Rowe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor

[2008] AATA 801

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 801

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3470

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRYAN ROWE

Applicant

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

Respondent

And MELANIA ROWE

Third Party

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date9 September 2008

PlaceBrisbane

Decision

(i)        The decision of the Social Security Appeals Tribunal (SSAT) in            relation to the child, R, is affirmed.

(ii)       The decision of the SSAT in relation to the child, F, is affirmed.

(iii) Mr Rowe has made “reasonable efforts” in terms of s 23(5) of the Act with respect to the children, L and S.

(iv)      The decision of the SSAT in relation to the child L is set aside and the assessment of FTB with respect to the applicant and the third party is referred to Centrelink for recalculation on the basis that Mr Rowe is entitled to 14 weeks FTB from 17 February 2006.

(v)       The decision of the SSAT in relation to the child S is set aside and the assessment of FTB with respect to the applicant and the third party is referred to Centrelink for recalculation on the basis that Mr Rowe is entitled to 14 weeks FTB for S from 3 March 2006.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – family tax benefit t– determination of entitlement to benefit between either applicant or mother of children – applicant has four children – applicant has made reasonable efforts – effect of FTB children ceasing to be in individual's care without consent – children in care less than 30% – decisions under review in relation to children R and F are affirmed – decisions under review in relation to children L and S are set aside.  

A New Tax System (Family Assistance) Act 1999 ss 22(1), 22(3), 23, 23(1), 23(2), 23(5), 25(1), 59(1)

Family Assistance Guide, Department of Families, Housing, Community Services and Indigenous Affairs, Version 1.106 - Released 1 September 2008

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

Wade and Secretary, Department of Families and Community Services [2004] FCA 1660; (2004) 139 FCR 285

Re Keen and the Secretary, Department of Families and Community Services [2004] AATA 312; (2004) 84 ALD 542.

REASONS FOR DECISION

9 September 2008 Dr K S Levy RFD, Senior Member           

INTRODUCTION

1.      The Applicant, Mr Bryan Rowe, seeks review of a decision of the Social Security Appeals Tribunal (SSAT) dated 6 June 2007 which determined that Mr Rowe has entitlement to Family Tax Benefit (FTB) for his four children in 2005/06 year and 2006/07 year as follows –

(i)        F:       1 January 2006 to 30 June 2006 – 20%

1 July 2006 to 31 December 2006 – 14%

(ii)       R:       1 January 2006 to 30 June 2006 – 100%

1 July 2006 to 8 December 2006 – 100%

(iii)      L:        1 January to 31 December 2006 – nil
                       (as the Applicant had less than 10% contact)

(iv)      S:       1 January to 31 December – nil

(as the Applicant had less than 10% contact).

2.      There is also a period from 1 January 2007 to 15 January 2007 which is the subject of the decision under review as Centrelink has determined that Mr Rowe is entitled to 29% FTB with effect from 16 January 2007.  For the period 1 January 2007 to 15 January 2007, Mr Rowe had all four children for 10 days.  It was submitted that the period in January 2007 is essentially not in dispute.

3.      Mr Rowe did not appear at the hearing.  He sent a message to the Registry of the Tribunal on the morning of the hearing indicating that he was distraught as one of his children had been taken from hospital.  He indicated that police had been called to this incident.  In any case, he felt Centrelink had dealt with his submissions unfairly and over a long period, and therefore requested that the Tribunal proceed with his case on the basis of his written submissions as well as other evidence which is available.

4.      Mrs Rowe, wife of the Applicant, is an added party and appeared unrepresented.  The Respondent was represented by Mr Paul Flintoft. 

ISSUE

5.      The issue to be answered by the Tribunal can be formulated as follows:

(i)How is the entitlement to FTB payments to be distributed between Mr Rowe and his wife for the financial years 2005/06 and 2006/07, and specifically for the period 1 January 2006 to 16 January 2007?

EVIDENCE

6.      Documentary evidence was provided in the form of the s 37 documents[1], the Respondent’s Statement of Facts and Contentions[2], the Applicant’s written submissions[3] and a file note from the Registry concerning Mr Rowe’s inability to attend the hearing[4].

