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

[2006] AATA 891

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 891

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/104

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER GOLDSMITH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

And ANNEMARIE GOLDSMITH

Third Party

DECISION

Tribunal Senior Member B J McCabe

Date20 October 2006

PlaceBrisbane

Decision The decision under review is set aside. Pursuant to s 42D of the Administrative Appeals Tribunal Act 1975, the Tribunal remits the matter to the respondent to re-determine the appropriate percentage of care of the applicant under s 59 of the A New Tax System (Family Assistance) Act 1999 in accordance with these reasons.

..........[Sgd]............
  BJ McCabe

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – family tax benefit – care of children – entitlement to pension

A New Tax System (Family Assistance) Act 1999

Administrative Appeals Tribunal Act 1975

Feeney and Secretary, Department of Family and Community Services [2005] AATA 818

Nowicz and Secretary, Department of Family and Community Services (2001) 65 ALD 314

Wade v Secretary, Department of Family and Community Services [2004] FCA 1660

REASONS FOR DECISION

20 October 2006 Senior Member B J McCabe         

introduction

1.      This case raises questions over the application of A New Tax System (Family Assistance) Act 1999 (the Act) - the legislation providing for the payment of the Family Tax Benefit (the FTB). FTB is paid to eligible parents to help them defray the cost of raising children. Where the relationship between the parents has ended, the legislation provides for the payment to be split between the parents. In this case, the applicant and his former wife (the third party) have offered different accounts of the extent to which each of them cared for their two teenage children during the period 1 May 2003 through 30 June 2004. After hearing the evidence, the Social Security Appeals Tribunal (the SSAT) decided the applicant had care of his two children for only 10% of the time. He has asked this Tribunal to review the evidence and reconsider the matter. Mrs Goldsmith, for her part, says the SSAT made the correct assessment.

the material before the tribunal

2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. I note Deputy President Hack SC made a confidentiality order under s 35 in relation to the T documents so that some details (mainly names and addresses) were deleted from the copies of the s 37 documents provided to the parties. The parties agreed at the commencement of the hearing that it was appropriate to tender the edited version of the T documents. I directed that the unexpurgated version of the T documents containing the irrelevant personal information should be destroyed or returned to Centrelink.

3.      Mr Goldsmith filed a number of witness statements, as did Mrs Goldsmith. Mr Goldsmith gave evidence on his behalf. He also called Mrs Dorothy Smith, a former neighbour, and Mrs Diane DaRae. Mrs Goldsmith gave evidence, as did Ms Ambrosia Jones. All of the parties indicated a reluctance to call the children to give evidence even though both children had prepared written statements.

4.      The applicant did not have legal representation. Mrs Goldsmith was represented by Ms Dillon-Smith, and Mr Belcher appeared on behalf of the respondent.

the focus of the factual inquiry: the provisions of the act

5. Section 21 of the Act says a person who has an FTB child is eligible to receive FTB. There is no dispute that Oliver and Sarah Goldsmith are FTB children of Mr and Mrs Goldsmith for the purposes of the Act. In cases like the present where the parents have separated, s 59(1) says the Secretary may determine the percentage of the total FTB payment in respect of the children that will be allocated to a parent.

6. The legislation does not dictate how the discretion in s 59 is to be exercised. The Secretary has developed internal guidelines known as the Family Assistance Guide to assist decision-makers to reach sensible and consistent decisions. The guidelines provide a process for assessing the percentage of care having regard to the pattern of care provided to the children by each parent. I am satisfied the guidelines represent a sensible approach to the problem at hand, and I propose to follow them in this case: see Wade v Secretary, Department of Family and Community Services [2004] FCA 1660.

7.      The legislation and guidelines require the decision-maker to determine whether there is a pattern of care evident on the facts. Once a pattern of care is established, the decision-maker may ignore minor deviations from the pattern: see s 22(7).

8.      In this case, Mr and Mrs Goldsmith executed consent orders outlining arrangements for the care of the children when they separated. All of the parties agreed the orders were ignored. It is therefore necessary for the decision-maker to have regard to the documents and other evidence describing what the parties actually did: see Nowicz and Secretary, Department of Family and Community Services [2001] 65 ALD 314. If it is possible to divine a pattern of care from that evidence, that pattern can be used as the basis for the calculation of the number of days spent in each parent’s care, which in turn allows the decision-maker to calculate a percentage. The Tribunal suggested in Feeney and Secretary, Department of Family and Community Services [2005] AATA 818 that the decision-maker should apportion care according to the terms of the court order if it is impossible to ascertain the actual pattern of care.

the facts

9.      Mr Goldsmith gave evidence first. He separated from his then wife in November 2000 and they divorced in January 2006. Mr Goldsmith lived in Lismore in the 12 months following his separation. He says he had access to the children every Friday night. He said they may have stayed with him for longer periods during the school holidays. He lived in Alstonville with Mrs DaRae for fourth months after that period and the weekly visits continued.

