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

Fragomeni and Secretary, Department of Social Services (Social services second review) [2019] AATA 746 (23 April 2019)
Division:GENERAL DIVISION
File Number(s): 2017/4927
Re:Shane Fragomeni
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

AndBelinda Hawkins
OTHER PARTY

DECISION
Tribunal:Senior Member B J Illingworth
Date:23 April 2019
Place:Adelaide

The decision under review is affirmed
..............[Sgnd]..........................................................
Senior Member B J Illingworth
CATCHWORDS
FAMILY TAX BENEFIT – shared care - percentages of care – actual care – FTB child – decision affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999
REASONS FOR DECISION
Senior Member B J Illingworth
12 April 2019
INTRODUCTION

Mr Fragomeni (“the Applicant”) has applied to this Tribunal to review a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 20 July 2017 to set aside a decision made by a Centrelink Authorised Review Officer (“ARO”) which entitled him to claim family tax benefit (“FTB”).
The AAT1 decided to set aside the ARO’s decision on the basis that there should be no change to the care percentages used to calculate the rate of FTB payable for the child G on and from 27 September 2007.
BACKGROUND
The Applicant and Belinda Hawkins (“the Other Party”) are the parents of G, who was born in 2001.
During the time that the Applicant and Other Party were partnered, the Other Party received FTB on the basis that she had 100% care of G.
In 2005, the Applicant and the Other Party separated. The Other Party advised Centrelink of this separation on 14 October 2005, however she continued to receive FTB on the basis that she had 100% care of G. The Applicant continued to spend time with G thereafter by informal arrangement.
In 2006, the Other Party was granted an exemption by Centrelink from seeking child support from the Applicant.
On 27 September 2007, the Federal Magistrates Court of Australia made extensive orders regulating the care of G. Those court orders included, amongst other things, that G reside with the Applicant as follows:
(a)each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or the Tuesday should the period fall on a long weekend;
(b)each Wednesday from the conclusion of school until the commencement of school the next day;
(c)for up to 4 weeks during G’s school holiday periods at times to be agreed but in any event for a seven-day period in each Christmas school holiday to coincide with the Applicant’s employer’s Christmas business closure.
The effect of those court orders was that the Applicant would have 43% care of G, and the Other Party would have 57%. Despite this, the Other Party continued to receive FTB on the basis that she had 100% care of G.
On 15 February 2017, the Applicant notified Centrelink that there had been a change to G’s care arrangements, and provided them with a copy of the court orders. Those orders then formed the basis of Centrelink’s decision to vary the care percentage for FTB purposes from 27 September 2007 to the percentage stipulated by the court orders. This resulted in the Other Party incurring a debt for overpayment of FTB.
The Other Party applied for internal review of that decision on the basis that the Applicant had less than 35% care of G in any given year. On 16 March 2017, an ARO was unable to contact the Other Party and applied the care determination in accordance with the court orders, affirming the original decision of Centrelink.
The Other Party applied to the AAT1 for review of that decision. On 20 July 2017, the hearing proceeded in the absence of the Applicant and on the evidence provided by the Other Party. On the same day, the AAT1 decided:
“The Tribunal prefers the evidence provided by Ms Hawkins. It finds that there was a change in the care pattern for [G] following the orders made on 27 September 2007. However in any given year [G] has not been in Mr Fragomeni’s overnight care for any more than 33% of the nights. As Mr Fragomeni did not have a shared care percentage of at least 35% he does not have an FTB child. The tribunal finds that the previous care percentage, 100% for Ms Hawkins, should not be revoked.”[1]
[1] Exhibit 1, T Documents, pages 6 – 9.
The Applicant applied to the second tier of the Tribunal for review of the AAT1 decision on 18 August 2017.
The hearing was conducted on 5 November 2018. The Tribunal spoke to the Applicant by telephone, the Other Party appeared in person, and Mr Christian Visser from the Department of Human Services appeared in person on behalf of the Respondent.
