Dibble and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Ors
[2008] AATA 118
•14 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 118
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° V 200601233
GENERAL ADMINISTRATIVE DIVISION ) Re
KYLE JAMES DIBBLE
Applicant
And
SECRETARY,
DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondents
And
ROSEANNE AUPOURI
Third Party
DECISION
Tribunal Mr C. Ermert, Member Date14 February 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) C. Ermert
Member
SOCIAL SECURITY – parenting payment single – family tax benefit – recovery of debt – principal carer ‑ dependent child – FTB child – legally responsible for the day-to-day care, welfare and development of the child – child in the adult’s care – care includes attention and supervision – involvement in making decisions about current and future care – involvement in the child’s life.
Social Security Act 1991
A New Tax System (Family Assistance) Act 1999
Re Secretary Department of Family and Community Services and Barrett [1999] AATA 196
Re Munn and Secretary, Department of Family and Community Services [2000] AATA 141
REASONS FOR DECISION
14 February 2008 Mr C. Ermert, Member
INTRODUCTION
1. Shanti, aged 16, is the daughter of Mr Kyle Dibble and Ms Roseanne Aupouri, who were previously in a domestic relationship, but are no longer living together. About four years ago, Shanti came to reside with Mr Dibble and as a result Mr Dibble received Parenting Payment Single (PPS) and Family Tax Benefit (FBT) from Centrelink on the basis that he had sole care of Shanti. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs and the Department of Education, Employment and Workplace Relations. On the night of 25 March 2005, Shanti was attacked with a blood-filled syringe on a tram. On 22 May 2005 Shanti had an argument with Mr Dibble and she went to her mother’s residence and asked to stay with her. Shortly after, Shanti went on a school camp for three days and two nights. On about 23 June 2005 Shanti travelled to Sydney with her step-brother, Mr Roy Salter, and stayed in the home of Mr Brian Salter, the former husband of Ms Aupouri. Shanti returned from Sydney on 12 July 2005 to her mother’s unit and has continued to live there.
2. On 10 June 2005 Ms Aupouri advised Centrelink of her intention to claim FTB and PPS in respect of Shanti and she lodged the claims on 22 June 2005. She advised Centrelink that the change of care of Shanti had occurred on 22 May 2005, the day on which Shanti came to her residence. On 7 July 2005 Mr Dibble advised that Shanti had left his care approximately a month before, but that she had since stayed with him a few nights, and that he had continued providing money until approximately 22 June 2005. Nevertheless, Mr Dibble’s PPS and FTB were cancelled and debts were raised against Mr Dibble for overpayment of PPS and FTB between 22 May and 8 July 2005.
3. Mr Dibble requested an internal review of the original decisions to raise the debts. The decisions were affirmed by an Authorised Review Officer (ARO). Mr Dibble then sought a review of the ARO decisions by the Social Security Appeals Tribunal (SSAT). The SSAT also affirmed the decisions. Mr Dibble then applied to this Tribunal for a review of the SSAT decision.
THE HEARING
4. The hearing was held over three days. On each day Mr Dibble represented himself. On the first and third day of the hearing the respondents were represented by Mr David Perdon. On the second day the respondents were represented by Mr Tim Noonan. Both representatives are advocates with Centrelink Legal Services. On each day Ms Aupouri was self-represented. I had before me the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). I accepted into evidence additional documents submitted by the applicant (Exhibits A1 to A6) and the third party (Exhibits O1 to O3).
5. I heard evidence via telephone links from Dr Kosta Prassopoulos, Mrs Catherine Frances Gordon and Mr John Francis Gordon, who are acquaintances of Mr Dibble. I also heard evidence via telephone links from Ms Aupouri and Mr Brian Salter.
LEGISLATION
6. Section 500(1) of the Social Security Act 1991 (the Act) relevantly provides that a person is qualified for parenting payment if the person has at least one PP child. Section 500D(3) of the Act relevantly provides that a child is a PP child of a person if the child is a child of the person and the person is the principal carer of the child.
7. Principal carer is defined in section 5(15) of the Act which relevantly provides that a person is the principal carer of a child if the child is a dependent child of the person and the child has not turned 16.
