Norouz and Secretary, Department of Social Services (Social services second review)
[2018] AATA 2712
•8 August 2018
Norouz and Secretary, Department of Social Services (Social services second review) [2018] AATA 2712 (8 August 2018)
Division:GENERAL DIVISION
File Number: 2018/0726
Re:Fariborz Norouz
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndFarahnaz Jafari
OTHER PARTY
DECISION
Tribunal:Member D K Grigg
Date:8 August 2018
Place:Brisbane
The decision under review is varied to provide that during the period of 1 July 2015 to 30 June 2016, the Applicant had 60 per cent care of the child.
.........................[sgd].......................................
Member D K Grigg
CATCHWORDS
FAMILY ASSISTANCE – family tax benefit – percentage of care – whether there was a change in the percentage of care – what is the correct percentage of care - decision under review varied.
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth)
CASES
Wade v Secretary, Department of Family and Community Services [2004] FCA 1660
SECONDARY MATERIALS
Family Assistance Guide (2018)
REASONS FOR DECISION
Member D K Grigg
8 August 2018
INTRODUCTION & CLAIM HISTORY
Mr Norouz and Ms Jafari are the separated parents of one child aged 12. In April 2010, Mr Norouz and Ms Jafari entered into a parenting plan pursuant to which:
(a)Mr Norouz was determined to be the primary carer because Ms Jafari was living in Melbourne; and
(b)Ms Jafari was to have contact with the child 4 nights each month.[1]
[1] Exhibit 1, T Documents, T7, page 63, Parenting plan dated 22 April 2010.
At all relevant times, Mr Norouz was the recipient of Family Tax Benefit (FTB) payments.
During the 2015 – 2016 financial year, the Department of Human Services (“Centrelink”) calculated Mr Norouz’s FTB on the basis that he had 95% care of the child.[2]
[2] Exhibit 1, T Documents, T32, page 280, Letter from Centrelink to Mr Norouz dated 7 March 2015; page 300,
Letter from Centrelink to Mr Norouz dated 7 November 2015; page 303, Letter from Centrelink to Mr Norouz dated 11 November 2015; page 308, Letter from Centrelink to Mr Norouz dated 3 May 2016; page 311, Letter from Centrelink to Mr Norouz dated 27 May 2016; page 316, Letter from Centrelink to Mr Norouz dated 21 June 2016.
On 26 June 2017, Ms Jafari lodged a claim with Centrelink for an annual lump-sum payment of Family Tax Benefit for the 2015 – 2016 financial year on the basis that, during that year, she had 50% care of the child.[3]
[3] Exhibit 1, T Documents, T4, pages 27 – 36, FTB lump-sum claim Form completed by Ms Safari dated 26 June
2017.
On 30 June 2017, Centrelink rejected Ms Jafari’s claim for FTB on the basis that Centrelink had previously assessed her percentage of care as 5% from 18 March 2010 and had taken this into account when assessing the FTB lump-sum claim for the 2015 – 2016 financial year.[4]
[4] Exhibit 1, T Documents, T38, page 413, Centrelink record.
On 7 July 2017, Mr Norouz lodged a childcare arrangement form with Centrelink advising Centrelink that the child was still being cared for pursuant to the parenting plan.
Ms Jafari told the Tribunal that the parenting plan was not being followed.
On 11 July 2017, the Federal Circuit Court made orders that, among other things, the child was to live with Ms Jafari.[5]
[5] Exhibit 1, T Documents, T8, page 102, Orders of the Federal circuit Court dated 11 July 2017.
On 17 July 2017, Mr Norouz contacted Centrelink and advised that from 11 July 2017 he would only have 14% of the care of the child and that Ms Jafari would be the principal carer with 86%.[6]
[6] Exhibit 1, T Documents, T31, page 271, Centrelink record.
On 25 July 2017, Mr Norouz lodged a further childcare arrangement form with Centrelink advising Centrelink that the child was being cared for pursuant to the Court order of 11 July 2017.[7]
[7] Exhibit 1, T Documents, T9, pages 110 – 117, childcare arrangement form completed by Mr Norouz dated 25
July 2017.
