Shirley Coleman and Secretary, Department of Social Services Kevin Crofts JOINED PARTY
[2013] AATA 769
[2013] AATA 769
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/5410, 2012/5411, 2012/5412
Re
Shirley Coleman
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Kevin Crofts
JOINED PARTY
DECISION
Tribunal Regina Perton, Member
Date 28 October 2013 Place Melbourne The Tribunal sets aside the decisions under review and substitutes decisions that Mrs Coleman was entitled to family tax benefit in the period 9 March 2010 to 13 April 2011.
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Regina Perton, Member
SOCIAL SECURITY – Family Tax Benefit – whether FTB child of stepfather or maternal grandmother – Court order in favour of stepfather being carer – who actually took care of FTB child during relevant period – cancellation of grandmother’s FTB – debt imposed – whether debt should be waived in part or in whole – decisions set aside finding that the child was an FTB child of the grandmother.
A New Tax System (Family Assistance) Act 1999 Sections 21, 22, 25, 25A
REASONS FOR DECISION
Regina Perton, Member
28 October 2013
Shirley Coleman is the grandmother of a girl (Miss J) born on 27 April 2005 to Michelle Carr, her daughter. Ms Carr faced personal difficulties which resulted in Mrs Coleman caring for her daughter from a young age. Mrs Coleman received family tax benefit (FTB) on the basis of being the child’s carer. On 12 May 2011, Centrelink which administers FTB, determined that Mrs Coleman was no longer entitled to the payment. Her FTB was cancelled with effect from 13 April 2011. Centrelink determined that Mrs Coleman’s entitlement to FTB ceased on 9 March 2010. Centrelink raised a debt of $3,523.06 for the period 9 March 2010 to 30 June 2010 and $7,970.70 for the period 1 July 2010 to 13 April 2011.
Mrs Coleman states that she was still the carer for her granddaughter during the period from 9 March 2010 to 13 April 2011 (the relevant period). Kevin Crofts, the father of Miss J’s younger half-brother (Master D), states that it was he who was caring for Miss J during the relevant period. He states that Mrs Coleman took care of Miss J and Master D during the day while he was at work but that he paid her to do so. This dispute is only about FTB received in relation to Miss J.
After the cancellation and imposition of the debt, Mrs Coleman sought review of the decision. On 17 July 2012 an authorised review officer of Centrelink (ARO) affirmed the original decision. On 30 July 2012 Mrs Coleman applied to the Social Security Appeals Tribunal (SSAT). The SSAT joined Mr Crofts as a party to the proceedings. On 23 November 2012 the SSAT affirmed the original decision.
On 30 November 2012 Mrs Coleman lodged an application with this Tribunal. The Tribunal joined Mr Crofts as a party as any decision in relation to Mrs Coleman’s entitlements impacts on him.
Both Mrs Coleman and Mr Crofts are adamant that they cared for Miss J during the relevant period. Neither has wavered in their assertion during the review process. Both sound convincing in their oral and written evidence. The Tribunal’s task is to decide, on the balance of probabilities and in light of the legislation, what the actual situation was and how or whether it impacted on FTB entitlements. If the Tribunal determines that Mrs Coleman was not entitled to FTB, it will consider whether some or all of the debt should be waived.
LEGISLATION
Section 21 of A New Tax System (Family Assistance) Act 1999 (the Act) sets out the eligibility criteria for FTB:
When an individual is eligible for family tax benefit in normal circumstances
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i) has at least one FTB child; or
(ii) is not an absent overseas recipient and has at least one regular care child who is also a rent assistance child; and
(b) the individual:
(i) is an Australian resident: or
...
An FTB child of an adult who is aged under 16 years is defined in section 22 of the Act:
When an individual is an FTB child of another individual
(1) An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
(2) An individual is an FTB child of the adult if:
(a) the individual is aged under 16; and
(b) the individual is in the adult's care; and
(c) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d) the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
Subsection 22(5) of the Act provides as follows:
Legal responsibility for the individual
(5) The circumstances surrounding legal responsibility for the care of the individual are:
(a) the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b) under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c) the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
Section 22(6A) of the Act allows for a situation where a child is in the care of more than one person:
(6A) If:
(a)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, under subsection (2), (3), (4) or (6), an FTB child of more than one other individual; and
(b)one of those other individuals makes, or has made, a claim under Part 3 of the 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
(c)that individual is not a partner of at least one of those other individuals;
then the Secretary must determine the percentage of the period during which the child was, or will be, in the care of that individual.
