Evans and Secretary, Department of Family and Community Services and Anor

[2004] AATA 865

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 865

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/244

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CLAIRE EVANS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

And          “WBE”

Joined Party

DECISION

Tribunal Associate Professor G Barton, Member

Date18 August 2004

PlacePerth

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal made in this matter on 11 June 2003.

...........(sgd G Barton)......................

Member   

CATCHWORDS

Family tax benefit – eligibility in normal circumstances – when an individual is an FTB child of another individual – FTB child in a blended family case – only 1 member of a couple eligible for family tax benefit – primary carer – determination where individual is FTB child of 2 people who are not members of the same couple.

A New Tax System (Family Assistance) Act 1999

s 21

s 22(2)(3)(4)(7)

s 25(1)

s 26

s 27

s 59

REASONS FOR DECISION

18 August 2004 Associate Professor G Barton, Member

1.      The applicant, Mrs Claire Ann Evans, receives family tax benefit (“FTB”) under the A New Tax System (Family Assistance) Act 1999 (“the Act”) in respect of her daughter, Laura Salinger, who was born on 17 December 1991.  The amount of FTB to which the applicant is entitled in any period depends, amongst other things,  on the percentage of the period that Laura is in her care.  The applicant has applied for review of the decision of the Social Security Appeals Tribunal (“SSAT”) of 11 June 2003 that she had 77%, and the joined party, who is the partner of Laura’s father, Mr Gerard Paul Salinger, had 23% care of Laura from 1 July 2000 to 6 November 2002 (“the assessment period”) (T2)

2. The respondent, represented by Mr A. Holt, lodged documents T1 – T47, pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, a statement of facts and contentions and a copy of the letter from the applicant referred to in para. 15 of the respondent’s statement of facts and in T23. At the hearing Mr Holt undertook to lodge further written submissions which were filed on 14 May 2004. The applicant who was self represented, gave evidence at the hearing as did the joined party. The applicant lodged a written response to the respondent’s statement of facts and contentions and the joined party lodged copies of her letters to the ‘case officer’ of 5 and 7 April 2004.

3.      On 10 August 2004 the Tribunal received a letter from the applicant relating to certain events since the hearing.  At the time the letter was received these reasons had been completed and they are based exclusively on the evidence before the Tribunal at the hearing.

4. An individual is eligible for FTB in normal circumstances if the individual has at least 1 FTB child and the individual is an Australian resident and the individual’s rate of FTB worked out under Division 1 of Part 4 of the Act is greater than nil, s 21(1)(a), (b)(i) and (c) of the Act. Section 22 of the Act sets out the circumstances in which an individual is an FTB child of another individual (referred to as “the adult” in the Act). As Laura is aged under 18 she is an FTB child of an adult in any of the cases set out in s 22(2)(3) or (4) of the Act. Section 22(3) applies where a family law order or registered parenting plan is in force in relation to the individual, s 22(3(b) of the Act. The Tribunal finds, on the evidence of the applicant, that no family law order, or registered parenting plan, was in force in relation to Laura during the assessment period. So s 22(3) does not apply to Laura. Section 22(4) is also inapplicable to Laura because it deals with an individual who is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual, s 22(4)(c) of the Act. It was not disputed and the Tribunal finds that during the assessment period Laura was in the care of the applicant who is legally responsible for her day-to-day care, welfare and development. This leaves s 22(2) of the Act which provides that an individual is an FTB child of the adult if:

“(a)      the individual is aged under 18; and

(b) the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and

(c)       the individual is in the adult’s care; and

(d)       the individual is an Australian resident or is living with the adult.”

It was not disputed and the Tribunal finds that, during the assessment period, Laura was an FTB child of the applicant pursuant to s 22(2) and the applicant was eligible for FTB pursuant to s 21(1)(a)(b)(i) and (c), of the Act. The applicant did, however, dispute that Laura was an FTB child of the joined party during the assessment period because the joined party is not legally responsible for Laura’s day-to-day care, welfare and development for the purposes of s 22(2)(b) of the Act.

