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

[2017] AATA 534

Armstrong and Secretary, Department of Social Services (Social services second review) [2017] AATA 534 (26 April 2017)

Division:GENERAL DIVISION

File Number(s):      2016/4244

Re:Stephen Armstrong

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndJanine Gould

OTHER PARTY

DECISION

Tribunal:Professor R McCallum AO, Member

Date:26 April 2017

Place:Sydney

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) is affirmed

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

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit (FTB) – assessment of care percentages – applicant’s care percentage below 35 per cent – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 25, 35B, 35P, 59

REASONS FOR DECISION

Professor R McCallum AO, Member

26 April 2017

INTRODUCTION

1. Mr Stephen Armstrong is the father of Child A, and Ms Janine Gould is Child A’s Mother.

2. Mr Armstrong and Ms Gould do not live together, but they do share the parenting of Child A who is at primary school.

3. In these proceedings, Mr Armstrong is the Applicant, Ms Gould is the other party, while the Respondent is the Secretary, Department of Social Services.

4. From 6 December 2011, Mr Armstrong was paid Family Tax Benefit (FTB) in respect of Child A, using a care percentage of 42%.

5. In June 2015, Ms Gould informed the Department of Human Services, which is better known as Centrelink, that there had been a change in Child A’s care arrangements.

6. On 20 July 2015, Centrelink decided not to alter the care percentages which are used to calculate FTB with respect to Child A.

7. Ms Gould sought review from an Authorised Review Officer (ARO), and on 8 April 2016 the ARO decided to alter Mr Armstrong’s care percentage to 34% from 1 February 2015.

8. As Mr Armstrong’s care percentage had dropped below 35%, he was no longer entitled to receive a FTB.

9. Mr Armstrong sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1). In its decision dated 28 July 2016 which was posted on 8 August 2016, the AAT1 affirmed the ARO’s decision.

10. Mr Armstrong now appeals to the General Division of the AAT which is known as an AAT second review (AAT2).

    THE LEGISLATION

11. The relevant law is contained in A New Tax System (Family Assistance) Act 1999 (Cth) (the Act).

12. The Act is complex because it is required to cover many varying situations. However, with respect to Mr Armstrong, Ms Gould and Child A, the following brief summary will suffice.

13. Under section 21 of the Act, a person is eligible to receive FTB if the person has a FTB child.

14. However, where a person’s shared care falls below 35%, that person will no longer be regarded as having an FTB child. Section 25 of the Act provides as follows:

    Effect 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.

15. Subsection 59(1) of the Act provides that where two parents are not living together as a couple, the Secretary may determine the shared care percentage of each of the parents.

16. Section 35B provides that where two parents have sharing arrangements, that is they have a pattern of care for a child, the Secretary must make a determination specifying the percentages of care to determine whether they are both eligible for FTB and to specify their rate of payment.

17. In the matter before me, the care percentages must correspond with the actual percentages of care undertaken by each parent.

18. Put briefly, section 35P of the Act requires the secretary to revoke a determination specifying percentages of care, where the care of a child changes and a new care percentage corresponding to actual care would result in a person having a different care percentage that would affect her or his rate of payment or eligibility for FTB.

19. Where the Secretary revokes a determination, the Secretary must make a fresh determination. In the matter before me, the fresh determination would be made under section 35B of the Act.

    CONSIDERATION

20. The issue which I am required to decide, as I stand in the shoes of the Secretary, is the shared care percentage for FTB purposes for Mr Armstrong in the period commencing on 1 February 2015 and concluding on 31 January 2016. The date of the hearing was 27 March 2017 which is more than 13 months after the end of that period.

21. Mr Armstrong and Ms Gould attended by telephone. In other words, The Tribunal phoned them on their respective telephones. Mr Armstrong and Ms Gould gave evidence by affirmation over the telephone.

22. Mr Armstrong said in his evidence that he did not keep records of the days on which he cared for Child A.

23. On 4 November 2016, Mr Armstrong wrote to the tribunal giving details of his care percentage of Child A.

24. He wrote that he cared for Child A for 40 weekends of non-school holiday weekends, being 80 days.  He stated that the weekends were from “Friday Afternoon to Sunday afternoon”, covering the two nights of Friday night and Saturday night.