Note: The percentage determined under subsection (6A) for an individual in respect of a child is used to work out the individual’s shared care percentage for the child in section 59
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(6C) For the purposes of subsection (6A), a child cannot be in the care of more than one of the other individuals referred to in paragraph (6A)(a) on any particular day.
(6D) For the purposes of subsection (6A), the Secretary must determine which of the other individuals referred to in paragraph (6A)(a) has the care of the child on any given day having regard to the living arrangements of the child.
Percentage of care at least 35%
(7) If, under subsection (6A), the Secretary determines that a child was, or will be, in the care of an individual for at least 35% of a period, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
Note: If the Secretary determines that a child was, or will be, in the care of an individual for less than 35% of a period, the child is taken not to be an FTB child (see section 25).
Section 25 of the Act provides:
Effect of FTB child being in individual’s care for less than 35% of a period
If, under subsection 22(6A), the Secretary determines that a child was, or will be, in the care of an individual for less than 35% of a period, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.
Section 25A of the Act states:
Regular care child for each day in period of care
If, under subsection 22(6A), the Secretary determines that a child was, or will be, in the care of an individual for at least 14% and less than 35% of a period, the child is taken to be a regular care child of that individual for the purposes of this Act on each day in that period, whether or not the child was in that individual’s care on that day.
LEGAL RESPONSIBILITY FOR MISS J DURING THE RELEVANT PERIOD
On 15 February 2010 a magistrate, at the request of a protective intervener from the Victorian Department of Human Services (DoHS), made a supervision order in relation to Miss J for a period from 15 February 2010 until 12 August 2010. Mr Crofts and Ms Carr were subject to eleven conditions including accepting visits from and cooperating with DoHS and accepting the agency’s support services. Ms Carr was required to attend a psychologist or psychiatrist for treatment and assessment with a report to go to DoHS. She was not to use alcohol or illegal drugs when with the child nor be affected by such substances when with Miss J and not live with or have contact with the Miss J other than during access periods. Ms Carr was allowed access with the child at Mr Crofts’ home every second weekend. If not at the home, access was to be under DoHS supervision. Ms Carr was not to expose Miss J to physical or verbal violence nor allow a named particular male to have contact with the child.
On 12 March 2010, an interim accommodation order was made by a magistrate in the family division of the Victorian Children’s Court:
I order that the child be placed on an interim accommodation order. Until further order I ordered that the child is to be released into the care of Mr. Kevin Croft who is the child's parent…
There were similar conditions imposed to those made four weeks earlier though the access arrangements changed and there was an additional condition concerning Mr Crofts. Now described as the stepfather, he faced a ban on drinking alcohol when with the child. Access for Ms Carr changed to a minimum of 3 times per week at times and places as agreed between the parties with DoHS or its nominees supervising the access unless DoHS assessed that supervision was not needed.
On 15 February 2011 the Children’s Court determined that Miss J was in need of protection. The Court ordered that Miss J be placed on a supervision order from that date until 12 August 2011. Miss J was placed in the day-to-day care of Mr Croft. The conditions remained similar to those imposed during earlier hearings. Ms Carr was to have access with Miss J every second weekend from Friday at 5 pm to Sunday at 5 pm at Mr Croft’s home. If the access did not occur as above, Ms Carr’s access was to be twice a week for 2 hours at the DoHS office or related location supervised by DoHS.
Ms Carr died in July 2011. Miss J is now legally in the care of a maternal aunt and her husband, who gave evidence during the Tribunal hearing. Mr Crofts has sole care of Master D.
The Tribunal finds that as a result of the court orders, Mr Crofts had legal responsibility for Miss J during the relevant period.
WHAT LED TO CANCELLATION OF MRS COLEMAN’S FTB?
On 13 April 2011, Mr Crofts applied for FTB in relation to Miss J stating that he had care of her since 9 March 2010. He was already receiving FTB for Master D. Centrelink wrote to Mr Crofts on 19 April 2011 asking that he provide evidence of his care of Miss J. Amongst other things, he provided Miss J’s birth certificate which gave the mother’s name but none for the father. He also provided evidence of the court orders made in early 2010.
On 3 May 2011 Mr Crofts applied for child care payments in relation to Miss J. Miss J had started school earlier that year. He stated that Miss J had entered his care on 9 March 2010. He sought a maximum of 14 hours per week of childcare as he was working.
As a result of Mr Crofts’ application and documentation, Centrelink cancelled Mrs Coleman’s FTB payments and created the debt which is here under review.
