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

RLNT and Secretary, Department of Social Services (Social services second review) [2020] AATA 1850 (18 June 2020)
Division:GENERAL DIVISION
File Number: 2019/0461
Re:RLNT
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndXCGJ
OTHER PARTY

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:18 June 2020
Place:Hobart

The decision under review is affirmed.
.............................[sgd]................................
The Hon. Matthew Groom, Senior Member
SOCIAL SECURITY – Family Tax Benefit – FTB – whether there was a change in the percentage of care split – whether an interim care determination should apply – Tribunal satisfied of special circumstances – legislative requirements for interim care determination not satisfied – decision affirmed
Legislation
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration)Act 1999
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re-Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Secondary Materials
Family Assistance Guide
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
18 June 2020
Introduction

This is a review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the “AAT1”) dated 5 December 2018. The decision related to the percentage of care of M, the 13-year-old son of the Applicant and the Other Party for the purpose of assessing Family Tax Benefit (“FTB”) payable to each of them.
The Applicant and the Other Party are separated parents of M who at all relevant times has been under the age of 16 years. The family includes two other siblings. The family had previously lived interstate but moved to Tasmania in around June 2017.
On 23 February 2010 a Magistrates Court order was made that M (together with his siblings) was to be in the care of the Applicant in week one, from Thursday afternoon to Monday morning; in week two, from Thursday afternoon to Friday noon and was to be in the care of his mother, the Other Party, for all of the remaining time. This equated to a shared care arrangement between the Applicant and the Other Party of 35% and 65% respectively.
Both parties acknowledge that the Court ordered shared care arrangement was not strictly adhered to.
On 2 December 2015, the Department made a determination that the care percentage split between the Applicant and the Other Party was 30% and 70% respectively. The effect of this determination was that M became the FTB child of the Other Party exclusively.
On 30 January 2018, the Applicant submitted a Details of Your Child’s Care Arrangements Form in which he submitted that he had assumed 100% care of M from 15 July 2017.
On 27 February 2018, an employee of the Department made a decision that M had been in the Applicant’s care 100% of the time from 15 July 2017.
The Other Party sought a review of that decision. In addition, the Other Party sought an interim care determination entitling her to continue to receive FTB payments in respect of M for up to 14 weeks.
On 6 September 2018, an Authorised Review Officer affirmed the Department’s decision and declined to make an interim care determination on the basis that the parties had not been adhering to the formal care arrangement, being the Magistrates Court order.
On 15 October 2018, the Other Party made application to the AAT1 for an independent review of the decision.
On 5 December 2018, the AAT1 set aside the decision of the Authorised Review Officer and in substitution decided that:
(a)for the period 15 July 2017 to 15 October 2017, the existing pattern of care of M continued, being 30% and 70% to the Applicant and the Other Party respectively; and
(b)from 16 October 2017 onwards, M was in the Applicant’s 100% care.
In addition, the AAT1 declined to make an interim care determination on the basis of special circumstances leading to M’s transition into his father’s 100% care.
The Legislation
The relevant legislation is the A New Tax System (Family Assistance) Act 1999 (the Act) and the A New Tax System (Family Assistance) (Administration)Act 1999 (the Administration Act).
More specifically, the relevant sections are set out in Division 1 and Division 3 of Part 3 of the Act. For convenience the relevant sections are extracted below based on the version of the Act as was enacted during the relevant period.
Section 21 relevantly provides that:
When an individual is eligible for family tax benefit in normal circumstances
(1)An individual is eligible for family tax benefit if:
a.the individual:
i.has at least one FTB child; or
ii.has at least one regular care child who is also a rent assistance child; and
b.the individual:
i.is an Australian resident; or
ia. is a special category visa holder residing in Australia; or
ii.satisfies subsection (1A); and
