Cassidy and Secretary, Department of Family and Community Services and Anor
[2006] AATA 97
•7 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 97
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/523
GENERAL ADMINISTRATIVE DIVISION ) Re ANA CASSIDY Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
And PETER CASSIDY
Third Party
DECISION
Tribunal Ms MJ Carstairs, Member
Dr M Denovan, MemberDate7 February 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]............................
MJ Carstairs
Presiding Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – shared custody of child – apportionment of benefit – decision affirmed.
A New Tax System (Family Assistance) Act 1999 s 21, 22, 25, 59
A New Tax System (FamilyAssistance) (Administration) Act 1999Wade v Secretary, Department of Family and Community Services [2004] FCA 1660
REASONS FOR DECISION
7 February 2006 Ms MJ Carstairs, Member
Dr M Denovan, Member1. Ms Ana Cassidy is seeking a review of a Social Security Appeals Tribunal (SSAT) decision dated 21 June 2005 whereby her percentage of Family Tax Benefit (FTB) in respect of her child Petarnea was set at the following rates:
·70% from 1 December 2002 to 31 October 2003;
·63% from 1 November 2003 to 31 December 2003;
·68% from 1 January 2004 to 13 July 2004;
·0% from 14 July 2004 to 22 July 2004;
·74% from 23 July 2004 to 15 November 2004; and
·81% since 16 November 2004.
2. The matter came on for hearing in Brisbane on 19 January 2006. Ms Cassidy was unrepresented at the hearing and gave oral evidence. Mr P Cassidy (the Third Party), also unrepresented, gave oral evidence by telephone. The Secretary, Department of Family and Community Services (the Respondent) was represented by Ms C Heffner.
3. The Tribunal received into evidence the documents lodged under s37 of the AdministrativeAppeals Tribunal Act 1975 (T1-T57), together with Exhibits A1-A4, outlines of the applicant's submissions, and Exhibits R1-R2 tendered by the respondent, and R2-1 – R2-4 tendered by the third party.
4. The issue for the Tribunal to determine is the appropriate FTB percentages for Ms Cassidy and Mr Cassidy during the period 1 December 2002 to 22 July 2004.
Legislation and Legal Principles
5. Ms Cassidy’s application arises under the A NewTax System (Family Assistance) Act 1999 ( the Family Assistance Act) and the A New Tax System (FamilyAssistance) (Administration) Act 1999 ( the Administration Act).
6. A person is eligible for FTB if they have at least one FTB child (s 21, Family Assistance Act). The meaning of “FTB child” is set out at s 22 of that Act. A child may be the FTB child of more than one person if there is a pattern of care over a period and the child is in the care of the claimant for more than 10 percent of the period. As can be seen from ss 22(7), 25(1) and 59(1) the scheme is concerned with a pattern of care over time and not with day-to-day variations in that care.
7. If the Secretary, or as here this Tribunal, is satisfied that a child is the FTB child of two people (who are not partners), the Secretary may determine the percentage of FTB for each of those people (ss 59(1), Family Assistance Act). The Act does not explain how a person’s FTB percentage is to be worked out. However, in Wade v Secretary, Department of Family and Community Services [2004] FCA 1660 Keifel J discussed steps set out in Departmental guidelines for the purpose of calculating the percentage of a person’s FTB in relation to a child and said at paragraphs 30 and 31:
“30. ... It is however clear from the Act that its object is to provide a benefit to the person having the care of 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....
31. The ‘pattern of care’ referred to in the guidelines has two aspects, it seems to me. In the first place it reflects the care arrangements agreed between the parties or involves a finding which has regard to the actual care arrangements for the child. It is said that ‘as much as possible’ the pattern of care should be the pattern agreed. The pattern of care is also used as the basis for the calculation of percentage..”
Background
8. Ms Cassidy and Mr Cassidy were married on 19 April 1986 and there are three children of that marriage. The youngest child, Petarnea, was born on 21 November 2001.
9. Mr and Ms Cassidy separated in May 2001. Court orders for the care of the children were not made by the Family Court until 23 July 2004. These were superseded on 16 November 2004 by a further order of that Court.
10. After separation and until November 2004 Ms Cassidy was paid 100% of the FTB for Petarnea. During the same period, Mr Cassidy was paid 100% FTB for the couple’s second child, Trevor.
11. In November 2004 Mr Cassidy made past period claims in respect of Petarnea. A decision made by Centrelink on 10 December 2004, determined that Ms Cassidy’s FTB should be set at the following rates: (T-documents, folio 209)
·63% from 1 November 2003 to 31 December 2003;
·68% from 1 January 2004 to 26 May 2004;
·100% from 27 May 2004 to 22 July 2004;
·74% from 23 July 2004 to 15 November 2004; and
·81% since 16 November 2004.
