Blanck and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 486
•14 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 486
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5093
GENERAL ADMINISTRATIVE DIVISION ) Re Jeffrey Blanck Applicant
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent
And Tracey van Leeuwen
Third Party
DECISION
Tribunal Ms N Bell, Senior Member Date14 July 2011
PlaceSydney
Decision
The Tribunal sets aside the reviewable decision of 2 November 2010 and instead decides that Mr Blanck had a shared care percentage of 54% for the 2009/2010 financial year.
...................[sgd].............................
Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – apportioning payment between parents – percentage care of child – evidence of periods of care from documentary material – correct percentage of care – decision under review set aside.
A New Tax System (Family Assistance) Act 1999 s 21
REASONS FOR DECISION
14 July 2011 Ms N Bell, Senior Member 1. Jeffrey Blanck and his former wife, Tracey Van Leeuwin, are the parents of “A”. For the purposes of apportioning the payment of Family Tax Benefit between the parents, Mr Blanck’s percentage share of A’s care was assessed by Centrelink at the commencement of the 2009/2010 financial year as 78%. Throughout that financial year, the percentage care assessment varied and on 13 August 2010, Centrelink decided that Mr Blanck’s shared care assessment for 2009/2010 was 57%. That decision was affirmed by an authorised review officer. The Social Security Appeals Tribunal substituted a new decision that Mr Blanck had 55% of the care of A during 2009/2010. Mr Blanck now appeals that decision to this Tribunal.
2. Mr Blanck contended that he had more than 70% of the care of A during the relevant period. Mrs Van Leeuwin, who was joined as a party to the proceedings, contended that Mr Blanck had substantially less than that percentage of A’s care.
3. The dispute is a factual one. There are many periods throughout the 2009/2010 financial year on which Mr Blanck and Mrs Van Leeuwin agree:
·A was in the care of Mr Blanck: 1 July – 30 July 2009; 21 October – 26 November 2009; 2 December – 12 December 2009; 1 January – 21 January 2010; 11 March 2010; 16 March – 6 June 2010; 8 June – 16 June 2010. This amounts to 192 days.
·A was in the care of Mrs Van Leeuwin: 31 July – 20 October 2009;27 – 29 November 2009; 28 – 31 December 2009; 22 January to 28 January 2009; 17 – 30 June 2010. This amounts to 110 days.
4. Through the remaining periods each maintains that A was in his or her care. The periods in dispute are:
30 November – 1 December 2009
13 December – 22 December 2009
23 December – 27 December 2009
29 January – 10 March 2010
12 March – 15 March 2010
7 June 2010
5. Mr Blanck and Mrs Van Leeuwin each had recollections and diary notes of varying detail concerning these periods. In addition, there was some material contained in family law proceedings affidavits and other correspondence concerning the periods in dispute.
30 November – 1 December 2009
6. Mr Blanck referred me to a diary entry that noted that on 30 November 2009 he had received a text message from A to pick him up from school.
7. On the other hand, Mrs Van Leeuwin referred me to a diary note that said she took A to the doctor on that day and later to a film and to a diary note on 1 December that said he refused to go to school and spent the day with her mother. The diary note for 2 December says A went to his father.
8. I am satisfied, on the basis of Mrs Van Leeuwin’s diary notes, which are more detailed and specific, that A was in the care of his mother from 30 November to 1 December.
13 December – 22 December 2009
9. Mr Blanck referred me to a diary note that said on 11 December A refused to return to his mother.
10. Mrs Van Leeuwin referred me to a diary note dated 13 December that said she expected A to be dropped off late that night. Her diary note of 14 December said A had arrived at 11.45 pm on the evening of 13 December.
11. Mrs Van Leeuwin also referred me to diary notes dated 17, 19, 21 and 22 December that indicated A was in her care. A diary note dated 23 December said A returned to his father on that day.
12. The diary notes provided by Mrs Van Leeuwin are more detailed, specific and numerous and support her contention that A was in her care from 13 December to 22 December.
