LOVEDAY and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 751
•26 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 751
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2600
GENERAL ADMINISTRATIVE DIVISION
)
Re BRIAN DAVID LOVEDAY Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
Re VERITY LOVEDAY Other Party
DECISION
Tribunal Senior Member K Bean Date26 October 2011
PlaceAdelaide
Decision The Tribunal:
(a) varies the decision under review so as to provide that Mr Loveday had Amber in his care for 60 per cent of the time and Ms Loveday had Amber in her care for 40 per cent of the time between 1 January 2009 and 30 June 2010 and Family Tax Benefit is payable to each of them on that basis; and
(b) otherwise affirms the decision under review.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – Benefits – Family Tax Benefit – Shared care of children – Correct percentage of care as between parents – Decision under review varied.
A New Tax System (Family Assistance) Act 1999 ss 22, 25
A New Tax System (Family Assistance) (Administration) Act 1999The Family Assistance Guide 1999
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Another [2006] AATA 159
REASONS FOR DECISION
26 October 2011 Senior Member K Bean introduction
1. The applicant, Mr Loveday, and the other party, Ms Loveday, are the parents of two children, Amber, who is currently 17 years old and Jacob who is 12. Mr and Ms Loveday separated many years ago and live separately, however they continue to share care of their children. In recent years, a dispute has arisen between them as to the exact percentages of care they each have of their children, particularly Amber. The percentage of care of the children which they each have is relevant in this context to determining their respective entitlements to Family Tax Benefit (FTB).
2. Following some earlier claims and determinations as to the percentages of care of Mr Loveday and Ms Loveday respectively, on 15 June 2009, Mr Loveday lodged a claim for FTB on the basis of 70 percent care of Amber and 57 percent care of Jacob from 1 January 2009. Following further information from Mr Loveday provided on 9 July 2009, a Centrelink officer made a decision on 21 July 2009 to reduce the amount of FTB payments to Ms Loveday from 1 January 2009 on the basis that she had 30 percent shared care of Amber and 43 percent shared care of Jacob from that date.
3. Ms Loveday sought review of that decision by an Authorised Review Officer (ARO). The ARO decided that Ms Loveday’s actual percentage of care of Amber was 30 percent, which resulted in FTB not being payable to her in respect of Amber[1].
[1] Exhibit 2, T3/23
4. Ms Loveday sought review of that decision by the Social Security Appeals Tribunal (SSAT) and on 3 December 2009 the SSAT decided to set aside the decision under review and substitute a decision that Ms Loveday had Amber and Jacob in her care for 50 percent of the period commencing from 1 January 2009 and FTB was payable to her on that basis[2].
[2] Exhibit 1, T2/3
5. On 4 January 2010, Mr Loveday made an application for review of that decision by this Tribunal and although that application was subsequently withdrawn, he subsequently applied for reinstatement of that application or, alternatively, for an extension of time to lodge a fresh application. On 31 August 2010, the Tribunal grated him an extension of time to pursue the application the subject of this decision, which was filed on 28 June 2010.
the issue
6. As Amber commenced receiving Youth Allowance on 1 July 2010, FTB is no longer payable in respect of her from that date[3]. Further the parties agree that they have each had Jacob in their care for 50 percent of the time since 1 January 2009.
[3] Section 22A, A New Tax System (Family Assistance) Act 1999
7. The remaining issue for my determination therefore is:
(a) what is the correct percentage of care by Mr Loveday and Ms Loveday respectively of Amber Loveday from 1 January 2009 until 30 June 2010?
legislation
8. The legislation applicable to determining entitlement to FTB includes the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Family Assistance Administration Act). The most relevant provision is s 22 of the Family Assistance Act, which provided at the relevant time as follows:
“22 When an individual is an FTB child of another individual
(1)An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
(2) An individual is an FTB child of the adult if:
(a) the individual is aged under 16; and
(b) the individual is in the adult’s care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
Percentage of care at least 35%
(7)If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.”
Section 25 of the Family Assistance Act also provided at the relevant time that if the care level was less than 35 percent, then the child was taken not to be an FTB child of the relevant individual. As referred to above, a person’s entitlement to FTB is determined by reference to the amount of time a person has an FTB child in their care.
9. The Family Assistance Act has recently been amended, however the amendments are not applicable in this matter as the period which is relevant in respect of Amber is prior to the amendments taking effect, and the parties agree that the existing determination in respect of Jacob should continue[4].
