Kohen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor
[2009] AATA 511
•6 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 511
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2008/3930
GENERAL ADMINISTRATIVE DIVISION )
ReNIVA KOHEN
Applicant
AndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
First Respondent
DAIVED ROS
Second Respondent
DECISION
TribunalMr P W Taylor SC, Senior Member
Date6 July 2009
PlaceSydney
DecisionThe decision under review is set aside. In substitution for the decision under review the Tribunal decides that Mr Ros was not entitled to Family Tax Benefit for any part of the period from 7 September 2006 to 21 August 2007.
.................[sgd].............................
Mr P W Taylor SC
Senior Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – shared care arrangements – decision under review set aside
REASONS FOR DECISION
6 July 2009
Mr P W Taylor SC, Senior Member
1. Mr Ros and Ms Kohen dispute their respective entitlements for Family Tax Benefit (FTB) for the period from 7 September 2006 to 21 August 2007. For many years Ms Kohen received the FTB relating to their four children. On 11 May 2007 Mr Ros successfully claimed part of the FTB for the period after 7 September 2006. On 28 May 2007 he received $3,609.43. He continued to receive FTB payments until 21 August 2007.
2. Ms Kohen says she had the preponderant care responsibility for the children throughout the whole period of Mr Ros’s claim. She objected, initially successfully, to the Secretary’s decision to recover from her overpayments for the period from 7 September 2006 to 28 May 2007 – a decision that resulted from granting Mr Ros’s claim. But after the Secretary’s 22 August 2007 decisions to restore Ms Kohen’s FTB payments, and recover the payments that had been made to him, Mr Ros successfully appealed to the Social Security Appeals Tribunal (SSAT). In May 2008 the SSAT decided Mr Ros was entitled to FTB for the period he claimed. Ms Kohen, again facing a consequential debt arising from overpayment, has applied to the Tribunal to review the SSAT’s decision.
Mr Ros’s FTB claim
3. The basis of Mr Ros’s FTB claim relates back, indirectly, to access proceedings he started in the Family Court of Australia in 2005. After some contest, Mr Ros and Ms Kohen agreed to resolve the proceedings. They did so by consenting to orders that were made on 25 May 2006. The orders gave Mr Ros access under arrangements that were to start on 1 September 2006, and slightly increase in the following December and March. The intended effect of the arrangements were that Mr Ros would initially have the children on two week days for two hours, and six hours on each Saturday. That was ultimately to increase to nine hours on each Saturday and on alternate Sundays. These arrangements did not alter Ms Kohen’s entitlement to continue to receive the whole of the applicable FTB.
4. There was no agreement for overnight access in the May 2006 Family Court orders. But Mr Ros’s 11 May 2007 FTB application asserted that overnight access arrangements had in fact operated since 7 September 2006. The details of these new care arrangements were described in a “Details of your child’s care arrangements” form completed on 9 May 2007. Mr Ros wrote the details on the form. But he said Ms Kohen was present and told him what to write. They both signed the “Details” form on the same page where the altered access arrangements were described. Under those altered arrangements, there was no mid week access, but Mr Ros was said to take the children for overnight stays every Friday until Sunday evening, as well as half of the school holidays. There were also extended access hours on various family birthdays and certain days of religious significance.
Contention raised and resolved
5. Mr Ros’s FTB application provoked controversy soon after it was lodged. Centrelink telephoned Ms Kohen on 18 May 2007 to confirm the care arrangements. She initially said the information in the 9 May 2007 “Details” form was accurate. Then she said it was not. She said Mr Ros had only made the application to help in his application for assistance from the NSW Department of Housing. The Centrelink officer who had contacted Ms Kohen then cautioned her about giving inconsistent information. Ms Kohen said she would think about the situation and ring back.
6. Ms Kohen rang Centrelink back on 24 May 2007. In this telephone conversation she said the care arrangements were less than those in the 9 May 2007 “Details” document. The main difference was that overnight access on Fridays was only every alternate Friday. Consequently, the access arrangement that Ms Kohen said had operated since 7 September 2006 was that Mr Ros had the children overnight every Saturday and on alternate Fridays. He also had the children for half the school holidays and for one night at Eid in February and November. When Centrelink contacted Mr Ros about this new information, he told Centrelink he would agree with what Ms Kohen had said.
7. A very simplified (and perhaps not scrupulously accurate) way of characterising this arrangement is that Mr Ros had the care of the children for about 2 days, or 28 per cent, of each week. Centrelink’s note of the 24 May 2007 telephone conversation records a similar percentage calculation. It also records Ms Kohen’s acknowledgment that the arrangement would result in her having an FTB repayment obligation – for the proportion of the payments she had received during the period of Mr Ros’s claim.
8. On 24 May 2007 the Secretary formally approved Mr Ros’s FTB application. On 25 May 2007 Centrelink advised Ms Kohen her FTB care percentage was 72 per cent and that she had been overpaid from 7 September 2006 to 15 May 2007. Centrelink sought to recover $3,010.03 from her.
Contention revived
9. Notwithstanding the repayment obligation she had acknowledged in the telephone conversation on 24 May 2007, Ms Kohen contacted Centrelink on 31 May 2007. She complained about the reduction in her FTB entitlement. She said she had signed the 9 May 2007 “Details” form under pressure. She wanted the matter reviewed.
10. Four weeks later, on 27 June 2007, Ms Kohen contacted Centrelink again and asked whether her FTB payments could be increased. She said Mr Ros was ill, and had just moved back in with her so she could look after him. She was told her payments could only be increased with Mr Ros’s agreement.
11. Ms Kohen contacted Centrelink again on 6 July 2007. She said Mr Ros was refusing to sign anything about the children’s care arrangements. She was told to keep a diary and other documentary evidence of the level of care. A few days later, on 11 July 2007, Ms Kohen went to Centrelink’s Campsie office. This time she said she had sole responsibility for the children, and she took away a Details of your child’s care arrangements form. On 18 July 2007, she lodged the new “Details” form with Centrelink. In the new “Details” form she said Mr Ros had been staying with her for six weeks, but he had not shared any care responsibilities for more than five weeks. She said he was using her and the children and had merely been pretending to be sick in order to get her to feel sorry for him. She followed up her application with Centrelink, and repeated her complaints about Mr Ros, on several occasions between 18 July and 15 or 16 August 2007.
Mr Ros’s FTB payments stopped
12. On 15 August 2007 Ms Kohen reported to Centrelink that Mr Ros had threatened her over the care arrangement dispute, and she was pursuing an application for an apprehended violence order. On 16 August 2007 Mr Ros went to see Ms Kohen. While he was with her he telephoned Centrelink. He claimed she now agreed that he had 28 per cent care of the children. He put Ms Kohen on the phone. She promptly said she did not agree. She complained that Mr Ros was trying to make her say that she did agree.