c.the individual’s rate of family tax benefit, worked out under Division 1 of
Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding section 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1, is greater than nil.
Section 22 relevantly provides that:
When an individual is an FTB child of another individual
(1)An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
(2)An individual is an FTB child of the adult if:
a.the individual is aged under 16; and
b.the individual is in the adult’s care; and
c.the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
d.the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
Legal responsibility for the individual
(5) The circumstances surrounding legal responsibility for the care of the individual are:
a.the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; or
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
c.the individual is not in the care of anyone with the legal responsibility for the day‑to‑day care, welfare and development of the individual.
...
Percentage of care at least 35%
(7) If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
Note: If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).
Section 23 relevantly provides that:
Effect of FTB child ceasing to be in individual’s care without consent
(1)This section 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.
When the child remains an FTB child of the adult
(2)Subject to subsection (4A), the child is an FTB child of the adult for that part of the qualifying period (see subsection (5)) for which:
a.the child would have been an FTB child of the adult under subsection 22(2) or (3) if the child had not ceased to be in the adult’s care; and
b.the circumstances surrounding legal responsibility for the care of the child are those mentioned in paragraph 22(5)(a) or (b).
(3) The reference, in paragraphs (1)(a) and (2)(a), to an FTB child of an individual or adult under subsection 22(2) or (3) includes a reference to:
a.a child who is an FTB child under subsection 22(2) or (3) in its application by virtue of subsection 22(7); and
b.a child who is an FTB child under subsection 22(2) or (3), but who is taken not to be an FTB child under section 25.
Note: As a result of subsection (2) of this section, a child who is taken not to be an FTB child under section 25, but who is a regular care child, will remain a regular care child for the part of the qualifying period referred to in subsection (2) of this section.
(4)Except as provided in subsection (2), the child cannot (in spite of section 22) be an FTB child of any individual during the qualifying period.
When subsection (2) does not apply
(4A)If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may determine that subsection (2) does not apply in relation to the child and the adult.
Definition of parent and qualifying period
(5)In this section:
parent includes a relationship parent.
qualifying period means the period beginning when the child ceases to be in the adult’s care and ending at the earliest of the following times:
a.if the child again comes into the adult’s care at a later time—that later time;
b.either:
i.after 14 weeks pass since the child ceased to be in the adult’s care; or
ii.if the Secretary specifies, under subsection (5A), a day that is earlier than the last day in that 14‑week period—the end of that earlier day;
c.if:
i.the adult is a parent of the child; and
ii.no family law order, registered parenting plan or parenting plan is in force in relation to the child; and
iii.the child comes into the care of the other parent at a later time; that later time.
Shorter qualifying period
(5A)If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may specify a day for the purposes of subparagraph (b)(ii) of the definition of qualifying period in subsection (5).
Parents of relationship children
(6) If a child (other than an adopted child) is a relationship child of a person because he or she is a child of the person, and of another person, within the meaning of the Family Law Act 1975, the person and the other person are taken to be the child’s only parents for the purposes of paragraph (c) of the definition of qualifying period in subsection (5).
Section 25 relevantly provides that:
Effect of an individual’s percentage of care for a child being less than 35%
If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.
Section 35C relevantly provides that:
Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1)This section applies in relation to an individual (the adult) if:
a.a care arrangement applies in relation to a child; and
b.the Secretary is satisfied that the actual care of the child that the adult has had, or will have, during a care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil); and
