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

[2005] AATA 219

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 219

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/896

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID HEASMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

First Respondent

And SUSAN ROBERTS

Second Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date14 March 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

..................[sgd]..................

Ms R Hunt

Senior Member

CATCHWORDS

Family Tax Benefit – Family tax benefit child - level of shared care

REASONS FOR DECISION

14 March 2005	Senior Member R Hunt
SUMMARY

1.      Mr Heasman, the Applicant, has made an application for review of a decision of the Social Security Appeals Tribunal (SSAT), made on 25 June 2004, which set aside Centrelink’s decision, on 28 January 2004. Centrelink determined that Mr Heasman had care of his three children for 22 percent during the 2002/2003 and 2003/2004 financial years. On the balance of evidence before the SSAT, it directed that the percentage of care during the relevant periods was than 10 percent. On the evidence before the Administrative Appeals Tribunal, it is determined that the decision of the SSAT be affirmed.

BACKGROUND

2.      Mr Heasman, is the father of three boys. He has been allowed to care for his children pursuant to a court order made at Wyong local court, dated 27 April 2001. The court order grants Mr Heasman contact with his three sons every second weekend from Friday 4pm until 7pm Sunday evening. The Wyong Local Court order notes that the children’s wishes relating to contact are to be taken into account by the parents. Furthermore, the Wyong order provides Mr Heasman with the opportunity to have his sons for half of their school holiday periods.

3.      On 9 July 2003, Mr Heasman lodged a claim for family tax benefit (FTB) for the 2002/2003 and 2003/2004 financial years for his and Mrs Roberts’s three sons. Mr Heasman claimed his percentage of shared care was 25 percent for all three sons. On 30 July 2003, Centrelink notified Mr Heasman that he could not be paid FTB for his three sons as it was determined that his share of care was less than 10 percent. On 1 September 2003, Mr Heasman attended an appointment at Centrelink’s Lake Haven Office and was advised by staff that he needed to provide additional information in support of him claim. In response, Mr Heasman submitted written statements to Centrelink from third parties who evidenced his sons being in his care ‘every second weekend and half the school holidays’. On 1 October 2003, a delegate of Centrelink reconsidered the percentage of shared care given by Mr Heasman and determined it was at 25 percent. Mrs Roberts appealed the claimed percentage share of care determined by the reconsideration and in support of her own claims provided Centrelink with additional statutory declarations by other third parties and diary entries. Based on this new evidence, Centrelink decided to cancel Mr Heasman’s FTB, as it was determined that his level of shared care was less than 10 percent.

4.      On 15 December 2003, Mr Heasman requested a review by an Authorised Review Officer in support of his claim that his level of shared care was 25 percent. The Authorised Review Officer could not determine which of the parties was providing the correct information and subsequently sought guidance from the Wyong Court Family Law Act order of 16 May 2001 and calculated, on the evidence before him, that Mr Heasman’s claimed level of shared care was 22 percent. Mrs Roberts appealed to the SSAT on 16 March 2004 and the SSAT decided to set aside the decision of Centrelink and directed that Mr Heasman had less than 10 percent shared care in both the 2002/2003 and 2003/2004 tax years.

ISSUE

5.      The issue for the Tribunal to decide is whether the proportion of shared care allotted to Mr Heasman, for his three sons, is 10 percent or more for the 2002/2003 and 2003/2004 tax years.

LEGISLATION

6. Since Tribunal is to stand in the position of the Secretary to decide the apportionment of Family Tax Benefit to Mr Heasman, the relevant legislation is in section 59 of A New Tax System (Family Assistance) Act 1999 (the Act) which states:

(1) If the Secretary is satisfied that:

(a) an individual is an FTB child of an individual (person A); and

(b) the FTB child is also an FTB child of another individual who is not person A's partner;

the Secretary may determine the percentage that is to be person A's percentage of family tax benefit for the child.