WHO CARED FOR MISS J IN THE RELEVANT PERIOD?
Section 22(5)(c) of the Act allows for a situation where a person may be entitled to FTB payments despite someone else having the legal responsibility for the FTB child.
Mrs Coleman is insistent that Miss J was in her care during the relevant period and only occasionally in Mr Crofts’ care. Mr Crofts asserts that this was not so. He states that Mrs Coleman took care of Miss J and Master D during the day while he was at work and that he paid her to do so. Mr Crofts stated that he picked the children up after work and took them to his home to sleep, delivering them back the next morning. Mrs Coleman denies she was paid by Mr Crofts. She states that Miss J and her younger brother stayed with her during the day and at night as well as most weekends during the relevant period.
The relationship between Mrs Coleman and Mr Crofts was once quite cordial but is now bitter and seemingly beyond repair. Mr Crofts was not prepared to be in the same room as Mrs Coleman and her witnesses. He gave evidence by telephone. He ceased being part of the proceedings for some hours because of a need to pick up Master D from childcare. He also deliberately chose not to listen to some of Mrs Coleman’s witnesses. The Tribunal accommodated his need to pick up Master D by arranging for transcript and sending him relevant portions of the oral evidence he had missed. The Tribunal also adjourned the hearing by a longer period than usual to allow him to take an overseas holiday. Mr Crofts indicated he had a relevant witness who had provided a short witness statement but later advised the Tribunal that she had chosen not to give evidence on the date on which she was due to do so. Mrs Coleman arranged for oral and written evidence to be given by several witnesses.
There are some things that Mrs Coleman and Mr Crofts agree on. Mrs Coleman lived in Rosebud during the relevant period and Mr Crofts in Rye, both locations on the Mornington Peninsula. Mr Crofts worked in Dromana, which is the next town from Rosebud. He was managing a company and usually went to work early to open up the premises and organise the other employees. He then returned to Rosebud to pick up Miss J to drive her to kindergarten and eventually to school. Mr Crofts would generally pick Miss J up from school or kindergarten and deliver her back to Mrs Coleman where he would spend some time with Miss J and Master D before going back to work. Mrs Coleman does not drive a car and has not done so for many years.
MR CROFTS’ EVIDENCE
Mr Crofts told the Tribunal that he and Ms Carr had met on a bus. They met again about two months later and dated for a time. He confirmed that the relationship ended while she was pregnant with his child. Mr Crofts said that he had kept in touch with Ms Carr and attended ultrasounds, doctors’ appointments and the like. Master D had been born in an ambulance on the way to hospital. Mr Crofts arrived at the hospital a few minutes after the birth. Ms Carr had still been sharing the Rosebud house with her mother at that time.
Mr Crofts said that in the first few days following his birth, Ms Carr had been breastfeeding Master D. A nurse had been calling in to check on Ms Carr and the baby. He said that on the nurse’s third visit she noticed that Master D had lost weight. The nurse determined that the baby getting insufficient nutrition and he was transferred to hospital. Mr Crofts said this was about four days after the court awarded him custody of the children. When Master D was transferred to hospital, his mother was also transferred into the acute ward of the same hospital. Mr Crofts said he remained at the hospital for eight to ten days and slept in the room where his son was. Miss J remained with Mrs Coleman while Master D and Ms Carr were in hospital.
In March 2010, there was a physical altercation between Ms Carr and Mrs Coleman which resulted in a restraining order. Mr Crofts said that after the restraining order was made, Ms Carr was unable to attend the house she and her mother once shared. He stated that Mrs Coleman had not participated in any of the court cases involving custody of the children.
After Master D was released from hospital, Mr Crofts said he spoke to Mrs Coleman about his work situation and what they could do about care of the children while he went to work. Ms Carr remained in hospital for about a month more. The second order was that the children could stay at his house but that Ms Carr was not to live there. Mr Crofts said that Ms Carr had visiting rights which allowed her to stay Friday, Saturday and Sunday night every second weekend. Mr Crofts said it didn't quite happen that way. Mr Crofts said DoHS had been to his house in Rye a number of times to check on the children and their progress.
Mr Crofts provided a written statement in which he stated that Miss J spent each night with him at his home during the relevant period. He stated that he paid Mrs Coleman to babysit Miss J and Master D each weekday before and after kindergarten and all day on non-kindergarten days in 2010. Miss J started school in 2011. Mr Crofts stated that Mrs Coleman cared for Miss J before and after school until 13 April 2011.