12. Mr Cassidy asked Centrelink to review the determinations and on 10 March 2005 an authorized review officer varied the determination in relation to Ms Cassidy’s FTB to the following rates: (T-documents, folio 239)
·50% from 1 December 2002 to 31 October 2003;
·63% from 1 November 2003 to 31 December 2003;
·68% from 1 January 2004 to I July 2004;
·0% from 2 July 2004 to 22 July 2004;
·74% from 23 July 2004 to 15 November 2004; and
·81% since 16 November 2004.
13. Ms Cassidy asked Centrelink to review the determinations and on 22 April 2005 an authorized review officer affirmed the determinations as varied on 10 March 2005.
14. Following the decision of the SSAT, the applicant applied to the Tribunal on 10 August 2005 for review of the decision.
Evidence
§Mr Cassidy
15. Mr Cassidy said that for the period 1 December 2002 to 31 October 2003 Petarnea stayed with him at his residence, and for a substantial amount of this period Petarnea was in his sole care. Mr Cassidy stated that during this period Ms Cassidy was spending most days at his residence with him, and was not living as she claimed with her sister in Nambour. He said that Ms Cassidy slept overnight some nights either at his home, or at her older son’s home (her older son being from a previous relationship). If she slept at her son’s home, he said Petarnea stayed with him. According to Mr Cassidy, Ms Cassidy’s son has had a number of problems which made his home an inappropriate one for Petarnea. Mr Cassidy said that when she stayed overnight at his home, Ms Cassidy shared his bedroom. Petarnea slept in another room. He said that during this period he paid for Petarnea’s food and clothing.
16. Mr Cassidy referred to the Family Welfare Report dated 3 November 2004, in which the social worker commented that Petarnea was closely bonded to her father. He submitted that such a close bond could not have been present except that he had close and frequent contact with Petarnea during this period.
17. Mr Cassidy challenged Ms Cassidy to produce evidence such as rental receipts or a lease agreement to substantiate her claim that she was living with her sister during this period. He noted that Ms Cassidy had not applied for rent assistance from Centrelink, a benefit he claimed that she would have been entitled to had she been living with her sister. Mr Cassidy referred to Petarnea having had her immunizations at the medical centre in close proximity to his home. He said this was indicative of the fact that Petarnea was residing with him and not with Ms Cassidy at Nambour.
§Ms Cassidy
18. Ms Cassidy’s evidence about the period between 1 December 2002 and 31 October 2003 was that Petarnea was in her care full-time. She said that during this time she was living mainly with her sister in Nambour. She said that her sister’s landlord lived on the premises and was aware that Ms Cassidy was there. He did not require her name on the lease. Ms Cassidy paid for food for the household and performed much of the housework in lieu of rent.
19. Ms Cassidy agreed that she stayed at Mr Cassidy’s residence regularly, up to two nights a week during this period. She said this was to enable Mr Cassidy to have contact with Petarnea, and so that Ms Cassidy could have contact with Trevor, and assist him with his homework. She said that she took clothing and food to Mr Cassidy’s house for Petarnea on these occasions. She said that there were no clothes for Petarnea at Mr Cassidy’s home. Ms Cassidy said that she and Petarnea slept in one bedroom at Mr Cassidy’s residence, in a single bed and a divan in that room, and Mr Cassidy slept in his own bedroom.
20. Ms Cassidy said that she cherished Petarnea as her fifth child, and only daughter. Ms Cassidy said that she would never have left Petarnea out of her care at the young age of 12 months, as Mr Cassidy was suggesting occurred.
21. Ms Cassidy said that she moved from her sister’s home to a house in Thomas Street, Clontarf in November 2003. Initially Mr Cassidy had wanted a four-day-off, four-day-on arrangement with Petarnea, however after about four to five weeks, at Mr Cassidy’s request, this arrangement was reduced to four days a fortnight.
§Mrs G Cassidy
22. Mrs G Cassidy, Mr Cassidy’s mother, said that during the period 1 December 2002 to 31 October 2003 she believed Ms Cassidy was living with her son, however she pointed out that she did not have a clear recollection. She said she was aware that there were times when Mr P Cassidy cared for Petarnea alone.
§Mr R Cassidy
23. Mr R Cassidy, Mr Cassidy’s father, said he did not have a clear recollection five years later and probably only saw his son monthly at the time. However, he said he recalled Petarnea was present when he had contact with his son between 1 December 2002 and 31 October 2003. He stated that Ana Cassidy was not always present and might have been out shopping and Peter Cassidy cared for Petarnea alone on some occasions during this period.