7.      An ‘FTB Child’ of another individual is defined pursuant to section 22(3) of the Act as:

(3) The individual is an FTB child of the adult if:

(a) the individual is aged under 18; and

(b) a family law order or registered parenting plan is in force in relation to the individual; and

(c) under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the individual is supposed to have contact; and

(d) the individual is in the adult's care; and

(e) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

8.      Should the Tribunal determine that Mr Heasman proportion of shared care is less than 10 percent, the effect of entitlements to FTB is determined pursuant to section 25(1) of the Act which states:

“If:

(a) the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); and

(b)one of those other individuals makes, or has made, a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in that period; and

(c)     the Secretary is satisfied that the child was, or will be, in the care of that last-mentioned individual for less than 10% of that period;

the child is to be taken, despite that subsection, not to be an FTB child of that last-mentioned individual for any part of that period.”

EVIDENCE

Mr Heasman

9.      At the hearing, Mr Heasman represented himself and gave oral evidence by conference phone. The Secretary, the first respondent, was represented by an advocate of Centrelink and Mrs Roberts, the second respondent, represented herself in person.

10.     Under cross-examination by the Secretary, Mr Heasman gave evidence that during June 2002/2003 and July 2003/2004 periods, he provided care for his three sons. He claimed that his proportion of shared care, being at least 22 percent, had been supported by his contention that he had care of his sons for half of their school holidays and every second weekend. He described a typical weekend being the picking up of his sons from Mrs Roberts’s home between approximately 4.30-5.00pm on a Friday evening and returning his sons at 7pm on Sunday evening of the same week. When questioned whether this occurred every second weekend, he stated that it was difficult to remember, however, he believed that  he didn’t take care of his sons on two separate weekends. He stated that occasionally his sons would have made plans for themselves but that practically every second weekend he would have care. He also said that there would be a weekend or two in-between in which he didn’t pick them up.

11.     Mr Heasman could not remember exactly which year his three sons celebrated their Christmas day holidays in his care. He claimed to have celebrated Christmas day 2002 with his sons, but he could not provide the Tribunal with exact times. When probed by the Secretary as to whether it was the 2002 or 2003 Christmas day holidays, he distinguished shared care into day and night. He told the Tribunal that on Christmas night 2003, he did not have his sons as Mrs Roberts kept them. He told the Tribunal that he didn’t spend time with his sons on Christmas day 2004 because he started a new job.

12.     When questioned about Christmas school holidays, Mr Heasman agreed with the Secretary’s description of his sons’ shared care as non-continuous, but nevertheless was adamant that he had given an extensive period, possibly two to three weeks, of continuous care to his sons during both 2002 and 2003. Under further examination by the Secretary, Mr Heasman told the Tribunal that during the 2003/2004 Christmas school holidays, he had one of his sons for only five days after New Year’s, as he commenced employment on 5 January 2004. He accepted that the shared care arrangement of his sons during the Christmas school holidays could be best described as involving picking his sons up, having them for a couple of days, dropping them off at Mrs Roberts and then having them for another few days. Mrs Roberts gave similar evidence

13.     When asked by the Secretary if he could recall whether he had cared for his sons during 2002 Easter holidays, Mr Heasman told the Tribunal that he had all three of his sons in his care for a 7 day period. However he told the Tribunal that he did not have any of his sons in his care during 2003 and 2004 Easter holidays.

14.     Mr Heasman was certain that he had shared care of his sons for nine days during the winter holidays of 2002 and 2003. He could not provide any written records to substantiate his claim, but in clarifying his answer, he recalled that Mrs Roberts had their sons for the first five days and then he would pick them up for the commencement of his weekend plus the entire next week, including the weekend.

15.     During the September 2002 and 2003 spring school break, Mr Heasman also claimed to have had his sons in his care for nine consecutive days. When pressed to provide the correct amount of days, he told the Tribunal that it was likely that he had the boys for nine rather than five days. Mr Heasman told the Tribunal that the 2002 summer holidays were similar to the July holidays in that Mrs Roberts would have her sons for the first week and then Mr Heasman would collect them and have his sons in his care for the next nine consecutive days.

