Blight and Secretary, Department of Family and Community Services and Anor
[2002] AATA 1123
•14 October 2002
DECISION AND ORAL REASONS FOR DECISION [2002] AATA 1123
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/105
GENERAL ADMINISTRATIVE DIVISION )
Re SIMON BLIGHT
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
First Respondent
And SUSAN MORRISSY
Second Respondent
DECISION
Tribunal Senior Member WJF Purcell
Date14 October 2002
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review, and substitutes a decision that the wife is to be paid 71% of Family Tax Benefit and the husband 29%.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Family Tax Benefit – shared care of FTB child – correct entitlement of proportion of Family Tax Benefit in respect of son
A New Tax System (Family Assistance) Act 1999 sections 21, 22, 59
ORAL REASONS FOR DECISION
14 October 2002 Senior Member WJF Purcell
This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 7 March 2002, which varied the decision of an Authorised Review Officer, and decided that the second respondent (the wife) was eligible for 73% of the Family Tax Benefit to be paid in respect of a child of the marriage, Jake Blight, and the applicant (the husband) was entitled to 27% of the Family Tax Benefit.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the parties. The husband appeared on his own behalf and gave oral evidence. Ms Pugsley represented the respondent (the Department), and the wife appeared on her own behalf, and gave oral evidence.
The husband and wife share the care of their son, Jake, who was born on 30 December 1996. Late in 2001 they both applied for Family Tax Benefit in respect of Jake. On 30 August 2000, the Federal Magistrates' Court had made a Consent Order in relation to the shared care of Jake. The husband and the wife are in dispute for the purposes of the rate of payment of Family Tax Benefit, having regard to the degree of contact of each of them pursuant to the Consent Order, which provides, inter alia, that the husband is to have contact as follows:
"2. …
(a)on each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday, to be extended to 6.00 pm on Mondays when the Monday immediately following a contact weekend is a public holiday commencing 1 September 2000;
(b)on alternate Easters commencing in the year 2000 from 9.00 am on Good Friday until 6.00 pm on Easter Monday;
(c)in the year 2001 and each alternate year thereafter from 3.00 pm on Christmas Day until 6.00 pm on Boxing Day;
(d)in the year 2000 and each alternate year thereafter from 6.00 pm on Christmas Eve until 3.00 pm on Christmas Day
(e)on the child's birthday and the father's birthday in each year for a period of 2 hours if the birthday falls on a weekday, and for a period of 4 hours in the event that the birthday fall on a non-contact weekend PROVIDED THAT if the child's birthday falls on a contact weekend then and in such case the father shall return the child to the mother for a period of 4 hours;
(f)on each alternate Friday from 5.30 pm until 9.00 am on Saturday morning commencing 9 September 2000;
(g)on Fathers Day in each year from 11.00 am until 6.00 pm in the event that Fathers Day falls on a non-contact weekend PROVIDED THAT if Mothers Day falls on a contact weekend then the father shall return the child to the mother at 11.00 am.
…
6.That, once the child commences school, the father do have contact with the child for one half of all school holiday periods UPON THE FOLLOWING CONDITIONS:
6.1that the father is also on leave from his employment during such school holiday periods as he has contact;
6.2that the father give the mother one month's written notice of the contact times which he seeks;
6.3that the father provides details of any telephone number at which the child may be contacted during such period together with details of any holiday destination to which the father may take the said child during his period of holiday contact;
6.4that the mother be entitled to telephone the child between 6.30 pm and 7.30 pm on Wednesdays and Saturdays when the child is in the care of the father;
6.5that before the child commences school, the father shall have two periods of one week contact each during kindergarten holidays upon the same terms and conditions as paragraphs 6.1 to 6.4 inclusive.
…"
Section 21(1) of the A New Tax System (Family Assistance) Act 1999 (the Act) provides:
"21(1) An individual is eligible for family tax benefit if:
(a)the individual has at least 1 FTB child (see section 22 and later provisions); and
(b) the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or(ii) satisfies subsection (1A); and
(c)the individual's rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil."
Section 22(3) of the Act provides:
"22(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 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 have contact; and
(d) the individual is in the adult's care; and
(e)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult."
Section 59(1) of the Act Provides:
"59(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."