[4] See Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010, in particular at Schedule 2, items 107-109.
applicable policy and case law
10. The policy which is generally applied by the Department in determining percentages of shared care is contained in the Family Assistance Guide 1999 (the Guide) and it is accepted that this Tribunal should generally also have regard to the Guide, in the interests of consistency in decision making.
11. The Guide relevantly states as follows at 2.1.1.25:
“Two or more adults who are not members of the same couple (1.1.M.50) and who care for an FTB child can each be eligible for FTB for that child at the same time, provided each adult cares for the child between 35% and 65% of the care period (1.1.C.100). A determination must be made regarding the percentage of FTB to which an individual is entitled in respect of the FTB child. Once a determination has been made to share FTB for a child, eligibility for FTB is continuous for each person, regardless of which person actually has the physical care of the child at any given point in time.
…
Where possible, the percentage to be applied in the shared care determination should be:
·the percentage of care agreed to by all parties who share the care of the child, or
· the agreed pattern of care …”
12. The Guide also provides at 2.1.1.45:
“Where the carers do not agree on the actual pattern of care for the child, the FAO must determine the actual pattern of care on the basis of available evidence. This applies even if a formal care arrangement (1.1.C.05) exists. If the carers do not agree on the care percentage, each carer should be asked to provide additional evidence to support their declared arrangements in order for the FAO to make a decision as to the actual pattern of care.
…
Generally a pattern of care is based on the number of nights in a care period where an individual has the overnight care of an FTB child. A person with the overnight care of a child is regarded as having had care of the child for that day.
…”
13. It has also been held by this Tribunal that, in disputed cases, it is important to take a “broad brush” approach in determining the percentage of shared care and one in which a number of factors or aspects of care may be taken into account[5].
the evidence
[5] Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs andMr Loveday
14. In his oral evidence, Mr Loveday stated that he and Ms Loveday had been separated for 10 years and during that period there had never been a settled pattern of care of the children. He said that in 2008 he learned that Ms Loveday had requested child support through the Child Support Agency and from then on he started to record the times when he had care of the children. He said that Amber had always been with him more. In relation to Jacob, he said that he sometimes had Jacob for more than 50 percent of the time, but was prepared to accept that overall he had Jacob for 50 percent of the time.
15. Noting the criticism which had been made by the SSAT of the widely differing assessments he had provided to Centrelink of his percentage of care, Mr Loveday put forward an explanation for these discrepancies. He acknowledged that in the first claim which he had completed on or about 3 June 2008, he had claimed that he had care of Amber for 63 percent of the time from 2001. However, he said that this had resulted in a large debt being raised against Ms Loveday and he felt bad about this. Accordingly, on 13 November 2008, he lodged a form stating that both parties had had care of Amber 57 percent of the time from 1 July 2008[6]. However he said that this had not sufficiently reduced the debt owed by Ms Loveday. Therefore in a form dated 28 January 2009, he claimed that he had only had Amber for 50 percent of the time and that this arrangement had started from 14 August 2004[7].
[6] Exhibit 1, T8/76
[7] Exhibit 1,T6/62
16. Mr Loveday also acknowledged that in a form dated 26 May 2009, he claimed care of Amber for 70 percent of the time from 1 January 2009[8] and in a further claim form dated 8 July 2009[9], he claimed care of Amber for 75 percent of the time. The contemporaneous documentation suggests he did this at the instigation of his second wife, who was unhappy as she considered that he had the children for more time than he was being paid for[10].
[8] Exhibit 1, T5/55
[9] Exhibit 1, T4/48
[10] Exhibit 1,T25/162
17. However Mr Loveday also indicated in his evidence that, regardless of what he had put on these claim forms, the actual level of care did not in fact change. He said that since 1 January 2009 he had Amber for at least 70 percent of the time. Under cross-examination, Mr Loveday indicated that there had been two periods for which he had actually sought to adjust his percentage of care for Centrelink purposes in his own interests, one from mid 2008 and the other from January 2009. He said the other changes indicated on the forms he had lodged were simply “adjustments” aimed at reducing the debt raised against Ms Loveday.
Ms Loveday
18. In her oral evidence, Ms Loveday challenged Mr Loveday’s evidence that he had altered the percentage of care he had claimed in order to help her as she said this was wrong and they did not get along. She agreed with Mr Loveday that there was no set pattern of care, however she said that she had care of Amber for roughly 50 percent of the time, including during the relevant period.
