Newsome and Secretary, Department of Family and Community Services and Anor
[2004] AATA 471
•12 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 471
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2003/1689
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN NEWSOME Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
1st Respondent
KYLIE-JOY PEARCE
2nd Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Date 12 May 2004
Place Sydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the decision under review is set aside and in substitution therefor the Tribunal decides that:
(i) Christine Newsome is an FTB child of Mr John Newsome and was in his care for 14.67 per cent of the time in the period 20 February 2002 until 25 September 2002.
(ii) The matter is remitted to the Respondent to calculate any Family Tax Benefit payable to Mr Newsome as a result of this decision.
..............................................
Ms S M Bullock Senior Member
SOCIAL SECURITY – Benefits – Family Tax Benefit – What Constitutes an FTB Child
A New Tax System (Family Assistance) Act 1999 ss 21, 22, 25, 59
REASONS FOR DECISION
12 May 2004 Ms S M Bullock, Senior Member 1. Mr John Newsome, the Applicant, disagrees with the decision of the Social Security Appeals Tribunal (“SSAT”) that Christine Newsome, his daughter, was considered not to be a Family Tax Benefit (“FTB”) child of his in the period from 20 February 2002 until 25 September 2002. The SSAT made this decision on 17 September 2002 along with a decision in relation to his other child, Andrew Newsome (T3). It is only the decision in relation to Christine that Mr Newsome is disputing and for which he has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”).
2. A hearing was held before the Tribunal in Sydney on 13 April 2004 and resumed by telephone on 22 April 2004. Mr Newsome provided oral evidence to the Tribunal as did his wife, Mrs Karen Newsome, who also made submissions on Mr Newsome’s behalf. The First Respondent, the Secretary, Department of Family and Community Services was represented by Ms Jane Green, Departmental Advocate. The Second Respondent, Ms Kylie-Joy Pearce, also provided oral evidence and submissions. Ms Pearce was not represented. Evidence was also provided at hearing by Mr P Constable and Ms L Ford. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (“T documents”, T1-T61) and a number of exhibits which are listed in Schedule 1 to this decision.
3. On 18 November 2003, an order was made pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 that it was desirable to prohibit to all persons other than the First Respondent and its legal advisors, and the members of the Tribunal and members of the staff of the Tribunal, to disclose the Applicant’s home telephone number, any financial information and amounts of any debts raised in relation to the Applicant (T2).
issue
4. The issue in this matter is whether or not Christine Newsome was an FTB child of John Newsome under the ANew Tax System (Family Assistance) Act 1999 from 20 February 2002 until 25 September 2002.
legislation
5. The legislation applicable to determination in this matter is the A New System (Family Assistance) Act 1999 (“the Act”).
6. Eligibility for Family Tax Benefit (“FTB”) is the subject of section 21 of the Act and provides at 21(1) that:
“
An individual is eligible for family tax benefit if:
(a) the individual has at least 1 FTB child (see section 22 and later provisions); and
(b) the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); and
(c) the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.”
7. Of relevance also is section 22 of the Act, which details the circumstances in which a person is an FTB child of an adult. In so far as is relevant to this matter, section 22 provides that:
“
22.(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
22.(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.
22.(3) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) a family law order or registered 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 have contact; 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.
22.(4) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) the individual is in the adult’s care; and
(c) the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual; and
(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
22.(5) The individual is an FTB child of the adult if:
(a) the individual has turned 18 but is aged under 21; 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.
22.(6) The individual is an FTB child of the adult if:
(a) the individual has turned 21 but is aged under 25; 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 individual is undertaking full-time study.
22(7) If:
(a) the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual under subsection (2), (3), (4), (5) or (6); and
(b) one of those other individuals makes, or has made, a claim under Part 3 of the A Newsome Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in that period; and
(c) subsection 25(1) does not require that the child be taken not to be an FTB child of that individual for any part of that period;
The child is to be 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.”
8. Section 25 of the Act deals with circumstances in which an individual is in a person’s care for less than ten per cent of a period. Section 25 also describes the concept of “pattern of care”.
9. In circumstances where an individual has been found to be an FTB child of two people, but those two people are not a couple, section 59 of the Act provides that the Secretary may determine by way of percentage, the level of care being provided by each care giver for FTB purposes.
evidence of mr john newsome
10. Mr Newsome was born on 7 December 1968 and married Ms Kylie-Joy Pearce in 1991, separating in 1999 and eventually divorcing in 2001. The Tribunal notes that the SSAT recorded that Mr Newsome and Ms Pearce separated in 2000. The couple have two children, Christine born on 2 July 1996 and Andrew born on 23 March 1998. Mr Newsome subsequently married Karen Ford approximately two years ago. Mr and Mrs Newsome have a son, Nicholas, born on 8 January 2002.
11. Mr Newsome is not working and is in receipt of a Disability Support Pension for a back injury. The children’s care arrangements, and in particular arrangements for Christine, the subject of these proceedings, came into place when Mr Newsome and his second wife moved into a three bedroom house in Currans Hill. Mr Newsome stated that they moved to a larger house so as to accommodate himself, his wife and new son Nicholas as well his children from his first marriage when they visited. Mr Newsome told the Tribunal that prior to that time, the care arrangements were ad hoc, but became more settled with their new accommodation.
12. The care arrangements under consideration are from 20 February 2002 until 25 September 2002. At the relevant time, Christine was attending Kindergarten. Mr Newsome stated that every second weekend, he would pick Christine up on a Friday afternoon, either from school at about 3pm or from Ms Pearce’s home, by 4pm. Christine would stay from Friday evening until Sunday when she would be taken back to her mother. Mr Newsome stated that sometimes he would have Christine stay until Monday morning and that he would take her to school. It was Mr Newsome’s evidence that at that time, Ms Pearce lived approximately 3km from Mr and Mrs Newsome’s home. As Ms Pearce was so close by, if there was a need to get additional clothes for school or to make any arrangements for Christine to stay overnight on Sunday night, this was not difficult. Christine would bring her clothes and some toys from Ms Pearce’s home but later on, she had some of her own things purchased for her by Mr and Mrs Newsome that remained there. Ms Pearce would pack Christine’s clothes and belongings. On occasion, if it was raining, Ms Pearce would ask Mr Newsome to pick Christine up in his car. Mr Newsome had a copy of Ms Pearce’s house key and could come and go as necessary in order to collect Christine, or obtain belongings.
