Herbert and Secretary, Department of Social Services (Social Services second review)

[2015] AATA 684

Herbert and Secretary, Department of Social Services (Social Services second review) [2015] AATA 684 (8 September 2015)

Division	General Division
File Number	2014/5638
Re	Rodger Herbert
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Rachel Walsh
OTHER PARTY

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	8 September 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – percentage of care– insufficient evidence– decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 19D

A New Tax System (Family Assistance) Act 1999 (Cth) ss 22, 35B

REASONS FOR DECISION

Senior Member Bernard J McCabe

8 September 2015

1. This application arises out of a decision made by the Child Support Agency on the Secretary’s behalf that the father (the applicant) ordinarily had care of two of his children on three nights per week from 3 May 2013. For the purposes of the family tax benefit (“FTB”) scheme, that means the father had 42% care of the children after that date. But the father claims he was caring for the children for at least three nights each week from 14 April 2011. He wants the decision backdated to reflect what he says was an established pattern of care. His former partner, the mother of the two children, disagrees. The Social Security Appeals Tribunal was not satisfied the father had established a pattern of care of three nights per week before May 2013, so it affirmed the Child Support Agency’s assessment. The matter has now come to this Tribunal for reconsideration.

   The hearing and its reconstitution

2. The Tribunal has a pool of members available to deal with disputes. The President or his delegate in each registry assigns a member (or a panel of members, in some cases) to deal with each application. Once a member is constituted as the Tribunal for the purposes of particular proceedings, that member assumes responsibility for hearing and determining the issues in dispute. Sometimes, events intervene: a member may fall ill or become unable to complete their appointed task. That is what happened in this case. The member who was assigned to the case fell ill after she completed the hearing but before she could make her decision. Happily, the Administrative Appeals Tribunal Act 1975 (Cth) permits the President to reconstitute the Tribunal and another member is appointed to review the material and make the Tribunal’s decision.

3. The Tribunal in this case was reconstituted pursuant to s 19D(2) of the Administrative Appeals Tribunal Act 1975. I took over the proceedings and spoke with the parties. I told them of my plan to review the contents of the file and listen to a recording of the hearing. They were all agreeable to that course.

   The law about family tax benefit

4. The law with respect to the FTB is contained in the A New Tax System (Family Assistance) Act 1999 (Cth) (the “Assistance Act”). Under that law, the FTB may be paid to the parents in respect of an “FTB child” in their care. Where the parents are separated but retain responsibility for the children and take it in turns to provide care, s 22 of the Assistance Act says the FTB will be divided between the parents to reflect their percentage of care. But there is an important qualification to that general rule found in s 25. That section says the child will not be regarded as the FTB child of a person unless that person has a percentage of care greater than 35% (that is, in excess of two nights per week). It follows that a parent who has care of the child on 5 nights per week will be taken to have 100% care.

5. Where the Secretary is satisfied that there has been, or will be, a pattern of care for a child such that there is, or will be, an FTB child of more than one individual, and one of the individuals makes a claim for the FTB, the Secretary must determine each individual’s percentage of care for the child during the care period: s 35B of the Assistance Act.

6. At the commencement of the period in question, there was a percentage of care determination in place. That determination stated the mother had care of the children for 100% of the time. The father paid child support on that basis, albeit that his circumstances meant the payment was small. The Secretary accepted there was a change in the pattern of care in May 2013 when the father reported he was now caring for the children three nights each week on a regular basis. (The father had not previously reported caring for the children on three nights a week: in his evidence, he said he did not report his true level of care until May 2013 because his former partner threatened to deny him access to the children if he made a fuss. He did not clearly explain what emboldened him to come clean with the Secretary in May 2013.) In any event, the report from the father in May 2013 prompted the Secretary to make a fresh determination that the father had 42% care of the children after that date.

7. In this case, the father says the determination that he had 42% care should be backdated to 14 April 2011 because he routinely had the two children on three nights each week throughout most of that period. He conceded there were exceptions to the routine: in his evidence, he pointed out there was a block of time when he did not accommodate his daughters following a home invasion and health problems. But the evidence does not require that I descend to that level of detail. My task is to determine the pattern of care over the relevant period.

   The evidence from the parties

8. The father gave written and oral evidence that there was a pattern of caring for his daughters on three nights each week throughout the period under review (that is, April 2011 through May 2013). He said he initially had care of the children on Thursday, Friday and Saturday nights, but that changed in November 2011 to Friday, Saturday and Sunday nights to accommodate a change in the mother’s working arrangements. He provided three statements from friends in support of his claim. The first statement, in the form of a letter, was reproduced in exhibit one at p 32. It is undated but was apparently prepared in 2013. The author claimed he lived nearby and was a close friend, and he said he had “no problem stating catagorically” [sic] that the applicant “has his children every weekend from after school Friday till Monday morning when he drops them back at school and has had for at least the last two years.” He went on to offer a detailed recollection of seeing the children with their father in the car on Monday mornings during the period under review.

