CONFIDENTIAL and DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS CONFIDENTIAL OTHER PARTY
[2012] AATA 397
•28 June 2012
[2012] AATA 397
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4586
Re
CONFIDENTIAL
APPLICANT
And
DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
And
CONFIDENTIAL
OTHER PARTY
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 28 June 2012 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
FAMILY TAX BENEFIT – FTB child – Both parents with legal responsibility for FTB child – Determination of percentage of care for each parent – In relevant period, 65/35 percentage of care by mother and father, respectively – Decision under review affirmed.
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) ss 22(2), 22(5), 22(7), 59
REASONS FOR DECISION
Mr R G Kenny, Senior Member
28 June 2012
BACKGROUND
The applicant and the other party are the father and mother, respectively, of the child A (A) who was born in 2001.[1] The parents separated on 29 June 2009 and A remained in the care of the mother until mid-July 2009. From 14 July 2009 onwards, the parents shared in the care of A. It is not disputed that, from 12 May 2010 onwards, this was on an equal basis (i.e. 50% for each parent). The period for which there is dispute about the percentage of care is from 14 July 2009 until 11 May 2010 (the relevant period). On 11 October 2010, a Family Assistance Officer determined that the percentage of care in the relevant period was 50% for each parent. That decision was affirmed by an authorised review officer on 21 March 2011. The matter was then considered by the Social Security Appeals Tribunal (the SSAT) on 22 September 2011. The effect of the SSAT decision was that the percentage of care in the relevant period was varied to 65% for the mother and 35% for the father. The father seeks further review by the Administrative Appeals Tribunal.
[1] In these reasons, which are a matter of public record, the names of the applicant, the other party and witnesses are not disclosed in order to protect the privacy of the child.
ISSUES AND LEGISLATION
The mother was in receipt of family tax benefit (FTB) for A since birth. On 11 October 2010, the father contacted Centrelink and claimed FTB on the basis of his proportion of shared care of A. The percentage of shared care by the parents is in dispute only for the relevant period.
The legislation relevant to payment of the FTB in relation to this matter is the A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act). It is common ground that A is an FTB child, as provided for in s 22(2) of the FA Act, for which the parents have legal responsibility under s 22(5) of the FA Act. Under s 22(7) of the FA Act, the percentage of care must be at least 35% before A is taken to be an FTB child of the father in this case. Provision is made in s 59 of the FA Act for the determination of a “shared care percentage” provided the “individual’s percentage of care” is at least 35%.
CONTENTIONS
The father was critical of the SSAT decision on the basis that it did not correctly evaluate the evidence concerning the extent to which he had the care of A during the relevant period. He referred to entries he made in a calendar and his diary to demonstrate that care was shared on a 50/50 basis throughout the relevant period. He submitted that, initially, this was on the basis of six days out of every twelve days for each of them (a rotation of four days to the mother, two days to him, two days to the mother and four days to him); and then, from 15 March 2010 until the end of the relevant period, on the basis of alternative weeks (a rotation of seven days out of each fourteen days).
The mother submitted that at no time had she been involved in an allocation of six out of each twelve days; that, at best, the father had care of A on five days out of each fortnight; and that equal sharing had not been achieved at any time during the relevant period. She said that she began to share premises with a new partner on 11 May 2010, which was at the end of the relevant period, and that she and her partner found the arrangements in place at that time to be unsuitable because it involved a disruption to every weekend. From then on, the mother submitted, the arrangement reverted to care for alternate weeks on a 50/50 basis.
EVIDENCE
There was little consensus in the evidence given by the father and the mother in relation to the care arrangements during the relevant period. The mother completed a diary for the months from August 2009 until February 2010 in which she listed the care days which she and the father each had. The father also completed those details in a calendar for all of the relevant period. There is significant conflict in the entries. This is seen for five days in August[2], five days in September, nine days in October, fifteen days in November, ten days in December, three days in January and eight days in February[3].
[2] The father’s diary may be unreliable as it includes 15 August 2009 twice and omits 22 August 2009.
[3] The mother’s diary may be unreliable as it includes 30 days for February 2010.
