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

Case [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.

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

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…

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Details
AGLC
McKeough and Secretary, Department of Social Services (Social services second review) [2016] AATA 855
Case
[2016] AATA 855
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr McKeough against a decision of the Authorised Review Officer (ARO) which affirmed a previous decision by the Department of Social Services. The Department had determined Mr McKeough's percentage of care for his children to be 18% from 1 January 2012, for the purposes of family tax benefit. The dispute centred on the accurate calculation of Mr McKeough's percentage of care, particularly in light of inconsistent record-keeping by both parents. The case was heard by Deputy I R Molloy P.

The primary legal issue before the court was to determine the correct percentage of care Mr McKeough had for his children during the relevant period, considering the conflicting evidence and record-keeping practices of both parents. This involved assessing the reliability and accuracy of the records presented by Mr McKeough and Ms O’Connor, and determining whether Mr McKeough's claimed percentage of care was substantiated by credible evidence. The court was required to weigh the evidence presented at the current hearing against the findings made in the decision under review.

Deputy I R Molloy P reasoned that Mr McKeough's evidence was inconsistent and unconvincing. While Mr McKeough initially claimed 35% care, his own records at the time of the reviewable decision showed only 24.9% care, and he expressed doubts about their accuracy. Ms O’Connor's records indicated Mr McKeough had 18.6% care, which the ARO accepted and rounded down to 18%. At the current hearing, Mr McKeough presented a new explanation for the inaccuracy of his records, claiming they understated his care due to a failure to record unplanned care, rather than overstating it as previously suggested. However, the court found the connection between his financial transactions and his claim of care to be tenuous, and his revised evidence contradicted his earlier statements and even suggested a care percentage exceeding 50%, which was inconsistent with his previous claims and the court orders. The court found Mr McKeough to be an unimpressive witness. Consequently, the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. On 12 May 2016 the decision under review affirmed the ARO’s decision. The present application was lodged on 23 May 2016. At the hearing Mr McKeough and Ms O’Connor were each self-represented. The Secretary of the Department was represented by Mr Bishop. Mr McKeough attended in person and Ms O’Connor participated via teleconference. DECISION UNDER REVIEW 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. 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. Ms O’Connor’s records for 2013 showed Mr McKeough having 18.6% care in that year. 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%. This constituted the basis of the decision under review. EVIDENCE 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. At the hearing before me Mr McKeough contended that his care records were inaccurate in that they significantly understated, not overstated, his care.

Evidence

Evidence Before The Court

This constituted the basis of the decision under review. EVIDENCE 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. At the hearing before me Mr McKeough contended that his care records were inaccurate in that they significantly understated, not overstated, his care. 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. 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

Mr McKeough attended in person and Ms O’Connor participated via teleconference. DECISION UNDER REVIEW 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. 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. Ms O’Connor’s records for 2013 showed Mr McKeough having 18.6% care in that year. 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%. This constituted the basis of the decision under review. EVIDENCE 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. At the hearing before me Mr McKeough contended that his care records were inaccurate in that they significantly understated, not overstated, his care. 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. 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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