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

[2016] AATA 263

ZBHT and Secretary, Department of Social Services (Social services second review) [2016] AATA 263 (3 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3116
Re	ZBHT
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	GTYH
OTHER PARTY

REASONS FOR DECISION

Tribunal	Egon Fice, Senior Member
Date of Decision	3 March 2016
Date of Reasons	27 April 2016
Place	Melbourne

The decision under review dated 21 May 2015 is set aside and in substitution the Tribunal decides that between 26 March 2015 and 26 June 2015 the Applicant and the Other Party both had a care percentage of 50%.

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

Egon Fice, Senior Member

Catchwords

CHILD SUPPORT – family tax benefit – percentage of care – separated under one roof – financial care and physical care – whether actual levels of care different – decision set aside

Legislation

A New Tax System (Family Assistance) Act 1999

Cases
Polec v Staker & Anor [2011] FMCAfam 959

P v Child Support Registrar (2013) 138 ALD 563

REASONS FOR DECISION

Egon Fice, Senior Member

1. The Applicant and the Other Party are the parents of two children born in 2010 and 2011.  They separated on 25 March 2014, but continued to reside in the same house in Blackburn South until 27 June 2014, when the Applicant moved out.

2. Although the parties were still living under the same roof, in March 2014 the Other Party advised the Secretary (Centrelink) that she was a principal carer of the children.  Accordingly, between 26 March 2014 and 26 June 2014 the family tax benefit (FTB) was paid to the Other Party based on her having 100% of the care of the children.

3. On 23 May 2014 the Applicant lodged a claim with Centrelink seeking a re-allocation of payment of the FTB on the basis that he had 50% care of the children.  On 15 October 2014 a departmental officer determined that each of the parents had 50% care of the children during the period in question.  That determination was affirmed on reconsideration of the decision.  On 11 March 2015 an Authorised Review Officer (ARO) affirmed the reconsidered decision.

4. The Other Party then applied to the Social Security Appeals Tribunal (the SSAT as it then was and is now the Administrative Appeals Tribunal) seeking review of the ARO decision.  On 21 May 2015 the SSAT set aside the ARO decision and in substitution determined that the Other Party had 75% care of the children and the Applicant 25%.

5. The Applicant then lodged an application with the AAT on 24 June 2015 seeking review of the SSAT decision.

6. This matter came on for hearing before me on 3 March 2016.  I determined that the Applicant and the Other Party each had 50% care of their children.  Accordingly, I set aside the decision made by the former SSAT on 21 May 2015.  I provided oral reasons for my decision.  The Other Party requested written reasons.  These are those reasons.

7. There was no issue about whether the children of the Applicant and the Other Party were FTB children as that expression is defined in s. 22 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act). The only issue before me was whether the percentages of shared care allocated by the former SSAT were correct.

8. Section 59 of the Family Assistance Act deals with shared care percentages where an individual is a FTB child of more than one person who are not members of the same couple. Relevantly, it provides:

   (1)  An individual has a shared care percentage under this section for an FTB child of the individual if:

   (a)the Secretary has determined the individual’s percentage of care for the child during the care period; and

   (b)that percentage is at least 35% and not more than 65%.

   (2)  The individual’s shared care percentage for the FTB child is a relevant percentage specified in column 2 of the table.

   Shared care percentages

Item	Column 1 Individual’s percentage of care	Column 2 Shared care percentage
1	35% to less than 48%	25% plus 2% for each percentage point over 35%
2	48% to 52%	50%
3	more than 52% to 65%	51% plus 2% for each percentage point over 53%

1. While the Family Assistance Act provides some guidance when working out actual care and the extent of care of the child where the parents are not living together, there is no guidance where the parents remain under the one roof. Section 35J refers to the actual care of a child being worked out based on the number of nights the child was or would be in the care of the individual during the care period. It does not assist in this case.

2. Mr T Noonan who appeared on behalf of the Respondent, although making it clear that the Secretary adopted a neutral position in relation to the dispute between the parents, referred to Secretary’s Statement of Facts Contentions and in particular to decisions by Hughes FM in Polec v and Another [2011] FMCAfam 959 and Whitney J in P v Child Support Registrar [2013] FCA 1312. In those decisions, the authors set out some of the matters which might be relevant when considering the extent of care that a person provides to a child. Hughes FM suggested matters such as providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extra-curricular activities. In P, Whitney J cautioned that the matters listed in Polec were no more than a workable guide to assist decision-makers in determining the extent of care. Her Honour made it clear that Polec was not authority for the proposition that financial arrangements for meeting the child’s needs were paramount considerations.  Rather, that depended on the particular facts and circumstances of the case.

3. In my opinion, the extent of care provided by an individual to a child is a combination of day to day matters which involves physical and emotional care as well as being able to adequately provide for the child’s basic necessities.  That plainly involves an element of financial support.

4. In this case, for the entire period in question, the living arrangements for the parents and children were identical to those which existed prior to separation.  In those circumstances, it seems to me to be illogical to refer to one or the other parent as being the primary carer unless the evidence discloses a complete abdication of responsibility by one parent.  That was not the case in this matter.  In fact, the evidence before me indicates that the care provided by both parents did not significantly alter following their separation.

5. Plainly, the degree and nature of care provided by each parent was different.  The Applicant was engaged in full-time employment and was the principal income provider.  During the relevant period, the Other Party was not engaged in remunerative work.  She received some Centrelink payments.  The Applicant and the Other Party held a joint bank account which either was authorised to operate.  I had in evidence bank statements for the relevant period which disclose monies continually paid into the account as the Applicant testified occurred.  Although the Other Party claimed that the joint bank account had been run down and that she did not have access to money, the bank statements disclose that during the relevant period the Applicant continued to deposit significant sums into that account.  The Other Party agreed that the Applicant continued to meet the mortgage payments on their house.

6. As for the day to day physical care of the children, there can be little doubt that between Monday and Friday the Other Party, who was at home with the children, provided most of the care.  That included taking the children to swimming lessons and kindergarten as required.  However, that is not to say that the Applicant played no part in the physical and emotional care of the children.  In fact, at the hearing of this matter, the Applicant produced copies of his diaries for the relevant period.  The entries which he read out to me in the course of the hearing, without going into detail, clearly established that he had significant involvement with the children which included taking them on numerous outings. 

7. Furthermore, I had in evidence and affidavit made by Dr Phillip Parker, who was a tenant in an adjoining unit to the unit occupied by the Other Party and the Applicant.  Dr Parker’s evidence supported what the Applicant claimed about being involved in taking care of the children, and particularly taking them for outings on the weekends.

8. Given the evidence before me on the hearing of this matter, I am unable to distinguish between the level of care provided by each of the parents of the FTB children, although the nature of the care provided by each parent differed.  In fact, I respectfully agree with what the ARO said about separated parties living at the same address.  Unless there is evidence of significantly altered conduct regarding the care of the children in such circumstances, the only logical conclusion which can be drawn is that the care of the children was shared equally.

   CONCLUSION

9. I have found that the care provided to the FTB children in this case was shared equally between the Applicant and the Other Party.  In other words, they each had 50% of the care of the children.  It follows that I do not agree with the decision made by the former SSAT on 21 May 2015.  I set aside that decision and in substitution determine that between 26 March 2014 and 26 June 2014, the Applicant and the Other Party each had 50% care of their children.

18.     I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

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

Associate

Dated   27 April 2016

Date of hearing	3 March 2016
Applicant	By Telephone
Other Party	By Telephone
Advocate for the Respondent	Mr Tim Noonan
Solicitors for the Respondent	Department of Human Services