8. Section 5(2) of the Act provides that a young person who has not turned 16 is a dependent child of the adult if:
(a) the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care; or
(b)the young person:
(i) is not a dependent child of someone else under paragraph (a); and
(ii) is wholly or substantially in the adult's care.
9.Section 197 of the Act states that care includes attention and supervision.
10. Section 22 of A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) contains provisions in regard to an FTB Child identical to those of section 5(2) of the Act defining a dependent child. For ease of reading these Reasons for Decision I will consider first the issues as they relate to the provisions of the Act and later consider the application of the relevant provisions of the Family Assistance Act.
11. I had no evidence presented to me regarding any Family Court Orders extant at the relevant time that provided for Shanti’s living arrangements or the apportionment of parental responsibility. Accordingly, I find that both Mr Dibble and Ms Aupouri were legally responsible for Shanti during the relevant period. Therefore, Shanti is a dependant child in accordance with section 5(2)(a) of the Act. I must therefore apply the provisions of section 5(2) to determine whether Shanti was in Mr Dibble’s care (section 5(2)(a)) or whether she was wholly or substantially in Mr Dibble’s care (section 5(2)(b)).
the issue
12. In this case the issue is whether from 22 May to 8 July 2005 Shanti was in the care of or wholly or substantially in the care of Mr Dibble.
Evidence
Mr Dibble
13. In his oral evidence before the Tribunal, Mr Dibble said that after the attack on the tram, there was a deterioration in Shanti’s behaviour. Despite the argument between them on 22 May 2005 there was no change of care arrangements for Shanti. He said that during May Shanti spent at most four nights at her mother’s home, on Friday and Saturday night sleepovers. In late May 2005, she had a school camp of two nights and three days. Mr Dibble said that he paid the deposit for the camp which amounted to $70. He said the remainder of approximately $240 was possibly paid by Shanti’s mother.
14. Shanti also had a holiday in Sydney from around 23 June to 12 July 2005, for which Mr Dibble said that he paid approximately $700 towards air fares and expenses. At the time Mr Dibble was under the impression that Shanti would be holidaying with her half-sister, whom he thought was coming to Australia from London. Mr Dibble stated that Shanti was living with him before she went to Sydney. However, he was not certain about the start date of the holiday. He said … that it would have been roughly around the 23rd. I believe that she broke off for school – the school holidays a couple of days earlier. Exactly how long, I am not sure… (Transcript 1, page 29). Mr Dibble also stated that he arranged for Mr and Mrs Gordon to take the $700 to Ms Aupouri … as it had been made clear to me by the Gordons and Shanti that you were going to be organising some of the logistics of the holiday... (Transcript 3, page 29).
15. Mr Dibble stated that it was his understanding at the time that Shanti would return from Sydney a week before the end of the school holidays. He said that a return flight had not been booked. He went on to say:
…My authority as a parent had been so severely undermined, and basically she felt she could do as she chose. Communication broke down while she was in Sydney, and she refused to come back... (Transcript 3, page 28).
16. Mr Dibble’s evidence was that Shanti’s first night in the full‑time care of her mother was around 12 July 2005. He said that her belongings were moved to her mother’s in late July or early August. Mr Dibble asserted that during the period in question, Shanti remained in his full-time care and that the sleepovers, the school camp and the holiday in Sydney did not qualify as a change of care.
17. Mr Dibble contends that the change of care happened after 12 July 2005, and that he continually provided financial support, which has continued until the present day. He stated that prior to 13 July he provided the board and lodging for Shanti. He said he paid the deposit for the school camp, provided money for school lunches and provided the money for the Sydney holiday. Mr Dibble said that Shanti’s belongings remained in his house until late July or early August 2005. He said that for any times that Shanti was not residing in his house, such as sleepovers, she had his permission to do so. He contended that Shanti was in his full-time care. Mr Dibble stated that he was not aware that Ms Aupouri had stopped paying child support to him on 22 May. He said that it was only a nominal amount, around $10 a fortnight.
