Radcliffe and Secretary, Department of Social Services (Social security second review)

Radcliffe and Secretary, Department of Social Services (Social security second review) [2024] ARTA 246 (12 December 2024)
Applicants:Radcliffe
Respondent:  Secretary, Department of Social Services
Other Party:  Collins
Tribunal Number:                2022/10694

Tribunal:Deputy President K Dordevic
Place:Sydney
Date:12 December 2024
Decision:The Tribunal affirms the decision under review.

………………[SGD]………………………………….
Deputy President K Dordevic
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 161(1B)-161(1C) of A New Tax System (Family Assistance) (Administration) Act 1999.
CATCHWORDS
SOCIAL SECURITY – family tax benefit - care percentage decision – nature of parties relationship – financial supports for child – forms of evidence provided to Centrelink- Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
CASES
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
Statement of Reasons

This application concerns Ms Radcliffe and Ms Collins’s respective care percentages of CRC (the child) born [the date of the child’s birth].
Ms Radcliffe is the birth mother of the child.[1] Ms Collins is listed as the other parent on the child’s birth certificate.
[1] T2, folio 58
Following an application lodged by Ms Collins on 2 September 2019, Services Australia – Centrelink (Centrelink) granted Ms Collins parenting payment and family tax benefit on the basis that she had 100% care of the child from birth.
On 30 October 2019, Ms Radcliffe lodged a claim for paid parental leave. On 14 November 2019 this claim was rejected on the basis that she was not the primary carer of a child.
On 26 October 2020, Ms Radcliffe lodged a claim for parenting payment. Her claim was rejected on the same day on the basis that she did not provide care to a dependent child.
On 3 November 2020, Ms Radcliffe lodged a claim for family tax benefit. In her application she declared that she had 100% care of the child. On 17 November 2020 the application was rejected on the basis that she did not have care of the child.
On 24 March 2021, Ms Radcliffe lodged another claim for parenting payment. The claim was rejected on 8 April 2021 on the basis that she did not have a dependent child in her care.
Ms Radcliffe challenged these decisions on 5 May 2021 and on 5 October 2021 an authorised review officer decided that the original decisions were correct.
Ms Radcliffe then applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal for an independent review of the decision. The decision was set aside and in substitution the Tribunal decided that from 8 October 2019 Ms Radcliffe had 28% care and Ms Collins 72% care of the child.[2] In separate reasons for decision it was determined that Ms Radcliffe was not qualified for parenting payment or family tax benefit.
[2] T2, folios 5 to 9
Dissatisfied with that decision Ms Radcliffe lodged an application for review on 27 December 2022.
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal. [3]
[3] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The hearing took place on 4 November 2024. Ms Radcliffe and Ms Collins participated by MS Teams video. Centrelink was represented by counsel. The Tribunal had before it a joint tender bundle provided by Centrelink in addition to documents provided by Ms Radcliffe and Ms Collins.
ISSUES
The issue requiring determination in this matter is what care, expressed as a percentage, Ms Radcliffe provided the child from her birth.
CONSIDERATION
The law
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act).
Parenting payment is a payment under the social security law. To be qualified, section 500 of the Act requires that a person must, among other things, have at least one ‘PP child’. Section 500D of the Act states that for a child to be a particular person’s PP child, among other things, the child must be less than a certain age and the person must be the ‘principal carer’ of the child.
The general meaning of principal carer is given in subsections 5(15) to (24) of the Act. Logically, in most situations in which parents share the care of a child, that definition would include both parents. However, subsection 5(18) imposes a limitation whereby only one person at a time can be the principal carer of a particular child.
Subsection 5(19) states where there would otherwise be more than one principal carer under the general definition, Centrelink must make a written determination and give a copy of the determination to each of the persons.
Section 3 of the Act states that the term ‘care period’ has the meaning given in sections 35A and 35B of the Family Assistance Act. Sections 35A and 35B refer to a ‘care period’ as a pattern of care of the child over a period.
