Dowling and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor
[2008] AATA 529
•25 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 529
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/22
GENERAL ADMINISTRATIVE DIVISION ) Re TIMOTHY DOWLING Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And CINDY-LEE WAITE
Third Party
DECISION
Tribunal Regina Perton Date25 June 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Dowling’s pattern of care results in an entitlement to 11 per cent of the total Family Tax Benefit available for care of his three FTB children. The Tribunal remits the application to the Secretary for re-calculation of Mr Dowling’s debt to the Commonwealth. ....................[Sgd].....................
Regina Perton
Member
SOCIAL SECURITY – family tax benefit – percentage of shared care -
A New Tax System (Family Assistance) Act 1999 ss 21, 22, 23, 59, Part 3 of Division 1
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Wade v Department of Family and Community Services (2004) 139 FCR 285
REASONS FOR DECISION
25 June 2008 Regina Perton, Member 1. When a couple who have dependent children separate and then share their children’s upbringing, the total amount of family tax benefit (FTB) to which they may be entitled can be split with the payment to each parent based on the percentage of time that the parent cares for the children. This is generally based on court orders relating to future care arrangements. However, if Centrelink, which administers FTB for the Department of Families, Housing, Community Services and Indigenous Affairs (the Department) is advised that the care arrangements differ from the court orders, Centrelink may adjust the rate of payment based on the information provided by one or both parents.
2. Timothy Dowling and Cindy-Lee Waite are the parents of three dependent children. They have not been a couple for several years. Mr Dowling and Ms Waite were each paid FTB, with the payments based on the percentage of time the children were to spend with each parent. As at September 2000, when Mr Dowling first applied for FTB, the payment to each parent was based on the court orders current at that time. Ms Waite received 75 per cent of the total FTB and Mr Dowling received 25 per cent.
3. On 12 December 2002, Mr Dowling confirmed to Centrelink that there was a change in the shared-care arrangements and that as from 8 December 2002; he cared for the children for 20 per cent of the time. On 24 December 2002, Ms Waite informed Centrelink that the current court orders were not being followed and that she now cared for the children for 90 per cent of the time and wished to have her rate of payment changed. Centrelink undertook further enquiries of the parents who provided replies. On 12 February 2003, Centrelink informed Mr Dowling that he would now be paid 20 per cent of the FTB.
4. On 25 March 2004, Ms Waite advised Centrelink that the children had been in her care for 100 per cent of the time since September 2003. Further investigations ensued. Mr Dowling’s FTB was cancelled on 5 August 2004 on the basis that the children were not in his care for 10 per cent or more of the time. The legislative threshold for receiving FTB is that a parent has care of the children for at least 10 per cent of the time. Centrelink also raised debts for overpayment of FTB to Mr Dowling between 1 January 2003 and 30 June 2003 ($2,496.13) and between 1 July 2003 and 20 July 2004 ($6,051.15).
5. Mr Dowling challenged Centrelink’s decisions, which had been based primarily on Ms Waite’s evidence. An authorised review officer (ARO) of Centrelink affirmed the decisions under review.
6. Mr Dowling believes he took care of the children substantially, in accordance with the existing court orders during the periods for which the debts were raised. He also asserts that Ms Waite prevented him from caring for the children during some of the relevant period. Mr Dowling’s recollection and that of his witnesses differed from that of Ms Waite and her witnesses.
7. The Tribunal must determine whether Mr Dowling cared for the children for more than 10 per cent of the time during the period under review. If so, the Tribunal must determine the appropriate percentage of FTB payable to each parent. The Tribunal must also determine if Mr Dowling has a debt to the Commonwealth; and if so, what is the amount of the debt, as a result of the (possible) changed share arrangements after 1 January 2003. The Tribunal will also consider if there are grounds to waive the debt.