ISSUES
The issue for the Tribunal in this case is to determine the following:
(a)If there was a change in care in relation to G on and from 27 September 2007; and if so
(b)What percentage of care did the Applicant and Other Party have in relation to G on and from 27 September 2017; and
(c)If the care percentage is varied, from what date can it take effect.
LEGISLATIVE FRAMEWORK
The legislation applicable to this matter is A New Tax System (Family Assistance) Act 1999 (“the Act”).
In relation to FTB generally, a person is eligible for FTB if, amongst other requirements, they have an ‘FTB child’. Section 22 of the Act relevantly provides:
(2)       An individual is an FTB child of the adult if:
(a)       the individual is aged under 16; and
(b)       the individual is in the adult’s care; and
(c)       the individual is an Australian resident … ; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a),(b) or (c).
(3)       An individual is an FTB child of the adult if:
(a)       the individual has turned 16 but is aged under 18; and
(b)       the individual is in the adult’s care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph 5(a), (b) or (c); and
(e)       the individual is a senior secondary school child.
Following, s 22(5) of the Act states:
(5)The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b)under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time with; or
(c) …
Despite this, pursuant to s 25 of the Act, a child is not an FTB child of an individual if that individual’s percentage of care is less than 35% in the care period.
Once it is established that a child is the FTB child of an individual pursuant to ss 22 and 25 of the Act, s 22 must then be read subject to a number of provisions that follow. One such elaboration is provided for at s 23 of the Act. Section 23 provides for circumstances in which the child remains an FTB child of the adult when the child ceases to be in the individual’s care without their consent. It requires, amongst other things, that an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care, and the adult takes reasonable steps to have the child again in the adult’s care.
Section 59 of the Act provides for shared care percentages where an individual is the FTB child of more than one person who are not members of the same couple. Specifically, it provides that a shared care percentage is applicable to an individual who has at least 35% and not more than 65% care of the FTB child. Thereafter, the FTB rate is proportional to the shared care percentage as calculated by s 59(2) of the Act.
The percentage of care for a child may be determined under ss 35A, 35B or 35C of the Act.
Relevant in and determinative of this matter is s 35B of the Act. Section 35B makes provision for what is to happen if there has been, or will be, a pattern of care for a child over a period. In this case, the pattern of care is provided for by the court orders.
Section 35B of the Act relevantly states:
(3)The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.
‘Actual care’ is defined in s 35J of the Act as follows:
(1)The actual care of a child that an individual has had, or will have, during a care period may be worked out on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.
(2)The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.
(3)…
(4)…
Section 35P of the Act provides that a care percentage must be revoked if the actual care of a child does not correspond with the person’s existing care percentage.
THE EVIDENCE
The Tribunal admitted into evidence the T Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
On the morning of the hearing, the Other Party produced four statements,[2] namely:
(a)The unsigned statement of Vanessa Avery dated 4 November 2018;
(b)The unsigned and undated statement of Shane and Paula Anderson;
(c)The unsigned and undated statement of Lorenna Williams; and
(d)The unsigned and undated statement of Ali Stokes de Silva.
[2] Exhibit OP3.
The Applicant was provided the opportunity during the morning adjournment and before the Other Party gave evidence to read and raise any objection in relation to the Tribunal receiving those statements. He did not read them but did not object to the Tribunal receiving them into evidence. They were received.
THE APPLICANT’S EVIDENCE
The Applicant provided copies of extracts of diary calendars[3] which he pre-populated with the letter ‘G’ on each date G was to be in his care. The Applicant did this to ensure that he did not double-book himself on his allocated care day and so he could make appropriate arrangements for school holiday care, including arrangements with his employer. The diary notations did not indicate what occurred during those care arrangements. They represented a snapshot of various dates between 8 July 2011 and 11 July 2015 but were not a complete record.
[3] Exhibit A2.
