Paula Paxton and Secretary, Department of Social Services Craig Paxton OTHER PARTY

[2014] AATA 387

[2014] AATA  387

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/0797
Re	Paula Paxton
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Craig Paxton
OTHER PARTY

DECISION

Tribunal	Dr M Denovan, Member
Date	20 June 2014
Place	Brisbane

The Tribunal sets aside the decision of the SSAT, and replaces the decision with the decision of this Tribunal that the shared care for Madison and Benjamin Paxton is assessed as follows:

·           02/02/2012 to 02/11/2012 Paula Paxton 10%

·           03/11/2012 to 21/03/2013 Paula Paxton 16%

·           22/03/2013 to 08/05/2013 Paula Paxton 21%

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Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – Shared care of children – Percentage of care – Decision set aside and substituted

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) Sch 1

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

CASES

Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159

REASONS FOR DECISION

Dr M Denovan, Member

20 June 2014

INTRODUCTION

1. Ms Paxton, the applicant, separated from her husband in 2011.  Ms Paxton moved out of the family home in February 2012. This matter concerns the percentage of care

   
   

   Ms Paxton had of her two twin boys, Madison and Benjamin, after she moved out of the family home on 2 February 2012.

   BACKGROUND

2. In October 2011 Mr and Ms Paxton both agreed that they would each have 50% care of the children on an ongoing basis from October 2011. Mr and Ms Paxton were henceforth in receipt of the Family Tax Benefit (“FTB”) on the basis that each parent had 50% care of the children from 1 October 2011.

3. On 16 January 2013 Mr Paxton told Centrelink that he had 90% care of the children from 14 January 2012 on an ongoing basis. Mr Paxton provided supporting statements from two people. On 5 April 2013 Centrelink decided that the applicant’s percentage of care was 14% from 3 August 2012 and 21% from 22 March 2013. As a consequence, a

   
   

   FTB debit was raised against the applicant.

4. Ms Paxton sought review of that decision, and on 18 September 2013, an authorised review officer (“ARO”) determined that Ms Paxton should be recorded as having

   
   

   10% care from 2 February 2012, 16% care from 3 November 2012, and 21% care from

   
   

   22 March 2013 until 8 May 2013.

5. The applicant applied to the Social Security Appeals Tribunal (“SSAT”) for review of the decision. She supplied a visitation calendar which indicated that she had care of the children for 105 nights during 2012. Mr Paxton provided a visitation calendar which showed he had care of the children for all but 10 nights of 2012.

6. The SSAT identified inconsistencies within the evidence of the applicant on various occasions. They preferred the evidence of Mr Paxton, and varied Centrelink’s decision, and determined that the applicant had 3% care of the children from 2 February 2012 until 18 January 2013, and 22% care from 18 January 2013 until 8 May 2013.

7. The application for review of the decision by the Administrative Appeals Tribunal was lodged on 13 February 2014. The only period of time which the applicant contends is incorrect is from 2 February 2012 until 18 January 2013. She claims to have had

   
   

   35% and 40% care during this period.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

8. The relevant legislation is contained in A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”), and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).

9. The annual rate of a person’s family tax benefit is calculated in accordance with a calculator provided in Sch 1 of the Act. If an individual percentage of care during the care period is less than 35%, no family tax benefit is payable.

10. When a determination for an individual’s percentage of care has been made, and the Secretary, Department of Social Services (“the Secretary”) becomes aware that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care, the Secretary must revoke the determination. The Secretary must then make a new determination.

11. The extent of care of a child that a person with shared care has is usually worked out based on the number of nights that the child is in the care of that person.

12. The questions for this Tribunal are whether the existing percentage of care should be revoked for the period in question, and if so, what percentage of care is appropriate.

    CONSIDERATION

13. Both parties agree that on or about 2 February 2012 Ms Paxton moved out of the family home, and that from that date the previously agreed “week on, week off” shared care arrangement came to an end.

