Kabir and Secretary, Department of Social Services (Social services second review)

[2020] AATA 22

Kabir and Secretary, Department of Social Services (Social services second review) [2020] AATA 22 (13 January 2020)

Division:GENERAL DIVISION

File Number:          2018/5834

Re:Humayun Kabir

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndFa-Mata-Kivalu Fualalo

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:13 January 2020

Place:Brisbane

The decision under review is affirmed.

................................[Sgd].....................................

Member P Ranson

CATCHWORDS

SOCIAL SECURITY - family tax benefit - schoolkids bonus - care period - what is the care period – overnight care - whether the applicant had care of the children more than thirty-five percent – whether the applicant had overnight care of the children - decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

REASONS FOR DECISION

Member P Ranson

13 January 2020

BACKGROUND

1. The Applicant [the Father] and the Other Party [the Mother] are the separated parents of four daughters ranging in age from 18 to 8. The Respondent in this matter is the Secretary, Department of Social Services who takes a neutral position.

2. On 22 June 2017, the Department of Human Services (the Department) decided to record care in relation to the three eldest girls from 27 May 2016 as 0% to the Applicant and 100% to the Other Party (the Decision). This date is significant for two reasons: the Other Party entered into a tenancy agreement in her own name for the first time in respect of a property at Browns Plains; and according to the eldest daughter, who was by then living with her Other Party, the Applicant requested the Other Party take two of the remaining three daughters (the Twins) to live with her.

3. The Applicant failed to notify Centrelink of the change of care and continued to receive Family Tax Benefit (FTB) and Schoolkids Bonus (SKB) to which he was not entitled. On 13 March 2017, the Federal Circuit Court of Australia (FCCA) issued orders that the Other Party has 100% care of the three eldest daughters (the Children).

4. 27 May 2016 to 13 March 2017 is the period under consideration by this decision (the Care Period).

5. The Applicant disagrees that the Children began living full-time with the Other Party from 27 May 2016 and applied to the Social Services and Child Support Division of this Tribunal (AAT1), which affirmed the Decision. Maintaining his disagreement, the Applicant then applied to the General Division of this Tribunal for a further review of the Decision.

6. The Applicant and the Other Party have consistently offered highly conflicting views of the facts in relation to where the children sleep each night. The Applicant is adamant that the Children live with him and sleep at his house five nights a week; whereas the Other Party is adamant the Children live with her and sleep at her house seven nights a week. Both parties provided letters of support from various sources, which provide no clear reference to where the children sleep each night. None of the support letters really helps the Tribunal make this decision.

7. It seems to the Tribunal that the recollections of the Applicant and the Other Party are necessarily inaccurate as they are recalling events which occurred some years ago. What became clear during the Hearing was that the Applicant agreed the Children went to live with the Other Party when she moved into a four-bedroom residence at Browns Plains. As the Other Party has been able to prove that she moved into that residence prior to 27 May 2016, the Tribunal ultimately accepts this is when the Children commenced living full-time with the Other Party and this Decision must be affirmed.

   FACTS

8. The Respondent’s Statement of Facts, Issues and Contentions dated 15 May 2019 (SFIC) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its four attachments were provided to the Applicant and the Other Party prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

   (a)A New Tax System (Family Assistance) Act 1999 (Cth) (the Act); and

   (b)A New Tax System (Family Assistance) (Administration) Act 1999

   (Cth)

   
   

   (the Administration Act).

9. The following documents were admitted into evidence:

Exhibit 1	Section 37 T-Documents.
Exhibit 2	The Respondent’s Statement of Facts, Issues and Contentions with four attachments.
Exhibit 3	E-mail provided by the Applicant on 3 September 2019.

1. The Applicant and the Other Party have four daughters born between 2001 and 2011. Two daughters were both born in 2002 (the Twins). The three eldest daughters are the Children for the purposes of this application. Care of the youngest daughter is not a matter before this Tribunal.