[1] Exhibit 1.

[2] Exhibit 2.

[3] Exhibit 3.

[4] Exhibit 4.

7.      It was also noted that there was a Court order dated 11 April 2005 where the Federal Magistrates Court ordered that the children were to reside with Mrs Rowe but that Mr Rowe was to have contact with the children from Friday evening to before school on Monday mornings on alternate weekends; on Father’s Day; on children’s birthdays and on the first half of the school holiday period in 2005 and every alternate year thereafter; and in the second half of the school holidays in 2006 and every alternate year thereafter[5].

[5] Folio 43.

8.      Mrs Rowe provided oral evidence.  She produced a diary which she had used for recording when her children went to stay with Mr Rowe.  Her other evidence in summary was:

·   She married Mr Rowe in 1992 and separated from him in 2004.

·   There were four children of her marriage to Mr Rowe, each being signified in this decision by the first initial of their Christian name  –

(a)   R aged 12-14 years during the period under review;

(b)   L aged 10-11 years during the period under review;

(c)   S aged 8-9 years during the period under review; and

(d)   F aged 5-6 years during the period under review.

·   Mrs Rowe’s diary was presented and a copy made for the Tribunal and the Respondent.  Where there appears to be no clear pattern of attendance by the children with Mr Rowe, Mrs Rowe explained that in some months, some of the children simply decided they did not wish to go with their father.

·   In relation to the matters in dispute she said that she believed Mr Rowe should be paid when he actually had the children. 

·   She was referred to folios 14 and 15 of Exhibit 1 which was the SSAT summary of when the children were with Mr Rowe.  Mrs Rowe agreed with the dates adopted by the SSAT on the basis that they were consistent with the records in her diary.

9.      There was also an estimate of the care to be expected under the court order, with 72% being anticipated for Mrs Rowe and 28% being anticipated for Mr Rowe[6].

[6] Folio 330.

10.     The Applicant’s claims were summarised by departmental officers in records shown in the T Documents as follows –

(i)F – 71% for the mother; 29% for the father[7]. (It was noted that Mrs Rowe claimed 74% care of F and 26% therefore being attributable to Mr Rowe[8]).

(ii)S – 71% expected for Mrs Rowe and 29% expected for Mr Rowe[9].  However Mrs Rowe claimed that she provided care for 99% of the time for S and with only 1% being provided by Mr Rowe[10].

(iii)L – Mr Rowe claimed 70% would be attributable to Mrs Rowe and 30% to himself[11]. (However Mrs Rowe claimed she spent 100% of the time caring for L[12]).

[7] Folio 332.

[8] Folio 334.

[9] Folio 336.

[10] Folio 338.

[11] Folio 340.

[12] Folio 342.

11.     Evidence for the Applicant was not diarised as Mrs Rowe had done.  However Mr Rowe’s evidence was that he had complained to Mrs Rowe about the children not being sent to him in February 2006 and also sent messages by phone as well as text messages.  Ultimately, Mr Rowe’s evidence is that he instructed Mr Ryan, a solicitor, to take legal action to enforce the court orders in June 2006.  He had made an affidavit in November 2006 attesting to complaining to his solicitor about his situation many months earlier.  I note Mr Ryan, solicitor, provided corroborating oral evidence to the SSAT. 

submissions

12. Mr Flintoft made submissions, and even adopted a role of providing submissions with respect to the Applicant. Mr Flintoft submitted that Mr Rowe was entitled to the benefit of s 23 of A New Tax System (Family Assistance) Act 1999.

CONSIDERATION

13.     I have considered all of the evidence and the law relevant to the issues to be answered by the Tribunal. 

the law

14.     The Tribunal is essentially asked to stand in the shoes of the Secretary to make a decision (the correct or preferable decision) in respect of the percentage of FTB to which Mr Rowe should be entitled during the period under review.