13. Confronted with Mr Ros and Ms Kohen’s contradictory claims the Secretary considered that both were unreliable. The Secretary decided that the actual arrangements for the children were most likely to have been those prescribed in the Family Court orders of 25 May 2006. Under those orders Mr Ros had limited responsibilities and was not eligible for FTB. Centrelink decided to recover the FTB overpayments from Mr Ros.
14. On 22 August 2007 Centrelink wrote to Mr Ros informing him that he was not entitled to FTB and would have to repay the $7,033.32 he had been paid up to 30 June 2007.
15. On 23 August 2007 Ms Kohen again told Centrelink that she had only signed the 9 May 2007 “Details” form under pressure from Mr Ros. She again said that he was trying to get a house from the Department of Housing, and was using the children for that purpose. She wanted Centrelink to reverse the decision to pay any FTB to Mr Ros. The following day, 24 August 2007, Ms Kohen contacted Centrelink again. Mr Ros was still at Ms Kohen’s home. He also spoke to Centrelink. He said he did care for the children. He said Ms Kohen was not being truthful.
16. The following day, 25 August 2007, Ms Kohen says that she and Mr Ros had a violent argument. She says he assaulted her. In any event, she called the police and he packed up his things and left.
17. Following an internal review on 24 September 2007 Centrelink affirmed the decision that Mr Ros had not been entitled to receive any FTB, but recalculated the debt amounts. The amounts Centrelink sought to recover from Mr Ros, and the periods to which they relate, were as follows.
Period Amount Start End 07-Sep-06 30-Jun-07 5,272.95 01-Jul-07 21-Aug-07 1,159.08 Total 6,432.03
The 29 May 2008 SSAT Decision
18. The SSAT set aside the Secretary’s decision. The SSAT determined that Mr Ros had cared for the children in accordance with the 9 May 2007 “Details” form. In coming to this result the SSAT recorded Mr Ros’s claims that:
(a)The children’s overnight stays had started with the very first Saturday access in September 2006;
(b)The children usually stayed overnight with him one or two weeknights every fortnight and every Friday and Saturday, and Ms Kohen very often stayed overnight with them;
(c)The children, and Ms Kohen, had stayed with him for 10 days in the October 2006 school holidays, and again for about a month in November 2006 after his mother died;
(d)The children stayed with him for about a month in the December 2006/January 2007 school holidays, and Ms Kohen stayed with them for about six or seven nights.
19. The SSAT did not accept that the children’s stays with Mr Ros were as extensive as he claimed. In particular, it was sceptical of his claim that the children regularly stayed with him on weeknights. This scepticism was justified not only by the absence of any such claim from the 9 May 2007 “Details” document, but also by his extravagant claim, in September 2007 to the Authorised Review Officer (ARO), that Ms Kohen and the children spent 80 per cent of the time with him at his home. Nevertheless, the SSAT considered Mr Ros’s claims were, at least partly, corroborated by evidence:
(a)from Ms Sarah Saleh, a friend of both Mr Ros and Ms Kohen, that the children had indeed stayed overnight at Mr Ros’s unit at Victoria Road, Punchbowl, on Fridays, Saturdays and Sundays, and again “for nearly one week” after Mr Ros’s mother died in November 2006;
(b)in the ARO’s notes, attributing to Ms Kohen a concession that she and the children had indeed stayed overnight at Mr Ros’s unit, at least for a time;
(c)from Mrs Natalie Samrani, that between January and July 2007 she let premises at Moxon Road, Punchbowl to Mr Ros, and that the children had stayed there regularly overnight during the week, and on weekends, for about seven to eight months;
(d)that he had purchased four beds for the children in January 2007;
(e)that he had rented videos, games and DVDs between 25 May and 10 August 2007.
20. Unable to accept confidently the entirety of either Mr Ros’s claims, or Ms Kohen’s contradictions of them, the SSAT decided that the “most reasonable conclusion to come to” was that the 9 May 2007 arrangement in the “Details of your child’s care arrangements” described the care that had actually been provided by the respective parents. The SSAT considered that this provided the middle ground between the competing evidence and was, at least partly, supported by the evidence of Ms Saleh and Ms Samrani.
21. Under the 9 May 2007 “Details” Mr Ros would have been entitled to some FTB. The SSAT therefore decided to send the matter back for reconsideration, and recalculation of the FTB to which Mr Ros was properly entitled. The consequence of the SSAT’s decision was to revive, and substantially increase, an overpayment claim against Ms Kohen. The debt amount raised against her as a result of the SSAT’s decision was $5,158.56.
Ms Kohen’s position
22. Ms Kohen says she has always had the predominant care responsibility for the children. The 9 May 2007 “Details” are not true. Neither is what she said to Centrelink in the 24 May 2007 telephone conversation. The true position was as she later reported it in July and August – Mr Ros did not take the children on weekends and did not have any ongoing overnight access. She had lied to Centrelink, in connection with Mr Ros’s FTB application because he had been evicted from his unit at Victoria Road, Punchbowl and had moved into her house in early 2007. She was frightened of him and terrified of his violent ways. She wanted him to leave. She hoped his FTB application would help his chances of getting housing assistance from the Department of Housing. Her co-operation with his FTB application was her attempt to get Mr Ros out of her house, away from her and away from the children.
Unlikelihood the access arrangements were changed as Mr Ros claims
23. Ms Kohen complains that Mr Ros has been violent to her, and to the children, on many occasions and over a long period. They have been separated for a long time and Mr Ros had no contact with the children in the three years before the Family Court proceedings in 2005 and 2006. I would infer that, for a long time, their relationship has not been harmonious and that, having regard to Mr Ros’s own evidence (to which I refer later), it was not harmonious even after those proceedings.
24. Whatever the precise accuracy of Ms Kohen’s complaints about Mr Ros’s past violence, it is difficult to accept Mr Ros’s claim that, from the first weekend access visit in September 2006, Ms Kohen and he were able to agree on new access arrangements that very significantly enlarged those detailed in the 25 May 2006 Family Court orders. Those orders, which Ms Kohen said had been made by consent to resolve the proceedings, involved Mr Ros having progressively increasing access hours over a six month period. Moreover, although the orders had been made in May 2006, the agreed access regime was not to start until September 2006. Certainly the staged incremental access regime, and perhaps also the agreed delay before it started, suggests a considerable degree of parental caution. Mr Ros’s version of events would have it that within a week of the access arrangements being implemented, they were departed from, and immediately involved overnight access on both Friday and Saturday nights.