Ms Jafari sought a review of Centrelink’s decision to reject her FTB claim for the 2015 – 2016 financial year by an Authorised Review Officer (“ARO”) on the basis that during the 2015 – 2016 financial year, she had had the child in her care 3 to 4 nights (a week) or, at a minimum, 50% of the time.[8]
[8] Exhibit 1, T Documents, T38, page 413, Centrelink record.
On 30 August 2017, the ARO found that the child was in Mr Norouz’s care for 65% of the time during the 2015 – 2016 financial year, not 95%, and that, as a result, his family assistance entitlements for that year would need to be reassessed and could result in a possible debt.[9]
[9] Exhibit 1, T Documents, T20, pages 193 – 195, Decision of Authorised Review Officer dated 30 August 2017; T
37, pages 402 – 409, ARO decision and notes dated 30 August 2017.
As a result of the ARO’s decision, Centrelink recalculated Mr Norouz’s FTB entitlements for the financial year ended 30 June 2016 based on his having 65% of care of his child.[10] The recalculation of Mr Norouz’s FTB entitlements meant that Mr Norouz had been overpaid during the financial year ended 30 June 2016. Centrelink sent Mr Norouz the following debt notices on 31 August 2017:[11]
(a)a schoolkids bonus debt of $107.50;
(b)a schoolkids bonus debt of $322.50; and
(c)a family tax benefit debt of $2178.51. The notice set out that, in the 2015 – 2016 financial year, Mr Norouz’s had received $12,490.71 in Family Tax Benefit payments when he was only entitled to $10,312.20
[10] Exhibit 1, T Documents, T21 – T 22, pages 196 – 214, Centrelink debt calculations.
[11] Exhibit 1, T Documents, T23 – T 26, pages 215 – 224, Centrelink notices dated 31 August 2017.
Mr Norouz sought a review of Centrelink’s decision to raise the debts on 31 August 2017 by an ARO. The ARO found that the debts had been correctly raised and calculated.[12]
[12]Exhibit 1, T Documents, T27, pages 225 – 230, Decision of Authorised Review Officer and notes dated 2 November2017.
Mr Nourouz then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[13] The SSCSD varied the decision under review and found that Mr Norouz’s entitlement to family assistance was to be assessed on the basis that he had 50% of the child’s care during the 2015 – 2016 financial year.[14]
[13] Exhibit 1, T Documents, T28, pages 231 – 232, Letter from AAT to Centrelink dated 17 November 2017.
[14] Exhibit 1, T Documents, T2, pages 5- 10, SSCSD’s Decision and Reasons for Decision dated 11 January 2018.
Mr Norouz has sought a review of the SSCSD’s decision by this Tribunal.[15]
[15] Exhibit 1, T Documents, T1, pages 1 – 4, Application for Review dated 14 February 2018.
ISSUES FOR DETERMINATION
The issue for determination is what is the correct shared care percentage for the financial year ended 30 June 2016.
HOW PERCENTAGE OF CARE IS DETERMINED
Sections 21 and 22 of the A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”) provide that entitlement to FTB is dependent, among other criteria, upon a person having an FTB child. 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.[16]
[16] section 25 of the Family Assistance Act.
Where a child is under the age of 16, as is the case here, section 22(2) provides that the child will be an FTB child of an 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).
The circumstances surrounding legal responsibility for the care of the child are set out in section 22(5) of the Act as follows:
(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.
If a person’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 on each day in that period, whether or not the child was in that individual's care on that day.[17]
[17] Section 22(7) of the Family Assistance Act.
Schedule 1 of the Act sets out how the rate of a parent’s FTB is determined in the case of shared care of a child. That rate will depend in part on the parent shared care percentage under section 59 of the Act. Section 59 provides:
(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
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%
To determine the rate of FTB payable, the percentage of shared care of each parent needs to be determined.
Existing Care Determination
Pursuant to the SSCSD’s decision, an existing care determination was made that, between 1 July 2015 and 30 June 2016, Mr Norouz and Ms Jafari had 50% shared care respectively.
Pursuant to section 35P(1) of the Act, an existing care determination must be revoked if, relevantly:
1 determination of an individual’s percentage of care for a child has been made under section 35A or 35B;
(a) the Secretary is notified or becomes aware that the care of the child that is actually taking place does not correspond with the individuals existing percentage of care for the child; and
(b)the Secretary is satisfied:
(i)that the individuals share 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 individuals existing percentage of care.
