Brightman and Secretary, Department of Family and Community Services and Anor

[2004] AATA 405

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 405

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/473

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRIAN EDWARD BRIGHTMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES 

Respondent

And          CHRISTY BRIGHTMAN

Joined Party

DECISION

Tribunal Mr M Allen, Member

Date21 April 2004

PlacePerth

Decision The decision of the Social Security Appeals Tribunal made on 5 November 2002 is affirmed.

............(sgd M Allen).....................

Member

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – family tax benefit – shared care of children – whether children are FTB children of the applicant – pattern of care discussed – no regard taken of “one-off” occasions when applicant had the children overnight – whether the number of nights or hours should be used to calculate the percentage of time in which applicant had the care of children – children were not FTB children of the applicant – decision affirmed

A New Tax System (Family Assistance) Act 1999 ss 21, 22, 25, 59

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

REASONS FOR DECISION

21 April 2004 Mr M Allen, Member           

1.      This is an application made by Mr Brightman for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 5 November 2002.  In that decision the SSAT set aside a decision made by a delegate of the respondent on 2 May 2002 to assess the joined party (Mrs Brightman) as having 90% care of the two children of the applicant and Mrs Brightman in the period 1 July 2001 to 14 May 2002 (“the relevant period”).

2.      The SSAT considered that Mrs Brightman had the care of the two children for more than 90% of the time in the relevant period and that consequently the applicant had the care of the children for less than 10% of the time. 

3.      At the hearing the applicant represented himself (appearing by telephone from his place of employment in South East Asia) and the Secretary was represented by Mr Holt, a Centrelink Officer.  Mrs Brightman did not appear at the hearing, having previously informed the Tribunal that she did not intend to do so and that she was content for the matter to proceed in her absence.

4. The tribunal received in evidence the documents filed pursuant to s.37 of the Administrative Appeals Tribunal Act (T1-T11) as well as a number of documents tendered by the respondent (R1-R8).

5.      The background to the matter is that the applicant and Mrs Brightman separated in 2001 and in May 2002 the applicant lodged a claim for Family Tax Benefits (“FTB”) in respect of the two children of the marriage (Jordan and Kaiden) on the basis of a claim that in the relevant period he had the care of the children for 16 % of the total time.

6.      A delegate of the Secretary assessed the applicant as having care of the children for 11% of the period, based on 43 nights care each year, and the applicant was paid FTB from1 July 2001 at that percentage.

7.      Mrs Brightman subsequently disputed that assessment and after internal review the matter went on appeal to the SSAT, which made the decision referred to in paragraph 2 above.  The applicant subsequently appealed that decision to this Tribunal and Mrs Brightman was joined as a party because of her interest in the matter. 

8.      The issue to be determined in the present proceedings is whether Mr Brightman is entitled to receive FTB in respect of the two children in the relevant period and, if so, the rate to be paid.

The legislative framework

9.      The payment of FTB is governed by the provisions of A New Tax System (Family Assistance) Act 1999 (“the Act”). Section 21 of the Act sets out the normal eligibility rules for the payment of FTB. One of the rules of eligibility is that the person must have at least one “FTB child”. Section 22 of the Act defines a number of circumstances in which a child will be regarded as an FTB child of an adult. Section 22 (3) deals with the situation where more than one individual has care of the child in question. The child will be an FTB child of an adult if the child is under 18 years; a family law order or registered parenting plan is in force in relation to the child; under the order or plan the child is supposed to live or have contact with the adult; and the child is in the adult’s care.

10.     However, section 22(7) relevantly provides that a child will be an FTB child of more than one adult if the Secretary is satisfied that there “has been, or will be, a pattern of care for … [the child] over a period such that, for the whole, or for parts…of the period, the child was, or will be, an FTB child of more than one other individual under…[other provisions in section 22] … and sub section 25(1), … does not require that the child be taken not to be an FBT child of [ the adult] for any part of that period”.

11. Section 25(1) of the Act relevantly provides that a child that would be regarded as an FTB child of an adult by virtue of section 22 of the Act is to be taken not to be an FTB child of that adult in a particular period of time if the Secretary is satisfied “that the child was, or will be, in the care of” that adult for less than 10% of the period.

12. Section 59 of the Act provides that where a child is an FTB child of more than one person (who are not partners) then the Secretary may determine the percentage of FTB that is to be paid to each one of those persons.

13. In the present case the applicant will only be entitled to receive FTB payments in respect of the two children if the children are FTB children of his. The effect of the view taken by the SSAT that the children were in the care of the applicant for less than 10% of the relevant period is they were, by virtue of s 25(1), not FBT children of the applicant in the relevant period and hence no entitlement to FTB would arise. Consequently, there would be no necessity for the Secretary to make a decision under section 59 to determine the percentage of FTB that was payable to the applicant.

