Dallas and Secretary, Department of Family and Community Services and Anor
[2005] AATA 562
•10 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 562
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2004/55
GENERAL ADMINISTRATIVE DIVISION ) Re JUDY ALEXANDRA DALLAS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
STEPHEN CHARLES FOLEY
Second Respondent
DECISION
Tribunal Associate Professor B W Davis AM, Part-Time Member Date10 June 2005
PlaceHobart
Decision The decision under review is affirmed.
[Sgd B W Davis]
Part-Time Member
SOCIAL SECURITY – family tax benefit (FTB) – shared care of TFB children – Family Court Order – parenting – transport between domiciles – psychiatric disorder – pattern and duration of visits – insufficient evidence as to pattern of care – Social Security Appeals Tribunal (SSAT) – decision affirmed
A New Tax System (Family Assistance) Act 1999 (Cth) s 21, s 22, s 23, s 25 and s 59
Family Assistance Guide
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake (No 2) Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Re Walsh and Secretary Department of Family and Community Services [2003] AATA 678
Re Hofman and Secretary Department of Family and Community Services [2003] AATA 352
REASONS FOR DECISION
10 June 2005 Associate Professor B W Davis AM, Part-Time Member 1. The decision under review is a decision made by a delegate of Centrelink on 16 June 2003 to reject a claim by the applicant, Judy Alexandra Dallas, for Family Tax Benefit (“FTB”) in respect of her children Alexei and Georgia, for the 2001-2002 and 2002-2003 financial years. The decision made by Centrelink on 16 June 2003 was subsequently affirmed by the Social Security Appeals Tribunal (“SSAT”) on 8 April 2004.
issues
2.(a) Is Ms Dallas qualified to receive FTB for the 2001-2002 and 2002-2003 financial years?
(b)Were the children in Ms Dallas’ care for at least 10 per cent of the time during the relevant years?
(c)What percentage of care did Ms Dallas have of the children during the 2001-2002 and 2002-2003 years?
legislation
3. The relevant legislation is the New Tax System (Family Assistance) Act 1999 (Cth), sections 21, 22, 23, 24, 25 and 59. The Family Assistance Guide should be noted.
standard of proof
4. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.
background
5. The applicant, Ms Dallas is the mother of two children, Alexei Dallas-Foley born 29 August 1990 and Georgia Dallas-Foley, born 3 January 1993. The children principally reside with their father, Stephen Foley, the second respondent in this case.
6. The applicant has contact with the children on weekends during school term and at other times during school holidays. Ms Dallas asserts that during school term at least one of the children stays with her at Dodges Ferry from Friday afternoon until Sunday afternoon and both of the children stay with her from Friday afternoon until Sunday afternoon at least once a month. The applicant also asserts that during school holidays she has more contact with the children, having both of them staying with her for two to three days per week.
7. The applicant receives some money from her mother, Mrs Ina Dallas, to help provide for the children. Mrs Ina Dallas also assists the applicant with care of the children, sometimes taking them back to her house at Mt Nelson where they are collected by their father.
8. There is a Family Court Order, dated June 1998, which amongst other things grants custody of the children to Stephen Foley and provides for the children to stay with their mother at her residence (currently Dodges Ferry) each alternate weekend during school term periods from 4.30pm Friday until Sunday 4.00pm, from 16 May 1997 and fortnightly thereafter.
9. The same Court Order provides for the children to visit their mother during the first half of each term holiday and for two separate periods of two consecutive weeks (a total of four weeks) at times to be agreed between the parties.
10. The Family Court Order also provides for Ms Dallas to attend a consultant psychiatrist each month for assessment of mental condition, so that a certificate can be issued to the father (Stephen Foley) about her condition. There are further provisions about telephone calls and contact points, as well as a restraint order upon the mother to avoid threatening behaviour.