Legislation and Guidelines
8. Part 3 of Division 1 of A New Tax System (Family Assistance) Act 1999 (the Act) sets out the circumstances in which an individual has an FTB child and is therefore eligible to receive FTB. Section 22(7) of the Act allows for a child to be the FTB child of more than one person. Section 25(1) of the Act states that a person is not entitled to be paid FTB where the level of care is less than 10 per cent.
9. Section 59(1) of the Act provides for the Secretary to the Department (and the Tribunal) to decide the proportion in which FTB is to be shared:
If the Secretary is satisfied that:
(a) an individual is an FTB child of an individual (person A); and
(b)the FTB child is also an FTB child of another individual who is not person A’s partner;
the Secretary may determine the percentage that is to be person A’s percentage of family tax benefit for the child.
10. The Act does not explain how the Secretary is to determine the person’s percentage of FTB. Centrelink sets out the usual tests it adopts in the policy guidelines contained in the Family Assistance Guide 1999 (the Guide). This Tribunal is guided by government policy unless there are sound reasons to depart from it (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).
11. The Guide at 2.1.1.25 states:
Two or more adults who are not members of the same couple… and who care for an FTB child can each be eligible for FTB for that child at the same time, provided each adult cares for the child for at least 10% of the assessment period …. A determination must be made regarding the percentage of FTB to which an individual is entitled in respect of the FTB child. Once a determination has been made to share FTB for a child, eligibility for FTB is continuous for each person, regardless of which person actually has the physical care of the child at any given point in time.
Generally, shared care arrangements are made between parents of a child, however another family member, or unrelated adult, may also care for the child.
…
Where possible, the percentage to be applied in the shared care determination should be:
·The percentage of care agreed to by all parties who share the care of the child, or
·Be based on the agreed pattern of care…
Where the carers do not agree on the care arrangements, the FAO decision maker will determine the care percentage to be applied based on the available evidence of the actual pattern of care.
12. At 2.1.1.45, the Guide looks at how a pattern of care may be determined.
…
Where the carers do not agree on the actual pattern of care for the child, the FAO must determine the actual pattern of care on the basis of the available evidence. This applies even if a family law order… registered parenting plan … or court order exists… If the carers do not agree on the care arrangements each carer should be asked to provide additional evidence to support their declared arrangements in order for the FAO to make a decision as to the actual pattern of care.
…
Generally a pattern of care is based on the number of nights where an individual has the overnight care of an FTB child. A person with overnight care of a child is regarded as having had care of the child for that day
…
There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days in care.
13. Section 23 of the Act sets out a number of limited circumstances where a person can be paid FTB for up to 14 weeks when a child ceases to be in the care of an individual without that person’s consent:
(1) This section applies if:
(a)an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3) (including that subsection in its application by virtue of subsection 22(7)); and
(b)an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and
(c)the adult takes reasonable steps to have the child again in the adult’s care.
(2)The child is an FTB child of the adult for that part of the qualifying period (see subsection (5) for which the child would have been an FTB child of the adult…if the child had not ceased to be in the adult’s care.
…
(5)In this section:
qualifying period means the period beginning when the child ceases to be in the adult’s care and ending at the earliest of the following times:
(a) if the child again comes into the adult’s care at a alter time – that later time;
(b) after 14 weeks pass since the child ceased to be in the adult’s care;
(c) ….
14. The section of the Guide concerning Disputed Care Arrangements (at 2.1.1.70) describes what the Department considers to be reasonable steps, including taking out a recovery order through the court.
What was the percentage of care during the relevant period?
15. The Tribunal took oral and written evidence from Mr Dowling, his parents, Ms Waite, Ms Waite’s mother and friends of both parties. Additional written evidence included statements from a dancing teacher, an after-school-care coordinator and a holiday care coordinator. Given the relevant period was more than three years ago, it is not surprising that it was hard for witnesses to recall particular outings and weekends in detail.
