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

[2008] AATA 447

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4174

GENERAL ADMINISTRATIVE DIVISION		)
Re		GEOFFERY BARRON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

1^st Respondent

And            JO-ANNE HOLLAND

2^nd Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date29 May 2008

PlaceWyong

Decision

The decision under review is set aside. In substitution thereof the Tribunal decides:

1.    That Mr Barron should be paid Family Tax Benefit on the basis that he and Mrs Holland shared care of the child, with the pattern of that care as set out in the Table below:

Parent	Percentage of care for the 2005/2006 year
Mr Barron	87%
Mrs Holland	13%

………………...[sgd]...…………….
Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – percentage shared care – pattern of care – number of nights each parent cared for child – decision under review set aside and substituted.

A New Tax System (Family Assistance) Act 1999 – sections 21, 22, 25, 59

Administrative Appeals Tribunal Act 1975 – section 35

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416

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

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

REASONS FOR DECISION

29 May 2008 Ms N. Isenberg, Senior Member  

Decision under review

1.       This is an application by Mr Barron for review of a decision by the Social Security Appeals Tribunal (‘SSAT’) made on 24 July 2007 regarding his Family Tax Benefit (‘FTB’) entitlement for his daughter, Rosie during 2005/2006. Rosie spent some time during that financial year with her mother, Mrs Holland (the second respondent), who was formerly Mr Barron’s wife. Mr Barron’s and Mrs Holland’s (together, ‘the parents’) respective FTB entitlements depends upon the amount of time Rosie spent with each.

2.      Initially Mr Barron was paid FTB for Rosie at the rate of 100 percent. Following an application for FTB by Mrs Holland, his share was reduced to 77 percent. On internal review his share was increased to 85 percent. The SSAT decided it was 76 percent; it follows that the SSAT found that Rosie was in the care of Mrs Holland for 24 percent of the year.

The hearing

3. At the hearing, Mr Barron and Mrs Holland were self-represented. The first Respondent (Centrelink) was represented by Mr George Lozynsky. Mr Barron and Mrs Holland gave evidence, as did Mr Holland. I spoke by telephone with Carly Ford, Rosie’s elder sister and also Ms Cassandra Holland, Mr Holland’s sister. I had before me the documents (T-documents) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the documents tendered at the hearing, which are detailed in annexure A. These included a number of ‘third party’ statements from family and friends about when Rosie may have stayed at one or other of her parents’ homes during the relevant period.

Legislation

4. Section 21 of the A New Tax System (Family Assistance) Act 1999 (‘the Act’) provides that an individual is eligible for Family Tax Benefit if, amongst other things, the individual has at least one ‘FTB child’. Rosie is an ‘FTB child’ of the parents within the meaning of section 22(3) of the Act, which provides:

(3)       The individual is an FTB child of the adult if:

(a)       the individual is aged under 18; and

(b)       a family law order or registered parenting plan or parenting

plan is in force in relation to the individual; and

(c)under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the

individual is supposed to spend time; and

(d)       the individual is in the adult’s care; and

(e)       ….

5. Section 59 of the Act provides for the Secretary to determine the percentage that is to be the parents’ percentage of the family tax benefit for their child:

59 Secretary may make determination where individual is FTB child

of 2 people who are not members of the same couple

(1) If the Secretary is satisfied that:

(a)       an individual is an FTB child of an individual (person A);

and

(b)the FTB child is also an FTB child of another individual who

is not person A’s partner;

the Secretary may determine the percentage that is to be person A’s percentage of family tax benefit for the child.

6.      A person’s annual rate of Family Tax Benefit is dependent on a number of factors, including the person’s pattern of care of the child. The pattern of care may be assessed in one of the following two ways: the carers may agree to a percentage that they believe reflects the pattern of care or, if the carers cannot agree, the decision maker must determine the actual pattern of care based on the available evidence. The number of nights a FTB child spent in a person’s care can be used to determine a pattern of care and a person’s percentage of shared care (see clause 2.1.1.45 of the Family Assistance Guide).

