Ros and Secretary, Department of Family and Community Services

[2005] AATA 886

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 886

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: N2004/1047

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAIVED ROS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date30 August 2005

PlaceSydney

Decision

For the reasons given orally the day following the conclusion of the hearing, the Tribunal decides that the decision under review is affirmed.

The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service, and are furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

[sgd]     Ms G Ettinger   Senior Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – children in care of Applicant under 10 per cent – decision affirmed

I certify that the preceding pages are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:   Associate

Date of Hearing   30 August 2005
Date of Decision   31 August 2005
Representative for the Applicant       Self-represented
Representative for the Respondent   Mr Gary Richardson

DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2004/1047
MS ETTINGER, Senior Member

DAIVED ROS and SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

SYDNEY, TUESDAY, 30 AUGUST 2005

MS ETTINGER:   This is the matter of Daived Ros v Secretary Department of Family and Community Services.  I note that none of the parties are present today and I have advised them that in fact I will send them a transcript of these reasons for decision.

BACKGROUND

Just to put this matter into context, I note that the application before me was that of Mr Daived Ros made for review of the decision of the Social Security Appeals Tribunal of 16 June 2004, which affirmed the decision of the authorised review officer of the Secretary, Department of Family and Community Services who rejected the claim for family tax benefit made by Mr Ros for the 2002-2003 financial year.

In relation to the financial year 2003-2004 the Social Security Appeals Tribunal set aside the decision of the authorised review officer of the Secretary, Department of Family and Community Services which found that Mr Ros was eligible for family tax benefit for part of that financial year.  The Social Security Appeals Tribunal substituted a decision that Mr Ros was not eligible for family tax benefits for the whole of the 2003-2004 year.

At the hearing before me Mr Ros was self-represented. The applicant for the respondent, Secretary Department of Family and Community Services, to which I will refer as the Department, was Mr G. Richardson. The Tribunal was assisted by Mr Younathin, an interpreter in the Arabic language. The Tribunal had written to Mrs Niva Kohen, Mr Ros' former partner, in order to join her as a party to the hearing. The Tribunal's efforts to contact Ms Kohen were unsuccessful, and mail was returned. I noted also from the documents that it was Ms Kohen's wish that Mr Ros not be provided with her whereabouts, and accordingly her personal details have been suppressed pursuant to section 35 of the Administrative Appeals Tribunal Act 1975.

ISSUE BEFORE THE TRIBUNAL

The issue before the Tribunal was whether the correct and preferable decision would be to affirm, vary or set aside the decision of the Social Security Appeals Tribunal to find that Mr Ros was not eligible for family tax benefit for the financial years 2002-2003 and 2003-2004. 

LEGISLATIVE CONTEXT 

The relevant legislation in this matter is A New Tax System (Family Assistance Act) 1999, in particular sections 22, 23 and 25, to which I shall refer in more detail later on in these reasons for decision.

THE EVIDENCE BEFORE THE TRIBUNAL

A set of documents was lodged with the Tribunal by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  That was Exhibit R1.  Mr Ros gave oral evidence at the Tribunal, and was cross‑examined by Mr Richardson. He also made oral submissions.  It was, however, very difficult to obtain accurate and conclusive information from Mr Ros, which caused the hearing to be quite protracted.

By way of background it is important to note that Mr Ros and Ms Kohen entered into a relationship which has resulted in the birth of four children.  The children's family name is Sayed Khalil, that is a former name of Mr Ros.  Armani, the eldest is now aged 9;  Abraham is aged 8;  Maryam, 7;  and Yasmin is 5 years old.  The relationship between the couple appears, from the evidence, to have been very troubled, with numerous Court appearances and the issuing of apprehended violence orders.  Mr Ros complained that he had had 19 apprehended violence orders taken out against him, some of which had been subsequently withdrawn by Ms Kohen.

The T-documents contain three Court orders which are of significance in relation to the calculation of the family tax benefit which Mr Ros claims.  They are made between Jo Adams, a former name of Mr Ros, and Karyoka Kohan.  The Court orders are dated 4 December 2001, that document is at T4;  31 March 2003 at T5;  and 8 October 2003 at T7. 

SUBMISSIONS AND CONCLUSIONS

In coming to a decision I have to consider all the evidence and the legislation.  I have to decide whether to affirm, vary or set aside the decision of the Social Security Appeals Tribunal in relation to Mr Ros' entitlement to family tax benefit for the financial years 2002-2003 and 2003-2004.

