Abdul Karim Elisha and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Anna-Marie Hill OTHER PARTY

[2013] AATA 653

[2013] AATA  653

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0845
Re	Abdul Karim Elisha
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
And	Anna-Marie Hill
OTHER PARTY

DECISION

Tribunal	Senior Member J Toohey
Date	13 September 2013
Place	Sydney

The Tribunal affirms the decision under review.

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

Senior Member J Toohey

CATCHWORDS

SOCIAL SECURITY – family tax benefit – percentage of care – pattern of care – whether pattern of care changed – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999; ss 22(6A), 25

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Guide to Family Assistance Law; Pts 2.1.1.45, 2.1.1.50

REASONS FOR DECISION

Senior Member J Toohey

13 September 2013

BACKGROUND

1. Mr Abdul Karim Elisha seeks review of a decision of the Social Security Appeals Tribunal (SSAT) concerning his eligibility for family tax benefit (FTB) during the period 23 October 2011 to 13 April 2012.

2. Mr Elisha and Ms Anna-Marie Hill have a daughter who is 13.  There is another child, who is not the subject of these proceedings.  Mr Elisha and Ms Hill separated in 2004.  Up until 23 October 2011, their daughter lived week-about with each of them.  They disagree about what happened after that date.  Mr Elisha says the arrangement for week-about care continued and he had 50 per cent care of their daughter up until 13 April 2012.  Ms Hill says she had, and still has, 100 per cent care of her.

3. In February 2013, the SSAT decided that, during the period in question, Ms Hill had 100 per cent care of their daughter and, as a result, that Mr Elisha was not entitled to FTB during that period. 

   RELEVANT LEGISLATION

4. The relevant legislation is the A New Tax System (Family Assistance) Act1999 (the FA Act).

5. Where a child is in the care of two people, each of whom is eligible for FTB, the Secretary must determine the percentage of care that each has for the child: s 22(6A).  A person who has less than 35 percentage care is not entitled to FTB: ss 25.

6. There is no dispute that, during the relevant period, Mr Elisha and Ms Hill were each eligible for FTB.  The question is whether Mr Elisha had the necessary percentage of care to qualify for payment.

7. The FA Act does not specify how the percentage of care is to be worked out except to say that the Secretary must be satisfied there has been, or will be, a pattern of care over that period. 

8. The Act does not specify how a pattern of care is established and whether, for example, it should be calculated by the number of hours, or number of nights, a child is in a person’s care.  However, Part 2.1.1.45 of the Guide to Family Assistance Law (the Guide) published by the Secretary states:

   If the care percentage for a child is not agreed between carers, it is necessary to establish a pattern of care to make a shared care determination for FTB. A pattern of care is generally established by using the number of nights in care for each FTB child.

   …

   Generally a pattern of care is based on the number of nights in a care period where an individual has the overnight care of an FTB child. A person with the overnight care of a child is regarded as having had care of the child for that day.

   …

   There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days in care.

9. If the number of nights used to determine a pattern of care is established for a period, that number is divided by the number of days in the care period and multiplied by 100 to arrive at a percentage: The Guide at 2.1.1.50.

10. What is clear from The Guide is that a pattern of care is assessed on the basis of the percentage of time that a child spends in a person’s care.

11. The Guide is government policy and should be followed unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

THE HEARING

1. Shortly before the hearing, Mr Elisha told the Tribunal he was not prepared to be in the same room as Ms Hill.  It was therefore agreed that Ms Hill would give evidence by telephone.  However, at the start of the hearing, Mr Elisha said it would make him physically ill if he even had to hear her voice.  While his reaction seemed rather extreme, I did not wish to make the hearing unnecessarily difficult for either party.

2. After separate discussions with Mr Elisha and Ms Hill, it was agreed that Mr Elisha would wait outside the hearing room while I heard from Ms Hill first, that I would summarise her evidence for Mr Elisha and then give him the opportunity to respond to her evidence, and to give his own evidence.  To make sure that no evidence was overlooked in my summary, it was agreed that Mr Elisha and Mr Hill would each receive a copy of the transcript and would have an opportunity to raise any further questions, or make any submissions, in writing.

3. Mr Elisha’s written response to the transcript is included in the summary of his evidence below.  Ms Hill did not offer any comment on the transcript.

   THE EVIDENCE

4. Mr Elisha and Ms Hill agree that their daughter lived with each of them week-about, and spent more or less equal time with each of them, until 23 October 2011.  They agree that, around that date, Mr Elisha’s car broke down which meant he had to walk her to school each day rather than driving her.  They give diametrically opposing accounts of what happened from 23 October 2011.

5. Mr Elisha says the week-about arrangement continued to the end of 2011, including during the Christmas school holiday period, and until just before Easter 2012, when he and Ms Hill had an argument and their daughter “moved in with her mother 100%”.  He says it was during that argument that he learned that she intended to live full-time with her mother.  When this happened, he contacted Centrelink on 17 April 2012 to advise that the arrangement had changed, and his FTB was cancelled.