25. In the April 2015 school holidays, Mr Armstrong wrote that he cared for Child A from 10 to 19 April, being 10 days.

26. He also wrote:

    ·In the June to July 2015 school holidays, he cared for Child A from 27 June to 5 July, being 9 days.

    ·In the September to October 2015 school holidays, he cared for Child A from 25 September to 4 October, being 10 days.

    ·In the December to January 2015-2016 Christmas school holidays, he cared for Child A from 17 to 24 December and 31 December to 13 January, being 22 days.

    ·He also cared for Child A during four public holidays, being Anzac Day 25 April 2015, Queen’s Birthday 8 June 2015, Labour Day 5 October 2015 and Australia Day 26 January 2016.

27. His evidence is that he cared for Child A for 135 days in the 365 day period from 1 February 2015 to 31 January 2016. This results in a care percentage of 37%.

28. Ms Gould appears not to have made contemporaneous records concerning the shared care of Child A. There are no such records before the Tribunal.

29. Ms Gould wrote to the Tribunal in January 2017 disputing some of the claims of Mr Armstrong.

30. Ms Gould wrote that she cared for Child A on eight weekends where there were birthday parties and other family functions, being 16 days.

31. She further wrote that:

    ·Four days should be deducted from the April 2015 School Holidays, as Mr Armstrong only cared for Child A from 12 to 18 April 2015.

    ·Three days should be deducted from the June July 2015 school holidays, as Mr Armstrong only cared for Child A from 6 to 12 July 2015.

    ·Four days should be deducted from the September October school holidays, as Mr Armstrong only cared for Child A from 19 to 25 September 2015.

    ·Three days should be deducted from the 2015-2016 Christmas holidays, as Mr Armstrong only cared for Child A from 26 December to 13 January 2016.

32. These deductions from the school holidays totalled 14 days.

33. Finally, Ms Gould wrote that Child A was not cared for by Mr Armstrong on Australia Day, Anzac day or Labour Day, being three days.

34. Ms Gould’s evidence is that Mr Armstrong cared for Child A for 102 days during the 365 day period from 1 February 2015 to 31 January 2016. This results in a care percentage of 28%.

35. It is important to appreciate that if I find that Mr Armstrong cared for Child A for less than 126 days, his shared care percentage falls below 35%, and by virtue of section 25 of the Act, Child A is no longer his FTB child and he is not entitled to FTB.

36. Mr Armstrong and Ms Gould have made conflicting claims to the Tribunal in writing and in their evidence by affirmation over the telephone. Mr Armstrong has provided no evidence from other persons to corroborate his care percentage of Child A.

37. Given these circumstances, the first step is to examine the written evidence put forward by Ms Gould which may corroborate Ms Gould’s claims.

38. In relation to the four public holidays, Ms Gould disputes that Mr Armstrong cared for Child A on Anzac Day. Ms Gould forwarded to the Tribunal a certificate stating that Child A attended with his school, the local Anzac Day march.  Mr Armstrong said in his evidence that he recollected picking up Child A after the march.

39. It is important to appreciate that Anzac Day 2015 fell on Saturday 25 April 2015. It is my understanding that Saturday 25 April 2015 was a public holiday, and that Monday 27 April 2015 was not a public holiday. In any event, in his written statement, Mr Armstrong did not assert that he cared for Child A on Monday 27 April 2015. Therefore, when putting Anzac Day in as one of his public holiday days, Mr Armstrong was double counting. He had already counted Saturday 25 April as one of his 80 weekend days. Therefore, I deduct one day of care from Mr Armstrong’s 135 days of care.

40. From the certificate in evidence before me, I find that Child A did attend the local Anzac Day March on Saturday 25 April 2015. Given that he was with his school, I further find that Child A spent Friday night, 24 April 2015, with Ms Gould. I accept that Mr Armstrong did pick up Child A sometime after the completion of the Anzac Day march, but given that Child A was looked after by Ms Gould from the Friday afternoon to after the Anzac Day March on Saturday, I deduct one further day of care from Mr Armstrong’s 135 days of care.