c.an individual who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.
Note: This section does not apply in certain circumstances, see section 35F.
2 percentages of care in relation to the adult
(2)Subject to subsection (5), the Secretary must determine, under section 35A or 35B, 2 percentages of care in relation to the adult.
(3)The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil).
(4)The second percentage of care is to be:
a.if section 35A applies in relation to the adult—0%; or
b.if section 35B applies in relation to the adult—a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed.
Single percentage of care in relation to the adult
(5)If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may determine, under section 35A or 35B, a single percentage of care in relation to the adult.
(6)The single percentage of care is to be:
a.if section 35A applies in relation to the adult—0%; or
b.if section 35B applies in relation to the adult—a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed.
The Tribunal has also had regard to the Family Assistance Guide which sets out relevant government policy in relation to the matter before the Tribunal. The Tribunal acknowledges that it is not bound by the policy but that it must have regard to it unless there are cogent reasons not to do so.[1]
[1] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re-Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639 – 645.
Issue for determination
Both parties accept that M was in the Applicant’s 100% care from 16 October 2017 and that prior to 15 July 2017 the shared care split between the parties was broadly consistent with the Department’s 2015 determination. Therefore, in accordance with sections 21, 22 and 25 of the Act, M was exclusively the FBT child of the Other Party up until 15 July 2017. This is because under section 25 of the Act if an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child. For the same reasons, subject to the potential application of an interim care determination, M was exclusively the FBT child of the Applicant from 16 October 2017 onwards.
The Applicant continues to contend that he assumed 100% care of M from 15 July 2017. The Other Party continues to contend that the Applicant assumed 100% care of M from 16 October 2017 and that between 15 July 2017 and 16 October 2017 the shared care of M continued to be broadly consistent with the Department’s 2015 determination.
The Other Party also continues to contend that the Department ought to have made an interim care determination entitling her to receive ongoing FBT payments in respect of M for a period of up to 14 weeks following the Applicant’s assumption of 100% care. The Applicant makes no specific submission in relation to this issue.
Therefore, the issues for determination by the Tribunal are:
(a)the percentage care split in respect of M between the Applicant and the Other Party during the period between 15 July 2017 and 16 October 2017; and
(b)whether an interim care determination should apply.
In respect of the latter matter the Respondent contends that any interim care determination should be considered in the context of section 35C of the Act on the basis that that is the relevant section of the Act to be applied in circumstances where a care arrangement is in place. The difficulty the Tribunal has with this is that it would appear on the face of the materials before the Tribunal that the original decision made by the Department in respect of an “interim care determination” was made applying section 23 of the Act. There is certainly no question that the AAT1 decision was made applying section 23 of the Act. For this reason the Tribunal has considered the issue of an interim care determination in accordance with section 23. However, the Tribunal is satisfied that in any case nothing of substance turns on this point as, for the reasons set out further below, the Tribunal’s decision would be the same regardless of which section is applied.
Evidence and Consideration
A hearing in this matter was held on 8 October and 15 November 2019.
Both the Applicant and the Other Party gave evidence before the Tribunal. The Tribunal also heard evidence from Ms M who is a permanent resident of the local caravan park at which the Applicant was residing at the relevant time.
In her evidence to the Tribunal the Other Party confirmed that the pattern of care involving M following the move to Tasmania had been somewhat inconsistent but generally reflected the percentage of care split as determined by the Department in 2015. The Other Party confirmed that M had stayed with the Applicant in a unit at the local caravan park separately on occasion but maintained that M was sleeping at her rented property for most of the time through July to mid-October 2017. The Other Party gave evidence that during the course of September 2017 M had begun staying with the Applicant at the caravan park on a more regular basis.