On 12 September 2001 the husband advised the wife that his employer would provide him with 4 weeks leave, which he intended to spread equally over the calendar year 2002 [T4/49]. By the time of his interview with the delegate, on 11 December 2001, he had arranged an additional weeks leave from his employment, providing him with 5 weeks holiday leave per year; and as at today's Hearing his recreation leave provision is now 6 weeks per annum.
As there was disagreement between the husband and the wife as to the level of payment, a Departmental delegate decided on 11 December 2001 that the wife was eligible to be paid 72%, and the husband was eligible to be paid 28% of Family Tax Benefit. The delegate's calculations appear at T14/64 as follows:
"I have now interviewed both parties by phone and in person re the shared care issue. I have tried to simplify the calcs as what was presented to me was rather involved.
Simon Blight actually says he will have 117 days from 1/1 to 31/12/02.
I have made the following calcs if he were to have 6 wks school hols.
School hols 6 weeks = 42 days = 1008 hours
For the remaining 46 wks-
23 wks from 6.00 fri to 6.00 sun (48 hrs) = 1104 hrs
23 wks from 5.30 fri to 9.00 sat (15.5 hrs) = 356.5 hrs
total so far 2468.5 hrs, ie 102.85 days
to this add 2.5 public hols, 1 day at christmas and 1.5 days at easter
(both parties agree with this and want it to be included).
Total 102.85 plus 5 = 107.85 days = 29.55%
To calculate using 4 weeks hols, not 6
Holidays are 28 days = 672 hrs
For the remaining 48 weeks-
24 weeks from 6.00 fri to 6.00 sun (48 hrs) = 1152 hrs
24 weeks from 5.30 fri to 9.00 sat (15.5 hrs) = 372
total so far 2196 hrs, ie 91.5 days
adding public hols etc as above 91.5, plus 5 = 96.5 days = 26.44%
the average of these two is 27.99%
in view of the different interpretations, I will base my decision on this figure, ie 28% to him, 72% to her."The husband applied for review of the decision, and on 22 January 2002 an Authorised Review Officer varied the decision, and substituted a decision that the wife be eligible to be paid 69% and the husband was eligible to be paid 31% of Family Tax Benefit. The Authorised Review Officer's reasons for decision read in part:
"…
You consider you should get a higher percentage. You state that in addition to your 4 weeks annual leave your employer has approved 5 days leave without pay and that from 30/1/02 your access with Jake will consist of 52 Friday nights, 26 Saturday nights, 6 days school holiday access from 20/4/02 to 25/4/02, 6 days school holiday access from 13/7/02 to 18/7/02, 6 days school holiday access from 5/10/02 to 10/10/02, 14 days school holiday access in January 2003, 1.5 days average for Easter, 1 day average for Christmas Day and Boxing Day and 2 days average for Monday public holidays. This amounts to total access of 114.5 days which equates to 31.36%. For Family Tax Benefit purposes this figure is rounded to 31%.
Your solicitor advises that the Order provides for the continuation of your weekend contact during school holiday periods and it has been accepted by the Family Assistance Office that this interpretation is reasonable. I have therefore decided that your access as stated is appropriate for determining your rate of payment of Family Tax Benefit.
…" [T27/85-86]
The wife applied for review of the decision, and on 7 March 2002 the SSAT varied the decision and substituted the decision under review, that the wife be eligible to be paid 73% and the husband eligible to be paid 27% of Family Tax Benefit. The husband has applied for review of the SSAT decision. The SSAT's Reasons for Decision reads in part:
"…
Ms Morrissy did not accept that Mr Blight had a right to claim more than 4 weeks of holiday contact leave. However, Clause 6 indicates that Mr Blight is entitled to leave for half of all school holiday periods subject to certain conditions including Mr Blight being on leave from his employment during such periods.
The Tribunal has therefore concluded that Mr Blight is able, under the Order, to take more than four weeks of holiday contact leave. It would appear that he would be entitled to take a week in each of the three mid-year holidays. Because he has an extra week of unpaid leave from his employer he is in a position to take two weeks of holiday contact in the long Christmas holiday break. Mr Blight provided evidence from his employer on this point.
