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

Patterson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1567 (28 September 2017)
Division:GENERAL DIVISION
File Number: 2016/5097
Re:Ayumi Patterson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndRichard Patterson
OTHER PARTY

DECISION
Tribunal:Senior Member J Sosso

Date:28 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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Senior Member J Sosso
CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – percentage of care – care period - pattern of care – change in pattern of care – Other Party provided vast bulk of care - decision under review affirmed.

LEGISLATION

A New Tax System (Family Assistance) Act 1999

CASES
P v Child Support Registrar & Anor (2014) 225 FCR 378
Wade v Secretary, Department of Family and Community Services [2004] FCA 1660; 139 FCR 285
Nowicz and Department of Family and Community Services [2001] AATA 628

REASONS FOR DECISION
Senior Member J Sosso
28 September 2017
INTRODUCTION

Mrs Ayumi Patterson (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) of 19 August 2016 which determined to record Mr Richard Patterson (the Other Party) as having 100% care of their two children (A and L), effective from 16 June 2015.
The Applicant and the Other Party separated on 16 June 2015. The Applicant moved out of the family home and into another house on the same large block of land, approximately 20 metres away, with the owner of the property. The property in question is located in rural northern New South Wales. The children continued living with their father and slept every night in the family home. The Applicant, however, continued to be involved with her children, helping with lunches and meals and sometimes taking them to the bus stop. Further, the Applicant took her children to Japan to visit their maternal grandparents between 15 September 2015 and 8 October 2015.
Prior to 16 June 2015 the Applicant received the Parenting Payment (PP) as she was partnered to the Other Party and considered the principal carer of her two children.
The Applicant was also in receipt of the Family Tax Benefit (FTB) in respect of her children.
These payments were deposited to a joint account with the Other Party (R and A Patterson) with the ANZ Bank.
Shortly after their separation, the Other Person attended at the ANZ Bank and the Applicant was removed as a signatory to their joint account. It is not contested that from that point forward the Applicant had no access to any subsequent social security payments deposited in the bank account – Exhibit 1 T2 p. 8 at para 7.
Of the Applicant’s two children, L was born in 2004 and is currently 13 years of age and A was born in 2010 and is currently 7 years of age.
On 11 August 2015 the Applicant contacted and notified the Brunswick Heads office of Centrelink that she had separated from the Other Party – Exhibit 1 T7 p.65. Centrelink then issued the Relationship Details – separated under one roof form to both parties.
The Applicant returned her completed form on 12 August 2015. She informed Centrelink that she had separated from her husband on 16 June 2015, and stated – Exhibit 1 T8 p.73:
“We are not a couple anymore, and I have set to separate more. I live different house.”
The Applicant also stated that she was “living with my boyfriend” in “the house next to it” – Exhibit 1 T8 p.75. In response to question to what extent the Other Person was providing care or support for the Applicant in the circumstances of illness, personal crisis, money matters and family disputes, she answered “none” to each – Exhibit 1 T8 p.76. The only shared social and leisure activities the Applicant said she had with the Other Person was “kids birthday party” – Exhibit 1 T8 p.76. The Applicant also answered in the negative to questions as to whether she had a joint account with the Other Person, or the use of, or access to, any accounts, including store cards or credit cards – Exhibit 1 T8 p.77. Finally, the Applicant also denied that she had any joint debts or personal loans with the Other Person and that both independently paid for their telephone and utility expenses – Exhibit 1 T8 p.78.
Questions were also posed concerning the extent to which the Applicant paid for food and housekeeping items and did the shopping, washing and cleaning. To each of those questions the Applicant answered “mainly Richard, but I contribute some”. As to the gardening and general maintenance the Applicant answered that those tasks were performed by “Richard” – Exhibit 1 T8 p.79.
In response to the question “Does the other person look after the children?”, the Applicant ticked the “Yes” box and wrote: “mainly Richard. I do, too” – Exhibit 1 T8 p.82. Question 77 posed the question: “How often does the other person visit the school/sporting/leisure outgoings with or on behalf of the children?”. The Applicant’s reply was: “He does most of it, but I do 30%.” The final question of relevance was question 78 which asked: “Does the other person contribute to the financial support of any of the children?”. The Applicant ticked the “Yes” box and stated: “I don’t have access to the bank account. I do contribute too” – Exhibit 1 T8 p.82.
On 21 September 2015 the Other Person returned to Centrelink his completed version of the same form – Exhibit 1 T12 pp.101- 112.
