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

ZYWS and Secretary, Department of Social Services (Social services second review) [2019] AATA 396 (12 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1296
Re:ZYWS
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndGRPH
OTHER PARTY

AndMJHW
OTHER PARTY

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:12 March 2019
Place:Brisbane

I affirm the decision under review.
...........................[SGD].........................................
Deputy President Dr P McDermott RFD
Catchwords
SOCIAL SECURITY – whether applicant entitled to Family Tax Benefit for the period of 1 April 2016 to 1 October 2016 – whether the applicant was legally responsible for the child
Legislation
A New Tax System (Family Assistance) Act 1999
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 March 2019
INTRODUCTION

This application relates to the care of a child who will not be identified for the purposes of this decision. The relationship of the parties to the child in these proceedings is as follows:
(a)ZYWS (“the applicant”) is the paternal grandmother of the child.
(b)GRPH is the father of the child.
(c)MJHW is the mother of the child.
GRPH has not been involved in the review process. He did not attend the hearing. I am satisfied that he received adequate notification of the hearing.
BACKGROUND
On 3 February 2017, the applicant advised Centrelink that she had 100 per cent care of the child from 1 April 2016.[1]
[1] T16, p.101.
On the information provided to the Tribunal, it seems that Centrelink made two identical decisions regarding the care of the child. It appears that on 16 May 2017 and 18 May 2017, Centrelink determined that the applicant had 100 per cent of the child from 4 October 2016, and not an earlier date.
On 12 June 2017, the applicant requested a review of the decisions.[2]
[2] T16, p.112.
On 21 June 2017, an Authorised Review Officer (“ARO”) affirmed the decisions and determined that the applicant had 100 per cent of the child from 4 October 2016, and not an earlier date.[3] MJHW was found to have 100 per cent of the child from 1 April 2016 to 4 October 2016.[4]
[3] T23.
[4] T10.
On 6 July 2017, the applicant requested a review of the decision of ARO.
On 21 July 2017, an ARO set aside the decisions determining that the applicant had 100 per cent care of the child from 1 April 2016.[5]
[5] T11.
MJHW then applied for a review of the decision of the ARO dated 21 July 2017.
On 15 February 2018, the Social Services and Child Support Division (“SSCSD”) set aside the decisions under review to instead decide that MJHW had 100 per cent care of the child between 1 April 2016 and 1 October 2016, and that the applicant had 100 per cent care of the child from 1 October 2016.[6]
[6] T2.
On 12 March 2018, the applicant applied for review of the decision of SSCSD.[7]
[7] T1.
I have to determine the percentage of care of the child from 1 April 2016 to 1 October 2016. There is no dispute regarding the care of the child from 1 October 2016.
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (“the Act”) provides that the qualifying criteria and provisions to calculate Family Tax Benefit (“FTB”) including in the case of shared care arrangements.
Section 22 provides:
22       When an individual is an FTB child of another individual
(1)      An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
(2)       An individual is an FTB child of the adult if:
(a)         the individual is aged under 16; and
(b)         the individual is in the adult’s care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
Legal responsibility for the individual
(5)The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; or
(b) under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)the individual is not in the care of anyone with the legal responsibility for the day to day care, welfare and development of the individual.
…
Percentage of care at least 35%
(7)If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
The term percentage of care is defined in section 3 of the Act:
percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.
Section 23 of the Act makes provision for where an FTB child is prevented from being in the care of a person who is eligible for FTB.
Section 25 of the Act provides:
25Effect of an individual’s percentage of care for a child being less than 35%
If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.
The Act sets out the requirements for the Secretary to determine the percentage of care in relation to a child not in the care of a person: see section 35A.
Section 35B sets out the requirements of the Secretary to determine the percentage of care in relation to a child when in the care of an adult.
35B Determination of percentage of care—child is in the adult’s care
Initial determination
(1) If:
(a) the Secretary is satisfied that there has been, or will be, a pattern of care for a child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of more than one individual; and
(b) one of those individuals (the adult), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and
(c) the adult is not a partner of at least one of the other individuals referred to in paragraph (a);
the Secretary must determine the adult’s percentage of care for the child during the care period.
Determination after revocation
(2) If:
(a) the Secretary revokes, under Subdivision E of this Division, a determination of an individual’s (the adult) percentage of care for a child that was made under section 35A or this section; and
(b) the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and
(c) the adult is not a partner of at least one of those other individuals;
the Secretary must determine the adult’s percentage of care for the child during the care period.
Percentage of care
(3) The percentage determined under subsection (1) or (2) 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.
(4) Despite subsection (3), if section 35C, 35D or 35G applies in relation to the adult, the Secretary must determine the adult’s percentage of care under subsection (1) or (2) in accordance with that section.
Section 35J of the Act provides that the actual care can be determined with reference to the number of nights a child is in the care of an adult:
35J Working out actual care, and extent of care, of a child
(1) The actual care of a child that an individual 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.
(2) The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one individual at the same time.
(4) This section does not limit section 35B, 35C, 35D or 35H.
Section 59 of the Act provides:
59Shared care percentages where individual is FTB child of more than one person who are not members of the same couple
(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 a 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 the 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%