Section 22 of the Family Assistance Act requires a person receiving family tax benefit to have the care of an FTB child.
Section 25 of the Family Assistance Act provides that if a person has less than 35% care of a child during a care period, then the child cannot be an FTB child in respect of that person.
Section 26 of the Family Assistance Act states that only one member of a couple is eligible for family tax benefit. Subsection 26(2) of the Family Assistance Act states that the member of the couple is the one determined by the Secretary to be eligible, having regard to who is the primary carer for the child and whether or not there is a written agreement nominating one member of the couple as the member who can make the claim for family tax benefit.
Both sections 35P and 35Q of the Family Assistance Act require that the Secretary be notified or otherwise become aware that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child, and that the Secretary is satisfied that the individual’s shared care percentage for the child would change if the Secretary were to determine, under relevant provisions, another percentage to be the individual’s percentage of care for the child.
THE EVIDENCE
The Tribunal finds that Ms Radcliffe is the birth mother of the child. The child’s birth was registered on 14 August 2019 and lists Ms Collins and Ms Radcliffe as the child’s parents. On 4 August 2019 Ms Radcliffe and Ms Collins indicated that neither were to be listed as the birth mother.[4] At Ms Radcliffe instigation, the child’s birth certificate was amended on 30 April 2021 to reflect that Ms Radcliffe was the birth mother.[5]
[4] T2,36.
[5] T2, 70.
When lodging her application for family tax benefit Ms Collins provided two statutory declarations, each dated 27 September 2019.[6]
[6] T10, 174 to 175.
Ms Radcliffe’s statement was made in the following terms:
I, [Ms Radcliffe’s name], do solemnly and sincerely declare that I have had a friendship with [Ms Collins’ name] for over 10 year period. I was the birth mother for child [Child’s name] born at [Hospital] on [the date of the child’s birth]. [Ms Collins’ name] and myself have a personal aggreement (sic) regarding the child [child’s name]. [Ms Collins’ name] provides day-to-day care of [the child] and provides financial care for daily needs and requirements for [the child].
Ms Collins’s statement was:
I, [Ms Collins’ name], do solemnly and sincerely declare that I have had a friendship with [Ms Radcliffe’s name] well over 10 years.
[Ms Radcliffe’s name] and myself have a personal agreement (sic) regarding an arrangement for the birth of [the child] born [the date of the child’s birth]
I provide the day to day needs of child [child’s name] and provide all finical (sic) support for her.
I am the primary care giver for [the child].
Ms Collins was granted parenting payment and family tax benefit on the basis that the child was her ‘PP child’ and ‘FTB child’ from the date of the child’s birth.[7] It is apparent that Centrelink reached this conclusion, in part, based on the above statutory declarations. When assessing Ms Collins’s qualification for the payment and benefit Centrelink assessed Ms Collins and Ms Radcliffe as ‘separated under the one roof’.[8] This is a social security term to reflect a situation where a former member of a couple continue to share accommodation but are recognised as no longer being a couple for the purposes of assessing their qualification for, and payability of, social security and family assistance payments.
[7] As per sections 500 of the Act and 21 of the Family Assistance Act.
[8] T14, 183 to 184.
Immediately before and after the child’s birth, Ms Radcliffe was in receipt of family tax benefit in respect of the care that she was providing her older children.[9] From 30 November 2019 her family tax benefit reduced as Centrelink determined that only her son remained in her care.[10]
[9] T20, 302.
[10] T20, 305.
On 30 October 2019 Ms Radcliffe lodged a claim for paid parental leave. On 14 November 2019 this claim was rejected on the basis that she was not the primary carer of a child.[11] There is no evidence before the Tribunal to suggest that Ms Radcliffe sought a review of this decision.
[11] T19, 260 to 261.
Ms Radcliffe’s Centrelink documents indicate that she applied for newstart allowance (now known as jobseeker payment) on or before 30 October 2019. During a contact dated 30 November 2019 Centrelink advised Ms Radcliffe that she may be eligible for parenting payment.[12] There is no evidence in the Centrelink file to suggest that Ms Radcliffe sought review of the decision to grant her newstart allowance nor, after being advised of her potential eligibility, that she lodged a claim for parenting payment.
[12] T19, 260 to 261.
