Bale and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor
[2006] AATA 657
•26 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 657
ADMINISTRATIVE APPEALS TRIBUNAL N° V2005/1077
N° V2005/1078GENERAL ADMINISTRATIVE DIVISION
Re: WARREN JAMES BALE
Applicant
And:SECRETARY,
DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And: KATRINA ANNE MILLS
Joined Party
DECISION
Tribunal: The Hon Howard Olney AM QC, Deputy President
Date:26 July 2006
Place:Melbourne
Decision:The Tribunal affirms the decisions under review.
(sgd) Howard Olney
Deputy President
SOCIAL SECURITY ‑ Family Tax Benefit – over-payment – recovery of debt – FTB child not in applicant’s care
A New Tax System (Family Assistance) Act 1999 s 22
REASONS FOR DECISION
26 July 2006 The Hon Howard Olney AM QC, Deputy President
BACKGROUND
1. The applicant is the father of Simone Mills who was born on 7 January 1998. The applicant and Simone’s mother Katrina Mills (Ms Mills) lived together in a de facto relationship from about November 1992 until they separated in July 2000. There is one other child of the relationship, a daughter Jessica, who was born on 14 September 1994. In addition, the family included Ms Mills’ son Mitchell (born 28 November 1991) and a foster child Michelle Sammutt (born 1987). Following the parents’ separation in 2000, the applicant and Simone lived at a number of temporary addresses until in about mid 2001 they returned to live at Ms Mills’ address. In about December 2003 the applicant and Ms Mills (who are said to have then been living in a platonic relationship) obtained Housing Commission rental accommodation at 39 Mayfair Drive, Ferntree Gully. At that stage the family group included the two parents and all four children.
2. In July 2003, Michelle moved to her own place in Lilydale but Ms Mills continued to live at the Mayfair Drive house with her three children. The applicant no longer resides at Mayfair Drive and the issue in this proceeding centres around the question of precisely when he ceased to do so. Ms Mills asserts that he moved out on 5 July 2003 whereas the applicant says that he continued living there until served with a Magistrates’ Court order 29 December 2003 pursuant to which he was prohibited, inter alia, from being at or within 200 metres of 39 Mayfair Drive, Ferntree Gully.
3. In the period from 12 July 2000 (after he and Ms Mills separated) until 19 January 2004, the applicant was in receipt of a family tax benefit (FTB) paid pursuant to s 22 of the A New Tax System (Family Assistance) Act 1999. This benefit was paid on the basis that Simone was in the applicant’s sole care during that period. In January 2004 Ms Mills told Centrelink that she had had the sole care of Simone since 5 July 2003 and in due course she was granted FTB for Simone which was backdated to 5 July 2003.
4. On 2 February 2004 a Centrelink officer determined that the applicant did not have the care of Simone between 5 July 2003 and 19 January 2004 and raised a debt of $4,337.98 representing the amount of FTB paid to the applicant during that period. These decisions were affirmed first on 20 May 2004 by an Authorised Review Office (ARO) and subsequently, on 25 October 2005, by the Social Security Appeals Tribunal (SSAT). The applicant now seeks review of two decisions of the SSAT namely its decision first that the applicant was not entitled to family tax benefit payments made by Centrelink in the period 5 July 2003 to 19 January 2004 as Simone was not in his care during that period; and second, its decision to affirm the decision made by a Centrelink Officer to raise and recover a debt of $4,337.98, being family tax benefit paid in respect of the period 5 July 2003 to 19 January 2004.