16. Ms Waite informed Centrelink on 24 December 2002, that the shared-care arrangements detailed in a Family Court Order, issued in August 2001, were not being followed. That court order provided that Mr Dowling have contact with his three children from after school on Fridays to 5.30 pm Sunday, each alternative week; for one half of the school term holidays (in default of agreement the first half of the holidays); special arrangements for Father’s Day, Mother’s Day and Christmas Day; plus other arrangements regarding telephone contact. The order stated that Mr Dowling was to collect the children from school, when possible, for the changeover of care; and if he was collecting or returning them to Ms Waite’s home, he should remain in the car and the children would be sent out. Ms Waite stated that she had the children for 90 per cent of the time.
17. On 9 January 2003, Mr Dowling reiterated his advice to Centrelink that he had the children for 20 per cent of the time rather than the 25 per cent both parties had originally agreed was the percentage contained in the court order. Mr Dowling also indicated that there had been conflict between him and Ms Waite over care. He stated that there were times when Ms Waite did not let the children stay or dine with him despite it being his allocated evening or weekend. He also stated that at that date, he had not had care of the children during that holiday break but he estimated that he would have them for the usual rotation of every second weekend from Friday to Monday and on Friday evening on the alternate weekend for the rest of the financial year. He stated he was happy to have the children individually for activities at additional times not specified in the court order but that their mother would not allow this. Centrelink continued to pay Mr Dowling 20 per cent FTB.
18. On 25 March 2004, Ms Waite advised Centrelink that the children had been in her care for 100 per cent of the time since September 2003 and that she had initiated proceedings for a court order reflecting that. On 14 June 2004, Ms Waite provided a statement in which she claimed that Mr Dowling had only taken care of the children on two occasions during that financial year to date. Centrelink wrote to Mr Dowling on 2 July 2004 advising him to provide details of his care of the children. Mr Dowling did not provide a response within the specified 14 day period. On 5 August 2004, Centrelink cancelled Mr Dowling’s FTB on the basis that he did not take care of the children for at least 10 per cent of the time.
19. Mr Dowling sought review of the decision. He said that he had not received Centrelink’s letter of 2 July 2004. He subsequently corresponded extensively with Centrelink as well as telephoning and attending Centrelink’s office. He provided submissions and copies of court orders, Family Court affidavits and other legal correspondence concerning the long-running dispute between him and his ex-wife in relation to his contact with the children.
20. The Tribunal has evidence before it in relation to some but not all of the weekends and holiday periods during 2003. On 8 January 2003, Mr Dowling informed Centrelink that he had not been able to care for his children during the holidays underway due to the actions of Ms Waite, as well as work-related training commitments. He stated that she was unwilling to allow access at the times that he was available. Ms Waite was adamant that the children had not been with during those holidays. There has been no evidence provided by Mr Dowling that he had care of the children for half of those school holidays. On the balance of probabilities, the Tribunal finds that Mr Dowling did not take care of the children during December 2002/January 2003 holidays. There being no evidence to the contrary, the Tribunal accepts Mr Dowling’s evidence that he had contact with the children on the night of Friday 31 January 2003.
21. As for February 2003, both Mr Dowling and Ms Waite agree that the children were with Mr Dowling from Friday 7 February 2003 to Sunday 9 February 2003 and that he met the children for dinner on Friday 14 February. Mr Dowling and his mother gave evidence that the children were with him the following weekend from Friday 21 February 2003 to Sunday 23 February 2003 with his mother picking them up from school. Ms Waite’s photocopy of an entry from a diary, which she has now disposed of, was indecipherable. Ms Waite agreed that Mr Dowling had dinner with the children on Friday 28 February 2003. The Tribunal finds that Mr Dowling cared for the children for two weekends in February 2003 and had dinner with them on the alternative Fridays.