The Tribunal reviewed the Applicant’s diary extracts which appeared to be consistent with the court orders, with little deviation. When asked to elaborate on his diary records, the Applicant was unable to provide any detail, saying “I know in my head when I had G”. He recalled a family trip to Queensland for one week, however did not know when this occurred. Although the Applicant submitted that the diary extracts provided were sufficient to satisfy the Tribunal of G’s care pattern and that it was all “in his head”, he said that, if needed, he would provide the Tribunal with his full diary records.
The Applicant submitted the following in relation to the care of G:
(a)He would collect G at the conclusion of school every Wednesday and drop her off at the commencement of school the following day and that this occurred every year until he stopped seeing G;
(b)He would collect G at the conclusion of school each alternate Friday and return her at the commencement of school on Monday;
(c)He would have the care of G for one week of each school holiday period; and
(d)He would have the care of G from each Christmas to New Year.
Hence, the Applicant submitted that he had 43% care of G throughout the relevant period.
The Applicant said he “stuck to the order” and that it was the Other Party who was non-compliant with the orders, and that this required him to have his solicitors write to her. However he acknowledged that, while the Other Party had a domestic violence order against him, handovers would occur at a police station, although that did not always happen, and that he would return G to the Other Party if G was ill.
The Applicant was invited to give examples of what he did on occasions when he had the care of G. He said that during the school holidays from 2007 to 2010 he had the care of G for one full week, but that she would often spend time at the paternal grandmother or aunt’s when he could not take leave from work commitments. He maintained that he had the care of G every Wednesday. From 2011 the Applicant self-employed and he had the care of G in accordance with the court orders.
When G was in his care, he said that he “spoilt her rotten” and that they would “go everywhere and do everything” such as to the Beach House, shops, and zoo, albeit not so much in the later years. Easter and Christmas were also shared during that time. The Applicant also said he would drop G off to parties or sleepovers at friends’ houses on about four to six occasions, however most of her friends lived near the Other Party’s residence and so that is where G wanted to spend some time.
The Applicant was referred to the inconsistencies between his evidence and that contained in each of the witness statements provided on behalf of the Other Party. The Applicant did not agree with them insofar as they were inconsistent and maintained that his diary records were an accurate reflection of the care pattern that took place.
In response to questioning from the Respondent, the Applicant reaffirmed that the care arrangements were in accordance with the court orders. He said that his memory was okay, but that since he had gone to his doctor it was not as good as he thought. He acknowledged he suffers from mental health issues, having been diagnosed after he lost his employment.
The Applicant lost his employment due to an injury in or about July or August 2016. The Applicant said that it was after this event that the Other Party started to alienate G from him. The Applicant last saw G on 17 June 2017 and accepts that the Other Party has had 100% care of G since that time. The Applicant has since left messages, however has received no response.
The loss of employment had also caused the Applicant financial difficulty and so it was around this time that, upon the advice of a Member of Parliament, the Applicant made the application for FTB which has further strained his relationship with the Other Party and G.
THE OTHER PARTY’S EVIDENCE
The Other Party confirmed that she and the Applicant separated on 14 October 2005 and that, from that time until the court order was put in place, the Applicant generally had the weekend care of G. This arrangement was described as “all over the place and not good” as the Applicant would often show up late at night and demand to take G.
The Other Party recalled that, after the court orders were put in place, G spent six days with the Applicant over the 2007 Christmas period and that was the only time G had spent such a length of time in the Applicant’s care. The Other Party described that she also had majority of the care during Easter as she would collect G so that she could do the Easter egg hunt in the morning with her twin brothers.
The Other Party also accepted that the Applicant did have G on New Year’s Eve on occasions, but said that was no longer the case after 2013. She also confirmed that the Applicant did have G each Wednesday and alternate weekend, but that the Wednesday care ceased when G commenced high school in about 2013 or 2014.
The Other Party had observed G becoming uncomfortable in the Applicant’s care and preferring the stability provided by the Other Party’s household. The Other Party is re-partnered with Mr Corrie and they are also the parents of 9 year old twin boys.