Pursuant to section 35P(2) and (3):[18]
[18] As they were at the relevant period. These provisions have been amended subsequent to the enactment of the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018, however, pursuant to section 22(2)(a) of the Amendment Act, the applicable provisions are the ones that were in force during the relevant period.
(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.
Section 35P(1)(a) and (c) of the Act are satisfied here. The issue becomes whether section 35P(1)(d) applies, which involves determining whether Mr Norouz’s share care percentage for the child should change and, if it should, whether it would be in the same percentage range as the existing percentage of care determination, which is 50%.
DETERMINING THE PERCENTAGE OF CARE
Section 35B(2) of the Act provided relevantly:[19]
[19] At the relevant period. Subsection (2)(a) was subsequently amended to exclude a revocation or suspension made under the amended subsections 35PA(3)(b) and 35QA(3)(b) of the Act, but the amendment has no bearing on the period with which this decision is concerned.
35B Determination of percentage of care--child is in the adult's care
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.
Section 35J of the Act provides that the Secretary may determine the percentage of care based on the number of nights the child is in the care of the adult during the relevant care period.
The Secretary referred the Tribunal to the Family Assistance Guide (“Guide”), which is used by Centrelink as a guide to the interpretation and application of the Act. The Tribunal is not bound to apply the Guide but it may, and should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[20]
[20] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
The Guide sets out in section 2.1.1.50 that the first step in determining the percentage of care attributable to an individual is to establish a pattern of care. It provides:
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 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 months 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.
Chapter 2.1.1.45 of the Guide provides:
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.
…
Where the carers do not agree on the actual pattern of care for the child, Centrelink must determine the actual pattern of care on the basis of available evidence. This applies even if a formal care arrangement exists. If the carers do not agree on the care percentage, each carer should be asked to provide additional evidence to support their declared arrangements in order for Centrelink to make a decision as to the actual pattern of care.
The Federal Court in Wade v Secretary, Department of Family and Community Services [2004] FCA 1660 has determined that the percentage of care allocated to each person “should reflect the actual care provided by them” and that:[21]
The 'pattern of care' referred to in the guidelines has two aspects…In the first place it reflects the care arrangements agreed between the parties or involves a finding which has regard to the actual care arrangements for the child. It is said that 'as much as possible' the pattern of care should be the pattern agreed. That was the course taken here. The pattern of care is also used as the basis for the calculation of percentage in par 2.1.1.50. Although they are expressed as the respective party's 'days of care’ under par 2.1.1.45, which are to be divided by the number of days in the period in question, the Guidelines permit more than one method of assessing those days. Relevantly one is to calculate the number of hours of care and aggregate them.
[21]Wade v Secretary, Department of Family and Community Services [2004] FCA 1660, per Keifel J (as she then was), at [30]-[31].
The Secretary referred the Tribunal to numerous Tribunal decisions concerning how to calculate the percentage of care. What can be taken from these decisions is that a flexible, “broad brush”[22] approach is required and that, in determining an equitable outcome, it may be appropriate in a particular case to consider the actual hours of care, as opposed to the number of nights, and also to have regard to the financial responsibilities taken on by each party involved.[23]
[22]Re Warne and Department of Families, Community Services and Indigenous Affairs [2006] AATA 159, at [25] – [27].
[23] Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs &
Another [2008] AATA 607; Brightman and Secretary, Department of Family and Community Services and Another [2004] AATA 405; Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533; Drury in Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473; Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22.
EVIDENCE OF THE ACTUAL CARE OF THE CHILD
At the hearing, both parties agreed that between July 2015 and March 2016 the child usually stayed with Ms Jafari on the weekend nights. Mr Norouz says that during the weekend days the child was largely with him attending his various sporting and musical activities. Ms Jafari accepts that it was Mr Norouz who mainly took the child to his extracurricular activities. Ms Jafari sought to explain to the Tribunal that she did not attend those activities with her child because of Mr Norouz. As explained to Ms Jafari, the Tribunal appreciates that each party might have legitimate reasons for why the child was not in their care at certain points during the period, however, those reasons are not relevant to this determination. What is relevant is the actual pattern of care provided to the child during the financial year ended 30 June 2016.
