Rebecca Vendrell and Secretary, Department of Social Services Ian Vendrell OTHER PARTY
[2014] AATA 22
[2014] AATA 22
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2798
Re
Rebecca Vendrell
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Ian Vendrell
OTHER PARTY
DECISION
Tribunal Senior Member J Toohey
Date 21 January 2014 Place Sydney
1. The decision under review is set aside.
2. In substitution, the Tribunal decides that:
a. during the relevant period in 2012 Ms Vendrell had 46% of care and Mr Vendrell 54% percentage of care;
b. in 2013, Ms Vendrell had 43% percentage of care and Mr Vendrell 57% percentage of care
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Senior Member J Toohey
CATCHWORDS – SOCIAL SECURITY – family tax benefit – shared care – whether percentage of care to be assessed by reference to nights in care or hours of care – Tribunal satisfied hours in care more accurately reflects actual care – decision under review set aside – matter remitted for calculation of FTB entitlement
Legislation
A New Tax System (Family Assistance) Act 1999 ss 21(1), 22(7), 22(6A), 25, 59
A New Tax System (Family Assistance) (Administration) Act 1999
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 473
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159
Feeney and Secretary, Department of Family and Community Service [2005] AATA 818
Polec v Staker and Another [2011] FMCAfam 959
P v Child Support Registrar [2013] FCA 1312
Wade v Secretary, Department of Family and Community Services [2004] FCA 1660
Secondary Materials
Guide to Family Assistance Law
REASONS FOR DECISION
Senior Member J Toohey
BACKGROUND
Ms Rebecca Vendrell and Mr Ian Vendrell are the parents of a five-year old son (“the child”). They separated in 2010.
This decision concerns the percentages of care Mr Vendrell and Ms Vendrell have had for the child from 30 July 2012. The percentage of care is relevant to how much, if any, family tax benefit (FTB) each is entitled to from that date.
On 1 May 2012, Family Court made an interim order that the child was to live with his father and spend time with his mother as set out in the order. On 28 August 2012, the Court made consent orders to the effect that, as of 30 July 2012, the child was to live with Mr Vendrell for five nights each week, and with Ms Vendrell for two nights, and was to spend days according to the orders. The orders are considered further below.
In September 2012, Centrelink decided that:
a)Mr Vendrell had 86 percentage care and Ms Vendrell 14 percentage care, from 1 May 2012 to 29 July 2012; and
b)Mr Vendrell had 54 percentage care and Ms Vendrell 46 percentage care, from 30 July 2012.
Mr Vendrell asked Centrelink to review its decision which was based on the hours of care reflected in the consent orders, rather than the nights in care. As discussed below, while nights in care is generally used to calculate percentage of care, hours of care may be used if it more accurately reflects actual percentages of care.
Mr Vendrell sought review of Centrelink’s decision by the Social Security Appeals Tribunal (SSAT).
On 1 May 2013, the SSAT affirmed Centrelink’s decision concerning the period from 1 May 2012 to 29 July 2012 but decided that, from 30 July 2012, Mr Vendrell had 72 percentage care and Ms Vendrell had 28 percentage care. The decision was based on nights in care over that period.
The effect of the SSAT’s decision was that, from 30 July 2012, Ms Vendrell was not eligible for FTB. She seeks review of that decision. The period before 30 July 2012 is not in dispute.
THE ISSUE
The issue in this case is whether the parties’ percentage of care should be assessed by reference to nights in care or hours of care.
RELEVANT LEGISLATION
10. The relevant legislation is the A New Tax System (Family Assistance) Act1999 (the FA Act) and the A New Tax System (Family Assistance) (Administration) Act1999 (the FAA Act).
11. If a person has less than 35 percentage of care of a child over a period, then the child is not an “FTB child” for the purposes of the FA Act, and the person is not eligible for FTB: ss 21(1), 22(7), 25.
12. Where a child is in the care of two people, each of whom is eligible for FTB, the Secretary must determine the shared care percentage that each has: s 22(6A) of the FA Act. A person’s individual percentage of care converts to a shared percentage of care according to the formula in s 59 of the FA Act.
13. The FA Act does not specify how the percentage of care is to be worked out except to say that the Secretary must be satisfied there has been, or will be, a pattern of care over the care period.
14. The FA Act does not specify how a pattern of care is established but guidance is found in the Guide to Family Assistance Law (the Guide) published by the Secretary. The Guide is government policy and should be followed unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
15. Part 2.1.1.45 of the Guide states:
If the care percentage for a child is not agreed between carers, it is necessary to establish a pattern of care to make a shared care determination for FTB. A pattern of care is generally established by using the number of nights in care for each FTB child.
