Hofman and Secretary, Department of Family and Community Services and Mearns

[2005] AATA 352

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 352

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/301

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOSEPH HOFMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

And            ROSLYN MEARNS

Second Respondent  

DECISION

Tribunal Ms Linda Savage Davis, Member

Date20 April 2005

PlacePerth

Decision The Tribunal affirms the decision under review.

......(sgd L Savage Davis)…….

Member

CATCHWORDS

FAMILY TAX BENEFIT – the correct percentage of family tax benefit payable – Minute of Consent Order

A New Tax System (Family Assistance) Act 1999 ss 21, 22, 23, 25 and 59

REASONS FOR DECISION

20 April 2005 Ms Linda Savage Davis, Member            

1.      This is an application by Mr Joseph Hofman (“the applicant”) to review a decision made by Centrelink on 2 May 2003 to pay Mr Hofman a shared care rate of 76% of Family Tax Benefit (FTB) from 5 March 2003 to 26 February 2004.  This decision was reviewed by an Authorised Review Officer and affirmed on 7 April 2004.  It was subsequently reviewed and affirmed by the Social Security Appeals Tribunal (SSAT) on 23 August 2004.

2. At the hearing the applicant represented himself and gave oral evidence. The respondent was represented by Mr Aaron Holt from the Service Recovery Team of Centrelink. The second respondent, Ms Roslyn Mearns, represented herself and spoke to the Tribunal by phone and gave oral evidence. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T34), as well as the respondent’s Statement of Facts and Contentions lodged with the Tribunal on 20 December 2004.  Additional documents were lodged by the respondent on 21 February 2005 (Exhibit R1).  The matter was adjourned after Mr Hoffman had given his evidence and reconvened on 31 March 2005.

Background

3.      Amelia and Julian (the children), are the children of Mr Joseph Hofman and Ms Roslyn Mearns.   A Family Court Order dated 4/3/1999 (T4/19-24) (the Family Court order) states that the children are to reside with the applicant and he is to have responsibility for their day to day care, welfare and development (T4/22).  Ms Mearns was to have reasonable contact which was defined to include at clause 3:

“3.       The respondent mother have reasonable contact with the said children      defined to include:-

(a)       In each four week cycle as follows:- 

(i)the first weekend from 5.00 p.m. Friday until 5.00 p.m. Sunday commencing 5 March 1999;

(ii)the second weekend from 5.00 a.m. Friday until 5.00 p.m. Sunday;

(iii)the third weekend from after school Friday on the basis that the respondent mother be at liberty to collect the child Julian from his school and the child Amelia from the applicant at 2.30 p.m. until 5.00 p.m. Saturday.

(b)With respect to the child Amelia only and until such time as Amelia commences pre-school, from 9.00 a.m. until 3.00 p.m. on the Friday of the fourth week of each four week cycle referred to at sub-paragraph 3(a) herein.        

(c)From 9.00 a.m. on the first Saturday of each of the April, July and October school holidays until 5.00 p.m. on the Saturday of the middle weekend of each of the said school holiday periods.                    

(d)For a period of up to three weeks of each Christmas school holiday period on the basis that the said contact take place on an alternate weekly basis.

(e)The respondent mother’s weekend contact pursuant to subparagraph 3(a) herein shall be suspended during each school holiday period.

(f)From 9.00 a.m. until 5.00 p.m. each Mother’s Day providing that the respondent mother’s contact be suspended from 9.00 a.m. until 5.00 p.m. each Father’s Day.

(g)Each alternate Christmas from 9.00 a.m. Christmas Eve until 3.00 p.m. Christmas Day commencing 2000.

(h)Each intervening Christmas from 3.00 p.m. Christmas Day until 5.00 p.m. Boxing Day commencing 1999.

(i)Reasonable contact on each of the children’s birthdays and the respondent’s birthday.

(j)In the event that the children are in the respondent mother’s care pursuant to these orders on either of their birthdays the respondent mother  shall ensure that the children are returned to the applicant  father for a reasonable period on each of their birthdays and the applicant’s birthday.

(k)Such further or alternate contact as can be agreed between the parties from time to time.”  

4.      On the basis of these orders the applicant was paid FTB at the proportion of 76% for the children for the period in question.  The applicant disputes this percentage because he asserts the second respondent had only minimal care of the children between February 2003 and February 2004.

The Applicant’s Evidence

5.      Mr Hofman told the Tribunal that he spoke to a Mr Daniel Richardson at Gosnells’s Centrelink in February 2003 about his and Ms Mearns differences about the percentage of care.  Mr Richardson suggested he keep a diary for 3-6 months and told Mr Hofman it would be a bonus if both parties could sign it.  The result he said was the diary in the T documents at T16 (the diary). Mr Hofman said he submitted it to Centrelink in July 2003. Ms Mearns had from that date refused to sign it.  Centrelink however took no account of it even though they had asked him to do it.  He continued to keep it for his own record.  Mr Hofman said in June 2004 he had again been requested by Centrelink to keep a diary of how often he had the children even though they had not taken the previous one into account.