13. If Christine stayed with Mr Newsome until Monday morning, which was not usually pre-arranged, her hair would be washed on Sunday evening so that it was ready for school the next day. He would take Christine to the netball area within the School on Monday morning prior to Monday Assembly. On Friday afternoons, Mr Newsome would wait outside Christine’s classroom. It was Mr Newsome’s view that he and his wife would look after Christine 14.25 per cent of the time, possibly based on two nights per fortnight. In relation to School Holidays, the arrangement was that Christine would spend half the time with Mr and Mrs Newsome and half the time with her mother, Ms Pearce.
14. During the period in question, Mr Newsome travelled overseas to Thailand for a period of approximately one week to ten days. He could not precisely recall the dates and thought that there may have been three occasions upon which he visited Thailand. Mr Newsome recalled that on one occasion he arranged to meet a friend who lived in England, and on another occasion he travelled to Thailand with Mrs Newsome. Mr Newsome stated that Christine still stayed with his wife Karen when he was away as he recalled that Ms Pearce wanted to go out. On the occasion when Mr and Mrs Newsome both travelled to Thailand together for approximately 10 days the care arrangements were then made for Ms Pearce to look after Christine and Andrew as well as Mr and Mrs Newsome’s new baby, Nicholas.
15. Mr Newsome noted that there are incomplete diary records of the care arrangements for the children prior to September 2002 (T13), but these had been prepared as a result of a Family Court hearing which formalised the care arrangements for the children amongst other matters.
16. Mr Newsome stated that when Christine was with Mr Newsome, her recreation activities included staying at home and playing, having friends or family visit or going to the park to play. Friends of Mr Newsome who would visit included Mr Sheldon Marsh and Mr Peter Constable. Mr Marsh lived close by at that time and visited often. Mr Newsome’s parents would visit or the family would visit his parents or there would be visits from Mrs Newsome’s parents. Another good friend at the time was Ms Jacinta Webb who has a daughter similarly aged to Christine and consequently, the two little girls would play together, either at Mr Newsome’s house or at Ms Webb’s home.
17. A diary entry for February 2002 (T13, p62), indicated that at least one of the children from his first marriage stayed with Mr and Mrs Newsome during the week. Mr Newsome stated that Christine did not stay often during the week because it was difficult to get her off to school, especially as Mrs Newsome was working full-time and there were also the needs of the new baby, Nicholas, to care for.
18. When Mr Newsome went to Ms Pearce’s home, the couple would discuss the children and any relevant matter regarding their welfare. It was not until September 2002, that the relationship between Mr Newsome and Ms Pearce “turned sour”, Mr Newsome stated. He gave Ms Pearce’s key back to her in about September 2002.
evidence of mrs karen newsome
19. Mrs Newsome was born on 19 February 1979 and stated that she and John Newsome were married on 2 December 2001. Mrs Newsome noted that her husband has a poor memory and she is the one who remembers everything. Mrs Newsome noted that she and her husband did not claim any FTB until they moved into their three bedroom house at Currans Hill and they were in a position to be more precise and accurate about the care arrangements for the children and to in fact, establish a pattern of care for Christine and Andrew.
20. It was Mrs Newsome’s recollection that Christine would stay with Mr Newsome and herself every second weekend, staying until Monday morning, when Mr Newsome would take Christine to school. Sometimes Christine would return to Ms Pearce’s home on Sunday evening. Mrs Newsome stated that the usual pattern was to drop Christine at school on Mondays. In February 2002, a month after Nicholas’s birth, Mrs Newsome was still on Maternity Leave returning to work on 7 March 2002.
21. Mrs Newsome stated both she and her husband prepared the diary entries contained at T13 for the purposes of the Family Court proceedings in September 2002. There was some difficulty in recalling events between February and September 2002 for the purposes of the issue to do with the FTB.
22. During School Holidays, Mrs Newsome described the care arrangements for Christine as being “50/50” and that they would have both Christine and Andrew stay with them. Mrs Newsome said that this did not mean that Ms Pearce would have the children for the first part of the holidays and Mr and Mrs Newsome would have the children for the second part of the holidays, as the arrangements were more ad hoc than that.
23. In relation to statements by friends about the care arrangements for the children, and focusing on Christine, Mrs Newsome stated that she and her husband had discussed with these friends the purpose for their statements, but did not tell them specifically what to write and denied writing or assisting their friends with their respective statements.
24. In relation to Ms Pearce’s statements about the care arrangements, Mrs Newsome stated that these were inconsistent and there were many changes in her evidence, as was also noted by the SSAT. Mrs Newsome stated that there was no evidence that Ms Pearce had Christine as often as she had claimed. Mrs Newsome referred the Tribunal to the body of evidence from herself and her husband and other people who had observed Christine at Mr and Mrs Newsome’s home whereas, Ms Pearce had no such supporting evidence. Thus, Mrs Newsome referred to the statement of her sister, Ms Leah Ford. Mrs Newsome informed the Tribunal that she is very close to her sister and indeed to her family as a whole. Mrs Newsome then noted the statement from Mr Marsh and indicated that he visited often and saw Christine at Mr and Mrs Newsome’s home, for example, when barbeques were held. It was Mrs Newsome’s evidence that Mr Constable also came to Mr and Mrs Newsome’s home and would sometimes stay overnight. Barbeques were held often and Mr Constable would perhaps be there on the weekends on at least three occasions over a period of four weeks. Ms Jacinta Webb, another friend of the Newsome’s, has a daughter, Jemima, with whom Christine would play either at Mr and Mrs Newsome’s home or at Jemima’s own home.