9. I have difficulty with the statement. I note the mother alleges the father and the author of the statement had a close relationship that called into question the author’s independence. As it happens, the author could not have recalled the father delivering the children to school every Monday over a two year period from 2011 as the father’s own oral evidence does not suggest he looked after the children on Sunday nights until part way through the period. The father also confirmed in his oral evidence that he was frequently without a licence or access to a motor vehicle during the period under review. The author was not called to give evidence at the hearing, so there was no opportunity to ask him about these anomalies.

10. The second statement is reproduced in exhibit one at p 33. The author of that statement also recalled regularly seeing the father and his daughters together on a Monday morning over an extended period. The statement is also undated although the mother said she was aware the author did not start leaving his vehicle at the father’s residence (and therefore had no cause to see the father) until sometime in 2012. The father also agreed with Mr Bishop, who represented the Secretary, that the author would often arrive at the property too early in the morning to see the children on many occasions in any event. Given the uncertainty over the extent of the author’s contact with the father, the relationship between the two men and the period during which the contact occurred, it would have been better if the witness were called to give evidence so he might clarify his statement. In the circumstances, I do not think I can give the statement much weight.

11. There is a third statement in the form of a statutory declaration from another witness which is reproduced in exhibit one at p 42. The mother says she does not know this individual; the father says he is an old friend who only re-established contact with him after his relationship with the mother had come to an end. The author of the statement recalled the father visiting the author’s home with his children on a number of weekends after October 2011. The author said the father was often unavailable to participate in social events on weekends in the period that followed because of his childcare commitments.

12. The third statement does not assist the father a great deal. The mother conceded her former partner had care of the children on two nights each week from March 2012: the statutory declaration is consistent with that account.

13. The father also referred to an email from the mother dated 8 November 2011. The email is reproduced in exhibit one at p 28. The text of the email has the mother foreshadowing the need to work on Monday mornings. On its face, the email is consistent with the father’s claim that he took care of the children on Sunday nights (as well as Thursday and Friday nights) from that time. The applicant questioned whether portions of the email may have been altered: she said she could not verify the precise contents because she no longer had access to the account from which the email was sent. I also note the civil tone of the email stands in marked contrast to the venomous abuse that passed between the pair in the text messages they were exchanging in 2012 and 2013: see exhibit five. But the mother argues in any event that the father did not agree to the proposal in the email.

14. Assuming the email is genuine, it does not clearly confirm the father was looking after the children for three nights each week – just that it was contemplated he might do so.

15. The mother says her former partner refused to take the children even though she desperately needed his assistance before March 2012. She said she was working long and occasionally irregular hours, and was forced to meet the costs of child care for the two children out of her own resources. (There was no dispute the father made limited contributions by way of child support throughout the period under review.) She said she became aware of a promotion opportunity in March 2012 that necessitated a change in her working hours which would see her working increasingly on weekends. She agrees the father began taking care of the children on two nights a week after that time. She insisted in her oral evidence that the father did not assume responsibility for a third night of care until May 2013 when she actually received the promotion.

16. The mother said in her oral evidence that she was unable to convince family members, friends or the manager of the child care centre her daughters attended to provide evidence in the case. She said they all feared reprisals from the father. She referred to a series of acrimonious text messages that were downloaded and reproduced in exhibit five in support of her argument. The fragments of texts that passed between the mother and father say rather a lot about the poor state of their relationship but offer little clue as to the arrangements in respect of the children.

17. The Secretary says the records of the time the children spent in paid child care provide some useful insights. The child care benefit and rebate statements in respect of the children are set out at document T17 in exhibit one. Broadly speaking, those records suggest the children were in child care paid for by the mother four days per week from the beginning of the period under review until 25 December 2011.  Thereafter, one of the children was enrolled at prep, so her hours in care fell, but the other child continued in care on four days per week until 24 June 2012. But then the pattern changed: from June until December 2012, the younger daughter was in care every day of the week, and her older sister was in care on the weekends, and sporadically throughout the week.

18. The evidence in relation to the child care records is unclear, but the most likely inference is that the mother was required to pay for child care in periods when the father claims he was looking after the children – and when it was conceded they stayed with him, albeit for two nights per week rather than three. That does not suggest the father enthusiastically embraced his role as care-giver for the children, which is consistent with the mother’s account. He also did not appear to be making a contribution to the upkeep of the children that one would expect from a parent with 42% of their care.

    Conclusion

19. There were gaps and anomalies in the evidence provided by the mother and the father in these proceedings. That would not have been the case if the father had diligently reported a change in the pattern of care when he said it occurred in 2011. He said he was afraid to do so because the mother would prevent him seeing the children but his evidence on this point does not ring true: the tone and content of the text messages in exhibit five did not suggest an individual who was cowed by his former partner.

20. I agree with the Secretary’s view that there is insufficient reliable evidence that would justify changing the determination prior to May 2013. The decision under review is therefore affirmed.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated   8 September 2015

Date of hearing	13 April 2015
Applicant	In person
Solicitors for the Respondent	Mr C Bishop, Department of Human Services
Other Party	In person