25. Apart from the commendable fact of Mr Ros’s apparent desire to establish regular harmonious conduct with his children, no evidence demonstrates any dramatic improvement in the family relationships between May and September 2006. Mr Ros said that the delayed start in the access arrangements was to facilitate family counselling. He said Ms Kohen had demeaned him to the children and the counselling period was intended to address that issue and facilitate access. He even suggested that Ms Kohen had been warned by the Family Court to change her attitude to him or risk losing custody of the children. Given the family’s apparently troubled background the Family Court may well have encouraged the parents to work at improving their relationship. But in May 2006 the children were aged between 6 and 10. There was one 9 year old boy and three girls – aged 6, 7 and 10. It is rather unlikely, to my mind, to suppose that discord between Mr Ros and Ms Kohen, given his long history of lack of involvement with the children, would have led to any serious suggestion that children of these ages and gender might be removed from Ms Kohen’s care. In any event, if there was any substance in this explanation of Mr Ros's it hardly increases the likelihood, or my inclination to accept, that the access arrangements were so promptly and amicably expanded in the manner Mr Ros claims.
26. In that context, I note that the May 2006 Family Court orders made no provision for overnight access for any of the children. Any question of access of that kind was to occur only in accordance with a recommendation by the family counselling service the parties had been attending. Mr Ros does not suggest that the counsellor ever made any recommendation for overnight access. Even on his own case he did not even tell the counselling service that the children were staying with him overnight.
Absence of substantial Evidence supporting Mr Ros’s claim
27. There is little evidence, other than Mr Ros’s own claim, to substantiate the significant departure from the carefully formulated access orders of May 2006 that he says occurred.
28. Ms Kohen agrees that the access arrangements in the May 2006 orders did not operate for long. But she says this was because Mr Ros was not reliable and consistent in taking the children. Ms Kohen says that after the first week in September 2006 Mr Ros was sometimes late returning the children. Then, after three or four access visits, Mr Ros asked to vary the arrangements. After that he only took the children on occasional Saturdays, or visited them at Ms Kohen’s home at Marrickville.
29. Ms Kohen, in telephone evidence to the SSAT, said that the children had stayed overnight with Mr Ros. But this was only on four Saturday nights – twice in October 2006 and twice in November 2006. She denied staying overnight at Mr Ros’s unit, except one Saturday and Sunday in November 2006 when Mr Ros’s mother died. The children did not spend four weeks staying with Mr Ros over the Christmas holiday period in 2006. Nor did she stay with him at all in that period.
30. Ms Kohen’s evidence to this Tribunal did not include any agreement that the children had stayed overnight with Mr Ros on any occasion – other than after Mr Ros’s mother died in November 2006. Overall Ms Kohen’s version of events, describing much more limited access arrangements than those Mr Ros claimed, is consistent with the evidence of other witnesses.
Latifa Dib
31. Ms Dib knows both Mr Ros and Ms Kohen. She lived near Mr Ros’s Victoria Road unit. She met Ms Kohen in 2005. She also knows Ms Saleh. Ms Dib only recalls seeing the children at Mr Ros’s unit on one occasion. This was after Mr Ros’s mother died, in November 2006. Ms Kohen was also there at the time and was, in Ms Dib’s view, “in charge of condolences”. That was also the only time she saw Ms Kohen at the Victoria Road unit.
32. Ms Dib may also have seen the children on other occasions, at Ms Saleh’s house. She complained that Mr Ros used to leave them at Ms Saleh’s house and go out and play the poker machines.
33. Ms Dib remembered that Ms Kohen had moved from Marrickville to Thomas Street, Croydon in the early part of 2007. She was good friends with Ms Kohen and used to visit her once or twice a week. Mr Ros was living there and she often saw him there. Mr Ros and Ms Kohen fought a lot in front of her. Ms Dib claimed she had seen Mr Ros become very abusive and aggressive. Ms Dib said she was very scared of him. She said he was “always” aggressive towards Ms Kohen’s children. He had also told her that he wanted to use the children to get money from Centrelink to assist him to get a housing commission property.
Sarah Saleh
34. Ms Saleh is also a friend of Mr Ros. She provided a statutory declaration, dated 20 August 2007. In the declaration she said that in September 2006 the children slept over at Mr Ros’s apartment on Fridays, Saturdays and Sundays. She said she had helped him with the children, cleaning and cooking. She also said that she met Ms Kohen and became friends with her. She saw that Ms Kohen started to sleep over with the children at Mr Ros’s unit. More particularly she told the SSAT that Ms Kohen stayed overnight for about a week after Mr Ros’s mother died in November 2006.
35. The SSAT placed “significant weight” on Ms Saleh’s evidence. But her oral evidence to this Tribunal was rather different. It provided little support to Mr Ros’s claim.
36. In her telephone evidence to the Tribunal Ms Saleh gave evidence with the assistance of a Lebanese interpreter. She was at pains to emphasise her difficulties with the English language, notwithstanding her August 2007 declaration. Perhaps because of the language difficulties, her answers tended to be expansive rather than directly responsive to the question intended to be asked. Whilst that tended to be somewhat distracting at times, it gave her oral evidence an apparently genuine and disarming spontaneity. Furthermore, Ms Saleh had her passport with her when she gave evidence to the Tribunal. By referring to the passport she was able to establish some objective dates when she had travelled between Australia and Lebanon in 2006 and 2007. Prompted by those dates, and her own recollection of events to which they pointed, Ms Saleh’s oral evidence to the Tribunal contradicted important details contained in her August 2007 declaration.
37. Most significantly, Ms Saleh’s oral evidence indicated she had no direct personal knowledge of the children staying overnight with Mr Ros in September 2006. Ms Saleh told the Tribunal that she had seen the children at Mr Ros’s unit in Victoria Road on only two or three occasions during the later part of 2006. This was not in September 2006. She said Ramadan started on 3 September 2006 that year. Ms Salem said she did not see Mr Ros, or the children, at all after Ramadan started.
38. Ms Saleh’s recollection of when she saw the children at Mr Ros’s Victoria Road unit might conceivably have related to periods in early October or after late November 2006. Those dates mark the limits of when she could have seen them at the unit. This is because, according to the dates in her passport, Ms Saleh went to Lebanon on 25 October 2006 and did not return to Australia until 22 November 2006.
