Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Another

[2008] AATA 607

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 607

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2007/4099

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRETT ROGERS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

And KAREN RYAN

Third Party

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date14 July 2008

PlaceBrisbane

Decision

The decision under review is affirmed

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – family tax benefit – determination of appropriate percentage of family tax benefit – decision under review affirmed.

A New Tax System (Family Assistance) Act 1999 ss 21(1), 22, 22(7), 59(1),

The Family Assistance Guide, Department of Families, Housing, Community Services and Indigenous Affairs (Version 1.104; 1 July 2008)

Wade v Secretary, Department of Families and Community Services [2004] FCA 1660

Re Warne and Department of Families, Community Services and Indigenous Affairs [2006] AATA 159

REASONS FOR DECISION

14 July 2008	Dr K S Levy RFD, Senior Member
BACKGROUND

1.      The applicant, Brett Rogers, and his former wife, Karen Ryan, are the subject of a Family Court order dated 2 June 2005 setting out care arrangements for their three children.  Mr Rogers has been entitled to 23% of the family tax benefit entitlements in respect of the three children, with effect from 1 July 2005.

2.      That entitlement was downgraded to 15% of the family tax benefit (FTB) in respect of these children for the period 1 July 2005 to 30 June 2006.  That decision was made by Centrelink on 31 August 2006.  Upon request for review of that decision, an authorised review officer decided on 23 October 2006 that, amongst other things, Mr Rogers was entitled as follows:

(a)23% of the family tax benefit for the period 1 July 2005 to 2 February 2006; and

(b)12% of the family tax benefit for the period 3 February 2006 to 30 June 2006.

3.      Mr Rogers then appealed that decision to the Social Security Appeals Tribunal (SSAT) on 22 February 2007.  That Tribunal upheld the original decision on 22 June 2007.  Mr Rogers now seeks a further review by this Tribunal.

ISSUE FOR DETERMINATION

4.      The question for the Tribunal is to determine the most appropriate percentage of family tax benefit to which Mr Rogers is entitled for the 2005/2006 financial year.

EVIDENCE

5.      The Tribunal was provided with substantial documentary evidence, including some edited copies of the Section 37 documents, owing to sensitivities which exist between the applicant and his former wife, Karen Ryan, who is the added party with the respondent in this matter.  They have three children who are presently aged approximately 17 years, 15 years and 14 years.  It is clear that they were all aged under 18 in the financial year relevant to this application.

6.      Mr Rogers and Ms Ryan are the subject of an order from the Family Court dated 2 June 2005 which provided for contact arrangements for Mr Rogers with his three children.  These included access every alternate weekend, access for half the school holidays and various other modifications in relation to Father’s Day and Mother’s Day weekends.  Mr Rogers is a serving soldier in the Australian Army and is posted to Canungra.  Access arrangements provided that Mr Rogers and Ms Ryan should meet half way between their homes at Cunningham's Gap.  She now lives in Stanthorpe and the evidence indicated that there were a number of occasions when Ms Ryan had not complied with the order in that she had not met Mr Rogers as agreed.  She had apparently given him advanced warning of her refusal to meet him as required under the order and said that there were financial reasons why she could not comply.

7.      Mr Rogers stated that he did not keep records in the 2005/2006 financial year when he had care of the children.  He stated that there was capacity for a degree of flexibility in the court order and that by arrangement, he sometimes would endeavour to reschedule a weekend visit.  He attributed this to his work commitments to the Army and said that there were a couple of weekends in the early part of 2006 (about February or March 2006) when he was unable to have access as previously agreed.  Mr Rogers maintains that Ms Ryan has refused to allow him alternative access for those weekends.

8.      Various dates were provided when Mr Rogers had access to the three children in the 2005/2006 financial year.  These were essentially undisputed by either party and as a result, the decision which was affirmed by the SSAT is based upon the following:-

(a)23% of the family tax benefit for the period 1 July 2005 to 2 February 2006 – Mr Rogers had access for the amount of time originally contemplated by the Court order; and

(b)12% of the family tax benefit for the period 3 February 2006 to 30 June 2006 – Mr Rogers had contact for 18 nights out of a total of 148 in that period, which amounts to 12% for that period.

9.      It is the second of the above periods which is essentially in dispute in this matter.

10.     Ms Ryan referred the Tribunal to folio 30 of exhibit 3, which is a letter from the Family Assistance Office dated 30 August 2006 recommending the parties maintain a record of their contact with the children as there was an apparent change emerging in the amount of time that the children were in the care of each parent.