I noted that Mr Ros applied to Centrelink for family tax benefit for the first time on 7 January 2004.  That document is at T9.  He made submissions at this Tribunal saying he wanted justice not pity, and emphasising the expenditure he had made towards the material welfare of his children, which is not in question here, and not relevant to the matters I have to decide.  What is relevant, however, is that he has no records of visits by the children, how many times he has had access outside the Court order times, the breaches of Court orders by Ms Kohen which he claims, and he has a rather poor memory of dates and events.

In addition he has no documents, even at home, he says, because a month and a half ago he disposed of all his papers because he wanted to start life afresh.  There was a large bin full, he said.  Unfortunately that is not very helpful in relation to his application for family tax benefit. I accept, however, that pursuant to the orders of the Federal Magistrates Court of Australia at Parramatta, and the Burwood Local Court orders of 4 December 2001, 31 March 2003 and 8 October 2003, each of Mr Ros and Ms Kohen's four children is an FTB child of Mr Ros and Ms Kohen pursuant to section 22 (3) of the Act.  That is they meet the requirements of section 22 (3) of the Act in that each child is under 18.

There is a family law order in force in relation to each.  The mother named above is an individual with whom each child is intended to live, (pursuant to the Court Order), and each child is to have contact with the father as specified in the Orders made.  Each child is in the care of the mother, with the father having access rights, and the children are Australian residents.  I note, however, that section 22(3) of the Act is modified by section 25(1) which states that:

If 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 in accordance with subsection …

In this case 22(3) applies,  -

and one of those other individuals makes or has made a claim under Part III of A New 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 the Secretary is satisfied that the child was or will be in the care of that last-mentioned individual for less than 10 per cent of that period, the child is to be taken despite that subsection, not to be an FTB child of that last-mentioned individual for any part of that period.

Accordingly, notwithstanding section 22(3), none of Mr Ros' children can be taken to have been his FTB child for any part of any period in which any of the children were in his care for less than 10 per cent of any relevant period, as discussed in the paragraphs which follow.

It was then necessary to calculate the relevant periods of access to calculate Mr Ros' eligibility for family tax benefit.  It is clear from the Court Orders that the children are to reside with Ms Kohen, and that Mr Ros is to have access, in particular, for specified hours which last most of the day on Saturdays and Sundays.  After the first order in 2001, there were refinements made to the second order dated 31 March 2003, such that Mr Ros also has the children for religious holidays and birthdays.

The third Order dated 8 October 2003 was in fact terms of settlement, although Mr Ros stated that he had at first been reluctant to agree to the terms.  Mr Ros said that since 2001 he has been taking the children out on Saturdays and Sundays as specified in the Order. He also gave evidence of what he purchased for the children, borrowing money to buy clothes, toys and special food as required.  I pointed out to him that I am concerned only with the 2002-3 and the 2003-4 financial years, and that I do not have to make any judgment about whether he looked after the children appropriately.  Indeed, there was no indication he did not look after their material needs well.

As far as I can discern from the evidence, Mr Ros recounted that initially, in 2001 and early 2002, he would arrive by taxi to pick up the children from Ms Kohen's place of residence and return the children there every Saturday and Sunday.  The couple apparently commenced living again together during the first half of 2002.  However, Mr Ros said that Ms Kohen breached the terms of the Court Orders many times after they again separated, and they returned to Court in September 2002.

The next Orders dated 31 March 2003 included a condition that Mr Ros collect the children from McDonald's Restaurant at Punchbowl, and return them to Ms Kohen there.  Mr Ros claimed that this worked some of the time, but that Ms Kohen continually breached the agreement, so he took her to Court.  He said that he consulted Legal Aid. Mr Ros had no facts or figures and did not keep records regarding the access visits, although he said he would buy something from McDonald's to indicate he had been there at the appointed hour, even when the children did not turn up.  He did not have any such documentation for this Tribunal.

Following the settlement and Court Order of 8 October 2003 Mr Ros was ordered to see the children at a Contact Centre.  He said that worked for a short time, but then he was suspended by the Centre for six weeks at the end of 2003.  Mr Ros said that in early 2004 Mr Kohen again breached Orders, making excuses such as illness of the children, to account for non-attendance at access visits.  He also complained that Ms Kohen had bad-mouthed him, and that as a result, the children at times did not want to see him.

He said that in March 2004 Ms Kohen changed the children's school, place of residence, doctor and other identifying addresses, so that he has had no contact since.  However, during the course of the hearing at this Tribunal Mr Ros happened to remember other events in 2004, including seeing the children at a police station in mid-2004.  In order to calculate the percentage of time the children have spent with Mr Ros so that I can decide whether he can be paid family tax benefit for the financial years 2002-3 and 2003-4, I was mindful that in order to qualify for family tax benefit the minimum care time must be 10 per cent.

