SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and CONFIDENTIAL CONFIDENTIAL OTHER PARTY

[2013] AATA 2

[2013] AATA 2  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/2510
Re	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
APPLICANT
And	CONFIDENTIAL
RESPONDENT
And	CONFIDENTIAL
OTHER PARTY

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	8 January 2013
Place	Brisbane

The Tribunal sets aside decision under review and substitutes its decisions that the father is a person affected by the decision of the authorised review officer dated 22 September 2011; that the mother is a person affected by the decision of the authorised review officer dated 24 February 2012; that the care percentages for the mother and father are 74% and 26%, respectively, for the period from 2 July 2011 to 7 October 2011 and 100% and 0%, respectively, for the period from 8 October 2011.

........................................................................

Mr R G Kenny, Senior Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – FTB child – Court Order determining percentage of care  – Primary decision by Centrelink, on application by mother, to change care percentage – Objection to that primary decision – Decision set aside by authorised review officer – Application by mother to Social Security Appeals Tribunal (SSAT) to review – Father was a person “affected by” the primary Centrelink decision – Mother was a person “affected by” the decision of the authorised review officer – SSAT decision set aside

LEGISLATION

Administrative Appeals Tribunal Act (Cth) s 35

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) 109A, 111
A New Tax System (Family Assistance) Act 1999 (Cth) ss 22, 23, 25, 23A, 27, 35T, 35U
Child Support (Assessment) Act 1988 (Cth) ss 54K, 54L
Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth) s 80A

The Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Act 2012 (Cth) Schedule 5

CASES

Comptroller-General of Customs and Another v ACI Pet Operations Pty Limited (1994) 32 ALD 48

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72

SECONDARY MATERIALS

Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Cth) Explanatory Memorandum

Family Assistance Guide ss 2.1.1.11, 2.1.1.70, 6.2

The Child Support Guide s 2.4.5

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

1. On 12 October 2009, the Family Court of Australia made an order (the Court Order) that the mother/father of T have 74%/26% care, respectively, of their child T. In August 2011, the mother advised Centrelink that, from 2 July 2011, T had been in her care for 100% of the care period. On 22 September 2011, Centrelink changed the care percentages to 100%/0% for the mother/father, respectively. Following a review of that decision at the request of the father, an authorised review officer, on 11 January 2012, changed the decision so that the mother/father care percentages reverted to 74%/26%, respectively, for the period from 2 July 2011 and 100%/0%, respectively, from 8 October 2011. That decision was affirmed by that authorised review officer on 17 February 2012 and again on 24 February 2012 after the mother sought review of the decision of 11 January 2012. The mother then sought review by the Social Security Appeals Tribunal (SSAT) of that decision. The father was joined as a party to those proceedings. On 9 May 2012, the SSAT set aside the decision and sent it back to Centrelink for reconsideration on the basis that the father was not entitled to seek review of the care percentage decision of 22 September 2011.

   ISSUES AND LEGISLATION

2. The first issue for determination is whether the father and/or mother were persons “affected by” the Centrelink determinations of, respectively, 22 September 2011 and 24 February 2012[1]. In the event that they meet that description, the percentages of care for the mother and father in the period from 2 July 2011 until 7 October 2011 (the relevant period), which was the issue raised for consideration by the SSAT, will need to be determined.[2]

   [1] The earlier decisions of the authorised review officer were affirmed on 24 February 2012 by the same authorised review officer.

   [2] For review by the Tribunal of a decision that was made by the SSAT in purported exercise of power, see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 and Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72 at 78.

3. The determination of child care percentages is relevant to the payment of family tax benefit (FTB) which is paid in accordance with the A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act)[3] and the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the FA Administration Act). Child care percentages are also relevant to the payment of child support under the Child Support (Assessment) Act 1989 (Cth) (the CS Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (the CS Registration and Collection Act).

   [3] References to this and other legislation is as at the dates of the Centrelink decisions.

