Feeney and Secretary, Department of Family and Community Services and Anor
[2005] AATA 818
•25 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 818
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/527
GENERAL ADMINISTRATIVE DIVISION ) Re LUKE FEENEY Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
1st Respondent
And
KYLIE FITZSIMMONS
2nd Respondent
DECISION
Tribunal Mr S. Webb, Member Date25 August 2005
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that Mr Feeney is eligible for 22 percent of FTB and Ms Fitzsimmons is eligible for 78 percent of FTB in relation to their children Luke and Samantha during relevant periods from 4 September 2002.
The matter is remitted to the first Respondent to calculate the amount of FTB that is payable to Mr Feeney and the amount of FTB Ms Fitzsimmons was overpaid, and any debt therefor, in accordance with these reasons...............................................
Mr S. Webb, Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2004/527
GENERAL ADMINISTRATIVE DIVISION )Re:LUKE FEENEY
Applicant
And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
1st Respondent
And:KYLIE FITZSIMMONS
2ndRespondent
DIRECTION [2005] AATA 818
TribunalMr S Webb, Member
Date9 September 2005
PlaceCanberra
The Tribunal directs the Registrar, pursuant to sub-s.43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application :
1. under the heading Catchwords delete the words ‘decision under review affirmed’ and insert in lieu the words ‘decision under review set aside’.
................................................................... Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – children of divorced parents – pattern of care over a period – 10 percent threshold – onus of persuasion – overpayment debt - decision under review affirmed.
Administrative Appeals Tribunal Act 1975 ss 27, 31
A New Tax System (Family Assistance) Act 1999 ss 21, 22, 25, 59
A New Tax System (Family Assistance) (Administration) Act 1999 s 71
Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533
Re Nowicz and Secretary, Department of Family and Community Services (2001) 33 AAR 337
Wade v Secretary, Department of Family and Community Services [2004] FCA 1660
Elliott v Secretary, Department of Social Security and Another (1995) 134 ALR 439
Secretary, Department of Social Security v Field (1989) 18 ALD 5
Re May and Secretary, Department of Family and Community Services and Anor [2003] AATA 1201
Re Munn and Secretary, Department of Family and Community Services [2000] AATA 141
Re Plowright and Secretary, Department of Family and Community Services [2000] AATA 840
REASONS FOR DECISION
25 August 2005 Mr S. Webb, Member 1. By this application Luke Feeney (“the Applicant”) is seeking review of a Social Security Appeals Tribunal (“SSAT”) decision dated 29 March 2004, whereby his percentage of Family Tax Benefit (“FTB”) in respect of his children Luke and Samantha was reduced to zero from 4 September 2002 (L2 and K2).
2. Mr Feeney was not a party to the SSAT review. He did not respond to letters sent to him by the SSAT, dated 23 December 2003 and 27 February 2004, concerning his right to apply to be joined as a party in the proceedings brought before that Tribunal by Kylie Fitzsimmons (nee Mason). He did not decline an offer of joinder as purported by the SSAT in paragraph 7 of its reasons for decision. The SSAT decided the matter in the absence of any representations or testimony from Mr Feeney.
3. I am satisfied that Mr Feeney is a person whose interests are affected by that decision pursuant to subs 31(1) of the Administrative Appeals Tribunal Act 1975, who is entitled to apply to this Tribunal for review pursuant to subs 27(1) of that Act.
4. The matter came on for hearing before me at Kiama on 14 February 2005. At the hearing Mr Feeney and Ms Fitzsimmons were not legally represented. Mr J. Kenny represented the Secretary, Department of Family and Community Services (“the first Respondent”). The Tribunal had before it documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“L” and “K” documents).
5. At the outset, Mr Feeney made an application for the hearing to be adjourned. The adjournment application was strongly objected to by the Respondents. Mr Feeney stated that he was required to appear before the Family Court forthwith and would not be able, therefore, to attend this Tribunal’s hearing. Mr Feeney provided no good reason why he had failed to inform the Tribunal of this commitment. Noting that costs had been unnecessarily incurred by the Respondents and the Tribunal as a result of Mr Feeney’s failure to communicate his circumstances, the hearing was adjourned in order to permit Mr Feeney to properly present his case. The matter was re-listed for resumption on 13 May 2005 and listing notices were sent to the parties on 16 February 2005. On 6 May 2005 Mr Feeney requested vacation of the resumed hearing as his witnesses were unavailable on the day set down. Having heard the parties in a telephone directions hearing on 10 May 2005, the resumed hearing was vacated and re-listed for resumption on 29 July 2005, and directions were issued in relation to the filing of affidavits and other documents prior to 29 June 2005. Mr Feeney and the first Respondent failed to comply with the Tribunal’s direction and a telephone directions hearing was held on 30 June 2005. The Tribunal issued further directions concerning the filing and serving of evidence by 7 July 2005. Mr Feeney failed to comply with this direction. A further telephone directions hearing was held on 20 July 2005. Mr Feeney claimed ill-health and undertook to file affidavits before 22 July 2005 in accordance with further directions to that effect. He failed to do so, but filed affidavits affirmed by Janet Feeney and Yvonne Feeney at the hearing.
6. The matter resumed on 29 July 2005 in Kiama. Mr Feeney and Ms Fitzsimmons were not legally represented. Ms H. Schuster represented the first Respondent. Mr Feeney, Ms Fitzsimmons, Ms A. Brockley (Mr Feeney’s Centrelink case manager) and Mr A. Mason (Ms Fitzsimmons’ father) gave oral evidence. Documents, including affidavits handed up by Mr Feeney at the commencement of the hearing, were tendered and labelled.
