MICHAEL CHAPUS and and MEG MOTTRAM
[2010] AATA 484
•30 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 484
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4250
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL CHAPUS Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
MEG MOTTRAM
Other Party
DECISION
Tribunal Mr R G Kenny, Senior Member Date30 June 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and entitlements – Family tax benefit – Pattern of care between parents of Family Tax Benefit child – Use of Family Assistance Guide – Factors relevant to assessing pattern of care - Decision affirmed.
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 25, 59
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Feeney and Secretary, Department of Family and Community Services [2005] AATA 818
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Wade and Secretary, Department of Family and Community Services [2004] FCA 1660 at [29].
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AATA 159REASONS FOR DECISION
30 June 2010 Mr R G Kenny, Senior Member BACKGROUND
1. Meg Mottram’s and Michael Chapus’ daughter was born on 2 August 2001. Mrs Mottram and Mr Chapus do not live together but share the care of their child. On 11 March 2009, Mr Chapus is noted in Centrelink records as having contacted Centrelink in relation to the family tax benefit (FTB) paid to Ms Mottram in 2008. On 17 March 2009, he claimed, under ANew Tax System (Family Assistance) Act 1999 (Cth) (the FA Act), an annual lump sum payment of FTB for the 2007/8 financial year based on his care for 42% of the time. On 6 May 2009, a Centrelink officer determined that the FTB should be paid to Mr Chapus on the basis that he had 25% of the care of the child from 1 January 2008 until 30 June 2008 (the relevant period). On 5 June 2009, an authorised review officer determined that he was entitled to only 22% of the FTB. This decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 11 August 2009.
LEGISLATION AND ISSUES
2. The relevant provisions in this matter are ss 21, 22 and 59 of the FA Act[1]. It is not disputed that the child is an FTB child[2]. The circumstances in which the child will be the FTB child of each of her parents are set out in s 22 of the FA Act which, in so far as relevant, reads:
[1] The relevant provisions are as they read prior to amendment on 1 July 2008.
[2] See s 21 of the FA Act.
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 18
(2) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b)the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; and
(c) the individual is in the adult’s care; and
(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
(3) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b)a family law order, registered parenting plan or parenting plan is in force in relation to the individual; and
(c)under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the individual is supposed to spend time; and
(d) the individual is in the adult’s care; and
(e)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
3. It is not disputed that these requirements are met for both Mr Chapus and Ms Mottram. Where unpartnered parents share the care of a child, the FTB may be divided between them. In that regard, s 59 of the FA Act reads:
59Secretary may make determination where individual is FTB child of 2 people who are not members of the same couple
(1) If the Secretary is satisfied that:
(a) an individual is an FTB child of an individual (person A); and
(b)the FTB child is also an FTB child of another individual who is not person A’s partner;
the Secretary may determine the percentage that is to be person A’s percentage of family tax benefit for the child.
4. In evidence were extracts from the Family Assistance Guide (the Guide) published by the respondent to assist those who administer the FA Act. The Tribunal is not bound to apply the policy expressed in the Guide but may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so[3]. In this case, there is no material before me to indicate that the Guide should not be applied. The Guide[4] includes the following:
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86 and Wade and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2004] FCA 1660 at [29].
[4] Reference is to the Guide as it read prior to 1 July 2008
Two or more adults who are not members of the same couple 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 for at least 10% of the assessment period. 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 2 or more adults, who are not members of a couple, have care of an FTB child, a determination must be made as to each adult's percentage of FTB for the child.
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.
Where the carers do not agree on the care arrangements, the FAO decision maker will determine the care percentage to be applied based on the available evidence of the actual pattern of care.[5]
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 family law order, registered parenting plan or court order exists. If the carers do not agree on the care arrangements 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 an assessment 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[6].
[5] See s 2.1.1.25 of the Guide.
[6] See s 2.1.1.45 of the Guide.
5. In this matter, the issue for determination is what the percentage of care should be for Mr Chapus.
6. Mr Chapus did not submit at what level the appropriate care percentage should be set. However, he contended that it should be on the basis that, during the relevant period, the child stayed with him on most Friday and Saturday nights as well as on approximately 2/3 of Sunday nights. Ms Mottram submitted that the 22% allocation of care to Mr Chapus should be maintained. For the respondent, Rick McQuinlan submitted that Mr Chapus’ care percentage should be allocated in accordance with the evidence of the nights on which Leah stayed with him during the relevant period.
EVIDENCE
7. Both Mr Chapus and Ms Mottram spoke to the Tribunal by telephone. Ms Mottram advised that she did not wish to call any witnesses and relied on the material previously forwarded to the Tribunal, including her evidence to the SSAT. Mr Chapus gave evidence and called Mark Bromhead, his neighbour; Margaret Spain, a friend; and Dr Phillip Steele, who shares his house with Mr Chapus. In evidence were statements from Jonathon and Alice Swan, friends of Ms Mottram, dated 24 March 2009; from Ester and Sam Poyas, friends of Mr Chapus, dated 1 April 2009; from Catherine Brown, Ms Mottram’s mother, dated 22 March 2009; and from Ms Spain, dated 6 April 2009.