The Tribunal finds that Ms Radcliffe’s next contact with Centrelink was on 12 February 2020 when she contacted in respect of her rent assistance.[13]
[13] T19, 262.
Ms Radcliffe then lodged a claim for parenting payment on 26 October 2020.[14] Her claim was rejected on 26 October 2020 on the basis that she did not have any dependent children in her care. It was noted that neither she nor Ms Collins had lodged a change of care assessment for the purposes of family tax benefit.
[14] T19, 263.
Ms Radcliffe then contacted Centrelink on 3 November 2020 claiming family tax benefit on the basis that she had 100% care of the child since birth. Ms Radcliffe’s claim was rejected, and she was advised to seek a review of the care determination.[15]
[15] T19, 264 to 265
The next record of contact made by Ms Radcliffe was dated 18 March 2021, where she again contacted in respect of family tax benefit.[16] Ms Radcliffe advised a Centrelink officer that she would appeal the previous claim in respect of the child and also confirmed that the child was not in her care.[17]
[16] T19, 266
[17] T19, 268
On 24 March 2021 Ms Radcliffe lodged an online claim for parenting payment. The claim was then put on hold as Ms Radcliffe advised that she was living separated under the one roof with her former partner who is in receipt of parenting payment and family tax benefit in respect of the child.[18]
[18] T19, 269
The parenting payment claim was rejected on 8 April 2021 on the basis that she did not have a dependent child in her care. Ms Radcliffe attended a Centrelink office on 14 April 2021 to query the rejection. Ms Radcliffe declared that she was the sole carer of the child since birth.[19] Ms Radcliffe attended a Centrelink office again on 23 April 2021 and advised that the child was removed from her care without her consent.[20]
[19] T19, 271
[20] T19, 272
It is not in dispute that prior to the birth of the child Ms Radcliffe and Ms Collins shared a home in [a Sydney suburb] and that on 14 April 2021, after an apprehended violence order was issued protecting Ms Collins and the child, Ms Radcliffe no longer resided in the [a Sydney suburb] home.
The Tribunal also notes that on 16 July 2021 the Federal Circuit Court of Australia ordered that Ms Radcliffe was to have five nights care of the child each fortnight. Expressed as a percentage, this meant that Ms Radcliffe had 35% care. Application of section 25 of the Family Assistance Act means that the child was Ms Radcliffe’s FTB child from at least 16 July 2021.
The Tribunal concludes that the relevant care period in this case is [the date of the child’s birth] to 13 April 2021 (the relevant period).
Ms Radcliffe’s evidence
In a subsequent claim for family tax benefit dated 9 April 2021 Ms Radcliffe declared that she had 100% care of the child since birth.[21] In her statements to the authorised review officer she declared that the care of the child at the very least should be reflected as 50% care as at all relevant times she and Ms Collins shared the [a Sydney suburb] home.[22]
[21] T7, 148 to 149.
[22] T19, 278.
At hearing, Ms Radcliffe’s evidence was that she has cared for the child since birth and she has been fighting to have her parenthood recognised. She stressed that even the Family Court of Australia determined that she is the child’s primary carer. Later in the hearing Ms Radcliffe stated that she does not know how to work out her and Ms Collins’s respective care percentages; she thinks that it should be that her care is reflected as four night per week, as she was present in the home every day apart from those that she worked.
Ms Radcliffe alleged that all the documents provided to Centrelink at the time of Ms Collins’s claim for family tax benefit are fraudulent. Therefore, from 2019 to 2021 she should have been in receipt of paid parental leave, parenting payment and family tax benefit.
Ms Radcliffe provided the following relevant history regarding her relationship with Ms Collins. They were in a de facto relationship prior to 2011 but following the breakdown of their relationship they continued to share a home. They then relocated to [a Sydney suburb] in 2018 but were separated under the one roof. In response to the Tribunal’s questioning about whether they were members of a couple at any time after 2011, Ms Radcliffe stated that their relationship was “weird” and “kind of on and off”. Later in the hearing she stated that sometimes she would describe herself as a member of a couple with Ms Collins, and sometimes she would not. Their relationship was “on and off” and “strange”.
When asked about the state of their relationship at the time of the child’s conception, Ms Radcliffe stated that it was a “love hate relationship”. She went on to state “One minute we were fine, and the next minute we’re fighting and, you know, we didn’t want to talk to each other”.