7. It is convenient to note in passing that Mr Feeney was persistent in his interruption of the proceedings and, despite the Tribunal’s warning that it may be detrimental to his case, ultimately departed the hearing prior to the lunch adjournment and did not return thereafter. Prior to his departure Mr Feeney was informed that the matter would proceed in his absence. The Tribunal inquired whether either of the respondent parties required Mr Feeney’s witnesses for cross-examination as affidavits by Yvonne Feeney and Janet Feeney had been tendered and taken into evidence (Exhibits A1 and A2). The Respondents informed the Tribunal that they did not. Ms Fitzsimmons objected strongly to Mr Feeney’s witnesses being called and regard being had to their affidavits in Mr Feeney’s absence. In the circumstances the Tribunal determined that it would not call Mr Feeney’s witnesses to give oral evidence in his absence but would have regard to their sworn affidavits. The Tribunal is bound by the rules of procedural fairness. It is not appropriate for the Tribunal to conduct a case for a party before it, nor is it appropriate for the Tribunal to disregard material tendered to it without hearing from the party who tendered the material when the Tribunal previously stated its intention to have regard to that material (Kunz v Federal Commissioner of Taxation (1996) 41 ALD 533).
8. By his request Mr Feeney was directed to file additional evidence from the New South Wales Police within 21 days of the hearing date, on or before 19 August 2005. He failed to do so.
issues for determination
9. The issues for determination are whether Luke or Samantha were FTB children of Mr Feeney and whether he is eligible for FTB from 4 September 2002. For that purpose it is necessary to determine:
(a)if the children were in the care of Mr Feeney from 4 September 2002;
(b)whether there was a pattern of care for each child over a period;
(c)whether each of the children were in the care of Mr Feeney for at least 10 percent of the period; and
(d)if either of the children is an FTB child of Mr Feeney, Mr Feeney’s percentage of FTB for the child.
10. If Mr Feeney’s FTB percentage for either child is greater than zero, it will be necessary to determine whether there is an FTB overpayment debt for which Ms Fitzsimmons is liable. I note, however, that issues concerning such a debt were not agitated by the parties. Neither of the Respondents addressed that issue in statements of facts and contentions prior to the hearings, nor during the hearings. No submissions were made in relation to the raising or recovery of such a debt.
legislation and legal principles
11. Mr Feeney’s application rises under the A New Tax System (Family Assistance) Act 1999 (“Family Assistance Act”) and the A New Tax System (Family Assistance) (Administration) Act 1999 (“Administration Act”).
12. A person is eligible for FTB if they have at least one FTB child (s21, Family Assistance Act). The meaning of ‘FTB child’ is set out at s22 of that Act. A child may be the FTB child of more than one person if there is a pattern of care over a period and the child is in the care of the claimant for more than 10 percent of the period. As can be seen from subs 22(7), 25(1) and 59(1) the scheme is concerned with a pattern of care over time and not with day to day variations in that care. That approach is consistent with the construction applied by the Tribunal in Re Nowicz and Secretary, Department of Family and Community Services (2001) 33 AAR 337.
13. If the Secretary, or in those shoes this Tribunal, is satisfied that a child is the FTB child of two people (who are not partners), the Secretary may determine the percentage of FTB for each of those people (subs 59(1), Family Assistance Act). The Act does not explain how a person’s FTB percentage is to be worked out. However, in Wade v Secretary, Department of Family and Community Services [2004] FCA 1660 Keifel J discussed steps set out in Departmental guidelines for the purpose of calculating the percentage of a person’s FTB in relation to a child and said at paragraphs 30 and 31:
“30. … It is however clear from the Act that its object is to provide a benefit to the person having the care of the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided by them….
31. The ’pattern of care’ referred to in the guidelines has two aspects, it seems to me. In the first place it reflects the care arrangements agreed between the parties or involves a finding which has regard to the actual care arrangements for the child. It is said that ‘as much as possible’ the pattern of care should be the pattern agreed. The pattern of care is also used as the basis for the calculation of percentage…”
14. If an amount of FTB has been paid to a person who was not entitled to that amount of FTB, the amount overpaid is a debt to the Commonwealth (s 71, Administration Act).
evidence and findings of fact
15. It is convenient to set out the evidence concerning the history of this matter in some detail. The following findings are made on the basis of documentary materials before the Tribunal unless otherwise stated.
16. Mr Feeney and Ms Fitzsimmons (nee Mason) divorced in or about August 2001. Two children issued from their marriage: Luke Alan Feeney, born 30 April 1987 (“Luke”), and Samantha Jayne Feeney, born 6 November 1990 (“Samantha”) (collectively, “the children”).
17. By order of the Family Court of Australia (“the Court”) dated 19 September 2001 (which is not in evidence) Luke and Samantha lived with their father, Mr Feeney. On 28 November 2001 the Court varied that order in terms concerning arrangements for physical contact between Ms Fitzsimmons and the children (L3 and K3). By those orders physical contact was to be supervised by Ms Fitzsimmons’ father, Alan Mason, and contact was to be suspended if she consumed alcohol in breach of Order 4 (L3 folio 14).
18. On 7 June 2002 Mr Feeney informed Centrelink that he was returning the children to their mother as the children wanted to stay in Kiama but he could not find suitable accommodation in that area (K4).
19. On 13 June 2002 Ms Fitzsimmons lodged a claim for FTB in relation to Luke and Samantha (K5), in which she ticked ‘No’ in response to the question “Does this child spend time, for example weekends or school holidays, with someone else (such as their other parent, if you are separated )?” (K5, folio 28). On that day, Ms Fitzsimmons claimed Parenting Payment in respect of Luke and Samantha (K7) and ticked ‘No’ in response to the question “Do you or your partner share the care of this child with another person? e.g. the child stays overnight with the other parent for periods of time?” (K7, folio 45).
