Roger Hywood and Secretary, Department of Social Services Kelly Ross OTHER PARTY Senior Member N A Manetta 17 October 2014 27 October 2014 Adelaide
[2014] AATA 791
•17 October 2014
[2014] AATA 791
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6737
Re
Roger Hywood
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Kelly Ross
OTHER PARTY
WRITTEN REASONS FOR ORAL DECISION
Tribunal Senior Member N A Manetta
Date 17 October 2014 Date of written reasons 27 October 2014 Place Adelaide For the reasons given orally, the Tribunal sets aside the decision of the Social Security Appeals Tribunal and substitutes a decision that Mr Hywood had 51% care of his daughter Karlee Hywood during the period 30 October 2011 to 30 June 2012.
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Senior Member N A Manetta
CATCHWORDS
FAMILY TAX BENEFIT - estranged parents living apart - percentage share of care - SSAT finding that applicant had no care percentage set aside - applicant found to have had 51 percent care.
LEGISLATION
A New Tax System (Family Assistance) Act 1999, Part 3, s 25, 29
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
WRITTEN REASONS FOR ORAL DECISION
Senior Member N A Manetta
27 October 2014
Following the hearing of this matter, when I delivered oral reasons for my decision, one of the parties requested written reasons under s 43(2A) of the Administrative Appeals Tribunal Act, 1975. I now publish my written reasons.
This is an application by Mr Roger Hywood for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 11 November 2013. The SSAT affirmed an earlier decision taken within the respondent’s Department that he was ineligible to receive family tax benefit payments from 30 October 2011 to 30 June 2012 in respect of his daughter, Karlee. Mr Hywood represented himself; Mr Visser appeared for the respondent. Karlee’s mother, Ms Kelly Ross, was joined to the proceedings as an interested party and represented herself.
My task is to decide the matter afresh on the evidence before me, not review the SSAT’s decision for error.[1] I shall refer to the legislative provisions briefly, set out the background facts and the parties’ evidence, and then state my conclusions and decision.
[1] Drake v Minister for Immigrations and Ethnic Affairs (1979) 2 ALD 60
LEGAL PROVISIONS
The relevant legal provisions may be summarised as follows.[2] Parents who are separated but who each continue to care for a child must share the family tax benefit payment. Broadly speaking, the rules are as follows. First, each parent’s percentage care time for the child is estimated. The sum of the percentages may not exceed 100%. Secondly, where a parent has less than 35% care time (which, where there are two care givers only, implies the second parent has more than 65% care time), the first parent receives 0% of the benefit and the second parent 100% of the benefit.[3] A parent who has between 35% and 65% of the care time receives a percentage of the benefit on a sliding scale calculated in accordance with the relevant formula prescribed in the Act.[4]
[2] The provisions are contained in Part 3 of A New Tax System (Family Assistance) Act 1999.
[3] See section 25.
[4] See section 59.
BACKGROUND FACTS
Mr Hywood and Ms Ross have two daughters, Karlee (born 28 November 2008) and a younger daughter, Rakel. Mr Hywood and Ms Ross are now estranged from one another.
Mr Hywood submitted an application for family tax benefit claiming he had care of Karlee for- rather curiously- precisely 51% of the time. The application was lodged on 28 January 2011 (T14)[5] and it related to a period commencing on 20 January 2011. Mr Hywood gave evidence that he thought he was responsible for looking after Karlee on a “fifty-fifty” basis with Ms Ross. His evidence was that Centrelink advised him to apply for 51%, leaving Ms Ross with 49% and he did so. Mr Hywood did not understand why this advice was given and Mr Visser could throw no light on the matter either. I accept, however, Mr Hywood’s evidence that he was advised by Centrelink to apply for 51% rather than 50%.
[5] “T” References followed by a number in these reasons are to a page number in the documents required to be lodged by the respondent under s.37 of the Administrative Appeals Tribunal Act, 1975. These were tendered and received as Exhibit R1.
His application was initially successful and payments began. His entitlement was subsequently reviewed, however, in the Department following a report from “another party” (I assume this was Ms Ross) that he had no care of Karlee during the period 30 October 2011 to 30 June 2012 (to which I shall refer as the “relevant period”) (T76).
Ms Ross’s statements and actions
In this regard, Ms Ross had made a statement to Centrelink on 7 August 2012 (T70) in the following terms:
“Rakel Hywood and Karlee Hywood began to stay over Roger Hywood abode 29th June 2012 stayed to 21st June 2012, 29th June to 9th July, 12th July 2012 to 16th July, 19th July 2012 to 23rd July 2012, 26th July 2012 – 30th July 2012.
I have 100% care for Karlee and Rakel since 28/11/2008 but on the occassions[sic] I have stated is when the kids have had contact with their dad, Roger Hywood.”
This statement suggests that Mr Hywood had no care of Karlee in the relevant period. I note further that in a letter to Centrelink (T73) dated 27 September 2012, the Western Assessment and Crisis Intervention Service at the Queen Elizabeth Hospital stated that Ms Ross had said that Mr Hywood did not have the capacity to assist with child care. The letter records that Ms Ross had informed the Service that Mr Hywood had left on 4 January 2012 “to go and live in Broken Hill”. As of February 2012, the letter notes that Mr Hywood had not returned and that Ms Ross apparently advised the Service in August 2012 that “Roger had just returned from Broken Hill” and “that he had just started having contact with his children again.”