In respect of Mr Blight's Friday contact, the Tribunal considers that it is of a different character from other contact under the Order. It is in the nature of overnight contact. The effect is to leave Ms Morrissy with the care of Jake effectively for the weekend, that is to say the day of Saturday from 9.00am, and through the rest of the weekend. In the case of that particular class of contact, the Tribunal considers that the amount of contact should be worked out of [sic] the basis of hours rather than days. The Tribunal acknowledges that Mr Blight has the care of Jake for the 15.5 hours from 5.30pm Friday until 9.00am Saturday. Nonetheless, a significant period of that time is time when Jake will be asleep. The Tribunal therefore concludes that the 26 periods of overnight Friday contact equates to 17 days of contact.
Ms Morrissy was adamant that she did not accept Mr Blight's interpretation of the Order. While Mr Blight has a right to seek contact in conformity with the Order, it is implicit that Ms Morrissy need only accede to requests for contact which are in conformity with the Order.
While the interpretation of the Order is clearly open to debate, it is the view of [the] Tribunal that Ms Morrissy is obliged to give contact only in the manner described above.
In summary, the Tribunal considers that the following periods of contact are available to Mr Blight under the Order:
17 days of Friday contact
35 days of holiday contact
42 days of weekend contact
4.5 days of Public Holiday, Christmas Day and Easter contact
This totals 98.5 days of contact between Mr Blight and Jake.
…
Having determined that both parties have Jake for more than 10% of the time, passing the initial threshold test, the Tribunal must make a determination as to the relevant percentage of family tax benefit to be paid to each party based on the percentage of care each party has. As indicated above, the Tribunal considers that the Order sets up a regime whereby Mr Blight will have alternate Friday night contact and alternate weekend contact. During term time, he has each second weekend with Jake. However, during holidays, his contact is increased so that he has half of the holidays with Jake. As has been stated above, the Tribunal does not consider that this arrangement was intended to have the effect of Mr Blight having Jake for more than half of the holidays, with the consequences outlined above. He is entitled to contact with Jake of 98.5 nights, which is 27% of the time. This is his entitlement to family tax benefit and, of course, Ms Morrissy is entitled to the remaining family tax benefit, 73%.
For these reasons, the Tribunal has varied the decision under review."
[T1/10-12]
The husband in his written submissions stated that, pursuant to the terms of the Court Order, he is entitled in each year to the following:
"Friday nights x 52
Saturday nights x 26
Easter x 1.5
Christmas/Boxing days x 1
Public holidays x 2
(Provision for Easter, Christmas, Boxing Day and public holidays averaged over a two year period)."
As a result, he is entitled to 82.5 nights contact. Once the child commences school, the husband is entitled to contact during school holidays pursuant to paragraphs 6.1 – 6.5 of the Court Order. He has notified the wife of the following dates for school holiday contact:
"19 April 2002 – 29 April 2002 6 days
10 July 2002 – 22 July 2002 6 days
4 October 2002 – 14 October 2002 6 days
January 2003 14 days
Total 32 days
As a result, the husband maintains that he has an entitlement to contact of 114.5 days or nights in total, equalling 31%. In the course of his submissions, he contended that his care of Jake was for 113 days, 30.95% or 31%, and as to the care on the Friday night, he provides Jake with the two most important and expensive meals of the day - dinner and breakfast, and it is appropriate that Friday nights should be calculated as a day.
The parties provided carefully prepared written and oral submissions, all of which I have taken into account in my deliberations. The wife contends that the SSAT's decision is a correct interpretation of the Consent Order and percentage of care, of 73% to her and 27% to the husband. She submits that the calculation of contact should be in hours and not days, and that in particular, the Friday night when the husband has Jake from 5.30pm to 9.00am on the Saturday is a total of 15½ hours and should not be treated as a night, and he not be credited with a whole day. She concedes that now that the husband has increased his recreation leave to 6 weeks, the arrangements may change in 2003, and hence the percentage of care may change to 72% to her, and 28% to the husband.
The Department accepts that, for the purposes of the Act, Jake is a Family Tax Benefit child of both the husband and the wife, and each party is entitled to a percentage of the Family Tax Benefit. The Act does not provide guidance as to how the percentage to be paid is determined. Policy Guidelines have been established to assist in making this determination.