Ms Radcliffe testified that she had been working four days per week prior to the child’s birth but had to cease working in May 2019 for medical reasons. She denied that she and Ms Collins ever had a discussion about the child’s care arrangements prior to her birth. She received four weeks paid maternity leave and then sick leave for about another month. She returned to paid work in about October 2019; prior to that she was home each day and night. When she return to paid work she wanted to work nights, but instead was given some day shifts, a couple of afternoon shifts and a night. Within a month and a half of returning to paid work she resigned.
Ms Radcliffe does not contest that whilst she was at work Ms Collins had sole care of the child. However, she stressed that this was because there was no one else to care for the child. She likened it to leaving a child at pre-school when she was at work. When asked if she considered that Ms Collins was providing parental care, Ms Radcliffe replied “… she was a parental figure, yes”. She stressed that whilst Ms Collins was responsible for the child while she was at work, if something serious was to happen to the child she would have returned home. She noted that the child suffered from croup and that if the child needed something she would provide it.
Ms Radcliffe confirmed that Ms Collins fed, bathed and met the child’s needs generally even when she was also present was in the home. However, Ms Radcliffe stressed that it was she who would organise and meet the cost of medical appointments for the child. At the same time she was “fighting Medicare” for the child to be added to her Medicare card. Later, Ms Radcliffe conceded that during the relevant period the child did not need to go to the doctor often and so the costs associated with her medical needs were minimal.
Later in the hearing Ms Radcliffe confirmed Ms Collins’s evidence that it was Ms Collins who brought the child to a paediatric appointment and met the cost; Ms Radcliffe stated that it was only right that Ms Collins would do this as she had the child’s name on her Medicare card. Ms Radcliffe also stated that it was she who purchased formula and nappies for the child. When asked if Ms Collins contributed to such costs Ms Radcliffe stated that Ms Collins may have picked up “some nappies and some formula and stuff”. When asked if there were any other costs of the child that Ms Collins met Ms Radcliffe stressed that these were “voluntary”. She did recall that Ms Collins bought clothing, toys, bottles and “that kind of thing”.
Ms Radcliffe recalled that the child commenced swimming lessons in December 2019 and that she attended most lessons, though Ms Collins enrolled the child up and paid for the lessons. She then amended her statement to say that she too met these costs; she estimated that she met about 40% of all the child’s swimming lessons.
Ms Radcliffe confirmed that in December 2019 she was no longer working and claimed newstart allowance.[23] She was “fighting” to get another payment but was told that she was not eligible for any other payment type as she was advised that she did not have a child under 8 years of age. During this period, she was at home at all times with the child until she commenced a new job in February 2020. She declared that Ms Collins did not assist in the child’s care during the period December 2019 to February 2020.
[23] Corroborated by T13, folio 112.
Ms Radcliffe explained that upon returning to paid employment in February 2020 she generally worked 45 hours per fortnight as a disability carer, working short shifts during the day, allowing her time at home during the day to care for the child. Whilst she was at work Ms Collins cared for the child. Ms Radcliffe continued in this role until 14 April 2021, though her hours fluctuated between 20 to 30 hours per fortnight.
Ms Radcliffe confirmed that she did commence an online Certificate IV in Nursing in early 2020. She reported only one contact hour per week supplemented with self-directed learning of between 30 minutes to one hour per week. She recalls that it was a six week course which she completed in June 2020. She would either complete her studies whilst the child was asleep, being cared for by Ms Collins or with the child on her lap.
The Tribunal put to Ms Radcliffe the statutory declarations in evidence. Ms Radcliffe stated that Ms Collins wrote the statements at the direction of Centrelink. She understood that the statutory declarations were “just an agreement between [Ms Collins] and I” and so Ms Collins would be able “to claim some kind of like payment for herself” so she has “something to say that she looks after a child for, you know, periods of the day”. Ms Collins told her to sign it for “her security kind of thing”.