11.     The applicant also raised with the Tribunal the question of the financial impost upon him under the present arrangements.  A letter by the applicant, dated 19 January 2008, to the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs was provided to the Tribunal on 23 June 2008.  That letter indicates that Mr Rogers provides child support of over $14,000 per annum.  It also states “I also travel approximately 10,800 kilometres per year to access the children, which costs between $2,000 and $2,500 per year in fuel (depending on fuel prices) plus maintenance of the vehicle…”.  This evidence complements oral submissions made by the applicant that rather than meeting him half way, he is required to drive from Canungra to Amiens, where the added party and the children now live.  He stated that this is 900 kilometres (approximately) he has to travel each weekend to access his children.  This matter was also the subject of submissions by each of the parties, with the respondent providing authorities which were supportive of the applicant’s claim in this respect and other authorities which were not supportive. It was also the subject of supplementary submissions at a telephone directions hearing on 11 July 2008.

CONSIDERATION

12.     I have considered all of the evidence provided and all of the legislative provisions and case law relevant to this matter.

13.     I make the following findings of fact:-

(a)The applicant (Mr Rogers) and the added party (Ms Ryan) have a Family Court order in place which governs arrangements for custody of the three children.

(b)The applicant and the added party have mutually agreed to change these arrangements from time to time.

(c)The Court order provides for Mr Rogers and Ms Ryan to meet half way between their respective residences at the specified frequencies for the purpose of Mr Rogers gaining access to the children.

(d)On access weekends, Mr Rogers drives approximately 900 kilometres to visit his children, despite the arrangement in (c) above.  The added party did not meet the applicant half way, in part because of her financial position.  On those occasions, Mr Rogers had to drive the whole distance to Ms Ryan’s residence to access the children.

(e)Mr Rogers and Ms Ryan have an acrimonious relationship which is an aggravating factor in relation to access.

(f)The applicant had access to his children for 18 nights out of 148 nights in the period 3 February 2006 to 30 June 2006.   

14.     In determining the questions put to the Tribunal, the legislation of relevance is A New Tax System (Family Assistance) Act 1999 (“the Act”).  Relevantly, that statute provides that an individual will be entitled to family tax benefit if that person has at least one family tax benefit child and satisfies various other conditions[1]. The family tax benefit child must be under the age of 18 and the individual claiming the benefit must be legally responsible for the “day-to-day care, welfare and development” of that child. Provision is also made that a family tax benefit child, is also governed by the Act, where there is a family law order or parenting plan in force in relation to each such child[2].  In addition, the Secretary must be satisfied that there has been or will be, “a pattern of care” for the child for the whole or parts of the periods in which the child is with a particular individual[3].  In addition, the Secretary must be satisfied that the child (or children) was or will be with any such individual or parent for at least 10% of the period of time for which the family tax benefit is payable[4].  In cases where the family tax benefit child is the child of two persons who are not partnered, then the Secretary may determine the percentage of the family tax benefit of the respective parents or carers[5].

[1] New Tax System (Family Assistance) Act 1999 s 21(1)

[2] New Tax System (Family Assistance) Act 1999 s 22

[3] New Tax System (Family Assistance) Act 1999 s 22(7)

[4] New Tax System (Family Assistance) Act 1999 s 25(1)

[5] New Tax System (Family Assistance) Act 1999 s 59(1)

15.      The pattern of care overall as disclosed by the evidence was generally not in dispute.  As indicated by the evidence, the decision under review can be regarded as consisting of two periods in the 2005/2006 financial year, the first of which comprises the first seven months of the period (1 July 2005 to 2 February 2006); and a second period dealing with that period commencing on 3 February 2006 to 30 June 2006.  It is the second of these periods which the applicant disputes at least in terms of the ultimate result in the decision under review.  Mr Rogers acknowledges the number of days in the second period, although he did not keep records of exact dates when he had contact with the children in that financial year.  In acceding to the number of days relied upon by the respondent in each of those two periods covered by the decision, Mr Rogers says there are a number of reasons for this.  In particular, he is a serving soldier and some service commitments intervened from time to time, although he referred mainly to about two weekends in the second of the above two periods.  He agrees that when he has not been able to visit on scheduled weekends owing to service obligations, he maintains that he had tried to arrange an alternative weekend but Ms Ryan has not been cooperative.  Ms Ryan says in exculpation that she had financial difficulties in not meeting Mr Rogers half way but disputes the fact that she was uncooperative. In any event, I accept, as did the SSAT, that Mrs Ryan did not comply with the Court order on some occasions.

16.     Ms Ryan also submitted that the pattern of care evident in the second part of the 2005/2006 year ie. 12% contact rather than the original 23% contemplated, has now become more of the normal pattern of care for Mr Rogers. 

17.     I have considered those submissions but nevertheless, the decision under review that I am obliged to determine covers only the period 1 July 2005 to 30 June 2006.  Most of the factual evidence of relevance is undisputed by the parties, particularly the period from 3 February 2006 to 30 June 2006 which is the critical period under review.  The decision must be assessed in terms of the legal provisions and I am satisfied that all of the above statutory provisions are applicable to Mr Rogers and Ms Ryan and their three children.