4. During the relevant period, it is common ground that, in accordance with the Court Order, the mother and father had legal responsibility for T and that he was an FTB child of the mother in accordance with ss 22(2) and 22(5)(b) of the FA Act. The father also met the requirements of those provisions but T was excluded, under s 25 of the FA Act, from being his FTB child because his care percentage was less than 35%.[4] Rather, T was a “regular care child” of the father under s 25A of the FA Act. As such, the father was not entitled to receive any FTB payments in relation to T but was able to gain certain concessions in relation to his child support obligations.[5] As FTB was not paid to the father before the Centrelink decision of 22 September 2011, the change in care percentage in that decision made no difference to his FTB entitlements.

   [4] See also s 22(7) of the FA Act.

   [5] See the Family Assistance Guide s 2.1.1.11 Regular Care Child. As to the appropriateness of the Tribunal’s reliance on a Guide, see Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645 per Brennan J (President) and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86 per Einfeld J.

5. In its decision, the SSAT referred to s 109A(1A) and s 111(1) of the FA Administration Act which provide for internal review of Centrelink decisions and for review of decisions by the SSAT, respectively. In each case, the review of a decision may be sought by a person “affected by” the decision. The SSAT determined that, because the father had not been in receipt of FTB when his care percentage was 26%, the decision to reduce his care percentage to 0% made no difference to his FTB and that, therefore, he was not a person “affected by” the decision. This meant that he was not entitled to seek internal review of the Centrelink decision of 22 September 2011. As I understand it, the SSAT also determined that the mother was not entitled to seek review by the SSAT for the same reason that her FTB payments had not been changed and she was not a person “affected by” the decision of 24 February 2012.[6]

   [6] This decision was in the same terms as the earlier decisions of the authorised review officer. 

6. The SSAT’s opinion was that the father should have lodged an objection to the Child Support Agency under that legislation in order to have his child support obligations changed.

7. For the applicant, Ms Karen Hamilton submitted that the SSAT’s interpretation of the term “affected by” in ss 109A(1A) and 111 of the FA Administration Act was too narrow. She submitted that amendments made by the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Cth) (the Amending Act) operated to confirm that a determination about child care percentages for FTB purposes affected the child care percentages for the purposes of assessing a person’s child support liability. This meant that, while the change to the child care percentage by Centrelink had no effect on the mother’s and father’s FTB payments, it would have a direct effect on their child support payments. For that reason, she submitted, each of them was a person “affected by” the respective care percentage decisions such that each was entitled to seek review of an adverse decision. Ms Hamilton also submitted that the merits of the matter which was before the SSAT ought to be determined.

8. No specific submissions were made by the mother or the father on the issue of whether they were “affected by” the decisions. However, each provided statements about the arrangements that pertained to the care of T from 2 July 2011. While it was not in dispute that the mother had 100% of care in that period, the father submitted that this was because she had prevented him from having care of T. His statements detailed the steps he had taken to overcome the mother’s actions; the mother’s statements purported to deny his claims. The decision of the authorised review officer to restore the mother/father child care percentage to 74%/26%, respectively, was made on the basis that the father’s version of events was accepted.

   CONSIDERATION

   Persons “affected by” a decision

9. The Explanatory Memorandum to the Bill for the Amending Act includes the following:

   The family assistance law and the child support legislation differ in how they deal with care percentages and changes in care for a child. This bill aligns care determinations made under the family assistance law and the child support legislation. This will allow parents or carers who are entitled to family tax benefit and are also child support payers or payees to have the same care determinations made for a child where the care of the child involves more than one carer.