Dr Kosta Prassopoulos
18. Dr Prassopoulos gave evidence in support of his witness statement (Exhibit A3). He confirmed that he was a visitor to Mr Dibble’s household during the months of May and June 2005. Dr Prassopoulos stated that Shanti’s behaviour changed after the assault on the tram. He said that normally Shanti would greet him with a smile, but afterwards she would speak to Mr Dibble in very angry tones and would storm out of the house. Dr Prassopoulos stated that to his knowledge Shanti was living in Mr Dibble’s house at that time. He said that he used to visit Mr Dibble’s house two to three times a week and Shanti was there. Her bedroom was furnished. On occasions they would all have dinner there; and there were times when Mr Dibble would be seeing Shanti to bed. Dr Prassopoulos was not aware of Shanti staying at her mother’s house. Although he remembers her going away to Sydney or Queensland he is not sure whether the trip occurred during the same period. Dr Prassopoulos believed that Shanti would stay at a friend’s house on occasions when she was distressed.
Mrs Catherine Frances Gordon
19. Mrs Gordon gave evidence in support of her witness statement (Exhibit A4). She stated that she visited Mr Dibble’s house about four times between April and late June 2005 to act as a mediator between Mr Dibble and his daughter. Mrs Gordon said she was aware that Shanti was residing at Mr Dibble’s house at the time because the mediations took place in Shanti’s bedroom. Mrs Gordon stated that she mediated twice at Ms Aupouri’s apartment and that on one of those occasions Shanti was visiting. The purpose of these mediations was that Mr Dibble was trying to establish if Ms Aupouri was agreeable to Shanti staying with her. She was present at Ms Aupouri’s apartment on one occasion with her husband when she passed on some money and a telephone credit card from Mr Dibble for his daughter. Mrs Gordon believed the money was for a trip to Sydney by Shanti. The telephone credit card was to enable Mr Dibble to contact Shanti. As far as Mrs Gordon was aware, Shanti’s change of residence occurred some time in July 2005 as her husband was asked by Mr Dibble to move Shanti’s belongings from her bedroom.
Mr John Howard Gordon
20. Mr Gordon gave evidence in support of his witness statement (Exhibit A1). He confirmed his opinion that up to June 2005, Shanti was residing with Mr Dibble most of the time. Mr Gordon said that Shanti was moving back and forth between the houses of Mr Dibble and Ms Aupouri, and that Shanti would spend weekends at her mother’s house. In answer to a question from Ms Aupouri, Mr Gordon said:
…we knew that she wasn’t living with you, but she came over to your place to stay at your place. I mean she had an argument with her dad at that time and, you know, had stormed out of the house and come over to your house, yes. But we were still under the impression than(sic) Shanti was living with her dad. (Transcript 3, page 12)
21. Mr Gordon stated that he gave $600 or $700 in cash to Ms Aupouri for Shanti’s trip to Sydney. Mr Gordon also said that he gave Shanti $20 now and then as pocket money from Mr Dibble. Mr Gordon said that he went to Ms Aupouri’s apartment to drop off the money. He also went to her apartment when Mr Dibble could not contact Shanti and was concerned about Shanti’s psychological health. Mr Gordon said he gave Shanti a telephone card so that she could contact her dad.
22. Mr Gordon stated that the vice-principal of Shanti’s school contacted him after the school holidays because Shanti was late coming back to school. Mr Gordon told the vice-principal that Shanti was living at her mother’s place. Mr Gordon stated that he moved Shanti’s clothes and furniture to her mother’s house in late July 2005.
Ms Jillian Bellotti
23. Ms Jillian Bellotti is an acquaintance of Mr Dibble, and her daughter Natalie is a friend of Shanti. Ms Bellotti did not give evidence in person. However, in a Statutory Declaration dated 5 September 2006 (Exhibit A2), Ms Bellotti stated …Between late May and late June (2005) Shanti had several sleepovers at our house. In late June after she had moved into her mum’s… This declaration was not subjected to cross-examination.
