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

[2018] AATA 410

Oates and Secretary, Department of Social Services (Social services second review) [2018] AATA 410 (6 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3706

Re:Andrew Oates

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndLeeanne Oates

OTHER PARTY

DECISION

Tribunal:Ms A F Cunningham, Senior Member

Date:6 March 2018

Place:Hobart

The decision under review is affirmed.

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

Ms A F Cunningham, Senior Member

SOCIAL SECURITY – family tax benefit – care arrangements for three children – parties living under one roof but in separate sections of the house – no established pattern of care – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 37

A New Tax System (Family Assistance) Act 1999 (Cth), ss 21, 22, 25, 35B, 35P, 35T, 59

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Vendrell and Secretary, Department Of Social Services and Anor [2014] AATA 22

Warne and Secretary, Department of Family, Community Services, Indigenous Affairs and Anor [2006] AATA 159

Secondary Materials

Department of Social Services, Family Assistance Guide

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

6 March 2018

1. The Applicant, Andrew Oates, and the Other Party, Leeanne Oates, are the parents of three children, G, J and C. Mr Oates and Ms Oates separated on 24 November 2015 but continued to live at the same residence for the next 12 months (the relevant period). Mr Oates seeks review of a decision of the Social Security and Child Support Division (First-tier reviewer) dated 26 May 2017 which determined that Ms Oates continued to have 100% care of the children G, J and C from 24 November 2015. Ms Oates has been in receipt of family tax benefit (FTB) for all three children on the basis of that decision.

   BACKGROUND

2. By decision dated 6 January 2016 the Department of Human Services determined Ms Oates was providing 51% care for G, 49% care for J and 100% care for C for the purposes of family assistance.

3. That decision was reviewed by an authorised review officer (ARO) and a determination was made on 1 December 2016 that Ms Oates had 50% care of all of the children from 24 November 2015. Ms Oates applied for review of the decision by the First-tier reviewer and on 26 May 2017 a decision was made in the terms outlined above. Mr Oates applied for review by this Tribunal.

   ISSUE

4. The issue for determination is what care arrangement existed for each of the parties’ children following their separation on 24 November 2015. At the hearing, Mr Oates conceded that Ms Oates had 100% care of C from this date.

   LEGISLATION

5. The applicable law is contained in A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).

6. Section 21 of the Act prescribes the qualification criteria for FTB. Subsection 21(1) provides that an individual is eligible for FTB if they have at least one FTB child.

7. Section 22 contains provisions for determining when an individual is an FTB child of another individual. Subsection 22(7) provides that 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. Section 25 provides that 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 of that individual for any part of the period.

8. Section 59 contains provisions relevant to shared care percentages where an individual is an FTB child of more than one person who are not members of the same couple. This provision requires that a determination of the individual’s percentage of care is made under s 35A or s 35B of the Act. Section 35B applies here because it is relevant to the determination of percentage of care for a child in the adult’s care.

9. Where there has been a change in the individual’s shared care percentage, s 35P provides that a percentage of care determination must be revoked and a new determination made.

10. Section 35T of the Act provides that a care assessment under the child support law, if not ceased or revoked, applies for the purposes of the family assistance law.

    CONTENTIONS

    Applicant’s contention

11. Mr Oates contended that because he and Ms Oates were separated but continued to live under the one roof, they should be assessed as having shared care of the three children. Mr Oates maintained that from the time of their separation in November 2015, he became the carer for all three children between the hours of 1:00 am and 7:00 am when Ms Oates left the house to go to work.

    Respondent’s contention

12. The Respondent submitted that the decision under review should be affirmed. The Respondent also noted that the First-tier reviewer undertook a comprehensive review of the parties’ circumstances and the extent of care provided, concluding that there had been no change in the care arrangements following the parties’ separation.

    EVIDENCE

13. Mr Oates and Ms Oates attended both days of the hearing in person. The Respondent was represented by Mr Sparkes.

14. Mr Oates gave evidence at the hearing and was cross-examined by Mr Sparkes. He tendered photographs of the parties’ residence and living arrangements, copies of text messages between himself and the children, receipts for the rates, power and water bills for both the residence and the parties’ shack and receipts for other expenditures including solar panels, the mortgage payments and the J’s cricket membership fees.

15. Mr Oates called his sister, Louise Wileman, as a witness. The other witnesses to give evidence at the hearing included two of the parties’ children, Ms Oates and a friend of Ms Oates’. The T documents were tendered pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

16. Mr Oates described the living arrangements following the separation: he assumed residence in the downstairs self-contained flat and Ms Oates continued to reside in the upstairs section of the house with the three children. The downstairs flat could be accessed via an internal stairway and door which could be locked on either side. Mr Oates gave evidence that initially he left the door unlocked when he was at home and this meant the children were able to access the downstairs flat. However, the connecting door was locked on the other side which prevented his access upstairs.

