Gesell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Catalano [Party Joined]
[2009] AATA 785
•16 September 2009
ADMINISTRATIVE APPEALS TRIBUNAL) 2009/1197
)
GENERAL ADMINISTRATIVE DIVISION )
Re: ANGELA GESELL
Applicant
And: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
And: SERGE CATALANO
Party Joined
DECISION [2009] AATA 785
Tribunal : Mr B. H. Pascoe, Senior Member
Date : 16 September 2009
Place : Melbourne
Decision: For reasons given orally at the hearing the Tribunal varies the decision under review and remits the matter to the respondent with a direction that, for the purposes of family tax benefit, Mr Catalano had care of the child, Samuel, for 67% of the time and Ms Gesell had care for 33% of the time from 1 July 2004 to 31 December 2008 and from 1 January 2009 and continuing the relevant care percentages were 56% and 44% respectively.
Senior Member
FAMILY TAX BENEFIT - sharing of care of son – whether according to court order – actual days of care.
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Family Law Act 1975
REASONS FOR DECISION
| 13 October 2009 | Mr B H Pascoe, Senior Member |
This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 17 February 2009 relating to the payment of family tax benefit (FTB) on the basis of the sharing of care of the son of the applicant, Ms A Gesell and the party joined, Mr S Catalano. The SSAT finding was that Mr Catalano had care of the son, Samuel, for 67 per cent of the time and Ms Gesell had care for 33 per cent of the time from 1 July 2004 and continuing.
At the hearing Ms Gesell was assisted by her father, Mr Catalano was unrepresented and the respondent was represented by Mr I Golshtein of the law firm DLA Phillips Fox.
The background facts and applicable law are set out fully in the SSAT decision and need not be repeated here. It was clear that a major concern of Ms Gesell with the decision was that, from 1 July 2008, the minimum percentage of shared care in order to obtain any share of FTB has been 35 per cent.
It was not in dispute that an order relating to the care of Samuel under the Family Law Act 1975 was made by the Federal Magistrates Court in February 2002. If that order had been fully complied with the relative percentages of care would have been 56 per cent for Mr Catalano and 44 per cent for Ms Gesell. It was not in dispute, also, that this order had been breached and, for many periods since the order, Ms Gesell had not had the care of Samuel for all of the days set out in that order.
In cases such as these, where the number of nights of custody and care of a child by each parent is in issue, it is inevitably difficult to arrive at a precise and satisfactory answer. This is particularly so where there is an underlying tension between the parents. The reasons for the failure by Ms Gesell to have the custody and care of Samuel on days or nights when she was so entitled is not a matter which can effect the decision of this Tribunal regarding entitlement to FTB. The sole issue is what was the actual pattern of care based on the available evidence during the relevant period.
Based on the evidence given by the parties to Centrelink, the SSAT and this Tribunal, I have no reason to consider that the findings of the SSAT were incorrect in relation to the period ending 31 December 2008.
However, the evidence of Ms Gesell was that, as a result of becoming aware of the issues and effect of not having the care of Samuel on all occasions to which she was entitled, she has been meticulous in ensuring adherence to the Court Order from the commencement of 2009. It is acknowledged that Mr Catalano disputes this and believes that there may have been five or six days in this current year where Ms Gesell did not provide such care. Nevertheless, and with the additional evidence of her father, I find that the pattern of care from 1 January 2009 was in line with the Court Order so that the appropriate percentages from that date were 56 per cent and 44 per cent respectively.
In light of the foregoing, the decision under review should be varied by remitting the matter to the respondent with a direction that, for the purposes of FTB, Mr Catalano had care of the child, Samuel, for 67 per cent of the time and Ms Gesell had care for 33 per cent of the time from 1 July 2004 to 31 December 2008 and from 1 January 2009 and continuing the relevant care percentages were 56 per cent and 44 per cent respectively.
I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B H Pascoe, Senior Member
(sgd): Leah Berardi
Clerk
Date of Hearing 16 September 2009
Date of Decision 16 September 2009
Solicitor for the Applicant Ms A Gesell, Self Represented
Solicitor for Joined Party Mr S Catalano, Self Represented
Solicitor for the Respondent Mr I Golshtein, DLA Phillips Fox
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