QFZS and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs WWRH OTHER PARTY
[2013] AATA 98
[2013] AATA 98
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2357
Re
QFZS
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
And
WWRH
OTHER PARTY
DECISION
Tribunal Senior Member A K Britton
Date 26 February 2013 Place Sydney
Decision Summary:
The decision made by the SSAT is set aside and in substitution the parties’ percentage of care for the period under review is as follows:
20 August 2008 to 10 August 2010
Youngest child
Applicant 60 %
Mother 40%
All other children
Applicant 50 %
Mother 50 %
11 August 2010 to 16 August 2010
All children
Applicant Nil
Mother 100 %
17 August 2010 to 20 September 2010
All children
Applicant 25 %
Mother 75 %
...................[SGD].....................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY - family tax benefit - shared care - percentage of care
PRACTICE AND PROCEEDURE — Jurisdiction — Temporal jurisdiction of the Social Security Appeals Tribunal—Decision of appellate body must equate to the time-period assessed in the original decision
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 35(2)(b)
A New Tax System (Family Assistance) Act 1999 (Cth) – ss 21(1), 22(2)(b), 22(5)(a), 22(6A), 22(7), 25, 25A, 58, 59, 71, Sch 1, cll 28A and 38E of Sch 1
3, 22(5)(a), 22(5)(b), 22(7), 23, 23(1)(c), 35, 35B,35B(1)(a), 35J(1), 58, 59, 111(1), 142(1), 142(2), Sch 1,
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) – s 71, 97, 99, 101
Family Law Act 1975 (Cth) – ss 63C, 121
CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130; [2009] FCAFC 185
PNZY and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 476
REASONS FOR DECISION
Senior Member A K Britton
The applicant and his former wife, (“the mother”), separated in 2007 and have four children. The applicant challenges a decision made by the Social Security Appeals Tribunal concerning his entitlement to Family Tax Benefit (FTB) in respect of those children. To be eligible for FTB, among other things, a person must have the care of at least one “FTB child”. Where care of the child is shared by persons who are not members of the (same) couple, the amount (if any) of FTB payable is generally determined by the proportion of time the child spends in the care of each carer, “the percentage of care”. (See Part 3, Division 1 of A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act)).
In September 2010 the mother applied for review of the then current percentage of care decision asserting that from 28 August 2008 her percentage of care had been 100 per cent in respect of all four children. Under that decision the mother’s percentage of care was assessed to be 40 per cent and the applicant’s 60 per cent, in respect of the youngest child; and, in respect of all other children each party’s percentage of care was assessed to be 50 per cent. Noting the conflicting evidence on review a Centrelink Authorised Review Officer (ARO) decided not to vary that decision.
The mother challenged that decision and sought review by the SSAT. The SSAT set aside the ARO’s decision and found that from 10 August 2010, the mother’s percentage of care was 98 per cent in respect of the eldest child and 94 per cent in respect of the other children.
The applicant argues that the SSAT erred by misapplying ss 23 and 35C of the Family Assistance Act. He claims that the children were removed from his care without his consent on 18 October 2010 and, by the combined operation of these provisions, his percentage of care should have been taken to correspond with the care orders made by the Federal Magistrates Court in September 2009, that is, 50 per cent in respect of all children. Where an FTB child ceases to be in a person’s care without their consent, and the person took reasonable steps to have the child returned to their care their percentage of care will be taken to correspond with that set out in any “care arrangement” for a period of up to 14 weeks.
The issues to be determined are:
What is the period under review?
Do ss 23 and 35C apply?
What are the parties’ percentages of care for the period under review?
CONFIDENTIALITY ORDERS
Section 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) confers power upon the Tribunal to make directions to restrict the publication of the names of the parties to the proceedings and to allocate a pseudonym to parties to proceedings: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149.