6. Mr Elisha says he was walking his daughter to school each day while she was with him.  Although he says the “lollipop lady” at the cross walk can verify this, he has not provided confirmation from the lollipop lady (and it is not clear that he has even tried).  He says he paid for his daughter’s graduation party at the end of 2011, and her school uniform, bag and shoes for school in 2012.  He asks why he would have done so if she was in her mother’s care full-time. 

7. Ms Hill says her daughter came to live with her from 23 October 2011 and did not spend a single night with her father from that time and spent no more than about half a day, on Christmas Day, with him. 

8. Up until the period in question, Mr Elisha was receiving FTB on the basis that he had 50 per cent care of his daughter.  He continued to receive FTB on that basis until Centrelink cancelled his payment as of 14 April 2012 (when he had the argument with Ms Hill).  Ms Hill says he continued to receive FTB because she understood their daughter had come to live with her temporarily but, come February 2012, when she realised the arrangement had become permanent, she applied for 100 per cent of FTB.  She says she and Mr Elisha agreed he would pay for their daughter’s graduation party and items for school because he was still receiving FTB and she was paying for her accommodation and food.  

   SUPPORTING EVIDENCE

9. There is limited independent evidence to assist me. 

10. Mr Elisha has submitted a letter dated 12 June 2012 from a person who lives in a granny flat attached to his house.  The writer says he has “regularly seen or heard a teenage female” whom he takes to be Mr Elisha’s daughter.  He says what he has observed “is consistent with Elisha’s claim that he has joint custody of his daughter”.  He has also “regularly seen and heard a young boy” whom he has taken to be Mr Elisha’s son, running around the shared backyard, usually on the weekend, and he assumes this is due to the shared custody arrangements with Ms Hill.

11. A friend of Mr Elisha has provided an unsigned statement that he has known Mr Elisha for more than seven years; that his daughter was living with him for one week and the other week with her mother; he let Mr Elisha borrow his car on many occasions because he felt for him walking to school every day, and sometimes another friend lent Mr Elisha his car.  He says he has seen Mr Elisha’s young son at Mr Elisha's house “every two weeks”.

12. Ms Hill has provided a statement dated 8 May 2012 from the Deputy Principal of her daughter’s high school verifying that she is currently enrolled at the school.  She has also provided a letter dated 12 May 2012 from a friend who writes she has known Ms Hill for approximately two years and can confirm that, since the end of 2011, her daughter has been living with Ms Hill on a full-time basis because her father had no car to get her to and from school; she was there when Ms Hill was contacted by her daughter and Mr Elisha father in October when they asked her to have her daughter until her father bought another vehicle; since then she has had Ms Hill in her home almost every weekend for barbecues, coffee and visits, and can swear that on each occasion she has had her daughter with her. 

    CONSIDERATION

13. The difficulty with this case is the diametrically opposing evidence given by Mr Elisha and Ms Hill, each of whom appears quite plausible.  Neither has provided any evidence in support of their claims to which I can attach any real weight.  The letters they have provided are in very general terms.  The letter from Ms Hill’s friend gives details that are consistent with Ms Hill’s claim but, like the other documents, it is untested.

14. The SSAT said in its written reasons that it found Ms Hill’s evidence “more circumstantially compelling” than Mr Elisha’s.  It is not clear to me why that is so.  However, on balance, I also prefer Ms Hill’s evidence to Mr Elisha’s. 

15. There seems to be no argument that Mr Elisha’s car broke down in October 2011 and he could no longer drive her to school.  I accept that he had to walk with her to school.  Exactly when his car broke down and how often he walked her to school, I cannot determine from the evidence before me.  However, it is plausible, because it is consistent with these events, that their daughter went to live with her mother around this time, presumably until Mr Elisha was able to fix his car.  On the evidence before me, I find that is what happened.  What seems to have happened is that, around Easter 2012, their daughter made clear that the arrangement was no longer temporary, that it had become permanent, and she would not be returning to spend alternate weeks with her father.

16. The fact that Mr Elisha paid for certain items for his daughter during the period in question makes no real difference.  He could have done so regardless of the circumstances.  Moreover, if Ms Hill is to be believed about the financial arrangement they had come to, it would make sense for him to meet those costs.  I accept her evidence about this.  I find the fact that Mr Elisha continued to receive FTB payments until April 2012 reflects that he and Ms Hill understood that their daughter would live with her temporarily and there was no need to make permanent changes at that time.

17. I am satisfied that, from 23 October 2011 to 13 April 2012, Ms Hill had 100 per cent care of their daughter and that Mr Elisha was not entitled to FTB during that period.  It follows that I affirm the decision under review.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Toohey.  

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Associate

Dated  13 September 2013

Date(s) of hearing	1 August 2013
Applicant	In person
Solicitors for the Respondent	Department of Human Services
Other Party	In person