(3) If the shared care percentages, specified in the table, of all of the individuals of whom the child is an FTB child add to less than 100%, then the Secretary may determine a different whole percentage for one or more of those individuals for the FTB child. Despite subsection (2), the individual’s shared care percentage for the child is the percentage so determined for that individual.

Shared care percentages
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%

Any new care determination cannot be made unless the existing care determination is revoked. The provisions relating to the revoking of an existing care determination are contained in sections 35P to 35S of the Act. The relevant sections provide:
35P     Determination must be revoked if there is a change to the individual’s shared care percentage etc.
(1) If:
(a) a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and
(b) if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and
(c) the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child; and
(d)      the Secretary is satisfied:
(i) that the individual’s shared care percentage for the child would change if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child; or
(ii) that, if the Secretary were to determine under that section another percentage to be the individual’s percentage of care for the child, the other percentage would not be in the same percentage range as the individual’s existing percentage of care;
the Secretary must revoke the determination.
Note: The Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) Each of the following is a percentage range:
(a) 0% to less than 14%;
(b) 14% to less than 35%;
(c) 48% to 52%;
(d) more than 65% to 86%;
(e) more than 86% to 100%.
(3) The revocation of the determination takes effect at the end of:
(a) if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or
(b) otherwise—the day before the change of care day for the individual.
35Q    Secretary may revoke a determination of an individual’s percentage of care
(1) If:
(a) a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and
(b) if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and
(c) the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child; and
(d) the Secretary is satisfied that, if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child, the other percentage would not be the same as the individual’s existing percentage of care for the child; and
(e) section 35P does not apply;
the Secretary may revoke the determination.
Note: If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) If the Secretary revokes the determination, the revocation takes effect at the end of:
(a) if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or
(b) otherwise—the day before the change of care day for the individual.
EVIDENCE
Letter from NH dated 13 March 2017
This letter states that during a phone conversation on 12 April 2016 with the applicant, it was reported that the child was living with her.[8]
[8] T6, p.61.
Applicant’s Statement
The applicant provided a statement to Centrelink[9] outlining that the child came to her house on the Easter Sunday intoxicated and that she could not send the child to her mother’s house in that state. The applicant encouraged the child to go back to her mother and talk but within hours the child rang and came back to the applicant’s house on Easter Monday. The child had expressed her dislike for attending boarding school and it was agreed with GRPH that the child could become a day student until she got into a different preferred school. The applicant stated that she tried to get the child into the different school but the school refused to deal with her as she was not the legal guardian of the child. Both of the child’s parents refused to allow the child to change schools.
[9] T7, p.64.
Applicant’s other statements
There is a brief statement outlining that the child ran away and stayed at a drug dealer’s house and A (the child’s aunty) found her and brought her back to the applicant’s house.[10] The child stayed with A for five weeks from Easter and went to her mother’s for a few days and then to Bali with her mother for a week.
[10] T7, p.69.
Statement of GRPH
There was a statement provided by GRPH on 15 June 2017[11] however there is some dispute as to whether he signed this statement himself. The statement outlines that the child has been living with the applicant since Easter Monday in 2016 and that he agreed to allow the child to be a day student at the boarding school. It also outlines that the child’s mother would not consent to her returning to another school. At the hearing, the other party challenged the validity of GRPH’s statement and stated that at the SSCSD hearing, the applicant had advised that she was unaware that GRPH had provided a statement.