The evidence

14.     The applicant gave evidence of an agreement that had been reached between he and Mrs Brightman at the time of their separation regarding his contact with the children and which had subsequently become an order of the Family Court.  A copy of the order is not available but a Centrelink record (T5) contains its terms, which relevantly are that ”the visitation times will be every Saturday 2pm until Sunday 5:30pm unless [the applicant] is unable due to work commitments overseas or interstate”.

15.     The applicant’s evidence was that he had tried to see his children every weekend when he was in Australia.  During the relevant period he had not travelled interstate at all but he had travelled overseas in the course of his employment on four occasions, 25 June to 31 July 2001, 5 September to 29 September 2001, 29 October to 1 December 2001, and 29 January 2002 to 6 March 2002.  On two of those occasions (29 September 2001 and 1 December 2001) he had arrived in Australia in the early hours of a Saturday morning but he was still able to see the children at 2pm later that day.  Consequently, he acknowledged, and I find, that the applicant was absent from Australia on 16 Saturdays during the relevant period and did not see the children on those weekends.

16.     I pause to record that the SSAT expressed concern that the applicant had referred only to two trips overseas in his evidence to the SSAT -  but that the SSAT had been able to establish that there were other trips, although it did not have a complete record of the dates involved.  I had the benefit of movement records provided by the Department of Immigration and Multicultural and Ethnic Affairs in relation to the applicant’s arrivals and departures in Australia, which confirmed the movements referred to above.

17.     The applicant’s evidence to both the SSAT and to me was that he had also had the children stay overnight on 28 October 2001, 25 December 2001 and the nights of Easter Sunday and Monday in 2002.

18.     The applicant also gave evidence that he thought he had had the children on the nights of 8 and 9 January 2002 and 26 January 2002, but he could not be sure about that.  It was noted during the hearing that 26 January 2002 was, in any event, a Saturday and the applicant would have had the children under the normal arrangements. 

19.     The applicant confirmed that the “extra” days on which he had had the children were “one-off’ arrangements that he and his former wife had worked out at short notice and they did not indicate any agreement or practice that was meant to endure for a period of time.  The applicant said that in the early part of their separation he and his former wife had been on reasonably amicable terms and it had not usually been a problem to arrange one-off additional nights to have the children.  However, subsequently, it became difficult to exercise his rights to see the children and in 2003 he had sought further orders from the Family Court that set out with some particularity the days and times at which he would have access to the children.

20.     The applicant provided documentary evidence of his attempts to see the children.  The first was from a friend of his, Ms Tracey Stickland, dated 1 May 2003, which was to the effect that she had known the applicant since April 2001 and he had “without fail exercised his contact visits with his sons…unless he has been overseas or his ex-wife has denied contact.  To my knowledge [the applicant] has looked after [the two children] over Christmas 2001 and extra days during the school holidays.”  (R4 page 20)

21.     The second document provided by the applicant was an undated statement by his two parents as follows:

To the best of our knowledge, prior to February 2003, [the applicant] has been looking after his sons…every weekend when he is at home in Australia.  Also Christmas 2001, Easter 2002 he had extra days, and some days in the school holidays, unless Christy Brightman would not let him have them.”

22.     No oral evidence was given on behalf of Mrs Brightman, but documentary evidence was supplied by her.  Document R1.1 is a certificate from the Belmont Oasis Leisure Centre to the effect that Kaiden Brightman had attended a holiday programme at the Centre on 8 January 2001 and had been signed in and out of the programme by persons other than the applicant.  The significance of this document was, presumably, to rebut the applicant’s assertion that he had had the two children on 8 January 2002 but, as is obvious, the document refers to 8 January 2001 rather than 8 January 2002.  Whether that is anything more than a slip of the pen I do not know and in the absence of oral evidence cannot determine.

23.     Similarly, document R1.2 is a certificate from the Belmont Child Care Centre to the effect that Kaiden Brightman attended the Centre on 25 January 2002.  Presumably this was an attempt to rebut the applicant’s assertion that he had had the children on 26 January 2002.   Again, I am unable to reach any conclusion regarding the discrepancy between the date mentioned in the certificate and the date asserted by the applicant.

24.     Document R1.3 is an undated statement made by a friend of Mrs Brightman, Ms Anne Marie Johnson.  Ms Johnson states that Mrs Brightman and the two children spent the day of 1 April 2002 (i.e. Easter Monday) at Ms Johnson’s house and that “ Christy left my residence in Rivervale after tea to take the kids home to bed.  There was never any mention of [the applicant] seeing the boys on that day.”

