Cooper and Secretary, Department of Families, Community Services and Indigenous Affairs and Kline (Party Joined)

[2007] AATA 1915

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1915

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/1666

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		GEORGE COOPER

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

And KATHLEEN KLINE

Party Joined

DECISION

Tribunal Mr John Handley, Senior Member

Date2 November 2007

PlaceMelbourne

Decision The decision of the Social Security Appeals Tribunal made on 22 March 2007 is varied and the application remitted to Centrelink for adjustment of the entitlement of family tax benefit respectively to Mr Cooper and Ms Kline in accordance with these reasons.

(Sgd)  John Handley
Senior Member

  

SOCIAL SECURITY – Family Tax Benefit – children in shared care – dispute between parents of the pattern of shared care – extensive photographic evidence – decision of SSAT varied and application remitted for recalculation of entitlement between parents

A New Tax System (Family Assistance) Act 1999

Wade v Secretary, Department of Family and Community Services (2004) 139 FCR 285

REASONS FOR DECISION

2 November 2007   Mr John Handley, Senior Member

1.      The applicant, Mr Cooper, and the Joined Third Party, Ms Kline, are the parents of Sean Andrew Cooper born 14 September 1991 and Ryan James Cooper born 6 June 1995.  For the purposes of the A New Tax System (Family Assistance) Act 1999 (the FA Act), Sean and Ryan are each an FTB child.  This review concerns a determination of the pattern of care of the children by the parents for the purposes of assessing Family Tax Benefit (FTB) entitlement. Under the FA Act, if a child is in the care of an individual for greater than 10 per cent of a period of time, an apportionment is to be made of the FTB.  If the apportionment shows that the pattern of care with one individual was less than 10 per cent, the FTB child is taken not to be an FTB child of that individual (refer s 25 of the FA Act).

2.      Mr Cooper and Ms Kline have been unable to agree on the pattern of care with respect to Sean and Ryan for the income years ending 2004, 2005 and 2006.

3.      Centrelink initially made a decision in favour of Mr Cooper and apportioned a pattern of care greater than 10 per cent for varying periods of time during the three years in issue.  That decision was varied upon an application initiated by Ms Kline to Centrelink.  She ultimately sought review of the varied decision by the Social Security Appeals Tribunal (SSAT) who, by a decision on 22 March 2007 decided to set aside the decision made by an authorised review officer (ARO) and directed that the entitlements to Ms Kline be recalculated.  Mr Cooper was an added party to the SSAT appeal.  He did not appear at the hearing but was present by telephone.  He is the applicant in these proceedings and challenges the decision made by the SSAT.

4.      In addition to the days that the children routinely spent with Mr Cooper (approximately each alternate weekend on a Friday and Saturday evening) the SSAT decided he had the children for 131 extra days.  By these proceedings, Mr Cooper asserts that he had the children for 247 extra days.  He is therefore, by these proceedings, claiming that he had a pattern of shared care for an extra 116 days during the three years in issue.

5.      The 116 days now claimed by Mr Cooper relate to five specific periods of care which he has summarised in his Statement of Facts and Contentions as:

(i)School Holidays;

(ii)Period 30 November 2003 to 30 January 2004;

(iii)Thursday nights during 2004;

(iv)Period 24 December 2004 to 31 December 2004; and

(iv)Other days.

6.      Support for the claims made by Mr Cooper are largely by reference to photographs produced by him which he said demonstrated that he had the children with him and / or with his current wife.  He said the photographs were taken by him using a camera which also had a facility or mechanism to record the date and time.  The photographs were downloaded and stored in his computer.  He said that he used a photo program exclusive to his printer which in addition to printing the photograph also printed data giving the date and the time each photograph was taken.  He said that if he used a Microsoft photo program, the data with respect to the date and time the photograph was taken would not be printed, nor able to be discerned.  He also relied on a number of documents and letters written by other persons.  His current wife, Mrs Karen Cooper, also gave evidence.

7.      Ms Kline, who did not attend the hearing but gave evidence by telephone, disputed the validity of the photographs and the data attached to them.  She said that Mr Cooper is very knowledgeable with respect to computers and is capable of altering the data attached to each of the photographs produced by him.  Additionally she said that he was capable of manipulating his camera thereby affecting the validity of the date and time that each photograph produced by him purports to have been taken.