Ms Aupouri
24. In her evidence Ms Aupouri stated that on 22 May Shanti came to her house. She said that Shanti had an argument with Mr Dibble and asked if she could live with her. Ms Aupouri said she thought at the time that Shanti would calm down and go back to Mr Dibble in a day or two. However, that did not happen. Ms Aupouri said she made up a bed in an empty room for Shanti. According to Ms Aupouri’s evidence, Shanti went to a friend’s place on the night of the 22nd, came back the next day and went to school. On the following day, Shanti went to a school camp for two days. Ms Aupouri said that after the camp, Shanti settled in to her home. Her evidence was that Shanti went back to Mr Dibble’s house the first time before the school holidays and brought back a big bag of clothes and things. She said that Shanti went to Mr Dibble’s house at other times, after making arrangements by telephone to collect other things. Ms Aupouri stated that on 23 June she notified the Child Support Agency that Shanti was in her care. Ms Aupouri said that Shanti returned from her holiday in Sydney on 12 July.
25. Ms Aupouri says that she paid $110 for the school camp. She also confirmed that she received $200 and later $400 from Mr Gordon but said that she did not know what the money was for. Ms Aupouri also said that Shanti’s holiday in Sydney only came about because Shanti was staying with her at the time when a spur‑of‑the-moment decision was taken to go to Sydney with Roy Salter, Shanti’s step‑brother. She said that she gave Shanti spending money for the Sydney holiday. Ms Aupouri stated that on occasions she had sent Shanti to Mr Dibble to ask him for lunch money, and that Mr Dibble continues to make appointments for Shanti to see the dentist.
26. Ms Aupouri contends that from 22 May Shanti was sleeping at her flat most nights, that she was providing the essentials of board and lodging, and that, apart from the first month, she was providing Shanti with pocket money. Ms Aupouri asserted that Shanti has not stayed overnight at Mr Dibble’s since coming to her flat on 22 May.
Mr Roy Salter
27. Roy Salter is the son of Ms Aupouri and Mr Brian Salter. He was living with Ms Aupouri in May 2005. In his statement (Exhibit 01) he states that Shanti …came over on the 22nd May 05 … and stayed thereafter with my mother. She never returned to stay with Kyle after that time. She also came to Sydney with me for her holidays. Roy Salter was not called to give evidence and his statement was not subjected to cross-examination.
Ms Shanti Salter
28. Shanti is the daughter of Ms Aupouri and Mr Dibble. In her statement (in Exhibit 02) she states I Shanti Salter agree with the dates and statements given by my mother in regards to my living arrangements with her. Shanti was not called to give evidence and her statement was not subjected to cross examination.
Mr Brian Maxwell Salter
29. Mr Salter gave evidence in support of his witness statement (in Exhibit O2). He said that he recalls Shanti coming to his house in Sydney for her holidays. He said that at the time he understood that Shanti was staying with Ms Aupouri and that the money for the trip had come from Ms Aupouri. He also stated that Shanti had told him directly that she was no longer staying with Mr Dibble and that she would never go back there. Mr Salter said that Shanti got a bit homesick and arrangements were made with Ms Aupouri for Shanti to go back to her mother. Mr Salter said that, after her return to Melbourne, he spoke to Shanti on the telephone at Ms Aupouri’s flat.
Consideration
30. I note that Shanti’s date of birth is 7 August 1990. Accordingly I find that throughout the period from 22 May to 8 July 2005 Shanti was aged 14 years which is under the age of 16 years.
31. I reviewed the application of the law to the meaning of care and turned to the decision of Deputy President Forgie in the matter of Re Secretary, Department of Family and Community Services and Barrett [1999] AATA 196. On the issue of care Deputy President Forgie said in paragraph 51:
The words with which I am concerned in sub-paragraph 5(2)(a)(ii) and in paragraph 5(2)(b) are "adult's care". In view of what has been said in these authorities, and particularly in that of Re Van Luc Ho, by which I am bound, it seems to me that these words require that I look only to actual care…
and in paragraph 54:
…This must be considered on the basis of what is rather than on the basis of what should be…
32.In the matter of Re Munn and Secretary, Department of Family and Community Services [2000] AATA 141 Senior Member Kiosoglous, following Deputy President Forgie’s reasoning in Barrett, said in paragraph 21:
It is right that a person only receive Family Allowance where they are responsible for the day to day needs of a child and are exercising care, custody and control…
33. Following the reasoning of these decisions, I would need to be satisfied that Mr Dibble was involved in Shanti’s day-to-day needs and in exercising care, custody and control of Shanti for me to find that Shanti was in Mr Dibble’s care over the relevant period.