The Other Party told the Tribunal that from 16 October 2017 M’s care arrangements had effectively transitioned and that from that date M was effectively staying with the Applicant on a permanent basis. The Other Party told the Tribunal that she was concerned about these arrangements as they were not consistent with the court sanctioned care arrangements and that she had notified various authorities in relation to what she considered to be a breach of those arrangements. The Other Party concedes that M has been in the Applicant’s 100% care from 16 October 2017.
In his evidence to the Tribunal, the Applicant told the Tribunal that he had taken out a lease of a site at the local caravan park on 13 July 2017 and that M had been living with him 100% of the time at that site from around 15 July 2017. He told the Tribunal that following the commencement of this arrangement he had changed the school mailing address for M from the Other Party’s residential address to the local caravan park.
The Applicant told the Tribunal that M had asked to move in with him following a physical altercation that M had with the Other Party on or around 15 July 2017. The Applicant told the Tribunal that M was intimidated by the Other Party and that as a consequence M had made it clear that he wanted to live with the Applicant rather than with the Other Party. The Applicant told the Tribunal that there had been a dispute between him, M and the Other Party in the school car park on 16 October 2017. He told the Tribunal that it was following this incident that the Other Party had contacted the school to change the residential mailing address for M back to her residence as well as contacting various authorities to complain about the living arrangements involving M. The Applicant told the Tribunal that he believed the school car park incident had been precipitated by one of the children telling the Other Party that the Applicant was seeing a new partner.
In support of his claims the Applicant provided the Tribunal with various documentary evidence including:
(a)a copy of a letter by the Director of the local caravan park dated 29 December 2017 stating that the Applicant and his son have resided at the caravan park since 13 July 2017 and have done so on a permanent basis.
(b)a copy of a General Tenancy Agreement for a site at the local caravan park with a starting date of 13 July 2017 with a written annotation which purports to indicate that two of the Applicant’s children would be attending on weekends and holidays and that M would be with him “full-time”. The Other Party is noted on the General Tenancy Agreement as the contact for next of kin. The General Tenancy Agreement appears to have been signed by the Applicant on 26 July 2017.
(c)a copy of a local caravan park guest reservations and registration form which identifies the tenants as the Applicant and his son M and which notes the date of reservation as 13 July 2017 and then ongoing.
(d)a copy of a letter from Ms W, the Fire Warden/Caretaker dated 29 October 2018 which states that between 13 July 2017 and 8 March 2018 the Applicant and his son M occupied a site at the local caravan park on a permanent basis and noting that regular fire inspections were carried out on the site and on each of those occasions the site had been occupied by the Applicant and M.
(e)a copy of a record of the District School purportedly signed by the Assistant Principal, which purports to show M’s residential and mailing address details and notes that as at 26 July 2017 M’s residential and mailing address was listed as the local caravan park and then on 17 October 2017 M’s residential and mailing address was listed as the Other Party’s residential address.
(f)a copy of a written note of Mr C dated 25 May 2019 in which Mr C states that he has been a permanent resident at the local caravan park for the past 11 years and knows “for a fact” that the Applicant and M were permanent residents at the time of July 2017.
(g)a copy of a written note of Ms M dated 24 May 2019 in which Ms M states that she is a permanent resident of the local caravan park and knows that the Applicant and M were residing permanently in the unit directly opposite hers in July 2017. Ms M notes that the Applicant had a birthday and that she remembers this clearly and she made a cake for him.
(h)a copy of an undated note from Ms K which states that Ms K is a permanent resident of the local caravan park and she knows the Applicant and M were residing permanently in the unit alongside her in July 2017.