8.      Ms Kline also pointed to a photograph produced by Mr Cooper dated the sixth day of January 2006 and which is recorded as having been taken at 1658 hours.  She produced a photograph taken on the same day.  She and her partner, Mr Pearson, said that the children were collected from Mr Cooper’s residence at about 3:30pm (1530 hours) on the same day and taken to Bridgewater for a weekend of camping with other family members.  In those circumstances she asserted that the photographs upon which he intended to rely had no validity and weight should not be given to any evidence where he relied on photographs in support of his application.

9.      Additionally it was asserted that Mr Cooper was capable of producing the photographs to the SSAT but did not do so.  It was also submitted that Mr Cooper now relied on records which he did not produce to the Family Assistance Officer or to the SSAT (refer paragraph 20 and 29 of SSAT decision).

10.     Mr Cooper submitted that the records referred to by the SSAT were compiled only by reference to alternate weekends, some school holidays and Thursday nights during 2004 without any reference to photographs.  He said he did not understand when the records were compiled that he was obliged to compile a pattern of care.  He said the records comprised a calendar completed between him and Ms Eastcott of the Maryborough Centrelink Office (those calendars were received into evidence as Exibit PJ 1).  Additionally Mr Cooper disagreed with the submission put by Ms Kline that he only produced the photographic evidence after he had been given a list of the dates relied upon by her.  He also said that he did discuss the appeal lodged by Ms Kline with a case officer at the SSAT who he understood had advised him that his digital photographs would not be necessary for the hearing because he would be giving evidence by telephone.

11.     On balance I am satisfied that the photographs relied on by Mr Cooper have not been manipulated or altered and the dates and times recorded against each photograph are accurate.  I accept that he is a witness of truth.  Most of the photographs were taken well before he made his claim to Centrelink (14 June 2006) and were therefore taken at periods of time not in contemplation of litigation.  I dismiss the assertion of Ms Kline that the photographs over the three years in issue do not show the children as having aged or have grown up.  The photographs taken in early 2004 compared to the photographs taken in late 2005 clearly show the children to have grown.  I acknowledge the evidence of Ms Kline with respect to the comparative photographs of 6 January 2006 but on the evidence heard from Ms Kline and Mr Pearson and the time recorded against the photograph taken by Mr Cooper there is approximately one and half hours difference.  More than 18 months later when the evidence was heard in these proceedings it is difficult, without any disrespect, to be confident of the accuracy of the memory of Ms Kline and Mr Pearson.  I accept that one of the two children depicted in the photograph of Mr Cooper was present at his residence at 1658 hours on 6 January and I accept also that one of the two children is depicted in the photograph relied on by Ms Kline at Bridgewater on the same date.  I am not satisfied that those two photographs cause me to dismiss the validity of the photographs generally relied on by Mr Cooper in support of his application.

12.     I am also satisfied on the evidence heard from Mr Cooper that the calendar prepared by him with the assistance of Ms Eastcott was undertaken without his access to photographs and was completed based on memory over a number of previous years.  In the absence of photographs he would have been incapable of being specific, as he now is, in these proceedings.  He mainly recorded the days each fortnight he assumed the children would have stayed with him.  The photographs and annexed data demonstrate that the pattern of weekend access was not consistent.

13.     Mr Cooper and Ms Kline were each unrepresented.  They gave evidence.  At the conclusion of the hearing I invited them to call the persons who had provided letters or statements which were attached to their respective Statement of Facts and Contentions.  Both persons declined that invitation.  Mrs Cooper, the current wife of Mr Cooper, gave evidence as did Mr Pearson the partner of Ms Kline.

14.     The following records the evidence of Mr and Mrs Cooper, Ms Kline and Mr Pearson.  As recorded earlier, the SSAT made findings that the children were in the care of Mr Cooper for 131 days during the three years in issue in addition to the alternate fortnightly access visits.  Ms Kline had claimed that the children were in his care for 128 days.  The three day difference between her claim and the findings of the SSAT were not the subject of any appeal.  The days relied upon by Ms Kline in support of her case had been recorded by her in a submission that she had made to Ms Eastcott at the Maryborough Office of Centrelink which is found at T51 of the T‑documents.

school holidays

15.     Mr Cooper claimed that he provided a pattern of care for the children during the school holidays which were loosely described as having occurred each April, June/July and September of each year together with the extended period surrounding Christmas.  For each of the school holidays during the year he claimed care for one week and with respect to the Christmas holidays he claimed a period of two weeks being either one week around Christmas day or one week around New Year’s Day alternating each year together with one additional week later in January.  He said the Christmas holiday arrangements were mutually arranged to suit both parties.  He claimed an additional 70 days of care with respect to school holidays.

