Wray and Secretary, Department of Social Services (Social services second review)
[2015] AATA 825
•27 October 2015
Wray and Secretary, Department of Social Services (Social services second review) [2015] AATA 825 (27 October 2015)
Division
General Division
File Number(s)
2015/2804
Re
Colleen Wray
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
David Harding
JOINED PARTY
DECISION
Tribunal Mr S. Webb
Date 27 October 2015 Place Canberra The decision under review is affirmed.
.................................[sgd].......................................
Mr S. Webb
Catchwords
SOCIAL SECURITY – Family Tax Benefit – change in pattern of care – assessment of percentage of care – change in percentage of care within percentage range - discretion to revoke previous care determination – determination revoked and new determination made to reflect actual care in a care period – threshold requirement for shared care percentage not met – decision affirmed.
Legislation
A New Tax System (Family Assistance) Act 1999 ss 25, 25A, 35A, 35B, 35J, 35P, 35Q, 59
REASONS FOR DECISION
Mr S. Webb
27 October 2015
Colleen Wray and David Harding are the separated parents of two children (the children). For reasons of privacy I will refer to the children as ‘A’ and ‘B’. Ms Wray claimed Family Tax Benefit (FTB) in respect of the children. Centrelink determined that her percentage of care for the children was less than the minimum 35 percent threshold required to qualify for FTB. This decision has been reviewed by an Authorised Review Officer and by the Social Security Appeals Tribunal at Ms Wray’s request. These processes have resulted in varying assessments of Ms Wray’s percentage of care for the children, all of which are below the 35 percent minimum threshold requirement. Ms Wray is unhappy with this result and she has applied for review.
Facts
From 4 April 2012, the percentage of care for the children was determined to be 21 percent for Ms Wray and 79 percent for Mr Harding (the previous determination).
On 24 February 2014, the following relevant consent orders were made by the Federal Circuit Court (the Court orders) –
…
2. That the Mother shall have the day to day care and control of the children when they are in her care and the Father at all other times.
3. That the children shall live with the Father.
4. The Mother shall spend time with the children as agreed between the parties but failing agreement as follows:
4.1 During the school term every alternate weekend commencing Friday 7 February 2014 from 3:20pm Friday (conclusion of school) to 9:20am Monday (commencement of school). The weekend time will recommence on the first weekend of each school term.
4.2 Each Wednesday from 3:20pm to 6:30pm (during the school term and recommencing the first Wednesday of school term). It is noted that the Mother will provide dinner to the children.
4.3 Half of each midterm school holiday period, the first half of each period unless agreed otherwise by the parties, commencing on the Friday, the last day school term and concluding 10:00am the Sunday closest to midpoint of the school holiday period.
4.4 For a period of two (2) weeks during the December/January school holiday period in two (2) separate blocks of seven (7) consecutive days as agreed between the parties but failing agreement in even numbered years commencing from 12 noon 31 December for a period of seven (7) days alternating accordingly and in odd numbered years from 12 noon 8 January for a period of seven (7) days alternating accordingly.
4.5 In even numbered years from 12 noon Christmas Eve to 12 noon Christmas Day.
4.6 In odd numbered years from 12 noon Christmas Day to 12 noon Boxing Day.
4.7 On the children’s brother’s birthday (…), the children’s birthdays, the Mother’s birthday (…) for a period of no less than three (3) hours (if falling at a time the children are not spending time with Mother).
4.8 At any other times as agreed between the parties.
5. If the children are not spending time with the Father he will also spend time with the children on the children’s birthdays and his birthday (…) for a period no less than three (3) hours as agreed between the parties.
…[1]
[1] T6 folios 203-204.
The terms of the Court orders were agreed by Ms Wray, Mr Harding and the Independent Children’s Lawyer on 4 February 2014.
The evidence of Ms Wray and Mr Harding is that the Court orders have been complied with. Their evidence is largely consistent in respect of the care arrangements for the children.
I accept their evidence and find that –
(a)the Court orders established a new pattern of care for the children that commenced when agreement was reached on 4 February 2014;
(b)there have been occasional variations in actual care for the children from time to time, as a result of illness or other temporary circumstances, but these occasional variations have been temporary and they have not changed the underlying pattern of care; and
(c)the pattern of care for the children established by the Court orders is presently ongoing.