2. In April 2019, the eldest daughter (the Eldest Daughter) provided an undated statement to the Tribunal (the Eldest Daughter’s Statement) in which she states she began to reside with the Other Party on 27 December 2015. She further comments that the Twins began living with the Other Party on 27 May 2016. The contents of the Eldest Daughter’s Statement are discussed in detail later.

3. The Other Party advised Centrelink she had 100% care of the Children from 27 May 2016.

4. Until 13 March 2017, there was no formal agreement or court orders in regard to the care of the children. On 13 March 2017, the FCCA made orders that the Children be 100% in the care of the Other Party and to spend time with the Applicant from 1 pm to 4 pm each alternate Sunday.

5. The Hearing was held on 10 September 2019 (the Hearing). The Applicant, the Other Party and Ms Palmer for the Respondent attended in person. The Applicant and the Other Party gave affirmed evidence.

6. The Respondent identified the issues to be decided as follows:

   ·What is the care period; and if so

   ·What were the care arrangements for the children during the care period.

7. The Applicant had been receiving FTB prior to 27 May 2016 and did not notify Centrelink that the care arrangements had changed. The Applicant continued to receive FTB for the financial years 1 July 2015 to 30 June 2016 and 1 July 2016 to 30 June 2017 together with the SKB for the year ended 30 June 2016 to which he was not entitled if his care of the Children was less than 35%. As a result, the Applicant has accumulated a debt due to Centrelink in excess of $20,000, which is the subject of a separate application and decision.

8. The Applicant claims that the Children remained primarily in his care during the Care Period. He stated in evidence at the Hearing the Children stayed with him at his residence at Dutton Park from Thursday night to Monday night each week and on Tuesday and Wednesday nights they stayed with the Other Party. This, he said, was consistent with the work arrangements of the Other Party, whereby she worked from Thursday to Monday each week with Tuesday and Wednesday as her days off.

9. The Other Party advised her work arrangements during the Care Period were as a food court cleaner at a local shopping centre where she worked Thursday to Monday from

   
   

   9 am to 5 pm. The Tribunal notes that this is consistent with the Applicant’s claim that the Children stayed with him during the Care Period from Thursday night to Monday night to coincide with the work arrangements of the Other Party.

10. Based on the Applicant’s assertion, the pattern of care during the Care Period was five nights per week to the Applicant and two nights per week to the Other Party i.e. 71% care to the Applicant and 29% care to the Other Party. When questioned by the Respondent, the Applicant’s responses were somewhat conflicted however he ultimately agreed that the Children spent most of their time with him until the Other Party moved to Browns Plains (emphasis added) and that most of the time meant five nights per week.

11. The Applicant further claimed the Children could not have stayed with the Other Party as she lived in a two-bedroom unit in Annerley until November 2016 and then in a four-bedroom house at Browns Plains thereafter. The Other Party later clarified she was living at Oxley until she relocated to Browns Plains in December 2015 and visited a friend who lived at Annerley. The Tribunal assumes the Applicant was mistaken with the relevant date and meant November 2015 rather than 2016.

12. When questioned by the Tribunal as to why a four-bedroom house would not be suitable for the children to live with the Other Party, the Applicant advised that the Other Party was living with someone else, including other children, in the Browns Plains residence making the living conditions intolerable for the Children.

13. The Tribunal notes there is an inconsistency in the Applicant’s assertions in regard to whether or not the Children were able to live with the Other Party at the Browns Plains residence. At one point the Applicant stated that the living arrangements at the Browns Plains residence were unsuitable for the Children to live there and stated at another time the Children lived with him until such time as the Other Party moved to Browns Plains. He then further contradicted this by saying that he still had care five nights per week even after the Other Party moved to Browns Plains.

14. The Other Party advised that she relocated to the Browns Plains residence in December 2015 when the Eldest Daughter ceased to reside with the Applicant and commenced to reside with her. The Other Party noted that the original lease of the Browns Plains property from December 2015 was in the name of another person, her sister, as she was unable to obtain the lease in her own name due to her financial circumstances at that time. She advised at the conclusion of the first lease a new lease was entered into in her name alone.