16.     In a lengthy submission lodged by Ms Kline prior to the commencement of the hearing, she recorded that the only occasion where the children spent time with Mr Cooper during school holidays (other than the fortnightly weekend visits) was a four day period at or around Christmas 2004.  In evidence at the hearing she said that the children did not spend time with Mr Cooper during school holidays other than the four day Christmas period of 2004.  On other occasions she said that her mother travelled from Melbourne to Maryborough to look after the children and later Mr Pearson looked after the children subsequent to commencing his relationship with her.  She said that she worked mainly as a casual in the years 2003 and 2004 and together with the assistance of her mother and Mr Pearson she also provided care during school holidays.

17.     In letters lodged by Ms Kline, support for her evidence of care being provided by her mother was provided by Cindy Kline (T16), Evelyn Warwick (T60) and from Ms Kline’s mother (Exhibit PJ2).

18.     Mr Cooper relied on a letter completed by Mr Jason Morgan the workshop supervisor of the Southern Short Haul Railroad in Bendigo where Mr Cooper previously was employed.  The letter records that on 16 January 2004 he observed Mr Cooper, the two children and Mr Cooper’s wife at the workplace and also recalled the workshop supervisor taking Mr Cooper’s children together with Matthew, the son of Mrs Cooper, on a short ride on a locomotive which had been under repair.  Mr Cooper said that Mr Morgan recalled the date by reference to some workshop repair sheets which were annexed to his letter.

19.     Mrs Cooper in evidence said that during each of the school holidays at April, June and September, Sean and Ryan would stay for an extra three or four days immediately after the fortnightly access visit that fell within that period.  She said the arrangements for the extended visit of Sean and Ryan was by agreement with Ms Kline.  Mrs Cooper also said that during the Christmas holidays the children would stay for approximately five days between Christmas day and New Year’s Day and for another period of three or four days in January.

20.     Mr Cooper relied on photographs dated 15 January 2004, 27 September 2004, 17 January 2005, 28 June 2005, 17 September 2005 and 6 January 2006 which depict either Ryan or Sean or both of them.  He said those dates fell within school and Christmas holidays.  Additionally, he referred to a photograph which depicts a door in his home where it has been marked recording the height of Sean and Ryan (and Mrs Cooper’s son Matthew).  The markings have differing dates and depict each child having grown in height.  Some of the dates recorded fell within school holiday periods.

21.     Mr Cooper said that on the occasion where the children stayed for extended periods, they also stayed overnight.

22.     On balance, I am satisfied that the children did spend time with Mr Cooper during the school holiday periods during the three years in issue.  I acknowledge the content of the letters from Mrs Kline Senior, Cindy Kline and Ms Warwick but neither of those letters records that care was provided exclusively in the residence of Ms Kline throughout the entirety of each school holiday period.  Mr Pearson said in evidence that he was home with them during the school holidays.  I do not interpret that to mean that the children stayed in the home of Ms Kline only for every day of the holidays.  Additionally, he did not know Ms Kline before July 2004 and he cannot therefore give evidence of previous school holiday access.  I acknowledge the concession by Ms Kline that the children did spend time with Mr Cooper for four days at Christmas 2004 but having regard to the evidence of Mr Cooper and Mrs Cooper, the letter from Mr Morgan and especially the photographs, I am satisfied that a pattern of care can be demonstrated with respect to school holiday periods.

23.     Precision cannot be achieved in calculating the days that the children were in the care of Mr Cooper during the school holidays.  I also think that some caution should be adopted in making the calculations.  None of the witnesses asserted perfection of memory and where a description of (for example three or four nights) has been submitted as periods of time, I prefer to make findings of lesser rather than greater numbers of nights.

