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

[2020] AATA 689

TQDJ and Secretary, Department of Social Services (Social services second review) [2020] AATA 689 (30 March 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5404

Re:TQDJ  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndZHWW

OTHER PARTY I

GZNL

OTHER PARTY II

DECISION

Tribunal:Member P Ranson

Date:30 March 2020

Place:Brisbane

The decision under review is affirmed

.............................[SGD]....................................

Member P Ranson

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – FTB – percentage of care – decision under review affirmed  

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth)

SECONDARY MATERIALS

Guides to Social Policy Law: Family Assistance Guide, Department of Social Services,    Version 1.217 released 10 February 2020

REASONS FOR DECISION

Member P Ranson

30 March 2020

BACKGROUND

1. The Applicant (Mother) and Other Party I (Father) are the separated parents of a Daughter (Child). The Father has not participated in the Child’s parenting for some time. There are conflicting stories about how the Child’s birthday on 14 March 2018 was celebrated and with whom. Moreover, where she had overnight care that night and for the next seven months.

2. The Mother is certain the Child spent the day with herself, the maternal grandmother and her aunt. She acknowledges the maternal grandmother took the Child for an hour to visit her paternal grandmother (‘Grandmother’) for her birthday. The Mother says the maternal grandmother and aunt stayed with the Child while she visited her Grandmother and then returned the Child to the Mother for the remainder of the day to enjoy her birthday party. The Mother asserts the Child spent the night at her house and continued to do so.

3. The Grandmother is certain the Mother contacted her on the Child’s birthday saying her circumstances were such that she could no longer look after the Child at that time and would the Grandmother look after the Child ‘for a while’. In the Grandmother’s view of events, the Child stayed with her for a further seven months until 15 October 2018 after which she was returned to the Mother’s care.

4. As time wore on after the birthday, the Child was still living full-time with the Grandmother who was receiving no financial assistance to provide her care. On 30 July 2018 the Grandmother applied for Family Tax Benefit (FTB) which she was granted from 14 March 2018. According to the Grandmother, when the Mother later realised her FTB had been stopped she reclaimed care of the Child.

5. The Mother disputed the Grandmother’s version of events and contacted Centrelink to advise the Child had never been in the care of the Grandmother. On that basis, Centrelink changed the care from the Grandmother to the Mother from 15 October 2018. That decision left the period from 14 March 2018 to 14 October 2018 as 100% care with the Grandmother to which the Mother objected.

6. The Mother’s objection was unsuccessful which meant the Child was not an FTB child for the Mother during the period 14 March 2018 to 14 October 2018. The Mother applied to this Tribunal for a review of that decision and was unsuccessful. Dissatisfied with that decision, she applied to the Tribunal for a second review. This decision turns on who had overnight care of the Child during that period.

   FACTS

7. The parties in this case are:

Applicant	TQDJ (Mother)
Respondent	Secretary, Department of Social Services (the Respondent)
Other Party I	ZHWW (Father)
Other Party II	GZNL (Paternal Grandmother)

1. The Mother and Father are the biological parents of the Child who celebrated a birthday on 14 March 2018. Other Party II is the Paternal Grandmother.

2. The Mother and Father separated on 24 February 2015. On 26 July 2016 the Father filed an Initiating Application with the Federal Circuit Court of Australia (FCCA) whereby the Mother and the Father had equal shared responsibility and the care for the Child. As evidenced by the Mother’s post-hearing submissions, this application was approved by the FCCA on 5 September 2019. The Father later relocated to another town and has had little to no contact with the Child ever since.

3. The Respondent provided a Statement of Facts, Issues and Contentions dated 20 January 2020 (SFIC), which sets out in detail the law relevant to this case with which the Tribunal concurs. As a copy of the SFIC was provided to the Mother and both Other Parties prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

   (a)A New Tax System (Family Assistance) Act 1999 (the Act); and

   (b)Family Assistance Guide (the Guide).

4. Relevantly, section 35J of the Act provides the actual care of a child an individual has had, or will have, during a care period may be worked out based on the number of nights the child was, or will be in the care of the individual during the care period. Further, a child cannot be in the care of more than one individual at the same time.