From 2007, the Applicant’s general pattern of care was that G would spend alternate weekends with him. G also wanted to spend time with friends who lived close to the Other Party’s home. She would not spend weekend holidays with the Applicant. Often on long weekends the Other Party and her family, including G, would go to Mr Corrie’s mother’s house in the country. Since 2013, G has only spent one to two nights with the Applicant over Christmas, thereafter remaining with the Other Party.
The Other Party said that in 2010 and 2011 she coached netball on Friday nights and so G would often stay with her on Friday evenings during the netball season. The Applicant never took G to netball. G would also stay with her on a Friday night if G had a party.
The Other Party was referred to her own diary records from 2008 to 2017.[4] She said these were taken from contemporaneous records she maintained of care arrangements for G. The Applicant’s care days were marked with a line through the date; her own care days were marked with a circle; and each school holiday period had a border around the relevant dates. For the period July 2011 to December 2011, the Other Party could not locate her original records.
[4] Exhibit 1, T Documents, pages 1136 – 1143.
Those records tend to corroborate that, from 2008 until June 2014, the Applicant had regular Wednesday evening care of G, with some reduction in that arrangement through the balance of 2014 until the cessation of care from 17 June 2017. Those records also tend corroborate that the Applicant had alternate weekend access, although not necessarily for the whole of the weekend. They also indicate that the Applicant did not have access for one full week of any school holiday period. Hence, if accepted, it indicates that the Applicant did not have the care of G strictly in accordance with the terms of the court orders.
As well as netball, G started karate in 2011-2012 and attended once a week as organised by the Applicant’s friend. The arrangement for this was that the Other Party would take G to karate and the Applicant would pick her up and return her to the Other Party, as they had unsuccessfully tried to change the karate lesson to the Applicant’s access night.
The Other Party stated that she observed, through 2016 and leading up to 17 June 2017, the Applicant’s anxiety levels increasing and that this was also obvious to G. On 17 June 2017, G telephoned the Other Party in a state of panic, expressing concern about the Applicant’s behaviour towards her and asked that the Other Party come and collect her. When the Other Party arrived, she saw G scaling a six-foot fence, cutting her hand, and running to her car. This was the last time G saw the Applicant.
In relation to G’s separation anxiety, the Other Party said this condition had been occurring throughout G’s life but was exacerbated following the separation of the Applicant and Other Party and was due to G’s fear of the Applicant. The result of this was G not wanting to leave the Other Party, not wanting to spend any extended period of time with the Applicant, and not regularly attending parties. The Other Party noted that G’s anxiety has improved since mid-2018 and that the psychologist, psychiatrist, and in particular the school chaplain, have been of invaluable assistance in supporting G.
The Other Party provided a number of witness statements in support of her case, namely from Ms Vanessa Avery, Shane and Paula Anderson, Lorenna Williams, and Ali Stokes de Silva. Ms Avery has been a close friend of the Other Party for the past 24 years and has provided the Other Party with assistance and support during her separation from the Applicant and regularly babysat G and later G and the twin boys. Shane and Paula Anderson were G’s preschool teachers with whom the Other Party became very close, often spending New Year’s and holidays together. Lorenna Williams has been the Other Party’s friend for approximately 13 years and her husband is the best friend of Mr Corrie, the Other Party’s current partner. Mrs Williams and her husband are godparents to the Other Party’s twin boys and the families’ holiday together. They live five minutes away from the Other Party. Ali Stokes de Silva is a former teacher and now friend. G adores her.

In questions from the Respondent, the Other Party said she had an excellent memory.
Evidence of Vanessa Avery
Ms Avery provided a statement[5] which she had read and confirmed to be correct. Ms Avery has been a friend of the Other Party for 24 years, and knows the Applicant through his relationship with the Other Party. She last saw the Applicant at a care handover at a police station 8 – 10 years ago.
[5] Exhibit OP3.