10. A new Part 3 Division 1 was added to the FA Act by the Amending Act. It includes s 35T and s 35U of the FA Act, which read:

    35T Percentages of care determined under the child support law that apply for family assistance purposes

    (1) If:

    (a) the Secretary is required by a provision of Subdivision D of this Division to determine an individual’s percentage of care for a child in relation to a claim for payment of family tax benefit; and

    (b) the Child Support Registrar has determined the individual’s percentage of care for the child (the child support care determination) under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; and

    (c) the child support care determination has not ceased to apply or been revoked;

    then:

    (d) the child support care determination has effect, for the purposes of this Act as it applies to such a claim, as if it were a determination of the individual’s percentage of care for the child that has been made by the Secretary under a corresponding provision of Subdivision D of this Division; and

    (e) the individual’s percentage of care for the child applies, for the purposes of this Act as it applies to such a claim, in the same way, and in the same circumstances, in which it would apply if it had been determined by the Secretary under such a provision; and

    (f) the child support care determination may cease to apply, or be revoked, under Subdivision D or E of this Division in the same way, and in the same circumstances, in which a determination made under Subdivision D of this Division may cease to apply, or be revoked.

    (2) This section ceases to apply to the child support care determination if the determination ceases to apply, or is revoked, under Subdivision B or C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989.

    35U Reviews of percentages of care under child support law apply for family assistance purposes

    (1) Subject to subsections (2) and (3), if:

    (a) the Child Support Registrar considers an objection to a decision under Part VII of the Child Support (Registration and Collection) Act 1988; and

    (b) considering the objection involves (wholly or partly) a consideration of a determination that:

    (i) was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; or

    (ii) has effect, under section 54K of that Act, as if it were a determination made under such a provision; and

    (c) the Child Support Registrar’s decision on the objection has the effect of varying the determination or substituting a new determination;

    section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.

    (2) Subject to subsection (3), if:

    (a) the SSAT reviews a decision under Part VIIA of the Child Support (Registration and Collection) Act 1988; and

    (b) reviewing the decision involves (wholly or partly) a review of a determination that:

    (i) was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; or

    (ii) has effect, under section 54K of that Act, as if it were a determination made under such a provision; and

    (c) the SSAT’s decision on the review has the effect of varying the determination or substituting a new determination;

    section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.

    (3) If:

    (a) the AAT reviews a decision under the AAT Act; and

    (b) reviewing the decision involves (wholly or partly) a review of a determination that:

    (i) was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; or

    (ii) has effect, under section 54K of that Act, as if it were a determination made under such a provision; and

    (c) the AAT’s decision on the review has the effect of varying the determination or substituting a new determination;

    section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.

11. The Amending Act also added a new Part 5 Division 4 to the CS Assessment Act, including s 54K and s 54L, which read:

    54K Percentages of care determined under the Family Assistance Act that apply for child support purposes

    (1) If:

    (a) the Registrar is required by a provision of Subdivision B of this Division to determine a responsible person’s percentage of care for a child; and

    (b) the Family Assistance Secretary has determined the responsible person’s percentage of care for the child (the family assistance care determination) under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; and

    (c) the family assistance care determination was made in relation to a claim for payment of family tax benefit; and

    (d) the family assistance care determination has not ceased to apply or been revoked;

    then:

    (e) the family assistance care determination has effect, for the purposes of this Act, as if it were a determination of the responsible person’s percentage of care for the child that has been made by the Registrar under a corresponding provision of Subdivision B of this Division; and

    (f) the responsible person’s percentage of care for the child applies, for the purposes of this Act, in the same way, and in the same circumstances, in which it would apply if it had been determined by the Registrar under such a provision; and

    (g) the family assistance care determination may cease to apply, or be revoked, under Subdivision B or C of this Division in the same way, and in the same circumstances, in which a determination made under Subdivision B of this Division may cease to apply, or be revoked.

    (2) This section ceases to apply to the family assistance care determination if the determination ceases to apply, or is revoked, under Subdivision D or E of Division 1 of Part 3 of the Family Assistance Act.