The Other Person stated that he was the primary carer of their two children and that the Applicant no longer lived in their home and that he took care of the children – Exhibit 1 T12 p.102.
In response to the questions relating to the undertaking of the household tasks of cleaning, washing, gardening, general maintenance as well doing the shopping and paying for food and housekeeping items, the Other Person stated that he was responsible for all of the enumerated tasks and activities – Exhibit 1 T 12 p.108.
The Other Person also stated that the Applicant did not look after the children or decide matters about their education and development, but the Applicant did participate in about 25% of the children’s school/sporting/leisure activities – Exhibit 1 T12 p.111.
On the same day the Other Person also returned a completed “Details of care arrangements” form – Exhibit 1 T13 pp.114 – 122.
Of significance, the Other Person made the following claim – p.121:
“I have 100% care of the children. My separated wife lives on the same 50 acre property but does not care for the children or live with us.”
Relying on this information, on 12 October 2015 the Applicant’s PP and FTB were suspended pending further investigations and the receipt of further information – Exhibit 1 T10 p.88.
After the receipt of further information, Centrelink determined on 16 November 2015 to record the Applicant as having 0% care of her children, with effect from 16 June 2015.
On 15 March 2016 the authorised review officer (ARO) affirmed the decision – Exhibit 1 T4 pp.49 – 55, and in turn this decision was affirmed by AAT 1 on 19 August 2016.
A hearing was convened in Brisbane on 15 August 2017. The Applicant was self-represented and participated via teleconference. She also gave evidence. The Other Party was also self-represented and participated via telephone. The Secretary, Department of Social Services (the Respondent) was represented by Ms Julia Driver, Government Lawyer with the FOI and Litigation Branch of the Department of Human Services.
ISSUE
The issue to be determined is the percentage of care to be applied for L and A for the Applicant and the Other Party from the date of their separation, 16 June 2015.
THE RELEVANT LAW
Section 21 of A New Tax System (Family Assistance) Act 1999 (the Act) provides, inter alia, that an individual is eligible for the FTB if the individual has at least one FTB child and the individual is an Australian resident. Where two adults, as a couple, are eligible at the same time for the FTB, then only one member of the couple can receive the FTB. The eligible adult is the one determined by the Secretary to be the primary carer for the child or children or where the adults have made a written agreement – s 26.
The characteristics of an FTB child are enumerated in s 22 of the Act. Relevantly the child must be aged under 16, is in the adult’s care and is an Australian resident – s 22(2). Separate provisions are made for children aged 16 – 17 (s 22(3)) and 18 – 19 (s 22(4)). The adult in receipt of the FTB must, inter alia, be legally responsible, whether alone or jointly, for the day-to-day care, welfare and development of the child – s 22(5)(a). If the adult’s percentage of care for a child is at least 35%, the child is taken to be an FTB child of that adult for the purposes of the Act – s 22(7). However, if the adult’s percentage of care is less than 35%, the child is taken not to be an FTB child of the relevant adult – s 25.
If the care of a child, or children, is shared then what percentage of FTB is to be paid to each adult is calculated by reference to ss 35B and 59 of the Act. Importantly, these provisions are only relevant if an adult’s percentage of care is within the range of 35% - 65%.
The care period is that period over which care is assessed to determine the care percentages of each adult carer. The care period usually commences on the day on which the care of a child or children starts to be shared between two or more adults or the day on which the pattern of care changes. In this matter, the commencement of the care period is 16 June 2015 when the Applicant and the Other Party separated. The care period ends when there is a subsequent change in care or where a subsequent care determination is made. A determination was made under the Child Support Assessment Act 1989 on 11 December 2015, effective from 2 December 2015: accordingly the care period ended on 1 December 2015.
Section 35B provides for the determination of percentage of care by reference to the “care period”. The actual care of a child that an adult has had, or will have, during a care period may be worked out based on the number of nights that a child was, or will be, in the care of the adult during the care period – s 35J. However, there is no obligation to apply the “number of nights” methodology – P v Child Support Registrar & Anor (2014) 225 FCR 378.
CONSIDERATION
It is not disputed that the Other Party had at least 35% care of L and A during the care period. Consequently they are FTB children for the purposes of determining the percentage of time that the Applicant and the Other Party shared their care.
The Tribunal was assisted by the evidence that the Applicant gave during the hearing.
The Applicant informed the Tribunal that her two children had, since the time she separated from the Other Party, slept almost every night in his home. She estimated that the children stayed overnight with her approximately once every fortnight.
