JANET BELL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS DIANE BELL OTHER PARTY
[2012] AATA 161
•15 March 2012
[2012] AATA 161
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1580
Re
JANET BELL
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
And
RESPONDENT
DIANE BELL
OTHER PARTY
DECISION
Tribunal Senior Member Dr K S Levy RFD
Date 15 March 2012 Place Brisbane 1. The decision under review is set aside.
2. The individual care provided by the applicant for the period under review is 25% and the other party’s contribution is 75%.
3. I remit the matter to the Family Assistance Office for re-calculation of the FTB entitlements of the applicant and the added party for two separate periods – (a) 2 January 2008 to 30 June 2008; and (b) for the period under review, 1 July 2008 to 2 July 2009.
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Senior Member
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – Shared care of child – Percentage of care spent by the child with each party during the relevant period – Various percentages of care determined by Family Assistance Office – Debts raised against both parties – Proportion of FTB allowance determined by percentage of care provided by each party – Decision under review set aside – Remitted to Family Assistance Office for recalculation of proportions of FTB payable
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22(6A), 22(7), 59
Evidence Act 1995 (Cth) ss 78, 140
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Jackson v Lithgow City Council [2010] NSWCA 136
SECONDARY MATERIALS
Family Assistance Guide
REASONS FOR DECISION
Senior Member Dr K S Levy RFD, Senior Member
15 March 2012
THE APPLICATION
The parties in this application are concerned about the correct apportionment of family tax benefit payment (FTB) and debts which have been raised against both the applicant and the added party at various times over the past two years.
The applicant, Janet Bell, was the added party in the matter decided by the Social Security Appeals Tribunal (SSAT) in the decision under review. That decision found a greater percentage of time was spent by the added party (Diane Bell) in the decision under review. The SSAT determined that Diane Bell (the added party in this matter) was entitled to 87% of the FTB and Janet Bell and Anthony Bell were entitled to 13% of the FTB for the period 2 January 2008 to 2 July 2009.
THE EVIDENCE
The evidence in this case has resulted from decisions by the Family Assistance Office, an Authorised Review Officer (ARO) and the SSAT, oscillating between both parties as to the percentage which each was entitled to for the relevant period. These decisions were made as a result of the amount of evidence which was available at those various points in time.
To understand the facts in context, the FTB in question relates to a child of Anthony and Diane Bell. They were originally entitled to 100% of that payment from 1 July 2000 as the child to whom the FTB relates was in their sole care from that date. In 2006, Anthony and Diane Bell separated and Anthony Bell subsequently married his present wife, Janet Bell. The latter couple have, for the period under review, had shared care of the child in question for various periods between 2 January 2008 and 2 July 2009. The child who is the subject of these FTB payments in this application will be referred to as “the FTB child”.
Governmental records show that, owing to either non-response by the added party, or subsequent evidence provided by her or the applicant, that the added party was entitled to various proportions of the FTB until 6 September 2009 when the FTB child was no longer in the added party’s care. Diane Bell, the added party, has been held to be entitled to variously 50%, 0%, 62%, 33% or 20% at various times arising from decisions made in 2010 by the family assistance office, or an ARO. There seems to have been an acceptance by Janet Bell and Anthony Bell, for a period after they were married, that Diane Bell should get the majority of the FTB payment. However, Janet Bell stated that she and Anthony Bell had provided substantial care for the FTB child since 1 January 2008. Debts have since been raised against the parties in relation to payments made to them compared with the evidence which has since been revealed. The applicant’s case is that the level of support she and the child’s father have provided far exceeds the 13% entitlement determined by the SSAT on 17 March 2011. The only period in dispute is 2 January 2008 to 2 July 2009.
The applicant, Janet Bell, and her husband Anthony Bell gave evidence before the Tribunal. The applicant was cross-examined. The applicant called one witness who gave telephone evidence of his perceptions as to the amount of time the FTB child spent with the applicant. The applicant and her husband live in northern New South Wales. The witness who was called lives on the Gold Coast and saw them on some weekends and some nights during the week when he visited the applicant’s house. There were other witnesses statements, none of whom gave oral evidence and none of whose statements were made in affidavit form. The added party also had written statements by persons in support of her case but none of those people were called to give evidence. Likewise, none of those statements were prepared in affidavit form. These persons who provided statements were neighbours or friends who had some contact with the party whom they were giving supportive evidence. All the statements by these persons were opinion evidence.
In any event, all of these statements were not sworn apart from the one witness who was affirmed before giving telephone evidence. The statements in support provided opinions and their observations (often intermittently), of a pattern of behaviour which occurred three or four years ago.