[11] T8, p.71.
Handwritten letter of IW dated 14 June 2017
This letter provides that the child was under the applicant’s guardianship from 28 March 2016.
Statement of LS dated 20 January 2018
LS is the older brother of the child. The statement[12] outlines that the child lived with MJHW, their step-father and other siblings from April 2016 to October 2016. Following this the child left to stay with her father, GRPH until April 2017.
[12] ST1.
Statement of JS dated 4 October 2016
JS is the child’s older sister. The statement[13] outlines that the child lived with MJHW, their step-father and other siblings until the end of September 2016 (after their trip to Bali) as the child had come home early from Bali to live with her father following a disagreement with the mother while on holidays. The child then lived with the father until April 2017.
[13] ST2.
Letter of Dr Mark Spanner, general practitioner dated 1 December 2017
This letter outlines that the child was seen by Dr Spanner on multiple occasions during 2016 and his records indicate that the child was living at Burleigh Waters.[14]
[14] ST3, p.260.
Email from hospitality teacher to MJHW dated 10 April 2016
This email was sent to MJHW to arrange a phone interview to discuss the child’s progress in a subject at school.[15] MJHW replied on 12 April 2016 confirming that a phone interview would be suitable.
[15] ST3, p.264.
Emails from the Head of the Health and Physical Education Department at school to the child
These emails[16] are blurry so I cannot decipher the date of the second email: however, the first email is dated 16 August 2016. The email of 16 August 2016 requests that the child bring her video file with her to school next time. The second email discusses that same video file and again requests the child bring it to school so it can be graded by the teacher.
[16] ST3, p.265.
Email from school to MJHW regarding child’s career plan
Again, the email is blurry so I cannot decipher the exact date that it was sent: however, the body of the email discusses the child’s completed career plan in preparation for Term 3.[17]
[17] ST3, p.266.
Email from child’s English teacher to MJHW
On 17 June 2016, the English teacher emailed MJHW to discuss the child’s overall poor performance in the subject.[18]
[18] ST3, p.267.
Email from school teacher to child dated 31 May 2016
On 31 May 2016, a school teacher emailed the child to advise that she had two outstanding assignments for English which needed to be submitted.[19]
[19] ST3, p.268.
Email from hospitality teacher to MJHW dated 20 April 2016
On 20 April 2016, the hospitality teacher emailed MJHW to discuss re-scheduling the child’s interview, and if not possible, having a phone interview.[20] MJHW replied suggesting a phone interview.
[20] ST3, p.269.
Email exchanges between Head of Boarding School and MJHW
These emails are blurry so I cannot read the entirety of them: however, the emails discuss changing the child’s boarding school dates between the period of 17 August and 25 August 2016 as the child will be absent.[21]
[21] ST3, p.270.
School fees tax invoice – due 12 July 2016
This tax invoice is addressed to MJHW and requires tuition fees and a lost boarding school key to be paid.[22]
[22] ST3, p.277.
Email from Head of Senior School to MJHW regarding child’s absence dated 16 August 2016
The head of the senior school emailed MJHW thanking her for her advice regarding the child’s absence between 17 August 2016 and 25 August 2016.[23] The email reiterated that all assessment due during this time would still be expected to be completed by the child and that extensions were only granted upon medical grounds.
[23] ST3, p.272.
Email exchanges between MJHW and school reception regarding mother’s absence dated 30 August 2016
MJHW emailed the school reception about her going overseas and outlined that the child’s older sister will be looking after her so to contact her for any problems.[24]
[24] ST3, p.271.
Statement of BS dated 30 January 2018
This statement confirms that BS is the younger sister of the child and that the child has been living with her and their other siblings, along with their mother and step-father between April 2016 and October 2016.[25] BS confirms that the child went on their family holidays including an overseas trip to Bali in September 2016 and she returned home early from this holiday and went to live with her father, GRPH following an argument. The child returned to MJHW’s residence in April 2017.
[25] ST4.
Statements by applicant