24.     Despite the assertion of Mr Cooper of an entitlement of 70 days during this period, I have concluded that there should be a finding of 48 days being made up as follows:

(a)   Three days for each of the April, June and September holidays in each of the three years	27 days;
(b)   Four days for each of the Christmas / New Year week for three years	12 days;
(c)    Three days for each month of January for each of the three years	9 days
TOTAL	48 days

30 november 2003 to 30 january 2004

25.     In a letter at T51, and in evidence, Ms Kline said that the children did not visit Mr Cooper at all, due to arguments, in this period, including fortnightly access visits.  She said that she and Mr Cooper had been having a number of bitter arguments concerning child support and she preferred that the children not witness those arguments.  Additionally, she said that it had been arranged Mr Cooper would collect Sean from a friend’s birthday party, he had forgotten, she was contacted by a parent of another child and she then collected Sean.  She drove to Mr Cooper’s home where there was then a big fight and she declined to allow Sean and Ryan to visit him until the end of January because they had witnessed the screaming.  Additionally, she said that she moved into a new home during Christmas 2003 and she then wanted the children to stay with her.  Later, in January 2004, she rang Mr Cooper and suggested that the children needed a father and after discussions with him the visits resumed.

26.     Mr Cooper said that he had no knowledge of failing to collect Sean from a birthday party and disputed the absence of any contact with the children for a two month period in December 2003 and January 2004.  He said that he would remember not having any contact with the children for two consecutive months.  He also relied on photographs of 15 January 2004 which depict Sean and Ryan and said that the photographs were taken by him.  He also relied on the photograph at page 17 of his bundle of photographs which depicts markings on the door of his home recording the height of both Sean and Ryan recorded on 31 December 2003.  He relied on the letter from Mr Morgan of the Southern Short Haul Railroad recording Sean, Ryan and him attending the workplace on 16 January 2004.  He also relied on a letter completed by Mr Rob Stevens (the father of Mrs Cooper) who reported that he recalled Sean and Ryan attending a Christmas party at his home on 20 December 2003.

27.     The claim made by Mr Cooper with respect to this period of time is for the fortnightly weekend visits which he said continued to occur.  He relied on the photographs in evidence of the children being with him.  The 20^th of December 2003 (refer letter of Mr Stevens) occurred on a Saturday and 16 January 2004, occurred on a Friday (refer letter from Mr Morgan).  Those letters point to Mr Cooper being with the children on at least those two days.  The photographs also point to evidence which contradicts the evidence of Ms Kline that the children did not spend any time at all with Mr Cooper during the period 30 November 2003 to 30 January 2004.  However I am satisfied that it would be likely that Ms Kline would want the children to spend time with her during the Christmas period (at least) when she moved into a new home to allow them to become familiar and settled, particularly having regard to their age, then, of 12 and 8 years respectively.  I accept that there were arguments between her and Mr Cooper and that she probably did then exclude the children from him for a period of time.  Whilst Mr Cooper claims for the weekend visits denied during this period (which would amount to 16 days being eight weekends @ 2 days) he claims nine days only which probably does account, in my view, for some weekends denied during the period of settling the children into the new home of Ms Kline.  Mr Cooper has claimed nine days for this period and I am satisfied for all of the above reasons that that claim has been made out and should be allowed.

2004 tafe course

28.     This part of the claim by Mr Cooper concerns an application by him for extra days of care on Thursday nights during 2004 when Ms Kline attended the Bendigo TAFE College where she was undertaking a certificate course in Community Services (Aged Care Work).  Mr Cooper said that Sean and Ryan were in his care on Thursday nights throughout the whole of the academic year in 2004 which he said amounted to an extra 17 days.  He also relied on a memorandum completed by Ms Eastcott at the Maryborough Centrelink Office which recorded (a conversation with Ms Kline) she confirmed that in the 2004 academic year the boys were in their father’s care each Thursday night during her school terms commencing Feb 2004 and ending late Sept 04.

29.     Mrs Cooper relied on a letter that she completed on 16 June 2004 which recorded that Ms Kline approached her and Mr Cooper in January 2004 seeking assistance to look after the children on Thursday nights in that year whilst she attended the TAFE College.  She recorded that she would collect her own son from the Carisbrook Primary School on Thursday afternoons and then would drive to Ms Kline’s house where she would then collect Sean and Ryan who were waiting for her with an overnight bag packed by Ms Kline.  She would then take them to the house occupied by her and Mr Cooper where they would stay overnight and would be collected the next morning by Ms Kline.  She recorded that during the first term of that year she would take Sean to cricket practice and would take Ryan and her son Matthew to a local swimming pool.  On returning home she would call at a local shop and visit her mother who lived in the house next door.  She recorded that she and Mr Cooper looked after both Sean and Ryan on each Thursday night throughout 2004.

