Betts and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor

[2006] AATA 916

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 916

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2006/271

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANITA BETTS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

First Respondent

ROBERT BETTS

Second Respondent

DECISION

Tribunal   Ms N Isenberg, Senior Member

Date  27 October 2006

Place  Sydney

Decision

  The Administrative Appeals Tribunal decides to set aside the decision  
  under review is set aside. In substitution for the decision set aside the
  Tribunal decides that the percentages of family tax benefit payable to Mr
  Robert Betts and Mrs Anita Betts in respect of Sharla and Joshua in the
  2004/2005 financial year are:

Robert Betts	Anita Betts
Sharla	20%	80%
Joshua	25%	75%

..............................................

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit -  assessment of percentage of care concerning children – proportion of family tax benefit to each parent – consideration of oral evidence at the hearing – assessment of diary and spreadsheet evidence provided.

Administrative Appeals Tribunal Act 1975

A New Tax System (Family Assistance) Act 1999

Wade v Secretary, Department of Family and Community Services [2004] FCA 1660

Nowicz and Department of Family and Community Services [2001] AATA 628

REASONS FOR DECISION

27 October 2006     Ms N Isenberg, Senior Member 

DECISION UNDER REVIEW

1.      The decision under review, insofar as is relevant, is the decision of the Social Security Appeals Tribunal (“the SSAT”) dated 16 February 2006 to pay Mr Robert Betts and Mrs Anita Betts the following percentages of family tax benefit in respect of their children Sharla and Joshua in the 2004/2005 financial year:

Robert Betts	Anita Betts
Sharla	33%	67%
Joshua	27%	73%

ISSUES BEFORE THE TRIBUNAL

2.      I was to address the following issues:

(a)The percentage of family tax benefit payable to Mr Betts and Mrs Betts in the 2004/2005 financial year (1 July 2004 to 30 June 2005) in respect of Sharla; and

(b)The percentage of family tax benefit payable to Mr Betts and Mrs Betts in the 2004/2005 financial year (1 July 2004 to 30 June 2005) in respect of Joshua.

THE HEARING

3.      At the hearing on 13 September 2006, Mrs Betts was self represented.  Centrelink was represented by Mr Andrew Zhang, an advocate from Centrelink Legal Services Branch.  Mr Betts appeared as the Second Respondent and was self represented.

4.      I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents") numbered T1 – T38, which I took into evidence.  In addition, I was provided with a copy of Mr Betts’ written submissions to the SSAT.  Mr and Mrs Betts also provided copies of diary entries. Mr Zhang of the Centrelink Legal Services Branch provided written submissions in the form of a Statement of Facts and Contentions. 

BACKGROUND

5.      Mr and Mrs Betts were married on 22 April 1994 and have five children.  This appeal relates to Sharla who was born on 2 July 1992 and Joshua who was born on 19 May 1994.

6.      Mr and Mrs Betts separated on 17 February 2004.

7.      On 27 April 2004 Mr Betts informed a Centrelink officer at Fairfield that Mrs Betts had moved out and that the children were in his care.  He lodged a claim for family tax benefit and on 13 May 2004 was awarded 100% family tax benefit.

8.      On 16 May 2004 the children began to reside with Mrs Betts at Smithfield and Mrs Betts began receiving 100% family tax benefit.

9.      On 21 November 2004, Mr Betts lodged a “Details of your child’s care arrangements form” with Centrelink, stating that he had 30.8% care of Sharla and 25.2% of Joshua and that this arrangement had commenced on 1 March 2005 (T10).

10.     On 1 February 2005, Mrs Betts lodged a similar form, stating that she had 90% care of Alana, Sharla and Joshua and that this arrangement had commenced on 1 July 2004 (T12).

11.     On 8 February 2005, Centrelink decided the following shared care percentages in relation to Sharla and Joshua:

Robert Betts	Anita Betts
Sharla	10%	90%
Joshua	10%	90%

12.     On 25 July 2005, an Authorised Review Officer (“ARO”) affirmed the decision to accord Mr Betts 10% of family tax benefit for the children and Mrs Betts 90%.

