SRCC and Secretary, Department of Social Services (Social services second review)
[2021] AATA 4938
•23 December 2021
SRCC and Secretary, Department of Social Services (Social services second review) [2021] AATA 4938 (23 December 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2021/1384 GENERAL DIVISION ) Re: SRCC
Applicant
And: Secretary, Department of Social Services
RespondentAnd: YJVQ
Other PartyDIRECTION
TRIBUNAL: Senior Member B J Illingworth
DATE OF CORRIGENDUM: 12 January 2022
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The name of the Applicant on the title page of the decision be replaced with the pseudonym “SRCC”; and
- The name of the Other Party on the title page of the decision be replaced with the pseudonym “YJVQ”.
............................[Sgnd]...............................
B J ILLINGWORTH
(Senior Member)
Division:GENERAL DIVISION
File Number(s): 2021/1384
Re:SRCC
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndYJVQ
OTHER PARTY
DECISION
Tribunal:Senior Member B J Illingworth
Date:23 December 2021
Place:Adelaide
The decision under review is affirmed.
............................[Sgnd]..............................
Senior Member B J Illingworth
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – family tax benefit – shared care of children – whether children are FTB children of the applicant – pattern of care discussed – Federal Circuit Court care orders discussed – children not FTB children of the applicant – decision affirmed
Legislation
A New Tax System (Family Assistance) Act 1999 ss 25, 35J, 59
Cases
Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405
Secondary Materials
Family Assistance Guide
REASONS FOR DECISION
Senior Member B J Illingworth
23 December 2021
INTRODUCTION
The applicant and the other party were formerly married but separated on or about 18 February 2019. They are the parents of two sons, Child 1 born in June 2014 and Child 2 born October 2015 (“the children").
Following separation, the other party was initially paid Family Tax Benefit (“FTB”) on the basis that she had the sole all care of both children.
On 25 November 2019 a Judge of the Federal Circuit Court issued interim orders with respect to the care of the children. This application relates to the question of the applicant’s entitlement of FTB arising from the care he then had of the children consequent upon that and subsequent interim orders of the Court.
On 19 December 2019 the applicant lodged with Centrelink, a claim for FTB. The applicant asserted that a shared care arrangement commenced on 25 November 2019 with an expected end date on 25 October 2020.[1] The applicant’s claim was granted by Centrelink on 28 August 2020 on the basis that the applicant had at least 35% of the care of both children from 25 November 2019.
[1] T14 page 102.
The other party requested an internal review of the Centrelink decision and on 7 October 2020 an Authorised Review Officer (“ARO”) set aside the original Centrelink decision and decided that the applicant’s “shared care percentage” was less than 35% since the date of the claim, and accordingly the applicant had never qualified for FTB. In making that decision the ARO had regard to Federal Circuit Court Orders dated 25 November 2019, 7 April 2020 and 29 May 2020. Both the applicant and the other party confirmed that the care of the children had been occurring in accordance with the terms of those orders.
The applicant applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) to review the decision of the ARO.
On 17 February 2021 the AAT1 affirmed the decision of the ARO and in doing so the AAT1 also had regard to the same Federal Court Circuit Orders. Again, the applicant and other party acknowledged that child care had been occurring in accordance with the terms of the orders.
On 9 March 2021 the applicant filed an application to the Tribunal (“AAT2”) to review the decision of the AAT1, which application is now before me. At the hearing, the respondent tendered a further Federal Circuit Court Order dated 27 November 2020 that was not before the ARO or the AAT1.
The applicant and other party generally agreed that the care arrangement was in accordance with the Federal Circuit Court Orders.
The applicant and the other party appeared in person and were self-represented. The other party was assisted by an interpreter. The respondent was represented by Mr Visser from Services Australia.
THE LEGISLATION FRAMEWORK
The relevant legislation and policy are contained in the A New Tax System (Family Assistance) Act 1999 (“the Act”), and the Family Assistance Guide (“the Guide”).
Relevantly in this matter Child 1 and Child 2 are each an FTB child. However pursuant to s25 of the Act, a child is not an FTB child of an individual if that individual’s percentage of care is less than 35% in the care period.
Section 59 of the Act provides for shared care percentages where an individual is the FTB child of more than one person who are not members of the same couple. Specifically, it provides that a shared care percentage is applicable to an individual who has at least 35% and not more than 65% care of the FTB child. Thereafter, the FTB rate is proportional to the shared care percentage as calculated by s59(2) of the Act.