5. Chapter 2.1.1.50 of the Guide goes on to say a care period begins on the day on which the care of a child starts to be shared between two or more adults, or the day on which the pattern of care changes and ends when there is subsequent change in care. Care periods are generally for 12 months unless the circumstances dictate otherwise.

6. The Respondent identified the percentage of care to be assigned to the Mother and Grandmother for the period 14 March 2018 to 14 October 2018 (the Relevant Period) as the sole issue to be decided in this case.[1] The Respondent’s SFIC noted a new care decision applied from 15 October 2018. The Mother and Grandmother agreed this was the only issue to be decided. As is often the case in matters such as these, applicants often confuse the legal responsibility for the care of a child with the overnight care arrangements for that child as they are quite different. The former refers to the right to have and make decisions about the day-to-day care, welfare and development of the child whereas the latter refers to where the child slept overnight.

   [1] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 1.

7. The Hearing occurred on 3 February 2020 (the Hearing). The Mother and Grandmother attended by conference telephone and Ms Smith for the Respondent attended in person. The Tribunal attempted to contact the Father however as he did not respond the Hearing proceeded in his absence. The Mother and Grandmother gave affirmed evidence.

8. The following documents were admitted into evidence:

Exhibit 1

Section 37 T-Documents

Exhibit 2

The Secretary’s Statement of Facts, Issues and Contentions with four attachments

Exhibit 3

Federal Circuit Court of Australia Initiating Application dated 8 June 2016

Exhibit 4

Federal Circuit Court of Australia Orders dated 10 July 2019

Exhibit 5

Affidavit of Other Party II dated 11 September 2019

Exhibit 6

Submissions on behalf of Other Party II to the Federal Circuit Court dated 11 September 2019

Exhibit 7

Affidavit of [redacted – the school chairman] dated 15 September 2019

Exhibit 8

Affidavit bundle provided by the Grandmother including:

·      [redacted – lawyer of Other Party II] dated 8 October 19;

·      [redacted – assumed friend of Other Party II]
dated 19 July 2019;

·      [redacted – assumed friend of Other Party II]
dated 18 July 2019;

·      [redacted -  assumed family member of Other Party II] dated 22 July 19

Exhibit 9

Affidavit of the Applicant dated 7 July 2019

Exhibit 10

Child Inclusive Conference Memorandum dated 8 July 2019

Exhibit 11

Affidavit of the Applicant dated 3 October 2019

Exhibit 12

Submission on behalf of the Applicant to the Federal Circuit Court of Australia dated 4 October 2019

Exhibit 13

Affidavit of [redacted – the partner of Other Party II] dated 10 June 2019

Exhibit 14

Confirmation of legal appointment with Macrossan and Amiet dated 18 July 2019

Exhibit 15

Affidavit bundle of the Applicant including:

·      [redacted – the Applicant’s aunt] date unknown;

·      [redacted – the Applicant’s assumed grandfather] dated 15 October 2019;

·      Affidavit of the Applicant dated 21 October 2019

Exhibit 16

A collation of submissions to the Federal Court of Australia on various dates as provided by the Applicant

Exhibit 17

Email from [redacted – the Child Safety Officer] re date of full-time care with the Applicant dated 2 December 2019

Exhibit 18

Calendar days of care 14 March 2018 to 31 October 2018 provided by Other Party II on 22 January 2020

1. The Respondent advised the Tribunal the Grandmother had lodged a claim as having 100% care of the Child from 14 March 2018. This had the effect of cancelling the Mother’s access to FTB. The Respondent reminded the Tribunal exactness is not necessarily required in the calculation of percentage of care. Rather, a pattern of care is to be determined and this Tribunal has the benefit of hindsight in assessing that pattern of care. There is a further complexity in this case, that is, if the Grandmother, who is not a parent of the Child, is found to have less than 100% care of the Child, a decision has to be made as to whether she had legal responsibility for Child. In this event the Tribunal may wish to remit that matter back to the Respondent.[2]

   [2] Transcript dated 3 February 2020, pages 15-16.