Since separation, Ms Avery and the Other Party have remained close friends and she was present at the birth of her twin boys. Ms Avery is an ambulance officer.
Ms Avery sees the Other Party and G approximately once a week or fortnight and they spend Christmas, New Year, and school holidays together. This she was able to confirm by referencing dates on various photographs taken, social media, and her diary records which she integrated into the statement she prepared for the Tribunal. That sourced material was not before the Tribunal.
In her statement, Ms Avery states she babysat G on numerous occasions when the Other Party was at work, mainly during school holidays, because G did not want to go to the Applicant’s house. She was able to provide records of numerous occasions when G had been with her or when she had been in the presence of G and the Other Party. In particular, she was directed to her record of the July 2008 school holidays. Ms Avery said she spent part of that school holiday at Morgan on a camping trip with the Other Party, her family and G. She said G did not spend a week of that holiday period in the Applicant’s care.
Ms Avery said that G had not wanted to go to the Applicant’s home. Ms Avery viewed the Applicant as controlling, intimidating and threatening, and she observed G to be displaying anxiety and self-doubt as a result of her relationship with the Applicant.
Ms Avery said that she was aware that G was in the Applicant’s care particularly on a Wednesday, but that she spent the majority of her weekends with the Other Party. She said that it was not correct to say that G always spent one week of the school holidays with the Applicant, but that it had occurred. She said G did not spend every Christmas with the Applicant and that Ms Avery and her family, together with the Other Party and her family including G, would celebrate Christmas together and often go away in the New Year. She referred by example to last year when the families all went to Yorke Peninsula.
Ms Avery described G’s relationship with the Other Party as close, and that G wants the Other Party to be with her. She described G as having a lot of anxiety and self-doubt, including separation anxiety from the Other Party, and anxiety and doubt about attending and completing her schooling. She said that she would come home early on weekends when she was in the Applicant’s care because she wanted the Other Party to take her to school. She said G had demonstrated anxiety about doing things on her own and would ask the Other Party to do things for her or that they do them together.
Evidence of Mrs F. H. Hawkins (maternal grandmother)
Mrs Hawkins provided a statement[6] which she read and confirmed to be correct.
[6] Exhibit 1, T Documents, page 89.
Mrs Hawkins said that the Applicant and the Other Party separated in about 2006 and she was aware of the court orders made in 2007.
Ms Hawkins described the Applicant’s general pattern of care for G being alternate weekends and on Wednesdays, however G did not spend one week of a school holiday period with the Applicant. She said that G may have spent the Christmas/New Year period with the Applicant for the first year or two after the court orders were made, however in the following years she would be returned to the Other Party early after one or two days. As for the Easter holiday, G was supposed to be with the Applicant but Mrs Hawkins did not believe G spent more than two days with him.
Mrs Hawkins said that G spent the majority of the school holidays with the Other Party and that she, Mrs Hawkins, was often asked to babysit G during the holidays when the Other Party was working, particularly when G was aged 6 to 9 years. She observed G to be frustrated at travelling to the Applicant’s home and wanted to stay with the Other Party, even feigning sickness to avoid going to the Applicant’s home. Since starting high school, G has spent less time with the Applicant and has never spent a week with him. G did not want to continue to be in his care.
Mrs Hawkins described the anxiety she observed in G when leaving the Other Party. G trusted the Other Party and wanted to be with her. She described G to be very uncertain about making decisions and lacking confidence. Since she has stopped seeing the Applicant, G has grown up a lot, has developed friendships now, and is far better than when she first started high school.
Evidence of Mr Brad Corrie
Mr Corrie has been G’s stepfather for approximately 10 years. He provided a statement which he read and confirmed to be correct.[7]
[7] Exhibit 1, T Documents, page 90.
In respect of the court orders, the Applicant had care of the G every Wednesday and every alternate weekend. That care arrangement was satisfactory for the first year; however G always wanted to come home. He said that G’s anxiety was a big problem. She always wanted to stay home or be picked up early, and she never spent one week of any school holiday with the Applicant.