Despite the presumption in favour of openness enshrined in s 35 I have decided to restrict the publication of the names of the applicant and the mother, and identify each by use of a pseudonym because of the restrictions contained in s 121 of the Family Law Act 1975 (Cth) and because the publication their names would disclose the identity of their four children. In my opinion it would not be in the interests of the children, all of whom are minors, for the details of the long running and acrimonious dispute between their parents to be made public.
Accordingly, in any published reason for decision, the applicant will be referred to by the pseudonym “QFZS”, and, the mother, the Other Party, as “WWRH”.
Scope of the review
An issue raised in these proceedings is the parameters of the period under review. The trigger for the ARO’s decision was the claim made by the mother that Centrelink had incorrectly calculated her percentage of care throughout “the assessment period”, which she identified as being “from 20 August 2008”. In her reasons for decision, the ARO identified the period in review as “to 20 September 2010”. While not expressly stated it is apparent that that decision was made in respect of the period 20 August 2008 to 20 September 2010. In contrast, the decision made by the SSAT related to the period, 10 August 2010 to 18 April 2011.
The AAT’s power to review a “care percentage decision” is conferred by the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“the Administration Act”). Part 5 of that Act sets out the process for reviewing decisions made under “the family assistance law”, which include care percentage decisions. A person aggrieved by a care percentage decision that has been reviewed by an ARO, may make an application for review “of the decision as affirmed or varied” to the SSAT (s 111(1) of the Administration Act). A person aggrieved by a decision of the SSAT may in turn apply to the AAT for review of that decision (s 142(1)). Section 142(2) provides that the decision made by the SSAT is taken to be:
(a)where the SSAT affirms a decision—that decision as affirmed; and
(b)where the SSAT varies a decision—that decision as varied; and
(c)where the SSAT sets a decision aside and substitutes a new decision—the new decision; and
(d)where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT.
Neither the SSAT nor the AAT have power to make a decision outside the scope of the decision the subject of the decision made by the ARO. The SSAT only reviewed part of the decision made by the ARO, namely that part dealing with the period, 10 August 2010 to 20 September 2010. The SSAT then went on to make a purported decision in relation to a period that had not been reviewed by the ARO, namely 20 September 2010 to 18 April 2011. In making a decision outside the temporal scope of the ARO’s decision the SSAT exceeded its jurisdiction.
In the course of these proceedings I advised the parties of my opinion that neither the SSAT nor the AAT had jurisdiction to determine the percentage of care for the period, post-20 September 2010. This period had become the focus of proceedings before the SSAT because of the dramatic turn of events that occurred in October 2010. With the consent of the parties I decided to make findings about the period from 20 September 2010, to assist the resolution of the dispute. Any findings made outside the period under review, 20 August 2008 to 20 September 2010, are not determinative.
LEGISLATIVE FRAMEWORK
Where the care of an FTB child is shared, the persons who care for the child are not members of the (same) couple, and one of those individuals has made a claim for FTB, s 35B of the Family Assistance Act requires a determination to be made about the person’s percentage of care of the child:
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), (4) or (6), an FTB child of more than one individual; and
…
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.
…
The actual care of a child an individual has had, or will have, is worked out on the number of nights the child was, or will be, in the care of the individual during the “care period” (s 35J(1) of the Family Assistance Act). A “care period” is defined to mean a period where there has been, or will be, a pattern of care for the child (ss 3 and 35B(1)(a)).
FTB is only payable if the person’s “percentage of care” is at least 35 per cent (s 22(7) of Family Assistance Act). A person’s annual rate of FTB is calculated in accordance with the Rate Calculator in Schedule 1 of the Family Assistance Act (s 58). Central to this calculation is the person’s “shared care percentage” which is based on their “percentage of care” (s 59 of the Family Assistance Act).
What was the percentage of care for the period 20 August 2008 to 10 August 2010?
The parties gave conflicting evidence about the amount of time the children spent in their care prior to August 2010. The mother admitted that contrary to what she had claimed in the “Details of your child’s care arrangements” form lodged with Centrelink in September 2010, she did not have 100 per cent care of the children prior to August 2010.