THE HEARING
5. The Tribunal heard the application on 2 June 2006. The applicant appeared in person, whilst the respondent was represented by Ms J. Hume, a solicitor. Ms Mills participated via a video link from a remote location and was assisted by her mother Mrs Joan Mills. The applicant gave oral evidence and produced several documents relating to the payment of expenses concerning the house at 39 Mayfair Drive. He was cross-examined at some length by the respondent’s solicitor. Ms Mills gave brief evidence through an Auslan interpreter. She was not cross-examined by the applicant. The respondent did not adduce any evidence other than the documents required to be provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
THE EVIDENCE
6. The applicant’s evidence-in-chief was reasonably straight forward. He said that he continued to live at 39 Mayfair Drive until served with the Court order in December 2003; and he confirmed that Simone remained living at that address throughout the whole period in question. The applicant said that Ms Mills would always take the children to school in the morning and he would pick them up from school. His evidence was that over this period he was travelling backwards and forwards between Ferntree Gully and his brother’s house at 16 Paddington Avenue Carrum Downs. He went to his brother’s place to help him out due to the fact that he suffered from gout. In response to a question from the Tribunal as to what he did to help his brother, the applicant said:
…Well, he needed medication and he couldn’t – like I was cleaning the house and keeping the lawns mowed and everything like that during – on weekends, and just basically making sure, because he couldn’t move. Like, I had to help him up and everything, like just to take him to --- (Transcript p. 5, lines 2 to 6)
Later, after the Tribunal indicated that it was only interested in the period between July 2003 and January 2004, the following exchanges took place between the Tribunal and the applicant:
And during that period you say you lived at that Ferntree Gully address?---That’s correct.
All the time?---All the time.
Okay. And that you – did you have paid employment during that period?---No.
You have some type of Social Security benefit, don’t you?---That’s correct, yes.
Okay. Did you cease living at Mayfair Drive, Ferntree Gully, at any stage?--- Yes, one stage there I was travelling backwards and forwards between the two houses because he couldn’t stand up at all, so I had to go down and do the shopping and all that kind of stuff. So I was basically backwards and forwards during that period. So I was there about, maybe, three to four times a week.
You were at Carrum Downs three or four times a week?---No.
At---?---Ferntree Gully. I was always backwards and forwards.
At Ferntree Gully three or four times a week?---That’s correct.
Okay. And do you still live at Mayfair Drive?--- No.
When did you cease living there?--- When I got the court restraint.
And was that in ---?--- That’s on the 29th, just before Christmas.
December ’03; is that right?---Yes. 29.12.03, yes.
And you ceased living there then?--- That’s correct, yes. Well, because I wasn’t – I walked up to the door, because I had my children – I took them away up to Benalla for a family reunion, and we ended up coming back and – yes.
And since then have you lived at Carrum Downs?--- Yes, since then, yes. That’s correct. You asked me earlier on, did I cease living at Ferntree Gully.
Yes?--- Like I said, I was backwards and forwards at the time. I ended up claiming rent assistance during that time, which I got that paperwork here, as well. (Transcript p 6, lines 3 to 32)
7. The applicant agreed under cross-examination that he had told Centrelink on 23 June 2003 that he had changed his address to 16 Paddington Avenue Carrum Downs. The following exchange between the respondent’s solicitor and the applicant is recorded in the Transcript at p. 9, lines 13 to 22:
So, then, why did you give your address to Centrelink as Carrum Downs?--- Later on? For the rent assistance, because I was actually – because I was backwards and forwards and – I just told you that before; that I was backwards and forwards, and I gave them that address because that’s where I was – I was actually moving out, anyway.
So in June 2003, you told them ---?--- Because I was going to leave Katrina with the house.
When were you planning to move to Carrum Downs, if you told Centrelink in June that you were?--- Well, I was just moving everything in. Like, I was still backwards and forwards and still doing the day-to-day thing that I had to do with Simone.
And then at lines 29 to 39:
MS HUME: I’m just trying to clear up why you gave Centrelink, as your official address, as Carrum Downs ---?--- Because that’s where I was getting all my mail put to, because I was down there the majority of the time and I took the majority of my things down there, as well. And I was actually planning on getting out, but I didn’t end up moving out straight away – so, like, yes.
So you didn’t end up moving out for six months?--- I didn’t actually move out of Ferntree Gully properly until a week before I got this court thing. So if there’s anything to paid, if you want me, you know – its only from the 29th down, from what I can see. Or if you got a problem with the rent, I can do that.
8. The ARO who had conducted the review of the decision to terminate the applicant’s FTB payment (Mr Andrew Hansen) made the following record of a conversation with the applicant in relation to his review:
I spoke to Mr Bale about his review request. We discussed why the decision had been made to ask him to repay the debt. He told me that he has had Simone in his care all the time since July 2003 through to when the intervention order was taken out against him in January 2004.