11. There is evidence to suggest the Court Order has not been fully implemented or enforced, rather parties to the arrangement have tried to find a workable solution, given Judy Dallas’ hospitalisation at times, Mrs Ina Dallas’ own medical problems and Stephen Foley trying to facilitate visits for the children to their mother whenever circumstances allow. This sometimes results in inconvenience to Mr Foley, having to travel between Molesworth and Dodges Ferry, some hours apart.
initial application and review
12. The applicant, Judy Alexandra Dallas made a claim for a lump sum payment of FTB for 2001-2002 and 2002-2003 financial years on 23 May 2003. On the 13 June 2003 she completed a “Details of Your Child’s Care Arrangements” Form, but care arrangements for the children were not clearly stated in her response. A decision was made by Centrelink on 16 June 2003 to reject her claim and the original decision-maker further affirmed this decision in a letter to her dated 3 November 2003.
13. The decision was also reviewed by an Authorised Review Officer (“ARO”) who determined that the decision to reject the application was correct, given that the children were not in Ms Dallas’ care for at least 10 per cent of the period claimed. The matter was further reviewed by the SSAT on 8 April 2004, which affirmed the initial decision, finding that the children were not in Ms Dallas’ care for at least 10 per cent of the time. The applicant then sought review by the Administrative Appeals Tribunal on 21 May 2004.
the administrative appeals tribunal hearing
14. The hearing was conducted in Hobart on 9 May 2005. Judy Dallas, Mrs Ina Dallas and Stephen Foley were present and gave evidence. Counsel for the applicant was Mr Greg Sando, the respondent was represented by Mr Brian Sparkes.
15. By agreement between counsel the first witness called was Mr Stephen Foley, the second respondent, after being sworn he explained the pattern of child care adopted by the parties, in preference to the Order by the Family Court. Mr Foley explained this was the only practical expedient, given periods when Ms Judy Dallas was hospitalised or incapable of acting as carer, Mrs Ina Dallas assisted but was elderly and not available at times because of hip operations and other medical problems and he was forced to act as facilitator of care and transport, often arranged in accordance with the children’s wishes. Now they were older, they sometimes desired to stay in Hobart to engage in sport or meet friends.
16. Under questioning Mr Foley emphasised the variability of these arrangements; there simply was no fixed pattern of care. He was asked to explain a typical weekend situation or school holidays, but the examples presented tended to support his claim of variability. The children might either go to their mother’s residence at Dodges Ferry by bus on Friday afternoon or be transported there on Saturday. If they went on Friday they were often transported home on Saturday afternoons; if they went down on Saturday, their grandmother, Mrs Ina Dallas, often transported them to her home at Mt Nelson, Hobart, on Sunday afternoon and he would collect them there. During school holidays or at Christmas to New Year they were sometimes with their mother for two to three days at a time.
17. Mr Foley was asked to describe some typical examples, identifying dates and details, but he stated he could not recall particular incidents and did not keep a diary. He was emphatic he never knew, week to week, what would occur. He had noted that the boy Alexei Dallas-Foley visited his mother more than the sister Georgia, but even that pattern was changing as they grew older, developing interests in sports and friends. At one stage the children were members of a bike club, which they attended one day a fortnight at the weekend. It was sometimes preferable for one child at a time to visit their mother, in terms of her capacity to care for them and to avoid fights between the offspring.
18. Mr Foley was asked about the level and pattern of social security payments received and described these in detail. He presented his estimate of what proportion of a year Ms Judy Dallas provided care. He said he found it difficult to estimate, but there was some evidence that in 1997 it was around 25 nights per year, which was about 7 per cent of the time. It may have been slightly more in some years, but he doubted it exceeded 10 per cent of the time.
19. Mrs Ina Dallas was then sworn and attention directed to a Proof of Evidence she had supplied in early February 2005. In this document she claimed that during school terms one child stayed overnight each weekend, but once a month both children stayed. She indicated that during school holidays one or both children stayed with their mother two to three days per week, but it was usually one child.