7. It should also be noted that section 25 of the Act provides that if an FTB child is in an individual’s care for less than 10 percent of a period, then the child is taken not to be an FTB child of that individual for that period, that is, no FTB is payable at all to that individual.

Issue before the Tribunal

8.      The issue before the Tribunal is to determine the correct percentage of care of the child to be attributed to each of the parents for the period 1 July 2005 to 30 June 2006 (‘2005/2006’).

The evidence

9.      Mr Barron’s position was that Rosie stayed with Mrs Holland for between 20 and 22 nights during the relevant period. Mrs Holland initially thought it was about 64 nights, but now thinks the number of nights is 88. It was agreed that Rosie had gone to live with her mother full time from July 2006.

10.     Mr Barron had provided a statement dated 3 October 2006. There Rosie was said to have had ‘little or no contact’ with Mrs Holland until Christmas 2005 and then had ‘rare’ overnight stays until August 2006 when she moved to live at her mother’s. He estimated she stayed at her mother’s no more than 20 nights and that on two of those nights Mr and Mrs Holland were absent on a cruise.

11.     In a further statement dated 25 October 2007 he took issue with all the statements provided by Mrs Holland in support of her position.

12.     He gave evidence that Rosie lived with him exclusively from the commencement of the period under review, and that she first visited her mother on 7 November 2005, her mother’s birthday. He said that he and Carly had encouraged this because he believed Rosie should have some contact with her mother. Prior to that time Rosie had not wanted to see her mother at all and was scared of her. In fact, she had asked him to drive her to the bus stop for school because she did not want to risk running into her mother who lived nearby. After ‘breaking the ice’ by this first visit she would then drop into her mother’s two to three times a week after school or work, return to him for the evening meal and to sleep. He would take her to her mother’s sometimes when she asked him.

13.     It was not until Christmas Eve 2005 that Rosie stayed the night at her mother’s. Then, from late January 2006 Rosie would stay at her mother’s about once a week – usually a week night. Mr Barron said that Rosie would ask him if it was ‘Ok’ with him, and that he would make her lunch and prepare her school clothes and would also often drop her there. On weekends she would be working or out with her friends. Sometimes she would stay with friends or Rosie and her friends would stay at his place. About once a month Rosie would stay at Carly’s place.

14.     During school holidays the pattern was the same. During the day Rosie would be working or would go out with friends, especially to the beach. In the evenings there were sleepovers at his place or at Rosie’s friends’ places.

15.     Rosie spent extra time with Carly and her mother in the lead up to Carly’s wedding in January 2006. There were pre-wedding shopping trips and a hen’s party. She stayed with her mother the night before the wedding and with her brothers on the night of the wedding.

16.     Mr Barron said he paid for ‘everything’ for Rosie. He said that in three years Mrs Holland had paid $50 child support and he thought she had bought Rosie a cardigan. He paid the school fees and excursion expenses. He provided pocket money until Rosie got a job in about June or August 2005.

17.     Mr Barron was the sole contact for the school, although he conceded that this was as a result of school policy to have only one contact per child.

18.     Once he had taken Rosie to hospital. After testing and some counselling she was released. He did not consider it necessary to tell Mrs Holland at the time.

19.     Mr Barron had also provided statements dated 17 and 30 November 2007. These were primarily challenging Mrs Holland’s version and the supporting statement she had provided.

20.     Mr Barron referred me to the statement of his friend, Ms Judith Turner, dated 5 October 2006, in which she had adopted Mr Barron’s statement dated 3 October 2006. It was unclear though the extent to which Ms Turner had personal knowledge of the matters therein. Ms Turner was unable to attend the hearing due to a medical condition.

21.     Mr Barron also provided a statement from Ms Diane McEwen dated 21 October 2007. Ms McEwen said that Rosie had stayed at Ms Turner’s or at a friend’s but not at her mother’s for quite a few months. It was unclear how she knew this.