Mr Corrie said that the care arrangements were frustrating as he and the Other Party would often receive a telephone call from G wanting to come home and be picked up early. As for the Christmas period, G would spend some time with the Applicant but more often she stayed with he and the Other Party.
Mr Corrie said that he is yet to see G stay at the Applicant’s residence for the total time allocated by the court orders. In addition to G not wanting to spend extended periods with the Applicant, particularly during school holidays, the Applicant had also gone on fishing trips to Salt Creek or did not have time off from work and so was unable to care for G.
Mr Corrie described in his statement that G had not wanted to go to the Applicant’s because of his short temper and because she was restricted in what she could do and who she could see at his home. She would want to have friends over for holiday sleepovers and there were issues with G’s friends attending the Applicant’s residence.
While she has been at high school, G cut her Wednesday nights to below half and on occasion she would go to the Applicant’s during an afternoon only to return home to spend the night at the Other Party’s home. Mr Corrie could not recall the Applicant ever taking G to a party. She always wanted the Other Party to take her. They could not take G anywhere without the Other Party being present, although that has reduced in the last six months. He said that G would not sleep over at the Applicant’s house due to her separation anxiety.
Closing Submissions
The Applicant, in closing, maintained his entitlement to the FTB on the basis that he had 43% care of G during the relevant period in accordance with the court orders.
The Other Party said that it was unfortunate that the Applicant had an injury at work, but that his application is borne out of desperation for money. She maintained that the Applicant has never had access in accordance with the terms of the court order.
The Applicant expressed a wish to provide further evidence in support of his care arrangement including complete diary records, and details of events when G was in his care together with statements from his mother and sister, whom he said had played a major role in the care of G. He had previously indicated that with an adjournment he could confirm when he took G to Queensland. The Applicant had previously said that he thought the provision of his diary extracts was sufficient evidence and that the things that he did with G and the places and events at which they attended were all “in his head”.
The state of his evidence was poor and was wholly insufficient to demonstrate a pattern of care. The Tribunal granted the Applicant the opportunity to provide such further evidence, with the Other Party having an opportunity to respond.
Additional Evidence and written submissions
After the hearing the Applicant provided the following additional material:
(a)Diary summaries of the Applicant covering the period 2011 to 2015;
(b)Handwritten diary dates of the paternal grandmother Ms L O’Mahoney, covering the periods 2010 and 2013 to 2017;
(c)A copy of a signed statement of the Applicant’s former employer, Mr D Vanderkley, dated 6 November 2018;
(d)Copy of undated statement of the Applicant’s sister, Ms Tania Lengo, written on behalf of her family and signed by Tania Lengo, Raff Lengo and Corinna Lengo and Ms L O’Mahoney;
(e)Undated signed statement of Tania Lengo, Raff Lengo and Corinna Lengo regarding time spent with G;
(f)A copy of the undated signed statement of the Applicant’s friend, Mr M McLeod;
(g)Various photographs;
(h)Six handwritten notes from G to the paternal grandmother; and
(i)A medical certificate dated 5 November 2018.
Both parties also provided further written submissions.
CONCLUSION
The Applicant’s evidence was poorly presented and did not assist me in establishing a pattern of care. He was repeatedly given the opportunity both during the hearing and after the hearing to present his best evidence in proof of that pattern of care he said he had of G, namely, in accordance with the court order. I am satisfied he understood that the information “in his head” needed to be communicated to the Tribunal and that providing pre-populated diary records without some explanation of care events was unsatisfactory.
The Applicant repeatedly said in evidence, when asked what he and G did when she was in his care, that it was “all in his head”. He was unable to provide any appropriate example save for the occasion he and his family members travelled to Queensland. He could not recall when that occurred. The Other Party said in evidence that the holiday was prior to the date of the court orders.