…
Generally a pattern of care is based on the number of nights in a care period where an individual has the overnight care of an FTB child. A person with the overnight care of a child is regarded as having had care of the child for that day.
16. As the Guide explains, the rationale for generally basing a pattern of care on nights in care is that a person with overnight care is regarded as having had care of the child for that day. As the Guide explains, “One night in care equals one day”. However, the Guide recognises that:
There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days in care.
17. Mr Vendrell says that percentages of care should be assessed by reference to nights in care. Ms Vendrell says that hours in care reflects the actual care each has for the child.
THE ARRANGEMENTS FOR CARE OF THE CHILD
18. Ms Vendrell and Mr Vendrell gave evidence before the Tribunal. Both impressed me as caring parents and honest witnesses. They are substantially in agreement about the arrangements for their child but disagree about who has borne the greater responsibility for some aspects.
19. With minor variations which are discussed below, Ms Vendrell and Mr Vendrell agree that the arrangements for the care of their child have been in accordance with the consent orders of the Family Court in August 2012. The arrangements are that:
a) the child spends Friday, Saturday, Sunday, Monday and Tuesday nights with Mr Vendrell, and Wednesday and Thursday nights with Ms Vendrell;
b) on Monday and Tuesdays, Ms Vendrell picks the child up from Mr Vendrell at 7.30 am and returns him at 5.30pm;
c) Mr Vendrell drops the child off to Ms Vendrell at 7.30 am on Wednesdays and picks him up at 5.30 pm on Fridays.
20. The child spends Mondays and Tuesdays with Ms Vendrell and Saturdays and Sundays with Mr Vendrell. In 2012, he attended kindergarten two days each week. During 2013, he had attended kindergarten three days each week. Kindergarten hours are from 9am to 3pm except in the last eight weeks of 2013, when they were from 8.30am to 3.30pm as part of transition to school.
21. Ms Vendrell and Mr Vendrell agree that, give or take a night, during the 12 weeks of kindergarten holidays each year, nights are shared equally between them.
22. During 2013, the child was diagnosed with ADHD. Reports from a paediatric neurologist and the director of his kindergarten describe his difficult behaviours. He has started taking medication for ADHD. Ms Vendrell is on call while he is at kindergarten in case he needs help with his medical condition or anything else but she has never been called upon. It seems agreed that, if she could not be contacted for any reason, the kindergarten would call on Mr Vendrell. Neither is required to be present at the kindergarten while the child is there. Ms Vendrell is on a roster of volunteers at the kindergarten and helps out on alternate weekends with vacuuming and cleaning.
23. Ms Vendrell says the child’s special needs mean that day time hours are more demanding on a carer than nights, when he is asleep, and are an additional reason that hours of care more accurately reflects actual care than night in care. Mr Vendrell does not agree. There is no medical evidence about this and I do not propose to open up a line of inquiry that will make little difference in the end and about which it will be very difficult to reach a conclusion with any certainty.
Financial arrangements
24. There is some dispute between Ms Vendrell and Mr Vendrell as to who bears the greater burden of financial responsibility for the child.
25. Mr Vendrell says that, up until about mid-2013, when Ms Vendrell started paying about half, he paid all medical costs, and he has recently paid for the first batch of ADHD medication which will be an ongoing expense of about $10.00 per week. Ms Vendrell maintains that, except for the cost of a second opinion from one specialist and the recent cost of medication, she has paid half of all medical costs and has receipts co-signed by Mr Vendrell.
26. I am satisfied that Mr Vendrell bore more of the medical expenses from 2012 to mid-2013 but that any difference between his and Ms Vendrell’s shares was not significant.
27. Ms Vendrell says that, since the Court order, she and Mr Vendrell have shared kindergarten costs equally. Mr Vendrell believes he has paid more but agrees costs have been shared “more or less” equally. However, he says he has paid a greater share of related expenses such as excursions and swimming lessons. Ms Vendrell says she has similar costs while the child has been with her.
28. I find that Ms Vendrell and Mr Vendrell have shared educational expenses equally and that any additional costs such as excursions, have been borne in proportion to the time that each has care of the child.
29. Mr Vendrell says he bears the greater financial burden of clothing, food and entertainment. He says he gives the child breakfast each morning and dinner each afternoon. Ms Vendrell says she also gives the child breakfast each morning except on weekends, and dinner on the nights he is with her. Nothing seems to turn on breakfasts as both agree that they do what they can to get the child to eat breakfast.
