DAVID TREVOR BAIN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 723

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 723

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0492

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID TREVOR BAIN

Applicant

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

Respondent

And            KRISTIN DEANE STEVENS

Second Respondent

DECISION

Tribunal Mr J G Short (Member)

Date22 September 2009

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Family Tax Benefit – whether number of nights or hours should be used to calculate the percentage of time in which the applicant had the care of the child – child not FTB child of the applicant – decision affirmed

A New Tax System (Family Assistance) Act 1999 ss 21, 22, 25 and 59

REASONS FOR DECISION

22 September 2009   Mr J G Short (Member)  

1.      The application is made by Mr Bain and is for a review of a Centrelink decision made on 27 May 2008 and affirmed by the Social Security Appeals Tribunal (SSAT) on 13 January 2009, to refuse payment of Family Tax Benefit (FTB) to Mr Bain in respect of his son, Shaun.

2.      Mr Bain represented himself (appearing by telephone).  The Secretary was represented by Mr Christian Visser.  The second respondent, Ms Stevens, also represented herself.

3.      It is common ground that the child in respect of whom the application is made, Shaun, was born on 8 July 2004 and is the child both the applicant and the second respondent.

4.      Mr Bain’s application for FTB in respect of Shaun was lodged on 26 February 2008 and was made in respect of the 2005/2006 financial year.

5.      Mr Bain has received a portion of FTB from 16 March 2006.  However, his appeal is in respect of the Secretary’s decision to refuse payment of FTB for the period 1 July 2005 until 15 March 2006 (the relevant period).

6.      Mr Bain said in effect that during this period the child rarely, if ever, left his care.  He submitted that he was entitled to 50 percent of the FTB payments.

7.      Ms Stevens has been paid 100 percent of the FTB during the relevant period and I am told that if Mr Bain were successful in his current application, the effect would be that he would have an entitlement to approximately $2,290 and Ms Stevens would have a corresponding debt approximating the same sum.

issue

8.      The issue for me to determine is whether Mr Bain is entitled to receive FTB in respect of Shaun during the relevant period and if so, the rate to be paid.

legislation

9.      Payment of FTB is governed by the provisions of A New Tax System (Family Assistance) Act 1999 (Cth) (the Act). Section 21 of the Act sets out the normal eligibility rules for the payment of FTB. One of the rules of eligibility is that the person must have at least “one FTB child”. Section 22 of the Act defines a number of circumstances in which a child will be regarded as a FTB child of an adult. Section 22(3) describes the situation where more than one individual has care of the child in question.

10. Section 22(7) relevantly provides that a child will be a FTB child of more than one adult:

“(7)     If:

(a)the Secretary is satisfied there has been, or will be, a pattern of care for … (the child) over a period such that, for the whole, or for parts … of the period, the child was, or will be, an FTB child of more than one other individual under [other provisions in s 22]; and

(b)…

(c)subsection 25(1), … does not require that the child be taken not to be an FTB child of [the adult] for any part of that period;

…”

11. Section 25(1) of the Act provides that a child that would be regarded as an FTB child of an adult by virtue of s 22 of the Act is to be taken not be an FTB child of that adult in a particular period of time if the Secretary is satisfied “… that the child was, or will be, in the care of” that adult for less than 10 percent of the period.

12. Section 59 of the Act provides that where a child is an FTB child of more than one person (who are not partners), then the Secretary may determine the percentage of FTB that is to be paid to each one of those persons.

13. The effect of this legislation in the present case is that Mr Bain will only be entitled to receive FTB payments in respect of Shaun if Shaun is a FTB child of his. The SSAT determined that Shaun was in the care of Mr Bain for less than 10 percent of the relevant period. Consequently, by virtue of s 25(1) of the Act, Shaun was determined not to be a FTB child of the applicant during the relevant period and hence no entitlement to FTB arose.

evidence of mr bain

14.     The SSAT, in its decision (T2/6), purported to summarise the information Mr Bain had provided at the hearing before that Tribunal.  This summary reads as follows:

“…

·Shaun is the child of his relationship with Ms Kristin Stevens. Since his birth the child has resided at his house until late 2005 when the mother removed the child.

·Subsequently the mother, Ms Stevens, asked Mr Bain to care for the child for a day and he then retained him in his sole care for an undetermined period.

·Subsequently there were proceedings issued in the Federal Magistrates Court but he and Ms Stevens then decided to resolve the issue without litigation. Ms Stevens then returned to reside in his house in March or April 2006 although they were not in a committed relationship.

·It is unclear whether the legal proceedings in 2006 were discontinued. In any event the matter is now before the Federal Magistrates Court and the current interim orders provide that Mr Bain and Ms Stevens share Shaun’s care on a 50:50 basis.

