Confidential and Secretary, Department of Social Services Confidential Other Party

[2014] AATA 894

[2014] AATA 894  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1723
Re	Confidential
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Confidential
OTHER PARTY

DECISION

Tribunal

Senior Member J F Toohey

Date of decision

Date of written reasons

22 October 2014

4 December 2014

Place

Sydney

The Tribunal sets aside the decision under review and in substitution decides the applicant was entitled to family tax benefit payment for the period 4 January 2012 to 6 May 2012.

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Senior Member J F Toohey

CATCHWORDS – family tax benefit – care of child – Tribunal satisfied the child was in the mother’s care for family tax benefit purposes during the relevant period – decision under review set aside

Legislation

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance) (Administration) Act 1999

REASONS FOR DECISION

Senior Member J F Toohey

1. This matter concerns family tax benefit (FTB) payable from 4 January 2012 to 6 May 2012 in respect of a child who was then 15 years old.  Her parents separated in 2011.  The mother says the child was in her care during that time.  The father says the child was living with her grandmother and with friends, and was not in the mother’s care.

2. These written reasons reflect reasons given orally at the conclusion of a hearing on 22 October 2014 for a decision to set aside the decision under review.  They are provided at the request of the respondent.

   Background

3. In March 2013, Centrelink decided that the child, returned to her mother’s full-time care on 4 January 2012 and the mother was entitled to family tax benefit (FTB) from that date.

4. The child’s father disputed Centrelink’s decision with the result that, on 3 April 2013, a review officer decided that the child had not been in the care of either of her parents during the period 4 January 2012 to 21 May 2012.

5. The mother sought review of Centrelink’s decision by the Social Security Appeals Tribunal (SSAT) which affirmed the decision.  The mother then sought review by this Tribunal of the SSAT’s decision.

6. The mother says the child moved out on 7 May 2012 and went to live with her grandparents.  She accepts she was no longer entitled to FTB from that date.  Consequently, the period in dispute in these proceedings is from 4 January 2012 to 6 May 2012.  I will call this the relevant period.

   Relevant legislation

7. The legislation concerning payment of FTB is contained in the A New Tax System (Family Assistance) Act 1999 and the A New Tax System (Family Assistance) (Administration) Act 1999. The relevant provisions are set out in a Statement of Facts and Contentions filed by the Secretary and I will not repeat them in any detail here. In summary, an individual is eligible for FTB if they have at least “one FTB child” who is in that person’s care for not less than 35 percent of the time.

8. The percentage of care that an individual has for a child is usually determined on the number of nights that a child is in an individual’s care although, in some cases, hours in care may more appropriately reflect the arrangement.  In this case, the father says that the child was in the care of the mother for less than 35 percent of the time, meaning she was not entitled to FTB during the relevant period.

   Information before the Tribunal

9. The information given by the mother, the father and the child to Centrelink and the SSAT about where the child was living during the relevant period was at odds and inconsistent.  Written statements provided by others were of little assistance as to where the child was actually living during the period.  The SSAT commented on the lack of independent evidence and said there was not sufficient evidence that the child was in her mother’s care during the relevant period.

10. In these proceedings, the mother gave evidence by telephone.  The father is not directly affected by this decision because he does not claim to have had care of the child during the relevant period, but he was notified of the hearing.  He advised he would be overseas at that time and was told he could provide any information in writing if he wished to.  He said only that he accepted the child’s account of where she was living between 4 January and 6 May 2012. 

11. Three witnesses who had previously provided written statements gave oral evidence by telephone. 

    What the mother says

12. The mother gave evidence that the child in fact returned to live with her in December 2011 but the daughter did not want her father’s family knowing where she was, and she did not notify Centrelink until January 2012.  She said there were many weeks when the child spent seven nights a week at home but there were “a couple of occasions” on weekends when her father picked her up and dropped her off at another location, and approximately five days in April when she (the mother) had to go to Brisbane; there were also “occasional nights” when she did not know where her daughter was, when she believes she was staying with friends. 

13. The mother says that, for approximately three weeks in late January 2012, flooding prevented her and the child from leaving their property.

14. During the relevant period, the child started a TAFE course in a town some distance away and the mother says she was driving her to TAFE and waiting until classes finished for “a lot of the period”.  In early March, she signed a rental agreement for a property that she and the child moved into on 22 March 2012.  In a text message on 21 February 2012 to a friend, the child says “we are moving house”, which suggests to me that she was still living with the mother at that time.

15. Based on the mother’s evidence about occasions when the child would stay at friends’ houses, it seems probable that she spent many weekends somewhere else with friends.

    What the father says

16. The father told Centrelink and the SSAT that he took the child on a cruise during December 2011 (which the mother does not dispute occurred) and returned the child to his mother’s house on 30 December 2011.  He said he was in regular contact with the child while he was away for work and she told him she was with her grandmother, her boyfriend or a girlfriend.  He would pick the child up from her boyfriend’s house at the end of each three-week shift.

    The child’s written statement

17. In a written statement dated 10 September 2012, the child stated that, from 31 December 2011 to 4 January 2012, she lived with her friend D and D’s father.  She lived with her boyfriend until about 20 January 2012 when she went back to live with D; her father helped her move her belongings from her grandparents’ house to D’s house.  Shortly after, she went back to live with her boyfriend and stayed there until 10 May 2012.  She denied living with her mother during the relevant period. 