8. Mr Chapus’ evidence was that, until he commenced a study programme on 28 February 2008, he cared for the child at his home for four days per week and three days per week, alternatively. Because of study commitments, this then changed from Friday until Monday for the remainder of the relevant period. He agreed that there may have been two Friday nights when the child was not with him and that the child was not with him on an April weekend when he was engaged in study. He also agreed that on approximately 1/3 of the Sunday nights she had not stayed with him because she returned to Ms Mottram to facilitate school attendance on the Monday morning. In a statement completed by Mr Chapus on 12 June 2009, he described twelve Sunday nights in 2008 when the child returned to Ms Mottram’s residence. On 12 May 2009, he wrote that Ms Mottram “often” collected Leah on Sunday afternoons and agreed that this was to facilitate school attendance on the Monday morning.
9. In his evidence, Dr Steele said that, from March to June 2008, Leah was at his house virtually every Friday and Saturday night and on approximately 2/3 of Sunday nights. Mr Bromhead said that Leah played with his own daughter when she was at Mr Chapus’ home and had been there often on weekends in 2008. However, he was unable to be specific about whether, for example, she stayed there on Sunday nights. Ms Spain was a frequent visitor to Mr Chapus’ home and also made frequent telephone calls to the home. Her impression was that Leah was there on most Friday and Saturday nights. She was unable to be specific but could recall that, on two occasions when she was at or contacted Mr Chapus on a Friday night, the child was not there. She was also of the opinion that the child was there on most Sundays but could recall two occasions when she was not there. In her statement, Ms Spain wrote that the child stayed there on Sunday nights “unless otherwise arranged” by Ms Mottram.
10. Ms Mottram has maintained that Leah did not stay with Mr Chapus on Sunday nights because she had to attend school on Monday morning. She said that she was better placed than Mr Chapus to transport her to school by car which was preferable to the alternative which was for the child to take a bus from Mr Chapus’ home. She also maintained that, for the last week in May including the weekend when she satisfied a residential requirement of her study programme, her mother, and not Mr Chapus, had cared for the child.
11. Ms Mottram completed a diary in relation to her daily activities and these included references to her taking the child to and collecting her from Mr Chapus’ residence. However, for 2008, the entries are only from 1 January until 2 March 2008. These record the child with Mr Chapus on the nights of 3, 4, 5, 6, 7, 8 and 9 January (Thursday to Wednesday); 13 and 14 January (Sunday and Monday); 19 January (Saturday); 25 and 26 January (Friday and Saturday); 1 and 2 February (Friday and Saturday); 9 February (Saturday); 16 February (Saturday); 22 and 23 February (Friday and Saturday); and 1 March (Saturday).
12. Jonathon and Alice Swan wrote that they spent a great deal of time with Ms Mottram during 2008 and noted that the child spent at least 5 or 6 nights with her mother and the weekends with Mr Chapus. However, they also noted that the child was with Ms Mottram on the occasional weekend. Ester and Sam Poyas wrote that the child stayed with Mr Chapus for half of each week until he commenced study and then changed this to weekends and holidays only. Mrs Brown wrote that, during the school term, the child was with her mother for six nights per week and one night per week with Mr Chapus and that, during the Christmas holidays, the child was with him for about 30% of the time.
CONSIDERATION
13. Where both parents keep accurate records of accommodation arrangements for their child or where a set care routine is strictly followed, it would be possible to determine with mathematical precision the extent to which the child spent nights in the parents’ respective homes. That is not the usual case and this has led to the adoption of a “broad brush” approach in assessing a pattern of care in a particular case[7]. That is appropriate in this matter. Moreover, as Mr Chapus’ claim was made in March 2009, it necessarily requires consideration of circumstances commencing more than twelve months earlier.
[7] See, for example, Warne and Department of Families, Housing, Community Services and Indigenous Affairs [2006] ATA 159 at [25].
14. In his evidence, Mr Chapus said that he changed his caring arrangements from the start of his study programme on 28 February 2008. From seven days each fortnight, the arrangement was for the child to be with him for three days per week from Friday until Monday. In the claim he made in March 2009, Mr Chapus described the child as being with him for 42% of the time, which equates with three nights per week throughout the relevant period. I do not accept that the child was with him for three days each weekend from March to June. In his statement of 12 June 2009, he acknowledged twelve Sunday nights in 2008 when the child was not with him and, on 12 May 2009, he wrote that Ms Mottram “often” collected the child on Sunday afternoons. The assertion in his claim form casts doubt on his credit as a truthful witness.