20. On 4 September 2002, the Court varied the order dated 19 September 2001 in terms consistent with ‘Short Minutes of Consent Orders’ dated 6 August 2002 (L5 and K8). By order of the Court the children were to live with their mother, Ms Fitzsimmons, and Mr Feeney was to have “defined but not limited physical contact” with the children in the terms set out therein. I note the parenting orders:
“3. That both parties be responsible for making the day to day decisions concerning the care, welfare and development of the children when the children are living with them.
4. That both parties in joint consultation with each other be responsible for making the long term care, welfare and development decisions for the children.
5. That the Applicant Father have defined but not limited physical contact to the children detailed as follows:
a. Each alternate weekend from 5.00pm Friday to 5.00pm Sunday commencing on 21 June 2002.
b. On Christmas day of each year from 2.00pm until 2.00pm Boxing day.
c. Each Father’s day from 9.00am until 5.00 pm.
d. For a period of 4 hours on the children’s birthdays but in the event their birthday falls on a school day then for a period of 2 hours.
e. For a period of 4 hours on the Father’s birthday but in the event his birthday falls on a school day then for a period of 2 hours.
f. For one half of all school holiday periods as agreed.
g. At any other times as agreed between the parties.”
21. Mr Feeney and Ms Fitzsimmons agreed upon the terms and the pattern of care for the children that was established by order of the Court.
22. In the period from 4 September 2002 to 4 April 2003 Ms Fitzsimmons was paid FTB on the basis of 100 percent of the care of Luke and Samantha. Mr Feeney was paid FTB in relation to his child (Skye) by Cherie Phillips, but not in relation to Luke and Samantha in relation to whom he made no claim at that time.
23. On 10 March 2003 Mr Feeney informed Centrelink that he “has custody of” Luke (L8). On 11 March 2003 Mr Feeney lodged a claim for FTB in relation to Luke, stating that Luke had entered his care on 6 March 2003 (L6, folio 27) and made a claim for urgent payment, stating “son moved in and need blankets for his bed” (L34). On 13 March 2003 Centrelink informed Mr Feeney that Ms Fitzsimmons “…denied that [Luke] is residing permanently with [Mr Feeney] and will be returning … in a few days.” (L9, folio 31 and K10, folio 54). On 18 March 2003 Mr Feeney lodged a further claim for urgent payment, stating “got my son” (L35).
24. On 18 March 2003 Centrelink cancelled Ms Fitzsimmons’ FTB payments in respect of Luke from 6 March 2003 (K11, folio 55).
25. On 14 April 2003 Mr Feeney lodged a claim for 26 percent of FTB in relation to Luke and Samantha for the period from 4 September 2002 (L14, folio 51) on the basis of shared care arrangements ordered by the Court (L15). In the FTB claim form Mr Feeney claimed 100 percent FTB in relation to Luke from 6 March 2003 on the basis that Luke was living with him from that date (also see L7, L8, L9, L10, L11 and L12).
26. On 14 April 2003 Centrelink apportioned FTB in respect of Luke and Samantha from 4 September 2002 purportedly on the basis of the Court order, that is, “22% father and 78% mother” (L15, folio 54 and K14, folio 58). Consequently, Centrelink determined to raise and recover FTB overpayment debts against Ms Fitzsimmons in the amounts of $757.14 in relation to Samantha and $244.59 in relation to Luke in the period from 4 September 2002 to 4 April 2003 (L2 and K2).
27. On 30 April 2003 Luke turned 16. Ms Fitzsimmons informed Centrelink that Luke would be claiming Youth Allowance in his own right (K15, folio 59). On 1 May 2003 Mr Feeney returned a ‘Review of Family Tax Benefit for a child turning 16 (2002-2003 financial year)’ form, stating that Luke had claimed Youth Allowance (L17).
28. On 7 May 2003 a Centrelink officer noted an assertion by Ms Fitzsimmons that “…at no time has her ex partner shared the care of [Luke and Samantha]…” (L18 and K16). On 3 June 2003 it appears that Ms Fitzsimmons reiterated her assertion that “…the NCP [Mr Feeney] does not share the care of the chn [Luke and Samantha]…”, and tendered witness statements in support (L19 and K17).
29. On 12 June 2003 Mr Feeney lodged a ‘Claim for Additional Children’ form (L20), claiming that Samantha came into his care on 4 June 2003 (L20 folio 64). He lodged a claim for urgent payment form on the same day, stating “Money for supporting extra child” (L36). On 13 June 2003 Ms Fitzsimmons informed Centrelink that “…[Samantha] was staying with her father on a temporary basis and would be returning to live with her on Thursday afternoon…” (L22 and K18).
30. On or about 16 July 2003 a Centrelink officer noted (K19):
“[Ms Fitzsimmons] – appealing shared care percentages and debt
- copies of statements to support claim
- also wishes to make past period claim for Luke and Samantha for 17% ? shared care from 3/6/2002
- plus 40% care of Luke for last period he returned to father.”
31. On 28 July 2003 Mr Feeney lodged a claim for urgent payment, stating (L37, folio 109):
“I have to feed my kids as I have to look after Sam as her Mum has an alcohol problem and wont [sic] give the pension so I can feed the kids properly.”
On or about 28 July 2003 Mr Feeney lodged a “Claim for Additional Children’ form (L21), in which he claimed that Samantha came into his care on 22 July 2003.