I accept that the opinions are based partly on direct observations of those providing statements for either the applicant or the added party. These are all generally related to the issues before the Tribunal and are therefore admissible in a general sense. Section 78 of the Evidence Act 1995 (Cth) allows for evidence to be admitted as an exception to the prohibition against lay opinions. But that exception applies to evidence which on direct evidence or evidence “otherwise perceived” (s 78(a)). However, s 78 also requires that the evidence must be “necessary” (s 78(b)). This requires a higher standard than that which is “helpful”, “convenient” or “desirable” (see Jackson v Lithgow City Council [2010] NSWCA 136 at [70] – [71] per Basten JA).
I do not regard any of these supporting statements for the applicant or the added party as being “necessary”. Most of the competing evidence for the present applicant and the added party were equally weighted but overall, not of strong weight. In addition, there was the objective evidence of a contemporaneous note made by a call centre officer of the relevant Government agency on 30 June 2008 where the applicant told the officer that the FTB child resided with her and her husband for 50 nights per year. Under cross-examination about that, Mr Bell commented that the record was a misunderstanding and that it should have been 50% not 50 nights. However, Mrs Janet Bell clarified her evidence given to the call centre operator and agreed that she had indicated 50 nights as at 2008.
The FTB child is now 18 years old and was proposed to be called by the applicant as a witness. There was some objection to this by the added party on the basis that the FTB child had been called by her father that morning and was being placed under pressure. However, after indicating the weight of evidence of the statements of opinion in the letters provided by both the applicant and the added party, it was agreed that the FTB child (now an adult) was probably the only person who could provide a more objective assessment of the relative timeframes which she spent when she was 14 to 16 years of age with the applicant and Anthony Bell on the one hand and her mother, Diane Bell, on the other.
All of the parties agreed that the FTB child should be called to give evidence. However, I indicated that I intended to exclude the parties from the hearing room while she gave evidence so that the FTB child could not perceive some degree of intimidation by either parent. I also indicated she would not be compelled to answer but only to provide evidence voluntarily. All parties agreed and evidence was taken on that basis.
The FTB child gave telephone evidence in the knowledge that none of the disputing parties would hear her evidence. She told the Tribunal however that she was not concerned about that and she did not care if “Mum, Dad or Janet” heard what she had to say. Her evidence was that:
(a)she wrote a letter dated 15 June 2009 ( Exhibit2, folio 40) stating that she lived with her mother but “… I do occasionally stay at my father’s house”. She stated that she was assisted in preparing the letter by her mother. I note that she was approximately 16 years of age at that time and living with her mother;
(b)she said that the use of the word “occasionally” is not completely accurate as she stayed at her father’s place for four full weeks “on and off” but that was random and there was not a specific pattern that she could describe;
(c)she did not keep a list of days and cannot now estimate the number of days or proportion of time she spent with either parent. She also spent time at friend’s places when she was on holidays and therefore was with neither parent;
(d)she played sport and her mother often took her down to where her father lived. She also played touch football and stayed at her father’s place; and
(e)under cross-examination, she said she sometimes went to her father’s house for a weekend and that she would stay, for example, until the following Wednesday night.
CONSIDERATION
The issue in this case must be determined in accordance with the legislative provisions of A New Tax System (Family Assistance) Act 1999 (Cth) (the Act). For the period under review, 2 January 2008 to 2 July 2009, the FTB child was 14 years old at the commencement of the period and 16 years old at the conclusion of that period.
The statutory law relevantly provides:
21 When an individual is eligible for family tax benefit in normal circumstances
1An individual is eligible for family tax benefit if:
(a)the individual:
(i) has at least one FTB child; or
(ii) is not an absent overseas recipient and has at least one regular care child who is also a rent assistance child; and
(b)the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); and
(c)the individual’s rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1, is greater than nil.
Also of relevance is s 22(7) of the Act, which provides that with effect from 1 July 2008, a minimum of 35% care must exist for a person to be entitled to Family Tax Benefit. A note to that sub-section provides that if the child was in the care of an individual for less than 35% of the time, “…the child is taken not to be an FTB child (see section 25)”.
A complementary provision is contained in s 59 of the Act which describes where the FTB child is in the shared care of “more than one person who are not members of the same couple”. Succinctly put, if an individual’s shared care is less than 35%, there is no entitlement to a percentage of the FTB.
In coming to a determination in this matter, the Tribunal is obliged to take account of Government policy as far as it is consistent with the statutory provisions. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, Bowen CJ and Deane J said:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. (at 68).
…
In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. (at 69).
The Family Assistance Guide provides that where there is disagreement between the parties, all carers of the child should have an opportunity “to provide additional evidence to support their declared arrangements” (section 2.1.1.30).
The evidence which was largely provided by those supporting the applicant and the added party was opinion evidence and, for the most part, is not sworn evidence and of little weight. The evidence of the applicant and her husband, together with the added party, while also opinion evidence is nevertheless based on their more extensive direct observations and experience. There is disagreement about their evidence which may be due to the passage of time it may also be affected by the fact that there is some emotional involvement with the facts. Nevertheless, I regarded all the witnesses as truthful witnesses despite some inconsistencies in the amount of care they each claim to have provided.