39. It is most likely that Ms Saleh’s recollection of seeing the children at Mr Ros’s Victoria Road unit relates to the period in and after November 2006. Ms Saleh certainly recalled that she returned to Australia on 22 November 2006 a few days after Mr Ros’s mother died. She said the family invited them to go and visit at Mr Ros’s Victoria Road unit. She saw Ms Kohen and the children there. Ms Saleh said she recalled Mr Ros wanting the children to stay there with him on that occasion. But she did not recall knowing whether or not Ms Kohen had also stayed.
40. Given the apparent contradiction between Ms Saleh’s August 2007 declaration (referring to the children staying over night with Mr Ros in September 2006), and her oral evidence to the Tribunal, Ms Saleh was asked to recollect how many times she had seen the children at Mr Ros’s Victoria Road unit – apart from the occasion relating to the death of Mr Ros’s mother. Ms Saleh said she thought it was only two or three times.
41. Ms Saleh went to Lebanon again on 27 December 2006. When she came back is not very clear, because she said she had difficulty reading some of the dates in her passport. At one stage she said she returned on 12 June 2007. But she must have returned much earlier, sometime before March 2007. This must be so because her passport recorded another departure from Australia to Lebanon on 24 March 2007. Ms Saleh said that when she went to Lebanon on that occasion she had stayed for about three months – a period that might explain her reference to having returned to Australia on 12 June 2007.
42. Ms Saleh recollected knowing that Ms Kohen had moved into the property at Thomas Street, Croydon. This was some time after Mr Ros’s mother had died. It was Ms Saleh’s understanding that Mr Ros was also staying at the Croydon house with Ms Kohen and the children. About a month after her second return to Australia, which was in fact probably sometime in about mid June 2007, Ms Saleh learnt that Mr Ros and Ms Kohen had had a fight and he had left the Croydon home.
43. Ms Saleh said she knew Mr Ros used to work at a welding business in Moxon Road. She had gone there twice, when she had been asked to bring some cigarettes. But she said she never knew that Mr Ros was living there.
44. When the details of Ms Saleh’s evidence are properly understood they provide little support for Mr Ros’s claims in relation to the care of the children. She effectively disavowed any knowledge of the children staying overnight with Mr Ros in September 2006. She could not, from her own observations, provide any significant evidence that the children regularly stayed with Mr Ros – either at his Victoria Road unit or anywhere else. Indeed, Ms Saleh’s evidence relating to the Croydon property strongly corroborated Ms Kohen’s claim that Mr Ros lived with her there for most of the first half of 2007.
Mr Wally Koyder
45. Mr Wally Koyder has known Mr Ros for about six or seven years. The frequency of their contact suggests they were quite good friends. He actually helped Mr Ros find the unit at Victoria Road, Punchbowl. Mr Ros told him that he was wanting a large place so that his children could come and stay with him.
46. Mr Koyder recalled going to McDonald’s (the well known fast food chain), with his own son, on about two or three occasions, to meet Mr Ros’s children. Under the 25 May 2006 Family Court orders a conveniently located McDonald’s restaurant nominated by Ms Kohen was to be the meeting place for the children’s access visits with Mr Ros. It seems likely, therefore, that Mr Koyder was involved in at least some of the access visits.
47. Consistent with that possibility, Mr Koyder said he sometimes saw the children at Mr Ros’s Victoria Road unit. He could not give any dates for these visits. He thought they were in the latter part of Mr Ros’s time there – namely the latter part of 2006. Mr Koyder said he took his 15 year old son with him and the children played together. Sometimes Mr Koyder saw Ms Kohen as well. Mr Koyder thought he used to visit Mr Ros as often as twice a week. Sometimes his son even slept over.
48. However, Mr Koyder was very imprecise about the details of these events. He said that he best remembered seeing Ms Kohen at the Victoria Road unit after Mr Ros’s mother had died (that is, in late November 2006). After that he saw the children at the unit sometimes.
49. Given the imprecision of Mr Koyder’s evidence I do not regard it as establishing that Mr Ros’s children regularly stayed overnight with him at the Victoria Road unit. At the most, his evidence suggests that any such stays were occasional. Yet that proposition was disavowed by Ms Kohen, and is most unlikely to be true in relation to the eldest daughter. The occasional overnight visits that Mr Koyder imprecisely claimed to remember do not meaningfully support the substance of Mr Ros’s care claim.
50. Mr Koyder lent Mr Ros his van when Mr Ros shifted to the Moxon Road property (to which I refer later). He thought this was in early or mid-2007. Mr Samrani and Mr Ros told Mr Koyder that Mr Ros was living there, but Mr Koyder did not visit Mr Ros much at the Moxon Road property - maybe only two or three times and never on weekends. On the very few occasions when Mr Koyder did call in at Moxon Road he and Mr Ros would just chat out the front. He never went inside the Moxon Road property. He never saw the children there.
51. Mr Koyder’s evidence about his very infrequent visits to Mr Ros at the Moxon Road property is significant. It is significant because it appears to contrast dramatically with the regularity of his contact with Mr Ros in the latter part of 2006, and his recollection of seeing the children at Mr Ros’s Victoria Road unit. The point to be made is that Mr Koyder, apparently a good friend of Mr Ros and having some association with the children during at least some access visits in 2006, had no contact with them in the first half of 2007. The contrast is certainly consistent with Ms Kohen’s claim that in 2007 Mr Ros was playing virtually no role in caring for the children.
Sam Curtis
52. Mr Curtis is one of Mr Ros’s family friends. They have known each other for about 10 years. Mr Curtis considers himself a good friend of Mr Ros. He used to visit Mr Ros a lot at his Victoria Road unit. He once even stayed there overnight. He never saw the children there.
53. Mr Curtis was an elderly man. He was hard of hearing and also gave evidence with the assistance of a Lebanese interpreter. I suspect that either his recollection or his understanding might have been a little deficient. For example, it is perhaps surprising, given his longstanding friendship with Mr Ros, that he did not refer to seeing the children at the Victoria Street unit after Mr Ros’s mother died. But the fact is he did not. His recollection is that he did not meet any of the children until Mr Ros moved from the Moxon Road factory to a new address at Stacey Street, Bankstown (apparently in the latter part of 2007).
54. Nothing in Mr Curtis’s evidence supports Mr Ros claims about the details of his care responsibilities for the four children between September 2006 and August 2007.
Mr Ros had no appropriate separate accommodation after January 2007
55. One of the things that makes it particularly difficult to accept Mr Ros’s care claims is the conflicting evidence about where he lived after his eviction from his Victoria Road unit. On 19 December 2006 the landlord of the premises had obtained an order for possession. On 23 January 2007 the Consumer, Trader and Tenancy Tribunal wrote to Mr Ros giving him notice that the landlord had obtained a warrant for possession of the property, and it would shortly be executed by the Sheriff.