·Mr Bain’s name is not on Shaun’s birth certificate. He says the mother deliberately left his name off the birth certificate so that she could claim benefits from Centrelink.

·Mr Bain was adamant that Shaun did not spend any time away from his house until December 2005 when Ms Stevens removed him and went to stay at her sister’s. She then asked him to collect them and he attended at her sister’s house and removed the child. The police found him a few hours later and he had to return the child.

·Shortly after this Ms Stevens permitted Mr Bain to spend a day with the child and he refused to return him. He said that he consulted with the Police and was advised that he could retain the child. He was vague as to how long the child then remained in his care but thought it could have been some months.

·Mr Bain has not worked since 2001 when he suffered a work injury. He has been and continues to be in receipt of Workcover payments. Ms Stevens is in the final year of a law degree at Flinders University.

·Mr Bain told the Tribunal that when Shaun and Ms Stevens were living in his house he paid all expenses. Ms Stevens contributed a small amount for food. She refused to contribute anything else. There was a period in 2006 when she paid him $100 per week rent and they were living separately under the same roof.

·Mr Bain thought Shaun was breastfed for 2 months. He was unsure what formula the child then went on, but thought it was Nestle.

·Mr Bain said that he and Ms Stevens went together to all doctor’s appointments for Shaun, including his immunisations. He said that Ms Stevens did not have a car and he drove her everywhere.

·Mr Bain said that he was unaware until early 2008 that he could claim any family tax benefit for Shaun. He said that Ms Stevens dealt with Centrelink and he signed whatever forms she asked him to. He does not read easily. He understood that he could only claim for the past 3 years which is why his claim was for the 2005/2006 financial year. He has received lump sum payments of family tax benefit for the period since 16 March 2006.

·Mr Bain had provided to Centrelink affidavits from two of his neighbours who deposed to their observations that the child Shaun had lived at Mr Bain’s address since his birth. Those affidavits made no comment on the actual care provided to Shaun by Mr Bain and/or Ms Stevens. They were prepared for the proceedings in the Federal Magistrate’s Court.

·Mr Bain says that he wants what he is entitled to and wants recognition that Ms Stevens has deliberately lied and misled Centrelink.

·Mr Bain described Ms Stevens as an irresponsible mother who is only interested in causing trouble and obtaining money by deception rather than promoting the welfare of her children.

…”

15.     Mr Bain agreed the accuracy of the SSAT’s summary of his evidence.  He did add however, that the reference to an “undetermined period” in the second dot point should have been a reference to “several weeks from November”.  Mr Bain went on to say that he cannot now recall how many weeks Shaun remained with him.  He said that he still allowed Ms Stevens to come to his home to visit Shaun during this period.  He said that at that time Ms Stevens was living at her sister’s house.  He said that he could not now recall how often Ms Stevens visited.  In reference to his statement to the SSAT that there was a period in 2006 when Ms Stevens paid rent of $100 a week and they were then living separately under the one roof, Mr Bain told the Tribunal that he charged her rent from the time Ms Stevens moved in in 2006.  He confirmed that this was after the end of the relevant period.

16.     I suggested to Mr Bain that his evidence about Ms Stevens moving in shortly after 15 March 2006 appeared inconsistent with his earlier evidence to the effect that Ms Stevens had resided at his home virtually since the time of Shaun’s birth.  Mr Bain explained that by saying that Ms Stevens moved in shortly after March 2006, he meant that she moved all of her possessions.

17.     Mr Bain said that he did not lodge his application, made in respect of the 2005/2006 financial year, until 2008 as he did not know he was eligible for FTB at any earlier period.  Mr Bain was then referred to an application for FTB made by himself and lodged on 16 January 2006.  Mr Bain said that January 2006 was a difficult time and that he was not sure what forms he signed.  He said he was not aware of what he was doing at the time.

18.     Mr Bain was referred to a statement of Ms Ingrid Wigzell which was to the effect that she understood both Ms Stevens and Shaun to have been living at Mr Bain’s home until at least the time another child, Max, was three to five months’ old.  This was said to have been until mid-2007.  Mr Bain said that this was correct.  He was then referred to the content of an affidavit he filed in the Family Court (T4/26-29).  Paragraph 9 of that affidavit reads as follows:

“When Kristen left the home on 18 December 2005 she left Shaun in my care.  I agreed however that Kristen could visit Shaun whenever she wished to do so and she visited every day.”

19.     Mr Bain then explained that at the time he signed this document, his lawyer had put words into his mouth.  He then went on to say that 18 December 2005 was significant in that it was at this time that he put all of Ms Stevens’ possessions on the footpath.