25. In relation to Mr Newsome’s evidence of his trips to Thailand, Mrs Newsome confirmed that Mr Newsome travelled there she thought, on just two occasions. Mrs Newsome stated that she could not recall the exact dates, but does recall that the occasion upon which Mrs Newsome visited Thailand with her husband was from 31 August 2002 for about 12 days. Mrs Newsome told the Tribunal that when Mr Newsome travelled to Thailand for the purposes of meeting up with his friend from England, she still kept up the care arrangements of looking after Christine every second weekend.
26. On a typical weekend with Christine, the family would go to the park and play, Christine would ride her bike or play with friends such as Jemima Webb. There would be visits from Mrs Newsome‘s parents or Mr and Mrs Newsome would take Christine and Nicholas to visit her parents at their home. In the beginning, Ms Pearce used to pack Christine’s things for the weekend but Mr and Mrs Newsome gradually bought Christine her own things so that after some time Christine had ample belongings at their home. Mrs Newsome stated that her husband would either pick up Christine from school on Friday afternoon or later that day from Ms Pearce’s home. If Christine was going to stay on Monday, then there would be discussion between Mr Newsome and Ms Pearce on Sunday evening. On Sunday evening, Mrs Newsome would pack Christine’s bag for school, iron her uniform and do Christine’s hair.
27. Mrs Newsome noted that when she was pregnant, Christine was very excited and would ask all the time about when the baby was due. Mrs Newsome told the Tribunal that Christine is very close to Nicholas and helps prepare his bottles. On the mornings that Nicholas knew Christine was over, he would call out for her upon waking. On the day Mrs Newsome came home from the hospital with Nicholas, Christine and Andrew visited the new baby.
evidence of ms leah nicole ford
28. Ms Ford is Mrs Newsome’s younger sister and was born on 16 August 1984. Ms Ford stated that during the period 20 February 2002 until 25 September 2002, she would visit her sister every weekend. If she stayed over, Ms Ford would sleep on the sofa bed. Ms Ford stated that Christine was at Mr and Mrs Newsome’s home every second weekend. Furthermore, Ms Ford was very certain that Mr Newsome would pick Christine up on a Friday and drop her at school on Monday although she herself was not there on Mondays as she works from 8.30am until 5.30pm during the week. It was Ms Ford’s “practice” to go home after finishing work to eat dinner with her parents and then drive to Mr and Mrs Newsome’s home. Ms Ford stated that it was only a 20 minute drive between their respective homes. It was Ms Ford’s evidence that she would be with Mrs Newsome on the weekend for about four or five hours and would probably stay overnight during a weekend twice per month. Other people who were there included Pauline and Sheldon Marsh every now and then. Peter Constable also visited although less frequently. There would be family barbeques at Mr and Mr Newsome’s home perhaps a couple of times per month, Ms Ford stated. Ms Ford noted that Andrew and Christine shared a bedroom and had bunk beds.
29. It was Ms Ford’s evidence that Christine was fascinated with the new baby Nicholas and very helpful to Mr and Mrs Newsome. On a weekend, Christine would watch videos, play at home, or go to the park. Ms Ford recalled two of Mr and Mrs Newsome’s friends in particular, who had similarly aged children to Christine who would come and play. Ms Ford could recall one of the children’s names as Jemima and thought that she would see Jemima visiting from time to time on the weekend.
evidence of mr peter constable
30. Mr Constable lives in Victoria and his date of birth is 24 January 1981. Mr Constable had provided a statement for the SSAT and told the Tribunal that he is still happy that his statement reflected the truth about the period in question. Mr Constable stated that he has been a friend of Mr Newsome’s since September 2000 when he moved into a flat in Currans Hill. They became very good friends after being introduced by a mutual friend at Mr Newsome’s house-warming party, and have enjoyed each other’s company since. Mr Constable moved to Victoria in 2003, but still visits Sydney quite regularly.
31. During the time in question, Mr Constable would see Mr Newsome three or four days per week, “popping over after work” and on the weekends. On the weekend, his visits were ad hoc, but he estimated that he would visit Mr Newsome three weekends during a four week period. He would stay overnight except when both Andrew and Christine were staying with Mr and Mrs Newsome. Mr Constable stated that he would see Christine and he believed she was with them with Mr and Mrs Newsome every second weekend. If Mr Constable was not visiting Mr and Mrs Newsome, he would phone and would often hear Christine over the telephone. Mr Constable stated that Mr and Mrs Newsome had a number of barbeques during that period. When he slept over, it was on a pull out couch and Christine would come and wake him up in the morning. Mr Constable thought that Christine would have been taken back on Monday morning to school but he was certain that she always stayed overnight on Saturday.
32. Mr Constable stated that sometimes Christine would have friends over, who lived across the road, but he could not recall their names. They would ride their bikes at the front of Mr Newsome’s house.
33. Mr Constable denied the SSAT’s conclusion that he had been told what to say by Mr or Mrs Newsome in his statement. Mr Constable told the Tribunal that he wrote the truth in his statement.
evidence of ms kylie-joy pearce, second respondent
34. Ms Pearce is the mother of Andrew and Christine and her date of birth is 6 March 1972. Ms Pearce stated that she and Mr Newsome were divorced on 2 December 2001 and he remarried in January 2002. During the period in question, Ms Pearce stated that she lived five or ten minutes drive away from Mr and Mrs Newsome. Ms Pearce did not have a car at that time and was not employed during the period. Christine was in full-time school in Kindergarten. Ms Pearce stated that Mr Newsome would look after Andrew three days per week. Ms Pearce stated that she tried to encourage her former husband to have Christine more often when he was able. She explained that the reason she had commenced Family Court proceedings in August /September 2002 was to ensure that Mr Newsome spent more time with Christine.