It was unclear what Mr Norouz disagreed with in relation to the original ARO decision. The ARO found that Ms Jafari had 35% shared care. At the hearing Mr Norouz would not say what he thought the percentage of care should be for the whole period in question. Ms Jafari on the other hand said she would accept a finding of 35% care.
Both parties agree that during the 2015 – 2016 financial year:
(a)the child was registered as home schooled during the period and under Mr Norouz’s care in respect of his education;[24]
(b)the child was registered at a PCYC from 2010 and attended a lot of activities there;[25]
(c)the child attended a tennis club most weekdays for lessons, fixtures and tournaments, all of which were paid for by Mr Norouz. Mr Norouz provided a document indicating that the child had played in numerous tennis tournaments in the 2015 – 2016 financial year[26] and an affidavit from the child’s tennis coach confirming that the child is actively involved in the tennis club and playing tournaments most of which occurred on Saturdays or Sundays and that his father was present;[27]
(d)the child had been attending music lessons weekly, which were paid for by Mr Norouz. Mr Norouz also paid for his musical instruments.[28] Mr Norouz provided an affidavit from the child’s music teacher confirming the child has one regular session per week on Saturdays and that he has had a few performances and performed at a few festivals;[29]
(e)while the child was in Mr Norouz’s care, Mr Norouz paid for all his expenses which included educational tools;[30]
(f)that Mr Norouz has paid for child’s physiotherapy sessions and appointments with his ophthalmologist and orthodontist;[31] and
(g)Ms Jafari was overseas between 25 October 2015 and 14 November 2015.
[24] Exhibit 1, T Documents, T7, page 57, Submissions of Mr Norouz dated 7 July 2017; page 75, Letter from
Queensland government to Mr Norouz dated 1 March 2017 confirming that the child was registered for home education; pages 85 – 88, Letters from the Queensland government to Mr Norouz dated 6 October 2016 and 6 September 2015
[25]Exhibit 1, T Documents, T7, page 58, Submissions of Mr Norouz dated 7 July 2017; T7, page 72, Letter from
PCYC manager Sergeant Mark Maestier dated 15 December 2016.
[26]Exhibit 1, T Documents, T7, page 58, Submissions of Mr Norouz dated 7 July 2017; pages 76 and 78, tennis tournament document prepared by tennis Australia; page 98, statement by unknown.
[27] Exhibit 1, T Documents, T7, page 94, extract from an affidavit of unnamed tennis coach.
[28] Exhibit 1, T Documents, T7, pages 58-59, Submissions of Mr Norouz dated 7 July 2017.
[29]Exhibit 1, T Documents, T7, page 95, extract of an affidavit from an unknown music teacher dated 13 December 2016.
[30] Exhibit 1, T Documents, T7, page 59, Submissions of Mr Norouz dated 7 July 2017.
[31] Exhibit 1, T Documents, T7, pages 60-61, Submissions of Mr Norouz dated 7 July 2017; page 73,
physiotherapy account history indicating that the child had attended physiotherapy consultations on 8 occasions in May – June 2016.
The real area of dispute between the parties concerns the 3 month period between April and June 2016, as this is where the parties’ evidence completely diverged. Ms Jafari says she had care of the child most of the time and Mr Norouz says the opposite.[32]
[32] Exhibit 1, T Documents, T12, pages 149-152; Calendar and explanation provided by Mr Norouz.
Mr Norouz provided a printout of text messages between Mr Norouz and Ms Jafari in September 2016 where Ms Jafari indicated that she believed she was having 3 nights care of the child per week. Mr Norouz disputed that and responded that one night was more realistic.[33] The problem with this evidence was that the conversation related to what should be reported for the purposes of child support payments rather than what care was actually being provided to the child. Ms Jafari swore an affidavit in November 2016, stating that she had care of the child for 3 to 4 nights per week during this period.[34]
[33]Exhibit 1, T Documents, T7, page 89, extract of printed text messages between Mr Norouz and Ms Jafari on 27 September 2016.
[34] Exhibit 1, T Documents, T11, page 134, Affidavit of Ms Jafari dated 18 November 2016.
The most consistent aspect of Ms Jafari’s evidence is that generally she had the child for 2 to 3 nights per week.