56. Precisely when Mr Ros ultimately vacated the Victoria Road unit is not entirely clear. He said his best recollection was in February or March 2007. However, it is unlikely that he would have been able to forestall the Sheriff taking possession for long after 23 January 2007. Ms Kohen’s evidence was that Mr Ros shifted in with her, into her new residence at Thomas Street Croydon, sometime in January 2007. Mrs Samrani’s evidence (to which I refer later) was that she gave Mr Ros a six month lease of part of the premises at Moxon Road, and that it expired at the end of July 2007. On either account, it is highly likely that Mr Ros vacated the Victoria Road unit on, or very shortly after, 23 January 2007.
Mr Ros’s claims about Moxon Road
57. There is considerable evidence suggesting that Mr Ros moved into Ms Kohen’s house at Thomas Street, Croydon in early January 2007. I have already referred to some of this evidence (from Ms Dib and Ms Saleh). I will refer later to other evidence. Nevertheless, Mr Ros claims he was living at the Moxon Road property. He denies he was living with Ms Kohen. He says he used to take the children to stay with him at the Moxon Road premises.
58. This claim appeared to be supported by a very short “To whom it may concern” statement Mrs Natalie Samrani typed up in early August 2007. In this statement Mrs Samarani said she and her husband’s company had let the Moxon Road premises to Mr Ros for six months ending in July 2007. She also said that he took the children “on a weekly basis from Friday – Sunday”. Significantly, she added in her statement a comment that she had told Mr Ros “over and over again” that the premises were not safe for children.
59. Mrs Samrani’s telephone evidence to the Tribunal rather graphically explained what she meant about the property not being safe for children. That evidence also clarified the details of the accommodation at the Moxon Road property.
60. The Moxon Road premises were a metal working factory operated by the company owned by Mr and Mrs Samrani. They had not let the whole property to Mr Ros. What they had let to him was merely a single upstairs room that was part of the factory premises. In fact, its principal function may well have been to serve as some kind of office for the business – because Mrs Samrani gave evidence that some of the company stamps and records were kept there. But, whatever the precisely intended function of this room, it was not an ordinary, nor even a suitable, domestic residence. It had a television, a microwave, and a convertible bed. But it had neither toilet nor bathing facilities. There was a toilet available on the factory floor but in order to get to it you had to go down stairs and walk along the factory floor.
61. Clearly, as Mrs Samrani had hinted in her statement, and as she said unambiguously in her evidence to the Tribunal, this upstairs room in the Moxon Road metal factory was not a safe place to accommodate any children. It was certainly not a safe place to contemplate accommodating Mr Ros’s young children. Indeed, the property is such an obviously unsuitable venue, I find it difficult to contemplate that a dutiful and caring father, anxious to participate in his children’s lives and promote their well being, would expose them to this kind of environment. Still less is it likely that such a father would employ premises such as this as a regular venue for their accommodation whilst supposedly in his care.
62. My profound scepticism of Mr Ros’s claim, that he used the Moxon Road premises for his weekend access visits with the children, was only corroborated by other details of Mrs Samrani’s evidence. She worked at the factory every day. On the other hand, Mr Ros was not there the whole time. He actually used to come and go a lot, and stayed away for days at a time. Mrs Samrani could not actually remember how much he was there and how much he was away.
63. Despite her own regular attendance, but consistent with Mr Ros’s episodic appearances, Mrs Samrani said she in fact only saw the children at the Moxon Road property two or three times. Mrs Samrani’s husband used to work on Sundays. They would sometimes have a barbeque lunch at the factory on Sundays. Sometimes Ms Kohen was also there and brought food for lunch. Her recollection was that she had only seen the children there on a couple of weekends. Even then, she rarely saw Mr Ros’s eldest daughter. What Mrs Samrani had said in her statement, about Mr Ros having the children staying regularly at the Moxon Road premises, was simply based on what he had told her, not on her own observations.
64. Mrs Samrani said she told Mr Ros several times that the property was not safe for the children. She had asked him to leave because of the children. She recalled that the occasions she saw the children at the Moxon Road premises was only a little while before she asked him to leave – in the latter part of July 2007.
65. Mrs Samrani’s evidence to the Tribunal, rather contradicted, and certainly undermined, the impressions that might otherwise have been gained from her 2 August 2007 “To whom it may concern” statement. She provided no real support to the proposition that Mr Ros regularly had the children staying with him at the Moxon Road property. Her descriptions of the property revealed its obvious unsuitability as a safe residence for young children.
Substantial likelihood that Mr Ros lived with Ms Kohen from late January 2007
66. Mrs Samrani’s evidence that she let the Moxon Road premises to Mr Ros for six months ending in July 2007 encourages the conclusion that he had certainly left his Victoria Road unit shortly after 23 January 2007. More significantly, her evidence that Mr Ros came and went for substantial periods of time, together with the obviously unsuitable nature of the Moxon Road premises (particularly the fact that it had no bathing facilities) also ties in with the evidence that Mr Ros had in fact moved in to live with Ms Kohen by some time in late January, or early February, 2007.
67. There is a good deal of other evidence pointing to that same conclusion. I have already referred to the evidence of Mrs Kohen, Ms Dib and Ms Saleh. Even Mr Ros’s eldest daughter said that Mr Ros came and lived with them at Croydon for five or six months. But this was far from the totality of the evidence.
68. Mr Donato Tauriello is Ms Kohen’s landlord. He confirmed that she moved into the property at Thomas Street, Croydon in January 2007. A few weeks later he noticed that Mr Ros was there whenever he visited, which was at least once a month. He could not tell whether Mr Ros was staying there or just visiting. He also said, though perhaps somewhat ambiguously, that there was no occasion he could recall when he visited the Croydon property “on the weekend and the children were not there”.
69. Ms Tracey Robinson is a friend of Ms Kohen. She has known Ms Kohen for over five years and has visited her often, sometimes during the week but more commonly on weekends. To the best of her recollection, the children have always been at home whenever she has visited. Ms Robinson said that Mr Ros moved in to live with the rest of the family at Croydon in January 2007. Somewhat curiously, Ms Robinson said, that she never actually saw Mr Ros during any of her regular visits to Ms Kohen at the Croydon property. This suggests her understanding that he was living there was based on what she was told by Ms Kohen, and perhaps others. But her understanding is consistent with Ms Kohen’s evidence and also that of Ms Wade.