The Applicant also said that he thought his snapshot diary records pre-populated with G’s access dates in accordance with the court orders was sufficient in proving his pattern of care. He also said that he had declined the offer of his mother and sister to provide evidence.
The Applicant was therefore permitted the opportunity to address the deficiencies in his evidence, including to detail that information that was “in his head”, to identify when the holiday to Queensland occurred, to cross-reference his evidence with the diary records, and provide all other evidence he had in his possession to assist the Tribunal in being satisfied about his pattern of care from the date of the court order until 17 June 2017. That included evidence from his mother and sister to detail their observations of care arrangements, how, when and in what manner they had each cared for or provided assistance to the Applicant in caring for G.
I have considered all of that additional evidence provided by the Applicant. I will deal with that evidence in general terms. It is as follows:
(a)The Applicant’s diary Summaries covering the period 2011 – 2015 - these records were pre-populated in the same way as the snapshot diary records contained in the T Documents. The Applicant did not provide any explanation of what occurred on the pre-recorded carer dates and he did not cross-reference the diary records in his written submissions. There was nothing to indicate that he had made any attempt to provide that information that he said was “in his head”, to assist the Tribunal in determining the pattern of care during the relevant period.
(b)Handwritten diary dates of the paternal grandmother Ms L O’Mahoney, covering the periods 2010 and 2013 to 2017- these handwritten records provided no explanation as to what each date represented and what occurred on the respective dates in terms of the care of G. They did not assist in establishing the Applicant’s pattern of care of G.
(c)The copy of a signed statement of the Applicant’s former employer, Mr D Vanderkley, dated 6 November 2018 - this short letter confirmed that from 2007 – 2010 the Applicant would leave work early on Wednesdays to collect G and return late Thursday mornings after dropping her off at school. During school holidays, the Applicant regularly bought his daughter to work with him often arriving late and finishing early. This tends to corroborate the Wednesday care arrangement but is inconsistent with the Applicant’s evidence that he generally took leave for one week of each school holiday to care for G. Otherwise it is very general in its wording and is of little assistance to the Tribunal.
(d)Copy of undated statement of the Applicant’s sister, Ms Tania Lengo, written on behalf of her family and signed by Tania Lengo, Raff Lengo and Corinna Lengo and Ms L O’Mahoney – this is a short document in which Ms Lengo is critical of the Other Party and said that she, Ms Lengo, and her family have always been a part of G’s life and had many wonderful holidays and general outings together which were reflected in the photographs provided. She also referred to the grandmother who has helped with pickups, sleepovers, and day trips, and that her daughter and G have spent time together on many occasions. However, this statement is in very general terms and, although she and her family might enjoy a loving relationship with G, it is of no assistance in determining the Applicant’s pattern of care during the relevant period.
(e)Undated signed statement of Tania Lengo, Raff Lengo and Corinna Lengo regarding time spent with G - this again was a short statement which affirmed that the Applicant had the care of G in accordance with the terms of the court order and that family members would assist the Applicant with those care arrangements. Once again, this is a very general statement in the same terms as the Applicant’s evidence which did not assist the Tribunal in determining the pattern of care during the relevant period. To state he had the care of G in accordance with the terms of the order without explanation was unhelpful.
(f)A copy of the undated signed statement of the Applicant’s friend, Mr M McLeod - the handwritten statement refers to the Applicant attending the author’s shop with G before going to karate lessons and that, on occasions, the Applicant declined invitations to go fishing and holidaying because he was spending time with G. Again, this is very general and of no assistance in determining the pattern of care during the relevant period.
(g)Various photographs with handwritten description - referred to in sub-paragraph (d) above, again, without further explanation were of limited assistance.
(h)Six handwritten notes from G to the paternal grandmother - these messages only confirm the loving relationship G had with her grandmother. Again, they are of no assistance in determining the pattern of care during the relevant period.