10.     In March 2002, Mr Goldsmith moved to Sydney to undertake postgraduate work. The children stayed behind. He says he flew to the Lismore area every month and the children would visit him for two or three days at Mrs DaRae’s home in Alstonville. He also flew the children down to Sydney to visit him on two or three occasions.

11.     Mr Goldsmith says he returned to the Lismore area in May 2003. After a brief stay with Mrs DaRae, he moved into rented accommodation in Kingscliff with a friend. He stayed in Kingscliff for about eight and a half months. The children stayed with him there on two or three occasions for a night. It is possible Oliver (Mr Goldsmith’s son) stayed on a further occasion. By this time, the children were living in Wollongbar and attending school in Alstonville. Mrs DaRae had also moved to Wollongbar. Mr Goldsmith said it was his practice to spend his time off from work at Mrs DaRae’s home. He said he was there up to 12 days each month, and he claimed the children – especially Oliver – would often stay there with him. He said the only time the pattern was broken was when he travelled to Sydney on two occasions to attend to the needs of his dying mother.

12.     Mr Goldsmith subsequently moved into the Alstonville Leisure Park. He occupied a two bedroom re-locatable home there. He said the children continued to stay with him on two or three nights each week. Mrs DaRae was also a frequent visitor.

13.     Mr Goldsmith stayed in Alstonville for just over six months. He moved to a house in Wollongbar in August 2004 and sought more intensive contact with the children.

14.     Mrs DaRae’s evidence substantially confirmed Mr Goldsmith’s account. I note however she conceded during cross-examination by Ms Dillon-Smith that the children never left items of clothing or personal effects when they stayed overnight in her house – even though she and Mr Goldsmith said the children stayed there frequently. That is surprising.

15.     Mrs Goldsmith gave evidence as well. She is clearly still very angry with her former husband. She asked her lawyer to put questions to Mr Goldsmith about the quality of care he provided to the children when they were in his custody. There were also some questions about whether Mr Goldsmith may have made allegations to Centrelink about her. She said Oliver disliked Mrs DaRae.

16.     Mrs Goldsmith had told the SSAT she was confident of her dates because she kept university diaries. She conceded in her evidence before me that the university diaries did not disclose a great deal of helpful detail. She insisted nonetheless that the children did not spend more than two nights a fortnight with their father during the relevant period.

17.     Ms Ambrosia Jones was also called to give evidence by Mrs Goldsmith. Ms Jones was enrolled in the same course as Mrs Goldsmith and explained that they frequently studied at Mrs Goldsmith’s home together. Ms Jones said she was aware that Mrs Goldsmith’s plans would often be disrupted because the children’s father would fail to comply with arrangements he had made. Ms Jones says she was a frequent visitor to the home and she was unaware of the children being absent with their father on a regular basis. She also said the children would confide in her about their situation although she agreed she was not close to either of them.

18.     I have some difficulty with the evidence of Mrs Goldsmith. She is so intensely embittered that I suspect her recollection may be affected. Her friend, Ms Jones, appears to have taken up the cudgels on her behalf. Her evidence suggested she shares Mrs Goldsmith’s animosity towards Mr Goldsmith.

19.     Statements were also prepared by the children. The children were not available for cross-examination so it is difficult to assign any weight to their statements. Given the attitude of their mother and her friends towards their father, I would in any event treat the evidence of the children with caution.

20.     I also have some difficulty with the evidence of Mr Goldsmith and Mrs DaRae, although in fairness they did not appear to be affected to the same extent by the bitterness evident in Mrs Goldsmith. I ultimately prefer Mr Goldsmith’s evidence because it is supported by the evidence of Mrs Smith, an elderly lady who is unrelated to any of the characters in this story. She lived across the way from Mr Goldsmith while he resided in the Alstonville Leisure Park. She said – and I accept – that she saw Oliver in particular visit his father at least twice each week during this period. She could not be as sure about the applicant’s daughter who tended to stay inside, but Mrs Smith thought the little girl was present because she could be heard playing there. Unlike the other characters in the story, Mrs Smith was able to give objective evidence.

21.     In light of Mrs Smith’s evidence, I accept Mr Goldsmith’s account that he had care of the children for at least two days a week during the relevant period. That account is consistent with the evidence given before the SSAT.

conclusion

22. The decision of the SSAT is set aside. The matter is remitted to the respondent to re-determine the appropriate percentage of care of the applicant pursuant to s 59 of the Act in accordance with these reasons.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  12 July 2006      
Date of Decision  20 October 2006
The applicant represented himself at the hearing.
The respondent was represented by Mr Belcher, a departmental advocate.
The third party was represented by Ms Dillion-Smith, solicitor.