30.     In evidence, Mrs Cooper confirmed the contents of her letter as recorded above and said additionally, that she would cook the Thursday night meals for the three children and she had a 100 per cent accurate recollection of the children staying with her and Mr Cooper on Thursday nights and her undertaking the activities with the children referred to above.

31.     Mr Cooper relied on the letter completed by Mrs Elaine Murphy (Mrs Cooper’s mother) who recorded that on most Thursday afternoons in 2004 she saw her daughter with Sean and Ryan.

32.     Mr Cooper also relied on two photographs dated 15 July 2004 taken at 20:08pm and 20:13pm depicting the children in their pyjamas.  15 July 2004 was a Thursday night and fell during the third term of the TAFE course undertaken by Ms Kline.

33.     In evidence, Ms Kline said that the children stayed at Mr Cooper’s home during the second term only of her course in 2004 which ran between 22 April and 24 June 2004.  She said that her mother and Mr Pearson looked after the children on Thursday nights during the other terms.  She said that the children stayed with Mr Cooper during the second term because her mother was then ill and Karen offered to look after them.

34.     Ms Kline acknowledged the memorandum completed by Ms Eastcott but said the comments as recorded were subject to verifying the dates from diaries that she maintained and which she did not have with her at the time of the conversation.  She also referred to her evidence to the SSAT where it was then recorded (paragraph 16) that her mother travelled to Maryborough for one or two days of each week during 2004 in order to look after the children on Thursday nights except during the second term when she was then ill.

35.     Ms Kline disputed the interpretation of the photograph of 15 July 2004.  She said that there were occasions when the Thursday night course was cancelled and one occasion may have fallen on that date.  She also said that there were occasions when she would attend elderly clients to prepare their evening meals and where those clients lived in the same street as Mr Cooper.  She said that she would have Sean and Ryan with her who were often in their pyjamas and they would often call in to see Mr Cooper.  She said there were occasions when she would also call into Mr Cooper’s home for a cup of coffee . . . as we were getting along better back then (refer statement dated 18 July 2007).

36.     Ms Kline relied on a letter completed by Kerry Melbourne who recorded that Sean and Ryan were cared by Mr Cooper during the second term in 2004 only and Mrs Kline senior looked after the children for the remaining Thursday nights in 2004.  Cindy Kline, Ms Kline’s sister, recorded in a letter that Mrs Kline senior travelled to Maryborough to look after the children except for the second term in 2004.  Ms Kline said that her mother lived with Cindy who would drive her to the railway station in order to travel to Maryborough.  In a letter completed by Mrs Warwick she recorded that Mrs Kline senior would come and stay if she could when Ms Kline was attending night school and when Norma wasn’t available George would have the boys overnight.

37.     Ms Kline said that Mr Pearson looked after the children on some occasions in 2004 and either he or her mother looked after the children in the third and fourth terms of that year.

38.     Mr Pearson said that he first met Sean and Ryan on 25 July 2004 and he recalled being with the children on Thursday nights when Ms Kline attended the TAFE course.  He said that he alone looked after the children or he did so with Mrs Kline senior.  He acknowledged that he had no knowledge of who was minding the children on Thursday nights before 25 July 2004.

39.     On balance I am inclined to accept the evidence of Mr and Mrs Cooper with respect to this aspect of the application.  Despite the knowledge professed by Cindy Kline, Ms Melbourne and Mrs Warwick of the arrangements for care of the children during 2004 on Thursday nights, no mention at all is made of the care provided by Mr Pearson.  Ms Melbourne recorded I also confirm that their grandmother looked after them for the remaining times throughout the course.  Cindy Kline recorded Norma came from Melbourne to do this as Kathy had no one else to help her as George their father was working.  I also note from the decision of the SSAT that no mention is made of the care provided by Mr Pearson on Thursday nights as was asserted in these proceedings.

40.     I am also satisfied that care by Mr Cooper and Mrs Cooper occurred for more than the second term only of 2004 because of the evidence of Mrs Cooper that she drove Sean to cricket practice and took Ryan and Matthew to a local swimming pool.  Those activities are more likely to occur at the beginning and end of each year.  The dispute by Ms Kline of the venue for cricket practice is also unhelpful (refer statement of 18 July 2007).