22.     Mr Barron also provided a statement from Ms Denise Mallett dated 22 October 2007. She said that in the 10 years she had known Mr Barron, whenever she visited at him at his home Rosie was living there. It was unclear how often she may have visited. 

23.     Mr Barron also provided a letter from Ms Leslie Landesmann dated 24 October 2007. She said that Rosie and her father had celebrated New Years Eve 2005/6 with her.

24.     Mr Barron also provided what purported to be an extract from his mother’s diary. Mrs Barron was present at the hearing but not called to give evidence. No mention was made of the extract by the parents. The extract records some 21 occasions, what the occasion was and who was present, including Rosie.

25.     Mrs Holland gave a completely different account to that of Mr Barron. She strongly rejected any suggestion that Rosie had been scared of her. She said Rosie had been staying overnight well before July 2005 and would drop in three to four times a week.

26.     Mrs Holland had prepared a statement dated 19 September 2006 stating:

Days in Care – Rosie Joy Barron 1^st July05- 31^st June 06

This letter is to confirm that Rosie spent a total of 88 nights in care at the above address the home of Jo-Anne Holland.

1 night per week for the above mentioned period     52 nts

Additional nights

3 nts July school Holidays                2nts 24^th 25^th December 05

1 nt 18^th July 05  8 nts Xmas School Holidays 05/06

4 nts October School Holidays 05     1 nt 10^th feb 06

1 nt 6^th November 05  3 nts 23^rd 24^th 25^th March 06

1 nt 27^th November 05  1 nt 5^th May 06

4 nts Easter school holidays 06

3 nts 10^th 23^rd 24^th June 06

Total of 88 nts from 1^st July 05 31^st June 06 (sic)

27.     In November 2006 Mrs Holland provided Centrelink with a calendar on which she had marked some 64 days which she said Rosie had stayed. On 15 January 2007 she provided a note to Centrelink of 14 additional nights, but no details as to how she came to that view. (This would lead to a total of 78, not 88, nights.)

28.     She said she come to the calculation of 88 nights by drawing on her own recollection and with the help of Mr Holland, her son James, and Rosie. Mrs Holland said they had sat down with a calendar, and assisted by photographs all ‘jogged each other’s memories’.

29.     She produced a number of photographs which she had dated, which she said showed Rosie at her home and with other members of the family well before November 2005. She referred, for example, to Carly’s engagement in April 2005, and Ryan’s (Rosie’s brother) birthday in May 2005 and James’ (another brother) formal. Mr Barron disputed the reliability of the photographs as they were only hand-dated. He said, in any event, they did not demonstrate that Rosie stayed with her mother on those occasions.

30.     Another photograph was said to show Rosie and her friends at Rosie’s birthday party at Mrs Holland’s in late November 2005. She said that in her family the tradition is that the birthday person stays the night before the birthday so that present-opening can occur first thing on the birthday morning. The same applied for Christmas, which was consistent with Rosie staying on Christmas Eve.

31.     Mrs Holland said that when Rosie came to visit she did not need to bring clothes because she already had clothes at her home. She said that when Rosie went to live with her full time in July 2006 the school fees were not paid up to date, as Mr Barron had claimed.

32.     She particularly recalled that each time Carly came to stay Rosie would also come on those nights to see her sister and would stay the night. Carly was a teacher at a nearby school during 2005 and on one night a week during term (usually Tuesday, but later, Thursday) had stayed at her mother’s instead of going to her own home which was nearer to Newcastle. Rosie and Carly would share the double bunks in ‘the front bedroom’. Mrs Holland agreed in cross-examination that with her children and their girlfriends and foster children she can have up to eight children in the home at a time.  The home has four bedrooms and a two room granny flat. Mr Barron doubted that Mrs Holland could be sure who stayed at her home on any given night.