   MOTHER’S EVIDENCE

2. The Mother opened her evidence by acknowledging, with the agreement of the Grandmother, the Child would sleepover at her house two nights per week. This arrangement followed the departure of the Father from the parenting arrangements previously agreed to by the FCCA in 2017. Such an arrangement may suggest a pattern of care had been established which would ascribe 28% care to the Grandmother.

3. The more complete explanation of this arrangement, as stated in evidence by the Mother, was the Child would stay at least three or four nights per week with the Mother, one night each week with the Mother’s Aunt (Aunt) and two nights each week with the Grandmother.[3] The Mother explained she had sought the assistance of the Grandmother in caring for the Child two nights per week as she was having personal issues at the time.[4] The Tribunal asked the Mother to explain what would happen on a week when the Child stayed with her for only three nights. Her response was that the other night would be spent either at the home of the Aunt or the Grandmother.[5] This explanation suggests a pattern of care where the Mother has 50% care and the Grandmother has 35% care of the Child.

   [3] Transcript dated 3 February 2020, page 24.

   [4] Transcript dated 3 February 2020, page 25.

   [5] Transcript dated 3 February 2020, page 26.

4. On 2 December 2019, a Child Safety Officer sent an email to the Tribunal.[6] This email describes a Centrelink support letter dated 26 October 2018 signed by the team leader, which stipulates the Child was in the Mother’s full-time care from 15 October 2018. The email confirms the letter and file had been reviewed by the writer who advises child safety sighted the Child in the full-time care of the Mother on 15 October 2018. The email goes on to say: ‘I am not aware of what care arrangements were in place prior to this date but can confirm that [the Mother] had advised departmental staff at the time that [the Child] had been in her full-time care prior to this date’. As the writer states, she is not aware of the care arrangements prior to 15 October 2018. This email only serves to confirm the arrangements after that date.

   [6] Exhibit 17, email from Child Safety Officer dated 2 December 2019.

5. The Mother signed an affidavit dated 3 October 2019, which disputes the allegations made by the Grandmother in relation to the care arrangements in place for the Child. The affidavit states the Mother has always been sole carer of the Child since she was born. The affidavit acknowledges an agreement was reached in 2017 for the Grandmother to spend time with the Child however the Child continued to live in the care of the Mother.[7]

   [7] Exhibit 11, affidavit of the Applicant dated 3 October 2019, page 2.

6. Importantly, the affidavit acknowledges the Mother sought assistance from the Grandmother in 2018: ‘at a time when I was struggling emotionally and mentally to provide some care for [the Child]’.[8] This is consistent with the evidence provided by the Grandmother at the Hearing. The affidavit goes on to say: ‘I absolutely deny that the grandmother had [the Child] in her care from April 2018 to September 2018.’[9]

   [8] Exhibit 11, affidavit of the Applicant dated 3 October 2019, page 2.

   [9] Exhibit 11, affidavit of the Applicant dated 3 October 2019, page 2.

7. Exhibit 11 describes several pages of allegations made against a person identified as ‘Poppy Eric’, who the Tribunal understands to be the partner of the Grandmother (Partner). The Partner signed an affidavit dated 10 June 2019, which completely denies the serious allegations made against him by the Mother.[10] In any event, the Tribunal explained to the Mother at the Hearing the only evidence that matters for the purpose of this case is that which supports where the Child had overnight care during the Relevant Period. Character assassinations against other people do not assist in this case.[11]

   [10] Exhibit 13, affidavit [redacted – Other Party II’s partner] dated 10 June 2019.

   [11] Transcript dated 3 February 2020, page 11.

8. The Mother stated in evidence an agreement was reached whereby the Child would sleepover two nights a week with the Grandmother at her house. The Mother also acknowledged there were other ad hoc occasions when the Child was sent to either the Aunt’s house or the Grandmother’s house for an overnight stay.[12] This evidence is then at odds with the statements contained in Exhibit 11, in that the Mother states categorically she absolutely denies the Child was in the care of the Grandmother during the period 14 March 2018 to 15 October 2018. It is clear to the Tribunal the Child was in the overnight care of the Grandmother at least two nights per week and on some occasions three nights per week during the Relevant Period.