The Secretary (and now the Tribunal) must first be satisfied that there is a “pattern of care” in a “care period” before fixing a percentage of care.
If satisfied that there is a “pattern of care” the Tribunal must then determine the percentage of care each parent had in respect of Child 1 and Child 2. Once the percentage of care is determined, this is used to calculate the shared care percentages of the parents in accordance with the table contained in s59 of the Act.
The percentage of care during a care period may be determined based upon the number of nights each child should have been or will be in the care of a parent. That is the appropriate method of determination in this matter.[2]
[2] Section 35J of the Act.
Instruction 2.1.1.45 of the Guide relevantly provides
(a)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 cared determination for FTB. A pattern of care is generally established by using the number of nights in care… for each FTB child.
(b)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.
ISSUES
The applicant and the other party did not agree about the pattern of care or the percentage pattern of care that each had in relation to the children. Hence the issue for the Tribunal was:
(i)whether the decision to reject the applicant’s claim for FTB lodged on 19 December 2019 was correct; and if not
(ii)what percentage of care should be recorded for the applicant and other party in respect of the children for the relevant care period.
The respondent in the Statement of Facts, Issues and Contentions (“SoFICs”) correctly said at [25], “The Secretary submits that the relevant question for the Tribunal to determine is essentially one of fact – who had care of the children when, and to what extent was that care shared (if at all)? The respective entitlements of [the applicant] and [the other party] to FTB in respect of the children will flow from the answer to this question.”
The respondent’s position in the proceedings was neutral and was to assist the Tribunal with regards to any contention and the law to be applied.
THE EVIDENCE
The applicant
Following the applicant and other party’s separation, the applicant did not immediately see the children, however, agreement was reached such that from 25 May 2019 until 25 November the applicant had the care of the children each weekend on Friday and Saturday night and returned the children to the other party on Sunday afternoon. The applicant did not dispute that in relation to that period he did not have 35% care of the children.
That arrangement changed following interim orders made by the Federal Circuit Court on 25 November 2019 (“the first Order”)[3], and from that date the applicant had the care of the children consistent with that order.
[3] T17 pages 139-142.
Thereafter changes in care arrangements occurred following three more Federal Circuit Court Orders which were as follows:
(i) 7 April 2020 – (“the second Order”)[4];
(ii) 29 May 2020 – (“the third Order”)[5]; and
(iii) 27 November 2020 (“the fourth Order”)[6].
[4] T17 page 135.
[5] T17 pages 127-130.
[6] Exhibit C.
A further Order made on 22 April 2021[7] did not impact upon the care percentage.
[7] Ibid.
The applicant disagreed with the AAT1 percentage of care attributed to him pursuant to the first Order. Further he said that the Department when considering the percentage care arising from the first Order missed from their calculation, certain days namely Boxing Day, 27, 28 and 29 January 2020, which the applicant said brought him to 35% care of the children. He said that the first Order provided that he have the care of the boys on those days missed from the calculation.
The second Order took into account arrangements for Easter 2020. The applicant said the Department’s calculations failed to take into account 3 days the children were in his care over Easter in accordance with the second Order.
The applicant also said that he and the other party “would have started implementing Father’s Days, Mother’s Days, end of school term one school holiday” which he said the Department failed to take into account.
Insofar as the second Order referred to children being in his care from 10:00am Monday 20 April 2020 until 4.00pm Sunday 26 April 2020, he said that period was the first week of school holidays. The Tribunal notes the second Order makes no reference to Father’s Day or Mother’s Day, and the applicant could not give any adequate evidence about what in fact occurred on either of those days in 2020.
The Tribunal referred the applicant to the third Order. He said that he and the other party had the care of the children in accordance with the terms of that order. However, the Department failed to take into account his periods of care including for the school holidays at the end of term 2 and term 3 of the 2020 school year and that he had the children for 8 nights during each school holiday. He said that for the 2020 Christmas school holidays the children were in his care for 21 nights. He also said the Department failed to take into account his youngest son’s birthday when the children were in his care.
The applicant was generally critical of the Department’s calculations and said that dates were repeatedly missed from the calculation of his care. He was inviting the Tribunal to recalculate the care percentages.