Mrs Roberts

16.     The Secretary examined Mrs Roberts and sought to identify dates and times of when she provided care to her sons. In evidence, Mrs Roberts told the Tribunal that the general arrangement of care for her sons is reflected by the Wyong Court order dated 16 May 2001 and which states, amongst other things, that the wishes of her sons are important in determining who has care for them. She said currently her sons are in her care from Monday to Friday. When questioned generally about the weekends and who had care for of her sons, Mrs Roberts stated that her eldest son spends every Friday to Sunday with her parents, working on their acreage, that the middle son spent some weekends at this friends house or her house and that the youngest son spent his weekends with her, as he is a keen dancer who has many rehearsals.

17.     According to Mrs Roberts, all three sons were in her care during 2002 Christmas. However, she did tell the Tribunal that her sons were in their father’s care on Christmas 2002. Mrs Roberts recalled being late for Christmas lunch at her mother’s as Mr Heasman had been late in returning their sons back to her. She said that her sons did spend the day with their father and he returned them for lunch. Mrs Roberts explained that she and Mr Heasman would alternate from year to year as to who would have their sons for breakfast or lunch. Upon clarification with the Secretary, Mr Roberts confirmed that during 2002 Christmas, Mr Heasman did collect his sons in the morning and the arrangement was for him to drop them off in the afternoon.

18.     Mrs Roberts told the Tribunal that her sons were meant to spend Christmas day 2003 with their father, but they ended up staying with her. She said that Mr Heasman telephoned his sons to speak with them on that morning, but they asked Mr Heasman if they could stay with her and he said ‘yes’, as he had no problem with that. Mrs Roberts acknowledge that she didn’t have care for her sons the next day. She explained that Mr Heasman had care of his sons on Boxing Day, as they went Christmas shopping for computer gaming consoles. When asked by the Secretary to described the arrangement for Boxing day 2003, Mrs Roberts told the Tribunal that she didn’t think that there had been an arrangement between Mr Heasman and herself, rather she described those events as occurring ‘by ear’.

19.     Mrs Roberts sought assistance from written records kept in her diary entries in answering questions related to the level of care offered by her and Mr Heasman.  When asked by the Secretary as to how long she had her sons in her care during the 2002 summer school holidays, she responded by telling the Tribunal that during this period she had travelled to Cherrybrook, Sydney with her sons to visit her sister and auntie for the entire 6 week period. Nevertheless, Mrs Roberts informed the Tribunal that Mr Heasman did maintain non-continuous care with his sons. Despite no written records to this effect, Mrs Roberts provided an account of ad-hoc arrangement where Mr Heasman would telephone his sons, and consequently, ‘the three boys would visit Mr Heasman for about an hour or so, but they would be straight back home in her care’.

20.     Mrs Roberts could not provide a specific account as to the amount of days or hours that Mr Heasman cared for his sons during the 2002 summer school holiday period, as her diary entries only commenced from July 2003. However when asked by the Secretary to provide an estimation or average as to how many hours and days in total she thought he cared for their sons, she stated that ‘it would be lucky if there was even five days, if that’. Mrs Roberts also stated that during the 2003 Christmas school holidays she had care of all her three sons. When asked specifically by the Secretary whether any of her sons had spent time with Mr Heasman during Christmas 2003 holidays, she told the Tribunal that her eldest son had spent six continuous days and returned home to her when Mr Heasman found employment.

21.     In reply to questions asked by the Secretary regarding the 2002 September school holidays Mrs Roberts became confused with past events and did not have a clear recollection. When asked by the Secretary if she had care of her sons during the 2003 September school holidays, Mrs Roberts told the Tribunal that if she did not have care for her sons, then her mother would. When asked by the Secretary to consult her diary, Mrs Roberts read to the Tribunal a written entry dated September 26, 2003, that Mr Heasman picked up two of her sons and had care of them for one week. When asked by the Secretary to state the exact number of days her sons spent in the care of Mr Heasman, Mrs Roberts calculated ten days.

