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

[2016] AATA 855

McKeough and Secretary, Department of Social Services (Social services second review) [2016] AATA 855 (31 October 2016)

Division	GENERAL DIVISION
File Number	2016/2737
Re	Craig McKeough
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Bridgette O'Connor
OTHER PARTY

DECISION

Tribunal	Deputy President I R Molloy
Date	31 October 2016
Place	Brisbane

The Tribunal affirms the decision under review.

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Deputy President I R Molloy

CATCHWORDS

SOCIAL SECURITY – family tax benefit – shared care – determining percentage of care – record keeping issues – whether inconsistent evidence between parents – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999

REASONS FOR DECISION

Deputy President I R Molloy

31 October 2016

1. This is an application by Craig McKeough for review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) made on 12 May 2016 concerning the family tax benefit (“FTB”). 

   ISSUES

2. Mr McKeough and Bridgette O’Connor are the separated parents of Taleigha and Tallon. The issue is the percentage care provided to the children by Mr McKeough from 1 January 2012 to 30 June 2014.

3. The decision under review was that Mr McKeough’s care percentage for that period was 18%.[1] For the reasons set out below that decision should be affirmed.

   [1] Exhibit 1, T-documents, T2, 5.

   BACKGROUND

4. On 20 May 2011 the Department decided to record Mr McKeough as having 35% care of the children with effect from 24 April 2011.[2]

   [2] Exhibit 1, T-documents, T5, 32.

5. On 26 July 2012 Mr McKeough and Ms O’Connor consented to parenting orders in the then Federal Magistrates Court of Australia. Relevantly the orders provided that the children spend time with Mr McKeough as agreed, but failing agreement:

   During the school term, for five (5) nights per fortnight;

   During the school holiday periods, for at least two (2) nights per fortnight and if [Mr McKeough] is able to arrange to spend an additional two (2) nights with the children during the school holiday periods, [Ms O’Connor] shall not unreasonably refuse his request.[3]

   [3] Exhibit 1, T-documents, T7, 81.

6. On 3 December 2015 the Department decided Mr McKeough’s percentage of care of the children was 13% from 1 January 2012 based on what was considered to be his actual care. 

7. On 4 February 2016 an Authorised Review Officer varied that decision, finding that Mr McKeough’s care percentage was 18% from 1 January 2012 (“the ARO’s decision”).[4]

   [4] Exhibit 1, T-documents, T18, 377-380.

8. On 12 May 2016 the decision under review affirmed the ARO’s decision. The present application was lodged on 23 May 2016. 

9. At the hearing Mr McKeough and Ms O’Connor were each self-represented. The Secretary of the Department was represented by Mr Bishop.

10. Mr McKeough attended in person and Ms O’Connor participated via teleconference.

    DECISION UNDER REVIEW

11. The reasons for the decision under review state that both parents agreed that Mr McKeough’s care during 2013 was a fair reflection of his level of care during the entire two and half year period in issue. Each parent claimed to keep a record of the 2013 care.

12. Mr McKeough’s records at the time of the reviewable decision disclosed he had 24.9% care not the 35% he claimed. He also told the Tribunal at that time that he was not confident of the accuracy of his records, in particular, that he may have recorded the care he originally expected to have, rather than the care he actually had.

13. Ms O’Connor’s records for 2013 showed Mr McKeough having 18.6% care in that year.

14. The reviewable decision found that Mr McKeough had in fact recorded the care he expected to have, not the care he did have. It was found that Ms O’Connor’s records were accurate, and that her figure of 18.6% should be rounded down to 18%.

15. This constituted the basis of the decision under review.

    EVIDENCE

16. I have referred in some detail to the reviewable decision because, although this is a fresh hearing, I think what happened on that occasion has a bearing on the evidence before me. 

17. At the hearing before me Mr McKeough contended that his care records were inaccurate in that they significantly understated, not overstated, his care.

18. He said this came about because he initially recorded when he expected to have the care of the children but that he would delete these entries where, for various reasons, he did not actually have that care. He said he then failed to record other days when he had unplanned care of the children.

19. He said he realised his records were wrong when he checked his bank statements and credit card statements. From these documents he identified purchases on various dates which he said he would not have made if the children were not in his care.

20. Mr McKeough’s evidence was therefore quite different from what he had given at the previous hearing. There he conceded that, at least in 2013, he may have failed to delete entries where he expected to have care of the children but in fact did not. Before me his evidence was he did delete those entries, but then failed to enter other dates when he did in fact have the children.  

21. Mr McKeough gave oral evidence. From his credit card and bank statements he referred to a number of transactions which he said showed he had the care of the children on dates which he had failed to record. However the connection between his eftpos and credit card transactions and his claim to have care of the children seemed at times quite tenuous. For example, he maintained that purchases at a service station, on the motorway mid-way between where he lived on the Gold Coast and Brisbane, showed he had the children on those days because their school was in the same area.  

22. Furthermore, if the transactions he relied on provided an accurate guide, then Mr McKeough had more than 50% of the care, yet he had previously claimed to have 35% in accordance with what he said was the effect of the court orders. In fact, as was pointed out to him, the court orders provided for 33% care and if, as he claimed, the calculation should include extra holidays because the children attended a private school, then less again.

23. More specifically, Mr McKeough claimed that in December 2013 he had the care of the children for 20 days. However he was unable to explain how this could be reconciled with his statement to Centrelink, in May 2014: “I frequently request additional access to my children which is normally refused. The mother regularly states periods of time that I can not have access to my children eg: all of May 2014 & Jan 2014 & Dec 2013.”[5]

    [5] Exhibit 1, T-documents, T7, 71-102.

24. Mr McKeough was an unimpressive witness. He avoided answering difficult questions whenever he could. At times he pretended not to understand what was being asked. He claimed not to follow simple reasoning. He tried to reframe questions so as to answer only what he wanted to. He interrupted the questioning. At other times he resorted to a “whatever you say” response.

25. Finally, towards the end of cross-examination on behalf of the respondent, Mr McKeough got up and left the hearing room, saying he needed to go to the toilet. After an extended time his father, who had been present during the hearing, went looking for him, but he could not be found.

26. In summary Mr McKeough’s claim concerning inaccuracies in his records seems unlikely especially in light of his previous reliance on those records. The documentary evidence he relied on was unconvincing. Having seen and heard him give evidence I do not accept what he had to say in respect of the issue for determination.  

27. Mr McKeough also relied on fresh evidence in the form of statutory declarations from Julie McKeough[6], Vanessa Robb[7], and Lisa Olivier[8]. However this evidence only went to his care of the children in broad terms and did not assist in determining his percentage care.

    [6] Exhibit 2.

    [7] Exhibit 3.

    [8] Part of Exhibit 8.

28. I have considered all of the material including of course the new evidence adduced before me. I agree with the decision under review.

    CONCLUSION

29. The decision under review is affirmed.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

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Associate

Dated 31 October 2016

Date of hearing	11 October 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services
Other Party	By phone