6.      Mr Hofman said according to his calculations the Family Court orders should have resulted in him being paid 83% and Ms Mearns 17%.  He acknowledged he didn’t raise this issue at the SSAT and said this was probably because it was only since the SSAT decision that he had looked at the figures more closely.

7.      Mr Hofman referred the Tribunal to T25 which were Contravention details prepared by Ms Mearns for the Family Court.  He said these showed, for example, that she claimed on 14 March 2003 she had been prevented from collecting the children because the applicant had taken them to Margaret River. Yet in the diary for Centrelink she had signed that she had the children this weekend solely for the purposes of getting more FTB.  This showed her to be unreliable.  Her evidence to Senior Member Moroni of the Family Court at p. 6 of the attachments to the Secretary’s Statement of Facts and Contentions also showed how she contradicted herself, he said.

8.      Mr Hofman agreed that Ms Mearns had only signed the diary for a 3 month period.  He said that Centrelink had paid him the same amount irrespective of what the diary showed.

9.      Mr Hofman agreed that the calendars (T30/167 and T25/126) were dated as received on 28/02/2003, that is before the period in question and that it indicated what days Ms Mearns anticipated would be her percentage of care.         

The Second respondent’s Evidence

10.     Ms Mearns confirmed to the Tribunal that she had received the additional documentation lodged by the respondent on 21 February 2005.  She told the Tribunal that she did have contact with her children in accordance with the Family Court order.  In regard to the diary (Exhibit R1/R1 8-13) she said that the signatures as recorded on page 8, 11, 12 and 13 were hers.  She said, however, that all the comments written by Mr Hoffman were false and she had never seen this additional information on the pages she had signed or on the pages which did not have her signature (pages 8 & 9).  She said that on one occasion when she had signed a page Mr Hoffman held his hand over the top of the page and she could not see what was written there.

11.     In regard to those pages and times when she refused to sign, she said she had done this because Mr Hoffman also refused at times to sign the diary she kept and other paperwork that she required, for example, for Centrelink.  She said that someone called Daniel at Centrelink said that if Mr Hofman would not sign she should not sign either.  

12.     Ms Mearns said that for the period in question she did at times have difficulty getting access to her kids because Mr Hofman refused to hand them over.  She tried to get him breached by the Family Court but was not successful.  She didn’t telephone in advance; she just arrived to collect her children in accordance with the Family Court order.  She said Mr Hofman never phoned in advance to say the children couldn’t come because they were too busy. When he prevented her seeing the children she didn’t know if they were in the house or not.  Ms Mearns was certain that she had turned up every weekend she was entitled to have the children.  In regard to the note at the top of R1/8, which reads “Friday 21/02/03 5pm No phone call, no show by mum” which is signed Julian, Ms Mearns said sometimes when she arrived she was told that her children did not want to see her, so she did not know whether they knew she had even come.

13.     Ms Mearns was referred to the calendars (Exhibit R1/A2/6-7).  This had been provided by the respondent on the 21 February 2005 with the shaded and coloured areas in their original form. When questioned by Mr Hoffman, Ms Mearns said that she had highlighted all the times she was entitled to have the children on those calendars even though she was sometimes prevented from seeing the children as, for example, on 14 and 15 March 2003.  She agreed that at times she had not seen the children but said it was only because she was prevented from doing so.  On 21 March 2003 she only had a few hours with the children because it was Mr Hofman’s birthday.  Ms Mearns agreed she did not call the police when Mr Hofman refused to hand the children over, but said that that was because she had had previous problems with him calling the police about her.

14.     Ms Mearns said the current arrangement which has been negotiated by their lawyers involve her having the children once a fortnight on Saturday for four hours and on Monday afternoons for  three hours.

Final Submissions

15.     Mr Hofman said that the evidence before the Tribunal spoke for itself.  He said that Ms Mearns did not tell the truth and that her desire to receive 24% of the FTB for the period in question was because she is on a pension and any income she receives is important to her.  He said that the rate of 76% is clearly incorrect and the children deserve more.  He said for the period in question it should be 83% to Mr Hofman and 17% to Ms Mearns.  Mr Hofman said that this reflected the diary which he was asked to keep.  Mr Hofman said he admitted he had written personal statements in the diary but if you disregarded those it was simple to calculate that when Ms Mearns had signed the diary over the three month period he was entitled to 83% of the FTB.

The First Respondent’s Submissions

16.     Ms Bradley referred the Tribunal to the Statement of Facts and Contentions filed on behalf of the respondent.  In addition the Tribunal was referred to the Family Assistance Guide (2.1.1.30 Shared Care Verification of Care Arrangements) (T3/11-18) and in addition it was submitted that:

“Section 22 of the Family Assistance Act 1999 is used to determine when an individual is an FTB child of another individual.

