Conry and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 39 (21 January 2010)

Last Updated: 21 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 39

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. 2009/2837

GENERL ADMINISTRATIVE DIVISION		)
	Re		Patrick Conry

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

And Pamela Conry
Other Party

DECISION

Tribunal

Ms N Isenberg, Senior Member

Date 21 January 2010

Place Newcastle

Decision

The decision under review is set aside and in substitution therefor the Tribunal decides that the FTB payable to Mr and Mrs Conry during the period 21 January 2008 to 17 April 2008 is to be calculated as follows: 11 January 2008 to 18 January 2008: Mr Conry 100 per cent. 19 January 2008 to 20 January: Mrs Conry 100 per cent. 21 January to 29 February 2008: Mrs Conry 100 per cent. 1 March to 17 April 2008: 50 per cent Mr Conry and 50 per cent Mrs Conry.

.................[sgd]................
Ms N Isenberg

Senior Member

CATCHWORDS

SOCIAL SECURITY - Family Tax Benefit – Shared care arrangement – Contravention of family law order – Reasonable steps to regain care of FTB child

LEGISLATION

A New Tax System (Family Assistance) Act 1999, S 21, S 22, S 23

Family Law Act 1975, S 70NAE, S 70NFB, S 70NFE

CASELAW

Hayward and Secretary to the Department of Family and Community Services [2002] AATA 1241; (2002) 71 ALD 370

REASONS FOR DECISION

January 2010

Ms N Isenberg, Senior Member

1. Relations between Mr and Mrs Conry can only be described as acrimonious. They have made multiple appearances in the Family Court and the Federal Magistrates Court in respect of their marital breakdown; in particular about issues as to the ongoing care of their children, M and C.
2. The present matter is an application by Mr Conry for review of a decision made by the Social Security Appeals Tribunal (SSAT) on 28 May 2008 regarding his Family Tax Benefit (FTB) entitlement for his children M and C. The issue before me was to determine the correct percentage of FTB that should be paid to Mr and Mrs Conry respectively during the period 11 January 2008 to 17 April 2008.

BACKGROUND

3. Family Court orders made by consent on 7 March 2006 provided that M and C were to reside with their parents in a shared care arrangement on alternating weeks. Mr and Mrs Conry were each paid 50 per cent FTB on the basis that they shared equally the care of their children.
4. On 11 January 2008, Mr Conry claimed that Mrs Conry did not deliver the children to him in accordance with the shared care arrangement. On 21 January 2008, he filed a contravention application in the Federal Magistrates Court alleging that on 11 January 2008 and on two prior occasions in 2007 without reasonable excuse, Mrs Conry did not deliver the children to him in accordance with the existing Family Court orders.
5. On 24 January 2008, Mr Conry wrote a letter to confirm that at a meeting on 21 January 2008 he consented to flexible contact with the children up till the end of February due to M’s stress and anxiety over the level of family conflict. He later signed a hand written amendment to the letter indicating that he agreed to M and C residing at their mother’s home for five weeks and for them to see him when they felt able to do so.
6. The children subsequently stayed in the care of Mrs Conry until new orders came into force on 28 April 2008. The orders provided that they spend three nights per fortnight with Mr Conry.
7. Mrs Conry claimed arrears of FTB based on her having 100 per cent care of the children from 12 January 2008 to 27 April 2008. A decision was made by the Family Assistance Office to maintain a shared care percentage of 50 per cent for the period 11 January 2008 to 17 April 2008, and Mrs Conry’s claim for arrears of FTB in respect of this period was denied.
8. Further, on the basis of the contravention application filed by Mr Conry on 21 January 2008, the Family Assistance Office considered that Mr Conry was taking legal action to recover the care of his children during the period under review, and that the children had been withheld from his care contrary to Court orders. It was determined that Mr Conry was therefore entitled to receive FTB based on 50 per cent care of the children as provided by the orders for a period of 14 weeks from 11 January 2008 to 17 April 2008.
9. Mrs Conry requested a review of the decision to refuse arrears for the 14-week period from 21 January 2008 to 17 April 2008. That decision was affirmed on internal review by an Authorised Review Officer. However, on further appeal by Mrs Conry, the SSAT set aside that decision on 28 May 2009, and substituted a new decision that Mrs Conry should be paid arrears of FTB based on her having 100 per cent care of the children during the period 21 January 2008 to 17 April 2008.
10. In February 2009 the contravention application filed by Mr Conry was heard by the Family Court and was dismissed on the basis that he had not satisfied the burden of proof required.

LEGISLATION

11. Section 21 of the A New Tax System (Family Assistance) Act 1999 (the Act) outlines the eligibility for FTB for individuals who have at least one “FTB child”. Section 22 of the Act describes a number of circumstances where a child is considered an FTB child. Relevantly, under Section 21 and 22(3), FTB is payable to both Mr and Mrs Conry as there is a family law order in relation to the children, and under that order, they were to live or spend time with both Mr and Mrs Conry.
12. Section 23 operates in shared care situations to enable continuation of payment of FTB to a parent, for a period up to 14 weeks, where children are prevented from being in the care of that parent without the parent’s consent, and the parent takes reasonable steps to regain care of the children.
13. The Family Assistance Guide (version 1.125 – released 4 January 2010), a policy guide for assistance in interpreting the provisions in the Act, provides at 2.1.1.70 that reasonable steps may include notifying the police that the child has been taken from care without consent, or taking out a recovery order through the court.