34. The following facts are not in dispute between the parties: Shanti left Mr Dibble’s house on 22 May 2005 and went to her mother’s apartment; on about 25 May 2005 Shanti went from Ms Aupouri’s apartment to a school camp for about three days and two nights; on about 23 June 2005 Shanti left her mother’s apartment with Roy Salter on a trip to Sydney; in Sydney Shanti stayed with Mr Brian Salter; and on 12 July 2005 Shanti returned from Sydney to Ms Aupouri’s apartment and has not been back to stay with Mr Dibble.
35. There is dispute between the parties regarding where Shanti stayed during the periods between the end of the school camp, about 28 May 2005, and the start of her trip to Sydney, on 23 June 2005. Mr Dibble’s evidence was that …During May … she spends, at the most, four nights at her mum’s, and they were Friday and Saturday night sleepovers… (Transcript 1, page 8). Mr Dibble gave no direct evidence regarding the time between 28 May and 23 June 2005 and he did not cross-examine Ms Aupouri in relation to her evidence that after 22 May 2005 Shanti did not spend another night at his house.
36. Dr Prassopoulos gave evidence that he was a visitor to Mr Dibble’s household during the months of May and June 2005 about two to three times a week and that Shanti was there. He said that her bedroom was furnished and that on occasions they would all have dinner there and there were times when Mr Dibble would be seeing Shanti to bed. He remembered Shanti going away to Sydney or Queensland but was not sure whether that occurred at the same time. In considering this evidence I note that the reference to visits in May could apply to very few days and that there is no other evidence of Shanti returning to Mr Dibble’s house immediately before or immediately after the school camp. There is also an element of uncertainty in the evidence in regard to the period in June 2005, in that Dr Prassopoulos was unsure about whether the trip occurred during June or whether Shanti went to Sydney or Queensland.
37. Mrs Gordon gave evidence that she visited Mr Dibble’s house about four times during the period from late April to late June 2005. She said that she was aware that Shanti was living there because mediations took place in Shanti’s bedroom. However, Mrs Gordon also visited Ms Aupouri’s apartment during the period before Shanti’s trip to Sydney, when Shanti was visiting. Mr Gordon gave evidence that he was of the opinion that up to June 2005, Shanti was residing with Mr Dibble most of the time, although she was moving back and forth between the houses of Mr Dibble and Ms Aupouri. Although Mr Gordon knew that Shanti had stormed out of her father’s house and had gone to her mother’s, he was still under the impression that Shanti was living with Mr Dibble. Mr Gordon’s evidence was that on the occasion he went to Ms Aupouri’s apartment, before Shanti’s trip to Sydney, Mr Dibble was concerned because he could not contact Shanti. This indicates to me that for at least some of the time prior to Shanti’s trip, Mr Dibble was not in contact with Shanti, which would be surprising if she were in fact living with him.
38. On the other hand, Ms Aupouri’s evidence was that after 22 May 2005, Shanti did not spend one night at Mr Dibble’s house. I note that Mr Dibble did not cross‑examine Ms Aupouri on this issue. Ms Aupouri’s evidence is supported by the statements from both Roy Salter and Shanti herself. However, I am conscious that neither of these statements was subjected to cross‑examination. Mr Brian Salter’s evidence indicated no direct knowledge of Shanti’s living arrangements during the period before her trip to Sydney.