15. The Applicant asserted the Other Party was living with someone else at the Browns Plains residence. The Other Party advised that her sister, who had assisted her in being granted the tenancy, often visited her and no one else lived at the property other than the Children and her.

16. The Other Party advised the Twins would sometimes go to the Applicant’s residence at Dutton Park after school during the Care Period. She advised the Twins would walk there with their friends from Brisbane State High School (BSHS) for the purpose of accessing their iPads and other possessions left with the Applicant. She asserted the Twins would only go to the Dutton Park residence when they knew the Applicant was not there and would then catch the bus from Dutton Park to Browns Plains to return home (TRANSlink bus route 140). The Applicant confirmed at the Hearing the Children have a key to his residence, which is on the fourth floor of the complex, to facilitate their access if he is not there.

17. The Applicant made much of his claim he provided food, clothing and school needs for the Children consistently during the Care Period and subsequently. He seemed to believe providing these things justified his claim of a pattern of care of five nights per week by him. The Tribunal explained to the Applicant in order to determine a pattern of care it was necessary to establish the number of times each parent had overnight care (emphasis added) of the Children and in any event these costs were only what was expected of parents in raising their children.

18. The Other Party asserts she has had 100% of the Children since 27 May 2016 and the Children have not had any contact with the Applicant since then, even though she has encouraged them to do so.

    Letters of support for the Applicant

19. The Applicant provided a letter dated 1 July 2016 from Glenys Williams (the Williams Letter 1)[1], who describes herself as the on-site manager of Dutton Place, which the Applicant advised is the complex where he lives. The letter provides a positive reference for the Applicant as a tenant of Dutton Place and in the fifth paragraph states: “[Redacted] is a fulltime father, we have never seen the mother and [redacted] looks after the children 100%”. The Tribunal notes the date of this letter is shortly after the commencement of the Care Period and the Other Party commented at the Hearing this could be a recollection by the writer of a time before the Care Period when the Children were living with the Applicant rather than a recollection current at the time of writing.

    [1]     Exhibit 1, T Documents, T7, page 59.

20. The Applicant provided a letter dated 4 July 2016 from Steve and Kylie Berry (the Berry Letter 1)[2], who do not state their relationship to the Applicant, which states in the first paragraph: “we have known [redacted] for 18 months, during this time we have witnessed him solely care and provide for his four daughters and witnessed a very unique and special family unit”. As with the William’s Letter 1, the Tribunal notes the date of this letter is shortly after the commencement of the Care Period and the Other Party’s comment at the Hearing this could be a recollection by the writer of a time before the Care period when the Children were living with the Applicant rather than a recollection current at the time of writing. This is borne out by the reference to ‘18 months’.

    [2]     Exhibit 1, T Documents, T7, page 61.

21. The Applicant provided a letter dated 5 July 2016 signed by Dr William Huynh of be well Dental (the Dr Huynh Letter)[3] stating in the first paragraph: “[the eldest daughter] and her father, [redacted], presented to our practice on Wednesday 15/06/16 for an orthodontic assessment.”

    [3]     Exhibit 1, T Documents, T7, page 62.

22. The Applicant provided a letter dated 17 January 2017 from Glenys Williams (the Williams Letter 2)[4] which states at the second paragraph: “[redacted] has resided at [redacted] since September 2014, originally with his family of four daughters [redacted], [redacted], [redacted] and [redacted].” The letter continues in the third paragraph to say: “I have found [redacted] to be an honest man and his daughters were respectful, polite, caring girls. During October and November they were visiting their Father and I particularly remember wishing the twins happy 14^th birthday on [redacted]. They are bright and happy girls often swimming in the pool together and usually come by the office to say hello to us”. The Tribunal notes the reference to ‘visiting’ rather than staying with the Applicant and the reference to ‘originally’ thereby implying that some or all of the four daughters are no longer living with the Applicant.

    [4]     Exhibit 1, T Documents, T7, page 66.