41.     The photograph of 15 July 2004 depicts the children in their pyjamas at Mr Cooper’s home.  Ms Kline said that the children would visit their father on some occasions when she was attending elderly neighbours to provide evening meals after 6:30pm.  The photographs were taken after 8:00pm and the children are depicted wearing pyjamas.  Whilst the photograph of 15 July 2004 may be consistent with Ms Kline calling in to have coffee with Mr Cooper as she recorded in her statement, the 15^th July 2004 was a Thursday night and it fell during the third term of the TAFE course.  The explanation by Ms Kline that that may have occurred on a Thursday night when the course was cancelled is, at best, speculation.

42.     Mr Pearson acknowledged that he could offer no evidence concerning the care of the children before 25 July 2004 when he first met them.

43.     The course at Bendigo TAFE commenced on 19 February 2004 (T29) and concluded in September 2004.  There were 33 Thursdays between those dates.  Allowing for breaks at Easter and between terms (the duration of which is not known) the application by Mr Cooper for an allocation of an additional 17 days does, in the circumstances, appear to be reasonable.

44.     I am satisfied that the recollections of Mrs Cooper are accurate and persuasive.  I am satisfied that the totality of the evidence advanced by Mr Cooper with respect to this part of the claim should be preferred to the evidence advanced by Ms Kline.

45.     I am therefore satisfied that the 17 days claimed by Mr Cooper should be allowed.

24 december 2004 – 31 december 2004

46.     Ms Kline submitted that the children were with Mr Cooper during this period only on the evening of 25, 26, 27 and 28 December 2004.  She and Mr Pearson said that they travelled to the Grampians for four days for a holiday in the period between Christmas day and New Year’s Day but returned on 29 December 2004 and then collected the children.

47.     Mr Cooper said that he had the children in his care overnight between 24 and 30 December 2004 inclusive and the children were collected by Ms Kline during the day on 31 December 2004.  He referred to an email completed by him at the request of Ms Kline on 31 December 2004 which he said was written in her presence on the day that she returned from the Grampians and being the day that she collected the children.  A copy of that email was included in a bundle of documents lodged by him prior to the commencement of the hearing.

48.     Ms Kline acknowledged that a photograph relied on by Mr Cooper dated 25 December 2004 taken at 7:13am depicting both children in their pyjamas at the foot of a Christmas tree unwrapping presents was evidence that the children had stayed with Mr Cooper on the previous evening, being 24 December 2004.  She conceded that the dates recorded by her at page 166 of the T‑documents were, with respect to this period of time, inaccurate.

49.     However she and Mr Pearson were adamant that they returned from the Grampians on 29 December 2004 having been away for four days only and that the children were collected by them from Mr Cooper’s house on that date.

50.     Mrs Cooper said that she recalled Ms Kline attending their house on 31 December 2004.  She said she also recalled the email being sent and recalled that Ms Kline was present whilst the email was being prepared and it was on that occasion that she attended the house to collect the children after returning from the Grampians.

51.     Both Ms Kline and Mr Pearson were adamant that they returned from the Grampians on 29 December 2004 and collected the children on that day.  Having heard the evidence from Mr and Mrs Cooper, I am not satisfied that the email date of 31 December 2004 coincides with the date that Ms Kline and Mr Pearson returned to collect the children.

52.     On balance, I am satisfied that the children were collected on 29 December 2004.  Ms Kline properly conceded that the children were with Mr Cooper on the evening of 24 December 2004.  Accordingly I would allow Mr Cooper one day only with respect to this period of time.

other days

53.     Mr Cooper claimed an additional 17 days not conceded by Ms Kline in the list of dates appended to her letter found at T51.  His claim for these additional days is by reference to the photographs lodged by him.

54.     The dates compiled by Ms Kline were by reference to diaries but largely by recollection of the pattern of alternating fortnightly weekend visits.  The occasions depicted by the photographs – and by reference to the date of the photographs – were all outside the alternating fortnights and to the extent that the dates claimed ranged between June 2004 and 20 November 2005, it is not unremarkable that Ms Kline would not have had records of the days in issue.