The evidence given by each party about this period lacked particulars and was largely unsupported. The poor quality and paucity of evidence makes it difficult to make a proper assessment about the percentage of care. On the available evidence, I am of the opinion that, as found by the ARO, the applicant’s percentage of care in respect of the youngest child was 60 per cent and the mother’s was 40 per cent; in respect of the other children, each party’s percentage of care was 50 per cent.
Did the parties enter a care arrangement in August 2010?
To answer this question it is necessary to sketch in some background facts.
In September 2009, the Federal Magistrates Court entered consent orders which provided that unless otherwise agreed the children would spend alternate weeks and approximately 50 per cent of the total period of the school holidays, in the care of each parent.
On 10 August 2010 those proceeding (SYC 5051/2008) came back before Federal Magistrate Walker who adjourned the proceedings until 16 August 2010 and ordered that the children were to reside with their mother until that date. On 16 August 2010, Her Honour ordered that proceedings SYC 5051/2008 be discontinued and noted that the “parties would file Notices of Discontinuance in this registry today”. The orders make no mention of the September 2009 orders or any agreement reached by the parties.
A central issue in dispute is whether, as asserted by the mother, on 16 August 2010 the parties agreed to vary the September 2009 orders. The mother contends that she and the applicant agreed to discontinue the proceedings in the Federal Magistrates Court on the basis that the children would reside with her and spend alternate weekends (noon Saturday to 5pm Sunday) in the care of the applicant. In support she points to two notices of discontinuance each dated 16 August 2010: one (T13) prepared by her solicitor and the other (T10), by the applicant’s solicitor. In each, under the heading “Do you want to discontinue the whole of the application/response/reply/notice of appeal/notice? ... State which parts (orders sought/grounds of appeal) of the application/response/reply/notice of appeal/notice you wish to discontinue …” was written:
For the mother to have full custody and the applicant father to have fortnightly weekend visits, and father to undergo Court ordered drug tests.
The applicant denies reaching such agreement or instructing his solicitors to lodge a notice of discontinuance in the Federal Magistrates Court in those terms. He claims that the version of the notice relied upon by the mother is a forgery. He contends that the Notice of Discontinuance lodged in the Federal Magistrates Court was in the form set out in T 11 (purportedly filed by the applicant) and T 12 (purportedly filed by the mother). On each, in answer to the question “Do you want to discontinue the whole of the application/response/reply/notice of appeal/notice? …” the yes box is ticked and the space under the heading “State which parts (orders sought/grounds of appeal) of the application/response/reply/notice of appeal/notice you wish to discontinue…” is left blank.
Given the conflicting evidence about an agreement having been lodged in the Federal Magistrates Court, with the consent of the parties a request was made to the Court to provide the Tribunal with, among other things, the notices of discontinuance held on the court file. The notices provided to the Tribunal were in the version the applicant asserted was correct, that is, they contain no mention of an agreement being reached by the parties about care arrangements for the children. All parties were provided with, and invited to comment on, these and related documents provided by the Court. All declined the Tribunal’s invitation.
In an affidavit dated 23 December 2010 and filed in the Federal Magistrates Court, the applicant deposed that he made a verbal agreement with the mother to trial an arrangement for the remainder of the school term, whereby the children would spend the week in her care and the weekend with him. While this evidence supports the mother’s claim that agreement was reached to vary the September 2009 agreement, the documents provided by the Federal Magistrates Court indicate that no written agreement to that effect was lodged in the Court and nor were the proceedings discontinued on that basis. I could not be satisfied that a written agreement was reached to vary the terms of the September 2009 consent orders made by the Federal Magistrates Court.
What was the percentage of care between 10 August and 16 August 2010?
There is no argument that consistent with the orders made by Federal Magistrate Walker on 10 August 2010 the children were in the care of the mother between 10 August and 16 August 2010.
Accordingly the mother’s “percentage of care” during this period was 100 per cent and the applicant’s nil.
What was the percentage of care between 16 August 2010 and 18 October 2010?