The legislation does not specify how to calculate this, and it can accordingly be calculated either from the access details specified by the Court Orders or by an arithmetic calculation using available hours and days, made pursuant to the Family Assistance Guide which is used as a policy document by decision-makers of the Department of Family and Community Services.  I have noted that the time allocated by the Court Orders for access by Mr Ros, had they been complied with completely, do not make up 10 per cent of the time for any given period in the relevant years, and would therefore render the applicant ineligible for family tax benefit.

Initial calculations of the Department in regard to the financial years 2002-3 and 2003-4, based on the Court Orders, were therefore correct.  However, the ARO re-calculated the amount of Mr Ros' access time for the first half of the calendar year 2004, and held in a decision of 19 February 2004 that it was more than 10 per cent.  The authorised review officer held accordingly, that Mr Ros was eligible for family tax benefit for that period and Mr Ros has been paid $2040.

However, on the basis of his evidence to the Social Security Appeals Tribunal that he had not seen his children since February 2004, the Social Security Appeals Tribunal found that Mr Ros was not eligible for family tax benefit for that period.  In that regard I noted that Mr Ros told the Social Security Appeals Tribunal, which was convened on 16 June 2004 - far closer to the March 2004 date than the date of this hearing, which was 28 August 2005 - that he had not seen the children since February 2004.  It is likely, as Mr Richardson submitted, that Mr Ros' recollection closer to the 2004 date was the more accurate, and I accept that.

In reply to Mr Richardson's question whether Mr Ros had seen his children more or less than the Court ordered access time between January and July 2004, Mr Ros answered less.  I was satisfied that notwithstanding Mr Ros' further evidence that he saw the children at a police station in June 2004 and that he saw them maybe four or five times in the first half of the calendar year, 2004, he did not make the 10 per cent access time for the period January to June 2004.  He was therefore not eligible for the family tax benefit which has already been paid to him for that period.

However, should his access have been at the threshold 10 per cent for the period January to 30 June 2004 in order to make him eligible for family tax benefit, it is noted that the calculations made by the departmental staff are at T24.  Mr Richardson detected an error which he has described at paragraph 16 of the respondent's statement of facts and contentions.  That would in fact have made Mr Ros' family tax benefit entitlement 12 per cent instead of the 11 per cent calculated by the departmental officer for the period 11 February 2004 to 30 June 2004 which was subsequently set aside by the Social Security Appeals Tribunal.

I note that in the interim period before the decision of the Social Security Appeals Tribunal the Department paid Mr Ros $2040, which as a result of the Social Security Appeals Tribunal finding, was later declared to be an overpayment of family tax benefit.  However, that overpayment was waived on Mr Ros' application. 

I was, however, not satisfied from the evidence that Mr Ros had access to the children up to the 10 per cent threshold in the period January to 30 June 2004, so that he was paid $2040 family tax benefit to which he was not entitled.

Because of the proximity of the dates and the fact Mr Ros appeared at this Tribunal to have poor recollection regarding dates, I preferred the evidence given to the Social Security Appeals Tribunal in June 2004 that Mr Ros did not see the children after February 2004, although he had told me about seeing them in March 2004, and then remembering he had seen them at a police station in June 2004.  Accordingly I am satisfied Mr Ros was not eligible for family tax benefit for the relevant period.

For the sake of completeness I have noted that pursuant to section 23(1)(c) of the Act, if an FTB child has been removed from the care of a person without his or her consent, as Mr Ros claimed happened with his children in early 2004, he can still be qualified for family tax benefit for up to 14 weeks if he can satisfy the decision-maker, that is me in this case, that he has taken reasonable steps to have the child or children again in his care.  When questioned in relation to establishing for the purposes of section 23(1)(c) of the Act whether Mr Ros had taken any reasonable steps to have his children returned to his care in early 2004, Mr Ros said that he consulted his solicitor, that Court action had been lodged, and that a hearing first listed for March 2005 had been adjourned to 17 October 2004.

There was no documentation available and I was unable to be satisfied in what connection the Court action had been lodged.  However, even if I should be satisfied that Mr Ros had taken reasonable steps to recover access to his children and that he should therefore be qualified for family tax benefit for up to 14 weeks, I note that he has been already paid family tax benefit of $2040 for the period 11 February 2004 to 30 June 2004.  I do not have the necessary information to be satisfied that Mr Ros took reasonable steps to recover access to his children and I decline to make that finding.

However, on the basis of the calculation of access for 2002-2003 and the year 2003-2004 I am satisfied that Mr Ros' access to his children did not reach the 10 per cent threshold and that he is therefore not eligible for family tax benefit for either period.  The decision of the Social Security Appeals Tribunal must be affirmed. 

DECISION

The Tribunal affirms the decision under review.