70. Ms Michelle Wade is another friend who has known Ms Kohen for more than six years. She remembered Ms Kohen moving with the children to the house in Thomas Street, Croydon in January 2007. Mr Ros moved in and stayed for six months. It was whilst he was living at Croydon that Ms Wade was first introduced to Mr Ros. She had very regular contact with Ms Kohen. She could not remember any significant occasions when the children were away from Ms Kohen. She did recall occasions when Mr Ros would take the children out, but never for more than a few hours.
71. Perhaps the most significant corroborative evidence for Ms Kohen’s claim that Mr Ros moved into the Croydon property in January 2007 comes from Mrs Kohen’s brothers, Ali and Nasrallah Nasrallah.
72. Mr Nasrallah Nasrallah is Ms Kohen’s eldest brother. He also remembers Ms Kohen moving into the three bedroom house at Thomas Street, Croydon in January 2007. Two weeks later Mr Ros moved in as well. He stayed for six or seven months. Mr Nasrallah said he was very close to his sister and used to visit her often. Once she moved to Croydon he continued to visit her but, after Mr Ros moved in, he would never visit whilst Mr Ros was there. He did not like Mr Ros, he was not friendly with him and he would not visit when Mr Ros was around.
73. Mr Nasrallah Nasrallah’s evidence is significant because of his close relationship with his sister. He said that he regularly visited her, sometimes sleeping over. He also regularly attended weekend family barbeques. Yet he did not stay at, or visit his sister’s house in early 2007 if Mr Ros was likely to be present. This evidence, when understood against the background of the other evidence pointing to the reality that Mr Ros was indeed living at the Thomas Street house, carries considerable conviction. It depicts an otherwise supportive and attentive brother avoiding visiting his sister and her children. That he would do so is readily explicable for the reason that Mr Nasrallah gave – not wanting to encounter Mr Ros. I infer that Mr Nasrallah’s reluctance was out of deference to his sister and to avoid any confrontation with Mr Ros.
74. Mr Ali Nasrallah is Ms Kohen’s other brother. Until about three or four months ago he was also friendly with Mr Ros. He said he had been keen to have Mr Ros and Ms Kohen get back together. To that end he had acted as a “go between” for them.
75. Mr Ali Nasrallah said that about two weeks after Ms Kohen shifted to Croydon, Mr Ros moved in as well. He was told that Mr Ros had nowhere else to live and that that he was going to stay for a few weeks until he found somewhere else. Mr Ali Nasrallah continued to have contact with Mr Ros. He used to visit two or three times a week. He would often arrange to play cards with Mr Ros. This was usually at some friend’s house on Friday or Saturday nights. They would play cards until very late in the night, sometimes until one o’clock in the morning.
76. Mr Ali Nasrallah explained that before Mr Ros moved back in with Ms Kohen, and whilst he had been living in the unit at Victoria Road, Punchbowl, Mr Nasrallah had rarely played cards with Mr Ros. But once Mr Ros moved back, Mr Nasrallah made the card games a regular activity. He said he was trying to get Mr Ros and Ms Kohen back together. But he just couldn’t. He remembered Mr Ros fighting a lot with Ms Kohen and also being nasty to the children. Even after Mr Ros left the Croydon home, that is, when Ms Kohen called the police and “kicked him out” (according to both Ms Kohen and Mr Nasrallah) Mr Nasrallah remained friendly with Mr Ros. Mr Ros moved to Bankstown. Mr Nasrallah continued to visit him there. He passed messages between Ms Kohen and Mr Ros. Sometimes he took Mr Ros’s children to visit him at Bankstown.
77. Mr Ali Nasrallah cannot remember with any degree of precision particular occasions when he visited Ms Kohen at her Croydon house, or when he saw Mr Ros there. However, it is his recollection that throughout both the latter part of 2006 and during 2007, the children’s visits to Mr Ros were rare. Mr Ali Nasrallah’s absence of a precisely detailed recollection is understandable. But so long as the force of his evidence is not overstated, the absence of precise details does not really detract from it. The essential force of Mr Ali Nasrallah’s evidence is that: (i) he has, in the past, demonstrated a degree of loyalty to and support of Mr Ros; (ii) he was closely involved with both Ms Kohen and Mr Ros in the early part of 2007, and was apparently highly motivated that Mr Ros and Ms Kohen would re-establish a relationship but (iii) even so, Mr Ali Nasrallah’s observations of Mr Ros’s conduct do not at all corroborate Mr Ros’s care claims in relation to the children.
A consideration of motives for the 11 May 2007 FTB claim
78. Up to the present point I have considered the evidence of the various witnesses. I have pointed out that it provides little persuasive support for Mr Ros’s claim that he had the regular weekend care of all the children throughout the period from 7 September 2006 until 21 August 2007.
79. It is appropriate to remark, nonetheless, that the evidence is not entirely one way. There are inconsistencies, on which I have already remarked, between the previous statements of important witnesses and their evidence to the Tribunal. Ms Saleh and Mrs Samrani best illustrate those inconsistencies. But the inconsistencies are not confined to them. They include Ms Kohen as well. As I pointed out earlier, the SSAT was significantly influenced by statements the ARO attributed to Ms Kohen in the course of a telephone interview on 24 September 2007. According to the ARO Ms Kohen said (i) she had, for a time, taken the children to stay with Mr Ros several nights a week and (ii) she had signed the 9 May 2007 “Details” form believing that Mr Ros would take the children in the future.
80. There is also an element of uncertainty about the real details of Mr Ros’s residence and movements during the early part of 2007. It would seem that there are two competing points of view. There is the view of Mrs Samrani and Mr Ros, who say that Mr Ros was living at, and paying rent for, the Moxon Road premises. Then there is the view of Ms Kohen, her brothers and friends, who all say he was living at the Thomas Street address. However, an undertone to the evidence of at least some of Ms Kohen’s supporting witnesses is that Mr Ros was frequently absent from the Croydon street address. (Ms Robinson’s evidence is perhaps the best example of this, because she never saw Mr Ros at the Croydon property. Even Mr Ali Nasrallah’s evidence suggests that Mr Ros was frequently absent from the Croydon Street property.) The further complication in all of this is that Mr Ros gave Centrelink two different addresses in about March 2007 – the Moxon Road address as his residence and the Thomas Street, Croydon address (that is, Ms Kohen’s residence) as his postal address.
81. I am rather sceptical of the accuracy of the comments the ARO attributed to Ms Kohen in the 24 September 2007 interview. In those comments Ms Kohen supposedly agreed that she had stayed overnight “several nights per week” – although for an apparently short and unspecified period. I am also sceptical of the ultimate significance of whether Mr Ros was really living at the Moxon Road address, or the Thomas Street address, in early 2007 – because I do not think it is at all likely that Mr Ros took the children to stay overnight at the Moxon Road property in any event. Nevertheless, the curiosity about Mr Ros’s true place of residence, and the appearance of at least some inconsistency in Ms Kohen’s account, merit analysing Mr Ros’s claim from another perspective. That involves considering the parties respective motives for the 11 May 2007 FTB application.