22. There was evidence before the Tribunal from Mr Dowling, Ms Waite and one of her friends that Mr Dowling had come to Ms Waite’s house on the Friday night of the Labour Day weekend (7 to 9 March 2003) to pick up the children for the weekend. Ms Waite claimed that situation had become rather heated and that she had not opened the door to him or allowed the children to go to his car. The Tribunal is satisfied that Mr Dowling had attempted to pick up the children for that weekend and had been unable to care for them due to matters outside his control. Ms Waite and Mr Dowling both agreed that the children had dinner with him the following Friday, 14 March 2003 and that he took care of them the next weekend, 21 to 23 March 2003. Mr Dowling, his parents and a relevant receipt indicated that the children had dinner with him and his family on Friday 28 March 2003 to celebrate one of the children’s birthday. Ms Waite did not disagree. Therefore, the Tribunal finds that in March 2003, the children spent one weekend with their father as well as two scheduled Friday evening dinners. The Tribunal also finds that Mr Dowling was prevented from taking care of his children on another March weekend.
23. On the first weekend of April (Friday 4 April 2003 to Sunday 6 April 2003) the dancing teacher recorded that Mr Dowling’s daughters were absent from dance class on Saturday morning. There was evidence before the Tribunal that Mr Dowling did not take the girls to dancing or pick them up. Ms Waite did not produce any evidence that the children did not spend the weekend with their father. In the absence of any evidence to the contrary, the Tribunal finds on the balance of probabilities, that the children stayed with their father for that weekend. Ms Waite has recorded in her diary for the following Friday 11 April 2003 Tim no show. Mr Dowling gave evidence that he had contact with the children on Thursday 17 April 2003, the Thursday preceding Easter 2003. Ms Waite recorded in her diary for 18 April 2003, which would have been an access weekend, the notation “Tim didn’t collect on 18/4 – what about… [one of the girls]? The Tribunal has evidence that the girls were at a dance camp on Saturday 26 April 2003. However, that was not a weekend for overnight access. There is no evidence before the Tribunal that they did not have dinner with Mr Dowling on Friday, 25 April 2003. There were school holidays between 12 April 2003 and 27 April 2003. Ms Waite gave evidence that Mr Dowling did not care for the children for half of those holidays. Mr Dowling was unable to provide any evidence that he had done so, apart from the weekends. Therefore, in relation to April 2003, the Tribunal finds on the balance of probabilities that Mr Dowling took care of the children on one weekend and on three evenings for dinner. The Tribunal is not satisfied that he took care of the children during half the holidays.
24. In May 2003, there is evidence from Mr Dowling, his mother and the girls’ absence from dance class, that the children stayed with their father on the weekends of Friday 2 May 2003 to Sunday 4 May 2003 and Friday 16 February 2003 to Sunday 18 February 2003. Ms Waite, in an affidavit prepared for the Family Court, noted that she had picked up her elder daughter from her father’s home on the Sunday morning for a ballet exam. Ms Waite’s diary indicates Tim didn’t collect for Friday 9 May 2003 but that he did so on Friday 23 May 2003. The evidence for the weekend of Friday 30 May 2003 to Sunday 1 June 2003 indicated that the children attended a cousin’s Christening ceremony with their father on the Sunday morning. However, the girls were at the ballet class on Saturday, to which their mother would bring them and pick them up. Ms Waite’s diary entry indicated that Tim didn’t collect kids? 30/5. The Tribunal finds on the balance of probabilities that the children spent Saturday night with their father on that weekend. In summary, in relation to May 2003, the Tribunal finds that the children spent two full weekends with their father and one night on a third weekend. They also dined with him on at least one night.
25. There is evidence that Mr Dowling had dinner with the children at a particular hotel on Friday 6 June 2003. For the following weekend, Friday 13 June 2003 to Sunday 15 June 2003, there is no evidence suggesting that Mr Dowling did not have the children for the weekend. There was no ballet class and no entry in Ms Waite’s diary to the contrary. Ms Waite noted that Mr Dowling had picked up the girls for dinner on Friday 20 June 2003. On the next scheduled weekend contact, Friday 20 June 2003 to Sunday 22 June 2003, Ms Waite gave evidence that Mr Dowling had informed her that he would not have contact with the children as he was going away. Mr Dowling did not provide any evidence to the contrary. In relation to June 2003, the Tribunal finds that, on the balance of probabilities, Mr Dowling cared for the children on one weekend in June 2003 for two nights and had dinner with them on two Friday nights.
