Davis and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Davis (Party Joined)

[2008] AATA 1021

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1021

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2008/3101

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		NELLY DAVIS

Applicant

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

Respondent

And HARRY DAVIS

Party Joined

DECISION

Tribunal Mr John Handley, Senior Member

Date13 November 2008

PlaceMelbourne

Decision The decision under review is affirmed.

Sgd John Handley
  Senior Member

SOCIAL SECURITY – Family Tax Benefit – infant is an FTB Child and parents are not members of the same couple – Orders made by Family Court – pattern of care of father (party joined) is consistent with the Orders made in the Family Court – shared care percentage of 44/56 percent consistent with findings made by SSAT – decision affirmed

A New Tax System (Family Assistance) Act 1999(Cth) s 3, s 22(6A), s 22(7) and s 59

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

Re Rogers and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2008] AATA 607

Warne and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2006] AATA 159

REASONS FOR DECISION

13 November 2008   Mr John Handley, Senior Member

1.      Mrs Davis, the applicant in these proceedings, applies to review a decision made by the Social Security Appeals Tribunal (SSAT) on 4 June 2008.  The SSAT then made a decision, expressed in terms of percentage, with respect to the shared care of Lara Jordan Davis born 5 December 2002.  Lara is the child of the applicant and the party joined, Harry Davis.

2.      The hearing of the application was listed on 31 October 2008.  Mrs Davis did not appear and gave her evidence by telephone.  Mr Davis did appear.  Neither was represented.  Mr Noonan appeared on behalf of the respondent.

3.      The background to this application may be summarised as follows.

4.      The Family Court made Orders on 23 July 2007 upon an application made by Mr Davis.  The Court ordered that Mr and Mrs Davis each have equal shared parental responsibility for the care, welfare and development of Lara.  The Court also ordered that Lara live with Mrs Davis but that she spend time with Mr Davis on each alternate week from the conclusion of school or kindergarten on Thursday until the commencement of school or kindergarten on the following Tuesday and during the other week from the conclusion of school or kindergarten on Thursday to the commencement of school or kindergarten on the following Friday morning.  Additionally the Court also made Orders with respect to Mr Davis having access to Lara during her birthday, his birthday, Fathers' Day, school holidays, Christmas, Greek Easter and any other times by agreement between the parties.

5.      Mr Davis claimed Family Assistance on 16 August 2007.  He also provided details of the shared care arrangements.  On 29 October 2007, Centrelink decided to apportion Family Tax Benefit (FTB) by 44 percent to him and 56 percent to Mrs Davis (p194).  On review, an Authorised Review Officer (ARO) decided to vary the previous finding and decided that Mr Davis had 13 percent of shared care and Mrs Davis had 87 percent of shared care.

6.      Mr Davis challenged the latter decision by an application to the SSAT.  It decided to set aside the decision of the ARO and remitted the matter to the Chief Executive Officer of Centrelink with a recommendation that from 23 July 2007, the date of the making of the Family Court Order referred to above, Mr Davis has had 44 percent of the care of Lara and Ms Davis has had 56 percent.  It is that decision which is the subject of this review.

7.      Mrs Davis has issued an appeal against the Order of the Family Court.  It was learnt that the appeal was heard on 7 May 2008.  A decision has not yet been made.  Mrs Davis was also the subject of proceedings before the Federal Magistrates Court on 11 December 2007.  The Court then found that Mrs Davis has contravened the Orders made by the Family Court on six occasions, and placed her on a bond to be of good behaviour for a period of 12 months from 11 December 2007.  Mrs Davis was also ordered to pay the costs of Mr Davis (T9).

8.      In these proceedings both Mr and Mrs Davis gave evidence and cross‑examined each other.  Mr Noonan also cross‑examined each person.

9.      A feature of the proceedings was the abuse by Mrs Davis of Mr Davis and her frequent use of rude and indecent language.  The proceedings were frequently interrupted and unnecessarily prolonged by her belligerent demeanour and her attempts to deal with a wide range of matters unrelated to the matter in issue namely, the extent of care of Lara shared between her and Mr Davis.

10.     Mrs Davis sought to use the review as the opportunity to criticise the care of Lara by Mr Davis.  Despite being advised on a number of occasions that the Tribunal powers in the circumstances were confined to a review of the shared care arrangements, Mrs Davis persisted and ultimately I denied her any continuing opportunity to cross‑examine when she persisted with questions of Mr Davis which attempted to establish that she was impoverished, that payment to him of FTB was in effect a denial to her of FTB and that she was being forced from her own home.

11.     Mrs Davis acknowledged that Mr Davis did have the custody of Lara between Thursday to Monday.  Later she said that that arrangement had commenced in April 2008.  At all relevant times she said that Mr Davis worked on a full time basis, that he did not care for Lara when she was in his custody and that there were occasions where she had telephoned him and had heard banging noises consistent with his occupation as a sheet metal worker.  She also said that he gives Lara to strangers when he goes to work.

12.     Mr Davis relied on the Orders made by the Family Court and said that he has complied with them.  He said since the making of the Orders in July 2007 he has had Lara between Thursday afternoon and the following Tuesday morning and from Thursday afternoon to the following Friday on each other week.  On occasions where a Thursday afternoon was not a school day, for example if it was during school holidays, Mrs Davis would deliver Lara to a local police station for collection by him.