17. Mr Oates gave evidence that he regularly took J to cricket practice on Tuesday and Thursday evenings and would often collect him. He also took him for regular driving lessons. Mr Oates maintained that J would share a meal with him on approximately three to four occasions during the week and would stay overnight on most weekends. He gave evidence that he would take J to his brother’s house, the shack or fishing expeditions approximately once a month.

18. Mr Oates stated that G would share a meal with him two to three times per week. The meal arrangements were made via text message. He also gave evidence that C would share a meal with him and that he would occasionally take her to the bus stop until she obtained her driver’s licence.

19. Mr Oates worked as a council worker between 7:30 am and 4:30 pm. He agreed that he was not involved in preparing or taking the children to school, nor did he have any contact with the children’s school. Ms Oates attended to the children’s food, cleaning, washing, health and medical needs, private health premiums, schooling, clothing and care arrangements during the school holidays. Mr Oates gave evidence that he was unaware of the children’s activities during the school holidays. He did not provide the children with pocket money but said that he would give them money for particular events such as the show, the Taste of the Huon and the like.

20. Mr Oates did not pay child support for the children during this period but said that he paid the mortgage payments in lieu of child support.

21. The Oates’ daughter, G, stated that she only shared a meal with Mr Oates on perhaps three occasions during the 12 month period following her parents’ separation. She said that she did not recall her father attending any of her netball games. She agreed that she went to McDonalds with her father but said this would have been included as one of the three times that she shared a meal with him.

22. G said that Ms Oates would take her to and from work and netball practice. She confirmed that her mother paid for her clothes and expenses and took her to her medical appointments. G did not recall seeing her father at any school events during this period.

23. C gave evidence that she was never invited to a meal with her father. She agreed that J would join their father for a meal during the week but only stayed the night on the odd occasion. She said that J would routinely return to sleep in his own bed upstairs and that C and her sister, G, would let him in at around 11:00 pm. C recalled that her sister joined Mr Oates for a meal on only three or four occasions during the 12 month period.

24. Ms Oates worked as a cleaner between 3:00 am and 10:00 am. Ms Oates gave evidence that she organised the children’s school lunches before she left and attended to their needs after school. She also attended school functions, parent teacher interviews and sporting events. Although Mr Oates paid the mortgage payments in the amount of $530 per fortnight, Ms Oates said she regularly spent between $200 and $300 per week on groceries and related expenses from her income of approximately $600 plus family allowance. Ms Oates said she also paid for the children’s medical, school, dentist and optometry expenses as well as often paying the TasWater account and house insurance.

25. Ms Oates said that C never shared a meal with Mr Oates and that G had approximately five meals with him during the relevant period. She said Mr Oates would generally not return home until around 6:00 pm in the evenings. There were many occasions when J would be waiting for his father to arrive home to share a meal with him but would return upstairs when his father failed to come home in time. She said Mr Oates often did not return home until around 10:00 pm.

    CONSIDERATION AND FINDINGS

26. The First-tier reviewer stated that the ARO decision dated 1 December 2016, which found that the care percentages should be 50% for all children during the relevant period, was made on the basis that parents who are separated and living under the one roof share the care of the children. This was also Mr Oates’ contention. However the First-tier reviewer also noted that there is no Departmental policy statement to support such a finding.

27. There is a paragraph in the Department of Social Services’ Family Assistance Guide (the Guide), at 2.1.1.25, under the heading ‘Separated couple still living together’, which states:

    A couple who have separated, but are still sharing a home may share the care of an FTB child. Assessing the FTB eligibility for each individual should be the same as for any other shared care case. Before the separation, one of the parents would have been the primary carer. The extent to which the level of care has changed since the separation occurred should be considered.

28. It is clear from this statement that a decision maker needs to consider the extent of any change in the level of care since separation. The Tribunal rejects the suggestion that simply because a separated couple continues to occupy the same residence it should be assumed that they have shared care of their children. Whilst Mr Oates and Ms Oates lived at the same residential address, they occupied quite separate portions of the house, neither of which was accessible to the other.

29. Mr Oates conceded that Ms Oates had 100% care of their daughter C from the time of separation. The evidence before the Tribunal supports such a finding.

30. The concept of ‘care’ is not defined in the legislation. Guidance can be found in the Guide. This reflects government policy and should be followed unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

31. With respect to establishing a pattern of care, part 2.1.1.45 of the Guide states:

    If the care percentage for a child is not agreed between carers, it is necessary to establish a pattern of care to make a shared care determination for FTB. A pattern of care is generally established by using the number of nights in care for each FTB child.

32. Generally, a pattern of care is based on the number of nights in a care period where an individual has the overnight care of an FTB child. A person with the overnight care of the child is regarded as having had care of the child for that day.

33. The Guide goes on to state:

    There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days in care.