18. The mother has not been in contact with the child since early 2013.  Their relationship is evidently difficult and the child may have her own reasons for disputing the mother’s evidence.  Her claim that she was living with a girlfriend for some of the time is disputed by the girlfriend’s father who gave evidence in these proceedings.  In these circumstances, I give no weight to the child’s written statement.

    Evidence of Mr M

19. Mr M, who is the local bus driver, has provided a statutory declaration and gave evidence by telephone.  He says that, after the Christmas school holidays, when he was picking up the mother’s two young sons, he noticed the child was in the car “almost every morning and afternoon” when the mother dropped the boys off and picked them up from the bus.  He says this continued through February 2012 into early March 2012 when the family moved house.  After this, he still drove the boys to school and he saw less of the child but she was still with the mother at the bus stop “two or three times a week” until May 2012.

20. Mr M gave evidence that he remembered seeing the child in the car because he asked the boys who she was; because she appeared “of school age” and he was a school bus driver, he wondered what she was doing.  He says the boys told him she was their sister and she was coming down to the bus stop where she could get phone coverage which she could not get at the house.

    Evidence of Ms H

21. Ms H was a neighbour of the mother for most of the relevant period.  She provided an affidavit and gave evidence by telephone.  She confirmed that the child moved in with the mother in the first week of December 2011; she was a similar age to Ms H’s two daughters.  She recalled “being flooded in” for approximately three weeks from mid-January 2012. 

22. Ms H gave evidence that she saw the child “on a daily basis” during school weekdays until the mother and the children moved to the new property in the first week of March.  She had to pass their property to drive to the local shop; she would stop and talk to the mother and the child would be there, quite often helping with the baby.  She seemed to be there “pretty much … all the time”.  She said they socialised on at least three occasions on weekends when the child was present, and the mother and child used her phone on a number of occasions because they had no reception or landline on their property.  She said she regularly gave the mother and her four children a lift to town when they had car problems in February and that she helped them move house in March 2012.

    Evidence of Mr C

23. Mr C is the father of the child’s friend, D, with whom the child claimed to have been living for part of the relevant period.  He provided a statutory declaration and gave evidence by telephone. 

24. Mr C gave evidence that the child did not live at his house during 2011 or 2012.  He says she “had a couple of sleepovers and that was all”; she might have “wandered in” in the middle of the night with his daughter because they had been out partying but was gone the next morning.  He says there was one occasion in early 2012 when his daughter rang him late at night and asked him to pick them up; he refused and the police “put them all in the back of the paddy wagon” and took them to his house and asked if he would take responsibility for them; he said he would but it was only for one night.

    Bank statements

25. The Secretary has provided a spreadsheet which sets out for the relevant period records of ATM withdrawals and purchases against the daughter’s bank account.  They indicate a number of withdrawals at various locations some distance from the mother’s home during the relevant period.  It is impossible to draw any conclusion from the records other than that the daughter probably stayed away from the mother on a number of occasions during the period.

    Other information

26. Other evidence includes written statements from the child’s boyfriend, the child’s paternal grandmother and aunt, and documents relating to family law proceedings in the Federal Magistrates Court.  For the most part they lack detail or information that would assist in determining where the child was living during the relevant period.

    Consideration

27. The Secretary acknowledges the difficulties in reconciling the conflicting evidence and does not take a firm position as to what finding of fact the Tribunal should make. 

28. Much of the evidence remains at odds and difficult to reconcile.  However, I now have the sworn evidence of two witnesses who support the mother’s claim that the child was in her care throughout much of the relevant period. The evidence of the third witness is against the child’s statement that she lived at his house for much of the period.  I accept the evidence of each of the witnesses.  They all appeared to give their evidence honestly and none had any apparent interest in supporting the mother’s account over anyone else’s. 

29. I think it probable that there were frequent occasions when the child was not at the mother’s house during the relevant period.  I think it probable she spent many weekends at someone else’s house including her boyfriend’s house.  However, I am reasonably satisfied that she spent most of January at her mother’s house including the period when they were more or less isolated by the flood. I am reasonably satisfied that she was spending most of her time at her mother’s house during February and up until early March when they moved house. 

30. From early March 2012 the picture becomes less clear.  However, I have the mother’s sworn evidence that the child continued to live with her, and Mr M says he continued to see the child with the mother two or three times a week up to May 2012.  I think it probable that, from about mid-March 2012, the arrangement slowly became less frequent until the child returned to live with her grandmother in early May 2012.  However, I am reasonably satisfied that the child was in the mother’s care for at least 35 per cent of the time throughout the relevant period.

    Conclusion  

31. Making the best I can of the evidence, I am reasonably satisfied that the child was in the care of the mother for at least 35 percent of the time during the relevant period.  The decision of the SSAT is set aside and the decision substituted that the mother was entitled to payment of FTB during the relevant period.

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

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Associate

Dated 4 December 2014

Date(s) of hearing	22 October 2014
Representative for the Applicant	Self-represented
Representative for the Respondent	Mr Steven Davidson, Government Lawyer