On or about 25 March 2014, Centrelink decided that Ms Wray was not eligible for FTB in respect of the children as her level of care was less than the minimum threshold of 35 percent.[2]
[2] T11 folio 297 refers - I note that there is no documentation of the primary decision in the materials before the Tribunal. See also T12 folio 316.
On 26 March 2014 Ms Wray lodged a claim for family assistance in which she stated that under the Court orders she had care of the children for 37 percent of the time.[3]
[3] T5 folios 164 and 172.
On 26 June 2014, Ms Wray lodged a ‘Details of your child’s care arrangements’ form[4] in which she stated that the Court orders were being followed.[5]
[4] T6 folios 186 to 198.
[5] T6 folios 194 and 196.
On 10 December 2014, an Authorised Review Officer affirmed the decision that Ms Wray was not eligible for FTB in respect of the children.[6]
[6] T11.
On 7 May 2015, the decision was affirmed by the SSAT.[7]
[7] T2.
Issues
Eligibility for FTB is to be determined under the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act). In order to qualify for FTB in respect of a child, the child must be an FTB child of the person (s 22) and the person must have a percentage of care of the child of 35 percent or more during a care period (s 25). If the person’s percentage of care of a child is between 14 percent and 35 percent during a care period, the child is taken to be a ‘regular care child’ of the person during that period (s 25A).
Thus, in order to determine Ms Wray’s eligibility for FTB in respect of the children, it is necessary to assess her percentage of care of the children under the pattern of care established by the Court orders for the care period commencing on the date the terms of the Court orders were agreed – 4 February 2014.
Percentage of care
Ms Wray says that, under the Court orders, her percentage of care of the children is 37 percent. She maintains that the calculations of previous decision makers are wrong. In her submission, she has care of the children for four days every second weekend during school terms under Court order 4.1 and she has care of the children for ten days during school midterm holidays under order 4.3. She relies on the explanatory notes to the ‘Details of your child’s care arrangements’ form,[8] particularly -
Please note: For the purposes of Family Tax Benefit, a person with the overnight care of a child is generally regarded as having had care of the child for that day.
[8] See notations at T1 folio 10 and Exhibit 1 page 4.
In Ms Wray’s submission, any ambiguity in the explanatory notes, or in the information she was given by Centrelink, or in the legislation should be construed in a manner that is favourable to her as the legislation establishing the FTB scheme is beneficial and it should be interpreted and applied accordingly.
That may be so, but I am satisfied that Ms Wray’s calculations are not correct.
Under s 35B(3) of the Family Assistance Act, the percentage of care for a child ‘must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period’. The ‘actual care’ of a child that a person has had (or will have) during a care period ‘may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period’ (s 35J(1)). Where the number of nights does not reflect the amount of a person’s actual care of a child, the number of hours of actual care may be adopted and other relevant factors may be taken into account.
Having regard to the Court orders, it is clear that school term dates must be established in order to properly assess the true percentage of care each parent has of the children.
The NSW school term dates for 2014 and 2015 are set out in the SSAT decision at T2 folio 16. These dates were not challenged and I will adopt them for present purposes.
In order to address Ms Wray’s submissions, I will assess her percentage of care of the children for the year commencing on 4 February 2014 on the basis of nights as well as on the basis of hours. For ease, I will address each Court order specifying Ms Wray’s care of the children – orders 4.1 to 4.8.
Court order 4.1
Order 4.1 provides that Ms Wray has care of the children - During the school term every alternate weekend commencing Friday 7 February 2014 from 3:20pm Friday (conclusion of school) to 9:20am Monday (commencement of school). The weekend time will recommence on the first weekend of each school term.
Ms Wray’s calculation proceeds on the basis that she has care of the children for four days on each second weekend during school terms.[9] She told me that this is because each night counts as a full day, and the children’s attendance at school on the Friday and the Monday should be included. These propositions are not correct.
[9] Exhibit 1, page 1.
The order is quite clear – Ms Wray has care of the children for three nights (Friday, Saturday and Sunday) every second week end during school terms. Her argument that the children are taken to be in her care for a full day on Friday because they are in her care on Friday night would apply equally to Mr Harding in respect of Monday and Monday night, when the children are in his care. Considering the school term dates, she has care of the children on 21 weekends. This means that during the care period of one year commencing on 4 February 2014, she had care of the children for 63 nights under order 4.1.