32. On 28 July 2003 a Centrelink officer telephoned Ms Fitzsimmons and noted (L24 and K20):
“[Ms Fitzsimmons] states that – Yes – [Samantha] is with her Dad today, but they have a shared care arrangement and this is the time that she is to spend with her Dad and he is paid accordingly. There has definitely not been any change in the care status.”
33. On or about 15 August 2003 a Centrelink officer, Ms A. Brockley, reconsidered and affirmed the determination in relation to the shared care percentages and Ms Fitzsimmons’ debt (L25 and K22). On 28 August 2003 Ms Brockley recorded the following reasons for her decision (L26 and K24):
“In this case mother [Ms Fitzsimmons] states that father [Mr Feeney] doesn’t take responsibility and use his access appropriately.
Father states he has the children more than his shared care arrangements [by court order] and mother changes her mind frequently about his access, changing dates and times at short notice to suit herself.
Father has since lodged applications for payment of PPS stating child, Samantha, has entered his care because mother has kicked her out or police have brought her over for her own safety.
In these instances mother insists daughter is just visiting father in line with his shared care responsibilities.
Parents are not able to agree on custody arrangements for children.
For this reason I determined that the best option was to implement shared care in line with court order.
…”
34. Ms Fitzsimmons requested a review of Ms Brockley’s decision by an Authorised Review Officer (“ARO”) and tendered statutory declarations by Alan Mason, Luke and Samantha (K29, K30 and K31, respectively). The statements of the children reiterate precisely the claims of their mother and must be treated with caution. Mr Mason stated:
“… I know positively that the father of the children (Luke Feeney of Minnamurra) has not in the last twelve months exercised his right of access to the children, on every second weekend, or during the school holidays.”
35. On or about 18 November 2003 the ARO decided to affirm the decision (L27, K27 and K33, folio 80). Ms Fitzsimmons sought review of that decision by the SSAT.
36. On 29 March 2004 the SSAT conducted a hearing attended by Ms Fitzsimmons, her father and her brother and finalised the matter without adding Mr Feeney as a party. He was not present at the hearing and he was not asked to give evidence. In the absence of “first-hand evidence” from Mr Feeney, the SSAT decided that it was “…unable to place any weight on [Mr Feeney’s] version of events as recorded by Centrelink.” and decided (L2):
“… to set aside the decision and send the matter back to the Chief Executive Officer of Centrelink for reconsideration in accordance with directions that (1) Ms Fitzsimmons is eligible to be paid 100% Family Tax Benefit in relation to Samantha and Luke in respect to the period 4 September 2002 to 4 April 2003 and (2) 100% in respect to Samantha from 4 April 2003 and continuing and (3) entitlement for Luke from 4 April 2003 to the date of grant of youth allowance be re-assessed on the basis of the claim lodged 16 July 2003. Therefore there is no debt in the period 4 September 2002 to 4 April 2003. Any monies already recovered should be reimbursed. This means the appeal is successful.”
37. On 19 May 2004 Mr Feeney applied for review of the SSAT decision by the Administrative Appeals Tribunal (“Tribunal”) (L1) and applied for a stay of the SSAT decision. That matter was heard by the Tribunal on 13 August 2004. Mr Feeney failed to attend the stay hearing and the matter was dismissed. On 26 August 2004 Mr Feeney applied to have the matter reinstated. Ms Fitzsimmons objected to reinstatement of the application. On 1 October 2004 the application for reinstatement was heard. Ms Fitzsimmons failed to attend that hearing. The Tribunal reinstated the application.
38. Neither Mr Feeney nor Ms Fitzsimmons were able to assist the Tribunal with diaries or similar records concerning their respective care of the children since 4 September 2002. Assertions by Mr Feeney and Ms Fitzsimmons concerning the actual care of the children were hotly contested. It is convenient to summarise that evidence.
mr feeney
39. Mr Feeney gave evidence that he had care of the children “sporadically” and that during contact weekends Samantha would commonly stay at a friend’s house in Minnamurra. He stated that this occurred seven or eight times per year and, even though he was party to the arrangement, he was not happy with it. In relation to Luke he stated that it was “…up to Luke whether he came to visit”. He stated that Luke stayed at his house when he chose. Mr Feeney’s evidence was that Samantha is currently on a “pension”, having moved out of her mother’s house some time ago. Mr Feeney was not able to inform the Tribunal when Samantha’s care arrangements had changed or when she had ceased living with Ms Fitzsimmons.
40. Mr Feeney tendered a letter from the Child Support Agency, dated 17 May 2005 (Exhibit A3), which stated that he is not required to pay child support for Samantha from 31 March 2005 “…because the amount of time the other party [Ms Fitzsimmons] cares for Samantha is not enough to receive child support.”. At that date Samantha’s age was approximately 15 years and 4 months.
41. Mr Feeney claimed that Ms Fitzsimmons had a problem with drinking alcohol and that Samantha “…didn’t like it”. He asserted that the Police had been involved on numerous (at least 56) occasions and had removed the children from Ms Fitzsimmons. Mr Feeney was given 21 days from the date of the hearing to obtain records from the Police to support his claims. He failed to do so.
42. Mr Feeney stated repeatedly that what he wanted was FTB percentages on the basis of the Family Court order, contending that the children spent more than 22 percent of the time in his care since September 2002 and that Luke was 100 percent in his care from 6 March 2003 until the date he obtained a Youth Allowance in April 2003.