22.     Mrs Roberts stated that her sons were in a lot of people’s care during the 2002/2003 July school holidays as her grandfather was very ill and spent some time in hospital until his death. She recalled that they were in Sydney and that she and her sons had stayed with her sister, auntie and parents. She further recalled that all three sons were in her care as her nephew was staying with them for a week. However, the Secretary asked if her sons had ever spent any days with Mr Heasman, and Mrs Roberts told the Tribunal that her sons did go over to visit Mr Heasman during 2003/2004 because it was her mother’s birthday. Mrs Roberts could specifically recall this particular incident as her sons had been detained by a Security Officer for trespassing on an old coal mine located behind Mr Heasmans’ property. Mr Roberts said that her sons were picked up on Friday evening, by Mr Roberts, and stayed at his place of residence for the weekend until Sunday afternoon.

23.     In reply to questions asked of 2003 Easter school holidays, Mrs Roberts informed the Tribunal that her sons were in her care for the entire 2 week period. But when the Secretary asked her to repeat her answer, she stated that her sons were in her care, but they may have visited Mr Heasman.

Diary Records and Statutory Declarations

24.     Mrs Roberts submitted copies of her diary records of dates between 10 July 2003 and 6 October 2004. The copies of Mrs Roberts’ diary provide a daily, though incomplete, account of the movements of her sons. The diary notes of Mrs Roberts have some relevant dates which are missing and on some days there are no records kept, however, the Tribunal accepts prima facie that these records reflect an accurate account of the shared care of their sons during the respective periods, as Mrs Roberts has ensured that her sons sign her diary upon arriving home.

25.     The first recorded entry of Mr Heasman collecting his sons from Mrs Roberts home is dated 26 September 2003. The last recorded entry by Mrs Roberts of Mr Heasman collecting his sons is on Thursday 5 August 2004 in celebrating the birthday of his son. In between these two recorded periods, the diary entries paint a picture of Mr Heasman having consistent weekend care with either one or two or all of his sons. There are recorded occasions were Mr Heasman has picked up some or all of his sons on a Friday evening and retuned them on that night or on the Saturday morning. Additionally, there are recorded episodes where the boys have visited Mr Heasman or vice versa for a few hours of shopping.

26.     The Tribunal documents also contained statutory declerations which had been witnessed by a justice of the peace. Declarations were received from Hilary Labbe, Anna Wright, Anthony Zietsch, Maria Roberts, Margret Lopez Bessenyei, Susan Roberts, Mr Peter Rollo and Mr Heasman.

ANALYSIS OF EVIDENCE

27.     The lack of written documentary evidence supporting Mr Heasman’s claims and the differing submissions expressed on the level of shared care has made this fact finding decision extremely onerous for the Tribunal. It is agreed that the relevant periods to determine the percentage of shared care given by Mr Heasman and Mrs Roberts are the 2002/2003 and 2003/2004 financial years. The history of court orders provided in the Tribunal documents and attached in support of the documents supplied by Mrs Roberts outline the agreed arrangement of shared care and visiting entitlements in regards to the three sons of Mr Heasman and Mrs Roberts. The Wyong Family Law Court Order dated 27 April 2001 has been applicable during the respective periods of shared care. The Tribunal is not assisted by the recent order of the Family Law Court at Newcastle as it is outside the periods in question.

28.     Having regard to the Wyong Local Court Order dated 27 April 2001, the Tribunal is only guided by this arrangement as it outlines the extent of shared care Mr Heasman is entitled to. Generally, the court order provides for Mr Heasman to have weekend contact with his sons from Friday 4pm until 7pm Sunday, half of the school holidays, and alternating Christmas Eve and days. Furthermore the wishes of their sons have been expressly included in the order and decisions relating to their care are to be taken into account.