Ms Radcliffe declared that she recalled attending a justice of the peace (JP) for another purpose but does not recall attending to have the statutory declarations in evidence witnessed. She went on to state that there was a lot of paperwork at the time that required attending to.
When asked specifically if she signed the statutory declarations Ms Radcliffe confirmed that she did, but she did not read them properly as “struggles” to read things. She was adamant that she does not agree with the contents of the statutory declarations because “I never write it” and it was “not something that I would have said” and she “wasn’t in the right headspace” to understand its content. She denied that she ever had a personal agreement with Ms Collins regarding the care of the child.
Ms Radcliffe reports that Ms Collins applied for the child’s birth certificate without her knowledge. She explained that she only became aware of the registration of the child’s birth when the birth certificate arrived in the mail. She had so much going on at the time that she did not challenge Ms Collins being listed as a parent. She takes offence at being listed as the second mother and in 2021 had the certificate amended to reflect that she is the child’s birth mother. She recalls that when she challenged the registration in 2021 she was told that she would have to take it to court. She would not know how to do that, nor does she have the funds to litigate.
Ms Radcliffe did not dispute that there were no court orders regarding the child’s care or apprehended domestic violence orders in place prior to 2021.
Ms Radcliffe was invited to describe the living arrangements during the relevant period. She declared that she and Ms Collins shared a bedroom, though sometimes she slept in the spare room before the child was born because of their different work hours. She confirmed that they also had a joint bank account during this period. She cannot recall the particulars of the account except that it was the account into which she would transfer money for Ms Collins to access to meet the costs of the child. Otherwise, the account was used to meet other household costs. They would usually split household bills between them; for example, Ms Radcliffe paid for Foxtel and the internet. They contributed equally to the rent expense and would go food shopping together and each would buy their own food.
The Tribunal put to Ms Radcliffe that the documentary evidence suggested that at all relevant times she was a member of a couple with Ms Collins and that together they made a decision that Ms Collins would be the primary carer of the child and Ms Radcliffe would return to paid work. The Tribunal suggested that this was a more plausible explanation of the arrangements.
Ms Radcliffe was adamant that this was not the case and that she was “fighting” with Centrelink to get paid parental leave and parenting payment. She suggested that it would have been beneficial for Ms Collins to continue with her employment as she had higher earnings. It was never the arrangement that she would return to work; instead, she felt forced to go back to work because she had “no papers” and she could not get the extra time off that “everyone else got”.
Ms Radcliffe stated that in her view young children should not be in childcare and so acquiesced to Ms Collins’s offer to care for the child when she returned to work. This is why she understood she had to complete the statutory declaration. She likened it to providing funds for a friend if they cared for her older children. She thought that Ms Collins was applying for newstart allowance because she could not work as she was caring for the child.
It was put to Ms Radcliffe that her assertions that she effectively had sole care of the child is inconsistent with statements she made to the authorised review officer that she and Ms Collins had 50% care each. Ms Radcliffe replied that she did not and still does not understand how to have the care she provided reflected as a percentage. She was looking after the child four out of seven days.
Ms Radcliffe became distressed when the Tribunal put to her the Centrelink record[24] which indicated that her eligibility for parenting payment was raised on 30 November 2019 and the record notes “Claimant signed care away from DOB to OCP and as such this is treated as a straight forward change of care, no PPL entitlement claim”. Ms Radcliffe stated that she was never aware that Ms Collins had claimed parenting payment and family tax benefit as Ms Collins received online letters. Ms Radcliffe was “down in the [Centrelink] office several times a week” asking about her payments.
[24] T19, folio 260.
When the Tribunal asked her specifically whether she had ever lodged a claim for parenting payment or family tax benefit at or around the birth of the child Ms Radcliffe replied “I thought I did”. She thought that she may have been confused and put in a claim for paid parental leave. Asked why she did not seek review if her claim was refused, Ms Radcliffe replied that she was “arguing” with Centrelink officers “constantly”.
Ms Radcliffe disputed Ms Collins’s evidence that they would speak to Centrelink officers together. Her recollection is that though they would attend the Centrelink office together, they would approach the desk separately. They only approached the desk together when she got behind in her rent and were seeking assistance. She stressed that she appealed this decision and has fought with Centrelink to receive her correct entitlements.
Ms Collins’s evidence
Ms Collins’s position at hearing was such that she agrees with the decision under review. She does not contest that Ms Radcliffe provided care to the child but stressed that during the period under review Ms Radcliffe was also working and studying and this took a lot of time and so she was unable to solely care for the child. She thinks that 28% care accurately reflects Ms Radcliffe’s actual care of the child.
Ms Collins described her relationship with Ms Radcliffe as “on and off”, “rocky” and “sometime things were better than others”. They agreed to move in together in 2018 to minimise rental costs. She and Ms Radcliffe shared a bedroom at all times. Her evidence regarding the meeting of household costs was largely consistent with that of Ms Radcliffe. She denied ever accessing any of the funds in the joint account, stating that she lost the keycard.