Documentary evidence
19. Mr and Ms Loveday also each provided documentary evidence in the form of diaries recording when Amber and Jacob were in each of their care. Ms Loveday explained in her evidence that her diaries were not necessarily compiled contemporaneously, but in some cases were constructed retrospectively from receipts and other contemporaneous documentation. She also stated in her evidence however that when she was unsure and had no recollection of having care of Amber or Jacob, she did not record having them in her diary.
20. I have attempted to summarise these records by compiling a table which summarises what each of the diaries indicate as to the number of nights of each month in the relevant period that Amber was in the care of Mr Loveday and Ms Loveday respectively.
21. Unfortunately there are large gaps in the pages of Ms Loveday’s diary available to me as it appears that only selected pages have been reproduced in the T Documents, at least for the period from February up to July 2009. However, for the month of January 2009 and the period August 2009 to the end of November 2009, each page of Ms Loveday’s diary has been reproduced and I have therefore reflected the contents of Ms Loveday’s diary for those months in the table. Ms Loveday has not provided any records for the period after November 2009.
2009
Mr Loveday’s records
(days with Amber/days in the month)% Ms Loveday’s records
(days without Amber/days in the month)% January 22/31 70 18/31 58 February 16/28 57 March 20/31 64 April 21/30 70 May 17/31 54 June 22/30 73 July 23/31 74 August 19/31 61 18/31 58 September 19/30 63 19/30 63 October 20/31 64 17/31 54 November 19/30 63 19/30 63 December 22/31 70 2010 January 17/31 54 February 19/28 67 March 17/31 54 April 18/30 60 May 13/31 41 June 13/30 43 Average 61% 59% 22. For completeness, I should also acknowledge that Mr Loveday and Ms Loveday each also provided additional documentary material in the nature of statements and letters from third parties as well as contemporaneous secondary material such as receipts, invoices for child care, etc. However, I have found that material to be of little assistance in determining the precise percentage of time when Amber was in either of their care, and for that reason have not specifically referred to the content of that material.
consideration
23. As is reflected in the table set out above, there is a high degree of consistency between the records produced by each party, both for individual months and in terms of the overall level of care of each of them. For those months for which I have complete records from Ms Loveday, the overall percentage of Mr Loveday’s care of Amber, or in other words, the amount of time that Amber is not recorded as being with Ms Loveday, is 59 percent. The percentage of time when Amber is recorded as being with Mr Loveday based on his records is 61 percent.
24. I accept that the evidence of both Mr Loveday and Ms Loveday as to when Amber was in their care was honestly given. I also accept in Mr Loveday’s case that the discrepancies in the forms he has provided to Centrelink are explained at least in part by his concerns over the resulting debt to Ms Loveday, in conjunction with the concerns of his second wife as to whether he was being paid his correct entitlements. However, I have also concluded that each of Ms Loveday and Mr Loveday have a slightly inflated perception of the amount of time that Amber was in their care in the relevant period and that their contemporaneous records provide a more accurate indication of when Amber was actually with each of them.
25. I also consider each set of diary records to be broadly accurate, and, as noted above, they are largely consistent with one another. Further, the fact that Mr Loveday’s records largely correspond with Ms Loveday’s records for the periods where her records are complete gives me added confidence in the accuracy of his records.
26. Having regard to the content of both sets of records and the consistency between them, I am accordingly reasonably satisfied that Mr Loveday’s percentage of care of Amber during the relevant period was 60 percent. I note that Mr Loveday and Ms Loveday each agree that Jacob was in Mr Loveday’s care for 50 percent of the time in the relevant period and that that continues to be the correct percentage in respect of Jacob.
conclusion
27. On the evidence before me I have therefore concluded that in the relevant period Mr Loveday had care of Amber for 60 percent of the time and that he has had 50 percent of the care of Jacob since 1 January 2009.
decision
28. The Tribunal:
(a) varies the decision under review so as to provide that Mr Loveday had Amber in his care for 60 per cent of the time and Ms Loveday had Amber in her care for 40 per cent of the time between 1 January 2009 and 30 June 2010 and Family Tax Benefit is payable to each of them on that basis; and
(b) otherwise affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ............J Coulthard..................................
AssociateDates of Hearing 5 April 2011 & 17 May 2011
Date of Decision 26 October 2011
Advocate for the Applicant Self-represented
Advocate for the Other Party Self-representedAdvocate for the Respondent Mr A Parker
Program Litigation and Review Branch
Another [2006] AATA 156
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