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

[2016] AATA 518

Bertram and Secretary, Department of Social Services (Social services second review) [2016] AATA 518 (22 July 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0188
Re	David Bertram
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Maria Ganley
OTHER PARTY

DECISION

Tribunal	Deputy President I R Molloy
Date	22 July 2016
Place	Brisbane

The decision under review is affirmed.

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Deputy President I R Molloy

CATCHWORDS

FAMILY TAX BENEFIT – FTB Child – percentage of care – where inconsistent evidence between parents – decision under review affirmed.

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) s 22

REASONS FOR DECISION

Deputy President I R Molloy

22 July 2016

1. This is an application by David Bertram for review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) made on 11 December 2015. The decision was that Maria Ganley be recorded for the purposes of the family tax benefit (“FTB”) as having 100 percent care of the child Owen from 1 February 2013 and not from 22 December 2014 as previously decided.

   Background

2. Mr Bertram and Mrs Ganley are the parents of Owen born 16 March 1999. On 21 July 2009 the Federal Magistrates Court made parenting orders in respect of Owen and his older siblings Jesse and Coralee.

3. The orders included that the children live and spend time with their parents as agreed by the parents in writing. The court further ordered that, failing written agreement, Owen and Jesse live with their father, and Coralee live with her mother, and that the children each spend specified time with the parent with whom they are not living. 

4. Qualification for the FTB depends, among other criteria, on a person having an FTB child as defined in s 22 of A New Tax System (Family Assistance) Act 1999 (Cth) (“the Family Assistance Act”). The Family Assistance Act provides that where a child is an FTB child of more than one person, the Secretary is required to reach a determination as to the percentage of a period that a child was, or is likely to be, in the care of each individual for whom the child is an FTB child.

5. From 21 November 2011, the care arrangements for Owen were assessed as being shared equally by his parents. On 19 February 2015, the Department made a decision that Mrs Ganley should be recorded as having 100 percent care of Owen from 1 February 2013.

6. On 28 July 2015, an authorised review officer decided that the care of Owen should be recorded as being shared equally until 22 December 2014, when Mrs Ganley should be recorded as having 100 percent care of Owen.

7. On 11 December 2015, on application by Mrs Ganley, the reviewable decision was made, setting aside the authorised review officer’s decision, and in substitution determining that Mrs Ganley be recorded as having 100 percent care of Owen from 1 February 2013. 

   Issues

8. The issues are the percentage care provided to Owen by each of Mr Bertram and Mrs Ganley for the periods 1 February 2013 to 31 December 2013, and 1 January 2014 to 22 December 2014.

9. Mr Bertram maintained that Owen’s care was shared equally during these periods. He did not dispute that from 22 December 2014 Mrs Ganley should be recorded as providing 100 percent of care. Mrs Ganley maintained that she had provided 100 percent of the care for Owen from 1 February 2013. 

10. Mr Bertram and Mrs Ganley were each self-represented. The Secretary was represented but, whilst furnishing a written submission, did not seek any particular order.  

    Evidence

11. Each of Mr Bertram and Mrs Ganley gave evidence by telephone. Mr Bertram argued his case forcefully maintaining that Owen spent time with him, and elsewhere, in the relevant periods, only ceasing to live with him in late December 2014. Whilst adamant in what he said, Mr Bertram’s evidence about Owen’s actual living arrangements was fairly vague.

12. Mr Bertram appeared to read from a prepared statement. This included criticisms of Mrs Ganley and complaints about the processes by which previous decisions had been made. Attempts to confine Mr Bertram to what was relevant brought claims that he was being shut down. It was clear, after this happened a couple of times, that he had nothing more to say of relevance to the issues. Subsequent to the hearing Mr Bertram sent the Tribunal a written submission including most of what he had said and what he believed he had been prevented from saying.

13. Mr Bertram also relied on sworn statements, dated 24 April 2015, from Patrick Bott and Lawrence Andrew Wyvill. Mr Bott said he stayed and visited with Mr Bertram for more than twelve and a half months from December 2013, and he could verify Owen lived with Mr Bertram “for approximately half that time week to week while I was there until December 2014 when he went to his mum’s for holidays”. He said he knew Mr Bertram was distressed over recently losing Owen “to Maria’s ongoing attempts to ostracize David from his kids so she may receive all the family tax payment.” Mr Bertram said Mr Bott was a German who had now returned to Germany.

14. Mr Wyvill said he had stayed with and visited Mr Bertram many times over the past two years and can verify that Owen had lived with Mr Bertram “for approximately half that time week to week until December 2014”. He said: “I was there when they had an argument about Owen playing too long on the Xbox and not helping out around the house; at which time Owen threatened to not come back because his mother was willing to pay him to stay at his mother’s house permanently.”

15. Neither Mr Bott nor Mr Wyvill gave oral evidence. Not knowing anything of Mr Bott’s and Mr Wyvill’s backgrounds or character I was not able to gauge the reliability of what they had to say in their brief statements. Mr Bertram also provided school reports for Owen although they did not provide any information which assists in determining the issues.

16. Mrs Ganley maintained Owen was living with her and had virtually no contact with Mr Bertram in the relevant periods. She asserted that she provided for all of Owen’s daily needs and paid for his schooling, activities such as gym attendances, food, clothing and medical expenses.

17. Mrs Ganley produced a bulk billing invoice from Urangan State High School for Owen which disclosed regular payments she had made during the relevant periods. She also relied on a letter from the manager of a gym dated November 2015, stating that she had been paying for Owen’s attendance since August 2012.

18. Mrs Ganley also relied on statements from the children. A statement said to be from Owen was unsigned and undated, and consequently I am not inclined to give it any weight. A statement from Jesse, Owen’s brother, born in 1994, supported Mrs Ganley’s claim that she had been providing for Owen during the relevant periods, and that neither he nor Owen had had anything to do with their father “in many years”. A statement from Owen’s sister, Coralee, born in 1996, also supported Mrs Ganley’s claims concerning the care she provided to Owen.

    Consideration

19. Mrs Ganley and Mr Bertram gave entirely inconsistent accounts of Owen’s care in the relevant periods. There is no question of one of them simply being mistaken. Unfortunately I have not had the opportunity to observe Mrs Ganley or Mr Bertram giving evidence in person.

20. Based on what I have heard and read I prefer Mrs Ganley’s evidence supported by the documents I have mentioned. Mr Bertram’s evidence was lacking in detail, and I formed the impression that his criticisms, and claims that he was being shut down, were his way of avoiding the real issues.

21. It is of course unfortunate that the children have become involved as they have. I am also conscious that children can sometimes be manipulated by a parent to say what the parent wants. On the other hand, Owen’s brother and sister are adults, and presumably less susceptible to parental influence of that kind.

22. Mr Bertram claimed that the children were biased against him, and pointed out that their statements were not sworn claiming they were illegal. However he did not contend the children did not write and sign the statements, or that the children were not in a position to give first-hand evidence of Owen’s day to day care at the relevant times.

    Conclusion

23. In the result, having heard Mr Bertram and Mrs Ganley, assessing their credibility as best I can, and taking into account all of the evidence, I am satisfied that Mrs Ganley provided 100 percent of the care for Owen in the periods 1 February 2013 to 31 December 2013, and 1 January 2014 to 22 December 2014.

24. Consequently, the decision on 11 December 2015 varying the percentage care for Owen to be 100 percent to Mrs Ganley from 1 February 2013, and not 22 December 2014, is affirmed.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

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Associate

Dated 22 July 2016

Date(s) of hearing	24 June 2016
Applicant	Self-represented
Solicitors for the Respondent	Department of Human Services
Other Party	Self-represented