In relation to whether the parenting plan was being followed, Mr Norouz says the child stayed with Ms Jafari sometimes more than 4 nights per month (this is despite claiming in his FTB claim form that the parenting plan was being followed).
Mr Norouz also provided a typed sheet of the number of nights he says the child was in Ms Jafari’s care. The calendar indicates that:
(a)between July 2015 and February 2016, the child was in Ms Jafari’s care for 58 nights (which equates to 23% care during that period on a per night basis); and
(b)there was a pattern of the child staying with Ms Jafari over the weekend nights.[35]
[35] Exhibit 1, T Documents, T12, pages 149 – 151, Calendar and explanation submitted by Mr Narouz.
For reasons which were not explained to the Tribunal, Mr Norouz did not keep an accurate record of the care of the child between April 2016 and June 2016.
Ms Jafari submitted the following evidence:
(a)an affidavit of Layla Alaryan dated 8 November 2016 which stated that she has known Ms Jafari for a year and that in that time she has had her child at her place every weekend from Friday to Monday;[36]
[36] Exhibit 1, T Documents, T11, pages 130-131; Affidavit of Ms Alaryan dated 8 November 2016.
(b)a statement of her own that:[37]
[37] Exhibit 1, T Documents, T11, page 145, Statement of Ms Jafari undated.
(i)she picked her son up after work on Friday afternoon and dropped him off on Monday morning except in November 2015 when she was overseas for 3 weeks;
(ii)her child stayed with her many times during the week;
(iii)in late April, May and June 2016, she had her son most nights;
(c)a statement that, after her surgery, her child was in her care for the whole of April and May 2016;[38]
(d)an affidavit of Layla Alaryan dated 16 November 2016 which stated the child 'routinely spent a minimum of 3 nights a week... (from Friday evening to Monday morning) with few exceptions” with Ms Jafari but that 'increased in April 2016 during [Ms Jafari's] 10 week recovery from an operation';[39]
(e)Affidavit of Karen Scarinci dated 8 November 2016 which stated that she has known Ms Jafari since 2010 and that 'in 2015 [the child] has stayed with her 3-4 nights a week';[40] and
(f)a calendar which notes 'nights in care which are based on photos or text messages”.[41] Ms Jafari’s calendar provides that:
(i)between July 2015 and March 2016, the child was in her care for 50 nights (which equates to 18% care during that period on a per night basis); and
(ii)between April 2016 and June 2016, the child was in her care for 45 nights (which equates to 49% care during that period on a per night basis.
[38]Exhibit 1, T Documents, T13, page 165, Ms Jafari’s Authorised Review Officers Decision and Notes dated 30 August 2017.
[39] Exhibit 1, T Documents, T5, pages 40-42, Affidavit of Ms Alaryan dated 16 November 2016.
[40] Exhibit 1, T Documents, T5, pages 44-46, Affidavit of Ms Scarinci dated 8 November 2016.
[41] Exhibit 1, T Documents, T11, page 144, Calendar submitted by Ms Jafari.
In relation to April 2016 to June 2016, it became apparent from a review of text messages sent during that period,[42] that some of the dates Ms Jafari said she had the child were incorrect (such as on 9 May 2016, 10 May 2016 and 5 June 2016). Ms Jafari acknowledged that she had included those dates in error and that she had prepared the calendar based on dates of photographs she had of the child but conceded that it may not be entirely accurate.
[42] Exhibit 1, T Documents, T36, pages 393-394, Text messages summary.
Ms Jafari says the calendar only shows days/nights in which she had taken a photograph of her son and does not include the usual 2-3 night stay over the weekends. A look at the calendar shows that approximately 50% of the days circled were Saturdays and Sundays. Ms Jafari told the Tribunal she had care of her son for at least 177 nights which she calculates as follows:
(a)3 nights per week for 49 weeks (excluding the 3 weeks she was away); and
(b)30 nights in the calendar which are not otherwise accounted for where she has photographs of herself with her son.
Ms Jafari says that does not even include some of the other nights she had the child in April – June 2016.
Mr Norouz submitted that unless Ms Alaryan and Ms Scarinci were with the child all the time they could not possibly know the true extent of Ms Jafari’s care. The Tribunal accepts that submission, but their evidence is consistent with the child being in Ms Jafari’s care at least 3 nights of the week, which seems to have been the arrangement prior to April 2016.