The applicant was referred to a bundle of documents Exhibited B which included an application to the Federal Circuit Court dated 8 July 2021 for the delivery up of the children to the other party, and suspension of the orders made on 27 November 2020 for the remainder of the school holidays, an affidavit of the other party, copy of SMS communications and a letter dated 6 July 2021 from the other party’s solicitor to the applicant sent by email, requesting the immediate return of the children. The letter asserted, amongst other things, that the applicant attended the children’s school at 12noon on a Thursday and removed the children who remained in in his care contrary to the terms of the relevant Court Order.
The period the children were in his care at this time and whether the care was in accordance with the terms of the relevant court order, were relevant in assessing both the pattern of care and percentage of care that the applicant had of the children.
The applicant denied he had ever seen those documents including the letter and said he had the care of the children in accordance with the court order. I was not convinced by the applicant’s evidence and I do not accept that he never saw the various documents including the letter from the other party’s solicitor.
The other party
The other party confirmed the date of separation. She said that generally the applicant has had care of the children in accordance with the terms of the court orders but from time to time the orders were misunderstood which gave rise to conflict.
In relation to the first Order, her understanding was that one parent would have the care of the children from Christmas Eve to Christmas Day and the other parent would have the care for the children on Boxing Day eve to the next day. That arrangement alternates each year and has continued, but she could not recall which alternate arrangement applied for the upcoming Christmas period.
The other party agreed that she and the applicant shared the care of the children in respect to the school holidays, the children’s birthdays, the applicant’s birthday, and Father’s Day, in accordance with the third Order.
The other party referred to paragraph 5 of the fourth Order. In respect of school holiday access in 2021 she referred to some issues with the applicant’s compliance with the terms of the order. The applicant attended to collect the children on the wrong day. This happened on two occasions relating to school holiday care at the end of term one and term two. He therefore had the care of the children for a longer period than was provided in the fourth Order.
Federal Circuit Court Orders were subsequently made to compensate the other party for that reduction in care. The applicant was sent a letter by the solicitor on the first occasion in respect of the school holidays at the end of term one. She said she obtained a court order following the first error which is the Order dated 22 April 2021.[8] This gave the other party an extra three days. The Federal Circuit Court application, affidavit and solicitor letter dated 6 July 2021[9], were the result of the second occasion when the error was repeated by the applicant.
[8] Ibid.
[9] Exhibit B.
The school holiday care at the end of term three was in accordance with the fourth Order. The care arrangement following the fourth Order had otherwise been in accordance with that order, however the other party expressed concern about the wording of the order and lack of clarity about care arrangements immediately following return to school for the final school term.
CONSIDERATION
The Tribunal must first be satisfied that a “pattern of care” has been established by the applicant in a care period, before fixing a percentage of care in relation to each of the children.
In Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405 the Tribunal considered the meaning of pattern of care. The Tribunal there said it was clear from the terms of agreement between the parties, which was reflected in the court order and the evidence, that there was a pattern of care. The Tribunal was not restricted to the content of the court order and a common-sense approach applied in respect of what had happened in the past and what would happen in the future from which the Tribunal could consider if a pattern of care existed. The Tribunal said:
“once established it is appropriate that variation only occur where there is to be a significant departure in an established pattern of care. This may occur, for example, when contact weekends are changed from fortnightly to monthly. It would not occur when the old weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period.”
The applicant and other party both agreed that the care arrangement occurred in accordance with the court orders. I accept that evidence. I am satisfied that there were occasions of misunderstanding in 2021 that were remedied, nonetheless the best evidence about care of the children is found in those orders which I will now consider.
The applicant lodged an application for FTB on 19 December 2019, following the first Order dated 25 November 2019 which provided for the applicant to have certain care arrangements for the children. In his application the applicant said the care arrangement commenced on 25 November 2019 and was expected to end or change on 25 October 2020.[10] I will consider each order in turn.
The first Order dated 25 November 2019
[10] T14 page 102.
The first Order provided that the applicant was, for the balance of the 2019 school term, to have two nights care per week, and thereafter one half of the Christmas school holidays. Then, from term 1 of the 2020 school year, he was to have 4 nights care per fortnight from 7 February 2020.
At the time of that order the matter was listed for trial in the Federal Circuit Court on 28 and 29 September 2020. Nonetheless, I am satisfied that this order evidenced a pattern of care that was intended to be in place for approximately a year or at least until the hearing of the trial.