33.     Mrs Holland agreed she had left Rosie (and James) with their father when she and Mr Holland had moved to Queensland for six months in late 2003, but on their return had had a ‘loving’ relationship with Rosie, although Rosie had not wanted to stay with her for the first half of 2004. The Holland’s acquired a dog in September 2004 and Rosie would come to see it. In February 2005 the Holland’s took in a foster child and Rosie would come to see him too. From then she spent more and more time at her mother’s home. By mid 2005 she was staying an average of one night per week and dropping in a couple of times per week, until finally moving in full time in July 2006. Since their return from Queensland, Rosie has had a bedroom at the Holland’s in which she has a personal items including a TV, CDs, books, movies, clothing and posters. I asked Mrs Holland why Rosie had not wanted to live with her before July 2006 if Rosie was visiting as frequently as she had claimed. She said she thought Rosie regarded herself as her father's carer, because of his psychiatric condition.

34.     Mr Holland also gave evidence. He adopted the statement he provided dated 19 September 2006, which was in identical terms to that of Mrs Holland of the same date. He also adopted his other statement, of 31 October 2007, in which he had adopted the calendar Mrs Holland had provided. He thought that 88 days was a conservative estimate of the number on nights Rosie stayed at their home. He said that Rosie stayed, not only the nights that Carly was there, but other nights as well.

35.     Mrs Holland referred me to the statement of Ms Susan Wilcox, a neighbour dated 9 October 2006 in which Ms Wilcox adopted Mrs Holland’s statement. It is unclear the extent to which Ms Wilcox was in a position to adopt the statement in its entirety.

36.     Mrs Holland also referred me to the statement of Cassandra Holland (‘Cassandra’), who had adopted Mrs Holland’s calculations. As Mr Barron pointed out Cassandra was not in a position to make those observations. Mrs Holland said that Cassandra would visit the area during school holidays, staying in her mother’s caravan, so was in a position to observe Rosie’s presence. I decided to speak to Cassandra, and gave the parties the opportunity to ask her questions also. She estimated she would stay in the caravan for three to four weeks at Christmas and a week each other holidays and a few days at Easter. She would also visit on some weekends. On each occasion she would see Mrs Holland a few times a week. Rosie was usually there, but she knew Rosie stayed at her dad’s. She did not know anything about non-holiday time.

37.     I also decided to speak with Carly Ford, who, while the daughter of the parents, is older and living independently of them. She had also adopted Mrs Holland’s calculations and provided another statement of 31 October 2007. There was no dispute about what she had said in the latter statement. I brought to her attention that she had said that she had stayed at her mother’s ‘on a regular’ basis during the school term. She agreed she usually stayed over on Tuesdays and that when she stayed Rosie mostly stayed also. She confirmed that they stayed in the bunk beds in the front bedroom but could not say if, at that time, Rosie had her own bedroom. She said though that she also stayed at her father’s occasionally during term and that, of the one night a week she spent away from home, she spent 55 to 60 percent of the time at her mother’s.

38.     Mrs Holland also provided a statement by her son James, in identical terms to her own, that she had prepared after joint consultation. He also provided an additional statement dated 31 October 2007. James wrote that between January and December 2005 Rosie and Carly stayed some nights. Between January and July 2006 (sic) Rosie stayed on a regular weekly basis until she moved in, in July 2006. He also wrote that Rosie stayed on the nights of ‘our’ birthdays, in May, July and November and on Christmas Eve and Christmas night.

39.     Rosie herself also provided a statement in identical terms to her mother’s, that she had prepared after joint consultation. She too provided a further statement dated 31 October 2007. There she wrote of staying at her mother’s ‘on school nights’ when Carly stayed. She also wrote of staying on birthdays, Christmas Eve and Christmas night. She wrote that she and her mother met Carly for lunch during school holidays and often went clothes shopping together. She wrote of staying at Carly’s house during the holidays.