(i)A medical certificate dated 5 November 2018 – this confirms the Applicant suffers from mental health issues (diagnosis of traumatic stress disorder and major depression with an onset date of August 2016) which both he and the Other Party referred to in evidence. It is of no assistance determining the pattern of care during the relevant period but is of limited relevance in the Tribunal assessment of the Applicant’s credibility and reliability, in particular, his demeanour in giving evidence.
The written submissions of November 2018 provided by the Applicant was seven short paragraphs which in summary reaffirmed that the Applicant “stuck to” the court orders prior to him submitting a claim for FTB.
The burden is on the Applicant to provide evidence upon which the Tribunal can accept there was a pattern of care which enlivened his entitlement to FTB. In that respect, the Applicant’s evidence was in the nature of “motherhood” statements lacking in particularity and specificity. He was given every opportunity to provide evidence in proof of the pattern of care but failed to do so.
The additional evidence provided by the Applicant was wholly unsatisfactory, and provided no foundation upon which the Tribunal could accept that a pattern of care was established. Other than producing pre-populated diary dates, the Applicant provided no further evidence of the pattern of care including such information he had “in his head”, and that evidence from his mother and sister was of no assistance. He failed to produce any evidence about when he holidayed in Queensland. There is no suggestion by the Applicant that his medical condition as referred to in the medical certificate, was an impediment to him producing his best evidence and I am satisfied that he has been given procedural fairness to present his case to the Tribunal.
The evidence from the Other Party was markedly different. She was an impressive witness who, by reference to contemporaneous records of her care of G, was able to identify care arrangements which I accept. She detailed care during the holidays, including the camping holiday as confirmed by Ms Vanessa Avery in the school holidays of July 2008.
The short statements of Lorenna Williams and Shane and Paula Anderson confirm that they spent New Year’s Eve in 2013/2014, 2014/2015, and 2015/2016, and the 2015 January long weekend with the Applicant’s family and G. The very short unsigned statement of Ali Stokes de Silva confirmed that she had seen G for most school holidays throughout each year for the last eight years and on special occasions including the Easter weekend in 2016. The statements were not detailed but were of limited weight in that they contradicted the evidence of the Applicant and tended to corroborate the evidence of the Other Party and her witnesses on the topics referred to.
Of particular relevance was the evidence of the Other Party, Ms Avery, Mrs Hawkins, and Mr Corrie, all of whom said that G suffered from separation anxiety from the Other Party and that anxiety, in part, contributed to G’s strong desire not to spend extended time with the Applicant and often return early from the Applicant’s care. G wanted to remain close to the Other Party at the family home. Each witness consistently detailed how close G was to the Other Party and the anxiety they observed in G when separated from her. I accept their evidence in this regard.
The Other Party, in her written submissions of December 2018, provided a detailed submission including various dates referred to in the Applicant’s additional documents which she submitted contained numerous errors. I take into account that this was not tested by further evidence.
I prefer the evidence of the Other Party and the witnesses called by her to that of the Applicant and the evidence he produced. I am not persuaded from the evidence of the Applicant and the additional evidence produced that a pattern of care has been established to any satisfactory degree and that such pattern enlivened in entitlement to FTB.
I am satisfied from the date of the court orders that the Applicant did have care of G each Wednesday and alternate weekend for a considerable length of time thereafter. I am not satisfied that he had the care of G for one week of each of the school holidays. Further, I am satisfied that, from 17 June 2017, G wholly ceased to be in the care of the Applicant. However, to the extent I am satisfied that G was in the Applicant’s care, I am not satisfied that it was of, or in excess of, 35% and that G was an FTB child of the Applicant.
DECISION
The decision under review is affirmed.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...........[Sgnd]..........................................

Associate
Dated: 23 April 2019

Date of hearing: 5 November 2018

Applicant: By telephone

Advocate for the Respondent: Christian Visser, Department of Human Services

Other Party: In person

[2019] AATA 746

23 April 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	5 November 2018
Applicant:	By telephone
Advocate for the Respondent:	Christian Visser, Department of Human Services
Other Party:	In person