Some of the evidence led in this matter was equivocal in that it was consistent with the submissions of both the mother and the father in that, while it identifies events involving A and a parent, it does not identify periods when A was in the care for a day of either parent. This included a statement from A’s gymnastic instructor in which she wrote that, from July 2009 until December 2009, A attended the gym program on Monday afternoons from 5 to 6 pm each week. Also, a statement from a sand play therapist confirmed that A attended therapy sessions on referral from a clinical psychologist. The administrative manager of A’s school provided a statement which indicated the days on which the father signed A out of school, generally on a Monday and Wednesday, from June 2009, to enable him to attend a tutorial class. The father’s diary entries for Monday 10 August and Monday 26 October 2009 note that he picked up A from school on those afternoons and took him to sand play therapy. However, there was evidence that the mother then picked him up after these classes. A friend of the mother wrote, on 30 August 2011, that she and her son met up with the mother and A in New Zealand while skiing in August 2009. She returned to Australia on 27 August 2009 and recalled that the mother took A and her own son skating on five or six consecutive weeks on Tuesday afternoons on returning to Australia. The mother confirmed that she took A skating after the New Zealand trip on each Tuesday until school finished in December 2009.
Transporting A to an after-school activity of a tutorial session, sand play therapy or skating is not evidence that A remained with the transporting parent on that day. Indeed, A’s maternal grandfather wrote, on 3 September 2011, that the father often took A to a private tutor on Mondays and Wednesdays after school but that the mother frequently picked him up thereafter. Indeed, I note that, in his calendar for 26 October 2009, the father allocated that date to the mother even though he advised that he delivered A to sand play therapy on that day.
The mother’s evidence was that, during the relevant period, there was no care sharing on a rotation of six out of twelve days or week about. Rather, she said that, during the relevant period, she had the care of A on nine days of each fortnight and that, typically, the father had the care of A on Thursday and Friday of one week and on Thursday, Friday and Saturday of the next week. As noted above, the mother said that this changed at the end of the relevant period because she and her partner found the arrangements to be unsuitable due to disruption every weekend. The mother also advised that there were times in the relevant period when she had the care of A for longer periods, including from 22 August to 3 September 2009 when she was in New Zealand with A; from 8 to 18 November 2009 when the father was away; and for 19 days to 25 February 2010 when the father was away for two weeks. The first of those three periods is acknowledged in the father’s calendar allocation.[4]
[4] This embraces the period where an error appears in the calendar template: see note 1 (above).
The mother’s evidence was supported by a friend, Ms S-MCP, who wrote that she knew something of the care arrangements for A from her visits to the mother at her home and at her work from July 2009 until early 2010. Her understanding was that A was cared for by the father from Thursday until Saturday or from Thursday until Monday. Ms J McL knew the mother through the latter’s work and recalled that, on return from New Zealand in August 2009 until mid-2010, the care arrangement was for A to stay with the mother for nine days each fortnight and with the father for the remaining five days. A’s maternal grandfather’s evidence was that the father did not have the care of A for 50% of the time in the relevant period. He wrote that there had never been a 4/2/2/4 day care rotation arrangement between them. He understood that it was a 4/3 day arrangement and an occasional 5/2 day arrangement, with the mother involved in most of the care. He wrote that this continued until the weekly rotation commenced.
In support of the father, the mother’s sister wrote that A was in the father’s care for 50% of the time since 29 June 2009. The mother’s brother wrote that A stayed with the father for 50% of the time from their separation in June 2009. The mother of the father completed a declaration in which she described an overnight visit by the father and A to her home. However, the date of the stay was the night of 19 April 2011 and does not fall within the relevant period.
The mother estimated that she had the care of A for 27 weeks in the year 2010/2011. Clearly that time-span does not equate to the relevant period. As I read the father’s calendar exhibit for the relevant period, it identifies 132 shaded days out of the 303 days of the relevant period when he had the care of A. This comprises 43.5% of the relevant period and less than the 50% care percentage contended by the father.
CONSIDERATION
There is a degree of inconsistency in the evidence of both the mother and the father in this matter. Also, the supportive evidence for the mother comes from family, friends and work associates. The supportive evidence for the father comes from the mother’s family and this reflects a clear inference of intra-family tension in this matter. Taking that into account and having regard to what the respective witnesses had to say, I am satisfied that the evidence by and in support of the mother is the more reliable. In the result, I am satisfied that, during the relevant period, A was in the care of the mother for an average of nine days of each fortnight and in the care of the father for an average of 5 days each fortnight. That equates to care arrangements for A of 65% to the mother and 35% to the father.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 28 June 2012
Date(s) of hearing 19 June 2012 Applicant In person Advocate for the Respondent Michelle Brazier Other Party By telephone
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