41. Ms Gould provided no evidence to corroborate her assertion that Mr Armstrong did not care for Child A on either Australia Day or Labour Day.

42. Ms Gould asserted that she cared for Child A on eight weekends where there were birthday parties and other family functions. 

43. In support of this assertion, Ms Gould forwarded to the Tribunal two statutory declarations which were both witnessed by Justice of the Peace, Mr Nathan Luke Bacon.

44. The first statutory declaration was sworn by Ms Sharlene Megan Wilson on 24 January 2017. She swore that Child A attended a child’s birthday party on Saturday 21 February 2015 and slept over until 22 February 2015.

45. Accordingly, I find that two days should be deducted from Mr Armstrong’s 135 days of care.

46. The second affidavit was sworn by Ms Julie Ann Downs on 24 January 2017. Ms Downs swore that Child A attended a child’s birthday party on 9 May 2015.

47. In his evidence, Mr Armstrong said that Ms Downs was the partner of the Justice of the Peace, Mr Nathan Luke Bacon. In her evidence, Ms Gould agreed that Ms Downs and Mr Bacon were in a relationship. On the statutory declaration itself, Ms Downs and Mr Bacon have put down the same address as one another.

48. Statutory declarations are legal documents which are often significant in legal and related proceedings.  Therefore, I am surprised that a Justice of the Peace would witness a statutory declaration made by his partner.

49. Having regard to these rather unusual circumstances, I am only prepared to give the statement of Ms Julie Ann Downs the same weight that I would give to an unsworn statement by Ms Downs.

50. There is insufficient evidence before me to find that Child A attended a child’s birthday party on 9 May 2015.

51. I do not regard a screen shot of a photograph uploaded to a Facebook page of a group of children, without more, as corroborating that Child A attended a birthday party or other family function on 28 November 2015.

52. There is no other evidence adduced by Ms Gould which I regard as corroborating her assertions that Child A attended other weekend birthday parties or family functions.

53. Ms Gould asserted that she went camping during several school holidays with Ms Sharlene Megan Wilson, Child A and Ms Wilson’s Child whom I shall refer to as Child B.

54. Ms Sharlene Megan Wilson swore a statutory declaration before Justice of the Peace Mr Nathan Luke Bacon on 24 January 2017. The statutory declaration reads in part as follows:

    …Janine Gould and her son [Child A] were camping with my son [Child B] and I at Blue Lagoon Beach Resort 10 Bateau Bay Road, Bateau Bay on the dates 29.6.15 to 3.07.15, 26.09.15 to 30.09.15. And at Toowoon Bay Caravan Park Koongara Street, Toowoo Bay, 16.01.16 to 23.01.16.

55. The camping at the Toowoon Bay Caravan Park from 16 to 23 January 2016 is not to the point as Mr Armstrong does not assert that he cared for Child A at that time.

56. The two camping trips to the Blue Lagoon Beach Resort are relevant.  Ms Gould has forwarded to the Tribunal, two tax invoices which are addressed to Ms Sharlene Wilson covering the two trips to the Lagoon Beach resort.

57. Having regard to the statutory declaration of Ms Wilson, and also to the two tax invoices, I find that Ms Gould was on a camping trip with Child A from 29 June to 3 July 2016, and from 26 to 30 September 2016.

58. Accordingly, three days relating to the June July 2015 school holidays and four days relating to the September October school holidays should be deducted. This means that seven days should be deducted from Mr Armstrong’s 135 days of care.

59. For the reasons set out above, I have deducted 11 days from Mr Armstrong’s 135 days of care because I have found that Mr Armstrong only cared for Child A for 124 days in the 365 day period. As Mr Armstrong cared for Child A for less than 126 days during the 365 day period, his care percentage is less than 35% and he is not entitled to FTB.

60. Having regard to my findings, there is no need for me to delve further into the evidence of Mr Armstrong and Ms Gould.

    DECISION

61. The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) is affirmed.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate

Dated: 26 April 2017

Date(s) of hearing:	27 March 2017
Applicant:	In person
Solicitors for the Respondent:	J Larcombe, Department of Human Services