Mr Crofts said that during the relevant period, he would drop off Miss J at Mrs Coleman’s house in the early morning and then return to take her to kindergarten or school. Mr Crofts said that she would see her grandmother and then they would head off. Mr Crofts said that he would arrive at Mrs Coleman’s house at around 7 am. After leaving the children with Mrs Coleman, he would take the 10 minute drive to his place of work. As the manager, he would open them up the premises and get the other employees to set about their duties. He would then return to Mrs Coleman’s home and take Miss J to kindergarten or school.
Mr Crofts said that he would usually pick up Miss J from kindergarten around 2 pm and take her back to Mrs Coleman. He said that sometimes Miss J would come back to his workplace rather than go to Mrs Coleman’s. Mr Crofts stated that he would pick Miss J up every night. He said that the only times that Miss J would stay with Mrs Coleman over the weekend was when Mrs Coleman’s daughter Kym would bring her children to Rosebud. Mrs Coleman would look after all the children and suggested that Miss J stay with her cousins. Mr Crofts said that he thought it would be good for Miss J to be with them.
Mr Crofts stated that during kindergarten holidays, Mrs Coleman would look after Miss J during the day. Mr Crofts said that he would usually pick the children up around 5.30 pm and take them to his home.
Mr Crofts said that he had only taken action in relation to FTB at Ms Carr’s behest. He said he received the first payment of FTB in relation to Miss J in around June 2011. He said that he and Ms Carr used the money to put new furniture in Miss J’s room.
On 22 October 2012, following a hearing on 15 October 2012, the SSAT asked Mr Crofts to provide further information about Miss J’s kindergarten attendance, fee payments, primary school enrolment and attendance, her health status and any other documents that might prove that Miss J was in his full-time care in 2010/11.
He provided an undated statement from Miss J’s kindergarten teacher. In this and other quotes concerning Miss J or Master D, the Tribunal has substituted those names for the actual names:
…Miss J was in my care from February 2009 until December 2010. Miss J was enrolled at the Kindergarten initially by her mother Michelle Carr in which Kevin Croft then took over the enrolment.
Throughout this time Miss J was brought to Kindergarten and picked up from Kindergarten by her mother Michelle Carr until March 2010. Kevin Croft then took over primary care of Miss J. He dropped her off and picked her up every day and took over the care of Miss J on a daily basis.
Kevin provided Miss J with financial support throughout this time to purchase Kindergarten Uniform, Kindergarten photos and participated in fundraising activities etc…
Mr Crofts also provided an enrolment form for the kindergarten which he had completed on 18 August 2010 with the mother’s details not shown, his name as the father indicating that Miss J lived with him and Mrs Coleman as a contact should there be any accident etc. He ticked a box stating that the child’s mother had a disability.
Mr Crofts provided a document dated 24 October 2012 from the first primary school attended by Miss J that showed she had been enrolled on 1 February 2011 and transferred to another school on 4 November 2011. All school expenses were invoiced to Mr Croft including uniforms, booklists and the like. Also provided was a document from a local doctor showing that on 31 March 2010 Mr Croft and Mrs Coleman took Miss J to an appointment.
In his oral evidence, Mr Crofts maintained that he took the children home each weekday night after picking them up from Mrs Coleman and brought them back each morning on his way to work. They usually got home about 6.30 pm. Mr Crofts, when asked, said that he read books to Miss J after school unless Mrs Coleman had already done so in the afternoon. He could not remember any of the titles nor her favourites but said she liked stories to do with animals.. He said that he sometimes made dinner for the children but they had generally eaten an early dinner at Mrs Coleman’s before he picked them up for the night. He also indicated that Mrs Coleman would usually give them their baths. He said that the children would often come home with him already in their pyjamas.
Mr Crofts said that after getting home at about 6.30 pm, he would put Miss J to bed at around 7.30 pm. There was a TV in her room and she would ask for Hannah Montana or another DVD and would be asleep in 15 to 20 minutes. Mr Crofts described the routine when she came home after school which included reading a book which she had brought from the school, look at her homework, watch television with both children and when it was time for bed, put on her preferred DVD and then fall asleep.
Mr Crofts said that his usual routine morning routine was to wake the children at around 6 am. He woke Master D first, changed his nappy and gave him a bottle of formula that he had prepared the night before. He also put out their clothes the night before. He said that Miss J would usually watch a little television. He did not usually give the children breakfast before they left home as they would have breakfast at Mrs Coleman’s home. Mr Crofts said that he liked to open the business premises by 7.30 am and that was the reason he left his home with the children between 6.45 am and 7 am.