34. There was no evidence that G spent any nights in the care of Mr Oates following the parties’ separation. Mr Oates gave evidence that G had regular meals with him at least once or twice a week and he referred the Tribunal to text messages between himself and G. The Tribunal’s examination of these text messages indicates that there were, at most, seven occasions when G had a meal with her father during this period although there were more occasions when she was invited for a meal. G gave evidence that she only recalled three occasions during the relevant period when she had a meal with her father. This evidence was confirmed by her sister, C.

35. The evidence regarding the time J spent with Mr Oates is in dispute, particularly the nights spent in his care. The text message evidence indicates regular contact between Mr Oates and J regarding meal and transport arrangements to and from cricket practice and J’s place of work. There was little persuasive evidence supporting Mr Oates’ contention that J would spend up to three nights a week in his care. Both G and C stated that during the relevant period J only spent an occasional night in the downstairs flat with his father. Ms Oates gave evidence that J preferred to sleep upstairs in his own bed as Mr Oates had no proper bedding arrangement for him in the downstairs flat at the time. She stated that J rarely, if ever, slept overnight in Mr Oates’ part of the residence during the relevant period.

36. On the basis of the evidence regarding nights in care, the Tribunal could conclude that Ms Oates had 100% care of all of the children. However Mr Oates contended that his financial contributions towards the care of the children (outlined above) were relevant to the Tribunal’s determination of his percentages of care in respect of G, J and C.

37. It was not disputed that Mr Oates made the mortgage repayments for the property occupied by the parties and the children during the relevant period. It is also accepted that, from time to time, he met some of the other outgoings related to the property, namely the rates, power and water accounts and house insurance. Copies of these accounts were submitted in evidence by Mr Oates.

38. Ms Oates’ evidence that she met all of the expenses in relation to the children as well as some of the outgoings on the property, including the house insurance, was not disputed. Ms Oates contended that the initial arrangement was that Mr Oates would pay her share of the mortgage payments in lieu of maintenance for the children.

39. In Warne and Secretary, Department of Family, Community Services, Indigenous Affairs and Anor [2006] AATA 159 (Warne), the Tribunal considered that it was appropriate to have regard to any greater financial contribution made on behalf of one of the parties. At paragraph 27 of Warne, Deputy President Hack stated:

    It would be wrong, I think, to require the Secretary to undertake a minute examination and comparison of the expenditure of the parties on their children. Moreover it would in all likelihood certainly lead to greater disputation between the parties in an area where there is already sufficient disputation. But where, as I find to be the case here, there is a significant difference between the amounts expended by one party compared with the amounts expended by the other, an adjustment, again on a broad brush basis, seems to me to be plainly warranted.

40. At paragraph 38 of Vendrell and Secretary, Department Of Social Services and Anor [2014] AATA 22, Senior Member Toohey cited Deputy President Hack’s decision in Warne before stating that she ‘did not read Warne as suggesting that financial responsibilities are a more important consideration than any other’ and noted that the Tribunal had found a ‘significant difference’ in financial contributions before it was prepared to adjust the respective percentages of care.

41. In the current case, the Tribunal considers that the financial contribution made by Mr Oates in lieu of child support (one half of the mortgage repayments and other additional outgoings) does not constitute additional care. Given the evidence regarding Ms Oates’ expenditure from her income, which would have been restricted due to her caring responsibilities for the children, the Tribunal finds that there was no additional financial contribution by Mr Oates over and above his general responsibility towards his children such as to justify a finding other than one that Ms Oates had 100% care of the three children from 24 November 2015.

42. With respect to G, the Tribunal does not consider that the odd meal she shared with her father during this 12 month period constituted anything other than a casual contact arrangement. The Tribunal accepts the evidence that J enjoyed a closer relationship with his father in that there was regular and more frequent contact most weeks during the 12 month period, including some weekends. The Tribunal does not consider however that this contact constituted a care arrangement. The contact between Mr Oates and J, whilst reasonably frequent, was organised via text messages in a fairly ad hoc manner and there was no evidence of a regular pattern of care.

43. The Tribunal rejects the contention that Mr Oates and Ms Oates had a shared care arrangement with respect to J and accepts the evidence that Ms Oates continued to have both the overall care and financial responsibility for J. Although J may have spent an occasional overnight stay in his father’s flat, he resided in the upstairs portion of the house with Ms Oates. In the Tribunal’s view, this arrangement constituted a contact relationship between J and his father rather than a care arrangement.

44. The undisputed evidence was that Ms Oates assumed full responsibility for all of the children during their school holidays and that Mr Oates had little, if any, knowledge of their activities during this period.

    Conclusion

45. For all of these reasons, the Tribunal affirms the decision under review and determines that Ms Oates had 100% care of the children G, J and C from 24 November 2015.

I certify that the preceding 45 (forty- five) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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

Associate

Dated: 6 March 2018

Date(s) of hearing:	21 November 2017, 15 January 2018
Applicant:	In person
Other Party:	In person
Solicitors for the Respondent:	Mr Brian Sparkes, FOI and Litigation Branch, Department of Human Services