35. Ms Pearce stated that Christine would see her father on “special occasions” such as his Birthday, Mrs Newsome’s Birthday, Nicholas’ Birthday and Father’s Day. If Christine asked to go to her father’s home, which happened about once per month, Ms Pearce would contact Mr Newsome, requesting he have Christine stay with him. Mr Newsome would generally come over to Ms Pearce’s home to see Christine “quite a bit” during the relevant period, that is, nearly every second day. Mr Newsome would take Ms Pearce shopping in lieu of paying her maintenance. If Christine was staying with Mr Newsome, he would collect her from Ms Pearce’s home. It was a rare event, Ms Pearce stated, for Christine to stay overnight with Mr Newsome on weekends. Ms Pearce stated that there was the rare occasion when Christine would be taken to school on a Monday morning by Mr Newsome and perhaps that occurred on two or three occasions during the relevant period.
36. Ms Pearce stated that she could have had her close friends write letters and give evidence similar to the evidence provided on behalf of Mr and Mrs Newsome or could have obtained information from her next door neighbour. Ms Pearce stated that she chose not to do this as it was her private business and she did not want to involve anyone else. Ms Pearce stated that she was telling the truth.
37. Ms Pearce stated that Mr Newsome was away in June 2000 for approximately ten days in Thailand. Also, between August and September 2000, Mr and Mrs Newsome were away together in Thailand again for period of approximately ten days. During this time, Ms Pearce looked after all of the children including the baby Nicholas. Ms Pearce was not aware of Mr Newsome travelling to Thailand on a third occasion.
38. Ms Pearce stated that there was one occasion when Mrs Newsome looked after all of the children on a Friday night when Ms Pearce went out. She then collected Christine the next day, Saturday, having a friend drive her over to Mrs Newsome’s home to collect Christine.
39. Before September 2002, Ms Pearce stated that she was on talking terms with Mr Newsome. It was Ms Pearce’s evidence that Mr Newsome asked her if she wanted to go with him and Mr Marsh to assist them with the three Disco’s that Mr Marsh would work at as a Disc Jockey (“DJ”). Ms Pearce could not recall precisely when this was. The only evidence she could provide was that she was there as well as Mr Marsh on one occasion and Mr Constable and she recalled that this occurred on three occasions, namely at the “Carrington Hotel” in Katoomba, “Alexandra Hotel” in Leura and “Uncle Bucks’” in Mt Druitt. Mrs Newsome looked after the children on two of these occasions and on the third occasion, a friend of Mrs Pearce’s looked after Christine and Andrew. Ms Pearce told the Tribunal that on the two occasions that Mrs Newsome cared for Christine, it was for one night only on either a Thursday or a Friday.
40. Ms Pearce stated that she does not associate with Mr and Mrs Newsome’s friends. She was aware that Christine would play with Jemima, a daughter of one of Mr and Mrs Newsome’s friends and told the Tribunal that Christine does not play with Jemima under her supervision. Ms Pearce could not comment on Leah Ford’s movements. Ms Pearce did not ask Christine what she did at her father’s house, although sometimes Christine volunteered that she did nothing, or played games or played with Jemima.
41. When Ms Pearce and Mr Newsome separated, there were no formal discussions or arrangements about the children. Christine’s care was dealt with on a “day-to-day basis”, Ms Pearce stated. Mr Newsome would phone Ms Pearce or come over to see the children. In June 2000, they were still good friends. Karen and John Newsome would sometimes stay overnight at her place and they would all go out to a club together. Things went sour later when Ms Pearce took out an Apprehended Violence Order (“AVO”) against Mr Newsome which she later dropped. Ms Pearce told the Tribunal that she commenced Family Court proceedings because she wished to formalise the care arrangements for the children and, more particularly encourage Mr Newsome to have more regular contact with Christine.
42. Ms Pearce stated that for most of the period, Mr Newsome had a key to her home. Mr Newsome would come over and watch the children sleep, usually at about 2am after getting home from one of the Disco’s, see the children, sometimes stay for a “coffee and a chat” and then go. Mr Newsome regularly told Ms Pearce that he was too tired to have Christine on Friday, Saturday or Sunday. It is Ms Pearce’s view that Mr Newsome did not want Mrs Newsome to have all the children because she had a newborn child, along with his participation in assisting Mr Marsh run the three Disco’s, which were open until late. The combination of these circumstances and Christine asking to see her father more often, lead Ms Pearce to commence Family Court proceedings, she reiterated. Ms Pearce wanted to establish a more regular pattern of care for Christine and to begin a life of her own. Ms Pearce stated that she went out rarely during the period in question and when she did, it was only with Mr Newsome. Ms Pearce stated that she had since ceased relying on her former husband for assistance, and wanted to move on. Ms Pearce denied that she had instituted the Family Court proceedings as a spiteful act and also denied that she was trying to disrupt Mr and Mrs Newsome’s trip to Thailand. Ms Pearce stated that she had been informed by the Family Court that Mr and Mrs Newsome would be made aware of the proceedings before September 2002, but the arrangements in fact did not happen as quickly as Ms Pearce had anticipated.
43. Ms Pearce stated that the contact with Christine only became regular after the Family Court Order was put in place. During the school holiday prior that time, Christine would not stay for the full week with her father but he would take Christine on one or two days overnight.
44. Initially, Ms Pearce had agreed to the FTB claim, but she became angry when she realised that it was untruthful. Ms Pearce explained to the Tribunal that in relation to a Departmental File Note dated 6 November 2002, she had agreed with her former husband to the shared care of the children backdated to February 2002 (T3, p6, paragraph 4). Ms Pearce stated specifically, as noted in that file note, that she had originally agreed verbally to the percentage of care, but was under the duress of Mr Newsome, and thought that simply agreeing would be the easiest way to ease her stress. Ms Pearce later decided to fight the backdating of the FTB issue because she was angry as she believed that Mr Newsome was lying.