    54L Reviews of percentages of care under the Family Assistance Administration Act apply for child support purposes

    (1) Subject to subsections (2) and (3), if:

    (a) the Family Assistance Secretary reviews a decision under section 105 or 109A of the Family Assistance Administration Act; and

    (b) reviewing the decision involves (wholly or partly) a review of a determination that:

    (i) was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

    (ii) has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

    (c) the Family Assistance Secretary’s decision on the review has the effect of varying the determination or substituting a new determination;

    section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.

    (2) Subject to subsection (3), if:

    (a) the SSAT reviews a decision under section 113 of the Family Assistance Administration Act; and

    (b) reviewing the decision involves (wholly or partly) a review of a determination that:

    (i) was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

    (ii) has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

    (c) the SSAT’s decision on the review has the effect of varying the determination or substituting a new determination;

    section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.

    (3) If:

    (a) the AAT reviews a decision under the Administrative Appeals Tribunal Act 1975; and

    (b) reviewing the decision involves (wholly or partly) a review of a determination that:

    (i) was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

    (ii) has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

    (c) the AAT’s decision on the review has the effect of varying the determination or substituting a new determination;

    section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.

12. I am satisfied that, as submitted by Ms Hamilton, those provisions give effect to the intention as expressed in the extract set out above from the Explanatory Memorandum.[7] Accordingly, the care percentage determinations made on 22 September 2011 and 24 February 2012 for FTB purposes also applied to child support liability. While the change in relation to FTB had no effect, because the father’s percentage of care was less than 35%, the change in percentage of care impacted directly on his child support obligations.[8] That is reinforced by the terms of the Family Assistance Guide (the Guide) which provides assistance to those applying provisions of the FA Act and the FA Administration Act: [9]

    Review relating to care percentage decisions – initiated by affected individuals

    From 1 July 2010, an assessment of shared care that is determined by either the FAO for FTB purposes or the CSA for child support purposes has effect for the other agency in relation to care periods that begin on or after this date.

    An individual who is affected by a care percentage decision is able to seek review of that decision with the FAO or the CSA, whether or not they receive FTB. However, the agency that made the original decision would undertake the review.

    Explanation: Where a care percentage decision has been made by the FAO, this decision is applied to the child support assessment of the payee and the payer. Both the payee and the payer can approach either the CSA or the FAO to seek review of the decision. In this situation, if the CSA was approached by one of the parties, as the FAO has made the care percentage decision, the CSA would receive the request for review and facilitate a transfer of the review request to the FAO, the original care percentage decision maker. The FAO would conduct the review and apply any new care percentage decision to any FTB entitlement for the relevant child. This decision would also be transferred to the CSA and applied to the child support assessment for that child.

    [7] See paragraph 9 (above).

    [8] See s 35U of the FA Act and s 54L of the CS Assessment Act (above).

    [9] At 6.2: Internal Reviews. See also The Child Support Guide at 2.4.5: Care, cost and child support percentages, which relates to the CS Assessment Act and the CS Registration and Collection Act. As to the appropriateness of the Tribunal’s reliance on a Guide, see note 5 (above).

1. Under s 80A of the CS Registration and Collection Act, the father was entitled to lodge an objection to the care percentage decision made on 22 September 2011 and the mother was entitled to lodge with the SSAT an objection to the care percentage decision made on 24 February 2012[10]. Because of the legislatively deemed consequence that a decision in relation to child care percentage for FTB purposes is effective for child support obligations, I am satisfied that the father was a person “affected by” the Centrelink decision of 22 September 2011 and that the mother was a person “affected by” the authorised review officer’s decision of 24 February 2012.

   [10] See note 6 (above).

   The Determination of 24 February 2012

2. The decision under review by the SSAT was that of the authorised review officer on 24 February 2012.[11] The relevant aspect of the determination was the child care percentage during the relevant period from 2 July 2011 until 7 October 2011. It is common ground that the father did not have care of T during that time. This was recognised by the authorised review officer whose decision was to return the assessment of percentage of care to 74%/26% for the mother/father, respectively, as provided in the Court Order. The decision was based on findings that the mother had prevented the father from having care of T and that the father had taken reasonable steps to regain care of T. The end date of 7 October 2011 was the end of a 14 week qualifying period during which the father was prevented from having care of T while he took reasonable steps to regain care.[12] In that regard, s 23 of the FA Act[13] reads:

   [11] See note 6 (above).