I asked him where they had been living over that period of time. He said at Paddington Avenue, Carrum Downs. I said if that was the case why had he signed an affidavit stating that he lived at Mayfair Avenue until December 2003. He said he put that in because he was still coming up to FTG from time to time, running backwards and forwards. He is adamant he lived at Carrum Downs, paying rent to his brother.
I asked him to tell me why Simone was still enrolled at school in FTG if she had been living at Carrum Downs. He said it was because she had only just started there and he was working at his brother’s, panel beating, in Boronia He drove Simone to her mother’s in the morning and she took Simone to school and then he picked her up in the afternoon.
I asked him if he would be surprised to here (sic) that other residents of Mayfair Avenue had written that they often saw and heard Simone playing and walking with her mother and sister. He said he would be as she was with him.
I asked him if there was anyone who could verify that Simone stayed with him at Carrum Downs and he said there wasn’t. They didn’t have much to do with the neighbours and she hadn’t need to go to the doctor or anyone else during the period in question. (T document 27; p. 79).
The applicant’s response when this record was put to him was to deny that he had told the officer that he had (in the relevant period) lived at Carrum Downs and to deny that he had told the officer that Simone had lived with him there.
9. The applicant was also questioned about statements attributed to him in a report made by a psychologist in connection with Family Court proceedings that were instituted in early 2004. The psychologist had interviewed the applicant (referred to in her report as the father) on 10 March 2004 and in her report, in dealing with “Background and issues”, she wrote:
1.This report is prepared to assist the Court in the determination of residence and contact issues relating to Jessica (9 years) and Simone (6 years) The parents, Mr. Warren Bale and Miss Katrina Mills commenced a relationship in 1992. The parties separated a few times during the relationship and the father claims that he had the primary care of the youngest child Simone since birth, which is strongly denied by the mother. The father informs that between mid 2001 and mid 2003 they lived under the same roof but were separated. The mother maintains that the father intermittently continued a relationship with her until they finally separated in mid 2003. When the father finally left home leaving Simone in the care of the mother.
2.During the relationship mother’s oldest child Mitchell (12 years) also resided with the parents. The parents fostered another girl Michelle currently aged 17 years who now resides on her own with her toddler son.
3.The mother claims that after separation the children resided in her care and the parents mutually agreed for the father to have regular contact with the children. Ms. Mills believes that the father demanded that Simone should reside in his care only after an argument about Centrelink payments during Christmas 2004. The father makes strong assertions that the children are closely attached to him and Simone, in particular expresses a strong wish to reside with him. He contends that he always provided the primary care for Simone. (T document 28; p. 84 to 85)
And at paragraphs 24 and 25 of the report she wrote:
24.The summary of Mr. Bale’s assertion was that he and the (sic) Ms Mills had a history of moving from place to place in their relationship. Mr. Bale reported that he separated from Ms. Mills in 2000 however he shared accommodation with her intermittently at more than 10 places and until July 2003. The father further reported that he had the primary care of Simone since she was a young baby. He informed that his pension card verified that Simone was listed as a dependent on his card.
25.Mr Bale explained that until the mother obtained an Intervention Order in early January 2004 he shared the parenting duties with the mother and had a close relationship with his daughters as well as Mitchell. He further explained that for a period of 6 months from December 2000 he cared for Simone away from the mother’s home. However most of the other times and until July 2003 he was caring for Simone in the same house as the mother. (T document 28; pp. 87to 88)
When these statements were put to him the applicant’s response was that the person who wrote the report was wrong. He denied having said that he had only lived at Ferntree Gully until July 2003.
10. The applicant did not call any other witnesses. He sought to rely on a letter written by Michelle Sammutt which was filed with his application to the Tribunal on 29 November 2005. The letter does not however specifically address the issue of where the applicant resided in the period from July 2003 to December 2003. In this context all that the letter says is:
…
I moved out on 14th of July 2003 and moved into my own place in Lilydale. I moved out because Katrina and I weren’t getting along. From July Warren was back and forth between his brothers house and Ferntree Gully because his brother had gout in his knee.