29 January – 10 March 2010
13. Mr Blanck referred me to his diary note of 29 January 2010 which says he picked A up on that day and to his diary note of 9 March 2010 that says A “took off to his mother’s” on that day.
14. Mr Blanck explained that he has no notes about the intervening period because his sole purpose in making entries was to document drop off and pick up times in relation to A and A’s movements between parents. He also referred me to a statement by his mother, Brenda Blanck, to the effect that A had left his mother’s care on 29 January and returned to her on 9 March 2010.
15.
Mrs Van Leeuwin had a diary entry for almost every day in the period from
29 January to 17 March, indicating that A was in her care from 29 January until 15 March, with the exception of 11 March when A was with his father. In addition,
Mrs Van Leeuwin referred me to Mr Blanck’s affidavit in the family law proceedings sworn on 24 December 2008, at paragraph 29:
“At the beginning of the 2010 school year [A] returned to live with his mother. …[A] returned to my care in March 2010. On or about 11 March 2010 [A] asked me to pick him up, which I did.”
16. Similar statements are made by Mr Blanck elsewhere in the affidavit and in an affidavit sworn on 12 May 2010.
17. Mr Blanck did not deny that the affidavits were sworn by him, but said they were sworn at a time when everything was very difficult and confusing.
18.
Given the number and detail of the diary notes presented by Mrs Van Leeuwin during this period of some six weeks, and the affidavits previously sworn soon after the relevant period by Mr Blanck, I am satisfied that A was in the care of
Mrs Van Leeuwin from 29 January to 10 March.
12 March – 15 March 2010
19. Mr Blanck referred me to diary notes of 11, 12, 13, 14 and 15 March which noted that A was in his care from 11 to 13 March, returned to his mother on 14 March and then returned to Mr Blanck on 15 March.
20. Diary notes provided by Mrs Van Leeuwin say that A was in her care on 12, 13, 14, 15 and 16 March and returned to his father on 17 March. This last date (17 March) is not in accordance with the dates agreed between Mr Blanck and Mrs Van Leeuwin, but, given that agreement, I accept that A was in the care of his father.
21. As for the remaining days in this short period, I note the evidence of Mr Blanck that he made few diary entries and only when A’s movements were of some significance. On this basis, I prefer the record of Mr Blanck where the diary notes conflict. A was in the care of Mr Blanck on 11, 12, 13 and 15 March. A was in the care of Mrs Van Leeuwin on 14 March.
7 June 2010
22. Mr Blanck said there was no entry in his diary on this day and so he assumes that A was in his care.
23. Mrs Van Leeuwin referred me to a diary note on 7 June saying that she was called by the school to pick A up because he was ill. The implication in the note is that he stayed at her house that night. The diary note for 8 June says A was late for school.
24. Given the explicit diary notes provided by Mrs Van Leuwin, I am satisfied that A was in the care of his mother on 7 June 2010.
23 december to 27 december 2009
25. In addition, both parents were unclear about the dates 23 December to 27 December. However, I note Mrs Van Leeuwen’s diary note that A returned to his father on 23 December. On this basis, I conclude that A was in his father’s care from 23 December to 27 December.
conclusion
26. I find that in the 2009/2010 financial year A was in the care of his father for 197 days. He was in the care of his mother for 168 days. This means that the correct percentage of shared care for Mr Blanck for the 2009/2010 financial year is 54%.
decision
27. The Tribunal sets aside the reviewable decision of 2 November 2010 and instead decides that Mr Blanck had a shared care percentage of 54% for the 2009/2010 financial year.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed:...................[sgd].............................................................
C. Taylor AssociateDate of Hearing 29 June 2011
Date of Decision 14 July 2011
Appearance for the Applicant Self-representedAppearance for the Respondent G. Lozynsky, Centrelink Program Litigation and Review Branch
Appearance for the Third Party Self-represented
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