RDBG and Secretary, Department of Social Services (Social services second review)
[2021] AATA 2944
•10 August 2021
RDBG and Secretary, Department of Social Services (Social services second review) [2021] AATA 2944 (10 August 2021)
Division:GENERAL DIVISION
File Number: 2020/4845
Re:RDBG
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndXVST
OTHER PARTY
DECISION
Tribunal:Member K. Parker
Date:10 August 2021
Place:Melbourne
The Tribunal affirms the Decision Under Review.
........[SGD].................
Member K. Parker
Catchwords
SOCIAL SECURITY ENTITLEMENTS – family tax benefit (FTB) – care percentage determinations for two discrete periods – child was based overseas during first period – meaning of “care” – whether father provided care for infant child from afar – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)Cases
P v Child Support Registrar [2013] FCA 1312Polec v Staker and Another [2011] FMCAfam 959
Secondary Materials
Family Assistance Guide (Guide) - Refer Using the Family Assistance Guide | Family Assistance Guide (dss.gov.au)
REASONS FOR DECISION
Member K. Parker
10 August 2021
The Applicant, RDBG, and the Other Party, XVST, are the separated parents of a child born in early 2018 (the Child). This matter involves an issue about whether RDBG was entitled to receive family tax benefits (FTB) under A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) for two discrete periods in 2019.
Debts have been raised against RDBG in respect of the alleged overpayment of FTB to RDBG during those two periods. RDBG contends that those debts should not have been raised against him or that they should be waived or written off. Those debts are the subject of an application for review to this Tribunal numbered 2020/4848.
This application, and the application numbered 2020/4848, are linked and were heard simultaneously by this Tribunal as they involved the consideration of a common set of facts. For the reasons set out below, this Tribunal affirms the decision under review in this application numbered 2020/4845 (in relation to whether RDBG was entitled to FTB) and has simultaneously published a separate decision in relation to application numbered 2020/4848.
BACKGROUND
RDBG and XVST separated on 28 April 2019. On this day, XVST and the Child departed Australia and travelled to Bangladesh “to visit family”.
RDBG signed a “Mod S Separation Details” form with Centrelink dated 7 May 2019, but by RDBG’s own evidence he notified Centrelink about the separation from XVST, and divorce, on 3 July 2019. This form shows a date-stamp by “DHS Footscray” on 1 August 2019. Question 12 on this form asked RDBG to indicate when he had separated from XVST. He answered “28/04/2019”. At Question 16 of this form, RDBG was asked if he had any children or students in his care under 20 years of age. RDBG ticked the “No” box in answer to this question.
On 5 June 2019, RDBG travelled to Bangladesh.
On 10 June 2019, Centrelink cancelled RDBG’s FTB payments as from 9 June 2019, because the Child had been absent from Australia for more than six weeks. It appears from the documents lodged with the Tribunal that this cancellation was triggered by immigration information having been provided to Centrelink showing XVST and the Child’s departure from Australia.
On 15 June 2019, RDBG and XVST were divorced.
On 2 July 2019, RDBG returned to Australia alone. On 3 July 2019, RDBG states that he informed Centrelink by telephone that he had separated from XVST and that they were divorced. Centrelink advised RDBG to submit the Mod S form which he did, in person, on 1 August 2019.
On 16 August 2019, XVST and the Child returned to Australia. RDBG invited XVST and the Child to reside in the same house. They did so initially, but XVST later moved out on 12 September 2019 after an argument took place between her and RDBG. RDBG and XVST assert that they were not living together as members of a couple when they resided together initially upon XVST’s return from overseas. On 16 August 2019, Centrelink reinstated RDBG’s FTB payments.
On 11 September 2019, XVST lodged a claim for FBT. Prior to his time, XVST had not lodged a claim for FBT in respect of the Child.
Care percentage determinations and whether RDBG should be paid FTB
On 18 September 2019, Centrelink decided that the Child was not in RDBG’s care during the following periods:
(a)28 April 2019 to 8 June 2019 (Period 1); and
(b)16 August 2019 to 16 September 2019 (Period 2).
As a result, Centrelink cancelled RDBG’s FBT with effect from 28 April 2019 (Original Decision).
RDBG sought review of the Original Decision by an authorised review officer (ARO).
On 6 April 2020, the ARO affirmed the Original Decision in respect of the period 28 April 2019 to 16 September 2019 (Period 3).
In the “ARO Notes” of the ARO’s conversation with RDBG on 6 April 2020, the ARO stated as follows:[1]
[1] Refer T-Documents T8/31.