13.     Mr Davis said he collects Lara at 3.30 in the afternoon on Thursdays and delivers her to school at 9.00am on Friday morning and 9.00am on Monday morning and the following Tuesday morning when he has prolonged access.  On the alternate weeks he collects Lara at 3.30 in the afternoon and delivers her to school by 9.00am.  He said by virtue of his self employment he can arrange to meet the collection and delivery times imposed by the Family Court Order and does so willingly.  He said there has not been an occasion when he has not complied with the Orders, that is to say, he has had the custody of Lara on each occasion that he has been permitted to do so by the Orders.

14.     Mr Davis said there has been a variation to the Orders made by the Family Court.  In September and December 2007, following a Mediation Conference, the custodial arrangements during the September school holidays and the Christmas holidays were varied by consent.  Mr Davis said that variation in those circumstances was permitted by the Orders made by the Family Court.

15.     Mrs Davis did not have any books, diaries or any other documented record indicating the failure of Mr Davis to comply with the Orders.  Mr Davis relied on a schedule of dates confirming his compliance with the Family Court Orders found at pages 189 and 221 of the T‑documents (the latter document having been provided to the SSAT).  Mr Davis also relied on confirmation of his collection from and delivery to the Hillsmeade Primary School where Lara attends found at page 217.  The document is certified on each relevant date by either the Principal or Lara's teacher.

findings of fact

16.     Mrs Davis did not have diaries, calendars or any other documentation to support her contention that Mr Davis has only exercised the care arrangements Ordered by the Family Court since April 2008.  She offered nothing to explain the care arrangements existing between July 2007 and April 2008, except to allege that Mr Davis from April only, exercised his rights under the Family Court Order.  I reject that allegation.  The evidence before and the findings of the Federal Magistrate clearly indicate that Mr Davis commenced to have the care of Lara very soon after 23 July 2007.

17.     Mr Davis relied on notes compiled by him from diaries and SMS records from his mobile telephone.  He also had documentation certified by Lara's school concerning his collection and delivery of her.

18.     The evidence of Mrs Davis was unreliable and unhelpful.  I prefer the evidence of Mr Davis which was given rationally and supported by documents.  I am satisfied on the balance of probabilities that he has exercised the care arrangements as Ordered by the Family Court.  Being self employed he has managed his working hours to collect and deliver Lara as he is permitted.  I am also satisfied he cared for Lara until every alternate Tuesday, not Monday, as alleged (refer paragraph 11 earlier).

19.     I am also satisfied, although not relevant to these proceedings, that each of Mr and Mrs Davis have provided adequate care to Lara including the provision of clothing, footwear, medicines, food and shelter and have also met other expenses from time to time.  If there was any merit in the allegations made by Mrs Davis with respect to the care of Lara by Mr Davis, I have no doubt that she would have communicated those concerns to the Family Court upon the hearing of the appeal that she initiated and the Court would have made a prompt decision on her appeal.  That appeal was heard on 7 May 2008.  At the date of this hearing the Court had not made a decision.

the law

20.     Lara is an FTB Child within the meaning of s 3 and Part 3 of the A New Tax System (Family Assistance) Act 1999 (the FA Act). In the present case, where the parents have separated, Lara is an FTB Child of each of Mrs and Mr Davis (refer s 22(3) of the FA Act), each being persons who are not members of the same couple (s 59 of the FA Act).

21.     In order to determine the entitlement, (because a claim has been made under the A New Tax System (Family Assistance) (Administration) Act 1999.) of Mrs and Mr Davis to FTB, a pattern of care (s 22(6A) of the FA Act) must be determined which is then converted into a percentage based on the times Lara is in their care (s 22(7)). When converted it is known as the shared care percentage and the respective monetary entitlements are calculated under the Table found at s 59.

22.     For reasons expressed above I have found that Mr Davis has exercised care of Lara consistent with his entitlement under the Family Court Order.  Mrs Davis, consequently, has exercised her rights under the same Order.  A pattern of care is readily identified and a shared care percentage can be calculated, as follows:

3.30pm Thursday until 9.00am Tuesday  113.5 hours

3.30pm Thursday until 9.00am Friday    17.5 hours

Total hours per fortnight of Mr Davis  131.0

131 hours as a percentage of 296 hours (per fortnight) = 44.25 rounded down (s 22(6B)) to 44 percent to Mr Davis (Mrs Davis therefore has a shared care percentage of 56 percent).

23.     There have been minor variations to the above arrangements – when the September and December school holidays were altered by consent – but there was no departure of significance from the pattern of care.  There have been other occasions when the collection and delivery times were changed to meet circumstances which have arisen, for example, Lara recently spent a Thursday night at a sleepover at the house of a friend and the six occasions where it was found that Mrs Davis had breached the Family Court Order by delivering Lara after 3.30pm on non school days.  A broad brush, rather than precise enquiry, will determine the pattern of care (refer Re Rogers and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2008] AATA 607; Warne and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2006] AATA 159).

decision

24.     For the above reasons, I am satisfied that the decision of the SSAT under review in these proceedings should be affirmed.

I certify that the 24 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  31 October 2008
Date of Decision  13 November 2008
Solicitor for the Applicant          Applicant Self Represented
Departmental Advocate            Mr T Noonan
Party Joined  Self Represented