45. Ms Pearce stated that she was a person who was easily influenced or persuaded by Mr Newsome and this had provided further reason for commencing the Family Court proceedings, as it served to assist in counteracting Mr Newsome’s influence over her. Ms Pearce stated that she also took out the AVO because Mr Newsome was constantly harassing her by phone. When he stopped this, she dropped the AVO. Furthermore, Ms Pearce admitted that she did not properly read the terms of the AVO and that there were some mistakes in it. Ms Pearce also stated that she did not properly read the Interim Family Court Orders and there were some errors in these also, for example, the Interim Order did not reflect that Ms Pearce did not want Christine to go to Mr and Mrs Newsome during the week because she did not want Christine’s school week broken up. When Mr Newsome came to collect Nicholas after returning from his and Mrs Newsome’s trip to Thailand, he was angry and aggressive about the Family Court Orders, Ms Pearce stated. Ms Pearce told the Tribunal that Mr Newsome wanted to know why she had not consulted him before commencing the proceedings.
46. Ms Pearce stated that she made no diary entries of the care arrangements for Christine between 20 February and 25 September 2002. It was Ms Pearce’s evidence that she never thought her relationship with Mr and Mrs Newsome would have reached a point where they were not on good terms.
47. Ms Pearce denied that her evidence was inconsistent in that it was alleged by the Applicant that on the one hand she was using the Family Court Order to force Mr Newsome to have more contact with Christine, yet the interim Family Court Order in fact denied Mr Newsome access. Ms Pearce also denied that she only sought Family Court intervention after Mr Newsome threatened to seek full custody of the children when Ms Pearce would not allow him to have Christine stay with him.
submissions
the applicant
48. Mrs Newsome presented submissions on behalf of her husband, Mr Newsome. Mrs Newsome referred the Tribunal to part of the SSAT which referred to photographs submitted of the children with Mr and Mrs Newsome before the period under review (T3, p9, para20). The Tribunal’s attention was also directed to evidence from Ms W Jordan (T12) regarding Mr Newsome’s care of Andrew, and from Pauline Tayler who lived at Currans Hill and, at the relevant time, provided a statement (T6). Ms Tayler’s statement indicated that Christine was staying two nights per fortnight with Mr and Mrs Newsome. Mrs Newsome also referred the Tribunal to a statement by Ms Jacinta Webb who was a friend and former neighbour (T9). Ms Webb noted that Christine was in Mr and Mrs Newsome’s care three days per fortnight (T9).
49. In relation to Ms Kellie Harden’s statement (T7) and Ms Pearce’s allegation that Ms Harden did not write or sign that statement (T8), Mrs Newsome referred the Tribunal to the SSAT’s decision where it was noted that Ms Harden was contacted by the SSAT and she had told that Tribunal that she had visited the Currans Hill home on two or four occasions and both Christine and Andrew were there at the time (T3, p 13, 14, paragraph 44). In support of the level of care of Christine provided by Mr Newsome, Mrs Newsome referred to the following evidence: Mr Peter Constable’s evidence to the Tribunal and his Affidavit (T60); the Affidavit from Sheldon Marsh (T61); the evidence of Ms Leah Ford and a statement from Mr and Mrs Ford, Mrs Newsome’s parents (Exhibit A1). This body of evidence, Mrs Newsome submitted, attested to Christine staying with Mr and Mrs Newsome for at least two nights every fortnight.
50. Mrs Newsome submitted that Ms Pearce has not provided any statements or evidence to support the level of care of Christine that she contended and thus, Ms Pearce has no proof to support the proposition that Christine was not with Mr and Mrs Newsome every second weekend overnight. The inference which can be drawn, Mrs Newsome further contended, is that Ms Pearce is not telling the truth as she has no corroborative evidence. Ms Pearce might, for example, have provided evidence from Ms Denise Smee, who had shared accommodation with her and could have attested to Christine’s care arrangements, but Ms Pearce had not done so.
51. Mrs Newsome acknowledged that the diary entries in relation to the children’s care arrangements for 20 February through to 25 September 2002 were not very detailed. Mrs Newsome submitted however, that those diary entries were prepared for the Family Court proceedings, before there was any knowledge of the FTB debt. As a result, Mrs Newsome submitted that the diary entries could not be seen by the Tribunal to be self-serving or contrived (T13, pp 62-67).
52. Mrs Newsome referred the Tribunal to the AVO obtained by Ms Pearce against Mr Newsome requiring him to attend court on 26 September 2002. Mrs Newsome noted that in the Complaint Summons Document, it is recorded that there was “an informal arrangement for access visits by the Defendant Mr Newsome” (T4, pp21, 22). Despite Ms Pearce’s statement that she did not properly read the AVO, Mrs Newsome submitted that Ms Pearce would have been required by the Police to read the Order and agree with its contents. Mrs Newsome told the Tribunal that she knows this because Mr Newsome had previously taken an AVO out against Ms Pearce.
53. The Tribunal was referred by Mrs Newsome to inconsistencies in Ms Pearce’s evidence to the SSAT and to this Tribunal in that Ms Pearce told the SSAT that Christine never stayed overnight at Mr and Mrs Newsome’s home (T3, p10, paragraph 27). Ms Pearce’s later evidence to the SSAT was that Christine was rarely at Mr Newsome’s home except for special occasions such as a birthday or Father’s Day, emphasizing that Christine never stayed over on a weekend (T3, p10, para27). Ms Pearce had then agreed at the SSAT, following discussion of the AVO, that Mr Newsome did indeed have informal access arrangements with the children. Inconsistency was also apparent in later evidence to the SSAT, Mrs Newsome submitted, when Ms Pearce stated that Christine did occasionally stay overnight but during the week, not on the weekend (T3, p11, paragraph 30) and that this could be one or two days per fortnight during the school term. In evidence to the Tribunal, Mrs Newsome submitted that Ms Pearce stated that Christine would stay over on special occasions and had stayed over one night on the weekend a couple of times. Mrs Newsome contended that there was no consistency at all in Ms Pearce’s statements. Furthermore, it was not consistent with Ms Pearce’s stated purpose of undertaking Family Court proceedings in order to establish a regular pattern of care when on the other hand, Ms Pearce had, in the Interim Family Court Order, sought to prevent Mr Newsome having more regular contact with Christine.