43. When cross examined in relation to the care arrangements for the children Mr Feeney conceded that “sometimes” he refused to take telephone calls from the children, but he “mostly tried to facilitate the kids”.
alison brockley
44. Alison Brockley gave evidence concerning Mr Feeney’s claims for FTB in relation to the children. Her evidence was that on two occasions Mr Feeney had attended Centrelink with Luke and Samantha to claim FTB and on one occasion he had attended with Samantha to claim FTB. She could not recall the dates. Ms Brockley stated that she understood that Mr Feeney had an FTB overpayment debt as a result of the SSAT decision. She stated that the debt had been waived but may be reinstated depending on the outcome of the Tribunal review.
45. I pause to note that the material before the Tribunal in relation to the stay proceedings in this matter indicates that debts in the amounts of $895.02 for the period 4 September 2002 to 30 June 2003 and $782.60 for the period 1 July 2003 to 26 April 2004 were raised against Mr Feeney in consequence of the SSAT decision. It appears that those debts have not been waived but have been written off pending the outcome of these proceedings. I also note that in consequence of the SSAT decision Ms Fitzsimmons was paid arrears in the amount of $2,467.33.
ms fitzsimmons
46. Ms Fitzsimmons gave evidence that she has cared for the children since June 2002 when their living arrangements were changed at Mr Feeney’s request. She stated that she was happy with the terms of the Court order and that Mr Feeney could have had more access to the children at any time if he wanted.
47. Ms Fitzsimmons stated that her father, Mr Mason, would transport the children to Mr Feeney’s house for contact visits, or would deliver them to the railway station so that they could travel by train to Minnamurra for that purpose. Her evidence was that the children would try to ring Mr Feeney on or about Wednesday and arrange contact visits.
48. Ms Fitzsimmons told the Tribunal that she did not keep a diary of actual care arrangements prior to 2004. She tendered a pocket calendar for 2004 (Exhibit R3) on which six dates were circled, purportedly being dates on which Samantha was in Mr Feeney’s care. I note that the pocket calendar is torn and substantial parts of March and December are missing. Ms Fitzsimmons’ evidence was that Mr Feeney saw the children on “six to eight days in any given year”. She asserted that he had:
(a)no contact with the children from 4 September 2002 to March 2003;
(b)60 percent contact with Luke for two weeks before Luke turned 16 and moved in with his grandfather Mr Mason in 2003;
(c)contact with Samantha on two or three nights and three days in 2004 on the dates circled in Exhibit R3 and not otherwise;
(d)never taken the children during school holidays;
(e)never been involved with parent teacher meetings or other school activities, including counselling, in relation to either child.
49. Ms Fitzsimmons was cross-examined in relation to alcohol. She conceded that she had a problem in 2001 and the Police were involved at that time.
50. Ms Fitzsimmons gave evidence that Samantha was diagnosed with behavioural problems and that she, Ms Fitzsimmons, had applied for an anti-violence order against her daughter in January 2004 which remained in force. She asserted that that order did not prevent Samantha from residing with her, but did restrain her from harassing or intimidating Ms Fitzsimmons. She informed the Tribunal that Samantha is presently under a two year bond following previous difficulties in relation to a prior order. Ms Fitzsimmons conceded that the Police were involved “a lot”, possibly on up to 56 occasions, but on each of those occasions she, Ms Fitzsimmons, had called them for assistance. She gave evidence that Samantha had moved out of her house “a couple of months ago”, but was unable to recall precisely when that had occurred. She asserted, nonetheless, that Samantha was 100 percent in her care prior to that time.
51. Ms Fitzsimmons stated that she did not experience similar problems with Luke, even though Luke has not lived in her house since leaving in 2003. At the hearing Ms Fitzsimmons tendered Penalty Notice Enforcement Orders and payment receipts from 2004 (Exhibit R2) and Penalty Reminder Notices and payment receipts from 2005 (Exhibit R1) in relation to Luke.
mr mason
52. Mr Mason gave evidence that Mr Feeney would pick up the children from his house for contact visits, even though such visits seldom happened. He reiterated the contents of his written statement (K29), to the effect that Mr Feeney did not have care of the children on every second weekend or during school holidays. Mr Mason’s evidence was:
(a)Mr Feeney “seldom” came to collect the children from Mr Mason’s house, but when he did so they would go with him;
(b)there were occasions, “not all that often”, when Mr Feeney would “not turn up”, about “once every four or five weeks”, although the children would usually know by Wednesday;
(c)Mr Feeney picked up the children from his, Mr Mason’s, house “three or four times” from September 2002 to March 2003, taking them once on Christmas Day when they stayed overnight;
(d)If the children were to travel by train to Mr Feeney’s house they would not go to Mr Mason’s house first, but he would take them to the station as Ms Fitzsimmons did not drive. He said this occurred to the best of his knowledge “once or twice”.
53. Ms Fitzsimmons led the following evidence from Mr Mason:
(a)The children were with Mr Feeney on six days between September 2002 and March 2003;
(b)Mr Mason would see the children daily;
(c)Mr Feeney’s parents would see the children on only 4 days per year or so;
(d)Mr Mason gave financial assistance to bring up the children and paid for holidays;
(e)Following the change in residential arrangements from Mr Feeney to Ms Fitzsimmons the children absconded and came to Mr Mason;
(f)Mr Mason had never known Mr Feeney to attend either of the children’s schools, or related counselling, or to buy clothes for the children;
(g)Mr Feeney was not paying for Samantha’s legal representation, she was receiving legal aid.
yvonne and janet feeney
54. Mr Feeney left the hearing prior to his witnesses being called to give evidence. I was informed by the Respondent’s that they did not require either Yvonne Feeney or Janet Feeney for cross examination. Statutory declarations are in evidence from both witnesses (Exhibits A1 and A2, respectively). I note Ms Fitzsimmons’ objections to these affidavits. However, Ms Fitzsimmons was asked whether she wanted to put any questions to Yvonne or Janet Feeney in relation to the content of their statements, and she informed the Tribunal that she did not. That being so, and with due regard to the rules of procedural fairness and natural justice, I will proceed to have regard to those statements and will determine the weight they should be given in relation to other evidence that has been given or tendered.