The Family Assistance Guide (the Guide) point 2.1.1.40 sets out general guidelines regarding "shared care of a FTB child". It says, among other things:
"Where possible the care percentage to be applied … should be the percentage of care agreed to by all parties … where the carers do not agree on the care arrangements, the FAO decision maker must determine the percentage of care to be applied based on all the available evidence of what is the actual pattern of care."
The establishment of a pattern of shared care is set out in the Guide at point 2.1.1.45, in part, as follows:
"How to establish a pattern of care
The pattern of care to be used in the shared care assessment is the actual care arrangements for the child. As much as possible, the pattern of care should be the pattern as agreed to by all parties who care for the child. Otherwise, the FAO must carry out further investigation to determine the actual pattern of care.
…
Nights in care vs hours of care
Generally a pattern of care is based on the number of nights in an assessment period where an individual has the overnight care of an FTB child. A person with the overnight care of a child is regarded as having had care of the child for that day.
Explanation: One night in care equals one day in care.
…
There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into day in care.
…" [Exhibit R1]The Department submits that as the husband and the wife are unable to agree on the care arrangements, it is appropriate that the pattern of care be determined based on the evidence available. The Department further contends that because of the terms of the Consent Order, it is more appropriate to establish a pattern of care by the actual number of hours in care rather than by nights in care, but it concedes that on the figures that were before the delegate on 11 December 2001, and the Authorised Review Officer subsequently, the difference in calculations would be minimal.
It is clear on the evidence of both the husband and the wife, that there have been slight variations to the contact arrangements over the last year, and an actual increase in the father's contact time. Variations in the future might affect the percentage of Family Tax Benefit payable to each of them. It will be appropriate then for an application to vary the payment to be made to Centrelink. The decision under review however, relates to a prospective period from 11 December 2001 onwards, and by definition because it takes as its basis the terms of the Consent Order of the Federal Magistrates' Court, and projects those terms forward, it is unlikely that each and every item of proposed shared care will, with hindsight, be strictly in accordance with the terms of the Consent Order.
The husband made it clear in the course of the Hearing that his concern is less about the level of benefit payable to him under the Family Tax Benefit, than about the effect a finding in this matter of a higher level of care might have upon the level of maintenance assessed by the Child Support Agency in the future. Both the husband and the wife, in the course of their evidence and submissions, referred to the actual periods of care, exercised by the husband and calculated in retrospect.
The delegate on 11 December 2001, taking into account the husband having probably 6 weeks holidays, calculated the husband's care at 2468.5 hours or 102.85 days, adding half the public holidays, Easter and Christmas, a total of 107.85 days or 29.55%, a decision relating to a period commencing on 1 January 2002. The Authorised Review Officer increased the percentage of care to 114.5 days or 31.3%, rounded off to 31%. I accept the Department's submission that the Authorised Review Officer took into account incorrectly, an extra 5 days. This recalculation would reduce the amount of care to 109.5 days or 30%. It became clear that all these calculations are based on a process of combination of nights and hours, with a result of 30% on the Authorised Review Officer's calculations, and a result of 29.55% on the delegate's calculations. The difference is .45%. The 29.55% would be rounded down to 29%. I do not consider the process of calculation adopted by the SSAT to be the most appropriate in the circumstances.
In my view, on the whole of the evidence, and on the basis of the projections arising from the terms of the Consent Order of the Federal Magistrates' Court of 30 August 2001, and the fact that the husband's contact has been closer to 6 weeks holidays than 4 weeks, the first of the delegate's calculations of 11 December 2001 of 29.55%, to be rounded down to 29% is the most appropriate calculation of the level of care provided.
This calculation gives a benefit to the husband over the subject period from 1 January 2002, as it more closely reflects 6 weeks holidays. This may hopefully, however, reduce the necessity for further litigation between the husband and the wife over the level of payment of Family Tax Benefit for the 2003 calendar year.
For these reasons the Tribunal sets aside the decision under review, and substitutes a decision that the wife is to be paid 71% of Family Tax Benefit and the husband 29%.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDate of Hearing 14 October 2002
Date of Decision 14 October 2002
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Ms A Pugsley
Solicitor for the Respondent Centrelink
Counsel for the 2nd Respondent In personSolicitor for the 2nd Respondent -
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