Mr Crofts provided his bank statements on which he had marked various cash withdrawals as being payments made to Mrs Coleman for babysitting Miss J and Master D. In his oral evidence Mr Crofts indicated that the payments were made to Mrs Coleman in exchange for caring for the children while he worked, a claim she denies.
Mr Crofts’ attention was drawn to a withdrawal on 23 April 2010 for $800 next to which he had written that $450 was for Mrs Coleman. He said that he had circled the amounts after being asked to provide additional evidence earlier in the review process. He maintained that he, Ms Cathy Johanssen or an employee, Chris Stockdale (now deceased) gave cash to Mrs Coleman.
Queried as to why different amounts were withdrawn and noted as being for Mrs Coleman, Mr Crofts said that sometimes he still had some cash so did not need the whole amount. Mr Crofts was adamant that he could still identify particular withdrawals and their purpose two years on. Mr Crofts said that the withdrawals coincided with FTB payments he received for Master D.
Mr Crofts said that Mrs Coleman had told him that she could not afford to pay the rent on the house she was in now that Ms Carr was no longer there and contributing. Mr Crofts said that Mrs Coleman had said that he would have to pay her money so that she could stay in the house and care for the children.
Mr Crofts said that it was at the urging of Ms Carr that he applied for FTB in relation to Miss J during the relevant period. He said that Ms Carr had told him that Mrs Coleman was not entitled to FTB and she suggested that her mother’s motivation was that it was a means of avoiding work. Mr Crofts said he thought it was wrong that Mrs Coleman was receiving FTB when he was also paying her to take care of the two children while he worked. He was upset that he was the one paying the bills while Mrs Coleman received FTB to which she was not entitled. He said Ms Carr had told him she wanted Miss J to be cared for by him.
Cathy Johansson, a friend of Mr Crofts, provided a written statement dated 13 February 2013 in which she stated she had witnessed Mr Crofts give Mrs Coleman money for babysitting over a dozen times. Ms Johansson also stated that she had personally given $450 to Mrs Coleman on three different occasions at Mr Crofts’ behest.
Ms Johansson stated that she used to stay at Mr Crofts’ home for 10 days in every fortnight from 2009 until June 2011. She stated that Miss J and Master D were home every night. Ms Johansson stated that she was there as she would help Mr Crofts in the mornings to get the children ready for each day. She stated that Master D was in a cot in his father’s room, Miss J in the second bedroom and she in the third. Ms Johansson stated that the children were up early each day as she and Mr Crofts were working. She stated that she was with Mr Crofts when he took the children each morning and there every afternoon with Mr Crofts to pick them up.
It was the Tribunal’s expectation that Ms Johansson would give oral evidence during the hearing but Mr Crofts said that she had declined to do so. There was no reason provided for her unavailability. Hence the Tribunal was unable to probe the written statement provided, diminishing its evidentiary value.
MRS COLEMAN’S EVIDENCE
Mrs Coleman provided a statement dated 15 April 2013 in which she maintained that she had cared for the two children until 13 April 2011. She stated that she was not paid money for babysitting. She stated that she was willing to undertake a lie detector test to prove this. Mrs Coleman stated that the FTB she received on account of caring for Miss J was used to care for both children and not for her personal use.
In her oral evidence Mrs Coleman told the tribunal that she had four daughters. Ms Carr, who died at 38 years of age, was the eldest, and herself a mother of five children. Ms Carr was only 15 years old when her first son was born. Ms Carr took care of him until he was six or eight years old. He is now 25 years old. She had a second son with the same partner who would now be around 19 years old. A third boy who is now about 13 years old is being cared for by his paternal grandparents. Miss J was the fourth child born to Ms Carr, and now residing with her maternal aunt. Master D, Ms Carr’s youngest child, is living with Mr Crofts.
After Miss J was taken from Mrs Coleman's care, she lived for a time with Mr Crofts. Since September 2011, Miss J has lived with her aunt, Leanne Coleman, following fresh court orders.
When Miss J was born, Ms Carr and Mrs Coleman were sharing a home. At that time neither Ms Carr nor Mrs Coleman were partnered. Ms Carr suffered from both physical and psychiatric health issues which appeared to have been exacerbated by drug and alcohol use. Miss J was induced at around 32 weeks and was kept in hospital for two or three months.