23. The Applicant provided a letter dated 17 January 2017 from Kylie Berry (the Berry Letter 2)[5], which states in the first paragraph: “We have known [redacted] and his children since February 2015. During this time, we have witnessed [redacted] care for his 4 daughters and at times has taken care of our daughters 10 and 4”. The letter continues in the second paragraph: “Every time we have seen the children with their father and as individuals they seem happy, healthy and very content”. The reference in this letter is witnessing the care of the Children by the Applicant. It does not imply the Children are living with the Applicant.

    [5]     Exhibit 1, T Documents, T7, page 67.

24. The Applicant provided a letter dated 23 January 2017 from Tanya O’Dempsey, Director OZepoxy grouting specialists (the O’Dempsey Letter)[6], in which she states in the third paragraph: “I have also seen and spoken to [redacted] other two daughters quite a few times around October/November, usually while they were at the pool with [redacted]. They appeared to be a very close family, polite and always happy”. The writer here is commenting about visitations around October and November 2016 and sightings by the pool. Similarly this letter does not imply the Children are living with the Applicant.

    [6]     Exhibit 1, T Documents, T7, page 68.

25. The letters set out above viz. the O’Dempsey Letter, the Berry Letter 1, the Berry Letter 2 and the Williams Letter 1 and the Williams Letter 2 (collectively, the Support Letters) clearly show that at least some of the Children did visit the Applicant during the Care Period, and in particular in October and November 2016. The letters also concur that, at least in the presence of the writers, the Children seemed to be happy to be with the Applicant. The Dr Huynh Letter confirms that the Eldest Daughter was with the Applicant in July 2016 when she attended an orthodontic assessment with him. The Other Party has stated that from 27 May 2016, the Children were 100% in her care and had no contact further with the Applicant. The Support Letters and the Dr Huynh Letter suggest otherwise.

26. What the Support Letters and the Dr Huynh Letter don’t provide is evidence to support the claim by the Applicant that the Children were in his overnight care for five or any other number of nights per week. The Tribunal considers the best interpretation of the Support Letters and the Dr Huynh Letter is the Children did have some contact with the Applicant during the Care Period and were happy to do so, even though they were not in his overnight care.

    Statement from the Eldest Daughter

27. Of particular importance to the Tribunal in this decision is the Eldest Daughter’s Statement.[7] Because of its importance, it is reproduced below:

    “On the 27^th of December 2015, I began to reside with my mother [redacted] due to the fact my father [redacted] kicked me out. Between my first living with my mother and May 2016, my dad did try to attempt to make me come back and live with him to which I refused due to the fear of having to be kicked out again. Then, on May 27th 2016, my sisters [redacted] moved in with us for the same reason I had moved. My father rang my mother that night to pick up the twins as he did not want to deal with them anymore. I quite clearly remember this night because it as the day before my baptism at the Church of Jesus Christ of Latter Day Saints to which my sisters then attended because they started living with us. (I will attach an image of my baptism program and my family at my baptism) There were multiple occasions where my father tried to reach out to us, yet it only caused fear. Once my father got the idea that we were rejecting him, he got aggressive. For example, on a night in around June my father had come to pick up my youngest sister [redacted] and was very aggressive. Banging the windows and doors, swearing at our visitors and causing such a huge fuss that we called the police. We have not once gone to live with our father, nor visit him in his home when we started residing with our mother”.

    [7]     Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, dated 15 May 2019, attachment C.

28. The Applicant claims that the Other Party encouraged the Eldest Daughter to write the Eldest Daughter’s Statement and concluded the Eldest Daughter must be suffering from a mental illness, which seems to the Tribunal to be an extraordinary statement by the Applicant. On the surface, the Eldest Daughter’s Statement appears to support the claim by the Other Party the Children were 100% in her care from 27 May 2016 and had no further contact with the Applicant thereafter. The difficulty for the Tribunal is the Support Letters clearly support the notion the Twins and the youngest daughter did have contact with the Applicant during the Care Period. The Dr Huynh Letter supports the notion the Eldest Daughter did have some contact with the Applicant during the Care Period, for example, the dentist visit. Both of these are somewhat contrary to the content of the Eldest Daughter’s Statement. Further, the Other Party did acknowledge sometimes after school the Twins would walk from BSHS to the Applicant’s residence in Dutton Park in order to use their iPads.