(a)RDBG told the ARO that:
(i)XVST did not have any money;
(ii)RDBG went overseas in June 2019 because he was “missing the baby”;
(iii)XVST “brought the baby over to visit him” while he was overseas;
(iv)RDBG and XVST completed divorce legal proceedings in Bangladesh;
(v)when the Child returned to Australia on 16 August 2019, the Child stayed with RDBG;
(vi)RDBG looked after the Child from 16 August 2019 and he says he was providing physical, financial, and emotional care to the Child;
(vii)XVST was looking for a place, so that she could have full custody of the Child;
(viii)RDBG was taking the Child to all medical appointments as XVST “does not speak much English and does not drive”, although XVST accompanied them to those appointments; and
(b)XVST told the ARO that RDBG had divorced her when he travelled overseas in June 2019.
In the “ARO Notes” of the ARO’s conversation with XVST on 6 April 2020, the ARO stated as follows:[2]
(a)XVST told the ARO that she had separated from RDBG on 28 April 2019 and divorced him on 15 June 2019;
(b)XVST went overseas with the Child on 28 April 2019. While she was overseas, RDBG was providing financial support to the Child including hospital expenses that were incurred in respect of the Child;
(c)XVST said she has provided the physical care of the Child since he was born because “she stayed at home”; and
(d)XVST said she stayed with RDBG when she returned to Australia as she was looking for accommodation for her and the Child, but she decided to move out on 12 September 2019 due to an argument that took place between her and RDBG. XVST said she could not support the Child financially, so she returned the Child to RDBG.
[2] Refer T-Documents T9/38.
On 22 April 2020, the ARO made a further decision to amend an error the ARO had made, being that the period considered by the ARO in his or her decision on 6 April 2020 (i.e. Period 3) was the incorrect period. Instead, the periods that should have been considered were Period 1 and Period 2. On 22 April 2020, the ARO amended their decision and affirmed the Original Decision in respect of Period 1 and Period 2.
On 28 April 2020, RDBG sought review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).
On 27 July 2020, the AAT1 affirmed the decision that RDBG was not eligible for FTB for Period 1. However, the AAT1 set aside the decision that RDBG was not eligible for FTB for Period 2 and in substitution, decided that he was eligible to receive FTB for Period 2, on the basis that he had 50% care of the Child and XVST had 50% care of the Child. The Tribunal will refer to those decisions collectively as the Decision Under Review.
On 10 August 2020, RDBG sought review of the Decision Under Review by the General Division of the Administrative Appeals Tribunal (this Tribunal).
ISSUES
The issue arising in this application is whether RDBG was entitled to be paid FTB for Period 1 and/or Period 2. This will depend on whether the Child was a “FTB Child” as defined under the Act (see paragraph [24] below), and if so, the percentage of care of RDBG of the Child during each of those two periods.
LEGISLATIVE FRAMEWORK
Provisions relating to care percentage determinations for the purpose of FTB
Eligibility provisions
Schedule 1 of A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) contains a Rate Calculator by which the annual rate of FTB is calculated. To be eligible for FTB, a person must have at least one “FTB child” in their care.
Section 25 of the Act provides that a child will not be taken to be an “FTB child” of an individual if their percentage of care is less than 35%.[3] If the individual’s percentage of care is at least 35% then the child is taken to be an “FTB child” of that individual for the purposes of s 22, on each day in that period, regardless of whether the child was in that individual’s care on that day.[4]
[3] Refer s 25 of the Act.
[4] Refer s 22(7) of the Act.
Clause 11 of Schedule 1 provides that a person who has an “FTB child” who is cared for by more than one adult, will have their FTB based on their care percentage of that child as determined under the Act.
Section 59(1) of the Act provides that an individual has a shared care percentage under that section for their FTB child if the Secretary has determined a percentage of care of the child during the care period and that percentage is at least 35% and not more than 65%.
Section 59(2) of the Act provides that an individual’s shared care percentage for the FTB child is the relevant percentage specified in Column 2 of the table below:
Item
Column 1
Individual’s percentage of care
Column 2
Shared care percentage
1
35% to less than 48%
25% plus 2% for each percentage point over 35%
2
48% to 52%
50%
3
More than 52% to 65%
51% plus 2% for each percentage point over 53%
Determination of a percentage of care
Section 35B of the Act provides as follows:
35B 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) or (4), an FTB child of more than one individual; and
(b) one of those individuals (the adult), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and
(c) the adult is not a partner of at least one of the other individuals referred to in paragraph (a);
the Secretary must determine the adult’s percentage of care for the child during the care period.