54. Mrs Newsome submitted that the Tribunal should consider a file note released to Mr Newsome under FOI, but omitted from the T-Documents because of the section 35 Order, that there was no formal shared care arrangements before the Family Court Order of 26 September 2002 and Ms Pearce had told a Centrelink office that Christine was solely in her care. The file note records that Ms Pearce was not aware of the backdating of the FTB for Christine to 20 February 2002, yet Ms Pearce later changed her story to the Tribunal, noting that she had agreed to back-dating under duress to minimise her stress.
55. The Tribunal was asked by Mrs Newsome to consider that Mr Newsome is father to both Andrew and Christine and that it is inconceivable that he would favour one child over the other. Mrs Newsome submitted that Ms Pearce was trying to damage her and Mr Newsome’s relationship by stating that Mr Newsome would visit Ms Pearce at 2am to observe Christine sleeping, and for a chat. Furthermore, Mrs Newsome contended that the Disco where Mr Newsome was assisting his friend Mr Marsh was a long way away and it was impossible for him to be back by 2am to observe Christine sleeping, as Ms Pearce had asserted. Mrs Newsome noted that the nightclub(s) concerned opened from 10pm until 4am. Even if the nightclub closed early on some nights, as Ms Pearce suggested, Mr Newsome would not be able to reach Ms Pearce’s home within the time frame Ms Pearce asserted. In any event, at the time Mr Newsome was going with Mr Marsh and Mr Constable to the discos, Mrs Newsome noted that in fact Mr Constable and Mr Marsh were not on talking terms as they had had a major disagreement at around the time Mr and Mrs Newsome moved into the three bedroom house at Currans Hill and noted that they are still not friends. Thus, it would not have been possible for them to be together anywhere. Furthermore, Mrs Newsome noted that Ms Pearce told the SSAT that Mr Newsome only visited Ms Pearce once at 2am but to the Tribunal, she indicated that it happened much more frequently.
56. Mrs Newsome submitted that the Family Court Order reflected the situation which had already been in place since 20 February 2002 when Mr Newsome had assisted Ms Pearce in finding a home in Narellan so that Mr Newsome could be closer to the children. Ms Pearce had acknowledged that Christine and Nicholas were very close, and in relation to this, Mrs Newsome posed the question as to how this close relationship could have developed if Christine was so rarely at Mr and Mrs Newsome’s house as Ms Pearce had suggested.
57. Mrs Newsome submitted that Ms Pearce’s attempts to discredit Mr Newsome by alleging that he had signed the claim for FTB, forging her own signature, was not successful as those signatures were hers (T10 p52, T11, p60, T15, p99). Mrs Newsome noted that her signatures may have looked slightly different but they were all definitely hers. Mrs Newsome added that such a claim was yet another attempt to discredit the relationship with Mr Newsome by alleging that “I didn’t know what is happening in my marriage”.
58. Mrs Newsome submitted that she and her husband have been truthful about the care arrangements for Christine. They have provided a body of evidence from family and friends to support this. Mr Ford, Mrs Newsome’s father, provided a statement (Exhibit A1) to reflect his honest belief about the care arrangements for Christine. Mr Ford visited the Newsome family on about ten occasions during the period and noted that on each of those occasions Christine was present. Mrs Newsome stated that her parents were both professionals and would not be prepared to lie for her. Mrs Newsome added that her father did not visit every day of the weekend so she asked the Tribunal not to assume that Christine was there every time that her father was. Mr Ford’s evidence still represented, however, an accurate picture of what was happening and when combined with all the other evidence, indicated that the frequency of care of Christine was at least two nights per fortnight. Ms Pearce has not been able to refute this level of care with any other evidence apart from her own.
59. Mrs Newsome submitted that it should be noted that she works full-time for Centrelink. She loves her job and she would not in any way jeopardise her position by lying about the matters concerning Christine’s care. Mrs Newsome contended that Mr Newsome has only asked for the minimum of what they considered they are entitled to claim and have not claimed other overnight stays because they have been ad hoc about care arrangements.
60. In relation to other evidence regarding the care arrangement for Christine, Mrs Newsome said that during the relevant time Christine was in Kindergarten, she was not a member of a sporting team as she was too young, and did not have to visit doctors or other professionals over the weekends. Mrs Newsome also highlighted the difficulty in having Christine participate in sports such as Netball and Swimming as they are weekly events and Mr and Mrs Newsome had Christine every second weekend. The family also do not attend Church and therefore no corroboration was possible from that source as to Christine’s care arrangements. It is also not possible to provide actual evidence that Christine went to the park or stayed at home, apart from the evidence of family or friends already provided, Mrs Newsome stated.
61. Mrs Newsome submitted that if Ms Pearce was so unhappy about the “irregular contacts” with Christine, why did Ms Pearce take such a long time to go to the Family Court. The only reason Ms Pearce went to the Family Court, Mrs Newsome submitted, because when Mr Newsome threatened Ms Pearce that he would contest custody of the children.
first respondent
62. Ms Green submitted that this is a difficult case for the Tribunal in so far as determining where the truth lies. Ms Green urged the Tribunal to consider the “actual care” given to Christine and not what the Family Court Order says, or what was loosely agreed. Ms Green also noted that the case was characterised by conflicting evidence. It was Ms Green’s submission that the body of evidence from the Applicant and his wife, family and friends put forward to support the proposition that Christine was in Mr Newsome’s care for two nights over every second weekend was substantial.