26. The school holidays ran from 28 June 2003 to 13 July 2003. Ms Waite gave evidence, supported by diary entries, that Mr Dowling did not have contact with his children on Friday 4 July 2003 for dinner. Her entry for the weekend of 11 July 2003 to 13 July 2003 states Tim didn’t get. Mr Dowling did not have any specific evidence about that weekend. Ms Waite noted that Mr Dowling had dinner with the children on Friday 17 July 2003. There is evidence before the Tribunal that the children stayed with their father from Friday 25 July 2003 to Sunday 27 July 2003. The Tribunal finds, on the balance of probabilities, that the children spent two nights of one weekend with their father during July 2003 and had dinner with him on one Friday night.
27. In relation to Friday 1 August 2003, in the absence of any contradictory evidence, the Tribunal is satisfied that the children had their usual Friday night dinner with their father. For the weekend Friday 8 August 2003 to Sunday 10 August 2003, Ms Waite has noted that Mr Dowling had dinner with only one of the children. However, that was a weekend that the children normally spent with their father. On the balance of probabilities, the Tribunal finds that Mr Dowling cared for the children that weekend. There is no decipherable evidence in Ms Waite’s photocopied diary as to what happened on Friday 15 August 2003. In the absence of any evidence to the contrary, the Tribunal finds that the children had dinner with their father that evening. There was evidence from Ms Waite and a friend that Mr Dowling was not able to care for the children on the weekend from Friday 22 August 2003 to Sunday 24 August 2003. Mr Dowling was unable to provide evidence to the contrary. On Friday 29 August 2003, a dinner weekend, Ms Waite’s diary entry stated Tim didn’t collect; although it is unclear whether this was from school or their home. Ms Waite stated that on an unknown date in August 2003, Mr Dowling took the children out of school at 9.30 am but Mr Dowling denies this and there is no record of the event. The Tribunal finds, on the balance of probabilities, that the children spent two nights of a weekend with their father and had dinner with them on two nights.
28. The first Sunday in September 2003 was Father’s Day. Mr Dowling’s parents have evidence that the children spent time with them on both the Saturday and Sunday and described what they did that weekend. The Tribunal accepts their evidence and finds that the children spent the weekend from Friday 5 September 2003 to Sunday 7 September 2003 with their father. It is unclear what happened on Friday 12 September 2003 but the Tribunal is prepared to accept Mr Dowling’s evidence that he had dinner with the children. Ms Waite wrote in her diary for the following weekend, 19 September 2003 to 21 September 2003, that Tim didn’t pick up; and for the following Friday dinner on 26 September 2003 she wrote Tim didn’t pick up due to school holidays. The holidays ran from 20 September 2003 to 5 October 2003. On the balance of probabilities and in the absence of any specific evidence from Mr Dowling to the contrary, the Tribunal finds that Mr Dowling had care of the children on one weekend and for dinner on one Friday night in September 2003.
29. There was no evidence put before the Tribunal by Mr Dowling to indicate that he cared for the children for half of the school holidays in late September 2003 to early October 2003 and the Tribunal finds, on the balance of probabilities, that he did not care for them during those holidays.