40.     It may have been helpful to have heard evidence from James and Rosie to obtain some clarification of their statements, but neither party called them. I note the Centrelink guidelines, which, I was informed were to the effect that Centrelink officers must not seek clarification from the FTB child about the care arrangements.

41.     Whilst I am not bound to apply departmental policy guidelines (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420), I may do so and, indeed, the Tribunal will usually apply departmental policy unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 at 416-417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

42.     I was very concerned about contacting the children, as both still live with their mother and have an ongoing relationship with their father. I discussed with the parents that calling James and Rosie to give evidence may affect their respective parent/child relationships.

43.     I specifically invited the parents to confirm that there was no other witnesses to whom they wished me to speak, especially as Mr Barron had been critical of Centrelink and the SSAT for not having contacted the supporting witnesses.

Consideration of the evidence

44.     In the ordinary course I would look to court orders made in respect of the care arrangements for a child and whether there was evidence of a significant departure from those orders to determine the actual pattern of care. In this matter however, there were no court orders made in respect of Rosie’s care.

45.     Mr Barron’s position was that Rosie stayed with Mrs Holland for between 20 and 22 nights during the relevant period. This would produce a result of 100 percent of Family Tax Benefit to Mr Barron (see paragraph 7 above, regarding FTB where the care provided by the parent of the FTB child is less than 10 percent). Mrs Holland thinks the number of nights is 88 which produce the following result 76 percent (Mr Barron) and 24 percent (Mrs Holland). It was agreed that Rosie had gone to live with her mother full time from July 2006.

46.     It was very difficult to come to a final view given that the accounts by Mr Barron and Mrs Holland as to when Rosie stayed at her mother’s were so different. Each had sought to bolster their case by providing a number of ‘third party’ statements. Regrettably, these were less than ideal. Some had been created as a joint effort, reconstructing what might have occurred. Later clarifying statements were also less than ideal, mostly being in general terms. Some statements were in such general terms as to be of no assistance whatsoever.

47.     There is some information which, from what I could make out, was not in dispute or were not challenged, namely that Rosie:

(a)stayed at Carly’s about once a month (12 nights);

(b)on the night of Carly’s wedding stayed with her brothers, that is with neither parent (one night); and

(c)Rosie stayed with her brother (in her mother’s home) for two nights while Mr and Mrs Holland were on a cruise.

48.     Together these would account for 15 nights that Rosie was not actually in the care of either parent. For that reason I have based my calculations for shared care for the 2005/2006 year on the basis of 350 days.

49.     I do not wholly accept the evidence of either of the parents. It was clear to me that Rosie had stayed with her mother from a time before Christmas Eve 2005, contrary to Mr Barron’s contention. On the other hand, Mrs Holland’s accounts of the times Rosie stayed have varied over time, and have been somewhat inconsistent.

50.     Doing the best I can with the evidence, I accept that Rosie had contact with her mother before November 2005, as claimed by Mrs Holland. Mrs Holland’s evidence, and that of her ‘third parties’ was that Carly and Rosie stayed once a week at their mother’s. More persuasive, however was Carly’s evidence that that she and Rosie stayed at their mother’s during term in 2005. I note, however, that Carly said that about 55 to 60 percent of the occasions she stayed nearer her workplace she stayed with her mother. Of the balance she stayed at her fathers’. On the basis of 19 school weeks from July 2005 until the Christmas holidays in 2005, the evidence supports a finding that Rosie stayed at her mother’s (with Carly) for 11 nights.

51.     There does not appear to be any dispute that Rosie stayed at her mother’s on Christmas Eve. I accept too that she is likely to have also stayed on Christmas night 2005: two nights.

52.     Mr Barron agreed that from the commencement of the 2006 school term Rosie stayed at her mother’s one night per week. I accept though that it may have been one to two nights as claimed by Mrs Holland. Referring to her calendar, however, would suggest Rosie only stayed 23 nights during term.