15. The Tribunal is primarily required to make a determination under s 59(1) of the A New Tax System (Family Assistance) Act 1999.  In considering that section, there is a requirement that each of the children must be a Family Tax Benefit child.  That term is defined for the purposes of this case in s 22(3), and is satisfied as the children are all under 18, a family law order is in place and the children have been in the adult’s care of either Mr Rowe or Mrs Rowe.

16.     Section 22(7) requires that the Secretary be satisfied that there is “a pattern of care”.  Where a child ceases to be in the individuals care without consent and where the adult who is entitled to contact took reasonable steps to have the child returned to that adult’s care[13], then the child would be deemed to be in the adult’s care for the “qualifying period”[14].  The “qualifying period” for the purpose of this case is 14 weeks from the time the child ceases to be in the adult’s care[15]. 

[13] s 23 (1) of the Act.

[14] s 23 (2) of the Act.

[15] s 23 (5) of the Act.

17.     Also, where the adult carer has not had the child for more than 10% of the period, then no payment for that period can be made[16].

[16] s 25 (1) of the Act.

18.     The Family Assistance Guide[17] provides some useful amplification of some of the practical aspects of the legislation.  In paragraph 2.1.1.30, it states that where there is a dispute, additional evidence should be obtained such as a family law order, records of attendance at kindergartens, playgroups etc, receipts for expenses or independent reports from social workers, teachers, police or other relevant persons.

[17] Family Assistance Guide, Department of Families, Housing, Community Services and Indigenous Affairs, Version 1.106 - Released 1 September 2008.

19.     Apart from the Federal Magistrates Court order, no other evidence was provided of the factors suggested in the Family Assistance Guide.  That Guide also refers to evidence which might demonstrate that a party has taken “reasonable steps” to recover care of the child.  These include notifying the police and taking out a recovery order. 

findings of fact

20.In applying the law, I find the following findings of fact:

(i)I accept Mrs Rowe as a witness of truth and that is confirmed by the consistency of her records with much of the overall evidence presented.

(ii)I accept Mr Rowe sent text messages and phone calls in the early part of 2006 about the children and that those activities then led him to instruct his legal advisors to commence action in June 2006.

(iii)The contact between Mr Rowe and his 4 children during the period under review is shown in Table 1. (Additional days to which the applicant is entitled because of s 23 provisions are contained in brackets in the column to the right of each child’s attendance Table 1.)

21.     Considering now the application of the facts to the legislative provisions, it is clear that the statutory requirements are concerned with the pattern of care attributable to either party[18].  Patterns of care are not always neatly patterned or follow any trend consistently.  It has been held that a “broad brush” approach is therefore an appropriate method for making a determination in this regard[19].  But the purpose is nevertheless to determine the appropriate proportion of benefit which each of the relevant parties is entitled to, relative to the actual time or care provided by each of them[20].

[18]Wade and Secretary, Department of Families and Community Services [2004] FCA 1660; (2004) 139 FCR 285 per Keifel J.

[19]Re Warne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2006] AATA 159 per DP Hack.

[20]Wade supra.  

22. In arriving at the appropriate proportion of benefit of each of the adult parties, the effect of s 23 must be taken into account. Section 23 envisages the ongoing payment of FTB for up to 14 weeks when an event occurs in relation to the child and where the adult making the claim had not consented to the event. Therefore the event which arises must prevent the child being in the adult’s care and the adult must have taken reasonable steps to rectify the matter.

23.     In these cases it is relevant to ask the question - when does a qualifying period “come to an end?”[21].  Mr Rowe has been persistent and there is evidence that he pursued the matter well before June 2006, when he instructed his solicitors to institute legal action.  It is not apparent in this case however that Mr Rowe perceived the children’s control as having been lost or that, in any sense, the qualifying period would have been regarded as being terminated.

[21] Re Keen and the Secretary, Department of Families and Community Services [2004] AATA 312; (2004) 84 ALD 542.