30. I am satisfied that Ms Vendrell and Mr Vendrell share the costs of clothing, food, entertainment and any miscellaneous costs in proportion to the time that each has care of the child.
NIGHTS IN CARE OR HOURS IN CARE?
31. For Mr Vendrell it is submitted that nights in care reflects the costs associated with caring for a child and that he has borne the greater part of financial responsibility for the child.
32. In support of that submission, Mr Vendrell refers to Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 473 and Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159.
33. In Gillson, the Tribunal declined to assess percentage of care on the basis of hours in care rather than nights in care. It does not appear from the decision that the applicant claimed any greater financial burden and it does not appear the decision turned on that point, but the Tribunal commented:
“I appreciate that in some cases it may be appropriate to assess care arrangements on an hours in care basis where a greater financial burden is placed on one parent. However, there is no evidence that one party has made a greater financial contribution which would warrant a departure from the “nights in care” basis of calculation.”
34. I do not read the decision in Gillson as suggesting that the cost associated with caring for a child is necessarily more important than other considerations, only that in some cases, it might favour assessment of hours in care rather than nights in care.
35. In a number of cases the Tribunal has recognised that regard should be had to greater financial responsibility borne by one parent. For example, in Feeney and Secretary, Department of Family and Community Service [2005] AATA 818, the Tribunal said at [81] said:
“As a matter of policy FTB is intended to assist with the essential costs of caring for children. It is appropriate, therefore, to consider the proportionality of FTB payments on the basis of financial as well as temporal factors (Re Munn and Secretary, Department of Family and Community Services [2000] AATA 141; Re Plowright and Secretary, Department of Family and Community Services [2000] AATA 840).”
36. In that case, the Tribunal found that day to day arrangements had varied and there was insufficient reliable evidence to determine the days or hours or overall percentage of care, and there was “no compelling evidence that the cost to [either parent] was disproportionate to the amount of time the children spent in their respective care.” (at [81]). The Tribunal therefore determined percentage of care by reference to Family Court orders. I do not read the decision as suggesting that financial considerations are necessarily any more important than any other.
37. In Warne and Secretary, Department of Family, Community Services, Indigenous Affairs and Anor [2006] AATA 159, the Tribunal considered it was appropriate to have regard to the greater financial responsibility that the shared care arrangements had placed on the mother. Deputy President Hack said:
“It would be wrong, I think, to require the Secretary to undertake a minute examination and comparison of the expenditure of the parties on their children. Moreover it would in all likelihood certainly lead to greater disputation between the parties in an area where there is already sufficient disputation. But where, as I find to be the case here, there is a significant difference between the amounts expended by one party compared with the amounts expended by the other, an adjustment, again on a broad brush basis, seems to me to be plainly warranted (emphasis added).”
38. I do not read Warne as suggesting that financial responsibilities are a more important consideration than any other and it is relevant that the Tribunal found a “significant difference” in financial contributions before adjusting respective percentages of care.
39. Nothing in the Guide suggests that nights in care should be used as a general rule because it reflects financial responsibilities. In any event, I am not satisfied that Mr Vendrell bears any significantly greater financial burden. The evidence is that he and Ms Vendrell have generally borne expenses equally or in proportion to the time the child is in their care. It was submitted for Mr Vendrell that additional nights in his care means the expenses of additional pyjamas and meals but I am not persuaded any additional cost is significant.
40. “Care” is not defined in the Act. In Polec v Staker and Another [2011] FMCAfam 959, Hughes FM listed (at [56]) the matters that she thought necessary to consider in determining the extent of care a person has for a child in a child support matter. They included a number of financial considerations.
41. In P v Child Support Registrar[2013] FCA 1312, Wigney J described the list in Polec as useful guidance, but “no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care”. Nor was the decision authority for the proposition that financial arrangements for meeting the child’s needs are “paramount considerations”; “Much will depend on the particular facts and circumstances of the matter at hand”: at [107]-[108].
42. As the Federal Court noted in Wade v Secretary, Department of Family and Community Services [2004] FCA 1660[1], the Guide provides for the steps which may be undertaken to achieve the result of determining a person’s percentage of FTB for a child “so long as what is suggested in [it] is not inconsistent with the purpose and intended operation of the Act…[2] It is however clear from the Act that its object is to provide a benefit to the person having the care of the child. To be consistent with this object percentage of care to be assigned to each person should reflect the actual care provided by them.”[3]
[1] Kiefel J
[2] At [29]
[3] At [30]
43. As discussed above, the Guide explains that the rationale for using nights in care as a general rule is because a person with overnight care is regarded as having had care of the child for that day. Common experience suggests that this will be so in most cases. In such cases, respective hours in care will be broadly in line with nights in care.