The parties agree that throughout the period, 16 August 2010 to 18 October 2010, the children resided mainly with their mother.
She claims that, until the end of the school term, 24 September 2010, the children were in her care apart from three Saturdays: 21 August, 4 and 18 September 2010. The applicant claims that the children were also in his care on 17, 18, 19 and 20 August 2010.
It is agreed that the children spent part of the September/October 2010 school holiday in the care of each parent. The mother claims that the children did not return to their father’s care until Tuesday 5 October 2010; he contends that they returned on 3 October. It is agreed that the children remained in the applicant’s care until 18 October 2010.
In support of her claim the mother relies on a “care calendar” provided to Centrelink in October 2010 (T 48). She claims that the calendar accurately records those days the children were in her care.
Apart from eight days (17, 18, 19, 20August, 4, 18 September and 3, 4 October) there is general agreement about the amount of time the children spent with each parent throughout the period, 16 August 2010 to 18 October 2010. The applicant’s claim that the children were in his care on these disputed days is unsupported and based on his recollection of events that occurred over two years ago. The mother’s account on the other hand was consistent with the care calendar she prepared in October 2010 and is broadly corroborated by statements prepared by her neighbours. I am mindful both that the mother is not an independent witness and that the calendar and the neighbours’ statements were prepared in the context of a heated dispute about custody of the children and FTB entitlements. While not the clearest of cases, especially given my finding that the mother’s account of an agreement being reached in the Federal Magistrates Court in August 2010 cannot be accepted, on balance I think it more likely than not that the children were in her care on the disputed days.
Adopting those findings I conclude that the applicant’s “percentage of care” was 25 per cent, and the mother’s 75 per cent, since the mother had care for 47 days (being 75 per cent of 63 days between 16 August 2010 and 18 October 2010), and the applicant had care of the children for 16 days (25 per cent of 63 days).
What was the percentage of care post 18 October 2010?
There is no argument that from 18 October 2010 until early January 2011, the children were in the care of their mother. It follows that subject to the application of ss 23 and 35 of the Family Assistance Act, the mother’s percentage of care for that period will be 100 per cent.
Does s 23 apply?
Section 23 of the Act provides that where a child ceases to be in an individual’s care without their consent, the child will be treated as an FTB child of the individual for the “qualifying period” notwithstanding that the child ceases to be in the adult’s care. Section 23 only 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.
Was each child an FTB child of the applicant?
Paragraph (a) is satisfied. Each of the subject children was an FTB child of the applicant.
Are the circumstances surrounding legal responsibility for the care of the child those mentioned in paragraph 22(5)(a) or (b)?
Paragraphs (a) and (b) of s 22(5) provide:
Legal responsibility for the individual
(5) The circumstances surrounding legal responsibility for the care of the individual are:
…
(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
…
Section 3 of the Assistance Act defines "parenting plan" to have the meaning given by the Family Law Act 1975 (Cth). Section 63C of that Act provides:
Meaning of parenting plan and related terms
(1) A parenting plan is an agreement that:
(a) is in writing; and
(b) is or was made between the parents of a child; and
(ba) is signed by the parents of the child; and
(bb) is dated; and
(c) deals with a matter or matters mentioned in subsection (2).
(1A) An agreement is not a parenting plan for the purposes of this Act unless it is made free from any threat, duress or coercion.
(2) A parenting plan may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the process to be used for resolving disputes about the terms or operation of the plan;
(h)the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Order 7 entered by the Federal Magistrates Court on 14 September 2009 gave effect to a written agreement that was signed by the applicant and the mother. That agreement covered many of the matters listed in s 63C(2) including with whom the children were to live and the amount of time they were to spend with each parent. There is no evidence that that agreement was made under threat, duress or coercion. Even if, as the mother claims, verbal agreement was reached to vary that agreement, as that variation to the agreement was not reduced to writing it does not constitute a parenting plan. Accordingly the parenting plan in place at August 2010 was the September 2009 agreement.