30. In relation to October 2003, Ms Waite noted for the first weekend, from Friday 3 October 2003 to Sunday 5 October 2003, no show for Tim. The following Friday, 10 October 2003, was a Friday dinner and there is no evidence to indicate that Mr Dowling did not have dinner with his children. There is evidence, in Ms Waite’s diary and in the girls’ absence from ballet class, that Mr Dowling took care of the children from Friday 17 October 2003 to Sunday 19 October 2003. On Friday 24 September 2003, Ms Waite has written in her diary, didn’t get; although it is unclear whether this means Mr Dowling did not pick the children up from school or was prevented from doing. This would have been a Friday night dinner. The weekend from Friday 31 October 2003 to 2 November 2003 is problematic. Their elder daughter was at ballet class but not their younger daughter. Ms Waite has written Tim didn’t collect in her diary for that weekend. In the absence of evidence to the contrary, the Tribunal finds that the two younger children stayed with their father for that weekend.
31. There is evidence before the Tribunal from their son’s school that he attended a sleepover at his school on Friday night 7 November 2003 and did not attend dinner. There is also a note that the elder daughter was at a party that night. The Tribunal finds that it is more likely than not that only the younger daughter had dinner with her father that night. The following weekend, Friday 14 November 2003 to Sunday 16 November 2003, would have resulted in the children spending two nights with their father. However, the dance school’s records indicate that the two girls were at ballet concert rehearsals on 14, 15 and 16 November 2003. On the balance of probabilities, the Tribunal finds that Mr Dowling did not care for them on that weekend. The girls also had dance rehearsals on 21 and 22 November 2003. Ms Waite has recorded the comment Tim didn’t collect against that weekend, which would have been a dinner weekend on Friday 21 November 2003. The girls were absent from dance class on the weekend of Friday 28 November 2003 to Sunday 30 November 2003. Ms Waite has recorded that Tim didn’t get again but it is not clear if this is from the school or at all. The Tribunal is prepared to consider that weekend as a possible one when Mr Dowling had the children given their absence from ballet class. Therefore, for November 2003, the Tribunal finds, on the balance of probabilities, that the children had one weekend with their father and that the youngest child had dinner with him on one Friday evening.
32. In December 2003, the girls had rehearsals on 5 and 6 December 2003. In the absence of any evidence to the contrary, the Tribunal finds that Mr Dowling was unable to have dinner with his children that Friday night, possibly due to factors outside his control. There is evidence indicating that the girls were at their ballet concert on Saturday 13 December 2003 and at the dance school breakup on Sunday 14 December 2003. The evidence suggests that they would not have stayed with their father on that rostered weekend due to factors that may have been outside Mr Dowling’s control. Friday 19 December 2003 is recorded as the day school ended for the year. It would have been a dinner evening but Ms Waite has stated Tim didn’t collect. The evidence regarding Christmas Day was somewhat unclear but it appears the children spent time with each parent. The Tribunal is satisfied that the children’s activities during December 2003 resulted in Mr Dowling having only limited contact with them that month.
33. The Tribunal is not satisfied that Mr Dowling cared for the children for half of each school holiday period during 2003. Evidence from the holiday care venue that they attended indicates that Ms Waite had tried to book the children in on short notice on several occasions. The children attended the centre four days in each week in the April 2003 holidays; three days per week in the July 2003 holidays and four days per week in the September-October 2003 holidays. Mr Dowling did not dispute that evidence nor did he suggest that he had dropped off or picked up the children from the centre.
34. The Tribunal finds, on the balance of probabilities, that the children spent at least 13 weekends with their father during 2003. It is evident that on the Labour Day weekend in March 2003 he attempted to have contact with the children but this was denied him. He also had dinner with the children on at least 18 nights on the alternative weekends when he did not have an entitlement to have them for the weekend. The Tribunal is satisfied that Mr Dowling spent at least 26 nights caring for his children during 2003. If calculations were done purely on the nights the children spent with him, namely 26 out of 365, he would clearly not meet the minimum requirement of 10 per cent care of the children. Even if the weekend when he clearly could not see the children due to their mother denying him access is added, he does not meet the minimum requirement. However, his dinners with the children also need to be factored in. The issue then becomes how to factor in the Friday night dinners. Most of the 18 dinner evenings appear to have been for around 3 hours, amounting to an extra 54 hours. If each weekend is considered to be 48 hours, this would lead to a finding of 624 hours of care, resulting in a definite total of 678 hours. The total number of hours in a year is 8,760 hours, resulting in Mr Dowling still having less than 10 per cent care of the children during 2003.