5. The circumstances in which the joined party applied for FTB in respect of Laura for the assessment period are not contentious. She has been in a de facto relationship with Laura’s father since early 1994. She and the applicant testified that contact between Laura and her father in the 6 years preceding the assessment period was at best sporadic even although he had been paying child support to the applicant since October 1997. When the Act came into operation on 1 July 2000 the applicant applied for, and received, FTB in respect of Laura on the basis that she had 100% of her care. It was not in dispute that, at least from 2000 onwards, Laura spent time in the care of her father. It was also not disputed by the applicant, and the Tribunal finds, that the time spent by Laura with her father during the assessment period amounted to at least 10% of her care. The joined party lodged a past period claim for FTB for the 2000/2001 financial year for full time care of her son and 23% care of Laura Salinger on 23 August 2001 (T8). The claim form was signed by the joined party and Laura’s father on 22 August 2001. On the 14 May 2002 Laura’s father signed a claim for FTB for the shared care of Laura for the 2001/2002 financial year (T11) but on 25 June 2002 the joined party signed a claim for her son and Laura for the same period. This claim, lodged with the respondent on 28 June 2002 and countersigned by Laura’s father, was for 30% of her care (T14). The joined party testified that the joint claim for her son and Laura was lodged by her on the advice of the respondent and provided Laura’s father approved, which he did by signing the claim.

6. The meaning of FTB child in the case of a blended family is extended by s 27 of the Act as follows:

If:

(a)       2 individuals are members of the same couple; and

(b)either or both of the individuals have a child (the qualifying child) from another relationship (whether before or after the 2 individuals became members of that couple);

each qualifying child that is an FTB child of one member of the couple while the 2 individuals are members of that couple is taken also to be an FTB child of the other member of the couple.

It was not disputed and the Tribunal finds that the joined party and Laura’s father were members of the same couple during the assessment period so that pursuant to s 27, if she was an FTB child of her father, Laura was also an FTB child of the joined party, during that period.

7. As in the case of the applicant, the issue of whether Laura was an FTB child of her father during the assessment period is to be determined by the provisions of s 22(2) of the Act. Laura was an Australian resident aged under 18 during the assessment period and so the Tribunal finds that the requirements of s 22(2)(a) and (d) are satisfied. The Tribunal also finds that her father, as one of her parents, was legally responsible for her day-to-day care, welfare and development for the purposes of s 22(2)(b) of the Act. For Laura to be an FTB child of her father, s 22(2)(c) requires her to be in his care. This requirement, considered in isolation, could be construed to mean that Laura must have been in his care throughout the assessment period. This construction is inconsistent with the concepts of minimal and shared care in sections of the Act such as ss 25(1), 22(7) and 59. The Tribunal finds that within the context of the Act, s 22(2)(c) is satisfied if Laura was in the care of her father for part of the assessment period. As already mentioned in these reasons the Tribunal finds that the time spent by Laura with her father during the assessment period amounted to at least 10% of her care. So the Tribunal finds that Laura was an FTB child of her father during the assessment period for the purposes of s 22(2)(7) and s 25(1) of the Act. It follows from the provisions of s 27 of the Act, considered at para. 5 of these reasons, that Laura was an FTB child of the joined party during the assessment period. As the joined party is an Australian resident and as her rate of FTB in respect of her son and Laura is greater than nil, she is eligible for FTB in respect of Laura in terms of s 21 of the Act.

8. Section 26 of the Act provides that only one member of a couple is eligible for FTB in respect of their FTB child. The respondent may determine which member is eligible having regard to whether that member is the primary carer for the child and whether the couple have made a written agreement nominating one of them as the member who can make a claim under the Act for FTB in respect of the child. One of the respondent’s written submissions is that the joined party’s claims for FTB for Laura constitute written agreements nominating the joined party as the member who may make the FTB claim. It will be recalled that Laura’s father countersigned the claims. It is not necessary in these proceedings for the Tribunal to make a finding as to whether the relevant claims for FTB constitute written agreements for the purposes of s26(2)(b). It was not disputed as between the joined party and Laura’s father that the joined party was eligible to claim FTB in respect of Laura. In any event the evidence of the applicant and the joined party relating to their arrangements for the shared care of Laura satisfies the Tribunal that the joined party was the primary carer when Laura was in their care. So the Tribunal finds that the joined party was eligible for FTB in respect of Laura for the assessment period for the purposes of s 26 of the Act.

9. Section 59 of the Act provides that if the respondent is satisfied that Laura is the FTB child of two persons who are not members of the same couple, the respondent may determine their respective percentages of FTB for Laura.