20. Counsel for the applicant asked Mrs Ina Dallas to confirm this was the pattern. She said she was an old woman and found it hard to remember dates and events, however she thought contact during the years 2001-2003 inclusive was regular but infrequent. She agreed with Stephen Foley’s view that the pattern was irregular, but accepted his account of transport arrangements.
21. Questioned about absences and unavailability, she said she had been in hospital some of the time, suffering three hip replacements and two spinal operations during the past eight years. She was often out of action up to six weeks at a time.
22. Mrs Ina Dallas was cross-examined about a letter sent to Centrelink dated 22 December 2003, describing a care pattern different from her later Proof of Evidence. The claims made in that letter were that almost every weekend one or both children stayed with their mother, but with at least three visit patterns. At times there was no overnight stay, but at other times there was a one night stay for one or both of the children. There were no records to clarify the matter, arrangements were made week to week by telephone or made on decisions by the children as to whether they wished to stay in town to play sport or meet friends.
23. When asked which submission she preferred, the letter or the Proof of Evidence, Mrs Ina Dallas hesitated before eventually tending to favour the Proof of Evidence. Counsel cautioned that her two estimates could be construed as a pattern of car ranging from 7 per cent of the time to 16 per cent or more, and it was the latter end of the spectrum she ultimately favoured. He conceded, however, it was unclear at what times and for how long the applicant and Mrs Ina Dallas were not available, due to hospitalisation and other causes.
24. The applicant, Judy Alexandra Dallas was sworn with some difficulty, after minor disturbance via shouted statements. It made it difficult for counsel to put questions to her and the Tribunal sometimes had to intervene to get her settled and focussed prior to continuing evidence. She later apologised, blaming it on her psychiatric condition and medication.
25. The applicant claimed that during the period 2001-2003 the children visited her at least once a fortnight, but not every fortnight because they had other commitments. Bus fares were a problem and her disabilities and those of her mother, as well as some hospitalisation, created gaps in visitation. The Court Order was not followed; it was simply impractical.
26. The applicant thought that during school holidays and at Christmas the children visited three to five days per week, but cautioned she had great difficulties recalling all this and when questioned further, gave different responses to earlier evidence. Counsel for the respondent noted that her evidence was at variance with her claim in May 2003 seeking FTB payment, when she said she had 22 per cent care of the children and subsequent statements that the pattern was “variable” and “there is weekend access when they want it”. At another time she had claimed the children each stayed one to two nights per week with her, in effect amounting to 14 to 28 per cent of the time.
27. In closing submissions Mr Sando for the applicant said the pattern of care was totally unclear; Mr Foley could not recall details and had given a single estimate of 7 per cent, Ms Dallas had claimed much higher percentages but offered contradictory evidence and Mrs Ina Dallas appeared honest but was variable in her estimates. Overall the figure was likely to be 10 per cent or more, rather than 7 per cent, but nobody could say how much and what gaps had occurred. The applicant needed and should be given some FTB support.
28. Counsel for the respondents indicated they would rely upon the Secretary’s response to the applicant’s facts and contentions. He did not envy the Tribunal’s difficult taste of trying to make sense of a situation with almost no factual evidence and a pattern of care all confirmed varied week to week during the relevant periods.
analysis
29. The Tribunal is required to stand in the shoes of the original decision-maker, examining all evidence anew, in the light of statutory provisions and any relevant prior case determinations.
30. The relevant legislation about FTB is set out in the Family Assistance Act 1999 (“the Act”) and the Family Assistance (Administration) Act 1999 (“the Administration Act). Section 21 of the Act states that a person can receive FTB in respect of an “FTB child”, who is defined in s 22(2) of the Act as a child:
(a)who is under 18 years of age;
(b)for whom the person claiming FTB is legally responsible;
(c)who is in the care of the person claiming FTB, whether or not that care is shared with someone else; and who
(d)is an Australian citizen.