13.     On 16 February 2006, the SSAT changed the percentages as follows:

Robert Betts	Anita Betts
Sharla	33%	67%
Joshua	27%	73%

14.     On 14 March 2006, Mrs Betts lodged an application for review at this Tribunal.

LEGISLATION

15. Eligibility for family tax benefit arises under section 21 of the A New Tax System (Family Assistance) Act 1999 (“the Act”) and an individual must have a family tax benefit child as defined in section 22 of the Act.

16. In order to calculate the rate of family tax benefit payable, section 59 of the Act requires the Respondent to determine the percentage that is to be Mr and Mrs Betts’ percentage of family tax benefit for the children.

17.     According to the Respondent’s Statement of Facts and Contentions:

“The Secretary is guided by Departmental policy that the Family Tax Benefit rate payable depends on the pattern of care over a financial year or, if the care arrangements change during the financial year, for the period that particular arrangement exists. If the pattern of care changes, the level of care is reassessed from the date it changes. The percentage of care is to be assessed as either:

(a)       the percentage the carers agree that reflects the pattern of care, or

(b)       if the carers cannot agree, the percentage of care based on available                   evidence (including written and oral).

An assessment period begins on 1 July or the day on which the care of a child started to be shared between two or more people (whichever is later) and it ends o the day the care provided changes or 30 June of the financial year in which the period began (whichever is earlier).”

18.     A person’s annual rate of Family Tax Benefit is dependent on a number of factors, including the person’s pattern of care of each 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).

19. 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% of a period, then the child is taken not to be an FTB child of that individual for that period, that is, no Family Tax Benefit is payable at all to that individual.

CONSIDERATION OF THE EVIDENCE

20.     In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.

21.     Both parties agreed that the arrangement is that the children essentially come and go as they please from the home of each parent.  While this is no doubt suits the children, it creates some difficulties in ascertaining with precision, what might have been the "pattern of care" in respect of each child during the relevant period.  In fact the arrangement is such that there is no pattern.  The looseness of the arrangement is confirmed by the reasons for judgment in interim family law proceedings when the judicial registrar declined to make orders with respect to the children.  The judicial registrar had available the family report in respect of the children which noted:

“Because of the ages of the [ 3 ] youngest Betts’ children are and their level of      maturity, it is recommended that no defined orders be put in place.  [All 3]         children currently make their own arrangements with their father and want this           continued.” 

22.     This arrangement, no doubt, is highly satisfactory as far as the children are concerned, such that they essentially come and go as they please.  For their parents, while diffusing a possible source of discord, namely the “custody” issue, I would think it is something of a logistical nightmare. That however, is not my concern. The problem that such a loose arrangement creates is that I have the unenviable task of attempting to quantify the care provided by each parent. Section 22(7) points me to identifying one or more “pattern(s) of care”.

23.     I note the decision of Wade v Secretary, Department of Family and Community Services [2004] FCA 1660 in relation to the assignment of shared care percentages. In paragraph 29, Kiefel J noted that the SSAT and the AAT were correct in finding that the Family Assistance Act 1999:

“does not explain how the percentage, that is to be the person’s percentage of      
FTB for the child, is to be determined for the purposes of section 59 of the Act. The guidelines provide for the steps which may be undertaken to achieve that

result.  Guidelines may

fulfil this function, so long as what is suggested in them is not inconsistent with

the purpose and intended operation of the Act.”

Further, Kiefel J stated:

“It is however clear from the Act that its object is to provide a benefit to the person having the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided by them. This is the way the SSAT and AAT approached the matter. In my view they were correct.”

24.     The parties agreed that the SSAT had undertaken a laborious analysis of the available information in relation to when the children were with each of their parents. 

25.     I note that at paragraph 55 of the decision under review, the SSAT compared two periods where there was diary evidence from both Mr and Mrs Betts.  The SSAT commented that:

“…These were for the school holiday period extending from 3 July 2004 to 18 July 2004, a period of 16 days and 7 June 2004 to 20 June 2004, a period of 14 days in school time. The latter period was outside the time of the review but the tribunal decided to look at it as it was the only period where the children were at school for which there was evidence from both Mr and Mrs Betts. The tribunal tried to calculate as accurately as possibly taking into account the evidence of both parties on an hourly basis and rounding the percentage of care up or down to the closest 0.5%”

26.     I did not have that diary evidence before me to consider.  Attempts were made at trying to locate these documents however it appears that they are not available for production, either by the parties or the SSAT.