Neither Ms Jafari nor Mr Norouz were able to provide any convincing evidence that the pattern of care arrangement during April to June 2016 changed in any substantive way. The Tribunal found it impossible to determine the accuracy of either party’s evidence during this period.
The Tribunal notes the following evidence:
(a)a statement made by Ms Jafari on 31 July 2017 confirming that she “did not have care” of the child in the 2015-2016 year. Ms Jafari told the Tribunal that she told Child Support she did not have care of the child because she was afraid;[43]
(b)an application for Court orders made by Ms Jafari in October 2016 where she requested an order that she have 35% care of the child and claimed that Mr Norouz was preventing her from spending time with her child.[44]
[43] Exhibit 1, T Documents, T10, page 119, Statement of Ms Jafari dated 31 July 2017.
[44] Exhibit 1, T Documents, T12, pages 147-148, Initiating Court Application by Ms Jafari filed on 14 October 2016.
The difficulty with Ms Jafari’s evidence that the child was mainly in her care during April to June 2016 is that:
(a)there is nothing to corroborate her evidence - Ms Jafari said her sister could verify this, but she was not called to give evidence; and
(b)it takes no account of the fact that the child was still being home schooled during this period and attending his usual extracurricular activities with Mr Norouz.
The difficulty with Mr Norouz’s evidence is that he was not prepared to acknowledge what percentage of care Ms Jafari had of the child during April to June 2016. He says he does not know exact dates. This seems odd given that he kept a record of every month in the period. No explanation was given for why he did not keep a record during this period.
Some of the text messages he submitted clearly indicate that the child was, at times, in Ms Jafari’s care.
Mr Norouz disputes Ms Jafari’s evidence that the child was mainly with her between April and June 2016. However, he says that even if Ms Jafari’s evidence was accepted, if one adds the nights in Ms Jafari’s calendar for the March 2016 to June 2016 period to the number of nights in his calendar (for July 2015 to February 2016), you arrive at approximately 100 nights. This would equate to Ms Jafari having 27% care which would mean that the child is not an FTB child of Ms Jafari and she would not qualify for a shared care percentage ((see sections 22(7) and 59 of the Act)
The Secretary submits that, in this case an “hours of care” approach is more appropriate given that the child was home-schooled during the period.[45] While that may be the case in some situations, the Tribunal considers that, given the state of the evidence, a “number of nights” approach is more appropriate, particular given that the parties essentially agree that the child was being cared for by Ms Jafari approximately 2-3 nights per week for the majority of the period concerned. There is also evidence that Ms Jafari did attend some of the child’s extracurricular activities on occasion.[46] Further, while the child was home-schooled, there was no evidence provided by Mr Norouz regarding how many hours per day the child was schooled nor any details of a study plan. Ms Jafari told the Tribunal that on some days, the child would do some work for 30 minutes on a computer and play a chess game, and that would be all he said he had to do.
[45]Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 15 June 2018, para 42; Exhibit 1, T Documents, T4, page 33, FTB lump-sum claim Form completed by Ms Safari dated 26 June 2017.
[46] Exhibit 5, Photos of Ms Jafari with Child at functions.
The Tribunal finds that, given the state of the evidence, what can be found is that during the relevant care period, the pattern of care was that Mr Norouz had, at most, 59.72% care of the child on the basis that Ms Jafari had the child, on average, 3 nights per week excluding when she was overseas for 3 weeks.
Pursuant to section 35M(a) of the Act, the care percentage then needs to be rounded up to 60%
DECISION
The Tribunal finds that there was a change in the percentage of care that each of the Applicant and the Other Party had in relation to the child, and that the new percentage of care for Mr Norouz is outside the 48% to 52% range. Therefore, the Tribunal varies the existing care determination of 50% shared care and makes a new care determination that, during the period ended 30 June 2016, Mr Norouz had a shared care percentage of 60%.
The decision under review is therefore varied to reflect the change in shared care percentage.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
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Associate
Dated: 8 August 2018
Date of hearing: 27 June 2018 Applicant: In person Other party: In person Advocate for the Respondent: Ms Jacky Vetter, Seconded Lawyer Solicitors for the Respondent: Department of Human Services
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