   [12] See s 23(5)(b) of the FA Act and the Guide at 2.1.1.70 (set out below).

   [13] Amendments to this provision were made by Act No. 98, 2012 The Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Act 2012 (Cth) Schedule 5 which took effect from 29 June 2012 (after the Centrelink decisions).

   23 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) 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.

   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) after 14 weeks pass since the child ceased to be in the adult’s care;

   (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.

   …

3. The Guide, at s 2.1.1.70, provides:

   2.1.1.70 Disputed Care Arrangements

   …

   For the purposes of FTB, a dispute in relation to the care of a child exists where a care arrangement for the child is in place and there is a departure from the terms of the arrangement by one of the parties. A care arrangement for a child is a written agreement between the parents, or between a parent and a carer relating to the care of the child, or a parenting plan or a court order for the child.

   The dispute may relate to a departure from shared care arrangements between 2 or more individuals, or to a departure from arrangements for the sole care of a child, where care changes from one individual to another in contravention of the arrangement.

   …

   Situations where FTB can be paid during an interim period

   Where the care of a child is shared and the actual care corresponds with that in a care arrangement, each individual's percentage of care can be determined based on the care arrangement. If the actual care is different from the percentage of care determined on the basis of the care arrangement then, in normal circumstances, actual care must be used to determine each individual's percentage of care. However, if an individual's FTB child is prevented from being in their care in accordance with a care arrangement without their consent and they take reasonable steps to have the care arrangement (or a different care arrangement) complied with then there may be an interim period where care is determined by the care arrangement rather than actual care. This interim period can be up to 14 weeks for an individual and in special circumstances up to 26 weeks. The child continues to be an FTB child of the individual during the interim period if the individual takes reasonable action to ensure compliance with the care arrangement.

   There are a range of situations where an individual may continue to be eligible for FTB during an interim period such as situations where contact has been prevented by one party, or where a child has not been returned after a contact visit, or where the child chooses to live with the other carer.

   …

   The intention is to allow FTB to continue to be paid for the duration of the interim period despite the fact that the parent or carer does not have actual care of the child.

   …

   Taking reasonable action to ensure compliance with care arrangement

   To be paid FTB during an interim period of up to 14 weeks, the individual must take reasonable action to ensure compliance with the care arrangement. Reasonable action could include:

   ·negotiating with the other party in a genuine attempt to ensure compliance with a written agreement, or

   ·making and/or attending an appointment at a Family Relationships Centre (FRC) or similar dispute resolution service with the aim of ensuring the care arrangement is adhered to, or

   ·obtaining or seeking legal advice regarding the making of a court order, or

   ·filing an application to a Court to have an order made or enforced, or

   ·attending a hearing at Court to seek an order to be made or enforced….

4. As noted above,[14] while the father meets the requirements of ss 22(1) and 22(5) of the FA Act, T is deemed not be his FTB child by s 25 of the FA Act because his percentage of care was less than 35%. However, through the operation of ss 23(2) and 23(3)(b) of the FA Act, T remained an FTB child of the father for the purposes provided for in s 23 of the FA Act.

   [14] See paragraph 4 (above).

5. It is not disputed that, from 2 July 2011, the mother retained 100% of the care of T without the consent of the father and did so without taking appropriate steps to have the Court Order varied. The mother’s withholding care of T from the father brings s 23 of the FA Act into play. In one of her letters, dated 6 February 2012,[15] the mother referred to medical opinion which supported her withholding T from the father. As s 23 of the FA Act read at the time of the Centrelink decisions, that provision made no reference to the reasons which might provide some justification for withholding care. With effect from 1 July 2012, an amendment to s 23 of the FA Act[16] enables special circumstances to be considered in assessing the withholding parent’s conduct; that may well include a matter such as the medical opinion relied on by the mother. I make no findings in that regard as the amendments were not applicable at the time of the Centrelink decisions of 22 September 2011 and 24 February 2012[17]. However, I note that, in his evidence, the father disputed the medical opinions identified by the mother.

