Seven and Secretary, Department of Social Services (Social services second review)

[2019] AATA 786

Seven and Secretary, Department of Social Services (Social services second review) [2019] AATA 786 (2 May 2019)

Division:GENERAL DIVISION

File Number:           2018/0666

Re:Sinan Seven

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndMelek Ciftci

OTHER PARTY

DECISION

Tribunal:Senior Member D. J. Morris

Date:2 May 2019

Place:Melbourne

The Tribunal affirms the decision of the Social Services and Child Support Division of the Tribunal dated 9 January 2018.

..................[sgd]......................................................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – family tax benefit – what is percentage of care of the applicant and the other party for a relevant FTB child in three periods – contentions about actual care – paucity of evidence and concessions about older child moving between parents – decision of Social Services and Child Support Division affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 37
A New Tax System (Family Assistance) Act 1999 (Cth), ss 22, 25, 58, 34J, Sch 1

REASONS FOR DECISION

Senior Member D. J. Morris

2 May 2019

1. The Applicant, Mr Sinan Seven, has asked the General Division of the Tribunal to review a decision of the Social Services and Child Support Division of the Tribunal (AAT1) dated 9 January 2018 which set aside a decision of an Authorised Review Officer (ARO) of the Department of Human Services (the Department) dated 14 July 2018 and, in substitution, found that Mr Seven had at least 85 per cent of the care of his son, called in these reasons ‘T’, for the periods 1 December 2014 to 1 February 2015 and 10 June 2015 to 22 February 2016 and that the Other Party, Ms Ciftci, had at least 85 per cent of T’s care for the period 2 February 2015 to 9 June 2015.

2. The hearing was held on 18 January 2019 by telephone.  Both Mr Seven and Ms Ciftci represented themselves.  Ms Ailsa Bramley, a legal officer of the Department, represented the Respondent. 

3. The Tribunal received into evidence documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents). The Tribunal also received into evidence a bundle of documents lodged by Mr Seven with the Department and provided also to Ms Ciftci (Exhibit A1). The Secretary submitted a Statement of Issues, Facts and Contentions dated 26 November 2018.

   Legislative framework

4. The legislation applicable to this matter is the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act). Subdivision D of Division 1 of Part 3 of the Act contains the relevant provisions.

5. Section 58(1) of the Act states that the annual rate of Family Tax Benefit (FTB) is to be calculated in accordance with the Rate Calculator which is in Schedule 1 of the Act. If more than one adult has care of an FTB child, then Schedule 1 (clause 11) sets out how to assess the rate on the basis of the shared care percentage. Section 21(1)(a)(i) of the Act provides that, to be eligible for FTB, a person must have an ‘FTB child’.

6. Section 22(2) of the Act states that an individual is an FTB child of the adult if the individual is aged under 16 and the individual is in the adult’s care and the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult, and the circumstances surrounding legal responsibility for the care of the individual are those mentioned in section 22(5) of the Act.

7. Section 22(7) of the Act further provides that if an individual’s percentage of care for a child during a care period is at least 35 per cent, the child is taken to be an FTB child of that individual for the purposes of the section on each day in that period, whether or not the child was in that individual’s care on that day. At the end of section 22(7) is a note that says if an individual’s care for a child during a care period is less than 35 per cent, the child is taken not to be an FTB child under section 25 of the Act, for any part of that period.

8. T was born in February 1999 and is the son of separated parents, Mr Seven and Ms Ciftci. For the period in contention between the parties, T was aged 15 in the period from 1 December 2014 to 1 February 2015 and aged 16-17 in the period from 2 February 2015 to 22 February 2016. The provisions of section 22(2) and 22(3) of the Act are applicable to an FTB child of the age of T during these periods.

   Background to this matter

9. On 27 June 2016, Mr Seven claimed FTB for the period 1 December 2014 to 22 February 2016 in respect of care of T, stating that T was in his care for the whole of this period.

10. On 13 July 2016, Ms Ciftci was advised that a care determination had been made as she did not respond to the request for information.   This affected Ms Ciftci’s FTB entitlements and she disagreed with the decision and sought a review.  On 13 July 2017 an ARO decided to change the decision.  The ARO decided that T was in Ms Ciftci’s care from 1 December 2014 to 9 June 2015 and in Mr Seven’s care from 10 June 2015 to 22 February 2016.