Consideration of the issues

25. The first question to consider is whether or not the children are FTB children of the applicant. I am satisfied that, in terms of section 22 (3) of the Act, both children would be FTB children of the applicant unless the combined effect of section 22 (7) and section 25 (1) of the Act requires that the children are to be taken not to be FTB children of his.

26. For the purposes of s 22(7) it is, in my opinion, clear from the terms of the agreement between the applicant and Mrs Brightman, which was reflected in a court order, and from the oral and documentary evidence before me, that there has been a pattern of care for the two children over the period in question such that the two children would be FBT children of both their parents unless s 25(1) requires a different conclusion.

27.     When looking at that pattern of care the Tribunal is not restricted to the extent of contact set out in the court order.  As was said in Re Nowicz and Department of Family and Community Services [2001] AATA 628 at [15] (per Senior Member Kiosoglous) “a common sense approach necessarily means that …this Tribunal considers the relevant documentation, and the evidence of both parties as to what has been happening in the past and what is intended to happen in the future, if such differs from the documentary evidence.  Based upon such consideration, [the Tribunal] is then in a position to determine what pattern of care has existed, or will exist in relation to the relevant FTB child.”   The Senior Member went on to say that “once established it is appropriate that variation only occur where there is to be a significant departure in an established pattern of care.  This may occur, for example, when contact weekends are changed from fortnightly to monthly.  It would not occur when the odd weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period.”

28. I turn then to consider the question, for the purposes of section 25(1)(v), of whether I can be satisfied that the two children were, during the relevant period, in the care of the applicant for less than ten per cent of that period.

29.       Of the 45 Saturdays in the relevant period, the applicant does not dispute that he was overseas for 16 of them and could not therefore have had contact with the children.  He maintains, however, that he also had contact with the children on at least four other nights (Christmas night 2001, two nights at Easter 2002 and 8 October 2001).   He also told the SSAT that he thought that the boys stayed with him on 8 and 9 and 26 January 2002 but he was not sure about that.  In his written application to this Tribunal to have the SSAT decision reviewed he said that he had the children for six extra nights during “school holidays, Christmas and Easter”.

30.     On the evidence before me I am not prepared to find, on the balance of probabilities, that the applicant did or did not have the children on any of the “extra” nights about which there is dispute.  There is, in my opinion, uncertainty in the evidence adduced by the applicant, and there is other evidence that casts doubt on his evidence – for example, the statement of Ms Johnson that is quite specific in relation to 1 April 2002.

31.     However, and in any event, in my opinion the preferred approach in this case is to take into account only those days that are expressly contemplated by the pattern that the applicant and Mrs Brightman agreed – i.e. each Saturday and Sunday but excluding those weekends when the applicant was overseas.  Any other night that the applicant saw the children was, as he acknowledged, a “one-off” that did not reflect any change to the agreed terms.  To include those extra nights would be to require every individual occasion to be taken into account as and when they occur and, given how near the 10% threshold the current circumstances are, could result in the applicant and Mrs Brightman moving backwards and forwards over the 90%/10% line.

32. Accordingly, for the purposes of determining the percentage of time that the applicant had the care of the two children in the relevant period I find that there were 318 nights and 45 Saturday nights, and that the applicant saw the children on 29 of those nights after excluding the 16 Saturdays that he was overseas. Those 29 nights represent 9.1% of the total number of nights in the period. It follows that, for the purposes of s 25(1), the applicant had the care of the two children for less than the specified 10%. Section 25(1) operates, therefore, to exclude the two children as FTB children of the applicant. He has, therefore, no entitlement to receive FTB and no determination under s 59 is necessary.

33.     The applicant contended that the above issue should not be determined having regard only to the number of nights involved – and that regard should be had to the number of hours he had the children in the relevant period.  In the circumstances I do not consider it appropriate to use hours rather than nights to determine the percentage.  A case may well be made for using hours where the use of nights would give a result that did not fairly reflect the reality – such as where one person had a child for many hours each week during the day but did not have the children at all, or only rarely, at night.  That is not the present case.  In my opinion the use of nights provides a reasonable and realistic expression of the percentage of time that the children were in the applicant’s care.

34.     For the reasons set out above I find that the applicant had the care of the two children for less than 10% of the relevant period and the children were not, therefore, FTB children of his.  I therefore affirm the decision of the SSAT made on 5 November 2002.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member

Signed:         ...............(sgd V Wong)................................
  Associate

Date/s of Hearing  16 February 2004

Date of Decision  21 April 2004
Counsel for the Applicant         In person
Counsel for the Respondent     Mr A Holt
Solicitor for the Respondent     Service Recovery Team Centrelink
Counsel for the Joined Party     In person