27.     The following periods of diary evidence were available however:

Mrs Betts

·16 May 2004

·June 2004 (various dates)

·July 2004 (various dates)

·August 2005 (various dates)

·September 2005 (various dates)

·October 2005 (various dates)

Mr Betts

·Spreadsheets representing May 2004 to June 2005

·Diary Evidence from 20 July 2004 to 22 June 2005

28.     As a result there is difficulty in comparing precisely the same period for Mr and Mrs Betts.  Mrs Betts has one diary entry for May 2004.  While Mrs Betts has diary evidence available for June 2004, Mr Betts has only the spreadsheets and no diary entries for June 2004. Mrs Betts has some diary entries for July 2004 but only up until Tuesday 20 July 2004 and Mr Betts starts his diary entries on 20 July 2004.  There appears to be no overlapping period which I can directly compare the documentary evidence of Mr and Mrs Betts.

29.     In order to assess the proportion of which the children, Sharla and Joshua, were in the care of either Mr or Mrs Betts I gave consideration to the evidence of the individual diary entries and the oral evidence of each of Mr and Mrs Betts.  Other documents, by way of statements from friends of Mrs Betts were of little assistance in identifying with any certainty precisely when the children were in her care.  In saying this I recognise that the statements reflect the very positive way Mrs Betts’ friends regard her parenting skills.

30.     In the case of Mr Betts I looked at the School Holiday Period from 25 September 2004 to 10 October 2004, a period of 16 days.  I also reviewed the School Period from 1 November 2004 to 7 November 2004, a period of 7 days.  I compared his spreadsheet and his diary entries of his care arrangements for Sharla and Joshua.  Mr Betts’ diary was particularly hard to read and decipher.

31.     I note the following in relation to Mr Betts’ diary and spreadsheet evidence:

School Holiday Period: 25 September 2004 to 10 October 2004

Saturday 25 September:                Mr Betts’ diary evidence notes that Joshua and   Sharla were at his home during the day.  He notes   that Sharla and Joshua stayed overnight.  Mr Betts   does not list this in his spreadsheet evidence.  

Sunday 26 September:                 Mr Bett’s diary evidence states “see yesterday   entries”.  For Sharla and Joshua, Mr Betts lists on   his spreadsheet as a 1.00 of a day in care.

Monday 27 September:                 Mr Betts notes in his diary that he gave Joshua   and Sharla breakfast and then lunch.  He states   that Joshua and Sharla wanted to go back to   Oxford Street as they were bored and he took   them back at about 10:15pm.  Mr Betts lists this on   his spreadsheet for both Sharla and Joshua as   0.75 of a day in care.

Tuesday 28 September:                 Mr Betts notes in his diary that Joshua slept over.   Mr Betts lists on his spreadsheet nothing for   Sharla and 1.00 of a day in care for Joshua.

Wednesday 29 September:           Mr Betts records in the diary that Joshua stayed all        day and that Joshua and a friend came to stay.  Mr   Betts notes that he took Joshua back to Oxford   Street.  The spreadsheet records nothing for   Sharla and 1.00 of a day in care for Joshua. 

Thursday 30 September:               Mr Betts notes in the diary that Joshua stayed   overnight.  He states that Joshua did not want   breakfast.  Joshua was picked up at 3:30pm.  Mr   Betts notes that Sharla stayed over.  Mr Betts lists   on his spreadsheet 1.00 of a day in care for Sharla   and 0.75 of a day in care for Joshua.

Friday 1 October:  Mr Betts writes in the diary that he gave $25 to   Sharla for pictures and that he took Sharla and   Nerrida to the pictures.  Mr Betts records that he   took Sharla to Oxford Street at 9:15.  Mr Betts lists   on the spreadsheet 0.75 of a day in care for Sharla   and nothing for Joshua.

Saturday 2 October:  Mr Betts records nothing in his diary regarding   Sharla and Joshua for this day. Mr Betts lists   nothing on his spreadsheet regarding the care of   Sharla and Joshua for this day.

Sunday 3 October:  Mr Betts does not record anything in his diary or   spreadsheet relating to the care of Sharla and   Joshua for this day.