The applicant outlines that the child was with her in March 2016 and that in April 2016 she contacted the school about fee information and had notified them that the child was living with her. The applicant outlines that MJHW’s communications with the school do not prove where the child was living; just that she was still attending that school.
Text messages
There are various text message exchanges that the applicant submitted into evidence. One message exchange says: “Tell f*t a*** not to call the school again they’ve been instructed not to talk to her” with a reply that says “smart one tell t (sic) school that my guardian can’t call the school”. [26]
[26] ST5.
Another message, which was allegedly sent on 17 April 2016 between the child and her mother is about changing from a boarding student to a day student.[27]
[27] ST8, p.304.
Text messages – MJHW
MJHW provided some text message exchanges between herself and the child. They cover different conversations within the relevant period.
Facebook posts
There are some screenshots of Facebook posts on 9 April 2016, 16 April 2016, 1 July 2016[28] that show the child was either with the applicant, GRPH or her aunty, AS for social gatherings.
[28] ST8, p.303.
There is also a screenshot of a Facebook post on 4 September 2016 of the child helping painting the applicant’s room.[29]
[29] ST8, p.312.
Centrelink file notes and ‘Unreasonable to Live at Home Application’
File note – 7 June 2016: AS called to report that the child had returned to live with her mother on Monday, 30 May 2016. The benefit of counselling between child and mother was reinforced.
Unreasonable to live at home application: On 23 May 2016, the child completed the unreasonable to live at home application stating that she started living with AS on 7 May 2016 and outlined that her guardians were AS and GRPH.
Robina Hospital Records
These records indicate the child attended Robina Hospital on 7 July and 12 August 2016. The records indicate that MJHW presented with the child on both occasions.
Applicant’s timeline and evidence
The applicant submits that she had the child from the end of March 2016 until May/June 2017. She submits there were “a few weeks and off days here and there with her dad. Plus a few weeks with her mum and a week in Bali with her mum. A few days here and there at [AS’s] and a block of 2-3 weeks at [AS’s]”.[30]
[30] Exhibit E.
The applicant remarks that she did not ask the child to live with her and that she never encouraged her not to go to school. She also remarks that the child has repeatedly told GRPH that if he helps the applicant then she will not speak to him again.[31]
[31] Exhibit E, p.6-3.
There is dispute as to whether GRPH signed his statement. The applicant outlines that she has a copy of GRPH’s electronic signature so she can add it to forms she sometimes fills in for him but on this occasion the electronic signature was not used, and GRPH read and signed the statement.[32]
[32] Exhibit E, p.6-3.
Facebook conversation between the applicant and the child
The scope of this conversation is not relevant to these proceedings apart from confirming that the child went to Bali with her mother, her step-father and other siblings.[33]
[33] Exhibit E, Annex 2.
Statement of TT dated 19 May 2018
TT is the mother of one of the child’s ex-friends. TT outlines that during the period of March 2016 to February 2017 (while they were friends), she had dropped and picked up the child on a few occasions from the applicant’s house so they could hang out.[34]
[34] Exhibit E, p.6-4.
Statement of DG dated 24 May 2018
DG provided a statement outlining that she would often drop her daughter off at the applicant’s house where her daughter would spend the night with the child.[35] She also outlined that on many occasions the child would spend the day at her house with her daughter.
[35] Exhibit E, p.8-6.
Statement of KM dated 8 June 2018
KM is a neighbour of the applicant. She outlines that she saw the child coming and going each day and the child and the applicant would go to the complex pool.[36] She also saw the child leave with her father and often on weekends the child had friends come over to stay.
[36] Exhibit E, p.10-7.
Child’s statement received 25 June 2018
The child provided a statement in which she stated that she lived with her mother and step-father until October 2016 when she went and lived with GRPH. She outlines that she was having a difficult time in 2016 and was missing school some days and spending time with AS, GRPH who lived with her grandma, ZYWS. At one point she outlines that she considered living with AS and attended Centrelink on that day but then decided not to.
In October 2016, the child moved in with her father and his ex-girlfriend for a few months. She outlines she stayed with her father for about 6 months until the end of March 2016 when she got her learner’s licence and put her mother’s address on it.