29. The Eldest Daughter was not present at the Hearing and so did not provide oral evidence and confirm the contents of her written statement. The Eldest Daughter’s Statement is nonetheless the only evidence from anyone, other than the Applicant and the Other Party, to directly identify where the Children stayed each night during the Care Period. Whilst the Eldest Daughter is not at arm’s length to either the Applicant or the Other Party, she was 17 at the time she wrote her statement and so some weight must be given to it.

    Post-hearing submissions

1. The Applicant and the Other Party were directed by the Tribunal to provide additional information to support the assertions they made during the Hearing.

2. The Other Party was asked to provide copies of the tenancy agreements for the Browns Plains residence to show when the property was available to her and that the lease was in her name. Copies of the leases were provided and show that the initial lease commenced 27 November 2015 for a period of six months and the first lessee was [redacted], who the Other Party identified as her sister. The Other Party was also listed as a tenant on the initial agreement. The second lease is for 12 months commencing 27 May 2016, which is the day the Twins are said to have left the Applicant and commenced living with the Other Party. The tenant identified on the second lease is the Other Party alone although [redacted] was originally included and manually crossed out. The alteration to the agreement was initialled by the Other Party. Subsequent tenancy agreements remain in the name of the Other Party and cover periods up to 27 June 2019.

3. The Tribunal finds that the Other Party was living at the Browns Plains residence at all relevant times.

4. Both parents were asked to seek further letters of support for their position particularly if such support letters could in any way confirm where the Children slept overnight. Nothing further was provided by the Other Party. The Applicant resent the Support Letters, which as described above, demonstrate that the Children visited the Dutton Park residence from time to time but do not lend any weight to his assertion that the Children slept at his residence at any time during the Care Period.

5. The Applicant was asked to provide records to support his assertion that he sometimes sent the Children to BSHS via Uber. No such records were provided.

6. The Applicant did provide a copy of a letter from Centrelink dated 3 August 2016 addressed to him at the Browns Plains residence, which the Tribunal accepts was never his residence. The Applicant asserts the Other Party fraudulently changed his address with Centrelink to the Browns Plains address yet provided no evidence to corroborate that assertion. He may have changed the address himself. The Tribunal notes from later Centrelink correspondence to the Applicant the address was subsequently changed back to the Dutton Park residence. However the address was changed, it does not offer any evidence of where the Children slept at night during the Care Period.

7. The Tribunal finds a pattern of care has been established and reveals the Applicant has nil nights of care of the Children per annum which equates to 0% and therefore the Other Party has 100% care of the Children because:

   ·the Applicant agreed the Children were living with the Other Party at least from date the tenancy agreement was solely in the name of the Other Party, viz. 27 May 2016;

   ·the Support Letters and the Dr Huynh Letter confirm the Children had contact with the Applicant during the Care period but offer no support to his assertion the Children stayed overnight with him five nights per week; and

   ·the Eldest Daughter’s Statement, whilst not entirely arm’s length because of the family relationship, is the only real evidence before the Tribunal to confirm where the Children were living during the Care Period.

8. Accordingly, the Tribunal affirms the existing care determination. This means the Applicant has not entitlement to receive FTB or SKB from 27 May 2016.

   WHEN DID THE CARE PERIOD COMMENCE?

9. The Tribunal finds that the Care Period is 12 months from 27 May 2016.

   CONCLUSION

10. The decision under review is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

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Associate

Dated: 13 January 2020

Date of hearing:

10 September 2019

Date final submissions received:

1 October 2019

Applicant:

In person, self-represented

Solicitors for the Respondent:

Ms L Palmer

Department of Human Services

Other Party:

In person, self-represented