20.     Mr Bain was also referred to his 2008 application for FTB (T6/54-77).  Particularly, question 11 of that form which asks “Did you have a partner living with you in the 2005-2006 financial year?”.  Mr Bain answered “No” to that question.  He said that he may have been confused by the question as he did not regard himself as being in a relationship with Ms Stevens at that time.

evidence of ms stevens

21.     Ms Stevens was referred to paragraph 12 of the SSAT’s reasons for decision (T2/7).  Ms Stevens said that the information recorded by the SSAT at this paragraph was accurate save that the reference made to living during the relevant period with her sister and mother but also at times with Mr Bain’s brother and Mr Bain’s cousin, should have been made clearer.  She said that she would have stayed less than four nights in total with Mr Bain’s cousin and a similar “negligible” amount of nights at Mr Bain’s brother’s house.  Ms Stevens also said that the reference to her breastfeeding Shaun for eight months was incorrect and that she had in fact breastfed Shaun for about four months until she had to take a course of antibiotics.

22.     Ms Stevens said that after Shaun’s birth, she and Mr Bain were not getting on.  She did however attempt to ensure that he had frequent contact with Shaun.

23.     Ms Stevens said that when she brought Shaun home from hospital she went to her auntie’s home and that her auntie and a number of other relatives then took the child to Mr Bain’s home.  She said that she spent that first night at Mr Bain’s home.  Ms Stevens said that her second night out of hospital was spent at her mother’s home.

24.     Ms Stevens said that she did spend some nights at Mr Bain’s brother’s home, but that Mr Bain was having conflict with his brother at the time and consequently this did not last for long.  She also referred to intending to move into the home of Mr Bain’s cousin, Mr Daniel Argent.  She said however, that she stayed the odd night, but no more than that.

25.     Ms Stevens said that for nearly all the relevant period she resided with her mother at her mother’s home at Reynella or with her sister at Huntfield Heights.  Ms Stevens’ sister lives a 10-15 minute walk from Mr Bain’s home.  Ms Stevens said that this arrangement continued until the occasion on which Mr Bain retained the child following a contact visit.  Ms Stevens said that the police brought the child back to her.  She said that she does not believe she did ask Mr Bain to again have the child approximately one day after the child was returned to her by the police.

26.     Ms Stevens said that she was responsible for all of Shaun’s clothing, took Shaun’s meals with her when visiting Mr Bain and had virtually all of the responsibility for Shaun’s care on all occasions when she, Mr Bain and Shaun were together.  She said Mr Bain would spend his time playing computer games and that she was required to keep Shaun away from him during these times.

27.     Ms Stevens said that she would have only slept at Mr Bain’s home on one to four occasions a month and when she did, she stayed in a separate room with Shaun.  She said that Mr Bain did assist by driving her and Shaun to medical appointments and that she provided Mr Bain with contact approximately two days a week from about 10:00am to about 7:30pm.  She said that on these occasions she would prepare the evening meal.  She said that Mr Bain would play with the child, but that she took care of all of the child’s nappies, bathing, feeding and dressing.

28.     Ms Stevens said that she only stayed one or two nights at Mr Daniel Argent’s home and consequently agreed the thrust of his statement to the effect that Ms Stevens did not “move in” to his home.

29.     In reference to the affidavit material provided by Ms Christine Roberts and Ms Vera Errington, Ms Stevens said that she does not remember seeing these people at all.

30.     In relation to a statement by Ms Ingrid Wigzell, Ms Stevens denied that she had smoked marijuana.  She said that this woman is Mr Bain’s best friend’s wife. 

evidence of ms shanae belczacki

31.     Ms Belczacki is Ms Stevens’ sister.  She said that during the relevant period Ms Stevens and Shaun stayed at her house approximately five nights a week and at her mother’s home on some weekends.  She said that her sister visited Mr Bain with the child approximately two or three times a week. 

32.     Ms Belczacki said that she is not aware of any occasions when Ms Stevens left Shaun at Mr Bain’s house.  She said that on the occasions when Ms Stevens did visit Mr Bain with the child, Ms Stevens took a baby bag with all of the baby’s needs.  She said that on some occasions Ms Stevens would cook tea at Mr Bain’s home.  She said that she cannot recall Ms Stevens sleeping over at Mr Bain’s home during the relevant period.  Mr Bain suggested that Ms Belczacki was not telling the truth.  Ms Belczacki denied this assertion.

other evidence

33.     In addition to the two affidavits contained in the T documents and referred to by the SSAT, that is the affidavits of Ms Roberts and Ms Errington, Mr Bain tendered an affidavit of Mr Brenton Waters (Exhibit A2).  Mr Waters described himself as a “very close” friend of Mr Bain.  He indicated that Mr Bain and Ms Stevens had an “on and off” type relationship, but that from the time of Shaun’s birth in July 2004, Ms Stevens and the child resided at Mr Bain’s home.  He said that he noted this at the times he visited Mr Bain’s home.