In respect of hours of care, she would have care of the children for 8 hours 40 minutes (from 3:20pm to midnight) on Friday, 24 hours on Saturday and Sunday, and 9 hours 20 minutes (from midnight to 9:20am) on Monday. The order is specific in terms of the children coming into her care at the conclusion of school on Friday and leaving her care at the commencement of school on Monday. Thus, adding these hours together, Ms Wray has 66 hours of care of the children every second weekend during school terms. Considering the school term dates, she has care of the children on 21 weekends. It follows that during the care period that commenced on 4 February 2014 the total hours of her care of the children under order 4.1 equates to 1,386 hours.
I do not accept Ms Wray’s argument that the children should be taken to be in her care while they are attending school on Friday and Monday. This is not consistent with the Court order. The evidence of Mr Kerr, the school principal, is that Mr Harding is the contact person for the children during school hours.[10] Even if Ms Wray’s assertion was accepted, it would apply equally to Mr Harding, such that he would be taken to have care of the children during school on Monday.
[10] Exhibit 4.
In any event, taking Ms Wray’s assertion at its highest, even if she was to be found to have care of the children during school hours on the Friday and Monday of every second weekend, it would increase the total hours of her care of the children by 12 hours to 78 hours every second weekend, producing a total of 1,638 hours over a full year. As will appear, an increase of this magnitude would not change the overall result.
Court order 4.2
Order 4.2 provides that Ms Wray is to have care of the children - Each Wednesday from 3:20pm to 6:30pm (during the school term and recommencing the first Wednesday of school term). It is noted that the Mother will provide dinner to the children.
Ms Wray does not dispute the SSAT calculation of 129.97 hours under this order.
Under the nights of care method, this order would provide a nil result – the children are in Mr Harding’s care over Wednesday nights during school terms.
Ms Wray’s actual care of the children under this order equates to 3 hours 20 minutes (3.33 hours) every Wednesday during school terms. As there are 41 Wednesdays of this kind in the care period of one year commencing on 4 February 2014, it follows that she would have care of the children for 136.53 hours under this order.
Court order 4.3
Order 4.3 provides that Ms Wray has care of the children for - Half of each midterm school holiday period, the first half of each period unless agreed otherwise by the parties, commencing on the Friday, the last day school term and concluding 10:00am the Sunday closest to midpoint of the school holiday period.
Ms Wray asserts that this means that she has care of the children for 10 nights during each midterm school holiday, from the Friday on which school finishes to the Sunday mid-point.
This is not correct. Under the nights of care method, she would have care of the children for nine nights in each midterm school holiday – Mr Harding would have care of the children on the mid-point Sunday night.
As there are three midterm school holidays in the care period of one year commencing on 4 February 2014, this means that Ms Wray had care of the children for 27 nights under this order.
The actual hours of Ms Wray’s care of the children under this order are calculated as follows: 8 hours 40 minutes (from 3:20pm at the conclusion of school) on the Friday; eight full days from Saturday to Saturday inclusive; and 10 hours (from midnight to 10:00am) on the mid-point Sunday. This equates to 210.66 hours for each midterm school holiday and a total of 631.98 hours over the full year care period commencing on 4 February 2014.
If I accepted Ms Wray’s argument about her care of the children during school hours on the Friday, which I do not, this would add six hours to the quantum of hours for each midterm school holiday, or a total of 18 hours over the course of a year. An increase of this magnitude would not change the overall result.
Court order 4.4
Order 4.4 provides that Ms Wray has care of the children - For a period of two (2) weeks during the December/January school holiday period in two (2) separate blocks of seven (7) consecutive days as agreed between the parties but failing agreement in even numbered years commencing from 12 noon 31 December for a period of seven (7) days alternating accordingly and in odd numbered years from 12 noon 8 January for a period of seven (7) days alternating accordingly.
There is no dispute about the calculation of care under this order.
It is quite clear that the order provides for her care of the children over 14 nights.
This translates to 14 full days of care in terms of hours – a total of 336 hours.
Court orders 4.5 and 4.6
Orders 4.5 and 4.6 provide for Ms Wray to have care of the children - In even numbered years from 12 noon Christmas Eve to 12 noon Christmas Day and In odd numbered years from 12 noon Christmas Day to 12 noon Boxing Day.
There is no dispute about the care calculations under this order.
It is quite clear that these orders provide for her to have care of the children for one night or 24 hours each year.
Court order 4.7
Order 4.7 provides that Ms Wray has care of the children - On the children’s brother’s birthday (…), the children’s birthdays, the Mother’s birthday (…) for a period of no less than three (3) hours (if falling at a time the children are not spending time with Mother).