Ms Collins testified that the child was in her care “a lot of the time”, including when Ms Radcliffe was not at home. In the period July to October 2019 she was solely responsible for the child’s night feeds, and primarily responsible for feeding, washing and nappy changes during the day. She and Ms Radcliffe would each bathe the child. She recalls that prior to Ms Radcliffe returning to work in October 2019 it would be fair to describe the care as being equally shared between them. However, it was she that was covering most of the costs, including the purchase of bottles and the cot. She recalls that only she met the cost of the child’s swimming lessons. They usually attended the lessons together. They were mother and baby classes, so they would alternate who would swim with the child. She reported that they were both responsible for making decisions about the child.
When Ms Radcliffe returned to work after the child’s birth Ms Collins assumed a greater care role. This was not just during the day but also because Ms Radcliffe had to sleep more at night as she was recovering from the birth. The shared care of the child resumed upon Ms Radcliffe resigning from work and Ms Collins’s care increased upon Ms Radcliffe starting her studies. However, Ms Collins continued to attend to the child at night, with only one or two nights where Ms Radcliffe provided overnight care. When Ms Radcliffe started paid work again in February 2020 Ms Collins again increased her care of the child.
Ms Collins confirmed that the child was only on her Medicare card and she made a paediatric appointment for the child, which Ms Radcliffe also attended. She recalls that during the relevant period they would usually attend medical appointments for the child together and that generally whoever made the appointment was responsible for its payment.
Ms Collins recalls that they would discuss major decisions about the child, to ensure “we were on the same page”. However, they had different parenting styles and things could get “rough and heated”. They would try to negotiate, but sometimes would just make their own decisions.
Ms Collins stated that she disagrees with Ms Radcliffe’s version of events leading to the receipt of the birth certificate. She recalls that Ms Radcliffe was holding the child on the couch next to her and they had a discussion about whose name would be listed as the first parent on the birth certificate. She recalls Googling about which parent should go first. Her understanding was that it did not matter which parent went first as they would both have shared responsibility for the child. Prior to April 2021, Ms Radcliffe never raised as an issue that she was listed as parent one and specifically that Ms Radcliffe ever sought to amend the birth certificate at any time prior to her moving out of the [a Sydney suburb] property.
Ms Collins stated that prior to the child’s birth it was always the plan for the child to have a hyphenated family name, as when their relationship was “going okay” they wanted to “blend” their families. They also intended to hyphenated their family names if they married.
Ms Collins confirmed that she was granted parenting payment and family tax benefit after the birth of the child. She recalls that she and Ms Radcliffe attended the Centrelink office together when she applied for these payments and that video surveillance would confirm this. She recalls that Centrelink officers consistently changed what supporting documents they needed to provide. The last such advice was that they would need to complete statutory declarations.
She and Ms Radcliffe went to Penrith Library together but were required to attend the desk separately when signing the declarations. She recalls when she approached the desk the JP read the contents of the declaration to her and asked if it was “honest” and “truthful” and then witnessed her signature. She believes the JP would not have witnessed Ms Radcliffe’s declaration if she had not confirmed its contents. Together they left the library and returned to Centrelink and lodged the declarations.
Ms Collins stated that she had no knowledge of Ms Radcliffe ever making a claim for paid parental leave, parenting payment or family tax benefit around the time of the child’s birth. She does recall that Ms Radcliffe gave her a letter from Centrelink referring to the child’s care just prior to April 2021, when she fixed to the door of the fridge.
She recalls that Ms Radcliffe was in receipt of carer payment for her older son before the child’s birth. She understood that Ms Radcliffe did not apply for parenting payment as it was always her intention to return to work after the birth of the child. Her recollection is that they discussed Centrelink benefits on numerous occasions and Ms Radcliffe attended Centrelink appointments with her. She declared that Ms Radcliffe was aware of all conversations about her claiming family tax benefit. As Ms Radcliffe was working, she would not have applied for the benefit as she would have had to declare her income. She stressed that Ms Radcliffe was well aware of how to apply for family tax benefit as she was in receipt of the benefit for her two older children.
When asked if the date she and Ms Radcliffe separated was 14 April 2021 Ms Collins replied “Yes and no”. They were not a couple before that time, but she could not give an exact date, as theirs was a “love hate” relationship. One day they would be okay, the next they would not speak “for a week or two”. She went on to state “our situation is really, even to this day, it’s still complicated”.
Assessment of the evidence
Ms Radcliffe and Ms Collins described an acrimonious relationship. They both testified that there were times of “love” and periods of estrangement during the period that they cohabitated in the [a Sydney suburb] property from the time of the child’s birth until 14 April 2021. They were both unable to make an unequivocal statement about their relationship or status of their relationship.
It is apparent that because of their level of conflict Ms Radcliffe and Ms Collins did not consider themselves a member of a couple. Certainly, for Centrelink purposes they declared that they were separated under one roof.[25] Ms Collins claimed and was granted parenting payment at the single rate and was paid family tax benefit on the basis that she had 100% care of the child and her only income was from parenting payment.
[25] T19, folio 260 and T24, folios 332 to 333.
The evidence presented at hearing would indicate that Ms Radcliffe and Ms Collins were in fact a member of a couple.[26] During the relevant period they shared a home and a bedroom, co-parented a child and held a joint bank account. It is apparent that they held themselves out as a couple socially.[27] However, the decision before the Tribunal relates to the care of the child. Therefore, the Tribunal confined its considerations to the actual care of the child during the relevant period and not whether they were members of a couple.