Ms M, who provided a written note in support of the Applicant, also gave evidence to the Tribunal. Ms M told the Tribunal that she can specifically recall the Applicant and M residing at the local caravan park from July 2017.
In addition, the Applicant provided further detail in relation to his claims regarding the circumstances leading to M residing with him on a permanent basis in an email to the Tribunal dated 11 October 2019. In the email the Applicant describes a verbal and physical assault of M by the Other Party. In the email the Applicant states that from mid-July 2017 to mid-October 2017 the Other Party “did nothing to recover [M] or render any support whatsoever as far as his physical or emotional needs”. The Applicant goes on to state that on 15 October 2017 the children were returned to the Other Party’s care following the school holidays and that they had informed the Other Party that the Applicant was in a relationship with a woman. The Applicant goes on to state that the following day the Other Party reported to police that the Applicant had failed to return M from school holidays and that she then applied for legal aid and attempted to force M back into her care by trying to collect M from school. The Applicant described the incident that occurred in school car park on 16 October 2017 stating that when he arrived at the school he saw the Other Party chasing M and that M was “screaming and crying and ran into my arms shaking”. The Applicant stated that the Other Party then subsequently commenced proceedings to have M returned to her care. The Applicant stated that the Federal Circuit Court has since provided him with 100% care of M.
In response to the Applicant’s evidence, the Other Party told the Tribunal that there had been some difficulties with her relationship with M and that M had stayed overnight with the Applicant during the period between mid-July and mid-October 2017 from time to time but that he had not lived with the Applicant permanently during that period nor had the pattern of care substantially changed during that period. The Other Party conceded that she had been involved in an altercation with M which had impacted their relationship further. However, she disputed that this occurred on 15 July 2017 as contended by the Applicant but rather that it had occurred much later in early October 2017. The Other Party was somewhat circumspect in her evidence in relation to what actually occurred in the altercation. She denied the claim that she had assaulted M. She told the Tribunal that M had spoken to her “very disrespectfully” and that M had displayed aggressive behaviour toward her. The Other Party stated that “unfortunately I responded inappropriately” and that when the Applicant had sought to intervene she had asked him to leave.
Notwithstanding this, the Other Party told the Tribunal that she considered M to be substantially within her care up until the school car park incident which the parties agree occurred on 16 October 2017. The Other Party told the Tribunal that it was on that day that she understood the pattern of care in relation to M to have changed.
The Other Party described having been in and out of the caravan park often exchanging kids for visitation and loaning the Applicant her car for work. The Other Party stated that she continued to visit the caravan park throughout August and September of 2017. She stated that she has pictures of M and her at the local markets in late September 2017. The Other Party described M having been upset toward the end of September 2017 as a consequence of not being able to go on a trip interstate with the Other Party to visit M’s half-sister. The Other Party states that the Applicant’s claim that she called the authorities on 16 October 2017 in retribution for the Applicant having commenced a relationship with a woman is not true. The Other Party stated that she contacted the authorities because it was clear to her that the Applicant had “taken control of [M]” and that consistent with this M had run away from her at school pickup. The Other Party stated that she had also become aware that the Applicant changed the residential and mailing address for him while at the school.
The Other Party disputed the documentary evidence provided by the Applicant as well as the direct evidence given by Ms M in support of the Applicant on the basis that they were witnesses who were friendly towards the Applicant and that therefore the evidence should be considered to be less reliable.
The Tribunal accepts the Other Party’s contention that much of the documentary evidence and evidence provided by Ms M in support of the Applicant’s claims involve people who have a personal connection with the Applicant and therefore the Tribunal is inclined to give that evidence less weight. The Tribunal considers the evidence of Ms M together with the documentary evidence from Ms W, Mr C, and Ms K to fall within this category. In reaching this conclusion the Tribunal does not suggest in any way that they have been dishonest. However, the Tribunal does question the reliability of their asserted certainty regarding M’s precise living arrangements during the period in question. In this context the Tribunal notes that the Applicant himself was initially uncertain about the precise date of M’s transition into his 100% care having previously asserted that it had occurred in August 2017. The balance of the documentary evidence provided by the Applicant was not able to be tested through the cross-examination of the respective authors of the documents and in those circumstances the Tribunal is not satisfied that they can be relied upon to support the Applicant’s assertions. In addition, the Tribunal does not consider the General Tenancy Agreement, the guest reservations and registration form or the purported record of the District School to be persuasive evidence regarding the precise living arrangements of M during the relevant period. It also notes that it remains unclear when the annotation to the General Tenancy Agreement was actually inserted.