   [15] See Exhibit 1, T-document 12, p. 100.

   [16] See note 13 (above).

   [17] See note 6 (above).

6. As the mother withheld care of T from the father from 2 July 2011 onwards, T will have continued to be the FTB child of the father for a 14 week qualifying period provided the father took reasonable steps to have T again in his care. The father listed the steps he had taken to regain care of T. He applied to the Family Court for a contravention order attaching an affidavit, completed on 5 December 2011 and lodged with Centrelink on 19 December 2011.[18] Therein, he identified 14 occasions when the mother contravened the Court Order of 12 October 2009. These included his attendance at pre-arranged locations to assume care of T to find that T was not presented by the mother. On one such occasion, he attended T’s school to assume care but learned that the mother had arranged a change of school without consultation. The authorised review officer recorded advice from the father that a Court hearing on the contravention application was scheduled for 23 January 2012.[19] In evidence were letters, dated 19 August 2011[20] and 14 February 2012[21], written by the father to the mother requesting information about her non-compliance with the Court Order. There is dispute between the father and the mother concerning these letters, in particular, whether they were received by the mother. However, I am satisfied that they were sent by the father and that they were part of the action he took to regain care of T.

   [18] See Exhibit 1, T-document 10, esp. pp. 67-71.

   [19] See Exhibit 1, T-document 11, esp. p. 98.

   [20] See Exhibit 1, T-document 10, pp. 90-92.

   [21] See Exhibit 1, T-document 16, pp. 126-127.

7. In a letter, dated 30 April 2012,[22] to the SSAT, the father wrote that he had approached Relationships Australia to seek mediation in accordance with the Court Order. He wrote that he was advised that there was 3 to 6 months delay and that he also approached the Family Relationship Centre and had an interview in August 2011. He was advised that, as he had previously attended a family dispute resolution meeting with a counsellor from that organisation in May 2011, he should proceed with the certification of that attendance which was valid for 12 months. A copy of that certificate was in evidence and was lodged with Centrelink on 19 December 2011.[23]

   [22] See Exhibit 1, T-document 19, pp. 133-140.

   [23] See Exhibit 1, T-document 10, p. 65.

8. The Guide, at s 2.1.1.70,[24] lists examples of matters which may constitute reasonable action to ensure compliance with the care arrangement. I am satisfied that the actions by the father during, and after, the relevant period were sufficient on his part to satisfy the terms of s 23(1)(c) of the FA Act that he took reasonable steps to have T again in his care. I am satisfied that Centrelink correctly determined that the care percentages for the mother/father were 74%/26%, respectively, for the period from 2 July 2011 to 7 October 2011 and 100%/0%, respectively, for the period from 8 October 2011.

   [24] See above at paragraph 15.

   DECISION

9. The Tribunal sets aside decision under review and substitutes its decisions that the father is a person affected by the decision of the authorised review officer dated 22 September 2011; that the mother is a person affected by the decision of the authorised review officer dated 24 February 2012[25]; that the care percentages for the mother and father are 74% and 26%, respectively, for the period from 2 July 2011 to 7 October 2011 and 100% and 0%, respectively, for the period from 8 October 2011.

   [25] See note 6 (above).

10. I make an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) that the identities of the respondent and other party as well as any documents and any transcript of the proceedings in regard to this application not be published to any person other than the applicant and his legal advisors and any legal advisor of the respondent and other party.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

........................................................................

Associate

Dated 8 January 2013 

Date of hearing	17 December 2012
Advocate for the Applicant	Ms Karen Hamilton
Respondent	By Telephone
Other Party	Did not appear