   [12] Transcript dated 3 February 2020, page 24.

9. The Applicant made a submission to the FCCA on 4 October 2019, which continues to make allegations against the Grandmother’s Partner.[13] As mentioned above these allegations are not relevant to this decision. Consistent with her comments in Exhibit 11, the Mother acknowledges again in this submission the Child stayed overnight from time to time with the Grandmother.[14] She also confirms her position the Child was always in her care. However if that were the case, then the Child would not have stayed overnight on any regular basis with the Grandmother.

   [13] Exhibit 12, submissions on behalf of the Applicant dated 4 October 2019.

   [14] Exhibit 12, submissions on behalf of the Applicant dated 4 October 2019, page 2.

10. As part of her tendered evidence, on 4 October 2019 the Mother provided the Grandmother’s submissions of 11 September 2019 to the FCCA in support of her application for full-time care of the Child. The submission makes many assertions about the character of the Mother and Father and who should have full-time care of the Child. It also states: ‘The child lived with the [Grandmother] from on or about February 2018 to 28^th of September 2018, when the child was returned to the Mother following her Centrelink payments being affected.’[15] This statement is consistent with the position of the Grandmother and contradicts that of the Mother.

    [15] Exhibit 6, submissions of Other Party II to the FCCA dated 11 September 2019

11. A Child Inclusive Conference was held on 4 July 2019 and the findings were reported to the FCCA on 8 July 2019.[16] The contents of this document are largely about each side being derogatory to the other on a number of matters, who ultimately should have care of the Child and importantly what the Child thinks about the adults in her life. The findings of this Conference do not provide any evidence as to where the Child received overnight care during the Relevant Period and so the Tribunal places no weight on it for the purpose of this decision.

    [16] Exhibit 10, Child Inclusive Conference Memorandum dated 8 July 2019.

12. On 7 September 2018 a letter was issued from the Child’s school confirming the Child was then currently attending the school’s pre-prep program each Friday during school term.[17] The letter was signed by another party on behalf of the principal and stated the Child’s address as per their records. The Tribunal understands this to be the Grandmother’s address. The Mother took exception to the contents of this letter being relied on. She said the letter was not valid because it was not actually signed by the school principal rather on behalf of the school principal and in any event the address details were provided by the Grandmother.[18]

    [17] Exhibit 1, T-Documents, T7, page 96.

    [18] Transcript dated 3 February 2020, page 17.

13. On 4 September 2019 the principal of the school personally signed an open letter confirming the original letter had been signed during her absence. She went on to say she would not have signed the letter because the Child was not formally enrolled as a student of the school at the time.[19] The open letter noted the Grandmother had requested the letter for Centrelink purposes. These letters do not provide any evidence as to where the Child received overnight care during the Relevant Period and so the Tribunal places no weight on them for the purpose of this decision.

    [19] Exhibit 16, letter from [name redacted] dated 4 September 2019.

14. The Mother provided a bundle of affidavits to the Tribunal; one from herself dated 21 October 2019, one from [name redacted] dated 15 October 2019 and an undated statement from [name redacted].[20] The statement is of no relevance to this decision because it is undated and makes no comment as to where the Child received overnight care during the Relevant Period. The affidavit [name redacted] refers to the Mother and the Child moving into a property in October 2018 and residing there with him until the property was sold in September 2019. This is consistent with the Child returning to live with her Mother at the conclusion of the Relevant Period. However it makes no reference to where the Child had overnight care during the Relevant Period.

    [20] Exhibit 15, affidavit bundle of the Applicant.

15. The Mother’s affidavit as part of exhibit 15 appears to be a duplicate of affidavits dated 7 June 2019[21] and 3 October 2019[22] previously provided. The latter in particular has been commented on in this decision as supporting the assertion of the Grandmother that the Mother asked her to look after the Child around March 2018 as she was unable to cope with that time.

    [21] Exhibit 9, affidavit of Applicant dated 7 June 2019.

    [22] Exhibit 11, affidavit of Applicant dated 3 October 2019.