63. Ms Green submitted that Ms Pearce has not provided any corroborative evidence to support her contention that Christine was rarely with Mr Newsome. Ms Green noted that the ARO and SSAT had considered the evidence previously and came down on the side of Ms Pearce, despite the inconsistency in her evidence. Ms Green then referred the Tribunal to the Family Assistance Guide (Exhibit R2), which lists other matters that should be taken into account when determining the percentage of care and evidence of the pattern or care. Ms Green noted examples such as: proof of attending local community activities; sport; church; receipts for various items purchased for the child; the involvement of professional people such as a doctor or social worker or the like. Ms Green submitted that neither Mr and Mrs Newsome nor Ms Pearce is in fact able to provide this additional corroborative information discussed in the Family Assistance Guide (Exhibit R2). Ms Green conceded however, that given Christine’s age, the type of evidence suggested by the Guide was not likely to be available, or difficult to substantiate.
64. Referring to Mr Ford’s statement, and taking it at face value, Ms Green noted that there are 218 days from 20 February 2002 until 25 September 2002 and on Mr Ford’s evidence, Christine was present at least on 20 days during that period. Ms Green submitted that on Mr Ford’s evidence, Christine was with Mr and Mrs Newsome during the period for 9.1 per cent of the time. Thus, relying solely on Mr Ford’s evidence, Christine would not be an FTB child of Mr Newsome because she was not there for ten per cent or more of the time as is required by section 25 of the Act. However, being mindful of the large body of evidence of Christine being at Mr Newsome’s home every second weekend, that evidence however, should be given some weight.
65. Ms Green acknowledged that Mr and Mrs Newsome had done a “fair job” in putting together evidence supportive of their proposition that Christine stayed with them definitely for two nights every second weekend. Notwithstanding that concession, Ms Green’s conclusion on behalf of the first Respondent was that the SSAT’s decision should not be disturbed. It was Ms Green’s final submission that the Tribunal consider the Family Assistance Guide and give some weight to Ms Pearce’s evidence that she did not want to involve others, when considering the validity of evidence before the Tribunal to the contrary.
second respondent’s submission
66. Ms Pearce reiterated her position that she had chosen not to provide evidence from other sources in supporting her case at the Tribunal because she did not want other people to become involved. Ms Pearce also wished it known that in relation to her possibly presenting evidence from Denise Smee, this would not be relevant because Ms Smee lived with her in 2003 and not between February 2002 and September 2002.
67. If Mr Newsome had been more regular in his contact with Christine, then, Ms Pearce submitted, she would not have had to resort to the Family Court to obtain a formal Care Order.
68. Ms Pearce submitted that it was possible for Mr Newsome to have come at 2am to observe Christine sleeping because one of the disco venues was at Mount Druitt which is close to her home. Ms Pearce emphasised that she had gone to three of these Disco venues with Mr Newsome, one of those being at Mount Druitt. Furthermore, Ms Pearce contended that Mr Newsome did not wake the children as a matter of routine when he visited. If Christine woke up, he would speak to her quickly and then tell her to go back to sleep.
69. Ms Pearce further submitted that she had no interest in breaking up Mr and Mrs Newsome’s relationship. Ms Pearce acknowledged that Mrs Newsome loved the children and was a very good mother, being just as caring as her and Mr Newsome in relation to the children.
70. Ms Pearce referred to the unhelpful nature of the statement of Ms Harden as it had not been signed (T7). This fact was noted by the ARO in a file note dated 10 December 2002 (T8) in which it was also noted that Ms Harden’s statement was to be disregarded.
71. Ms Pearce wished the Tribunal to be alerted to the possibility of the unreliable evidence provided by Mr Newsome generally, but specifically referring to documents purportedly signed by Mrs Newsome (T10, p52 and T11, p60) in which Ms Pearce alleged that Mr Newsome had forged Mrs Newsome’s signature. At T15, p99, another document containing Mrs Newsome’s signature, Ms Pearce contended that this was not Mrs Newsome’s signature but that of her husband. Accordingly, how was it possible for the Tribunal to believe Mr Newsome about him having Christine every second weekend if he was prepared to undertake such false and misleading actions in allegedly forging is wife’s signature. Ms Pearce also contended that Mr Newsome’s friends would have said whatever he wanted them to say and that their testimonies and statements should be disregarded.
72. Ms Pearce concluded that the Tribunal was in a position where it had to rely on her word only. Ms Pearce told the Tribunal that she could have arranged for witnesses of her own and that some friends did offer, however, she was adamant that this was her business and she did not want to “drag them into it”. Ms Pearce knows one friend (“Priscilla”) who is a neighbour and who was there on a regular basis. Ms Pearce did not want to involve this neighbour in the current matter as this neighbour was sceptical when asked to witness Andrew’s Passport application. Ms Pearce could not provide testimony from her own parents as there had been an estrangement from them during the period in question
73. Ms Pearce acknowledged that this matter tested her memory of events some two years ago and acknowledges that she, like Mr Newsome, does not have a very good memory. However, when Ms Pearce’s memory had been triggered by some of the evidence submitted to the Tribunal by Mr and Mrs Newsome, she corrected her evidence, resulting in the inconsistencies referred to. The true position is, Ms Pearce contended, that Christine’s contact with Mr Newsome was irregular and loose and certainly not every second weekend. There was the “odd time” that Christine stayed overnight during the week or if on a weekend, on a Sunday. Ms Pearce emphasised that if Mr Newsome had cared for Christine regularly, she would not have pushed for the Family Court matter.
consideration and findings
74. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence and the legislation.
75. I have heard conflicting evidence from the Applicant and the Second Respondent and both parties have identified inconsistencies in each others evidence. While I acknowledge that it is not an easy matter to recall events which occurred some two years ago, nevertheless, the Tribunal has to reach a decision.