Having considered all of the evidence before it, the Tribunal is satisfied that during the period between 15 July 2017 and 16 October 2017 M continued to be in the care of both of his parents broadly consistent with pre-existing pattern of care, namely, 70% with the Other Party and 30% with the Applicant. In reaching this conclusion the Tribunal accepts that there was some level of disruption in the family arrangements during this period as a consequence of the adjustment to life in Tasmania and also due to a level of tension that had emerged between M and the Other Party at this time, but is not satisfied that the disruption amounts to a material change in the established pattern of care. The Tribunal accepts that from 16 October 2017 M was in the 100% care of the Applicant.
The Tribunal accepts, as was contended by both parties, that an altercation occurred between the Other Party and M which precipitated his decision to move in with his father on a permanent basis. However, the Tribunal prefers the Other Party’s evidence in relation to the timing of this altercation. The Tribunal accepts the Other Party’s evidence that M had been excited by the prospect of travelling with her interstate to visit his half-sister towards the end of September and this supports the Other Party’s contention that the altercation with M had occurred sometime after that date. The Applicant made clear in his evidence that following the altercation there had been a significant breakdown in the relationship between M and the Other Party and that the relationship had not recovered. The Tribunal considers it unlikely that M would have been excited by the prospect of undertaking a trip with his mother in circumstances where his relationship with her had broken down to that extent. For these reasons, the Tribunal accepts that the altercation between M and the Other Party occurred in early October 2017.
Notwithstanding this, the Tribunal is satisfied that the date on which the care arrangements can objectively be said to have transitioned was on 16 October 2017. The Tribunal accepts that an incident took place in the school car park on 16 October 2017 involving the Applicant, the Other Party and M and as a consequence of that incident it became apparent to the Other Party that M no longer wanted to reside with her but instead had, in effect, chosen to reside with the Applicant on a permanent basis. The Tribunal accepts the Other Party’s contention that her efforts to change M’s school mailing address back to her residential address and the steps she took to contact the relevant authorities is consistent with the change in the pattern of care occurring from that day.
A further issue that requires consideration by the Tribunal is whether in all the circumstances of this case an interim care determination should be made.
As indicated earlier, the Tribunal has considered this issue in the context of section 23 of the Act.
Section 23 applies in circumstances where an FTB child of an individual ceases to be in their care without their consent and the individual has taken reasonable steps to have the child again in their care. Section 23(2) of the Act provides that in these circumstances the relevant child would remain an FTB child of the individual who has taken reasonable steps to have the child in their care during a qualifying period. The qualifying period can be for up to 14 weeks.
As indicated above, the Tribunal has accepted that M was in the Applicant’s 100% care from 16 October 2017. It also accepts that at this date the Other Party made reasonable steps to have M returned to her care including contacting a range of relevant authorities and this included initiating a contravention application before the Federal Circuit Court.
Notwithstanding this, section 23(4A) of the Act provides that if “special circumstances” exist, the Secretary (or the Tribunal standing in its shoes) may determine that section 23(2) does not apply in relation to the child. The effect of this provision is that if there are special circumstances then FTB would not continue to be payable to the Other Party in respect of M from 16 October 2017 onwards. The Tribunal notes that the same test applies in section 35C(5).
In considering this issue the Tribunal has had regard to the Family Assistance Guide which sets out government policy in relation to disputed care arrangements. The Guide provides examples of behaviour that may give rise to special circumstances including violence towards the child. In considering the policy the Tribunal is satisfied that the policy is not inconsistent with the provisions or objects of the Act.
Having considered all of the evidence before it, the Tribunal is satisfied that the circumstances in which M transitioned into the 100% care of the Applicant did involve a verbal and physical altercation between the Other Party and M. While the Other Party did not concede specific details in relation to the altercation, she did accept that a disagreement of some sort had taken place and that she had acted “inappropriately”. In these circumstances, the Tribunal is satisfied that special circumstances exist in relation to M and that as a consequence section 23(2) does not apply. Accordingly, the Tribunal is satisfied that the legislative requirements for making an interim care determination as sought by the Other Party are not satisfied. The Tribunal would reach the same conclusion in applying section 35C(5) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member.

Dates of hearing: 8 October 2019 and 15 November 2019

Applicant:
Other Party:

By telephone

By telephone

Solicitor for the Respondent: Ms Ishani Das

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..........[sgd]...........................

Associate

Dated: 18 June 2020

[2020] AATA 1850

18 June 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Breach

Procedural Fairness

Statutory Construction