    THE GRANDMOTHER’S EVIDENCE

16. The Grandmother’s version of events on 14 March 2018, vis-à-vis the Child’s birthday, is very different to the evidence given by the Mother. The Grandmother states on the morning of the Child’s birthday, the Mother contacted her to request she look after the Child because the Mother was unable to do so in her then current circumstances.[23] The Grandmother’s expectation was the Child would be with her for a short time until the Mother was in a position to resume overnight care. The Grandmother recalls the Child was brought to her house by the Mother’s Aunt, which is consistent with the evidence of the Mother. However the Grandmother is certain the Aunt did not stay at her house for any amount of time that day, which is inconsistent with the evidence of the Mother. The Grandmother says she held a birthday party for the Child that day attended by her partner and herself. The Tribunal has asked the Grandmother to clarify the events of that day in post hearing submissions.

    [23] Transcript dated 3 February 2020, page 27.

1. The Grandmother continued providing overnight care for the Child, who was not collected as expected, and ultimately remained in her overnight care until late September 2018 when the Mother collected the Child.

2. The Grandmother provided the Tribunal with a calendar of care for the Relevant Period.[24] The calendar shows every night during the Relevant Period where the Child was in the overnight care of the Grandmother.

   [24] Exhibit 18, calendar of care dated 14 March 2018 to 15 October 2018.

3. Importantly, the Grandmother acknowledged at the Hearing the Child occasionally slept at the home of the Aunt. When asked how many times that had occurred during the Relevant Period, her response was: ‘probably every second week or so’.[25] The Grandmother was not certain of how many nights the Child stayed over at the Aunt’s home however this disclosure makes it clear the Child may not have been absolutely 100% in overnight care of the Grandmother during the Relevant Period. The Grandmother’s fortnightly comment above suggests a pattern of care may have existed. The Tribunal asked the Grandmother to revisit her calendar of care and attempt to identify the nights the Child did not stay overnight with her (whether in the care of the Aunt or anyone else).

   [25] Transcript dated 3 February 2020, page 28.

4. On 3 March 2020, in response to directions from the Tribunal, the Grandmother provided an updated calendar of care showing various dates the Child stayed overnight with the Aunt. The updated calendar of care reveals 11 possible dates to the best of the Grandmother’s recollection when the Child may have stayed with the Aunt. Some months are one night, some months are two nights and one month is no nights, suggesting the arrangement was ad hoc and not part of a regular arrangement.

5. The Grandmother provided affidavits from three individuals all dated in July 2019 together with a letter dated 8 October 2019 from her solicitor.[26] These four documents all make reference to the Child being in the full-time care of the Grandmother. However, in a similar manner to the affidavits and letters of support provided by the Mother, none of these four documents provide any evidence as to where the Child had overnight care. It may be these four parties in describing full-time care contemplated that to mean overnight care. However as set out above in regard to the Mother, full-time care does not necessarily mean overnight care.

   [26] Exhibit 8, affidavit bundle of Other Party II.

6. As evidence before AAT1, the Tribunal considered a letter dated 30 May 2015 from a doctor at a local Medical Centre (the Doctor). The Grandmother also provided the following affidavits for consideration amongst many other documents including text message exchanges with the Mother some of which contain extremely unsavoury content:[27]

   (a)Affidavit [name redacted] dated 26 June 2019;

   (b)Affidavit [name redacted] dated 29 June 2019;

   (c)Affidavit of the Grandmother dated 1 July 2019;

   (d)Affidavit of the Grandmother’s sister dated 1 July 2019.

   [27] Exhibit 1, T-Documents, T22, pages 162-203.

7. This Tribunal places little weight on the letter from the Doctor as it comments the Child was in the sole care of the Grandmother without actually identifying whether that meant she was in the overnight care of the Grandmother. The Mother took exception to the weight placed on this letter in the AAT1 decision and the Tribunal requested her to obtain a further statement from the Medical Centre as to which address they recorded for the Child during the Relevant Period. The Mother did not produce to the Tribunal post-hearing any further statement from the Medical Centre regarding the address for the Child as set out at item 1 c) of the directions dated 3 March 2020.