34.     I note that Mr Waters’ evidence was that Ms Stevens moved into Mr Bain’s home in July 2004.  This is in conflict with Mr Bain’s evidence, contained in the Family Court affidavit sworn 16 January 2006, to the effect that Mr Bain and Ms Stevens cohabited from November 2003.

35.     Mr Daniel Argent provided an affidavit sworn 19 June 2009 (Exhibit A1).  Mr Argent said that Ms Stevens had made arrangements to move into his home at some stage in 2005, but did not in fact move in.  He indicates that he signed Centrelink papers in relation to Ms Stevens then change of address.  I note Ms Stevens’ comment that she spent one or two nights at Mr Argent’s premises, but had not followed through with her intention to move into his property.

36.     Ms Ingrid Wigzell provided a statement indicating that she had noted Ms Stevens smoking marijuana.  She also expressed an understanding that Ms Stevens and the child lived with Mr Bain until another of Mr Bain and Ms Stevens’ children, Max, was three to five months old.  It appears that Max was not born until 3 June 2007.

consideration

37.     I find that Shaun is the child of Mr Bain and Ms Stevens.  In order to be paid FTB, Mr Bain needs to establish, amongst other things, that the child was in his care for more than 10 percent of the relevant period.

38.     Both parents were vague in respect of particular dates.  This is not surprising in that the application for FTB lodged 26 February 2008 was a retrospective claim in respect of the 2006 financial year.

39.     The parents’ evidence was not reconcilable.

40.     I consider that Ms Roberts’ and Ms Errington’s evidence to be understandable in the light of Ms Stevens’ evidence that there were a number of occasions when she and the child visited Mr Bain at his home.  Ms Wigzell’s evidence concerning Ms Stevens’ consumption of marijuana was disputed and not directly relevant.  Mr Argent’s evidence was consistent with the evidence Ms Stevens provided at hearing, that is that Ms Stevens only spent one or two nights at Mr Argent’s home.  She had initially intended to move into those premises, but decided otherwise.

41.     Mr Waters’ evidence was inconsistent with previous affidavit material provided by Mr Bain in respect of the commencement of cohabitation.

42.     I accept that Mr Bain did have significant contact with Shaun during the relevant period.  However, where his evidence differs from that of Ms Stevens, and Ms Stevens’ sister, Ms Belczacki, I prefer the evidence of Ms Stevens and Ms Belczacki.  Ms Stevens displayed an understanding of the child’s needs.  Her evidence was generally consistent with Centrelink records concerning the notification of various addresses at which Ms Stevens resided.  In this regard, Mr Bain submitted that Ms Stevens had advised Centrelink of other addresses in order to mislead Centrelink into a belief that Mr Bain and Ms Stevens were not living as a couple.  I do not consider it necessary for Ms Stevens to have provided a number of changes of address in order to affect this purpose, if this was the end she intended to achieve.

43.     I also noted that Mr Bain appeared to have a very clouded recollection of some of the events in 2005 and 2006.  He initially said, for instance, that he had not applied for FTB at any time prior to 2008 because he did not believe he would be eligible for any payment.  He later conceded that he had signed an application for FTB in 2006.  He also suggested that his lawyer had put words into his mouth in relation to the content of his affidavit sworn for Family Court purposes (T4/26-29).  It was in this document that Mr Bain had initially indicated that Ms Stevens left his home on 18 December 2005.

44.     It is always difficult to reconstruct relationship arrangements by retrospective analysis.  I also consider family relationships to be frequently inscrutable.  While I accept that Mr Bain loves all of his children and provided some care for Shaun during the relevant period, I am not satisfied that his care amounted to at least 10 percent of Shaun’s care.

decision

45. In the light of the abovementioned findings of fact, s 25(1) of the Act has the effect of rendering Mr Bain’s application unsuccessful. As he did not have at least 10 percent of the care of the child during the relevant period, his application fails. I affirm the decision under review.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ..............J Coulthard.......................................
  Associate

Date of Hearing  27 August 2009
Date of Decision  22 September 2009
Advocate for the Applicant       Self-represented

Advocate for the Respondent   Mr C Visser
  Centrelink Legal Services & Procurement      Branch
Advocate for the Second

Respondent   Self-represented