76. Mrs Newsome pointed to the inconsistency in Ms Pearce’s evidence and this is also apparent to the Tribunal. For example, Ms Pearce’s evidence to the SSAT was that Mr Newsome never had Christine staying overnight which then changed to Mr Newsome occasionally having Christine stay overnight and on special occasions. In evidence to this Tribunal, Ms Pearce stated that it was rare for Mr Newsome to have Christine overnight during the weekend. Most recently, Ms Pearce noted that Mr Newsome may have had Christine stay overnight occasionally on a Sunday. Ms Pearce also provided evidence of at least two other occasions when Christine stayed at the Newsome’s home, these being when Mr Newsome was in Thailand without Mrs Newsome and when Ms Pearce accompanied Mr Newsome and Mrs Marsh to the Disco. It is quite clear however, and the Tribunal so finds, that Christine spent less time with Mr Newsome than with her mother, Ms Pearce.
77. Ms Pearce’s evidence was also unreliable in relation to her stating initially that she did not agree to the FTB claim and then later stating that she had agreed under duress in order to minimise her stress. Her evidence to the SSAT and to this Tribunal is contradictory on that matter. Ms Pearce’s evidence concerning the level of care Mr Newsome provided to Christine was inconsistent to the SSAT and to this Tribunal. Ms Pearce’s evidence about not properly reading the AVO order and the Interim Family Court Order is not satisfactory and again appears to indicate some inconsistency.
78. There is evidence from Ms Leah Ford which supports Mr and Mrs Newsome’s evidence that Christine was with Mr and Mrs Newsome every second weekend. Ms Ford’s evidence was matter of fact. It is clear that Ms Ford is close to her sister, Mrs Newsome, and her answers to questions indicated a close association with Nicholas and Christine.
79. Mr Constable’s evidence to the Tribunal was similar to that given to the SSAT. Contrary to Mr Constable’s evidence, the Tribunal finds that Mr Constable’s presence at Mr Newsome’s house was not frequent enough or at the relevant time to enable him to conclude that Christine was present every second weekend. This is particularly so when regard is had to Ms Ford’s evidence, which the Tribunal accepts. The Affidavit of Mr Marsh indicates that he was not there as frequently as Ms Ford. Ms Ford estimated that Mr Marsh had seen Christine five or six times during the relevant period and that Mr Constable visited less frequently than Mr Marsh. Ms Ford’s evidence counters not only Mr Constable’s but Mr Marsh’s evidence about the regularity of their visits. The evidence of Ms Harden was not helpful in establishing whether or not Christine was at Mr Newsome’s home every second weekend nor was the evidence to the SSAT from Ms Harden.
80. The evidence of Mr Glen Ford does not in itself establish that Christine was with Mr Newsome every second weekend and overnight but in the Tribunal’s view does establish what would appear to be a more regular pattern of care for Christine by Mr Newsome than is indicated by Ms Pearce.
81. When I consider the Family Assistance Guide (Exhibit R2), there are a number of examples given as assisting in verifying a pattern of care. At the relevant time Christine was attending Kindergarten. Christine was not involved with sporting activities, did not attend church and on a weekend, was not attending appointments with doctors or social workers or any other professionals. There are no medical receipts available or receipts from any goods which were purchased for Christine. Christine in fact brought her belongings from Ms Pearce’s home. Her main recreational activities at that time were conducted at Mr Newsome’s home with friends or she would go to the park or ride her bike. These activities were also described by Ms Pearce as part of Christine’s recreational life at Ms Pearce’s home as reported to her by Christine.
82. Ms Pearce stated that she could have obtained evidence from friends to support her claims concerning Christine being with her on the weekends but she chose not to do so. Such a matter is absolutely Ms Pearce’s decision but I must reach a decision on the evidence before me. With the inconsistencies in Ms Pearce’s evidence, notwithstanding the difficulties with Mr Newsome’s evidence, the weight of evidence which I have accepted and which has not been sufficiently disproved, is that Christine spent two nights on a weekend with Mr Newsome from Friday night and that she would return on most occasions on Sunday. The evidence of Mr Ford and Ms Leah Ford was particularly persuasive and in the absence of anything other than Ms Pearce’s evidence, combined to establish a pattern of care of Christine every second weekend on Friday and Saturday nights. I have nothing in the evidence to convince me or to establish that there was a pattern of care for Christine staying equally with Mr Newsome and Ms Pearce during the school holidays. The fact that there may have been more contact between Mr Newsome and Christine, for example, Christine staying on a Sunday night or during the week, is not sufficient, on the evidence which I have accepted, to warrant adjusting the accepted regular pattern of care. The Tribunal also notes that it must consider the actual care given to Christine by Mr Newsome. There are 218 days between 20 February 2002 and 25 September 2002. The number of days during that period which I have accepted as reflecting Christine staying regularly with Mr Newsome for two nights every second weekend when calculated as a percentage indicates that Christine was in Mr Newsome’s care for 14.67 per cent of the time. In such circumstances, I find that Christine was an FTB child of Mr Newsome during the period 20 February 2002 until 25 September 2002 and that the regular pattern of care was for Christine to be with Mr Newsome 14.67 per cent of the time.
83. Accordingly the decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act1975. In substitution therefor, the Tribunal decides that:
(i) Christine Newsome is an FTB child of Mr Newsome and she was in his care during the period 20 February 2002 up to and including 25 September 2002 for 14.67 per cent of the time.
(ii) The matter is remitted to the First Respondent to calculate any FTB payable to Mr Newsome during the period 20 February 2002 and 25 September 2002.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 13 April 2004; 22 April 2004
Date of Decision 12 May 2004
Representative for the Applicant Mrs NewsomeCounsel for the 1st Respondent Ms J. Green, Departmental Advocate
Representative for the 2nd Respondent Self represented
SCHEDULE 1
NUMBER DESCRIPTION DATE A1 Statement “To Whom it May Concern” from Glen and Kerry Ford 14 December 2003 R1 Respondent’s Statement of Facts and Contentions 31 March 2004 R2 Family Assistance Guide: Sections 2.1.1.30; 2.1.1.45; 2.1.1.50.
Key Legal Topics
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Administrative Law
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Judicial Review
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Statutory Interpretation
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Standing
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