Statement of MJHW received 25 June 2018
MJHW provided a statement outlining that the child lived with her except between October 2016 and April 2017 when the child lived with GRPH. She outlines that in 2016 they had turbulent times as the child was resistant to home rules and reasonably strict parenting which compounded issues particularly with the child’s father’s family encouraging her to make “bad choices and advising her to go live with her father as there were no rues [sic] and she could do as she pleased”.
MJHW outlines that the child was going to an expensive school which she (and her husband) were paying for. MJHW outlines that they put her into boarding school for a term to help settle her in but she did not like it so they agreed she could go as a day student.
In April/May 2016, the child was spending time with AS and GRPH instead of attending school.
Statement of GH received 25 June 2018
GH is the partner of MJHW. GH outlines that the child was living with them until October 2016, then she went and lived with her father until April 2017. GH outlines various memories as a family together including their holiday to Bali in August however the child only went for one week as it was during the school term but the parents stayed for two weeks.
CONSIDERATION
In determining this application to affirm the decision of the SSCSD, I have done so for different reasons that were given by the SSCSD. I do not consider that the applicant is eligible under the Act to receive FTB for the child for the period of 1 April 2016 to 1 October 2016 (“the relevant period”).
I have concluded that in the relevant period the child was not an FTB child of the applicant.
As the child was 15 years of age at all times during the relevant period, the child would have been an FTB child of an adult provided that the child came within the definition of FTB child in s 22(2) of the Act: that definition requires that the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c) in section 22 of the Act.
At the hearing the applicant quite properly informed the Tribunal that she was not legally responsible for the child and that the father and mother of the child were the legal guardians. In her statement to Centrelink the applicant advised them that she had tried to get the child into a different school but the school refused to deal with her as she was not the legal guardian of the child. Under s 22(5)(a) of the Act, the circumstances surrounding legal responsibility for the care of the individual are that the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the child. I have concluded that during the relevant period the applicant did not have legal responsibility within the meaning of s 22(5)(a) of the Act.
The applicant does not have legal responsibility in the terms of the other paragraphs in s 22(5) of the Act which I consider do not have any application.
There is no evidence that the applicant satisfies s 22(5)(b) of the Act. There is no family law order, registered parenting plan or parenting plan in force in relation to the child which provides that the applicant is someone with whom the child is supposed to live or spend time.
There is no cogent evidence before me that the applicant satisfies s 22(5)(c) of the Act. The mother was not challenged on her testimony that during the relevant period she and her partner were responsible for the payment of fees for the boarding school and a tax invoice that stated that fees were due on 12 July 2016 was in evidence. During the relevant period the boarding school regularly communicated with the mother by email on 10 April 2016, 12 April 2016, 20 April 2016, 17 June 2016, 17 June 2016, 16 August 2016 and 30 August 2016. Hospital records dated 7 July 2016 and 12 August 2016 record the mother taking the child to the hospital. I regard this contemporaneous evidence as showing that the child was in the care of the mother during the relevant period. I appreciate that during the relevant period there were difficulties with the child attending the boarding school. I have considered the fact that during the relevant period the child wished to leave home and had on 23 June 2016 completed an unreasonable to live at home application: however, the child did not nominate the applicant as a guardian.
DECISION
I affirm the decision under review.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.............................[SGD]..............................
Associate
Dated: 12 March 2019

Date of hearing:
4 September 2018

Applicant:

Solicitors for the Respondent:

Other Party (GRPH):

Other Party (MJHW):

In person

Department of Human Services

Nil appearance

In person

[2019] AATA 396

12 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Standing

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%