[26] Section 3 of the Act states that member of a couple has the same meaning as in the Social Security Act 1991. Subsection 4(3) of the Social Security Act 1991 outlines the criteria for forming an opinion about a relationship.
[27] T2, folios 20 to 21 Ms Radcliffe’s childhood friend declared on 6 March 2022 that Ms Collins and Ms Radcliffe had a relationship spanning 10 years.
The Tribunal is satisfied that the appropriate care period is from the birth of the child ([the date of the child’s birth]) to 13 April 2021, being the day before Ms Radcliffe no longer resided at the same address as Ms Collins and the child.
The Tribunal has no doubt that Ms Radcliffe cared for the child during the relevant period. At times, due to her unemployment, she had greater capacity to care for the child.
For the purposes of assessing the child’s care, the Tribunal must distinguish care for the purposes of social security legislation from notions of more general parental care.
The term ‘care’ is not defined in the Act or the Family Assistance Act. The matter of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, it is instructive on what constitutes care. Hughes FM stated, at paragraph 56, that it is necessary to consider the following:
(a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?
(b)To what extent does the person make arrangements for others to meet the needs of the child?
(c)To what extent does the person pay for the costs of meeting the needs of the child?
(d)To what extent does the person otherwise provide financial support for the child?
(e)To what extent does the child provide for his or her own needs or have those needs met from another source?
(f)To what extent is the child financially independent or financially supported from another source?
Both Ms Radcliffe and Ms Collins gave differing accounts of who had responsibility and care of the child from her birth until Ms Radcliffe ceased living in the [a Sydney suburb] home.
In the Tribunal’s view Ms Radcliffe’s testimony was largely self-serving and so gave it little weight. Certainly, Ms Radcliffe was unable to provide a convincing account of her actions and statements immediately after the birth of the child that were consistent with her current statements about the care of the child.
In reaching its conclusion about the veracity of Ms Radcliffe’s evidence, the Tribunal took into account the fact that Ms Radcliffe did not even provide a consistent narrative at hearing. By way of example, she remained adamant that she was the child’s primary carer and also stated that the statutory declarations were provided to reflect the agreement between her and Ms Collins as to the child’s care arrangements, so that the latter would receive financial support in recognition of her care of the child.
In contrast, Ms Collins’s evidence has remained generally consistent over time and she was willing to make statements at hearing that were adverse to her case. Therefore, the Tribunal gave greater weight to Ms Collins’s evidence regarding the child’s care arrangements.
The Tribunal is satisfied that the statutory declaration signed by Ms Radcliffe accurately states the actual care agreement between her and Ms Collins, being that the latter would be the child’s primary carer. The Tribunal is persuaded that Ms Radcliffe knowingly and willingly made the statutory declaration. Her testimony on this point was also inconsistent with the contemporaneous statements she made to Centrelink. The Tribunal prefers her contemporaneous statements, including the declaration, as indicative of the child’s care arrangements during the relevant period.
The Tribunal is of the view that the statutory declaration provided by Ms Radcliffe was to ensure that Ms Collins received income support whilst she assumed the primary caring role for the child. Ms Radcliffe’s oral evidence at hearing certainly supported this conclusion. It is apparent that the arrangement between Ms Radcliffe and Ms Collins whereby Ms Collins was receiving social security payments relating to her care of the child meant that Ms Collins was predominantly responsible for meeting the child’s costs. Careful analysis of the bank statements in evidence support such a finding.
Certainly, Ms Radcliffe did not dispute Ms Collins’s evidence regarding her meeting the bulk of the child’s costs during the relevant period. Instead, she simply stressed that these payments were voluntary. Ms Radcliffe has provided evidence that she deposited funds on an irregular basis into the joint account. However, this in and of itself does not persuade the Tribunal that she was meeting all or part of the child’s costs, particularly in the context where the consistent evidence of both Ms Collins and Ms Radcliffe was that they shared household expenses equally.
The Tribunal concludes that it was primarily Ms Collins’s responsibility to meet the child’s costs during the relevant period. This included the child’s swimming lessons. This is not to say that Ms Radcliffe did not meet any of these costs, but rather that it was Ms Collins’s responsibility to meet most of the child’s costs.
The child was listed on Ms Collins’s Medicare card. Ms Radcliffe does not dispute that Ms Collins primarily met the child’s medical costs and organised and attended a paediatric appointment with the child during the relevant period. The Tribunal finds that it was Ms Collins who had primary responsibility to provide for the child’s health care and meet the costs associated with the child’s health care.
Ms Radcliffe claimed ignorance about Ms Collins receiving family tax benefit during the relevant period. Centrelink letters sent to her during the relevant period clearly demonstrate that she was not in receipt of family tax benefit for the child and only received the benefit in respect of her two older children.[28] She first lodged a family tax benefit claim in respect of the child on 3 November 2020.
[28] T20, folio 302 and 305.
The Tribunal formed the impression that when in conflict with Ms Collins, Ms Radcliffe would assert that she had sole or majority care of the child; it is apparent that this occurred in October 2020 when she lodged the first parenting payment and family tax benefit claim. She only challenged these rejections at the point of the relationship breakdown in April 2021 when the apprehended violence order prohibited her from returning to the [a Sydney suburb] property.

