Cindy Perez and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Perfecto Alvar OTHER PARTY

[2013] AATA 68

[2013] AATA 68  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3343
Re	Cindy Perez
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
And	Perfecto Alvar
OTHER PARTY

DECISION

Tribunal	Senior Member J F Toohey
Date	11 February 2013
Date of written reasons	13 February 2013
Place	Sydney

For the reasons given orally at the hearing on 11 February 2013, the Tribunal sets aside the decision under review and decides instead that Mr Alvar is not eligible for Family Tax Benefit from 12 April 2010.

.....[sgd]..................................................................

Senior Member J F Toohey

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – percentage of care – shared care percentage – decision under review set aside

LEGISLATION

A New Tax System (Family Assistance) Act 1999

CASES

Re Nowicz and Secretary, Department of Families and Community Services & Anor (2001) 65 ALD 314

SECONDARY MATERIALS

Family Assistance Guide

REASONS FOR DECISION

Senior Member J F Toohey

13 February 2013

BACKGROUND

1. Cindy Perez and Perfecto Alvar are the parents of two children aged seven and six.  They separated in August 2007.  These proceedings concern the percentage of care that each has had for their children since April 2010 for the purposes of assessing Family Tax Benefit (FTB).

2. On 12 April 2010, the Federal Magistrates Court made orders concerning the care of the children.  Ms Perez and Mr Alvar agree they have not followed the orders, but they disagree about how much they have departed from them.

3. In October 2011, Mr Alvar lodged a claim for FTB.  Centrelink decided he had 33 percentage of care of the children from April 2010 to June 2011, and 49 percentage of care from July 2011.  Mr Alvar maintained that his share was greater and asked Centrelink to review its decision.  On review, Centrelink decided he had 33 percentage of care for the whole period. 

4. A person who cares for a child for less than 35 per cent of the time is not eligible to receive FTB for that child.

5. Mr Alvar sought review of Centrelink’s decision in the Social Security Appeals Tribunal (SSAT).  The SSAT decided he had had 50 percentage of care of the children from 12 April 2010 and should be paid FTB accordingly.

6. Ms Perez seeks review of the SSAT’s decision.  At a hearing on 11 February 2013, I decided that Centrelink’s decision that Mr Alvar had 33 percentage of care since 12 April 2010 was correct, and that the SSAT’s decision should be set aside.  These written reasons reflect reasons given orally at the hearing.

   RELEVANT LEGISLATION

7. The relevant legislation is the A New Tax System (Family Assistance) Act1999 (the FA Act). Subject to determining how much care Ms Perez and Mr Alvar have for each child, there is no dispute that both are eligible for FTB.

8. A person’s annual rate of FTB is determined according to the rate calculator in Schedule 1 to the FA Act: s 58(1). The formula is complex and it is not necessary to set it out in detail here. It is summarised correctly in the Secretary’s Statement of Facts and Contentions given to the Tribunal and the parties.

9. If a child is in the care of two adults who are not a couple, FTB may be apportioned between them, according to the percentage of care each has for the child.. By s 25, if a person’s percentage of care for a child during a care period is less than 35 per cent, the child is not an FTB child of that person for any part of the period.  A person only has a shared care percentage if she or he has at least 35 percentage, and not more than 65 percentage, of care: s 59(1). 

10. If the parties do not agree what percentage of care each has for a child, the Secretary may determine the percentage of care that each has for the child, and the percentage of FTB, if any, to which each is entitled.  That determination is guided by the policy contained in the Department’s Family Assistance Guide (the Guide) which states:

    Where possible, the percentage to be applied in the shared care determination should be:

    ·the percentage of care agreed to by all parties who share the care of the child, or

    ·the agreed pattern of care.

    Where the carers do not agree on the care arrangements, the decision maker will determine the care percentage to be applied based on the available evidence of the actual pattern of care.

11. Generally, a pattern of care is based on the number of nights on which a person has overnight care of a child.  A person who has overnight care is regarded as having had the care of the child for that day: the Guide at 2.1.1.45.  The pattern should not be taken to be disrupted by occasional variations in the arrangements that are not a significant departure from the established pattern:  Re Nowicz and Secretary, Department of Families and Community Services & Anor (2001) 65 ALD 314.

12. The FA Act was amended from 1 July 2010 but, for all practical purposes in this case, the legislation has remained the same throughout.

    MR ALVAR’S EVIDENCE

13. On 17 October 2012, the Tribunal sent notices to Ms Perez and Mr Alvar advising that Ms Perez’s application would be heard on 14 December 2012.  Mr Alvar did not appear on that date and did not answer calls to his mobile phone.  A message was left for him but he did not return the call.

14. The notice to Mr Alvar was sent to the address for service nominated in his application to the Tribunal, but the Centrelink representative at the hearing advised that Centrelink had a second address on file as well.  As it was possible that Mr Alvar had not received notice of the hearing, the Tribunal adjourned to 11 February 2013 and sent notices to Mr Alvar at both addresses with a letter advising that, if he did not appear on that date, the Tribunal would hear Ms Perez’s evidence and make a decision based on her evidence and the documents provided by Centrelink.

15. Mr Alvar did not appear on 11 February 2013.  I am satisfied that he has had notice of the hearing, and has had the opportunity to attend and be heard.  His account of the care arrangements is found in records made by Centrelink officers and the summary in the SSAT’s reasons for decision of the evidence he gave before that tribunal.  His account is supported by brief written statements by family members and friends, and a letter from Principal of the children’s school. 