35. Notwithstanding the above findings, the Tribunal is satisfied that the pattern of care established by Mr Dowling during 2003 was that he would usually care for the children every second weekend for two nights, apart from school holidays. Section 22(7) of the Act requires the Secretary to be satisfied that there has been, or will be a pattern of care… In reviewing the oral and documentary evidence in its entirety, the Tribunal has noted that there is a pattern to the care that Mr Dowling had with the children during 2003. That pattern was caring for the children for every second weekend except for the weekends during the school holidays. This pattern is clear, notwithstanding that there were times, some of which may well have arisen due to the animosity between the parents, that he was unable to fully exercise the pattern of care. Taking into account some 12 weeks of school holidays, the resultant pattern is that Mr Dowling would have cared for his children, if he were always able to do so, for 20 weekends out of 52 weekends. This amounts to 40 nights out of 365 nights per year or around 11 per cent during 2003.
36. The Guide and the overnight stay method of calculation has been endorsed in Wade v Secretary, Department of Family & Community Services (2004) 139 FCR 285. In that case, the Federal Court found that there was nothing in the Act which requires the percentage to be determined by reference to whole days that a person has care of the child. The Court accepted the overnight stay method of calculation as being consistent with the purpose and intended operation of the Act if it generally reflects the actual percentage of care provided.
37. Ms Waite, Mr Dowling and their witnesses have agreed that Mr Dowling did not have care of the children from 1 January 2004 to 20 July 2004. This appears primarily to be the result of Ms Waite initiating proceedings in the Family Court to which Mr Dowling responded in an attempt to regain his pattern of care. The Tribunal is satisfied that the circumstances were such that he would not been able to have access to the children given the nature of the dispute between them and the state of the relationship between them. The Tribunal is satisfied that Mr Dowling took reasonable steps to regain access to his children during the second period in which he accumulated a debt. The Tribunal finds that 14 weeks of his regular pattern of care, namely every second weekend and dinner on the alternative Friday, were denied him although he attempted to gain access. The Tribunal finds that 14 weeks during the period following the initiation of court proceedings by Ms Waite and the lodgement of a response by Mr Dowling should be considered as a period when he was entitled to FTB according to the pattern of care that existed during 2003.
38. Centrelink raised debts for overpayment of FTB to Mr Dowling between 1 January 2003 and 30 June 2003 ($2,496.13) and between 1 July 2003 and 20 July 2004 ($6,051.15). The Tribunal is satisfied that Mr Dowling was not entitled to 20 per cent of the total FTB during the relevant period. Given the Tribunal’s finding that the pattern of care entitled Mr Dowling to 11 per cent of the FTB payments, the Tribunal will set aside the decision under review and direct that Mr Dowling’s debt be recalculated based on the difference between the 20 per cent he was originally paid and the 11 per cent to which the Tribunal now finds he is entitled. As mentioned above, 14 weeks of the period from 1 January 2004 to 20 July 2004 should also be a period to which he was entitled to FTB when the debt is re-calculated.
DECISION
39. The Tribunal sets aside the decision under review and substitutes a decision that Mr Dowling’s pattern of care results in an entitlement to 11 per cent of the total Family Tax Benefit available for care of his three FTB children. The Tribunal remits the application to the Secretary for re-calculation of Mr Dowling’s debt to the Commonwealth.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
Signed: ...............[Sanjiv Shah]......................
AssociateDates of hearings: 7 July 2006, 11 & 12 January 2007,
22 & 23 February 2007
Date of final action: 23 April 2008
Advocate for applicant: Self‑represented
Advocate for third party: Self-represented
Advocate for respondent: Ms A Bramley, Centrelink Legal Service
0
1
0