Consideration Of The Issues
24. Mr and Ms Cassidy agree that Petarnea lived with Ms Cassidy at 17 Herbert Street, Scarborough prior to 1 December 2002. Ms Cassidy and Mr Cassidy agree that the main period of dispute was from 1 December 2002 until 31 October 2003. Each parent claims that Petarnea was in their care 100% of the time during that period. Both parties disagreed with the amount of FTB allocated for the other periods up until 1 July 2004. Both Mr Cassidy and Ms Cassidy accept the percentage of FTB allocated from 2 July 2004 to 16 November 2004.
25. Mr Cassidy contends that Ms Cassidy left the Herbert St residence in December 2002; Ms Cassidy maintains that she in fact stayed in those premises until early January 2003. It is Mr Cassidy’s contention that from the date Ms Cassidy left those premises, Petarnea lived with him full-time. Ms Cassidy claims that Petarnea remained in her care, and that she was residing with her sister at Nambour.
26. There were inconsistencies with response to Ms Cassidy’s evidence that suggest it is unreliable. In an affidavit dated 24 August 2004, made for the purpose of obtaining a protection order, Ms Cassidy said that from about March 2003 until final separation in October 2003 she resided in the same house as her husband. This account is significantly different from that given by Ms Cassidy in her evidence at the Tribunal hearing. Nevertheless, it does not follow that because there were inconsistencies that her evidence about her care and involvement with Petarnea, particularly when the child was 1 to 2 years of age, is to be discounted entirely.
27. In the Family Welfare Report dated 3 November 2004 social worker Susan Lewis stated:
“With respect to Petarnea, her primary attachment appears to have historically been with her mother, though clearly she is strongly attached to her father. The indications are that both parents have been significantly involved in her care and that she would benefit from this continuing.” (Exhibit R2-2)
28. This report suggests that Petarnea had significant contact also with her father throughout her life and this evidence does not support Ms Cassidy’s claim that Petarnea was solely in her care until 31 October 2003.
29. Whilst Mr Cassidy’s parents are clearly not impartial witnesses, their evidence would suggest that Mr Cassidy spent significant time with Petarnea during the period in question. Their evidence does not lend strong support to Mr Cassidy’s claim that he had sole care of Petarnea. They did not say that he had the sole care; their evidence implied that both parents were present and caring for the child. Their evidence, however, did support that both parents were involved with Petarnea’s care, but they could provide little assistance in deciding what the respective percentages might have been because their involvement was intermittent.
30. The Tribunal regards it as unlikely that Ms Cassidy would have given up the full-time care of her one year old daughter. We accept her evidence on this. This conclusion is supported also by the fact that when the Family Court first considered Petarnea’s welfare when she was 2½ years old, it ordered that Ms Cassidy be the main carer. This is likely to have reflected the general pattern up to that time. Secondly, Mr Cassidy did not claim any FTB for Petarnea during December 2002 to October 2003, and Ms Cassidy was receiving parenting payment as the main carer for Petarnea during this period.
31. Whilst the precise arrangements cannot be determined, the Tribunal is satisfied that Mr and Ms Cassidy were sharing the care of Petarnea during the period 1 December 2002 until 31 October 2003, with Ms Cassidy being the main carer. The Tribunal sees no reason to disturb the SSAT findings in relation to the allocation of FTB for this period, particularly taking into account how young Petarnea was during this period.
32. Next the Tribunal considered the period 1 November 2003 to 1 July 2004. An application for divorce signed by both Mr and Ms Cassidy in February 2004 indicates that Mr Cassidy was having contact with Petarnea for three to four days a week. Both parties agree that this was the case at the time, however Ms Cassidy claims that this arrangement lasted for only a few weeks, after which time Mr Cassidy had Petarnea approximately 4 days a fortnight. As stated above, the Tribunal considers that it is likely the Family Court orders would have reflected the existing general pattern of shared care up until that point in time. Therefore the Tribunal concludes that Ms Cassidy had a higher proportion of Petarnea’s care than did Mr Cassidy, and that the percentages of FTB assigned to Ms Cassidy for the period 1 November 2003 to 1 July 2004 by the SSAT are reasonable approximations and the best that can be achieved under the circumstances.
Decision
33.The Tribunal affirms the decision under review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs and Dr M Denovan, Members
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 19 January 2006
Date of Decision 7 February 2006
The Applicant was unrepresented and appeared in person
The Third Party was unrepresented and participated by telephone
For the Respondent Ms C Heffner, Departmental Advocate
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