55. On 28 July 2005 Mr Feeney’s sister, Yvonne Feeney, made a statutory declaration that Mr Feeney tendered at the hearing (Exhibit A1):
“… I am a witness to the continual problems my brother and my nieces and nephew’s had with their mother. Time and time again my brother had to pick up Samantha and Luke from their home in the middle of the night as their mother had thrown them out of the house. Various time’s it would be the Police calling to let us know that the kids were at the Police station … My niece and nephew were practically living with my brother all the time not only did he have them weekend he had them week after week and if they were not with Luke they stayed at my sisters and with me. I can honestly say without a doubt that those children stayed at Luke’s or my sisters more times than they stayed at home…”
56. On 28 July 2005 Mr Feeney’s mother, Janet Feeney, made a statutory declaration that Mr Feeney tendered at the hearing (Exhibit A2):
“I know for a fact that Luke and Samantha stayed with their father more times than what Kylie Mason has stated because I was aware of all the time’s [sic] he needed to get emergency accommodation…”
cherie phillips
57. Mr Feeney is the father of a daughter, Skye, by Cherie Phillips. During relevant periods he received FTB in relation to Skye. On 1 October 2004 Ms Phillips stated (L38):
“[Mr Feeney] has had ongoing contact with his daughter Samantha Feeney over the past couple of years and I would best describe this contact as shared care, as Mr Feeney supports his children (both) financially as well as Sam spending a lot of time staying in Mr Feeney’s care due to severe breakdown in her home environment. I don’t recall specific dates as it is constant contact. I know this because Mr Feeney is also sole parent of my youngest daughter Skye Feeney and I spend most of my time with them.”
58. Considering the foregoing it is apparent that caution must be exercised in relation to the evidence of the conflicted parties and their respective family members. There is no evidence from truly independent persons to corroborate the claims of either Mr Feeney or Ms Fitzsimmons.
submissions and consideration
59. In making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.
60. For reasons that will appear, I am satisfied and find that Luke and Samantha were FTB children of Mr Feeney and Ms Fitzsimmons from 4 September 2002.
61. Mr Feeney and Ms Fitzsimmons agreed upon the terms of parenting orders of the Court, whereby the children would live with their mother and would have regular physical contact with their father at least in the terms defined. I find that the parenting order of the Court on 4 September 2002 established a pattern of care for each of the children.
62. The Act is concerned with ‘a pattern of care over a period’. The relevant periods in which the pattern of care must be assessed are different for Luke and for Samantha. Luke claimed Youth Allowance on and after his 16th birthday on 30 April 2003. The relevant period for Luke is from 4 September 2002 to 30 April 2003.
63. Samantha’s FTB circumstances changed when she left the care of her mother and was purportedly granted a social security allowance in her own right. The date of the change in Samantha’s circumstances is not in evidence. Surprisingly, neither Ms Fitzsimmons, Mr Feeney nor Ms Schuster was able to assist the Tribunal in that regard. That neither Ms Fitzsimmons nor Mr Feeney could say when their daughter changed her circumstances is relevant. Ms Fitzsimmons claimed that Samantha was 100 percent in her care but was not able to inform the Tribunal of the date or month when that arrangement ceased and her daughter left home. It is difficult to comprehend how a parent can claim 100 percent care of a child when she is unable to say when the child left her care. The fact that Mr Feeney was also unable to say when his daughter left the care of her mother is indicative of his knowledge of arrangements for Samantha’s care at that time.
64. However, I note the letter tendered by Mr Feeney from the Child Support Agency (Exhibit A3) indicates that Ms Fitzsimmons’ level of care of Samantha was insufficient to warrant child support payments by Mr Feeney from 31 March 2005. In all likelihood Samantha’s FTB circumstances changed on or about that date and it will suffice for present purposes in relation to the relevant period. That said, it will be necessary for the first Respondent to consult Centrelink records to determine whether Samantha was granted a social security pension or benefit and, if so, the applicable date.
65. There is no evidence that either Mr Feeney or Ms Fitzsimmons sought a change in the Court order during either of the relevant periods in relation to Luke or Samantha. I am reasonably satisfied, therefore, that the Court order and the pattern of care it established in relation to both children remained in force during all relevant periods and so find.
66. Consistent with the concept of joint parental responsibility in relation to children I am satisfied that Ms Fitzsimmons had legal responsibility for the care, well-being and development of the children for the periods of time that they were in her care and that Mr Feeney had legal responsibility for the care, well-being and development of the children for the periods of time that they were in his care (see Elliott v Secretary, Department of Social Security and Another (1995) 134 ALR 439 at 444; Secretary, Department of Social Security v Field (1989) 18 ALD 5 at 8).
67. In this case, Mr Feeney and Ms Fitzsimmons are in conflict over the actual day to day care of the children and their respective FTB percentage amounts. I am reasonably satisfied that the terms of the parenting order were varied on a day to day basis. Those fluctuations in the day to day care of the children do not, however, disturb the pattern of care established by order of the Court and do not necessarily extinguish Mr Feeney’s claim for FTB, but may go to the amount of FTB that is payable (Re Nowicz and Secretary, Department of Family and Community Services (supra); Re May and Secretary, Department of Family and Community Services and Anor [2003] AATA 1201).