Section 59 of the Family Assistance Act 1999 allows the Secretary to make a determination where an individual is an Family Tax Benefit child of two people who are not members of the same couple and determine the percentage that is to be the person’s percentage of family tax benefit for the child.

The Guide to the Family Assistance Law provides guidance on how the percentage of family tax benefit should be calculated when the care of a child is shared between people who are not members of the same couple.  Extracts from the Family Assistance Guide are found at T3 pages 11 to 18.

The shared care percentages can be determined in accordance with formal care arrangements such as a family law order or parenting plan or order.

A Family Court Order was made on 4 March 1999 under which Mr Hofman was responsible for the care of the children for 76%of the time and Ms Mearns was responsible for the care of the children for 24% of the time. 

The Social Security Appeals Tribunal considered that the Family Court was the most appropriate determination to use in calculating the percentages of care of Mr Hofman and Ms Mearns for the period in dispute being the period 5 March 2003 to 26 February 2004 and it is this decision that is disputed by Mr Hofman.

The Secretary recognises that even though Family Court Orders are in place the actual pattern of care may differ and that it may be reasonable to determine the shared care percentages for family tax benefit on the basis of actual care, if a consistent pattern of actual care is in place.

In cases where the actual pattern of care is disputed the evidence of the parties and other witnesses, if any, is considered in making the determination.

It is the Secretary’s view that minor variations in the pattern of care should not change a pattern of care determination.  It should be noted that 1% in a year equates to 3.65 days.

Generally the number of nights in care is used to establish a pattern of care, as the person with the overnight care of an FTB child is regarded as having care of the child for that day.  However there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child and the number of hours in care, converted to days in care can be used as it provides a fairer more equitable basis for the determination.

Additionally if a person is prevented from having contact with a child, or fails to return a child after a contact visit this should be taken into account in making the determination.  In these circumstances regard should be had to the steps the person took to regain care of the child, such as contacting police, applying for a hearing in the Family Court or taking out a recovery order through the Court.

Mr Hofman and Ms Mearns have differing recollections over the care arrangements during the period under review.

It is the Secretary’s view that unless the Tribunal is persuaded by the weight of the evidence to change the decision on the facts before it, that the SSAT’s decision should be affirmed.”

Consideration and Decision

17. In reaching a decision the Tribunal took into account the oral and documented evidence, the submissions, the relevant legislation and the policy from the Family Assistance Guide (T3/11-18) (the Guide). The relevant legislation for determining what is the correct percentage of FTB payable to the applicant for the period 5 March 2003 to 26 February 2004 is contained in sections 21, 22, 23, 25 and 59 of A New Tax System (Family Assistance) Act 1999 (the Act). 

18. It is not in dispute that Julian and Amelia are FTB children in accordance with s 22(2) of the Act. The Family Court order in place during the period in question stated that the children were to reside with the applicant and Ms Mearns was to have reasonable contact as outlined in clause 3 (T4/22). The Tribunal is satisfied that based on the Family Court order the respondent has correctly calculated the percentage of care as being 76% for the applicant and 24% for Ms Mearns in accordance with s 59 of the Act.

19.     The applicant has asserted that the Family Court order does not reflect the actual pattern of care during the period in question. In this circumstance the Guide specifies that further verification is required from both carers in order to determine the actual care arrangements. The Tribunal finds that calendars reflect merely the contact Ms Mearns was permitted under the Family Court order. The Tribunal accepts that the applicant raised his concerns over the pattern of care arrangements which resulted in the suggestion from Centrelink that he keep a diary. The veracity and integrity of this diary is however disputed by Ms Mearns. She claimed the applicant had added additional comments to it after she signed it. Mr Hofman agreed that he had done so but submitted that regardless he was entitled to additional FTB. Mr Hofman and Ms Mearns disagreed on virtually every aspect of the events in regard to the contact Ms Mearns had, including when the children were with her and when as she submitted, she was prevented from seeing them. On the basis of the conflicting evidence about the contents of the diary; the fact that it was not signed on a regular basis by Ms Mearns, and that additional comments were added by Mr Hofman unknown to Ms Mearns, the Tribunal concludes that the diary does not form a reliable basis upon which to assess the care arrangements for Julian and Amelia between 5 March 2003 and 26 February 2004. Therefore, the Tribunal concludes that the only objective evidence upon which to base a decision about the percentage of FTB to be paid is the Family Court order.

20.      The Tribunal therefore affirms the decision under review to pay Mr Hofman a shared care rate of FTB of 76% for the period 5 March 2003 to 26 February 2004.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Linda Savage-Davis, Member

Signed:   ………………………………………………..  Associate

Date/s of Hearing               8 February 2005
  31 March 2005
Date of Decision  20 April 2005
Counsel for the Applicant  Self represented  
Advocatel for the Respondent             Aaron Holt, Rhonda Bradley
Advocate for the Second Respondent   Self represented