    THE COURT ORDERS

16. On 12 April 2010, the Federal Magistrates Court ordered that the children were to live with Ms Perez except when they lived with Mr Alvar as follows:

    (i)each weekend except the second weekend of each month commencing on Friday at 6.00pm, or Thursday at 6.00pm if  Friday is a public holiday, and concluding on Sunday at 6.00pm, or Monday at 6.00opm if Monday is a public holiday; and

    (ii)half of all school term holidays as agreed between the parties or in the absence of agreement the first half in even numbered years and the second half in odd numbered years;

    (iii)half of the Christmas school holidays alternating in one week blocks

17. The Court also made orders to cover when Christmas Day, Mothers’ Day or Fathers’ Day falls on the other parent’s time.

    THE SSAT’S DECISION

18. According to the SSAT’s written reasons for decision, Mr Alvar said that since the Court’s orders, he had cared for the children every weekend as well as “usually all of the school holidays”.  In addition, he said he cared for them “approximately three quarters of all Sunday nights (in addition to those falling on long weekends) and Thursday nights” (when, he said, Ms Perez works).

19. Ms Perez agreed that Mr Alvar had the children every weekend but said that, otherwise, the arrangements were strictly in accordance with the Court’s orders.  She denied working on Thursdays.  She conceded there had also been “the odd day” when Mr Alvar had the children, such as the Easter 2011 holidays when he had them for more than half the time while she was in hospital, and over the Christmas holidays when he had them for four weeks, rather than three, so he could take them to Adelaide.  She said there had been odd occasions when he had them while she was having medical treatment but mostly her mother helped, and she had not asked him for help for six or seven months.

20. The SSAT noted that Mr Alvar had produced diary records which supported his claims, and letter from third parties.  It stated it preferred his evidence to that of Ms Perez because:

    (i)her evidence was not consistent;

    (ii)she could not say “the precise number of deviations” from the Court orders;

    (iii)she did not provide any third party evidence in support of her account; and

    (iv)she did not keep a diary during the period.

21. The SSAT determined that, since 10 April 2010 (apparently a mistake, as the relevant date is 12 April 2010), Mr Alvar had care of the children every weekend, a quarter of all Sundays and Thursdays during the school term, and all of each holiday period.  On this basis, they were in his care for 186 out of 365 nights per year, or 51 per cent of the time.  Applying the table in s 59, this gave him a 50 per cent shared care percentage.

    MS PEREZ’S CLAIMS AND EVIDENCE

22. Ms Perez disputes Mr Alvar’s claim that he has the children on Thursday nights while she works.  She gave evidence, which I accept, that she has not worked since 2007, when she was diagnosed with cancer.  She also has full-time care of a third child who is nearly four. 

23. Ms Perez gave evidence that, over Christmas in 2011, Mr Alvar had the children for an extra week so he could take them to see his family in Adelaide.   However, she says, this is not a regular occurrence.  Against this, in 2012, he wanted to take the children overseas for six weeks’ holiday but she would not agree because it was during term time; he went without them and she had them for that time.  

24. In support of her claims, Ms Perez has submitted statements from her mother and sister.  I have no reason to doubt their statements, as I have no reason to doubt the statements submitted by Mr Alvar.  However, none is of much assistance.  None of the writers is impartial but, more importantly, their statements are brief and in very general terms.  In particular, they do not refer to Thursdays, Sundays, or how much of the school holidays each has the children, which are the matters in dispute. 

25. Three letters from the Principal of the children’s school are before the Tribunal.  On 15 September 2011, the Principal wrote that the school was aware the children lived with their mother from 6.00pm on Sunday until dropped off at school on Friday morning, and with their father until he dropped them back on Sunday afternoon.  On 28 October 2011, the Principal wrote that Mr Alvar collects them on Friday afternoons, and he and the children “have indicated the children spend their holiday time with their father”.   In the letter submitted by Ms Perez, dated 20 September 2012, the Principal states that she drops them off from Monday morning through to Friday morning during the school year. 

26. None of the letters helps me.  It is not clear how the Principal knows what the arrangements are, and they do not deal with the particular arrangements in dispute, being Thursday and Sunday nights, and how much of the school holidays each parent cares for the children.

    CONSIDERATION

27. Ms Perez impressed me as a truthful witness and I accept her evidence about the care arrangements.  I accept they are consistent with the Court orders except that the children spend every weekend with Mr Alvar.

28. To the extent that the arrangements vary from time to time, such as when Mr Alvar had the children for an extra week at Christmas 2011, and when Ms Perez had them every weekend for six weeks in 2012, they are not a significant departure from the orders.

29. I am satisfied that, during the 12 weeks school holidays each year, the children are in their parents care equally, that is, for 42 nights each.  During the remaining 40 weeks, they are in Ms Perez’ care 5 nights each week, or 200 nights a year, and Mr Alvar’s care 2 nights each week, or 80 nights a year.

30. I am satisfied that, since 12 April 2010, the children have been in Ms Perez’s care for 242 nights of the year, or 66 per cent, and in Mr Alvar’s care for 122 nights, or 33 per cent.  As Mr Alvar has had less than 35 per cent care throughout that period, neither child is an FTB child of Mr Alvar and he is not eligible for FTB in respect of either child during that period.

31. The decision under review is set aside and the Tribunal decides instead that Mr Alvar is not eligible for FTB from 12 April 2010.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

.......[sgd].................................................................

Associate

Dated 13 February 2013

Date(s) of hearing	11 February 2013
Applicant	In person
Solicitors for the Respondent	Department of Human Services, Program Litigation and Review Branch
Other Party	In person