68. For reasons that will appear, I am persuaded to find that Luke and Samantha were not 100 percent in the care of Ms Fitzsimmons during the relevant period from 4 September 2002 to 30 April (in relation to Luke) and from 4 September 2002 to approximately 31 March 2005 (in relation to Samantha). I find, on the balance of probabilities that the children were in the care of Mr Feeney for at least 10 percent of those respective periods.
69. While Mr Feeney conceded that his contact was “sporadic”, considering the whole of the evidence it appears more likely than not that he had care of his children on some weekends and at other times during the week. I accept that the care arrangements were varied by the children choosing where they wanted to be and when, and in response to circumstance, including crises involving Ms Fitzsimmons, as well as by Mr Feeney’s own behaviour. I do not accept Ms Fitzsimmons’ assertion that Mr Feeney’s contact with the children was limited to five or six times per year. Even though she relied upon Mr Mason’s corroboration, that assertion is not supported by the weight of the evidence.
70. With due respect to Mr Mason, inconsistencies in his evidence render it unreliable. His recollection that Mr Feeney “seldom” collected the children and that Mr Feeney picked the children up from Mr Mason’s house only “three or four times” in the period to March 2003 must be considered in relation to his recollection that Mr Feeney failed to “turn up” to collect the children “every four or five weeks”. Even though Mr Mason lives in close proximity to Ms Fitzsimmons, I do not accept that he had knowledge of all physical contact and care between Mr Feeney and one or both children at all relevant times. Nor do I accept that he had knowledge of each time one or both children travelled to Mr Feeney’s house in Minnamurra by train.
71. Mr Mason gave evidence that the children had “never” been delivered to his house by the Police and he had been contacted by Police to collect the children from the Police station as a result of Ms Fitzsimmons’ intoxication only “once”. When questioned on this point Mr Mason stated that he did not know of all the times when Police attended Ms Fitzsimmons’ house and that the Police would only contact him to collect the children if requested to do so by one of the children. Ms Fitzsimmons conceded that the Police may have attended her residence on possibly 56 occasions, she could not be sure, in response to her request for assistance in relation to Samantha. It is difficult to comprehend how a person in Mr Mason’s position, claiming to be aware of the movements of the children in relation to their father, was apparently not aware of the number or frequency of Police attendances on her house or the whereabouts of the children immediately thereafter.
72. The evidence is clear enough that Ms Fitzsimmons has had problems with alcohol in the past. Those problems were sufficient for the Court to order her restraint from consumption of alcohol during physical contact visits with her children prior to September 2002. In that context Mr Feeney’s assertions that alcohol was a factor in Ms Fitzsimmons’ difficulties with Samantha and in the Police attendances on her home cannot easily be dispelled by uncorroborated denial. In any event, the evidence that Ms Fitzsimmons experienced problems in her relationship with Samantha is clear. Yvonne Feeney stated that she witnessed “continual problems” between the children and their mother and Ms Phillips reported “…severe breakdown in [Samantha’s] home environment.” (L38). I accept that evidence. Ms Fitzsimmons attributed those difficulties to Samantha’s behavioural problems.
73. Nonetheless, in those circumstances and at those times did Mr Feeney actually care for one or both of the children? I am satisfied that he did. Yvonne Feeney stated that Mr Feeney was called upon “time and time again” to collect the children at night from Ms Fitzsimmons’ house or from a Police station following difficulties between Ms Fitzsimmons and one or both of the children. Ms Phillips stated that the problems in Samantha’s home environment with Ms Fitzsimmons caused Samantha to spend “…a lot of time…” in Mr Feeney’s care “…over the past couple of years…”. Mr Mason’s evidence did not shed light on these matters, other than that he stated that the children did not come into his care at those times.
74. Considering the foregoing I am persuaded to conclude that the children did come into the care of Mr Feeney with the assistance of his sisters in those times of crisis. It is not possible, however, to determine with any accuracy the dates or number of days when one or both children came into Mr Feeney’s care in this way.
75. The relevant period in relation to Luke is from 4 September 2002 to 30 April 2003: 239 days. I find that Luke left his mother’s primary care and was in all likelihood in Mr Feeney’s care from 6 March to 30 April 2003. Ms Fitzsimmons disputed the period and submitted that Luke was 40 percent in her care at this time. Even if I accept that submission, which I do not (the weight of the contemporaneous Centrelink records do not support it), it would follow that Luke spent at least 33 days in Mr Feeney’s care in March and April 2003. That alone is more than the 10 percent threshold required for the purposes of subs 25(1) of the Family Assistance Act. Even so, I am reasonably satisfied that it is more probable than not that Luke was in Mr Feeney’s care on other occasions on weekends or during the week over the relevant period and, overall, spent significantly more than 10 percent of the period in Mr Feeney’s care. However, there is insufficient reliable evidence to determine the days or hours or the overall percentage of Luke’s actual care provided by Mr Feeney with any accuracy to the requisite standard of proof.
76. The relevant period in relation to Samantha is from 4 September 2002 to 31 March 2005 or thereabouts. I find that Samantha left Ms Fitzsimmons’ care and was in the care of Mr Feeney for periods in June and July 2003 and on numerous other occasions, consequent upon crises involving Ms Fitzsimmons from time to time. While I accept the evidence that Mr Feeney was not closely involved in the school lives of his children, that alone does not point to an absence of regular care of the children on his part. I accept that the actual amount of his care for the children fluctuated on a day to day basis around the pattern of care that was established by order of the Family Court. However, I am reasonably satisfied, on the balance of probabilities, that Samantha was in the care of Mr Feeney for at least 10 percent the relevant parts of the 2002-2003, 2003-2004 and 2004-2005 FTB years.