24.     In relation to the contact shown for each child in Table 1, it is clear that R was with her father for 100% of the time from 1 January 2006 and until 8 December 2006.  For the majority of the rest of December 2006, Mrs Rowe cared for R and the period in January 2007 which does not appear to be in dispute.  R was with Mrs Rowe for 10 days until 15 January 2006 and seems consistent with the Court Order.  For F, the days shown are the same as those determined by the SSAT and she was therefore with Mr Rowe for 20% for the period 1 January to 30 June 2006 and for 14% of the time for the period 1 July to 31 December 2006.  The decisions in relation to R and F should therefore be affirmed. 

25. In relation to L and S, I have accepted that Mr Rowe did make reasonable efforts to try to demand return of those two children. He is therefore entitled to the benefit of s 23(5). That is, he is entitled to Family Tax Benefit for 14 weeks from the date when each child was not in his custody without his authority. For L, comparing the days of contact with the relevant calendar in 2006, there are additional days as shown in brackets for the months of February, March, April and May which he was otherwise entitled to, plus an additional seven days (approximately) for school holidays in April in accordance with the court order. That is, in any case, approximately 20% of the Family Tax Benefit allowance for L for 14 weeks for the period 1 January to 30 June 2006. That entitlement incorporates the period of 14 weeks from 17 February 2006 to 26 May 2006. For the period from 26 May 2006 to 31 December 2006 there are only four days contact (or 2%) and therefore, the Applicant has less than the 10% threshold required for that period to justify payment of FTB.

26.     For S, the same legislative entitlements apply to that child as for L except that S was first out of Mr Rowe’s care without authority from 3 March 2006.  The 14 week period in respect of S therefore ends on 6 June 2006.  The days shown in paragraph 21 above therefore reveal an entitlement to FTB for S of 22%. 

27.     In respect of L and S, I find that Mr Rowe had each of those children for greater than 10% of the time based on the calculations shown above. 

28.     Having considered all the evidence I find as follows:

(i)        The decision of the SSAT in relation to the child, R, is affirmed.

(ii)       The decision of the SSAT in relation to the child, F, is affirmed.

(iii)Mr Rowe has made “reasonable efforts” in terms of s 23(5) of the Act with respect to the children, L and S.

(iv)The decision of the SSAT in relation to the child, L, is set aside and the assessment of FTB with respect to the applicant and the third party is referred to Centrelink for recalculation on the basis that Mr Rowe is entitled to 14 weeks FTB from 17 February 2006.

(v)The decision of the SSAT in relation to the child, S, is set aside and the assessment of FTB with respect to the applicant and the third party is referred to Centrelink for recalculation on the basis that Mr Rowe is entitled to 14 weeks FTB for S from 3 March 2006.

TABLE 1 – CONTACT BETWEEN MR ROWE AND EACH CHILD 2005/06 AND 2006/07

R	L	S	F
DOB	13.06.93	14.04.95	09.02.97	30.01.00
Period 2005/06	12-14 yrs	10-11yrs	8-9yrs	5-6yrs
Jan 06	31	5	3	3
Feb 06	28	3	From 17.02.06 (+3) s23	6	6
Mar 06	31	0	(7)	0	(7)	4	+7(H)
Apr 06	30	0	(8) (7H)	5	(8) (7H)	10
May 06	31	0	(3)	0	(6)	3
Jun 06	30	0	0	(3)	11
(% with Mr Rowe for 181 days)	100%	Actual 4.4%	(19.9%)	7.7%	(22.0%)	20.4%
Jul 06	31	0	0	10
Aug 06	31	0	0	6
Sep 06	30	0	3	6
Oct 06	31	0	7	0
Nov 06	28	0	0	0
Dec 06	6 (until 8 Dec 06) then Holidays with Mrs Rowe	4	4	4
(% with Mr Rowe for 184 days)	90.8%	2.17%	7.6%	14.1%
Jan 07	10	10	10	10
Total Days with Applicant	338	12	28	63

I certify that the 28 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/s of Hearing  19 August 2008
Date of Decision  9 September 2008
The Applicant was not present at hearing
The Third Party was self represented       
For the Respondent                  Mr P Flintoft, departmental advocate