18. The essential decision must therefore be made in terms of s 59(1) of the Act, ie. the Secretary may determine the percentage of family tax benefit for each child which is to be paid to each parent. The Family Assistance Guide (“the Guide”) is of some use conducting this evaluation. In particular, the Guide specifies that where the percentages or the care arrangements between the relevant parties is not agreed, then it is necessary to determine “a pattern of care”. This is usefully done by adopting “either the number of nights in care … or the hours of care for each FTB child. The percentage of care for each FTB child is then calculated and applied to the standard rate …”[6].

[6] “Shared Care & Establishing a Pattern of Care”, The Family Assistance Guide, Department of Families, Housing, Community Services and Indigenous Affairs (1 July 2008) at paragraph 2.1.1.45

19. The application of s 59(1) and the Guide was amplified in Wade v Secretary, Department of Family and Community Services[7]. The Court said that the purpose of the Act is to provide the proportion of the benefit to “… the person having the care of the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided by them … The pattern of care is also used as the basis for calculation of the percentage …”[8].

[7] [2004] FCA 1660

[8] Wade v Secretary, Department of Family and Community Services [2004] FCA 1660 per Keifel J at 30-31.

20.     It has been previously determined in this Tribunal that exactness in calculations or determinations of “day-to-day variations in that care”[9] is not intended[10].  Also, in Re Warne and Department of Families, Community Services and Indigenous Affairs[11], DP Hack held that a “broad brush basis” is an appropriate method of making decisions in relation to these provisions.

[9] Re Cassidy and Secretary, Department of Families and Community Services [2006] AATA 97 at 6.

[10] See further Re Feeney and Secretary, Department of Families and Community Services & Anor [2005] AATA 818 at 81.

[11] [2006] AATA 159 at 25.

21.     In accordance with the evidence, I have made a finding of fact that the applicant had access to his children for 18 nights out of 148 nights in the period 3 February 2006 to 30 June 2006.  This amounts to a 12% entitlement. The original decision maker made that determination as did the SSAT on appeal. I also find therefore that the original decision is strictly appropriate in accordance with those legislative provisions. That is subject to considerations on ‘differences in financial expenditure’ by the applicant.

differences in financial expenditure

22.     The applicant seeks recognition of the additional expenditure he incurs on his visits to see his children.  Ms Ryan did not dispute Mr Rogers travels from Canungra to Amiens in the financial year in question, nor did she dispute the distance that Mr Rogers claimed.  She did dispute whether she had been uncooperative in providing alternative weekends to him but that is not material to the consideration of the question of financial expenditure as the applicant accepts that he has only had access for 12% of the time in the second five months of the 2005/2006 financial year.  In the statement provided dated 19 January 2008, Mr Rogers stated that he travelled 10,800 kilometres per year to access his children.  This he said costs him between $2,000 and $2,500, depending on the fuel prices.

23.     In accordance with the principles of proportional recompense set out by the Federal Court in Wade v Department of Family and Community Services (supra), the recognition of “financial and temporal factors” is justified in certain circumstances.[12] In the present case, the cost borne by Mr Rogers, as submitted, appears to be not insignificant in the scheme of total costs and FTB payable. Using the statements of cost he has provided, the average of those figures as an annual cost is $2,250.

[12] See also Re Feeney andSecretary, Department of Family and Community Services & Anor [2005] AATA 818 at 81; Re Munn and Department of Family and Community Services [2000] AATA 141 and Re Plowright and Secretary Department of Family and Community Services [2000] AATA 840.

24.     At the telephone directions hearing on 11 July 2008, Mr Rogers confirmed to the Tribunal the costs submitted were based on 2008 costs, not in costs representative of 2005/06 costs, the year under review. As these related to fuel costs only, I estimate the costs, on a broad brush basis, are more likely to be 85% of the amount submitted i.e. $1900 approximately. Mr Rogers also provided dates at the telephone directions hearing and it is now apparent that there were 9 trips he made for the 12 month period and 7 of those were of the full 900 kilometres.  As he would have been liable for half that expenditure an adjustment by that factor is necessary. On the basis of 7 trips each of an additional 450 kilometres (3150 km) and assuming a car on average achieving a fuel  economy of 10 litres per 100kilometres, then the incremental additional cost to Mr Rogers is more likely to be in the vicinity of $425. This is significantly different to Mr Rogers submissions. Also, any such assessment must take into account a relative equitable assessment of the parties and the fact that the policy behind the legislation is concerned with the essential costs of caring for the children. It is not to be diverted by emotive and acrimonious arguments of the parties which are not central to the issue of care of the children. In the context of the above, I regard the submissions to be without merit and that the true costs not to be significant.

25.     As a consequence, I dismiss the application. The decision under review is affirmed.

DECISION

26.     The Tribunal determines that the decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed:  ...................[Sgd]......................................................

Elizabeth Young, Research Associate

Date of Hearing  27 June 2008
Date of Decision  14 July 2008
Applicant was self-represented  
Solicitor for the Respondent     Mr Joe Guthrie, Departmental Advocate