Beddoe and Secretary, Department of Family and Community Services and Anor - [2005] AATA 785

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 785

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/1139

GENERAL ADMINISTRATIVE DIVISION

Re: COLIN BEDDOE

Applicant

And: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

AndKATHERINE OBRADOVIC
Party Joined

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Date: 17 August 2005

Place: Melbourne

Decision:The Tribunal varies the decision under review to the extent of finding that the applicant had an entitlement to Family Tax Benefit (FTB) of 15 per cent for the year ended 30 June 2003 on the basis of having the care of his son Aaron for 53 days in that year and 35 per cent for the month of July 2003 on the basis of having the care of Aaron for 11 days of that month.

(Sgd) B H Pascoe
Senior Member

SOCIAL SECURITY – family tax benefit – pattern of care of son by father – number of days in care of father

A New Tax System (Family Assistance) Act 1999 (Cth)

REASONS FOR DECISION

17 August 2005 Mr B.H. Pascoe, Senior Member

This is an application to review a decision of the respondent of 29 August 2003 which was affirmed by the Social Security Appeals Tribunal (SSAT) on 6 September 2004. The decision was that the applicant, Mr C Beddoe, was entitled to 12 per cent of family tax benefit (FTB) in respect of the year ended 30 June 2003 and 60 per cent for the period 1 July 2003 to 30 July 2003 as a consequence of the care of his son, Aaron.
At the hearing, Mr Beddoe was unrepresented and the respondent was represented by Ms E King, an advocate with Centrelink. The former wife of Mr Beddoe, Mrs K Obradovic, was joined in the application as a party whose interests were affected by the decision. She appeared at the hearing by telephone and, by leave, provided a subsequent written submission.
Pursuant to a Family Court Order of 29 October 1993, Mrs Obradovic was given sole custody of Aaron. She had been paid FTB in respect of Aaron for the year ended 30 June 2003 and for the month of July 2003 after which Aaron was granted Youth Allowance and no further entitlement for FTB accrued. On 29 August 2003, Mr Beddoe lodged an application to be paid FTB in respect of Aaron claiming that he had care of his son for at least 90 days in the year ended 30 June 2003 or 20 per cent of the time and 100 per cent for the month of July 2003. The decision of the respondent which was affirmed by the SSAT granted FTB to Mr Beddoe on the basis of 43 days or 12 per cent in the year ended 30 June 2003 and 20 days or 65 per cent in the month of June 2003.
Under s 22 (7) of the A New Tax System (Family Assistance) Act 1998, (the FA Act) a child can be an FTB child of another if there is a pattern of care of that child and that other person had more than 10 per cent of the care of the child in the relevant period.
The evidence of Mr Beddoe was that both he and Aaron worked as cleaners at the Melbourne Cricket Ground (MCG). He based his claim on his calculation that Aaron would stay with him whenever there was a football or cricket match at the MCG. Depending on whether there was a match on Friday night and/or Saturday or Sunday the number of nights varied. In addition there were times when Aaron worked late on Sundays and stayed with Mr Beddoe and did not attend school on Monday. The respondent and the SSAT in determining the number of days in which Aaron was in the care of his father analysed the payroll records provided by the employer together with the fixtures of AFL games at the MCG. It is unnecessary to repeat this evidence here.
One of the inevitable difficulties in cases such as these was demonstrated by the submission from Mrs Obradovic and the reply from Mr Beddoe. There is a very clear strong antagonism between them with each being very critical of the other and with significant differences in their respective versions of the amount of time Aaron spent with his father. One particular example is that Mr Beddoe maintained that Aaron was regularly with him on a Monday instead of being at school and a record of school absences supports this. Mrs Obradovic stated that Aaron did not work after a Sunday game other than in holiday periods as she was particular about missing school. She did say that during 2003 there were many occasions when Aaron left home at 8 am to go to school but did not attend without her knowledge. However, she was firm that he did not stay with his father on those days.