53.     I accept that Rosie stayed at her mother’s in association with Carly’s wedding – one night before the wedding, one night on the day following the wedding, and allowing two nights for wedding planning, shopping, hen’s night and other pre-wedding activities and that these are likely to have occurred in late December and January 2006: four nights.

54.     I accept the evidence that Rosie stayed at her mother’s the night before her birthday (November), her mother’s birthday (November) and her brother’s birthday (May): three nights.

55.     I also accept that Rosie spent some time staying at her mother’s during school holidays after Christmas 2005. Nights have already been considered in association with Carly’s wedding. There are about three weeks of holidays in the remainder of the 2006 part of the period under review, in which Mrs Holland nominates four nights on which Rosie stayed. I accept this estimate.

56.     This totals some 47 nights that I am reasonably satisfied that Rosie stayed with her mother. Therefore I find that of the remaining 350 nights (see paragraph 49 above) she stayed with her father. The result is that Mrs Holland had Rosie in her care 13 percent of the time, and Mr Barron 87 percent of the time. 

Decision

57.     The decision under review is set aside. In substitution thereof the Tribunal decides that the FTB child was, during the 2005/2006 financial year in the care of her parents as follows:

(a)Mr Barron        87 percent

(b)Mrs Holland     13 percent

FTB is payable in that ratio for the 2005/2006 year and should be recalculated on that basis.

Confidentiality application

58.     Mrs Holland asked that her name not be used in the reported decision.

59. In considering such an application under section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) I am to take as the basis of my consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public. I am to pay due regard to any reasons given to the Tribunal as to why publication should be prohibited or restricted.

60.     The Tribunal must generally conduct its proceedings on the basis of openness in the interests of maintaining public confidence in the fairness and integrity of those proceedings. The Tribunal should only depart from this approach if it is satisfied that there are proper and cogent reasons for doing so: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33.

61. The reasons advanced by Mrs Holland for the making of a confidentiality order under section 35(2) of the AAT Act were that Toukley is a small place and ‘everyone knows everyone else’s business’. She also said that her foster son has been in trouble at school and may be ‘labelled’ if there are further issues about him (because of his foster family) and that this may make him ‘an easy target’.

62. These reasons are in very general terms and in my view may relate to being more concerned with avoiding possible personal embarrassment to Mr and Mrs Holland. The reasons advanced by Mrs Holland are insufficient to satisfy me that I should depart, in this case, from the Tribunal’s normal practice. Accordingly, the request for a confidentiality order under section 35(2) of the AAT Act is refused.

I certify that the preceding 62 paragraphs are a true copy of the decision and reasons for decision of Ms N Isenberg, Senior Member:

Signed: ......…………....[sgd]..........................................  Associate

Dates of Hearing  19 April 2008

Date of Decision  29 May 2008

Representative of the Applicant                self represented      

Representative of 1^st Respondent             Centrelink Legal Services, Mr George Lozynsky

Representative of 2^nd Respondent            self represented

Annexure A

Chronology of events regarding Rosie Barron between G.C. Barron and J.M. Holland, undated.

Carer Review Record, dated 18 December 2007.

Photographs of Rosie and family, various dates

Statement of Chris Holland, dated 31 October 2007

Statement of James Barron, dated 31 October 2007

Statement of Rosie Barron, dated 31 October 2007

Statement of Jo-Anne Holland, dated 31 October 2007

Statement of Carly Ford, dated 31 October 2007

Statement of Geoffery Barron, dated 25 October 2007

Statement of Diane McEwen, dated 21 October 2007

Statement of Denise Mallett, dated 22 October 2007

Statement of Leslie Landesman, dated 24 October 2007

Statement of Geoffery Barron, dated 17 November 2007

Statement of Geoffery Barron annexing diary extract of Mrs Barron (Rosie’s Grandmother) dated 30 November 2007

Statement of Geoffery Barron, dated 30 November 2007