29.     Unfortunately, most of the statutory declarations submitted lack either exact dates of shared care or do not provide for the length of time they observed Mrs Roberts having care for her sons. Mr Anthony Zietsch and his partner Maree declared that Mrs Roberts and her four children stayed with them from 18 July to 21 July 2002. He also declared that Mrs Roberts and her children visited his house during the first week of September 2002 school holidays. Hilary Labbe did give a general account of shared care existing between Mr Heasman and Mrs Roberts. Anna Wright recorded that Mrs Roberts and her three sons did stay at her house in Cherybrook during the 2002 and 2003 winter school holidays. Margaret Bessenyei gave a valuable account of the shared care. She stated that she regularly visited Mrs Roberts and her sons, but recalled that on one occasion two of the boys went to visit their father, Mr Heasman, but were back two hours later. In her opinion she submitted that when the boys visited their father, they never went together to his house at the same time. The Tribunal accepts that the statutory declarations, which have been witnessed by a Justice of the Peace, generally support Mrs Roberts’s contentions that her sons were at different places and not always together during their school holidays of 2002/2003 and 2003/2004 financial years.

30.     By comparison to Mrs Roberts, Mr Heasman provided few written records to support his claims and his evidence at times was too vague for the basis of a finding. Still, he attempted to provide a consistent recollection of the level of shared care given to his sons in response to questions asked by the Secretary. His recollection of the general arrangement of shared care during the respective periods generally reflected the court order. However, it is apparent from his evidence that there were periods of careless than reflected in the court order, even when taking his sons’ wishes into account. Mr Heasman claimed that he had his sons with him every second weekend, from Friday evening to Sunday evening. The diary entries of Mrs Roberts partially support this claim during the 2003/2004 financial year but there is no evidence during the 2002/2003 period. As well, Mrs Roberts claimed during 2002 through to 2004, her sons were generally in her care.

31.     During the 2002/2003 financial calendar period, Mr Heasman’s evidence to the Tribunal was that he had care for his sons during Christmas 2002. Again, Mr Heasman did not refer the Tribunal to any records or documentary evidence to support this claim. Nonetheless, the Tribunal notes that Mrs Roberts’s statutory declaration dated 9 June 2004 firstly supports his claim and secondly, provides a detailed account of the length of time in which he cared for his sons. Mrs Roberts records that on Christmas Eve 2002, Mr Heasman collected his sons from her place between 10.00 - 10.30am and returned their sons late to Mrs Roberts’s house at 1.15pm Christmas day. The Tribunal accepts this recollection as fact as it is supported by oral evidence given by Mr Heasman that Mrs Roberts had her sons on Christmas night, and by Mrs Roberts who stated that she had been late for Christmas lunch at her mother’s house. The Tribunal further accepts that Mrs Roberts had her sons for 2003 Christmas day, but that Mr Heasman had limited care on days prior to Christmas day 2003 and on Boxing Day 2003. Mrs Roberts gave oral evidence that Mr Heasman shopped with his sons on Boxing Day 2003 as he was unable to see them on Christmas Day. Having no written records to the contrary, the Tribunal accepts that Mr Heasman had shared care of his sons on Boxing Day 2003.

32.     The Tribunal accepts Mr Heasman’s evidence that he had care for his sons during the September school holidays for nine consecutive days during 2002/2003 and 10 days for 2003/2004. Evidence given by Mr Heasman of the amount of shared care given to his sons during the September 2002/2003 school holidays had been clear and especially convincing considering his precise recollection of care shared during 2003/2004 period. He stated that he was confident that it was 9 days and not 5 days because he remembered Mrs Roberts would have their sons for the first 5 days of the September school holidays and he would have them for the weekend plus the additional week which equated to 9 days. When Mrs Roberts gave evidence for the same periods, she could not recall exactly if Mr Heasman had his sons for the days claimed. When asked by the Secretary to refer to her diary records, Mrs Roberts read to the Tribunal that Mr Heasman did indeed have care of his sons for 10 consecutive days during the 2003/2004 September school holidays. The Tribunal accepts that Mr Heasman had his sons for 10 consecutive days during the 2003/2004 September school holidays. The Tribunal further notes for completiveness that the statutory declaration of Anthony Zietsch records Mrs Roberts and her children staying at his house for the first week of the 2002/2003 September school holidays. Hence, on the strength of Mr Heasman’s recollection and due to the lack of any evidence to the contrary, the Tribunal accepts the evidence given by Mr Heasman that he had care of his sons for 9 consecutive days in the 2002/2003 September school holidays.