82. Mr Ros said that, although he had been looking after the children to the extent he claims, since September 2006 he did not know anything about claiming FTB. He said it was Ms Kohen who told him about it. According to him, she wanted to buy another car, but neither of them had the money. She then told him that because he had been taking the children since September, he would be able to claim FTB, and would get a substantial back payment.
83. Mr Ros claims he really knew little about it. Ms Kohen told him what to put in the application and he just did what she told him. About a month after the application had been lodged, the money was paid into his account. Mr Ros claims Ms Kohen took the money. But he agrees she did not buy another car. He says she explained that she took the money to pay other bills and to buy food and other things for the children. Although it is reasonable to assume that Mr Ros had access to his bank records, he provided no documentary evidence to corroborate these assertions about Ms Kohen’s use of the money.
84. This explanation, that Mr Ros’s 11 May 2007 FTB application was a scheme crafted by Ms Kohen to obtain additional money, whether to buy a car or anything else, carries little persuasive force.
85. The explanation is rather contradicted by the fact of Ms Kohen’s very prompt complaints to Centrelink when she was approached on 18 May 2007. She immediately said that the 11 May 2007 application was contrived and wrong. This is hardly the conduct of a person who was the main instigator for the 11 May 2007 application, as Mr Ros contended. If Ms Kohen had been the instigator, and had been motivated by the prospect of acquiring another car, it is difficult to comprehend that she would have ever voiced any complaint to Centrelink about the accuracy of the application. Yet she did, and as soon as Centrelink approached her about it.
86. Furthermore, if Ms Kohen had instigated the application for Mr Ros to be paid FTB, she could hardly have failed to realise that any back payment to which he might establish an entitlement covered a period for which she had already been paid the full FTB entitlement. Therefore the 11 May 2007 application always carried with it the prospect of an offsetting overpayment claim that would be raised against Ms Kohen. Furthermore, Ms Kohen’s apparently resigned acknowledgement of that proposition (as recorded in Centrelink’s 24 May 2007 note) suggests she well understood the general way in which FTB entitlements would be calculated. As a consequence, the motive that Mr Ros attributed to Ms Kohen was one in which the benefit to her was purely one of timing – in the sense of comparing the amount Mr Ros would receive with the amount she would have to repay and the period over which the repayments would be made. Any net benefit to her would therefore depend on her ability (i) to ensure that Mr Ros applied the money directly or indirectly for her benefit and (ii) to negotiate repayment arrangements with Centrelink that would still leave her with a substantial cash flow benefit from the success of the new application.
87. This kind of suggested motivation requires a degree of sophistication. Perhaps that degree of sophistication was not beyond Ms Kohen. But if she had conceived such a strategy it is only reasonable to suppose that she also determined to implement it. One could accept that such a deliberately chosen strategy might later suffer a change of mind if Mr Ros received the FTB arrears and then failed to apply them in the manner previously agreed. But in this case Ms Kohen disavowed the application on 18 May 2007, even before it had been approved.
88. Contrary to the motive Mr Ros attributed to Ms Kohen, the far more likely explanation for Ms Kohen’s behaviour is the one she gave – both to Centrelink at the time, and to the Tribunal: she was pressured by Mr Ros into signing the 9 May 2007 “Details” form.
89. I have not overlooked, in my preference for Ms Kohen’s explanation of the 11 May 2007 application, some inherent difficulties with her own evidence. There are two of them. The first is the apparent ambiguity of her explanation that she co-operated with Mr Ros to assist him in his attempts to secure housing assistance from the Department of Housing. The second is her “clarification” of the care details in the telephone conversation with Centrelink on 24 May 2007.
90. My characterisation of Ms Kohen’s explanation as “ambiguous” arises from the fact that the motive was not pursued. If Ms Kohen had really thought that equipping Mr Ros with the appearance of substantial care responsibilities would improve his chances of obtaining a Housing Department allocation, and that was the real operative motive for the 11 May 2007 application, it is rather puzzling that she would have promptly put the strategy at risk – by her protestations to Centrelink on 18 May 2007. The fact that she did so, rather suggests to me that Ms Kohen herself had no committed strategy involved in the 11 May 2007 application. When challenged about it she simply thought it was wrong and reacted accordingly.
91. The “clarification” details Ms Kohen communicated in the 24 May 2007 telephone conversation carry a similar shade of ambiguity. On the one hand, the fact that Ms Kohen refused to endorse the information contained in the 9 May 2007 “Details” document is arguably consistent with her repeated claim that the application was untrue and contrived. On the other hand, the 24 May 2007 “correction” (which claimed only alternate Saturday night sleepovers) gave an appearance of considered accuracy to a claim that Ms Kohen now says was completely untrue. It is vexing to contemplate the reasoning that would have led her to make such a response. One conceivable possibility is that she had made a considered decision, albeit one she recanted some short time latter, to pursue the application. Another possibility is that she was just caught up in a strategy of Mr Ros’s devising, one which she was unwilling to endorse completely, but felt powerless to resist effectively.
92. In one sense it is unnecessary to resolve the apparent dilemma presented by Ms Kohen’s behaviour on 18 and 24 May 2007. This is substantially because, even if she had been a willing and active participant in the 11 May 2007 FTB application, I am satisfied from the other evidence that the care arrangements were not, in fact, as Mr Ros had claimed. Resolving the dilemma about the real motivation for Ms Kohen’s behaviour on 18 and 24 May 2007 would only be necessary if I was satisfied that it carried with it the prospect of establishing that the care “Details” (whether as described in the 9 May 2007 document or in the 24 May 2007 conversation) were actually true. I am not at all satisfied about that prospect. Rather the evidence to substantiate that claim is, as I have demonstrated, very slight and quite unpersuasive.
93. On final consideration is the variability of Mr Ros’s own claims in relation to the care he provided. The 9 May 2007 “Details” are precise. Yet when Ms Kohen partly contradicted them on 24 May 2007, Mr Ros acquiesced in the correction. On either of those versions of the claim details Mr Ros did not care for the children every Friday, Saturday and Sunday. Yet that was the claim contained in (i) a letter Legal Aid wrote on his behalf to the Department of Housing in 25 October 2006, (ii) another such letter dated 15 March 2007, (iii) Mr Ros’s own statutory declaration of 20 August 2007, (iv) Ms Saleh’s 2 August 2007 declaration, and (v) Mrs Samrani’s 2 August 2007 statement. Mr Ros’s must have been the source of all of these various accounts (having regard particularly to my earlier discussion of Ms Saleh and Ms Samrani’s evidence).