Insofar as the evidence is inconsistent, it is not really concerned with the general pattern of the FTB child’s attendance at her father’s residence (the applicant’s residence). Rather, it is the relative frequency of the pattern. The undisputed pattern is that the FTB child went to her father’s residence and stayed there, sometimes for four weeks, sometimes for a shorter period of say 3-4 days. There are also lesser periods and some weeks where there was no overnight stays at the applicant’s residence.
The frequency is, however, in dispute. The applicant gave evidence of a more frequent attendance of the FTB child at her house than the 13% as was found by the SSAT. Her anecdotal evidence described picking up the child and accommodating her on a very regular basis but was more comparative with the added party’s contribution than a basis to more accurately quantify the frequency of attendance by the FTB child.
The FTB child would not quantify how much time she spent at her father’s place as she said she just could not estimate it. At her age and at the time, she did not make a record and she now feels it would be inaccurate for her to estimate it and wished not to do so. I accept her as a witness of truth. Her evidence is not inconsistent with the general arrangement reflected in the calendars shown in attachment G to exhibit 2 (folios 38 and 39). These are the calendars which accompanied the FTB child’s letter dated 15 June 2009. Those calendars were however compiled by Diane Bell retrospectively from some records she had available to her. They were not prepared contemporaneously with the events and therefore cannot be regarded as strictly accurate. From the evidence provided however I do not regard those calendars as fully reflecting the number of full weeks which the FTB child would have stayed with the applicant and Anthony Bell. Those calendars would put the estimate at 11% of the time where the FTB child stayed with the applicant and her father.
I asked Diane Bell how many full weeks she would estimate the child spent with the applicant and she conceded that perhaps an additional four weeks in total should be added to the 43 days shown in the prepared calendars. This would amount to a total of 71 days or 19% of shared care by the applicant and Anthony Bell.
When the applicant was asked how much additional time was spent, she did not quantify it, but described many examples of support provided. However, I concluded that there was, by implication, a higher level of commitment by the applicant and Anthony Bell than even the 71 days, after taking account of the estimate of Diane Bell. That estimate would make the shared care arrangement for the applicant and Anthony Bell at 19%.
The standard of proof of which I must be satisfied is that of “on the balance of probabilities” (Evidence Act 1995 (Cth), s 140(1)). I can also take into account the nature of the matter and the gravity of the matters alleged (s 140(2)). To be satisfied to the required standard of proof, I must also be convinced of, and have a belief in, the evidence provided by the parties (Briginshaw v Briginshaw (1938) 60 CLR 336). I am satisfied to the required standard of proof that the applicant’s case is higher than 19% (which reflects the added party’s view), but not significantly so. I am conscious that the parties now in dispute can provide no objective evidence to assist in that assessment.
I make a finding of fact the applicant’s claim is greater than 19% on an individual care basis but, as I have said, not significantly greater in the total ratio of time spent comparatively with that of Diane Bell. I find that an additional two to three weeks allowance would not be unreasonable and would not overstate the relative ratios of commitment by the applicant relative to the added party and I find 3 weeks over and above the added party’s estimate is appropriate. Therefore, an additional 3 weeks or 21 days further to the 71 days which takes account of the added party’s concession would amount to a total of 92 days or 25% individual care provided by the applicant and Anthony Bell. Correspondingly, the added party’s commitment would be 75%.
I might add that had there not been direct evidence from the young lady who was the FTB child for the period under review, I would not otherwise have disturbed the finding made by the SSAT, which is consistent with the evidence I received before this Tribunal, other than the evidence of the FTB child herself. That latter evidence would not have been available to the SSAT.
Having found the facts to be applied to the legal questions involved, this will affect the entitlements and therefore the debts due to the Crown by the parties for the period 2 January 2008 to 30 June 2008. I will remit the calculation of entitlements consequent upon those findings, to the Family Assistance Office.
However, these findings of fact will not affect the entitlement of the applicant for the remainder of the period under review, that is, 1 July 2008 to 2 July 2009. That is because a finding of a percentage of shared care, under s 59 of the Act, must be at least 35% of the individual care provided (see s 22 (6A) of the Act). I also remit the calculation of the entitlements for this later period to the Family Assistance Office.
DECISION
The decision under review is set aside.
The individual care provided by the applicant for the period under review is 25% and the other party’s contribution is 75%.
I remit the matter to the Family Assistance office for re-calculation of the FTB entitlements of the applicant and the added party for the period 2 January 2008 to 30 June 2008 and also for the remainder (separate) of the period under review, 1 July 2008 to 2 July 2009.
I certify that the preceding 31 (thirty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD.
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Associate
Dated 15 March 2012
Date(s) of hearing 1 February 2012 Applicant In person Advocate for the Respondent Jasmine Forsyth, Departmental Advocate Other Party In person
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