39. In considering the conflicting evidence I note the lack of direct evidence from Mr Dibble about the period 28 May to 23 June 2005. I also note the element of uncertainty in regard to timing from Dr Prassopoulos and the assumption made by Mr and Mrs Gordon in reaching their understanding that Shanti was living with Mr Dibble. They assumed that because Shanti’s belongings were still in the bedroom at Mr Dibble’s house, she must still be living there. Against that assumption was the evidence of Ms Aupouri that Shanti had returned to Mr Dibble’s house to pack up a large bag of belongings to take to Ms Aupouri’s apartment, and that Ms Aupouri had set up a bed in a spare room for Shanti. I also note Ms Bellotti’s understanding that Shanti was living with her mother in late June. Finally, I note that Mr Dibble did not challenge Ms Aupouri’s evidence that Shanti did not stay one more night with Mr Dibble after leaving his house on 22 May 2005.
40. On the balance of probabilities I find it more likely than not that Shanti left Mr Dibble’s house on 22 May 2005 and thereafter did not return to stay. Although Mr Dibble provided some financial assistance to Shanti by way of contributions to the costs of the school camp, the fares for Shanti’s trip to Sydney and some lunch money, after 22 May Mr Dibble was no longer involved in her day‑to‑day life and in the making of decisions regarding her future. From his own evidence it is clear that from 22 May onwards Mr Dibble had no influence on Shanti’s life. He had no direct contact with her, relying on Mr and Mrs Gordon to act as intermediaries for him on a limited number of occasions. Mr Dibble had no influence on Shanti’s decision to travel to Sydney on holidays, nor with whom she stayed. He only learned of Shanti’s accommodation arrangements after the event. After 22 May, Mr Dibble was neither responsible for Shanti’s day-to-day needs nor did he exercise care, custody and control of Shanti.
41. Further, the relevant period is not a temporary situation. Shanti’s belongings were moved out of Mr Dibble’s house in late July 2005 and Shanti has not returned to stay with him since leaving. It is clear that Mr Dibble continues to be concerned about his daughter’s well being. However during the relevant period, the situation was not such that I can find that Shanti was in his care.
42. Following the reasoning in the matters of Barrett and Re Munn, I find that on the balance of probabilities, between 22 May and 8 July 2005, Shanti was not in Mr Dibble’s care as required by section 5(2)(a) of the Act nor was Shanti wholly or substantially in Mr Dibble’s care during that period. Accordingly, Shanti was not a dependent child of Mr Dibble in the terms of section 5(2) of the Act. Mr Dibble was not entitled to PPS between 22 May 2005 and 8 July 2005. Therefore, there is a recoverable debt of $1,643.43 in overpayment of PPS.
43. With the same reasoning, I find that Shanti was not an FTB child of Mr Dibble between 22 May and 8 July 2005 in the terms of the Family Assistance Act. Mr Dibble was not entitled to FTB between 22 May 2005 and 8 July 2005. Therefore, there is a recoverable debt of $1,253.12 in overpayment of FTB.
44. In this hearing neither of the parties introduced evidence nor made submissions in regard to the findings of the SSAT. The issues of whether the debt is recoverable, whether the debt may be written off or waived and whether there are special circumstances that make it desirable or more appropriate to waive or write off the debt were not addressed and were not disputed by the parties. Applying the same reasoning adopted by the SSAT I find that, in regard to the period from 22 May 2005 to 8 July 2005:
·Mr Dibble did not notify that he no longer had dependent children;
·He was not qualified for PPS;
·He was overpaid an amount of $1,643.43 for PPS which is a debt due to the Commonwealth;
·He was not qualified for FTB;
·He was overpaid an amount of $1,253.12 for FTB which is a debt due to the Commonwealth;
·The debt was not caused solely by administrative error;
·Mr Dibble’s situation does not fall within the meaning of special circumstances; and
·His circumstances do not warrant waiver of the debt under section 1237AAD of the Act.
45. Accordingly I affirm the decision under review. Mr Dibble is unsuccessful in this application.
I certify that the forty-five [45] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, Member
(sgd) Olympia Sarrinikolaou
ClerkDates of Hearing: 16 August 2007, 7 November 2007 and 27 November 2007
Date of Decision: 14 February 2008
Advocate for the applicant: Self represented
Advocates for the respondents: Mr David Perdon, and Mr Tim Noonan, Centrelink Legal Services
Advocate for the third party Self represented
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