The Tribunal notes that Ms Radcliffe’s oral account regarding the rejection of paid parental leave was correct.[29] However, in the contact dated 14 November 2019 there is nothing to support her contention that she continually challenged the rejection of the claim.[30] It was noted in this contact that Ms Radcliffe had provided the statutory declaration regarding Ms Collins caring for the child and that in any event, her claim would have been rejected on the basis that she was returning to work on 7 October 2019.
[29] T19, folio 260.
[30] T19, folio 261.
It is difficult in situations such as these where Ms Radcliffe and Ms Collins shared accommodation during the relevant period. In such situations it is usual to recognise that each parent provided 50% care. However, after having the benefit of the Ms Collins and Ms Radcliffe’s oral testimony, the documentary evidence and application of the facts of this case to the indicia outlined in Polec, the Tribunal concludes that Ms Collins was the child’s principal carer during the relevant period. As outlined above, this does not mean that Ms Radcliffe had no care, but rather that it was Ms Collins that provided the majority of actual care to the child. The statutory declarations, together with Ms Radcliffe’s work and study arrangements as well as the financial arrangements in place to meet the child’s costs all indicate that Ms Collins was the child’s primary caregiver. Whilst difficult to quantify, the Tribunal is not persuaded that Ms Radcliffe had more than 35% care of the child during the relevant period.
The decision under review reflects that Ms Collins had 72% care and Ms Radcliffe 28% care of the child. The Tribunal concludes that these percentages generally correspond with the actual pattern of care of the child during the relevant period, as required by section 35J of the Family Assistance Act. There is no basis on which to revoke this determination.
Therefore, the decision under review is correct.
DECISION
The Tribunal affirms the decision under review.

Date(s) of hearing: 4 November 2024

Applicant: Microsoft Teams via Video

Solicitor for the Respondent: Matt Gauci, Hunt and Hunt Lawyers

Other Party: Microsoft Teams via Video

[2024] ARTA 246

12 December 2024

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Care Percentage Determination

Principal Carer

Family Tax Benefit

Date(s) of hearing:	4 November 2024
Applicant:	Microsoft Teams via Video
Solicitor for the Respondent:	Matt Gauci, Hunt and Hunt Lawyers
Other Party:	Microsoft Teams via Video