I note that Ms Ross obtained notes from her mother and a friend Edith addressed to “To whom it may concern” in nearly identical terms stating that during the relevant period Ms Ross visited them most days and Karlee was always with her when they came for a visit (T262 and 263).
All this shows, in my opinion, that Ms Ross did maintain to Centrelink and others that Mr Hywood had no care or responsibility for Karlee during the relevant period.
In the event, decisions were taken in the Department to seek to recoup the benefit believed to have been wrongly paid to Mr Hywood during the relevant period. The first decision in the Department was apparently to allocate a zero percentage of care to Mr Hywood. On an internal review, the Authorised Review Officer decided that Mr Hywood could not substantiate at least 35% care and so was ineligible to receive any part of the benefit (T98).[6]
[6] The amount sought to be recovered is recorded there as $4,261.33.
SSAT Appeal
Mr Hywood appealed to the SSAT. The SSAT records that at the hearing before it, both Mr Hywood and Ms Ross submitted that Mr Hywood had 51% care responsibility for Karlee during the relevant period (T10 at para [20]). What was effectively a joint submission was - perhaps surprisingly - rejected. Ms Ross’s evidence was rejected as being inconsistent with her reports to Centrelink.
MR HYWOOD’S EVIDENCE
Before me, Mr Hywood maintained that he had 51% care during the relevant period because he was responsible for looking after Karlee for three to four nights a week on average. His daughter would stay with him from Thursday night to Monday. In his evidence, he said this even extended to a period where he was living in emergency accommodation at the Christies Downs Motel following his forced departure from a residence at which he was boarding. He said he maintained care of Karlee because Ms Ross had mental difficulties that affected her ability to look after Karlee.
I note Karlee would have been just under three years of age when the relevant period began. He gave evidence that he is familiar with looking after infant children from a previous relationship which bore him a child, now an adult. Mr Hywood also gave evidence that he does not drive, but used public transport to pick up Karlee (although one of his questions to Ms Ross implied that his girlfriend may have driven him in her car to pick up Karlee on occasion).
He gave evidence that he was, indeed, away in Broken Hill, but on two occasions only during the relevant period (no more than 5 days on each occasion) to assist in the care of an ill parent. His recorded attendances at appointments with Workskill Inc (T87) show that he was in Adelaide on nine occasions during the relevant period. This record is inconsistent with an uninterrupted absence in Broken Hill for the whole of that time.
MS ROSS’S EVIDENCE
Ms Ross’s evidence before me was that Mr Hywood did look after Karlee in the relevant period, but on average no more than once a month. Her final submission to me was that Mr Hywood looked after Karlee no more than 30% of the time. She acknowledged that there were consecutive weekends when Mr Hywood took Karlee but she was quite clear that on average it was no more than once a month and fell short of the minimum 35% necessary to establish eligibility for the benefit.
CONCLUSION ON THE EVIDENCE
The Secretary made no submissions to me regarding the evidence I should prefer and led no evidence.[7] The case effectively came down to a decision as to which of the two accounts I should prefer on the evidence before me.
[7] Apart from tendering the documents required to be provided to the Tribunal under section 37 of the Administrative Appeals Tribunal Act, 1975.
In this case, Mr Hywood has persuaded me that his version is more likely than Ms Ross’s. In reaching this conclusion, I specifically note the following.
First, Ms Ross has said different things on different occasions. To Centrelink it would appear she has maintained Mr Hywood had no care responsibility at all in the relevant period; to the SSAT, she corroborated his version of 51%; before me she has rejected that position and maintains his percentage care is not nil but no more than 30%. Her reliability is open to doubt in these circumstances.
Secondly, and relatedly, Ms Ross has mental health concerns[8] that she admits affects “her functioning”, although she also gave evidence that medication does help her. I doubt her ability accurately to recall events in these circumstances.
[8] She said she suffers from schizophrenia.
Thirdly, Ms Ross has corroborated before me important parts of Mr Hywood’s evidence that might otherwise have seemed implausible. First, she accepts that he did come down by public transport to pick up Karlee (as he does not drive) and that he did look after Karlee in a motel room while he was homeless for a period following his forced departure from the premises where he was boarding.
Fourthly, I note that Mr Hywood’s active concern for his daughter results partly, he said, from concerns he held about Ms Ross’s mental health. This seems credible to me given Ms Ross’s evidence that mental problems have been an issue for her. In particular, I refer to her evidence that she had difficulty raising two children from an earlier relationship and that their father is now responsible for their care.
In deciding the matter in Mr Hywood’s favour, I do not question Ms Ross’s integrity. I do not say she deliberately lied to the Tribunal. I do not find, however, that her evidence before me was reliable when judged in all the circumstances.
DECISION
I shall set aside the decision of the SSAT and substitute a decision that Mr Hywood had 51% care of his daughter Karlee during the period 30 October 2011 to 30 June 2012. This decision will reflect the percentage on the claim form lodged with Centrelink, and it is consistent with Mr Hywood’s evidence of regular ongoing care of three to four nights per week on average during this period.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta .........................[Sgd]...............................................
Administrative Assistant
Dated 27 October 2014
Date(s) of hearing 13 & 17 October 2014 Applicant In person Advocate for the Respondent Mr C Visser Solicitors for the Respondent Dept of Human Services Other Party In person
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