33.     The Tribunal is not assisted by the quality of evidence when determining exactly the proportion of shared care given by Mr Heasman during the July school holidays. Mr Heasman claimed that the arrangement for the July school holidays during 2002/2003 and 2003/2004 mirrored the September school holidays in that Mrs Roberts would have their sons for the first week and he would have them for the next nine days. Once more, Mr Heasman could only provide his recollection of the events during this period and could not support these claims with written records or statements. Mrs Roberts’s claim that her sons were in her care during the first week of the July school holidays is supported by the statutory declaration of Anna Wright in that she records ‘Mrs Roberts and her sons spending part of each school holiday between 1/7/2002 and 30/6/2003 at her house at Cherrybrook, Sydney. Mrs Roberts also provided an accurate recollection of shared care given by Mr Heasman during the 2003 July school holidays despite initially rejecting his claim. Under probing questioning by the Secretary, Mrs Roberts told the Tribunal that her sons had been in the care of Mr Heasman until they were caught trespassing in an old abandoned coal mine located behind the caravan park were he had been residing. She was adamant of this recollection as it had been her mother’s birthday and Mr Heasman would have their sons for the weekend. Despite there being no recorded evidence to the contrary, the Tribunal is inclined to accept, on the conviction of answers provided in reply to questions from the Secretary, that Mr Heasman did have shared care of his sons for 9 consecutive days during the 2002/2003 July school holidays and Mrs Roberts for 5 consecutive days. However, on the evidence submitted by Mrs Roberts, the Tribunal determines that Mr Heasman had his sons for 3 days during the 2003/2004 July school holidays.

34.     The Tribunal accepts Mr Heasman submissions that he did not have his sons for shared care during the 2003 and 2004 Easter school holidays.

35.     The quantity and quality of recorded evidence in support of claims made by Mr Heasman and Mrs Roberts is of such character that the Tribunal is placed in a difficult position to provide a conclusive finding. Both Mr Heasman and Mrs Roberts could not give a definite account of weekend shared care. As weekend shared care is the majority of care in dispute, it is unfortunate that both parties could not assist the Tribunal with quality information in providing an accurate account of shared care. Mr Heasman told the Tribunal that he would have his sons in his care ‘practically’ every second weekend. He qualified his answer and recalled that during the relevant periods there had been one or two weekends in which is sons were not in his care. Mr Heasman could not provide any written records to verify his accounts.

36.     According to Mrs Roberts, the general weekend arrangement could be best described by referring the Tribunal to the court order. She emphasised that her sons’ wishes were paramount in determining who had shared care. Mrs Roberts told the Tribunal that, currently, one of her sons spends ‘practically’ every weekend at her father’s house as he lives on acres, that another son would occasionally be with his friend and would sleep over. Another son had dancing rehearsals on the weekend and Mrs Roberts would take him to class. Mrs Roberts said that this arrangement had generally occurred from July 2002 until July 2004. Therefore, on the lack of any further substantial evidence, the Tribunal is unable to reach a conclusion in Mr Heasman’s favour as to the level of weekend shared care given by Mr Heasman during the 2002/2003 tax year.