10.     On 29 April 2003 the applicant and Laura’s father agreed, amongst other things, on a regime for contact between Laura and her father (T46).  Orders by consent were pronounced in terms of the agreement by the Family Court of Western Australia.  The regime for contact is set out in clause 3 of the agreement as follows:

“3.       The Applicant father and the child shall have contact in accordance to the following regime:-    

a.Each alternate weekend from end of school on Friday until 6:00pm on Sunday, or extended to 6:00 pm Monday if it falls on a long weekend;

b.        For one week in each of the gazetted school holiday;

c.For three continuous weeks during the Christmas school holiday, including Christmas Day in each alternate year with the specific times as agreed between the parties.  If no agreement is reached regarding Christmas Day contact, clause 3(d) and 3(e) shall apply;

d.Commencing in 2003 and each alternate year thereafter from 9:00am Christmas Eve until 2:00 pm Christmas Day;

e.Commencing in 2004 and each alternate year thereafter, from 2:00pm Christmas Day until 2:00pm Boxing Day;

f.On Father’s Day form 9:00 am until 6:00pm;

g.Contact shall be suspended on Mother’s Day at 9:00am;

h.For the purposes of facilitating contact, the said child shall be collected from and returned to the Respondent mother’s place of residence by the Applicant father or his partner, unless otherwise stated or agreed between the parties;

i.Such further contact or variations shall be agreed between the parties from time to time;”

As far as Mr Holt was aware the applicant’s and the joined party’s shared care percentages for FTB have been 77% and 23% respectively since the assessment period, based on the fact that Laura spends approximately 85 days per financial year in the care of the joined party.  This apportionment accords with the contact agreement agreed to by the applicant and Laura’s father on 29 April 2003.  The joined party testified that the contact agreement simply formalised the contact arrangements that were in place before the agreement was made including the assessment period.  The applicant denied this stating that she agreed to the contact regime to ease Mr Salinger’s child support obligations and for the sake of Laura.

11.         The applicant testified that she had never at any point prevented Laura from spending time with her father.  She said that Laura did see him from time to time in 2000 but that she was spending a lot of time at a neighbour’s house and would often say “no” when asked by the applicant if she wanted to spend the weekend with her dad.  The Tribunal then asked the applicant if there was an arrangement with Laura’s father whereby the applicant could phone him and say Laura would be coming over for the weekend.  She denied she had any contact with Laura’s father but then conceded that she did know his phone number and would call him on those occasions when Laura did want to spend time with him.  She was then asked how frequently this occurred in 2000 and she replied mainly over the school holidays (when Laura might go to her father for a week) or for a party or for other holidays such as Easter.  The long stay was over the Christmas period from “7 days up to about 9 days”.  She then explained that it was some distance to the Salinger home and that she had a travel arrangement with the joined party to meet half-way at McDonald’s in Dianella, a suburb in Perth.  At a later stage this changeover occurred at Whitfords Shopping Centre.  She said that apart from school holidays and special occasions, Laura would visit her father from Friday night to Sunday “but that hardly ever occurred.”  The applicant also testified that Laura’s father would arrange for Laura to spend time at his home when members of his family were visiting and that there were a couple of months in 2001 when there was no contact.  It was at this time that the applicant asked Laura’s father to consent to Laura’s adoption by her husband, Mr Gary Evans.   He did not consent and contacted Laura more regularly by phone.  To use the applicant’s words “he was trying to make an effort with Laura and do the right thing.”  According to the applicant contact between Laura and her father became a lot more regular in 2002 because she (the applicant) was on speaking terms with Mr Salinger and he would ask: “can she come over next weekend?”  The applicant, however, denied that this occurred every second weekend stating that there were periods of a month or 6 weeks when Laura didn’t spend time with her father, “then she could go over for the two weekends in the month”.  At this stage in her evidence it was put to the applicant that the joined party’s 23% of Laura’s care during the assessment period was based on 85 days of care per financial year and she was asked what it was she disputed in relation to this calculation.  She stated in reply that whilst she did not dispute the time Laura spent with her father and the joined party on special occasions, such as Christmas and a holiday in Busselton, she did dispute the 48 days per financial year attributed to every second weekend.  She was then asked how many weekends Laura spent with her father and she replied: “I can’t say that, honestly”.  The applicant then confirmed that she had no records.