Ms Carr spent substantial time in hospital in relation to her mental health. Miss J was in hospital with her mother for a time and from around three months of age was cared for by Mrs Coleman. Mrs Coleman gave up her job as manager of a coffee shop to care for Miss J. Initially she believed she would be going back to work and was taking leave but she only returned briefly as the children were her priority. She had been receiving FTB in relation for Miss J from September 2005. Ms Carr was receiving a disability support pension.
When Miss J was about a year old, Ms Carr and Mrs Coleman moved to Rosebud. One of the reasons for the choice of location was to enable Ms Carr to be closer to her third son who lived nearby with his paternal grandparents. Ms Carr had fortnightly access to that son. The move to Rosebud and the shared house also allowed Ms Carr to spend more time with Miss J. Mrs Coleman said that it was important to Ms Carr to keep in contact with her children. Mrs Coleman said that despite Ms Carr’s health problems she loved her children dearly.
Miss J was still living with Mrs Coleman and Ms Carr on her second and third birthdays. Ms Carr would sometimes leave the home for a period and then come back. Mrs Coleman said that in effect, she was caring for both her daughter and grand-daughter for some time. Mrs Coleman said she was the primary caregiver for Miss J, bathing, cleaning, washing, cooking, and the like.
Mrs Coleman said she had not known Mr Crofts for very long before discovering that Ms Carr was pregnant with his child. Ms Carr and Mr Crofts split up when Ms Carr was about six months pregnant. While Ms Carr and Mr Crofts were in a relationship Miss J mainly stayed with Mrs Coleman although sometimes went to stay with Ms Carr at Mr Croft’s home.
Mrs Coleman described an incident in early March 2010 shortly after Master D’s birth when Ms Carr assaulted her. A restraining order was put in place at the suggestion of DoHS which prevented Ms Carr from visiting her mother. The order was for a five year period. Mrs Coleman said that in the period between March 2010 and late 2010, Ms Carr did not have much contact with the children. Arrangements were made for her to see Master D and Miss J at Mr Crofts’ home through DoHS.
Mrs Coleman said that Mr Crofts was exaggerating about the amount of time he spent with Miss J during the relevant period. Mrs Coleman strongly disagreed with Mr Crofts’ assertions that he took the children home every night after she had taken care of them during the day. She said that it was only on occasional weekends when Ms Carr had access that they would take Miss J to stay at Mr Croft’s house.
Mrs Coleman confirmed that Mr Crofts called in regularly to see Miss J and Master D. She said that he would arrive at about 8.30 am on kindergarten or school mornings. Mr Crofts played with Master D for about 10 or 15 minutes and would then take Miss J to kindergarten or school. Mrs Coleman said that if kindergarten finished at 2 pm, Mr Crofts would come by at about 1.30 pm and spend 15 minutes playing with Master D. He would then pick up Miss J and drop her back to Mrs Coleman. Mrs Coleman said that he would not return until the next day.
Mrs Coleman said that Mr Crofts would not call in at 7 am as he suggested in his evidence. She also said that she did not see him after 4 pm. Mrs Coleman said that when Miss J did stay with Mr Crofts on a weekend, he would pick her up on Saturday morning and return her at 3 pm on Sunday. Mrs Coleman said that she always looked after them on Sunday nights. The Tribunal asked her a series of varying questions about the time Miss J spent with Mr Crofts during the relevant period, with Mrs Coleman maintaining consistent responses suggesting that Miss J spent Saturday night at Mr Croft’s once a fortnight.
Mrs Coleman said that she was renting a 3 bedroom home. Miss J had her own room and Master D was in the lounge room with Mrs Coleman. Mrs Coleman slept on the couch in the lounge room with Master D’s first year because it was warmer in that room.
Mrs Coleman described their afternoon routine; Miss J had snacks and milk after school when she came home from school while watching cartoons. Tea-time would be between 4pm and 5 pm. She would bathe the children at about 6 pm and bed time was between 7 pm and 7.30 pm depending on daylight saving. A similar routine was in place whether it was a weekday or a weekend. In response to questioning, Mrs Coleman described Miss J’s favourite books. Miss J liked playing with her dolls and often played hospital scenes with them because her mother was in and out of hospital many times.
Mrs Coleman has 18 grandchildren and said it was not unusual to have 10 grandchildren at her house at any one time. She described the nature of Miss J’s interactions with her cousins to the Tribunal.