44. It is immediately apparent that the arrangement between Ms Vendrell and Mr Vendrell does not fit this pattern. On Mondays and Tuesdays when Mr Vendrell has overnight care, Ms Vendrell has care of the child from 7.30am to 5.30pm. On Fridays, when the child spends the night with Mr Vendrell, Ms Vendrell has, until recently, had care of him for four hours during the day while he was not at kindergarten. (In the last eight weeks of last term this reduced to three hours).
45. In these circumstances, I am satisfied that hours in care more accurately reflects the actual care arrangements than nights in care.
SHOULD KINDERGARTEN HOURS BE EXCLUDED?
46. In Gillson, the Tribunal said that, even if it were appropriate to determine entitlement on the basis of hours in care, “it would be artificial to credit to either the applicant or the added party the hours that was spent by the child in school”. (at [12]-[15]). The Tribunal noted “This is not a case where the applicant has to be present while the child attends school.”
47. The Secretary submits that the hours when the child is at kindergarten could either be discounted from Ms Vendrell’s hours or, alternatively, credited in equal shares to both parents on the basis that both are available if needed during that time.
48. Given that neither parent has been called upon while the child has been at kindergarten, and neither has to be present, I am satisfied that those hours should be excluded from any calculation.
Calculation of hours in care
49. I find that Ms Vendrell and Mr Vendrell have had respective percentages of care during 2012 and 2013 as set out below. The calculations are done on the basis that:
a)there were 22 weeks in 2012 from 30 July, during which there were 53 days of kindergarten holidays (rounded to 8 weeks for convenience);
b)there were 12 weeks of holidays in 2013;
c)during “normal weeks” Mr Vendrell and Ms Vendrell have 90 and 78 hours of care respectively;
d)during school holidays, hours were shared equally;
e)hours while the child is at kindergarten are excluded, as is the change of hours in the last eight weeks in 2013.
| Hours of care - without adjustment for kindergarten | |||||||
| Hours care | Normal weeks | Total normal hours | Holiday hours | Total hours each parent | Total care hours | Percentage care | |
| Ms Vendrell | 78 | 40 | 3120 | 1008 | 4128 | 8736 | 47% |
| Mr Vendrell | 90 | 40 | 3600 | 1008 | 4608 | 8736 | 53% |
| Hours of care - with adjustment for kindergarten - 2012 (less 12 hours for Rebecca) | |||||||
| Period 30 July 2012 - 31/12/2012 - 22 weeks | |||||||
| Hours care | Normal weeks | Total normal hours | Holiday hours | Total hours each parent | Total care hours | Percentage care | |
| Ms Vendrell | 66 | 14 | 924 | 1272 | 2196 | 4728 | 46% |
| Mr Vendrell | 90 | 14 | 1260 | 1272 | 2532 | 4728 | 54% |
| Hours of care - with adjustment for kindergarten - 2013 (less 18 hours for Rebecca) | |||||||
| Hours care | Normal weeks | Total normal hours | Holiday hours | Total hours each parent | Total care hours | Percentage care | |
| Ms Vendrell | 60 | 40 | 2400 | 1008 | 3408 | 8016 | 43% |
| Mr Vendrell | 90 | 40 | 3600 | 1008 | 4608 | 8016 | 57% |
Percentage of care determined by the SSAT
50. For completeness, I would add that the percentage of nights in care determined by the SSAT is not correct because it does not reflect the actual number of nights Mr Vendrell and Ms Vendrell have care of the child. The SSAT did not take into account the 12 weeks of kindergarten holidays each year when care is shared equally. Taking those weeks into account, Mr Vendrell and Ms Vendrell have care of the child for 67 per cent and 33 percent respectively (calculations rounded up and down in accordance with s 35M of the Act.)
51. As Ms Vendell’s percentage of care would still be less that 35 per cent, it makes no difference. However, as hours in care is more appropriate, nothing turns on this.
CONCLUSION
52. I am satisfied that hours in care more accurately reflects the actual care that Ms Vendrell and Mr Vendrell have had for their child since 30 July 2102 than nights in care. Their respective percentages of care and their entitlement to FTB should be determined accordingly.
53. I find that:
a)during the relevant period in 2012 Ms Vendrell had 46 percentage of care and Mr Vendrell 54 percentage of care;
b)in 2013, Ms Vendrell had 43 percentage of care and Mr Vendrell 57 percentage of care.
54. The decision under review is set aside and the matter remitted to the Secretary to determine each party’s entitlement to FTB from 30 July 2012.
1. I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 21 January 2014
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