55.     5 and 6 June 2004 fell on a Saturday and Sunday respectively.  Mr Cooper relied on photographs taken on those dates which depict both children in their pyjamas.  The photograph of 5 June 2004 is timed at 2020 hours and the photograph of 6 June 2004 is timed at 0747 hours.  This suggests that the children stayed with Mr Cooper for the evening of Saturday 5 June 2004 and I would therefore allow one night.

56.     Two photographs of 24 July 2004 depict Sean driving a ride on lawn mower.  Mr Cooper said he recalled that occasion because the mower was only one or two weeks old.  The photographs were taken at 1520 and 1521 hours respectively on a Saturday.  Mr Cooper did have the routine fortnightly access visit on the previous weekend and the succeeding weekend.  There was nothing by the photographs or by any evidence of Mr Cooper to indicate that Sean and or Ryan stayed overnight during the weekend in which 24 July 2004 fell.  In the circumstances I am not satisfied that the photograph depicts anything other than Sean driving the ride on lawn mower and is not of itself evidence of a pattern of care during that day or that weekend.  I would not allow that day as claimed by Mr Cooper.

57.     Two photographs taken on 7 August 2004 depict Ryan and Matthew at 1731 hours and Sean at 2021 hours.  The first photograph shows a large bonfire in the background which Mr Cooper said was a result of collection of debris and vegetation collected from around his house and which is burnt routinely each winter to reduce the risk of summer bushfires.  He said his children routinely came to his house on each occasion that he had a bonfire.  The second photograph taken at 2021 hours was suggested by him – and I agree – as evidence of the children staying overnight on 7 August 2004 which was a Saturday.  I would allow that day.

58.     A photograph taken on 5 September 2004 at 8:04am shows the children in their pyjamas.  That day was a Sunday and Mr Cooper said it was Fathers’ Day.  He is also shown unwrapping presents given to him by his children.  That the children were wearing pyjamas suggests that they stayed the night of 4 September 2004 and I would allow that day.

59.     A photograph of 13 November 2004 – a Saturday – taken at 10:58am depicts Sean and Matthew.  Mr Cooper could not recall why Sean was at his house on that day – it fell between fortnightly access visits in the previous and the succeeding weekends.  He said that in most cases where the children were depicted at his house during the day, they would have stayed either the previous evening or they stayed on the evening of the day depicted by the photograph.  In the absence of recalling why Sean was at his house on 13 November 2004 and having regard to the time the photograph was taken, I cannot be confident that Sean and or Ryan stayed with Mr Cooper on the evening of 12 November or 13 November 2004 and I would not be inclined in the circumstances to allow that day.

60.     Similarly, photographs taken on 5 December 2004 at 10:50am and 12:21pm depicting both Sean and Ryan at a motor car rally in Maryborough are not of themselves evidence of staying overnight but are more in the nature of spending time with Mr Cooper during the day only.  I would not be inclined to allow that day.

61.     A photograph of 5 March 2005 depicts Ryan in his bedroom wearing pyjamas pushing a vacuum cleaner in the course of cleaning his room at 10:51am.  That photograph suggests to me, as was asserted by Mr Cooper, of him having stayed the previous evening.  Sean is not depicted in the photograph although Mr Cooper did say that usually Sean and Ryan stayed with him together.  I would be inclined to allow that day.

62.     Two photographs of 15 May 2005 depict Ryan, Sean and Matthew at 1801 and 1802 hours.  15 May 2005 was a Sunday.  Mr Cooper said that the children would have stayed with him on the previous (14 May) Saturday evening and said further that there were other occasions when he and Ms Kline swapped the weekends of the access visits.  I would be inclined to allow this day.

63.     A photograph of 17 May 2005 depicts Sean, Ryan and Matthew at 2027 hours and 2055 hours being a Monday night and being the occasion of Matthew’s birthday.  Having regard to the time that the photographs were taken I accept the evidence of Mr Cooper that the children would have stayed with him on that night and I would therefore allow that day.

64.     Photographs of 15 August 2005 were taken on the occasion that Mr and Mrs Cooper married.  That day was a Monday.  The children stayed with Mr Cooper for a weekend access visit on 12 and 13 August 2005.  He said they also stayed the evening of 14 August 2005.  Having regard to that occasion I accept the evidence of Mr Cooper and would allow that day.