12.     The applicant testified further that she had made her application as a matter of principle rather than dollars and cents.  She said that she had refused the respondent’s offer to waive the overpayment debt that arose against her when the joined party made her past period claim in respect of Laura.  She did not dispute the respondent’s apportionment from June 2002 to 6 November 2002 but “[B]efore June of 2002, I think it is really unfair at a later date that all of this has been thrown at me because before that, there was no agreement in place.  The visits were really irregular and inconsistent and it was more like on a – it was more – I went on a cue from Laura, if she went over but it was never, ever regular.”  At a later stage in her evidence she said:

“The problem I have, those 48 days and those two financial years I want taken right out of this.  I don’t think that the joined party should be awarded financially for having my daughter every second weekend when she was not over there every second weekend and there was no pattern of care and there was no legal document, there was an informal agreement, between myself and herself – yes.”

13.     In answer to a question from Mr Holt as to how many times a changeover occurred at McDonalds in the financial year 1 July 2000 to 30 June 2001, the applicant replied: “Yes, I don’t know actually.  It would not have been anymore than about five or six times anyway.”  When asked about the Whitfords Shopping Centre she replied:

“It was in around about – about six or eight times.  It was not more than about eight times”.

She was then asked to estimate how many weekends Laura had spent with her father in that financial year and she replied: “I would say probably about four or five give or take, yes”. She was then asked what would happen if the weekend was a long weekend.  She replied that Laura would still return on the Sunday, a public holiday on the Monday was irrelevant.

14.     T35 includes a handwritten document prepared for the Child Support Agency by the joined party on behalf of Mr Gerard Salinger.  It is addressed to “Michelle Team 4” and lists the days from July 2000 to June 2001 when Mr Salinger says he had the care of Laura.  T35 includes a copy of a calendar for 2002 with certain days blacked out.  The material parts of the list read as follows:

“July 7^th -16^th  8 days

August____  2 drop to school

Sept 30^th          }  2 days

Oct – 10^th        }  9 days

Nov 9^th-13^th  5 days – Busselton holiday. Doesn’t agree.

Dec 24^th -31^st  10 (8 + 2 extra at weekend)

Jan 14^th -23^rd  10 + 2 nights extra week)

Feb ________  

March______  didn’t see at all in March  - Mother wouldn’t let her come

April 2^nd  1 }  9 days  }  Laura’s mum was working

April 16^th - 26^th  8 }total     }  and had no one to mind her.

May 6^th + 27^th  2 days

June (not yet here)              +every second weekend

57 nights109 nights”

Mr Holt asked the applicant whether she agreed with the 5 days in relation to the holiday in Busselton and she said it was actually 4 days.  In relation to July she said “it was more in around the 5, 6 days.”  There has been a couple of days added on really everywhere throughout all this to be honest with you.”  In relation to April she said: “There was never a time where I had to call on (the joined party) for baby-sitting services…so that is what I am saying that 9 days is another exaggeration.”       

15.     In relation to the period 1 July 2001 to 30 June 2002 Mr Holt referred the applicant to another part of T35 which is a declaration by Karl Milner (a brother-in-law of the joined party) that while he was on vacation in Perth from 10 December 2001 to 9 January 2002 he saw Laura at the Salinger home from 14 December 2001 to 16 December 2001 and from 21 December 2001 to 3 January 2002.  The applicant was also referred to a declaration of the joined party’s mother at T35 (folio 113) to the same effect.  The applicant confirmed the content of the declarations.  The applicant also testified that Laura spent 9 to 10 days of every school holiday with her father and when asked for an estimate of how many weekends Laura spent at the joined party’s home from July 2001 to 6 November 2002 she replied: “I would say probably about 15, I would say.”    

16.     The applicant was then questioned about the agreement of 29 April 2003 already referred to at paragraph 9 of these reasons.  The applicant denied that the contact regime was based on previous arrangements regarding Laura and reiterated that she simply agreed to what was presented to her by Laura’s father.  She denied that there was any agreement between her and the joined party in relation to Laura during the assessment period.  She said it was left to Laura and the changeover arrangements at McDonalds and Whitfords came about as a matter of fairness.    The applicant could never recall Laura ever spending time at her father’s on a school night.