8. The affidavit at paragraph 37(a) states: ‘I had evening meals with them all; I have read stories to [the Child] at bedtime’. The reference to stories at bedtime clearly points to the Child being in the overnight care of the Grandmother.[28] The affidavit of 37(b) states: ‘… I would often drop [the Child] back at [the Grandmother’s] in time for dinner and bed. [The Child] had her own room and I would often stay until [the Child] had gone to bed’.[29] This is also a clear reference to the Child being in the overnight care of the Grandmother

   [28] Exhibit 1, T-Documents, T22, page 164.

   [29] Exhibit 1, T-Documents, T22, page 165.

9. The affidavits of the Grandmother and her sister both make reference to the Grandmother having sole care of the Child without specifically making reference to where she received overnight care and so, in accordance with Tribunal’s assessment of other such affidavits and statements, no weight is placed on these.

   EVIDENCE POST-HEARING

10. As mentioned above, both the Mother and the Grandmother objected to each other’s evidence and the weight placed upon it in previous reviews. On 3 March 2020 the Tribunal made directions requiring the Applicant to prepare a calendar of care covering the Relevant Period and to be filed with the Tribunal and served on the Respondent. Those directions also provided the Applicant with an opportunity to provide fresh affidavits setting out the events that occurred on 14 March 2018 and where the Child had overnight care from then until 15 October 2018. Those directions also required an updated calendar of care from the Grandmother to reflect the nights the Child was not in her overnight care during the Relevant Period. It also provided her with an opportunity to submit fresh affidavits supporting her position in regard to the overnight care of the Child during the Relevant Period.

11. On 16 March 2020 the Grandmother provided an updated calendar of care to reflect the nights the Child may have been in the overnight care of the Mother’s Aunt. She also provided a copy of the letter from the Mother’s lawyer requesting the letter from the Child’s school principal dated 4 September 2019. The updated calendar of care has been taken into consideration in the discussion above.

12. On 18 March 2020 the Applicant submitted the following documentation to the Tribunal post-hearing as required by the directions:

    (a)Affidavit of the Mother dated 3 October 2019;

    (b)Affidavit of [name redacted] dated 15 October 2019;

    (c)FCCA Orders dated 26 July 2016, 5 September 2016 and 12 June 2019; and

    (d)FCCA submission dated 3 October 2019.

13. The Tribunal accepted these submissions even though they were received out of time as they were due on 16 March 2020. In any event, all of the above submissions had been previously provided to the Tribunal and to the extent they are relevant to this case they have been discussed above. None of them add any new information or any weight to the Mother’s case.

14. On 19 March 2020 the Mother made further submissions by email, which the Tribunal notes were late, however the attachments were unable to be viewed by the Tribunal. The Mother was requested to provide the attachments in a viewable format however nothing further was received prior to this decision.

    CONCLUSION

15. The Tribunal went to great lengths at the Hearing to explain to the Mother and the Grandmother the review of this decision turns on evidence to support where the Child had overnight care (emphasis added). Both parties provided numerous affidavits and statements from various sources in a bid to support their position. Those provided by the Mother only made reference to her having full-time care of the Child, without specifying where the Child had overnight care. Those provided by the Grandmother were not entirely supportive of her position for the same reason, however, some did provide contemporaneous evidence of where the Child stayed overnight, and that evidence supports the case for the Grandmother.

16. Ultimately, the Tribunal has been persuaded by the contemporaneous evidence provided by the Grandmother as to where the Child slept overnight during the Relevant Period. The 11 nights identified by the Grandmother as possibly when the Child stayed overnight with the Aunt is not suggestive of a change of pattern of care rather of a normal family arrangement where a child may stay overnight with a close relative. The Tribunal concludes the Child was 100% in the care of the Grandmother during the Relevant Period because the Grandmother provided contemporaneous evidence to support this.

    DECISION

17. The AAT1 decision that the Child was 100% in the care of the Grandmother during the period 14 March 2018 to 14 October 2018 is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

............................[SGD]....................................

Associate

Dated: 30 March 2020

Date of hearing:

3 February 2020

Applicant:

By telephone, self-represented

Solicitor for the Respondent:

Ms Donna Smith

Department of Human Services

Other Party II:

By telephone, self-represented