Monday 4 October:  Mr Betts records in his diary that he received a call   from Sharla saying that she wants to come over for   a swim.  Mr Betts writes that Joshua, Sharla and   Nerrida turn up at about 2pm for a swim.  It is hard   to decipher from the handwriting whether or not   Sharla and Joshua stayed over.  Mr Betts lists on   his spreadsheet a 0.25 of a day in care for Sharla   and 1.00 of a day in care for Joshua.

Tuesday 5 October:  Mr Betts records in his diary that he got Joshua   breakfast.  He also indicates that Joshua stayed   over for the night.  Mr Betts lists in his spreadsheet   nothing for Sharla and a 1.00 of a day in care for   Joshua.

Wednesday 6 October:                  This diary entry is particularly unclear.  It indicates   that Joshua had just come home to Oxford Street   and that then later that Sharla was taken to Oxford   Street.  It ends with Joshua back in Oxford Street.   Mr Betts records on his spreadsheet a 1.00 of a   day in care for Sharla and a 0.75 of a day in care   for Joshua.

Thursday 7 October:  Mr Betts records in his diary that Sharla and   Nerrida were at his place all day.  Mr Betts   indicates that Sharla went back with “AB” (Anita   Betts) at 4:30pm.  Mr Betts lists on his   spreadsheet a 0.75 of a day in care for Sharla and   nothing for Joshua. 

Friday 8 October:  Mr Betts writes in his diary that Joshua and Sharla   came down at 11:30am.  Mr Betts lists on his   spreadsheet a recording of 1.00 of a day in care   for Sharla and 1.00 of a day in care for Joshua.

Saturday 9 October:  Mr Betts indicates in his diary that different   camping activities that happened on this day.  Mr   Betts lists on his spreadsheet a recording of 1.00   of a day in care for Sharla and 1.00 of a day in   care for Joshua.

Sunday 10 October:  Mr Betts continues to record in his diary various   activities associated with the end of the camping   trip.  He notes later on in the diary entry that   Joshua and Sharla went back with AB. Mr Betts   lists on his spreadsheet a recording of 0.75 of a   day in care for Sharla and 0.75 of a day in care for   Joshua.

School Period: 1 November 2004 to 7 November 2004

Monday 1 November:  Mr Betts records nothing in either his diary or   spreadsheet for this day.

Tuesday 2 November:  This diary entry is particularly difficult to read.  Mr   Betts refers to Sharla but it is difficult to decipher.   Mr Betts does not list anything on his spreadsheet   relating to Sharla or Joshua.

Wednesday 3 November:              Mr Betts does not write anything in this diary entry   that refers to Sharla and/or Joshua.  Mr Betts does   not list anything in his spreadsheet relating to   Sharla and/or Joshua.

Thursday 4 November:                 Mr Betts mentions Sharla briefly in his diary entry   however it is hard to ascertain what he is   recording.  Mr Betts lists on his spreadsheet a   recording of 0.25 of a day in care of Sharla and   nothing for Joshua.

Friday 5 November:  Mr Betts mentions nothing in his diary entry   relating to Sharla and/or Joshua.  Mr Betts does   not list anything on his spreadsheet relating to   Sharla and/or Joshua.

Saturday 6 November:                   Mr Betts records in his diary that Joshua and   Sharla turn up at his place at about 2pm.  Mr Betts   indicates that Joshua and Sharla stayed over.  Mr   Betts lists in his spreadsheet a recording of 1.00 of   a day in care of Sharla and 1.00 of a day in care   for Joshua.

Sunday 7 November:  Mr Betts writes in his diary that Joshua and Sharla   stayed till 2:30pm.  Mr Betts lists this on his   spreadsheet as 0.50 of a day in care for Sharla   and 0.50 of a day in care for Joshua.

32.     Mrs Betts considered that she was disadvantaged in her application for review because, she said, she had been told by Centrelink when she first applied for FTB, that a diary would be of no assistance to her.  As I told her at the hearing, it was not my role to canvass whether or not she had been given that advice.

33.     I looked to whether there was some common ground in Mr and Mrs Betts’ evidence before me.  

School holidays

34.     I calculated the number of days in the school holidays on a slightly different basis to the SSAT, in that I included the weekends as part of the holiday period. 