14. It is therefore necessary for the existing percentage of care determination to be revoked, and replaced with a new determination.

15. Ms Paxton claims that Mr Paxton restricted her access to the two boys in 2012. At the hearing, Ms Paxton claims to have cared for the twins one week in September 2012, and for about 10 days in the June 2012 school holidays. She also says she stayed over at the family home most Wednesday nights in 2012 in the presence of Mr Paxton. She also had the children every second or third weekend.

16. In November 2013 Ms Paxton provided a calendar for 2012 detailing the nights she claims to have cared for the twins. Ms Paxton told me the details included in this visitation calendar were based on information she recorded in her own private diary contemporaneously. Ms Paxton initially claimed she had overnight care on all the dates indicated in the calendar; however later in the hearing she said that on some of the dates she may have only had day care.

17. Although it is usual to use the number of nights in care to establish a percentage of care, this method does not always fairly reflect the caring arrangements for children. This is particularly so when care is provided for whole days, and for relatively short periods, such as weekends; and also care provided when a child is not attending school. In such cases, daytime, or even the actual hours of care may be taken into consideration in determining a pattern of care. It still must be remembered however, that exactness in calculations or determinations of day to day variations in care is not intended. Rather, it is usual to try and determine the pattern of care that has existed, or will exist, over a period of time. Deputy President Hack held that a “broad brush basis” is an appropriate method of making decisions in relation to these provisions.[1]

    [1] Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159 at [25].

18. I am unable to accept the visitation calendar provided by Ms Paxton as a factual representation of the care she provided in 2012. Not only is it opposed to the information provided by Mr Paxton, who claims to have had more than 90% care during 2012, but it is also inconsistent with information provided previously by Ms Paxton.

19. Following her application for review of Centrelink’s decision dated 5 April 2013,

    
    

    Mr and Ms Paxton provided information about the amount of care they each had of the children from 2 February 2012 onwards. Ms Paxton told Centrelink that she and

    
    

    Mr Paxton compiled the information together. Although there was some discrepancy between the dates provided by both parties, the visitation calendars provided by

    
    

    Mr and Ms Paxton were consistent, in that both indicated she had two nights care, and a similar number of day visits between the period 24 February 2012 and

    
    

    5 September 2012. Even though the evidence suggests that Ms Paxton’s care during this period was less than 10%, it was not possible to decide a precise calculation due to some variance in the dates.  The ARO decided that the appropriate shared care percentage for Ms Paxton was 10%, and I agree that is an appropriate, “broad brush” decision.

20. The same visitation calendars show a definite change in the shared care pattern from

    
    

    3 November 2012, towards alignment with the parenting plan signed in July 2012 by both Mr and Ms Paxton. The average number of nights Ms Paxton spent with the twins from 3 November 2012 to the end of March 2013 provides a shared care percentage of 16%.

21. The information provided for the ARO’s consideration prior to the decision in

    
    

    September 2012 is more contemporaneous and therefore likely to be more reliable than that provided more recently.

22. I therefore prefer the evidence relied upon by the ARO, and determine that the appropriate shared care percentage for Ms Paxton is as determined by the ARO, that is: 10% from 2 February 2012 to 2 November 2012, 16% from 3 November 2012 to

    
    

    21 March 2013, and 21% from 22 March 2013 until 8 May 2013.

    FINDINGS OF THE TRIBUNAL

23. The Tribunal sets aside the decision of the SSAT, and replaces that decision with the decision of this Tribunal that the shared care for Madison and Benjamin Paxton is assessed as follows:

    ·02/02/2012 to 02/11/2012 Paula Paxton 10%

    ·03/11/2012 to 21/03/2013 Paula Paxton 16%

    ·22/03/2013 to 08/05/2013 Paula Paxton 21%.

I certify that the preceding 23 (twenty –three) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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Associate

Dated 20 June 2014

Date of hearing	28 May 2014
Applicant	In person
Solicitors for the Respondent	Nicholas Warren, Department of Human Services
Other Party	In person