The Applicant also testified that on most days she would provide help for her children, but there were some days when she was unable to provide any assistance. The most frequent source of assistance was dropping the children at the bus stop, but less frequently the Applicant made their school lunch.
The Applicant emphasised that she did not abandon her children when she separated from her husband. Indeed, she testified that she provided them with ongoing emotional support and paid for their yoga, school excursions and music classes. She also took the children on an extended holiday to Japan in the period 15 September to 8 October 2015 so that they could meet their Japanese relatives.
This evidence is consistent with information the Applicant provided to Centrelink on two occasions during the care period. The first was on 16 October 2015, and the contemporaneous Centrelink record of the conversation contains the following information – Exhibit 3:
“Mrs Patterson confirmed she has allowed Mr Patterson to take the majority of care of the children, and asked me if this will ultimately impact on her having custody of the children in the long term.”
The second occasion was on 16 November 2015, where the Applicant is recorded as providing this information – Exhibit 4:
“cus advised that x ptr is the principal carer of A and L and the children live with him. Cus advised that she still sees the children all the time but they live in the house with xptr.”
Ms Driver drew the Tribunal’s attention to the decision of Kiefel J in Wade v Secretary, Department of Family and Community Services [2004] FCA 1660; 139 FCR 285. Her Honour made the following observation ([30]/291):
“It is however clear from the Act that its object is to provide a benefit to the person having the care of the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided to them.”
In this matter, it is clear that an overall pattern of care was provided to the two children by the Other Party and the Applicant. This pattern consisted of the children living with their father, and with their father having the primary responsibility for caring for them. The Applicant did help in some matters, including food preparation, transportation and some financial assistance. Moreover, the children did stay overnight with her approximately once every fortnight.
The only break in this pattern of care was when the Applicant took the children to Japan. This was, as Ms Driver submitted, a temporary one-off variation, and did not constitute a significant and ongoing departure in the established pattern of care – Nowicz and Department of Family and Community Services [2001] AATA 628 at [15] per Senior Member Kiosoglous.
As Kiefel J highlighted in Wade (at[29]/290), the Act does not explain how an adult’s percentage FTB for a child is to be determined for the purposes of s 59. Her Honour also observed (at [30]/290-291) that it “does not follow that reference to days of care can be imported into what is necessary to calculate the actual percentage of care.”
The undisputed evidence before the Tribunal is that during the care period, the Other Person provided the vast bulk of care for the two children. They lived with him, he was primarily responsible for their well-being, including their meals, schooling and all of the incidents of family life. Certainly the Applicant provided ongoing assistance, but it was of a secondary nature and, during some periods, intermittent.
If one was to calculate the percentage of FTB for the children based on the formula in s 35J, including the time that the children were with the Applicant on their visit to Japan, then Ms Driver calculated it would amount to 19%. That would be, on the basis of the evidence, a very generous percentage from the viewpoint of the Applicant. If the Japanese holiday component were to be excised from the calculation, then the percentage would be less than 10%.
Even if one were to adopt a more complicated formula, trying to insert into the equation concepts of income support, actual hours spent with the children, or the quantity and quality of support provided, it is clear that the vast majority of care for the children was provided by the Other Party.
This is not, it should be emphasised, a criticism of the Applicant. As she said, she did not abandon her children and tried her best to support them. However, once she left the family home, and had to travel to Bryon Bay to work two days each week, inevitably her contact with her children decreased significantly. That was simply a by-product of her physical and emotional separation from her husband and the living arrangements that existed between them.
The evidence leads to the conclusion that during the care period the Applicant did not have at least 35% care of either of her children. It therefore flows that the Tribunal must find that both L and A should be recorded as the Other Party’s FTB children in his 100% care during the care period.
DECISION
The decision under review is affirmed.

I certify that the preceding 45 (forty - five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

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Associate
Dated: 28 September 2017

Date of hearing: 15 August 2017

Applicant: By telephone

Solicitors for the Respondent:

Other Party:

Department of Human Services

By Telephone

[2017] AATA 1567

28 September 2017

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

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