Mrs Coleman stated that she knew that Mr Crofts had an order stating that he was the main carer of Miss J. Asked why he would have sought care orders and not followed through on them, Mrs Coleman said that in her opinion, it was an attempt to maintain control over Ms Carr.
Mrs Coleman denied receiving payments to look after the children while Mr Crofts worked, she told the Tribunal that he would provide nappies and formula for Master D. He had paid for Miss J’s school uniform and fees. She confirmed that she had seen the enrolment forms and other documents in relation to school and kindergarten provided to the Tribunal by Mr Crofts.
Mrs Coleman was adamant that she had not received any payment from Cathy Johansson on behalf of Mr Crofts. Mrs Coleman said that Ms Johansson had only come to her house with Mr Crofts. She estimated that she had seen Ms Johansson about four times during the relevant period.
Mrs Coleman said that she had been to Mr Crofts’ home twice during the relevant period. The first time was to see the house. She stated that there was nothing out of place in the house …everything was shiny. No toys, no clothes, no vegemite down the fridge or toilet paper being rolled out. Master D’s cot was in Mr Crofts’ room. On the second visit, it was for an interview with DoHS.
Questioned by Mr De Uray on behalf of the respondent, Mrs Coleman said that her parents, who lived some hours away, contacted her every Monday night by webcam or telephone. It was always just after 7 pm because the cost for distance calls was lower after that time. Mrs Coleman said that Miss J would already be in her pyjamas ready for bed at the time of the call.
Jarred Burston, the partner of Kym Coleman, another of Mrs Coleman’s daughters, stated the following in a written statement dated 13 March 2013:
In my many numerous visits to Shirley Colemans residence in Rosebud between March 2010 and April 2011 I witnessed both children living there with Shirley quite happily. They were always extremely comfortable in their surroundings. Master D had a cot permanently set up in either the lounge or Shirley's bedroom and Miss J had her own room complete with her own bed, many toys and cupboards and drawers full of clothes. Master D also had many toys located around the house and drawers full of clothes. Miss J always referred to the bedroom as her room and on the occasions our children stayed the night my daughter…would always sleep in this room with Miss J.
We (my family and I) visited Shirley and the children at all times of day and evening and occasionally even at night. We dropped in when we were passing by and on many occasions stopped and stayed the night. On practically every visit we made both children were present. If it was late at night the children would be in their pyjamas ready for bed or even already in bed sleeping.
My defacto Kym Coleman and my children stayed at Shirleys almost every second weekend, and sometimes more often than that for both Friday and Saturday nights as it gave Kym and Shirley time to spend together and also time for the children to play….
I find it impossibly coincidental that on every occasion we visited or stayed the night that Kevin Crofts had asked Shirley to babysit the children so he could go out. If this is true that Mr Crofts must have gone out almost every Friday and Saturday and weekdays too, especially during the school holidays when we would stay quite a lot.
…
In oral evidence, Mr Burston said that at the very least, he would see Mrs Coleman once a fortnight. During the relevant period, he worked on Saturdays and would drop his partner and then three children at Mrs Coleman’s place on Saturday night and often on Friday night. He said that Miss J and Master D were always there when he visited. He could not recall any occasion during the relevant period when the children were not there.
Mr Burston said that he had been asked to provide a supporting statement but he had prepared it himself without prompting. He and his partner Kim Coleman had provided an earlier statement dated 25 June 2012 in which they had given similar information to the current evidence. They had said that:
Not only did the children live with Shirley, she was responsible for all of their needs, including but not limited to food, clothing, education and toys. Any evidence to the contrary has been falsified or is simply incorrect.
Kym Coleman appeared before the Tribunal. She is the youngest of Mrs Coleman’s children and was about 10 years younger than Ms Carr. Kym Coleman had been excluded from the hearing room during the evidence taken that day. Kym Coleman said that she would be at her mother’s house every second or third weekend. When her partner worked on the weekend, she would spend the weekend with her mother. She usually spent a week of the school holidays at the Rosebud home as well.
Kym Coleman said that whenever she visited her mother, the children did not go to Mr Crofts’ home. She said that there was no occasion she could recall when she and her children stayed with her mother that Miss J and Master D were not there. She said that Mr Crofts did call in during the week she and her children were there during the holidays. He would have a coffee, say hello to the children and then leave again.