Did an event occur in relation to the child(ren) without the applicant’s consent that prevented the child being in his care?
On 18 October 2010 the mother demanded that the children who had then been residing with their father for over two weeks, be returned to her care. An altercation ensued, the police were called and the applicant arrested for breach of an Apprehended Violence Order (AVO). On his account he was incarcerated for two days. The applicant claims that the mother then refused to grant access to the children and he understood that if he took steps to have them returned he would be in breach of the AVO.
The children lived exclusively with their mother until at least late January 2011.
I am satisfied that “an event” occurred that prevented the children being in the applicant’s care.
Did the applicant takes reasonable steps to have the child(ren) again in his care?
On 24 December 2010 the applicant’s solicitors lodged an application in the Federal Magistrates Court for a recovery order under the Family Law Act1975 (Cth). In these proceedings the applicant claimed that the reason he delayed making that application was because he was deeply distressed by the events of 18 October 2010, so much so that he was incapacitated for a couple of weeks and found it difficult to “think straight”. He testified that the filing of the application was also delayed because he had to find and instruct new lawyers and the time involved in gathering the necessary evidence to support the recovery order application.
The test imposed by s 23(1)(c) of the Family Assistance Act is not whether all reasonable steps were taken to have the subject child returned, but whether reasonable steps were taken (see PNZY and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 476). In making that assessment, all relevant circumstances must be taken into account including the circumstances surrounding the children being prevented from being in the care of applicant, the lawful options available to the applicant to have the children returned to his care, and the reasons for the delay in making an application for a recovery order. I accept that the applicant was deeply distressed when the children were taken from his care and that explains in part his delay in instructing solicitors to commence recovery proceedings. In all the circumstances the nine week delay in commencing recovery proceedings in my opinion could not be described as excessive. I find that the applicant made reasonable attempts to have the children returned to his care.
It follows that each of the elements of s 23 of the Act are satisfied. Accordingly each child is to be treated as an FTB child of the applicant for the “qualifying period”, in this case, the 14 weeks from the date the children ceased to be in the applicant’s care, that is, 18 October 2010 to 24 January 2011.
It follows that each of the children are taken to be an FTB child of the applicant. As a “care arrangement”, which is defined by s 3 of the Family Assistance Act to include a parenting plan, was in place during this period, namely the September 2009 agreement, by the operation of s 35C of that Act, the applicant’s percentage of care is taken to be correspond to that the amount set out in that plan, namely 50 per cent.
What was the percentage of care from 24 January 2011?
The evidence indicates that the children largely resided with their mother and at some point in 2011 resumed contact with their father. On the available evidence it is probable that the mother’s percentage of care was 100 per cent from 24 January 2011.
Summary of findings
I find that for the following periods the parties’ percentage of care was:
20 August 2008 to 10 August 2010
Youngest child
Applicant 60 %
Mother 40%
All other children
Applicant 50 %
Mother 50 %
11 August 2010 to 16 August 2010
All children
Applicant Nil
Mother 100 %
17 August 2010 to 18 October 2010
All children
Applicant 25 %
Mother 75 %
19 October 2010 to 24 January 2011
All children
Applicant 50 %
Mother 50 %
From 25 January 2011
All children
Applicant Nil
Mother 100 %
SUMMARY
The decision made by the SSAT is set aside and in substitution I decide, that the parties’ percentage of care for the period under review is as follows:
20 August 2008 to 10 August 2010
Youngest child
Applicant 60 %
Mother 40%
All other children
Applicant 50 %
Mother 50 %
11 August 2010 to 16 August 2010
All children
Applicant Nil
Mother 100 %
17 August 2010 to 20 September 2010
All children
Applicant 25 %
Mother 75 %
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ...............[SGD].........................................................
Associate to Senior Member A K Britton
Dated 26 February 2013
Date(s) of hearing
Date for final submissions due:
29 October 2012
14 February 2013
Applicant In person Solicitors for the Respondent Ms J Maclean, Centrelink Program Litigation and Review Branch
Other Party In person
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