Dik and Secretary, Department of Social Services (Social services second review)

[2019] AATA 65

Dik and Secretary, Department of Social Services (Social services second review) [2019] AATA 65 (24 January 2019)

Division:GENERAL DIVISION

File Number(s):      2017/6034

Re:Alina Dik

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndPaul Dewar

OTHER PARTY

DECISION

Tribunal:Senior Member N A Manetta

Date:24 January 2019

Place:Adelaide

The Tribunal affirms the decision under review.

...........................[sgnd].....................................

Senior Member N A Manetta

CATCHWORDS

FAMILY TAX BENEFIT- percentage care split between parents – evidence of applicant

found to be unreliable – decision affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999

REASONS FOR DECISION

Senior Member N A Manetta

24 January 2019

INTRODUCTION

1. This is an application by Ms Alina Dik seeking a review of a Level 1 decision of this Tribunal dated 6 September 2017. The decision in question relates to the amount of care, expressed as percentages, that Ms Dik, on the one hand, and her former partner, Mr Dewar, on the other, had of their two children over a number of years commencing in February 2013 and ending in August 2016.  Ms Dik and Mr Dewar are now separated, but they share the upbringing of their two children.  The percentages determine the amount of Family Tax Benefit to which each of the parents is entitled under the relevant legislation: A New Tax System (Family Assistance) Act 1999. 

2. Ms Dik claims that the percentage of care, 50%, awarded to her in January 2013 by the (now defunct) Social Security Appeals Tribunal (SSAT) became inaccurate from February 2013 onwards. At the hearing before me, Ms Dik represented herself; Mr Dewar, who was joined to the proceedings, represented himself; and Mr Morris appeared for the respondent, the Department of Social Services.

   CRITICAL QUESTION AND CONCLUSION

3. Ms Dik applied in 2016 to have her 50% care percentage increased and backdated with effect from 2013. The Department initially agreed with her submission, but the Authorised Review Officer (ARO) ruled against her and reinstated the 50% care percentage.  Ms Dik brought a further application to this Tribunal (Level 1). The Level 1 Tribunal affirmed the ARO’s decision. Hearing the matter afresh on the evidence before me, I must decide whether I agree with Ms Dik that she had greater than 50% care of her two children from February 2013 to August 2016. I have decided not to alter the decision.  My reasons follow.

   REASONS

4. As Ms Dik and Mr Dewar were not legally represented and in order to aid their understanding of my reasons, I shall express myself as briefly and as plainly as possible.

5. On 29 January 2013, the SSAT delivered a decision in writing that the appropriate percentage care split between Ms Dik and Mr Dewar was 65% (to Ms Dik) and 35% (to Mr Dewar) for the period 15 February 2011 to 15 November 2012. The decision also records that the appropriate percentage care split was 50-50 with effect from 15 November 2012. The reasons indicate this latter split was agreed between the parties.

6. Ms Dik had initiated the proceedings before the SSAT because she disputed at that time the appropriateness of a 50-50 split. I further note that Ms Dik impressed me at the hearing as an intelligent and articulate person, and this impression is consistent with her tertiary qualifications.

7. Notwithstanding her earlier application to the SSAT, Ms Dik did not seek any adjustment to the 50-50 ruling that was made with her consent until August 2016, even though she maintains that the care percentages had changed from 14 February 2013 onwards.

8. In my opinion, Ms Dik needed to explain adequately why she waited some years before seeking to have the agreed percentage of care varied. I refer to this matter at [19] below.

9. Ms Dik gave evidence that she maintained a written record for each of 2013, 2014, 2015, and 2016. The record consists of calendar entries in diaries. I received in evidence the originals of a 2013 diary, a 2015 diary, a 2016 diary and a 2017 diary. At the front of each diary there is a calendar for the entire year as well as calendars for other years.

10. Ms Dik maintained that she would circle in the calendar each date when the children were in Mr Dewar’s care overnight. She said she did this on a daily basis and not retrospectively. I have examined the originals of the calendars in the diaries where the dates are circled.

11. The 2013 calendar (in the front of the 2013 diary) shows the same coloured ink was used to circle all dates in a number of months including February, March, April, May, June, July, and August with the exception of 29, 30, and 31 August which are marked with a lighter blue ink.

12. The first six nights of Mr Dewar’s care in September are marked in the same blue ink as appears in the months February to August; the next three nights of Mr Dewar’s September care are marked in black; the remaining five in September and the first six in October in green. The balance of October is marked in black. All of November’s care is in black ink. The first three days recorded in December are marked in red ink, the next seven days are recorded in black, while the remaining seven days in December are marked in pencil.

13. The uniformity of the ink colour at different times does suggest strongly that the circles were placed retrospectively in the diary, while the changes in colour suggest an intention to give an impression of contemporaneity.  

14. I note that the 2013 diary has a forward calendar for the 2014 year. This 2014 calendar was used by Ms Dik to circle dates when Mr Dewar had care of the children in 2014. Here, too, the same pattern is repeated of blocks of circled dates appearing in one colour coupled with a change of colour from time to time.  I need not set out the exact pattern.

15. Ms Dik also filled out the 2014 calendar appearing in the front of the 2015 diary. Duplicate circles were accordingly drawn, and they were drawn in varying colours. No satisfactory explanation was given as to why the duplicate entries in the 2015 diary have varying colours (blue, red, black, and green). It seems to me most likely that different colours were chosen so as to convey the impression that the duplicate record was in fact an original record executed on a daily basis (instead of merely being copied out in full from the original).

16. The 2015 calendar in the 2015 diary bears the same pattern of blocks of changing colours. The 2016 calendar appearing in the front of the 2015 diary has also been filled out as far as September but not in October, November, or December.

17. In the 2016 diary, the 2016 calendar at the front is also filled out, this time for the entire year, January to December. Again, however, the 2016 calendar appearing in the 2016 diary from January to December has different colours even though it can only have been a duplicate record so far as the first nine months are concerned. Again, the changes in ink colour in what is a duplicate record copied out after the event have not been adequately explained. 

    CONCLUSION

18. I have not found the evidence of circled dates satisfactory.  I am not satisfied that Ms Dik was maintaining an accurate contemporaneous record.

19. Moreover, I do not find Ms Dik explained adequately her very lengthy delay in bringing the matter to the Tribunal. One explanation for the delay that arises inferentially in the “T” documents (T3, p 10) is that Ms Dik only agreed to the 50-50 ruling in the first place in order “to keep the peace”. Ms Dik showed herself willing to initiate the proceedings in the SSAT to which I have referred.  I do not accept that Ms Dik decided not to challenge the 50-50 percentage care split with Mr Dewar until 2016 because she thought it was preferable “to keep the peace” for some three and a half years.  This seems quite unlikely in the circumstances. 

20. In sum, having reviewed the evidence carefully, I have concluded that I am not satisfied by the evidence presented by Ms Dik and have decided, therefore, not to alter the Level 1 decision of this Tribunal.

    FORMAL DECISION

21. The Tribunal affirms the decision under review.

    I certify that the preceding 21 (twenty-one)

    paragraphs are a true copy of the reasons

    for the decision of Senior Member N A Manetta

    ………………[sgned]…………………..

    Administrative Assistant Legal

    Date:   24.01.2019

    Dates of hearing:                   17 September & 3 October 2018

    Advocate for Applicant:          Self-represented

    Advocate for Respondent:     Mr O Morris, Department of Human Services

    Advocate for Other Party:      Self-represented