35.     The result for the number of days during school holidays use as follows:

July   16 days

September/October             17 days

Summer   37 days

April  17 days         

Total  87 days

36.     Mrs Betts’ evidence, after having refreshed her memory from her personal diary, in relation to the July school holidays, was that Joshua was with his father for 8 nights of the holidays.  According to the calendar for 2004 the July school holidays were for 16 days (including weekends).  Mr Betts contention, put in general terms, was that the children were with him for 50% of the time during each school holidays.

37.     On the basis of the July figures, Mr and Mrs Betts were broadly in agreement as to the number of nights Joshua was with his father in the July holidays.  \

38.     Mr Betts conceded that Sharla was with him a little less than Joshua was.  Again, after consulting her personal diary Mrs Betts was able to say in relation to the July school holidays that Sharla was with her father for 3 nights plus the camping time which was of another 3 nights duration.  In total therefore Sharla was with her father for 6 of the 16 days (including weekends).

39.     Mrs Betts said that for the other holidays the children stayed with their father pretty much as they had in the July holidays, although would perhaps be with him more during the summer time because he has a pool.  It was therefore appropriate in my view to come to the same conclusion in relation to the September/October holidays and the April holidays, that is that Mr Betts had Joshua for half of the time and Sharla 6/16 of the time.

40.     For July, September/October and April, I find Joshua to have been in the care of his father for a total 25 of the 50 days.  In relation to Sharla, I find her to have been in her father's care, applying the formula above, for 19 of the 50 days.

41.     In relation to the long summer holidays, in view of Mrs Betts concession that the children were with their father more during those holidays, I have calculated the Joshua to have been in Mr Betts’ care for 25 of the 37 days.  Therefore I calculate that the total number of days Joshua to have been with his father during school holidays as 50 days.  At the hearing Mr Betts agreed that the SSAT's findings in relation to Sharla’s care during the school holidays at 35% to be accurate.  That is, 13 of the 37 days.

Non school holiday care

42.     There was common ground between Mr and Mrs Betts that Joshua would stay with his father on Saturday nights.  On my calculations there are 38 remaining Saturday nights outside the school holiday periods: an additional 38 days.

43.     In relation to Sharla, there was some agreement that Sharla did not stay with her father as often as Joshua.  There was dispute however as to how frequently she may have missed a Saturday night: Mrs Betts thought to it was as high as 1 in 4 Saturdays whereas Mr Betts thought it was not as often as that.  Allowing, say 1 weekend in 5 missed: 30 days

44.     I also take into account the evidence that both Sharla and Joshua both spent additional time with their father on weekends when they did not necessarily stay the night.  They also came after school (and more frequently than Joshua). In Sharla’s case Mr Betts said she often dropped in after school because it was nearby.  In those circumstances I have allowed an additional 3 days for Joshua and an additional 9 days for Sharla.

45.     In summary therefore:

Joshua          a total of 91 days
Sharla           a total of 73 days

46.     I have done the best I can with the available information.  I recognize that as the children mature they may change their interests and spend more time with one parent than the other than they have done in the period under review.  If circumstances change fresh applications need to be made.  I am conscious though that in Nowicz and Department of Family and Community Services [2001] AATA 628 the Tribunal was concerned that Centrelink should not be forced into a position whereby it must entertain continual applications for variation of the Family Tax Benefit apportionment based upon minor changes in actual day to day care arrangements. However, if the circumstances change in respect of either child, fresh applications need to be made.

47.     Taking into account the matters discussed above which detract from the reliability of the spreadsheet, I have come to the view that the respective care is best described as follows:

Robert Betts	Anita Betts
Sharla	20%	80%
Joshua	25%	75%

DECISION

48.     The Administrative Appeals Tribunal decides to set aside the decision under review. In substitution for the decision set aside the Tribunal decides that the percentages of family tax benefit payable to Mr Robert Betts and Mrs Anita Betts in respect of Sharla and Joshua in the 2004/2005 financial year are:

Robert Betts	Anita Betts
Sharla	20%	80%
Joshua	25%	75%

\

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         Associate

Date of Hearing  13 September 2006  
Date of Decision  27 October 2006
Representative for the Applicant               Mrs A Betts, Self Represented   
Representative for the First Respondent  Mr  A Zhang,
  Centrelink Legal Services Branch
Representative for the Respondent          Mr R Betts, Self Represented