Determination after revocation
(2) If:
(a) the Secretary revokes or suspends, under Subdivision E of this Division (except under paragraph 35PA(3)(b) or 35QA(3)(b)), a determination of an individual’s (the adult) percentage of care for a child that was made under section 35A or this section; and
(b) the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and
(c) the adult is not a partner of at least one of those other individuals;
the Secretary must determine the adult’s percentage of care for the child during the care period.
Percentage of care
(3) The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.
(4) Despite subsection (3), if section 35C or 35G applies in relation to the adult, the Secretary must determine the adult’s percentage of care under subsection (1) or (2) in accordance with that section.
Revoking a percentage of care
There are certain circumstances when the Secretary must revoke an individual’s percentage of care, and other circumstances when the Secretary has a discretion whether to do so.
Section 35P of the Act sets out the circumstances in which a determination of an individual’s percentage of care for an FTB child must be revoked.
Section 35Q of the Act sets out the circumstances in which a determination of an individual’s percentage of care for a child may be revoked.
The effect of these provisions is that if there is a change in care by RDBG of the Child and the new percentage of care is not in the same percentage range as set out in s 35P(2) (reproduced in paragraph [27]) as the existing care percentage, or their individual “shared care percentage” under s 59(2) of the Act would change, the Tribunal must revoke the existing care determination and make a new care determination. If there is a change of care and RDBG’s new percentage of care is different from their existing percentage of care, but in the same percentage range or he has the same “shared care percentage” under s 59(2), the Tribunal has a discretion whether to revoke the existing shared care percentage determination. Once the existing care percentage determination is revoked, a new shared care percentage determination can be made.
Determination of percentages of care
The first step when determining a new percentage of care under the Act involves consideration of whether there has been a “pattern of care” for the purpose of s 35B of the Act. The term “care” is not defined under the Act. However, s 35J applies when determining the “actual care” and “extent of care” of an FTB child.
Section 35J provides:
Working out actual care, and extent of care, of a child
(1) The actual care of a child that an individual has had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.
(2) The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.
(3) For the purpose of this section, a child cannot be in the care of more than one individual at the same time.
(4) This section does not limit section 35B, 35C, 35GA or 35H.
CONSIDERATION
RDBG lodged a statement of facts, issues and contentions dated 2 April 2021 (RDBG’s SFIC) and contended as follows:[5]
(a)when RDBG returned from Bangladesh on 2 July 2019, he notified Centrelink of his separation and divorce by telephone the following day. He was asked to submit the Mod S which he stated that he tried, unsuccessfully, to upload on online. On 1 August 2019, RDBG submitted the form in person to a Centrelink office on 1 August 2019. From 28 April 2019 until 1 August 2019, RDBG had received a partnered-rate FTB payment, instead of a single-rate FTB payment;
(b)RDBG confirmed that when XVST returned to Australia with the Child on 16 August 2019 and the Child was staying with RDBG upon his arrival, RDBG’s FTB payments were reinstated;
(c)RDBG queried why FBT was not payable to XVST, if the Secretary did not consider the Child to be in RDBG’s care during Period 1 or Period 2; and
(d)RDBG had been assessed as having 100% care of the Child from the date of the Child’s birth until 28 April 2019. RDBG queried what had changed to cause Centrelink to change this care percentage determination.
[5] Refer RDBG’s SFIC at [4],[5], [9], [10]. RDBG’s SFIC is reproduced in full in the Reasons for Decision in related application numbered 2020/4848.
The Secretary relied upon the Secretary’s SFIC and adopted a neutral position in respect of the extent of RDBG’s care (if any) of the Child during Period 1 and/or Period 2 and if so, how the Tribunal should determine RDBG’s percentage of care during those periods.
One of the key issues in this application is whether, in respect of Period 1, RDBG can be found to have provided “actual care” for the Child in circumstances where he was living (temporarily) in a different country to the Child. This will require the Tribunal to consider the case authorities which support the concept that “care” may mean something other than physical care, and may include the provision of financial, emotional, and other support, albeit from afar.
The Secretary contends that the concept of “care” is multi-faceted and requires consideration of a range of factors. The Secretary drew the Tribunal’s attention to the decision of Polec v Staker and Another [2011] FMCAfam 959 (Polec). In Polec at [56], Hughes FM lists matters considered necessary to determine the extent of care of a child, as follows:
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 extra curricular 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?
The Secretary also drew the Tribunal’s attention to the Federal Court decision in P v Child Support Registrar [2013] FCA 1312, where at [106] to [109], Wigney J noted that that the extent of care provided is a question of fact dependent upon the facts and circumstances of the particular case and that while the list in Polec is a useful guidance, it should not be used as an exhaustive or mandatory list of considerations in determining care.