94. To be entirely cognisant of all the possible interpretations of the evidence, it might be that some misunderstanding crept into discussions between Mr Ros and these other people as to whether his claims that he had the children from Friday to Sunday inevitably meant every week and also overnight stays on both Friday and Saturday. Something that lends some credibility to that prospect is the ARO’s account of the conversation with Mr Ros on 24 September 2007. Mr Ros is simultaneously recorded as having reported that he had the children “every Fri, Sat & Sun” but only one night (Saturday) each week.
95. But it is not possible to accept the possible explanation suggested in the preceding paragraph and, nevertheless, be satisfied that Mr Ros has been consistent, and accurate, in his claims. On the version of events he gave to the ARO (as explained in the preceding paragraph) he claimed to have had the children overnight on Saturdays – and apparently only on Saturdays. On the other hand, in the 9 May 2007 “Details” document Mr Ros wrote out himself it is quite specific and involves no interpretation or translation. In that document he claimed to have the children “Friday 4pm to Sunday 6pm every week”. The inconsistency between these two claims is patent and significant. I find it difficult to account for the difference between them in any way that encourages confidence in the accuracy and reliability of Mr Ros’s claim. In fact, I consider the inconsistency, on a matter which on his version of events should have been a commonplace event that he repeated as a matter of course each week, actually points towards the unreliability of his claim.
No significance in the evidence about the beds and the video games
96. Earlier in these reasons I recorded the fact that the SSAT decision attached significance to (i) Mr Ros’s alleged purchase of four beds on 25 January 2007, and (ii) video and computer game hire records for the period from May to August 2007.
97. Given the considerably more detailed evidence given to this Tribunal about Mr Ros’s eviction from the Victoria Road unit and, more particularly, the Moxon Road premises, I am unable to attach any significance to Mr Ros’s purchase of four beds in January 2007. This evidence too was hotly contested. Mr Ros would have it that he purchased the beds at a time when he was unable to pay the rent on his Victoria Road unit and was about to be evicted. He says he arranged to pay for the beds by instalments. He gave two beds to Ms Kohen, but the other two were lost or stolen when he moved out of the Victoria Road unit. Ms Kohen on the other hand, says she paid for the beds, and gave the money to Mr Ros.
98. The purchase of the beds has no real significance to the main issue in contest in the present proceedings. That issue is whether or not Mr Ros regularly provided the children with overnight accommodation on Friday (or perhaps Saturday) nights after 7 September 2006. But Mr Ros would have to make good that proposition for the period both before and after the hypothesised purchase of the beds in January 2007. Since that period straddles the date of the contentious bed purchase, the purchase can have no relevance to the period that preceded it. Secondly, not even Mr Ros contends that he placed any of the “purchased” beds in the Moxon Road property. In these circumstances one is driven to the conclusion that the bed purchase does not assist in any informed resolution of the competing claims.
99. The video and games hire records that were tendered do show that Mr Ros was incurring expenses of this kind between May and August 2007. It is reasonable to infer that he was doing so to participate, to some degree, in his children’s activities. But the limited period of these records, from May to August 2007, is not at all probative of the care responsibilities he claims to have discharged in the substantial period after 7 September 2006. Indeed, the fact that these are the only such records Mr Ros produced, rather highlight the absence of any significant objective corroboration of his claims for the bulk of the period.
Mr Ros's telephone records
100. During the course of his cross examination Mr Ros referred to, and was asked questions about phone records in his possession. He contended that these recorded the fact of numerous telephone calls between his mobile telephone and one Ms Kohen used in 2007 and 2008. After the hearing, but with notice to the other parties, the telephone records were tendered to the Tribunal. It was submitted on Mr Ros's behalf that these records demonstrated regular contact between Mr Ros and Ms Kohen, particularly before one of their conversations with Centrelink (I infer in August 2007). The telephone records tendered covered only the period after 1 June 2007. In the months of June, July and August 2007 there are very few relevant phone calls on weekdays. There are occasions where several phone calls are made between the two numbers on a Saturday. But my impression is that the pattern is random. There are certainly Saturdays and Sundays when no relevant calls appear to be recorded. These records are at best equivocal – because it is not the frequency of contact between the parents that is the relevant consideration, but the content of their discussions and whether those discussions evidence the fact of Mr Ros's regular weekend care for the children. The phone records of themselves do not require any inference being drawn in favour of Mr Ros's claim. Having regard to the other evidence I have reviewed, and their intrinsic ambiguity, these records provide no adequate basis for any significant inference being drawn that he provided the care he claimed.
Decision
101. Mr Ros and Ms Kohen’s competing claims cover a period of over 10 months of the life of a family in difficult circumstances and financial stress. Scrupulously accurate recollections are not to be expected. In addition, some degree of apparent inconsistency may be explained by the combined effect of language difficulties, sympathetic (or unsympathetic) interpretation and the inherent fallibility of recollection. However, having made a conscientious attempt to evaluate the competing claims from the perspective of both parties, I am not at all satisfied that Mr Ros provided any substantial care for the children at any time during the period after 7 September 2006. To be quite specific, I do not consider the evidence establishes that he ever had the overnight care of the children, to the exclusion of Ms Kohen. Nor do I consider that the evidence establishes he ever undertook the regular weekend care of the children for any substantial period of time. The only exception to that finding involves the access arrangements for the initial meetings in September 2006. However, those access meetings were most likely substantially in accordance with the 25 May 2006 orders and do not entitle Mr Ros to any FTB payment.
102. In the preceding paragraph I have expressed myself as having a lack of satisfaction that the evidence substantiates Mr Ros claim. I do not intend to convey by that mode of expression that he carried any onus of proof. Rather it is my way of answering the simple question whether the correct or preferable conclusion from the evidence is that Mr Ros provided the care he claimed – or indeed any substantial care that would entitle him to any FTB payment. My answer to that question is “No”.
103. The decision under review is set aside. In substitution for the decision under review the Tribunal decides that Mr Ros was not entitled to FTB for any part of the period from 7 September 2006 to 21 August 2007.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member,
Signed: ..........[sgd]..................................................................
AssociateDates of Hearing: 22-24 June 2009
Date of Decision: 6 July 2009
Solicitor for the Applicant: Mr S Hodges
Appearance for the First Respondent: Mr K Bullock
Solicitor for the Second Respondent: Mr D Roff
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