11. Mr Seven sought review of the ARO’s decision by AAT1.  AAT1 held a hearing on 9 January 2018.  Mr Seven and Ms Ciftci made submissions and gave evidence.  At the hearing, there was no dispute that T was in Mr Seven’s care in the period 10 June 2015 to 22 February 2016.  However, both parties claimed they had sole care for T in the period 1 December 2014 to 9 June 2015.  Both Mr Seven and Ms Ciftci agreed that, at this time, T was of an age where he could decide which parent he would be staying with during weekends and both agreed that he did visit, and stay with, each of them.

    Evidence of Mr Seven

12. At the hearing, Mr Seven said he and Ms Ciftci had a mutual agreement that T was free to move between his parents, as he chose.  Mr Seven drew the Tribunal’s attention to Exhibit A1 which included text messages dated 4 January 2015 from T saying to a friend that he had left the cultural centre at which he was boarding because he had an injured knee.  Mr Seven said that T had an operation on his anterior cruciate ligament in mid-November 2015 and that T was in Mr Seven’s care during the convalescent period.

13. Mr Seven contended that T was with him exclusively from February to June 2015, but told the Tribunal that he was overseas for the period from mid-March until mid-April 2015 and T was, for that period of time, in the care of Mr Seven’s mother.

    Evidence of Ms Ciftci

14. Ms Ciftci told the Tribunal that in 2010 she and Mr Seven had made the decision to keep T in boarding school.  She said that the school had a condition that if a family has a very low income, no payment is required.  She said that T left the school of his own choice and decided to stay with his father, but that T did not tell her how long he stayed with his father.  She noted that during part of this period Mr Seven was overseas in Turkey.

15. In terms of T’s knee operation and recuperation, Ms Ciftci conceded that T was staying at his father’s house at this time, but said that she took him to physiotherapy as part of his post-operative rehabilitation, so she was also providing care to him.  Ms Ciftci submitted that, in her opinion, the decision made by AAT1 was the correct decision.

    Submissions of the Respondent

16. Ms Bramley said that the Department originally made a decision that T was in 50 per cent care with each of his parents in the subject periods.  She submitted that bills and receipts are not, by themselves, necessarily conclusive evidence to support a conclusion that a child was in the care of a particular parent at a nominated time.

17. Mr Seven told the Tribunal that, insofar as he was able to provide evidence of when T was in his care, ‘we don’t go about in life keeping records’ and that maybe his evidence and that of Ms Ciftci was not conclusive, but it was based on what they were able to provide.

    CONSIDERATION

18. The Tribunal has reviewed the additional material Mr Seven provided. In terms of extracts of text messages made by T to his friends, the Tribunal views this as particularly fragile evidence because, although there are occasions where T will refer to where he is staying at a particular time, there were no date marks on the text messages.  While the Tribunal accepts that Mr Seven provided them in an honest effort to provide some evidence, they do not establish whether or not T was staying ‘the odd night’ with one of his parents rather than a longer period in a circumstance where, as both Mr Seven and Ms Ciftci told AAT1, and reiterated to this hearing, T regularly moved between his parents’ care, staying at each house.

19. The Tribunal notes the evidence from the Northern Hospital regarding the surgery performed on T’s knee and that there was no dispute that he recuperated at his father’s house afterwards.

20. The Tribunal also notes Mr Seven’s volunteered evidence that he was overseas from ‘mid-March until mid-April 2015’ but that, during this absence from Australia, T was looked after by his paternal grandmother.

21. The Tribunal notes that the Member at AAT1 remarked that the evidence of both parties was somewhat vague, and the same factor applies to this hearing.  It would seem to the Tribunal that Mr Seven’s evidence about his absence overseas might lead to a conclusion that Ms Ciftci had more care of T at least for part of the second period in dispute, but there is simply insufficient corroborative evidence to make a determinative finding in that regard.

22. The Tribunal makes the point that percentages of care can be particularly hard to gauge when the FTB child is, as in this case, very close to adulthood and, as is natural (as was the evidence of both of his parents), becoming more independent and making his own choices about where he stays at particular times.  The Tribunal is not satisfied that the additional documentation provided, and the oral evidence of either party, leads to a conclusion that there was a change in care different from what was determined by AAT1.  The Tribunal is not satisfied that the decision under review should be disturbed.

    DECISION

23. The Tribunal affirms the decision of the Social Services and Child Support Division of the Tribunal dated 9 January 2018.

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

................[sgd]........................................................

Associate

Dated: 2 May 2019

Date(s) of hearing:	18 January 2019
Applicant:	Self-represented
Advocate for the Respondent:	Ms Ailsa Bramley Department of Human Services
Other Party:	Self-represented