…
11. Ms Mills’ evidence was very brief. She simply said:
From July 5 when my husband moved out --- I had looked after Simone for the whole time until January ’04 because had to go to school, and she (sic) told me Simone should stay with me when he moved out, from July to January.
This evidence was clarified to some extent by questioning from Ms Hume. The Transcript records the following exchange of questions and answers between Ms Hume and Ms Mills:
MS HUME: Oh, yes, just a couple of questions, if I could. Ms Mills, did Mr Bale spend any nights at the Ferntree Gully home between July 2003 and December 2003?‑‑‑No.
Did Mr Bale come and visit Simone at the Ferntree Gully home during that time?‑‑‑Twice. Only twice, and he picked her up from swimming. The whole period of time, it was my responsibility in the morning and in the afternoon. He never visited my home except for those two times.
Did Simone see him at any other place during that period?‑‑‑No.
So how do you explain Mr Bale saying that he was living at Ferntree Gully with you during that time?‑‑‑He did not. He had moved out in July. On 20 July '03, he had moved out, and was gone, and the assault that occurred on me by him was on Christmas Day '03, and that's why we got the intervention order, because of the assault on Christmas Day.
And so after July 2003, he only saw his daughter Simone twice, until December?‑‑‑That's right. Only twice. That's for when he picked her up. Any doctors appointments or anything like that, I took her. Most of the time, I took her to school and picked her up after school. He was not there every afternoon, at all. He was always doing something else and I had to pick up the children, or else I would ring my mum. He was not there when my mum rang, so she also knows. (Transcript p. 39; lines 8 to 27)
The applicant did not seek to cross-examine Ms Mills.
FINDINGS
12. The evidence of the two witnesses who testified before the Tribunal is completely contradictory. The applicant says that he continued to live at 39 Mayfair Drive Ferntree Gully until 29 December 2003; Ms Mills says he moved out on 5 July 2003. The evidence of neither witness has been corroborated by independent testimony. No attack was made on Ms Mills’ credit. However, the applicant’s credit was put in issue by cross-examination going to apparently inconsistent statements said to have been made to third parties. As the Tribunal has not had the benefit of hearing those third parties it is difficult to make a full assessment of the weight to be given to the written records that are relied upon. In the absence of any other evidence there is no reason why the records made by the ARO (Mr Hansen) and the psychologist should be given any greater weight than the applicant’s denials.
13. The Tribunal is however of the view that there is evidence which leads to the conclusion that what the ARO and the psychologist recorded concerning the applicant’s statements as to him ceasing to reside at Ferntree Gully are an accurate record of what was said. The applicant does not dispute that in June 2003 he advised Centrelink that he had changed his address to 16 Paddington Avenue Carrum Downs; nor does he dispute that in July 2003 he claimed rental assistance in relation to his residence at Carrum Downs. These facts are entirely consistent with him actually living at Carrum Downs and are consistent with what he is recorded as having said to both the ARO and the psychologist. No other credible explanation is open on the evidence. The Tribunal is of the view that the applicant’s denials are false and that Ms Mills’ evidence should be accepted as representing the truth.
CONCLUSIONS
14. The Tribunal finds that the applicant did not have the care of the child Simone Mills during the period 5 July 2003 to 19 January 2003 and that he was not entitled to family tax benefits during that period.
15. In the absence of any question as to the accuracy of the calculation of the amount of family tax benefit paid to the applicant in the period 5 July 2003 to 19 January 2004, the Tribunal finds that the sum of $4,337.98 is properly recoverable from the applicant.
DECISION
16. The decision of the Tribunal is that the decisions under review are affirmed.
I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of
The Hon. Howard Olney AM QC,
Deputy President
signed: Olympia Sarrinikolaou
Clerk
Dates of Hearing: 2 June 2006
Date of Decision: 26 July 2006
Advocate for applicant: Self-representedAdvocate for the respondent: Ms J. Hume, Legal Services Branch, Centrelink
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