The Secretary referred to the definition of “care” provided in the CS Guide at 1.1.C.90 as follows (emphasis added):
Care generally includes physical care; however, the importance of physical care decreases as the child (also refers to a young person) becomes older. For example, a baby or toddler's care needs are largely immediate and physical (feeding, nappy changing, bathing, supervision). As the child grows older, they will gradually start to meet many of their physical care needs themselves.
Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child's mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child.
Some examples of care include:
·having control of the child, including making major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities
·having major daily responsibility for caring for the child and making the major decisions (e.g. meal preparation, hygiene, transport, discipline, emotional and moral support and guidance)
·bearing the costs of the child's daily life (e.g. food, accommodation, transport, clothing, schools fees, health and dental care, etc.)
·making arrangements related to the child's needs (e.g. appointments at school or with doctors or dentists and accompanying them on those appointments), and/or
·being the main person for the day care, school, or college to contact in emergencies.
When assessing levels of 'care' consideration of the full circumstances of each case
must be taken into account to decide whether care remains with a parent, is shared with others, or is not present.
Period 1
RDBG contends that while he was not physically present at the same location at the Child during Period 1, he continued to provide for the Child financially and was still involved in making day to day decisions concerning the Child. RDBG claimed that XVST was not receiving income and was not able to support the Child financially. RDBG said that when the Child required hospitalisation while the Child was overseas, that he paid for this. Further, RDBG gave evidence that he would talk with the Child (or interact, at least, as the Child was an infant), during Period 1 using an iPad. During Period 1, the Child was taken by XVST to visit RDBG’s parents in Bangladesh.
The Tribunal considers that in the context of the Child being an infant that during Period 1, it is too long a bow to draw for the Tribunal to find that RDBG provided “actual care” to the Child during this time. The Tribunal accepts that RDBG provided some financial support for the Child during Period 1, however, she was visiting her family and was being supported by them in terms of the provision of accommodation and food for her and the Child. The Tribunal acknowledges that some financial support was provided by RDBG, including financial support when the Child was hospitalised in June or July 2019, but the Tribunal was not satisfied, on the evidence before it, that the extent of financial contribution by RDBG to the Child was significant.
The Tribunal has considered that, at times, RDBG interacted with the Child on an iPad, which might be considered as providing some emotional support for the Child during Period 1. However, given how young the Child was at this time, the Tribunal is not satisfied that such emotional support was significant and that RDBG was more likely to have benefited from those interactions, rather than the Child. The Tribunal considers that XVST was providing the “actual care” for the Child at this time, which largely comprised the personal care needs of the infant Child, such as feeding, bathing and supervising the Child, and attending to the Child’s toileting needs.
For this reason, the Tribunal finds that RDBG did not provide actual care to the Child during Period 1 and that he had 0% care of the Child during this period. The Tribunal concludes that the Child was not an “FTB Child” of RDBG during Period 1, because he did not have more than 35% care of the Child. As such, the Tribunal considers that RDBG was not entitled to receive FTB payments during Period 1 in respect of the Child.
Accordingly, the Tribunal affirms the AAT1 Decision in respect of Period 1.
Period 2
During Period 2, the circumstances were different. XVST had returned to Australia with the Child and immediately after their return on 16 August 2019, the Child and XVST were residing with RDBG. This enabled RDBG to provide some aspects of physical care to the Child, although the Tribunal finds that XVST continued to meet most of the Child’s personal care needs during this Period, based on the evidence given by XVST at the hearing (and which was not disputed by RDBG). The Tribunal accepts that RDBG supported the Child financially to a significant degree, by providing them with accommodation and food during Period 2. The Tribunal also accepts that RDBG took the Child to his medical appointments constituting further acts of care toward the Child.
On 12 September 2019, an argument took place between RDBG and XVST. XVST moved out of RDBG’s place of residence. The Child remained living with RDBG. RDBG cared for the Child overnight. However, XVST would visit RDBG’s place of residence during the day to continue caring for the Child.
In those circumstances, the Tribunal is satisfied that both XVST and RDBG contributed equally to the “actual care” of the Child during Period 2, by each of them offering the Child different types of care and support during Period 2, as detailed above.
For this reason, the Tribunal considers that RDBG had 50% care of the Child and XVST had 50% care of the Child during Period 2.
Accordingly, the Tribunal affirms the AAT1 Decision in respect of Period 2.
CONCLUSION
The Tribunal affirms the Decision Under Review.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
...........[sgd]................
Associate
Dated: 10 August 2021
Date of hearing:
16 April 2021
Advocate for the Applicant:
Advocate for the Respondent:
Self-represented
Mr Christopher Henies
Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Statutory Construction
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Procedural Fairness
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Appeal
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Standing
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