The AAT1 observed, and I agree, that “Even if the Tribunal assumed that these interim orders would last for a full year, they would give only 122 nights care to [the applicant], which equals 33.42% of care, rounded down (because it is below 50%) to 33%, which would still be under the 35% threshold for FTB payment.”
Hence in respect of the pattern of care arising from the first Order the applicant did not have at least 35% of the care of the children.
It is then necessary to consider the consequence of the subsequent orders of the Federal Circuit Court in respect of that pattern of care.
The second Order dated 7 April 2020
The underlying pattern of care remained in accordance with the first Order. The second Order was an interim order, mainly to address the time the children would spend with each parent during Easter 2020 and its impact upon the school holiday period occurring at that time. The order then provided for the return to the alternate weekend care in accordance with the first Order.
Accordingly, the second Order provided for the resumption of the first Order in respect of alternate weekend access during the school term commencing Friday 1 May 2020. The second Order was silent in respect of future school holiday care. Further consideration of the matter was adjourned to 15 May 2020.
Hence, the second Order was to address, on its face, a one-off issue between the parties with respect to the Easter and related care of the children. It did not, create a new pattern of care, or form part of the existing pattern of care arising from the first Order. It did not form part of a regular underlying pattern of care. It was in all respects an interim order only.
The second Order was not a significant departure from the established pattern of care and did not form part of the regular underlying pattern of care.
The third Order dated 29 May 2020
The third Order confirmed the continuation of the care arrangement referred to in paragraphs 4(a) and 4(b) of the first Order and made arrangement for the applicant to have the care of the children on their respective birthdays in June and October of 2020 together with Father’s Day that year.
The third Order was also an interim order to address an issue between the parties with respect to those specific dates in 2020. It was not a continuing arrangement and did not represent a pattern of care or form part of the existing pattern of care arising from the first Order.
It was not a significant departure from the established pattern of care and did not form part of the regular underlying pattern of care.
Consequence of the second and third Orders in respect of the Pattern of Care
The applicant’s argument, in addition to missed days in the calculation by the Department, which I have taken into account, was that occasional interim changes, which gave him care on a birthday, Easter period or Father’s Day in 2020, should then be added to the existing pattern of care such that he would achieve the 35% threshold. However, having regard to the evidence those days were isolated events with no evidence that they would occur again in the future. Indeed, when subsequent orders were made in the fourth Order, birthdays and Father’s Day were not included for 2021, and the Easter care was reduced to one night in the applicant’s care.
These were not significant departures in an established pattern of care and were isolated additions to the applicant’s care and are not to be used in a mathematical calculation to add to the existing pattern or to achieve the 35% threshold entitling the applicant to a FTB payment. If they were a significant departure a new pattern of care in relation to a new care period would need to be considered.
The fourth Order dated 27 November 2020
This order was not before the ARO or AAT1. A Judge of the Federal Circuit Court made orders for the care of the children including in respect of 2021. The Court ordered the continuation of paragraphs 1 and 4 of the first Order, namely that the children live with the mother, and provided that the applicant had, during school term, alternate weekend care of the children and in the intervening week he had Wednesday night care of the children. This represented 80 nights a year. The Judge made orders in respect of the 2020/2021 Christmas holidays including Christmas Day, and the 2021 Easter and school holidays. The Easter care was different to that in the second Order and there was no reference to birthdays or Father’s Day.
I am satisfied that the fourth Order evidenced a new pattern of care which could be considered with regards to the ongoing care arrangement of the children until at least the day of the hearing of care issues in the Federal Circuit Court, which was to be in November 2021, the month after the hearing of this application.
The effect of the fourth Order was that the applicant was to have a total of 127 nights care of the children which equates to 34.7% of care, rounded down (because it is below 50%) to 34% which is under the 35% threshold for FTB entitlement.
Hence, although the fourth Order provided a new pattern of care for a period of or about 12 months and up to the November 2021 hearing, the pattern of care did not reach the 35% threshold entitling the applicant to FTB.
CONCLUSION
Accordingly, the Tribunal is not satisfied that the applicant at any time had a pattern of care in respect of the children which gave him a shared care percentage of 35% or more.
DECISION
The decision under review is affirmed.
64. I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.
............................[Sgnd].............................
Legal Administrative Assistant
Dated: 23 December 2021
Date of hearing: 21 October 2021
Applicant: Self-Represented Advocate for the Respondent:
Other Party:
Christian Visser, Services Australia
Self-Represented
0
1
0