77. While I am unable to determine with certainty or precision the dates or amount of days Samantha was in Mr Feeney’s care over those years, I am persuaded by the evidence of Samantha’s difficulties at home with her mother that Samantha spent at least 10 percent of the relevant period in the care of Mr Feeney. In so finding I note the corroborative statements of Yvonne Feeney and Cherie Phillips.
78. I have commented before on the inadequate state of the evidence in relation the precise days or hours of care and the consequent difficulty determining the percentage of actual care in relation to Luke. The same difficulty attends the case of Samantha.
79. Nonetheless, as I have found that the children were in Mr Feeney’s care for at least 10 percent of the relevant periods, Mr Feeney is eligible for a percentage amount of FTB in relation to Luke and Samantha during the relevant periods. It remains to determine the applicable percentage amount.
80. The percentage amounts of FTB apportioned to Ms Fitzsimmons and Mr Feeney should reflect the actual care each provided in relation to Luke and Samantha (Wade V Secretary, Department of Family and Community Services (supra)). However, in this case it is not possible to determine the actual care Ms Fitzsimmons and Mr Feeney each provided for the children, in terms of actual days or hours, with any certainty. That being so, and in the absence of compelling evidence to the contrary, it is appropriate to apportion the FTB percentages on the basis of the Court order.
81. As a matter of policy FTB is intended to assist with the essential costs of caring for children. It is appropriate, therefore, to consider the proportionality of FTB payments on the basis of financial as well as temporal factors (Re Munn and Secretary, Department of Family and Community Services [2000] AATA 141; Re Plowright and Secretary, Department of Family and Community Services [2000] AATA 840). In this case there is evidence that Ms Fitzsimmons paid fines incurred by Luke in 2004 and 2005 (Exhibits R1 and R2). However, those fines and payments occurred after the relevant period for Luke, who was in receipt of a Youth Allowance at those times. Mr Feeney tendered an invoice from Hilton King Solicitors (Exhibit A4). However, that document on its face is not evidence that he paid for legal representation for Samantha, who it seems was granted Legal Aid. There is no compelling evidence that the cost to Ms Fitzsimmons or Mr Feeney of caring for the children was disproportionate to the amount of time the children spent in their respective care.
82. The actual care arrangements for each of the children are hotly contested by Mr Feeney and Ms Fitzsimmons. There is scant reliable evidence from independent witnesses concerning the care of the children. The Tribunal must do its best with the material before it.
83. The history of disputation in these proceedings is concerned with Ms Fitzsimmons challenge to Centrelink’s determination of the FTB percentages on the basis of the Court order. The SSAT set aside that decision without any representations or testimony from Mr Feeney. I am reasonably satisfied on the evidence before this Tribunal that a pattern of care existed at all relevant times and that Mr Feeney had care of each of the children for at least 10 percent of the relevant periods. However, there is insufficient evidence to determine with any accuracy or certainty the actual amount of his care over those periods. I am not persuaded by Ms Fitzsimmons’ assertions to conclude that it would be inappropriate to determine the respective FTB percentage amounts on the basis of the Court order.
84. That being so, pursuant to subs 59(1) of the Family Assistance Act I find that the percentage of FTB for Ms Fitzsimmons’ and Mr Feeney in relation to each of the children during the relevant periods is to be calculated on the basis of the Court order. It follows that Ms Fitzsimmons’ FTB percentage amount is 78 percent and Mr Feeney’s FTB percentage amount is 22 percent. I so find.
85. Unfortunately for Ms Fitzsimmons, this decision means that she has been overpaid FTB during the relevant periods and is liable for a debt to the Commonwealth in the amount of the overpayment pursuant to subs 71(2) of the Administration Act.
86. Issues concerning the amount or recovery of such a debt were not the subject of evidence or submissions at the hearing in this matter. For that reason the matter is remitted to the first Respondent to calculate the amount of FTB that is payable to Mr Feeney and Ms Fitzsimmons, and the amount of Ms Fitzsimmons’ debt to the Commonwealth.
87. The issue of recovery of Ms Fitzsimmons’ debt is not before this Tribunal. I note however in conclusion that this matter has been on foot for a considerable period of time. The length of time has been increased by delays caused by Mr Feeney. Those delays have increased the difficulty of either party obtaining reliable and detailed evidence of the actual care arrangements for the children from 4 September 2002 and have increased the amount of Ms Fitzsimmons’ debt. Finally, I note that Mr Feeney’s failure to respond to the SSAT’s invitation to apply for joinder in those proceedings is not satisfactorily explained. Even so, in matters such as this where there is evidence of ongoing disputation between separated parents concerning the care of children and where the interests of both parents are clearly affected by a decision apportioning FTB percentages, it is in the interest of all parties to ensure that the claims of the disputing parties are fairly considered.
decision
88. The decision under review is set aside and in substitution thereof the Tribunal decides that Mr Feeney is eligible for 22 percent of FTB and Ms Fitzsimmons is eligible for 78 percent of FTB in relation to their children Luke and Samantha during relevant periods from 4 September 2002.
89. The matter is remitted to the first Respondent to calculate the amount of FTB that is payable to Mr Feeney and the amount of FTB Ms Fitzsimmons was overpaid, and any debt therefor, in accordance with these reasons.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .....................................................................................
Associate
Date/s of Hearing 29 July 2005
Date of Decision 25 August 2005
Representative for the Applicant Self
Representative Respondent 1 Hannelore Schuster
Representative Respondent 2 Self
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