17.     The joined party testified that contact between Laura and her father had been regular since about mid 1999 when he and the applicant had informally agreed that he would have her every second weekend and during school holidays.  The informal agreement worked well until Gerard Salinger provided the Child Support Agency (‘CSA’) with the list in T35 (referred to in paragraph 13 of these reasons) with the purpose of showing that he had 30% of the care of Laura, a fact that would have reduced his obligation to the applicant for child support.  The applicant disputed the list then as she did at the hearing.  The negotiations with the CSA were conducted by the joined party on behalf of Gerard Salinger.  She told the CSA that she was not prepared to take Laura to the police station every time she was in her care to document that fact and eventually the CSA informed her that the applicant had agreed to 85 days care or 23%.  Gerard Salinger then “called it a day” in his quest for a reduction in child support.

18.     The joined party then testified that when she queried with CSA how it was that she was caring for Laura but was not entitled to any benefits, CSA advised her to apply for FTB which operated on a 10%, rather than a 30%, threshold.  It was on the basis of this advice that she lodged her past period claim for FTB in respect of Laura on 23 August 2001 (T8) – see paragraph 4 of these reasons.  This claim was lodged on the basis of 85 days or 23% care and not on the basis of 109 days advised in the list in T35 because CSA had advised her the applicant had agreed to 85 days.  The joined party then testified to a regular pattern of care every second weekend and to the fact that she collected Laura from school or from McDonalds.  The only exceptions were if Laura had a birthday party or if she was ill, in which case she would postpone her visit to the following week.  Either Laura or her father would make phone contact to arrange the weekend visit.  The changeover arrangement was changed from McDonalds in Dianella to Whitfords Shopping Centre in 2001 at the behest of the joined party because she was finding it difficult to collect Laura in Dianella, return home and be at work by 5pm on Friday.  The applicant agreed to drive Laura to Whitfords, which is close to the joined party’s home, and in return Laura’s father took her all the way home on Sunday evening.  Laura tended to stay with the joined party for more than half of her school holidays, generally a week to 10 days.        

19.     The joined party testified that Laura invariably spent Christmas with her staying until the New Year.  Easter, she said, was variable.

20.     The evidence of the applicant and the joined party establishes, and the Tribunal finds, that the applicant was, for all practical purposes, responsible for the maintenance and care of Laura Salinger until her father started paying child support in October 1997.  Contact between Laura and her father was at most sporadic until 1999 when it became more regular.  Indeed matters had improved to the point where the applicant and Laura’s father had an informal ‘changeover’ arrangement for collecting Laura from, and returning her to, the care of the applicant on those occasions when she visited her father.  Laura has a good relationship with her father and the joined party and the applicant told the Tribunal that she had never at any point prevented Laura from spending time with her father.  Laura’s parents agreed to a contact regime on 29 April 2003 that allocates approximately 25% of Laura’s care to her father and the joined party and the applicant did not dispute the joined party’s 23% care from 1 July 2002 to 6 November 2002.  There was no formal arrangement regarding Laura’s care during the assessment period.

21. In her submissions to the Tribunal the applicant contended that the joined party had 10% of Laura’s care from 1 July 2000 to 30 June 2002. The applicant, through no fault of her own, had no records of when Laura was in her father’s care during the assessment period and not surprisingly, had no definite recollection of all, or some, of those occasions. The applicant’s bare estimates of the joined party’s percentage care of Laura indicate a low level of contact with her father during the assessment period, that is inconsistent with the Tribunal’s findings at paragraph 19. On the evidence that was available to the Tribunal, it finds, on the balance of the probabilities, that the correct shared care percentages of the applicant and the joined party for Laura during the assessment period are those determined by the respondent, namely 77% and 23% respectively. So the Tribunal finds, for the purpose of s 59 of the Act, that the applicant had 77% care of Laura Salinger during the assessment period and the joined party, 23% of her care for that period and that the applicant’s and the joined party’s FTB entitlements for Laura for the assessment period be calculated on that basis.

22.     The Tribunal affirms the decision of the SSAT made in this matter on 11 June 2003.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor G Barton, Member

Signed:         ..................(sgd V Wong)....................................
  Associate

Date/s of Hearing  28 April 2004 
Date of Decision  18 August 2004
Counsel for the Applicant          In person
Counsel for the Respondent     Mr A Holt
Solicitor for the Respondent      Service Recovery Team, Centrelink
Counsel for the Joined Party     In person