37.      Mrs Roberts provided her diary records, which gave an account of weekend shared care between the periods of 10 July 2003 to 6 October 2004. Mrs Roberts recorded Mr Heasman having weekend care of their sons during the 2003/2004 tax year as follows:

26 - 28 September 2003	55.5 hours
3 - 5 October 2003	72 hours
10 - 12 October 2003	50.5 hours
19 October 2003	2.5 hours
7 November 2003	3.15 hours
8 November- 9 November 2003	43 hours
28 November 2003	17.5 hours
7 December 2003	9 hours
12 - 13 December 2003	26.5 hours
19 - 21 December 2003	48.5 hours
28 December 2003	5.5 hours
3  January 2004	23.5 hours
17 January 2004	8 hours
6 - 8 February 2004	50 hours
20-21 February 2004	19.5 hours
5 - 7 March 2004	49.5 hours
23 April 2004	5.45 hours
16 May 2004	10 hours

Both parties accepted that a typical weekend would consist of Mr Heasman picking his sons between at 4.30 – 5.00pm and returning them on Sunday at 7pm. The Tribunal calculates this to be approximately equivalent to 50.5 hours (7.5 + 24 + 19 hours) of weekend care. Both parties also gave evidence that weekend care commenced on alternate weekends, which accumulates to 1313 possible hours of weekend care in a year (26 weeks x 50.5 hours). On the evidence before the Tribunal, the sum of hours recorded by Mrs Roberts during the 2003/2004 tax year in which Mr Heasman had care of his sons equals 499.5 hours. This figure informs the Tribunal that Mr Heasman, at the very least, made use of 38 percent of his shared care entitlements during the 2003/2004 tax year. 

37.      Mr Heasman claimed that he usually had shared care of his sons during the summer school holidays for approximately two to three weeks. Mr Heasman could not recall dates when he picked up and dropped his sons as he had not written them down. Under cross examination by the Secretary, he agreed that his eldest son had been in his care for only one week during the 2003/2004 summer holidays. He recalled that he had been scheduled to start employment on 5 January 2004 and that this had been the only summer holidays which he had been unable to take care of them. In examination by the Secretary, Mrs Roberts informed the Tribunal that she had been in care of all her sons during the 2003/2004 summer school holidays. Mrs Roberts did concede that her eldest son had spent 6 consecutive days with Mr Heasman, but their other two sons had been with her. This is consistent with the evidence relating to the length of shared care given by Mr Heasman to his sons during the 2002/2003 summer holidays. As Mr Heasman is claiming two to three weeks of shared care during this period, and in the absence of any supporting evidence, the Tribunal, on balance, accepts the evidence given by Mrs Roberts that Mr Heasman had shared care of their sons for five days.

FINDINGS

38.     Mr Heasman’s entitlements of shared care for his sons, during the 2002/2003 and 2003/2004 tax year consisted of alternate weekends, half of the school holidays and alternate Christmas Holidays. On the evidence before the Tribunal, I find that Mr Heasman’s actual shared care of his sons as:

Holiday Period                   2003/2004  2002/2003

Weekend  499.5 hours  cannot be determined.

September Holidays         240 hours (10 days)            216 hours (9 days)

Winter Holidays           72 hours (3 days)                216 hours (9 days)

Christmas Holidays          3.15 hours  27 hours

Summer Holidays             144 hours (6 days)              120 hours (5 days)

39.On the evidence before the Tribunal, the accepted hours of shared care by Mr Heasman during the 2002/2003 tax year equal 579 hours or 6.61 percent. The Tribunal also calculates Mr Heasman has 959 hours of shared care during the 2003/2004 tax year or 10.94 percent. However these calculations are qualified by written and oral evidence given by Mr Heasman and Mrs Roberts which firmly supports the finding that Mr Heasman mainly had one, or possibly two of his sons during his care, but rarely all three. The 10 percent threshold, as determined by section 25 of the Act, is relevant to the care of all three sons. The absence of one son or more on some occasions reduces the care calculation figure. Accordingly, the Tribunal is satisfied, on balance, that Mr Heasman, did not have care of all his sons for the minimum requirement of 10 percent during the 2002/2003 and 2003/2004 tax years.

40.The decision is affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  20 December 2004
Date of decision     14 March 2005

Representative for the Applicant  Self Represented

Advocate for the first Respondent  Centrelink

Representative for the Respondent  Self Represented