65.     A photograph of 11 September 2005 taken at 12:04pm depicts Ryan with Mr and Mrs Cooper.  It was a Sunday and apparently it was taken before or after they had attended a local lawn bowls club.  Mr Cooper said that he recalled that day because it was the occasion of a local tournament where Ryan only participated.  He said that Ryan would have stayed the night before but he could not recall whether Sean had also stayed on that night.  I would in respect of that day allow it and then for Ryan only.

66.     Two photographs taken on 17 September 2005 at 9:55 and 10:00am depict Ryan only bowling at a lawn bowls club.  Mr Cooper said that he recalled that Sean had travelled to Sydney that weekend and Ryan had stayed with him on the previous evening.  I would allow that day with respect to Ryan only.

67.     Mr Cooper referred to photographs taken of Sean only on Saturday 22 October 2005 at 2053 and 2054 hours.  Mr Cooper could not recall why Sean was then at his home and he could not recall whether Ryan was also present.  Having regard to Sean’s age at the time and to the time that the photographs were taken, I would be inclined to allow that day with respect to Sean only.

68.     Two photographs taken on Sunday 20 November 2005 at 1409 and 1418 hours depict Sean, Ryan and Matthew swimming in Carisbrook Creek.  Mr Cooper said that both children would have stayed with him on the previous Saturday night.  I would allow that day.

69.     Finally Mr Cooper relied on the photograph of the door at his home which had markings of the heights of Sean and Ryan from time to time.  One of the dates is 10 July 2004 which was a Saturday but in the absence of precise knowledge of when school terms occurred in that year, there may be an overlap between this day and the allowances previously granted earlier in these reasons with respect to the claim for school holidays.  The remaining date of significance to Mr Cooper was the date of 16 March 2005 where the heights of Sean and Ryan are depicted.  That day was a Wednesday and Mr Cooper was unable to recall why the children would be with him mid-week.  He thought that there may have been a curriculum day which would allow the children to be absent from school and where they would have therefore stayed with him overnight.  The time that the heights of each child were recorded is not known and I do think that it is speculative to find that the children would have necessarily stayed overnight.

70.     In conclusion I would therefore allow the days referred to above in favour of Mr Cooper with respect to this part of his claim.

conclusion

71.     The Guide used by Centrelink (at paragraph 2.1.45) to establish a pattern of care where the care of children is shared takes account of the nights children spend with their parents.  This in my view – and in the absence of legislated interpretation – is an appropriate basis to calculate the periods of time that children have respectively stayed with their parents.  It provides a mechanism for calculation, it demonstrates a pattern and is indicative of care for a period when cost is likely to be incurred therefore attracting an FTB payment.

72.     A period of time of a few hours only, on random occasions does not fit within the Guide.  It does amount to a pattern.

73.     In Wade v Secretary, Department of Family and Community Services (2004) 139 FCR 285, Kiefel J said:

30 There is nothing in the Act [A New Tax System (Family Assistance) Act 1999] which requires the percentage to be determined by reference to whole days that a person has the care of the child. The references in ss 22 and 25 of the Act to days of care is for the purposes of these provisions. It does not follow that the reference to days of care can be imported into what is necessary to calculate the actual percentage of care. 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. This is the way in which the SSAT and AAT approached the matter. In my view they were correct.

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. That was the course taken here. The pattern of care is also used as the basis for the calculation of percentage in par 2.1.1.50. Although they are expressed as the respective party’s ‘days of care´ under par 2.1.1.45, which are to be divided by the number of days in the period in question, the Guidelines permit more than one method of assessing those days. Relevantly one is to calculate the number of hours of care and aggregate them.

Her Honour has clearly endorsed the Guide as a basis for determining a pattern of care and the methodology of calculation.  Aggregating periods of hours spent in care during a day is of course also permissible but only when the hours are known or can reasonably be calculated.  In this application the (limited) number of days were I have found that the children were in the care of Mr Cooper – during the day – have been disallowed because those days do appear to be random, they do not indicate a pattern and the number of hours cannot be reasonably aggregated.

74.     For all of the foregoing reasons I am satisfied that the decision of the SSAT under review in these proceedings should be varied and the application remitted to Centrelink for adjustment of the entitlement of family tax benefit respectively to Mr Cooper and Ms Kline.

I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing  12 October 2007
Date of Decision  2 November 2007
Solicitor for the Applicant          Self Represented
Departmental Advocate            Michael Todd
Solicitor for the Party Joined     Self Represented