and education for the children herself, we seek confirmation from you of your client’s instructions with regard to school fees and like expenses.
The solicitor provided a list of charges paid by Mr Crockett during 2013 which totalled $710 of which he asked Ms Crockett to pay half.
Mr Crockett’s solicitor wrote to Ms Crockett’s solicitor again on 9 January 2013 stating his differing interpretation of Order 2 made in November 2012. In a lengthy letter he sets out many related issues concerning the children and their contact with the father. The
Mr Crockett provided the Tribunal with a copy of an order made in the Federal Magistrates Court in Melbourne on 7 February 2013. The court ordered that the elder daughter live with the mother and the younger daughter with the father. The elder daughter was to spend every second weekend with her father and the school holidays with him. The parents are required to attend interviews with the children at Relationships Australia to enable a family report to be prepared by family consultant. The hearing was to be rescheduled later in 2013.
Mr Crockett told the Tribunal that the orders made in February were being breached by the mother. He was adamant that the advice from Ms Crockett’s solicitor did not meet the requirements of the orders made in November 2012. Mr Crockett described his distress and concern about his daughter’s welfare. He conceded that she had not stayed with him since November 2012.
Mr Crockett described in detail what had happened when his daughter did not arrive at the station where he was waiting to meet her. He also told the Tribunal that he had lodged a complaint about the mother’s solicitor on the basis that she had not provided anything directly from his daughter to indicate that she did not wish to see him. He repeated his view that his elder daughter was required to tell him each fortnight that she did not want to stay with him. He stated that he did not believe that the orders endorsed by the court reflected his understanding of the agreement concerning his children’s ability to express a wish not to stay with him. He was concerned that the mother was orchestrating the situation.
Mr Crockett said that he was no longer seeing his other daughter who had now expressed a wish not to stay with him. However Centrelink paid him for 14 weeks once she stopped coming to stay with him in spite of the orders made in February 2013. The Tribunal is not reviewing that decision and must decide the present matter by applying the facts to the relevant legislation.
The Tribunal was informed that the Department’s Secretary is satisfied that Mr Crockett was taking reasonable steps to resume the week on week off arrangements with the elder child as understood by him. The Tribunal is also satisfied that he has tried his best, and is still trying, to remedy the situation.
For the purposes of deciding FBT entitlements, the Tribunal has to decide whether Mr Crocket consented to the inclusion of a term in the Court’s orders enabling the elder daughter to express her own wish not to stay with her father. The Tribunal is satisfied that the notation in the Court’s order of 12 November 2012 which indicated that legal representatives of both parties were in attendance when the court made its order provides an appropriate notification of the child’s wishes. The letters from the mother’s solicitor provide a further indication of the child’s wishes and a reason. Whether the child’s perception is valid is a different question but it does not have to be a proven factual situation but just a reflection of what her view is given her age. The Tribunal has no evidence before it, apart from the father’s assertions, that the child was coerced into expressing her wish not to stay with her father. The Tribunal is satisfied, on the balance of probabilities, that the elder child had expressed a wish not to stay with her father as allowed for in the Court’s order agreed to by Mr Crockett.
Therefore, the Tribunal finds that Mr Crockett’s situation does not meet the requirements contained in section 23 of the Act for payment of 14 weeks of FTB following his child’s decision that she no longer wished to reside with him as was allowed for under the November 2012 court orders consented to by Mr Crockett.
The Tribunal can understand Mr Crockett’s disappointment and frustration at the situation given the years he has devoted to his children and his concerns about them. He is also in a difficult financial situation. However the Tribunal must decide the application for review in light of the relevant legislation and the evidence before it.
DECISION
The Tribunal affirms the decision under review.
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Assistant
Dated 20 December 2013
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member
Date of hearing 16 September 2013 Applicant In person Other Party In person Advocate for the Respondent Ailsa Bramley Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
Key Legal Topics
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Administrative Law
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Judicial Review
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