At the hearing, the respondent considered that an additional 20 days could be added to the previously accepted 43 days in the year ended 30 June 2003 after further consideration of the record of absences from school, football games played on Sundays and the inclusion of 14 days for Easter holidays. Mrs Obradovic, for the reasons outlined earlier, disputes the use of the record of school absences and maintains that Aaron spent only half of the Easter break with his father.
Given the disparity of evidence and the strong enmity between Mr Beddoe and Mrs Obradovic, it is not possible to arrive at a clear answer as to the number of days in which Aaron was in the care of his father in the year ended 30 June 2003. There is a similar dispute even in relation to the Fridays in which Aaron worked at the MCG. Mr Beddoe tended to count such occasions as two days to include the Saturday. Mrs Obradovic maintained that Aaron would leave his home on a 5.00 pm train on Friday, finish work at 1.00 am on Saturday, sleep at his father’s house and return home later on Saturday morning. If this was the case, it could be argued that care by the father was not a full day but commenced at 1.00 am and ended no later than 12 hours later.
Given the totality of the submissions I am prepared to find that Aaron was in the care of Mr Beddoe for a total of 53 days in the year ended 30 June 2003. I am persuaded that it was more than the 43 days originally allowed by the respondent but am not satisfied that it was a further 20 days as proposed by the respondent at the hearing. It is accepted that it was, and will continue to be, impossible to ascertain the accurate number of days given the conflict of evidence and the question of the period of time on each occasion in which Aaron was in the care of his father. I do not accept Mr Beddoe’s claim of 90 days.
There is argument in relation to the period of the month of July 2003. Mrs Obradovic accepts that, as she was to remarry, Aaron was to stay with his father from 12 July 2003. However, she maintains that, on 23 July 2003 she attempted to contact Aaron. Mr Beddoe informed her that he was not aware of where Aaron was other than with his friends. After intervention of Children’s Services, Aaron went to live with an aunt from 1 August 2003. Mrs Obradovic maintains that Aaron was not in the care of Mr Beddoe for all or part of the period from 12 to 31 July 2003. Mr Beddoe did not deny that there were days in that period when Aaron stayed with friends but maintains that all days should be considered as days in which Aaron was in his care. It is, again, impossible from the conflicting evidence to be satisfied as to the actual number of days during July in which Aaron was in the actual care of Mr Beddoe. However it is more probable than not that he could not be said to have been in the actual care of his father for the 20 days accepted by the respondent.
The basic principle for entitlement to FTB under s 22 of the FA Act is that the person who has sole custody of the child under a family law order is the person entitled to the full FTB. Subsection (7) of s 22 provides:
If:
(a)the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual under subsection (2), (3), (4), (5) or (6); and
(b)one of those other individuals makes, or has made, a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in that period; and
(c)subsection 25(1), (1A) or (1B) does not require that the child be taken not to be an FTB child of that individual for any part of that period;
The child is to be taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
In relation to the month of July 2003, Mrs Obradovic accepts that Aaron was to stay with his father from 12 July while she was married and away on a brief honeymoon. However, she maintained that it was expected that Aaron would return to her thereafter. Her statement was that she attempted to contact Aaron on 23 July, after her return. Given the acceptance of both father and mother that he was not with his father on that day or, it would appear, on subsequent days of that week, it is not appropriate to consider those subsequent days as constituting a pattern of care by Mr Beddoe. Consequently, he could not be taken to be an FTB child of Mr Beddoe for the nine days from 22 July 2003.

In view of the foregoing findings it is appropriate to vary the decision of the respondent to the extent that the applicant had care of Aaron for 53 days or 15 per cent in the year ended 30 June 2003 and 11 days or 35 per cent between 1 and 31 July 2003. Accordingly the applicant has an entitlement of those percentages of the FTB for those periods.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr B H Pascoe, Senior Member

Signed: Grace Carney
Personal Assistant

Date of Hearing  20 June 2005
Date of Decision  17 August 2005
Solicitor for the Applicant          Self Represented
Departmental Advocate            Ms E King