THE HEARING

14. At the hearing, Mr and Mrs Conry both gave evidence, as did Mrs Conry’s parents, Mr and Mrs Ferguson. I had before me the documents (T-documents) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and a number of documents provided prior to the hearing.

CONSIDERATION OF THE EVIDENCE

15. Mr Conry referred to the Family Court orders of 7 March 2006 which were in effect at the relevant time. In particular, he noted that he and Mrs Conry were to facilitate the changeover of the children’s residence and to deliver the children to the other parent. He further noted that the orders imposed an obligation to do all reasonable things to give effect to the orders and not to do anything (without lawful excuse) which would be in breach of the orders.

The period 11 January 2008 to 18 January 2008

16. Mr Conry referred to the extensive extract from his diary notes for the period between 11 January 2008 and 18 April 2008. Mrs Conry also relied on diary notes, but these were much less comprehensive than those of Mr Conry.
17. Mr Conry noted that on 11 January 2008 Mrs Conry did not deliver the children at 5.00 pm in accordance with her obligations. This was not disputed by Mrs Conry. Had the children been delivered in accordance with the orders, they would have been wholly in his care for the whole of the week commencing 11 January 2008 and then with Mrs Conry wholly from 18 January 2008.
18. From Mr Conry’s notes it appears there were a number of telephone calls on 11 January 2010 from each of the children and also from Mrs Conry. Importantly, according to the notes, Mrs Conry telephoned Mr Conry at 5.40 pm to tell him that the children did not want to come. He recorded that he told her that she was required to deliver the children.
19. Mrs Conry gave evidence the children simply did not want to go to their father’s on 11 January 2008, and they were especially concerned as to the arrangements for the upcoming new school year. She also said that in fact she took the children to Mr Conry’s home sometime between 5.30 and 6.00.pm, but he was not there, or she thought he just did not answer the door. Mrs Conry could not recall if she tried again to take the children the following day.
20. Mr Conry’s notes for the following day record that C told him that they had come at about 6.00 pm the previous day. He was not at home. I accept that an attempt was made to deliver the children at about 6.00 pm on 11 January 2008, but that that was not in accordance with the orders.
21. From Mr Conry’s notes it appears that there continued to be telephone conversations over the next few days, but the children were still not delivered to him in accordance with the orders, and despite his requests that they be brought to him.
22. Mr Conry said that in December 2007 he had instructed his solicitor in relation to two previous occasions when the children had not been delivered to him in accordance with the orders. At that time, Mrs Conry was already on a good behaviour bond for earlier breaches of the orders. When the children were again not brought to him on 11 January 2008, that occurrence was added into the contravention application which was filed and served on 21 January 2008.
23. I find that Mr Conry is entitled to FTB during the period 11 January 2008 to 18 January 2008, in that the children were prevented from being in Mr Conry’s care without his consent, and that in demanding their attendance and in instructing his solicitor to bring the contravention application in respect of 11 January 2008, he had taken reasonable steps to regain care of the children in accordance with section 23.

The period 19 January 2008 to 20 January 2008

24. From 19 January 2008 the children were with Mrs Conry in accordance with the orders. Practically though, she had 100 per cent care of the children on those days. I therefore find that Mrs Conry is entitled to FTB for her 100 percent care of the children during this period.

The period 21 January 2008 to 29 February 2008

25. Both Mr and Mrs Conry agree that during that time M, in particular, was seriously distressed. Mr Conry’s evidence, which I accept, was that he wanted to prevent further distress to M and for that reason, he agreed to forego his rights for a period of five weeks from 21 January 2008 until 29 February 2008, and agreed to flexible care arrangements for that period so that M and C could see him ‘when they feel able to do so’. Appropriately, given the history, that agreement was documented by way of the letter of 24 January. I find that Mrs Conry is entitled to FTB for her 100 per cent care of the children during this period.