There is no dispute about the calculation of care under this order.
It is quite clear that the order does not provide for any nights of care. As to the actual hours of care under the order, Ms Wray would have actual care of the children for a maximum of 12 hours in a year if each of the birthdays are not on days when she had care of the children under another order.
Court order 4.8
Order 4.8 provides that Ms Wray might have care of the children - At any other times as agreed between the parties.
The present evidence does not establish that other care times have been agreed upon by Ms Wray and Mr Harding. I note, however, reference to Ms Wray having care of the children by agreement, for three hours on Mother’s Day. This was not raised or pressed at hearing. For this reason Ms Wray has no nights or hours of care of the children from 4 February 2014 under this order. Even if an additional three hours care was included, as suggested by the SSAT, it would not alter the result.
Assessment of care percentage
In view of the foregoing and in respect of the care period that commenced on 4 February 2014, with reference to a 12 month period, I am reasonably satisfied that Ms Wray had care of the children for 105 nights (63 (order 4.1) + 27 (order 4.3) + 14 (order 4.4) + 1 (orders 4.5 and 4.6)). This equates to a 28.77 percentage of care which is to be rounded down to the nearest whole number (28 percent) under s 35M(b) of the Family Assistance Act.
If the hours of care are assessed over the same period, I am satisfied that Ms Wray had care of the children for a total of 2,526 hours (1,386 (order 4.1) + 137 (order 4.2) + 632 (order 4.3) + 336 (order 4.4) + 24 (orders 4.5 and 4.6) + 12 (order 4.7)). This equates to a percentage of care for Ms Wray of 28.84 percent, rounded down to 28 percent.
If extra hours are included for time spent at school on Mondays and Fridays, as Ms Wray contends, the total amount of hours would increase to 2,796 hours. This would equate to a care percentage for Ms Wray of 31.92 percent, rounded down to 31 percent.
As can be seen, there is no difference in the result using the nights of care or the hours of care method. For this reason, and as there are no other factors that bear upon the calculation or assessment of Ms Wray’s percentage of care, such as financial considerations for example, I conclude that her percentage of care in respect of the children is 28 percent, within the 14 to 35 percentage range under s 35P(2).
This means that, under s 25A each child is taken to be a ‘regular care child’ of Ms Wray’s during the care period, but not an ‘FTB child’ under s 25 and s 22(7).
It follows that Ms Wray is not eligible for FTB in respect of the children.
I note that the hours of care increase under the method for which Ms Wray contends, but this cannot be accepted, and it does not reach the minimum threshold requirement of 35 percent in any event.
In conclusion, this means that the decision under review will be affirmed.
Determination
Prior to 4 February 2014, Ms Wray determined percentage of care of the children was 21 percent. I have found that her percentage of care in the care period that commenced on 4 February 2014 and presently is 28 percent.
The change in the arrangement of care of the children as of 4 February 2014 did not result in a change to Ms Wray’s percentage of care sufficient to place it outside the 14 to 35 percentage range under s 35P(2)(b).
The preconditioning requirements of s 35Q(1) are satisfied.
This means that the discretion to revoke the previously existing determination of care percentages for Ms Wray and Mr Harding under s 35Q is enlivened but revocation is not required under s 35P.
Ms Wray submitted that it would be desirable, from her point of view, for the previous determination to be revoked and a new determination made to accurately reflect her actual care of the children.
Mr Harding and the Secretary were neutral on this issue.
I accept Ms Wray’s submission on this point. There may be unforeseen consequential effects for her if the existing determination remains in place and there may be some benefit to her (although I am not sure what form this may take) if a new determination is made setting out her actual care percentage of the children.
I am satisfied that it is appropriate to exercise the discretion conferred by s 35Q(1) in the circumstances and I revoke the previous determination under which Ms Wray had 21 percent care of the children and Mr Harding had 79 percent care of the children. Instead, I determine under s 35B(2) that Ms Wray has 28 percent care of the children and Mr Harding has 72 percent care of the children. The change of care day for the purposes of s 35Q(2) is 4 February 2014.
This change does not mean that Ms Wray is eligible for FTB in respect of the children, or that either of the children is an ‘FTB child’ of hers for the purposes of s 22 of the Family Assistance Act.
Decision
The decision under review is affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb ..................................[sgd]......................................
Associate
Dated 27 October 2015
Date(s) of hearing 21 October 2015 Applicant In person Solicitors for the Respondent Department of Human Services Other Party In person
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