15. Ms Mottram’s contemporaneous diary record was not challenged by Mr Chapus. I accept it as accurate. It records that, on the very first weekend after 28 February 2008, the child was with Mr Chapus only on Saturday night. In addition, it identifies the child as staying with Mr Chapus for 18 nights in January and February. That totals 19 nights to 2 March 2008
16. I accept that the child was not with Mr Chapus on one weekend in April, when Mr Chapus was studying, and on one weekend at the end of May when Mrs Brown minded her. That leaves a further 15 weekends in the relevant period to be considered. The child’s presence at Mr Chapus’ home on Saturday nights in each of those weekends has not been disputed. However, there is conflicting evidence concerning the arrangement on Friday and Sunday nights.
17. Dr Steele described the child as being with Mr Chapus “virtually” every Friday night. It is clear that she was not there every Friday night. Mr Chapus conceded that there may have been two occasions when she was not there. Ms Spain conceded that there were two Friday nights when the child was not with Mr Chapus but that was only an impression she gained from the Friday nights when she happened to visit or telephone the home. The evidence of Mr and Mrs Swan, Mr and Mrs Poyas and Mr Bromhead does not assist in quantifying the number of Friday nights. Mrs Brown described the child only spending one night per week with Mr Chapus and this would seem to be a reference to Saturday night. Ms Mottram’s evidence to the SSAT was that Mr Chapus cared for the child “mostly one day a week”. As she denied that the child was with Mr Chapus on Sunday nights, her evidence supports her presence there on a small number of Friday nights. Ms Mottram’s diary shows that the child was with Mr Chapus on Friday nights for only four of the first nine weeks of the year or less that 50%. Because of the conflicting evidence and using the broad brush approach noted above[8], I am satisfied that the child was at Mr Chapus’ home for about half of the Friday nights during the 15 week period.
[8] See para 13 above.
18. The evidence of Mr and Mrs Swan, that of Mr and Mrs Poyas and that of Mr Bromhead does not assist in quantifying the number of Sunday nights when the child was with Mr Chapus. Ms Mottram’s evidence was that the child did not stay with Mr Chapus on Sunday nights in the 15 week period under consideration. That is consistent with the nine weeks of entries in her diary which indicates that the child stayed there on only two Sunday nights. Ms Mottram’s evidence was that she kept the child at home on Sunday nights to enable her to transport her to school. In one of his statements, Mr Chapus wrote that Ms Mottram “often” collected the child on Sunday afternoons and he agreed that this was to facilitate school attendance on the Monday morning. Ms Spain, in her statement, wrote that the child stayed with Mr Chapus on Sunday nights “unless otherwise arranged” by Ms Mottram. I have noted Dr Steele’s evidence that the child was in Mr Chapus’ home on approximately 2/3 of Sunday nights. The evidence of Ms Mottram is consistent with that of Mrs Brown who described the child as being with Ms Mottram on six nights per week. It is also consistent with the evidence of Mr and Mrs Swan who described the child as being with Ms Mottram on five or six nights per week. I accept the evidence of Ms Mottram and am satisfied that the child spent no Sunday nights with Mr Chapus in the 15 week period under consideration.
19. I am satisfied that from 2 March 2008 until 30 June 2008, the child was with Mr Chapus for 15 Saturday nights and eight Friday nights. Taken with the 19 nights in the period before 2 March 2008, Mr Chapus had care of the child for 42 nights or 23%. The Guide provides that, generally, a pattern of care is based on the number of nights in an assessment period. The Tribunal has determined that, when assessing the percentage for allocating FTB payments, it is appropriate to consider financial as well as temporal factors[9]. This is based on the view that FTB is intended to assist with the essential costs of caring for children. The SSAT decision and associated reasons for that decision were in evidence. The evidence of Ms Mottram at the SSAT was that Mr Chapus has made very little, if any, financial contribution to the costs of raising the child. Mr Chapus’ evidence at the SSAT was that he had paid no child support for the child and made no contribution to her expenses. This has not been challenged by Mr Chapus. I am satisfied that those financial considerations should be taken into account when assessing the pattern of care for the child. Applying the broad brush approach, noted above[10], I am satisfied that the correct and preferable decision in this matter is that Mr Chapus’ care be assessed at the same rate as was determined by the SSAT. This is 22%.
[9] See Re Feeney and Secretary, Department of Family and Community services and Fitzsimmons [2005] AATA 818 at para [81]; Warne and Department of Families, Housing, Community Services and Indigenous Affairs [2006] ATA 159 at [27].
[10] See para [13].
DECISION
20. The decision under review is affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: .....................[Sgd]........................................................
Kate Slack, Research AssociateDate/s of Hearing 24 June 2010
Date of Decision 30 June 2010
Applicant was self-represented
Other party was self-represented
Solicitor for the Respondent Rick McQuinlan, departmental advocate
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