The period 1 March 2008 to 17 April 2008

26. The SSAT formed the view that by agreeing to forego his rights for five weeks Mr Conry had a change of intention about recovery of his care of the children. It therefore found that Mr Conry did not take reasonable steps to regain care of the children from 1 March, and that he was therefore not entitled to FTB under section 23 of the Act. I do not agree, for the reasons that follow.
27. On 17 February, according to Mr Conry’s notes, he told M that shared care arrangement would resume on 29 February. That evening, according to the notes, Mr Conry had telephone discussions with Mrs Conry in which she told Mr Conry that the children did not want to live with him. Mr Conry referred to the Family Court orders and told Mrs Conry that she kept breaching the orders. The children were not delivered on 29 February as had been agreed in the letter of 24 January. Mrs Conry said they were refusing to go.
28. Ongoing telephone conversations between Mr Conry and the children and Mrs Conry were documented by Mr Conry throughout March and early April 2008. On one occasion the police were called. In early March Mr Conry complained to his solicitor on more than one occasion, after the children were delivered to him but almost immediately ran away and were apparently collected by pre-arrangement. Notwithstanding their youth (around 12 and 7 years of ages at the time), the children said to Mr Conry that they would stay ‘if the orders were changed’.
29. Regarding the occasions when the children left Mr Conry’s home and returned to Mrs Conry’s home, Mr and Mrs Ferguson gave evidence. Mrs Ferguson thought it was ‘possible’ that Mr Ferguson had attempted to return them, but neither of them was sure. Mrs Ferguson said that M’s doctor had recommended that he be given ‘space’, and for that reason M stayed ‘the whole term’ at the home shared by his mother and grandparents. Mr Ferguson said he thought the orders needed to be changed, and that he thought the children were happier at their home than with their father. Mr and Mrs Ferguson said that they had told M not to leave C alone at their father’s because they were concerned for her welfare, as she was ‘subject to neglect and isolation’. Mrs Ferguson did not think Mr Conry was fit to have the children.
30. There was, at the hearing, a high level of hostility between the grandparents and Mr Conry. In this context I note the recent decision of the Family Court – which both parties agreed was a very comprehensive decision – following a three day hearing on an earlier application brought between Mr and Mrs Conry. Bearing in mind the consideration of the expert evidence given by psychologists in that decision, and based on my limited observations of the grandparents before me, I have formed the view that the grandparent’s evidence should not be accepted in full, particularly as regards to their opinion on Mr Conry’s parenting ability or the nature of his relationship with the children.
31. I asked Mr Conry why he did not take any other action to recover the children at the expiration of the agreed five weeks. He told me that he had already brought the contravention proceedings on 21 January 2008, and the advice of his solicitor was to have all matters dealt with together. There was delay in having that matter heard and it was not ultimately considered until 18 March 2009. I observe that the contravention application was dismissed. However, I observe that such matters – apparently under sections 70NFB and 70NFE of the Family Law Act 1975 – are determined on the criminal standard of proof, and it is likely, although reasons of the Federal Magistrate were not available, that Mrs Conry was found to have reasonable excuse for her contraventions. This would be consistent with her evidence that she was concerned for the children’s welfare: section 70NAE.
32. The matter before the Tribunal, however, is unconcerned as to the outcome of those proceedings. Under s 23 of the Act, a different test is to be applied: whether Mr Conry took, on the balance of probabilities, reasonable steps to regain care of the children after the expiration of the agreed five weeks.
33. Mrs Conry said at the hearing that if Mr Conry was so concerned about the children he could have sought their immediate removal from her. I do not accept this to be a course of action that was necessarily appropriate given the circumstances. In any event, I accept that Mr Conry was so concerned for the ongoing psychological welfare of the children, particularly M, that such a course – which would have provoked further animosity - was undesirable.
34. I was referred to Hayward and Secretary to the Department of Family and Community Services [2002] AATA 1241; (2002) 71 ALD 370, where the applicant had a court order for some fortnightly contact with his children. The mother, alleging inappropriate behaviour towards the children, terminated contact three weeks before Christmas. The applicant’s solicitor advised against an application to the Court as it would not come on for hearing before the next scheduled court appearance in January. The father continued to attempt to contact the children by telephone. The Tribunal held that even this constituted 'reasonable steps' to recover the children. The steps taken by Mr Conry to recover the children were greater than those taken in Hayward.
35. I consider in that the children were prevented from being in Mr Conry’s care in accordance with the orders without his consent from 1 March 2008 until 17 April 2008, and that the actions taken by Mr Conry in demanding their attendance in accordance with the orders, and in accepting the advice of his solicitor to pursue the matter hearing of the contravention application at the scheduled June hearing, and having regard to his concerns as to the psychological well-being of the children, he had taken reasonable steps to regain care of the children in accordance with section 23 of the Act. He is therefore entitled to FTB in respect of that period as if the orders had been complied with, namely 50 per cent.

DECISION

36. The decision under review is set aside and in substitution therefor the Tribunal decides that the arrears of FTB payable to Mr and Mrs Conry during the period 21 January 2008 to 17 April 2008 are to be calculated as follows:
    • 11 January 2008 to 18 January 2008: Mr Conry 100 per cent.
    • 19 January 2008 to 20 January: Mrs Conry 100 per cent.
    • 21 January to 29 February 2008: Mrs Conry 100 per cent.
    • 1 March to 17 April 2008: 50 per cent Mr Conry and 50 per cent Mrs Conry.
      

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ..........[sgd].......................................................

Associate

Date/s of Hearing 11 December 2009

Date of Decision 21 January 2010

Solicitor for the Applicant Mr Patrick Conry, Self represented

Solicitor for the Respondent Ms Radhika Prasad, Centrelink Legal Services

Other Mrs Pamela Conry