31. Pursuant to s 22(2) and s 25(1) of the Act, if more than one person claims FTB in respect of the same child, for the same period, then the Secretary will only consider that the child is an FTB child of a claimant, if there has been a pattern of care such that the claimant had 10 per cent or more care of the children. In effect s 59 of the Act has to be enlivened before the Secretary can determine that a percentage rate of FTB be apportioned to the claimant.
32. It should be noted that at all material time during 2001-2002 and 2002-2003, Mr Stephen Charles Foley had legal responsibility for the children, as assigned by the Family Court Order of June 1998.
33. It should also be noted that the matter before the Tribunal is essentially one of fact; namely what proportion of time did the applicant, Ms Judy Alexandra Dallas have care of one or both children? Such a pattern of care is established by using either the nights in care or hours of care for each FTB child. (See the “Family Assistance Guide: 21.1.45 Establishing A Pattern of Care”).
34. The Tribunal has carefully examined all available evidence anew and cannot discover any factual basis upon which to make such a judgement, as there are no statistics or diary entries to provide guidance and all parties are agreed the pattern of visitation varied. The only matter which is clear is that the pattern intended by the Family Court was not pursued for purely practical reasons and it is highly likely that any attempt to reinstate it would be ignored or prove unworkable.
35. The Tribunal also notes that the requirement to produce psychiatric reports at stated intervals appears to have been ignored.
36. The Tribunal has carried out minor statistical calculations of the various care patterns claimed in evidence. This merely confirms that a wide range of possibilities exist from 7 per cent of the time to 20 per cent or more. The respondent has argued that Mr Foley’s evidence should be preferred, as he has provided consistent reports to Centrelink over a ten year period. However he was unable to provide specific details when questioned. Both the applicant and her mother admitted difficulties of recollection and in any event offered different estimates at different times.
37. It is fairly clear that during 2001-2002 and 2002-2003 there were substantial periods of time when Ms Dallas and Mrs Ina Dallas were not available to provide care, because of medical and other disabilities. There was also agreement that the children were involved in a bike club which precluded visitation to their mother for one day a fortnight. Overall it appears likely that the care available was perhaps 7 per cent to 16 per cent of the time, rather than the claims of 20 per cent or more. However there is no proof whether it was less than or exceeded 10 per cent.
38. The Tribunal has turned to other AAT determinations to see whether such decisions provide guidance in the current case. Unfortunately they do not. In Re Free and Secretary, Department of Family and Community Services and Another [2003] AATA 678 there was insufficient evidence about the pattern of care, despite the existence of some notes about dates. In any event the FTB was already shared between the parties and the Tribunal decided to affirm the decision under review.
39. In Re Hofman and Secretary, Department of Family and Community Services [2005] AATA 352 there was some diary evidence about a situation where FTB was already shared between the parties, but issues arose about percentages and whether the mother was being prevented from seeing the children in a situation where the father had custody. After considering all factors the Tribunal decided that the appropriate action was to affirm the decision of the SSAT, namely to maintain the existing division of FTB.
40. The Tribunal has also revisited Reasons for Decision in the SSAT determination of 16 June 2003 to reject Ms Dallas’ claims for FTB and affirm the decision under review. The Tribunal has not found any firm evidence which might result in significant amendment or abandonment of the SSAT decision. While the Tribunal has some sympathy for the situation Ms Dallas faces, there is no convincing proof that the pattern of care she provided during the relevant period exceeded 10 per cent. The Tribunal has therefore decided on the balance of probabilities the decision under review should be affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM, Part-Time Member
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 9 May 2005
Date of Decision 10 June 2005
Counsel for the Applicant Mr Greg Sando
Solicitor for the Applicant Hobart Community Legal Centre
Counsel for the Respondent Mr Brian Sparkes
Solicitor for the Respondent Centrelink
1
2
0