Asked whether her mother had ever talked to her about Mr Crofts’ picking up the children or bringing them in the morning, Kym Coleman responded:
The only thing she told me was that he would take Miss J to school or kinder, wherever she was at that time, and he would go and pick her up and bring her home. If she had a doctor’s appointment, he would take her to that, because he drove and Mum didn’t…
Asked about communicating with her mother during the week, Kym Coleman said they did so regularly but usually by computer or phone. She said that Miss J would get on the phone and ask her if she could talk to one of Kim Coleman’s daughters who is near to Miss J in age.
Doug Boothey, the great grandfather of Miss J, provided a hand-written statement dated 15 March 2013 in which he set out his evidence concerning the care of Miss J.
…During the period of March 2010 and April 2011 I had usual contact with Shirley and the children mainly by phone web cam and Skype and many visits from Shirley and children to my home….I would speak to Miss J on the phone after 7 pm cheaper rates and see her and mater D in their PJs on web cam before they went to bed.
I also had many visits to Melbourne where I seen the childrens bedrooms, clothes and toys.
We my wife and I had a major part in Shirley’s and the childrens lives due to the illness of my granddaughter. Michelle wasn’t able to care for the children, but loved them dearly.
I have never met Kevin Croft and I understand that he had court custody and care of the children but I never seen any evidence of that.
The children would always be with Shirley in the house at Rosebud.
…
In oral evidence by telephone, Mr Boothey said that he had driven down to Rosebud from his home in a regional centre to see Mrs Coleman. At that time, Master D was in a bassinette and Miss J was about four or five years old. Mr Boothey said that he brought a refrigerator down for them and stayed a day. It was after the altercation between Mrs Colman and Ms Carr. He said he could not stay longer because his wife is unwell and he cannot leave her for very long. On the day and night he was there, Master D and Miss J were there.
Mr Boothey said that Mrs Coleman had bought a computer for him and his wife. Skype was placed on the computer and it allowed Mr and Mrs Boothey to watch his 30 great grandchildren. He confirmed that he contacted Mrs Coleman regularly, sometimes on the telephone sometimes on Skype and always after 7 pm. Mr Boothey said that he would see Master D in his bassinette in the early period and later moving around on the carpet. He said he would also speak to Miss J who was ready to go to bed or sometimes even got out of bed to say goodnight to him and his wife.
Tina Storme, in a hand-written statement, said that she helped Mrs Coleman find the property in Rosebud where Mrs Coleman lived during the relevant period. She stated that she also helped her to move into the property with Ms Carr and Miss J. Ms Storme stated she visited Mrs Coleman at that property on various occasions, long weekends, school holidays, midweek drop ins. She stated that she visited several times during 2010 and that on all of those visits, Miss J and Master D were there with Mrs Coleman as their carer.
In her oral evidence given by telephone, Ms Storme confirmed that she was aware of the issues facing Mrs Coleman. Ms Storme said that she had known Mrs Coleman for more than 20 years. They met when working for the same company. Ms Storme confirmed that she had helped Mrs Coleman to look for a property in Rosebud and then when she had decided on a particular place, had helped her move in. Ms Storme said that she had visited Mrs Coleman in Rosebud when she was caring for Master D and Miss J. She said that sometimes she would go for a short visit and at other times stayed for a couple of days usually on a weekend. Miss J and Master D were always there when she visited the Rosebud home. She recalled that Master D was about six weeks old when she initially stayed there. Ms Storme said that the only time she knew of when they stayed with Mr Crofts was when Ms Carr was at his home for the weekend.
Anne Reid gave oral evidence. She had also provided a statement to Centrelink on 7 July 2011 in which she stated:
… I have been employed by Dept of Human Services/Child Support Program for 11 years and I have known Ms Shirley Coleman for approx. 40 years. We have maintained contact during that time and our children have grown up together.
I am fully aware of the situation in relation to Shirley's granddaughter Miss J…
Shirley took over the responsibility of caring for Miss J full-time when Miss J was 3 months old. I witnessed their relationship develop into a deep, loving bond which continued to evolve.
Miss J resided full-time with Shirley until April 2011 when she was suddenly removed f from Shirley's care by the father of Michelle's youngest child Master D who had also lived in Shirley until that time.
Shirley was the sole carer of those two children and Miss J in particular would be suffering terribly by no longer having her grandmother present in her life….
Ms Reid expanded on those comments during the hearing. She said she had seen Miss J staying with Mrs Coleman in the Rosebud house. Ms Reid said that Mrs Coleman had been devastated by the children being taken away from her. She gave up the home in Rosebud after that and stayed with Ms Reid for some months.
Mr Crofts had queried Ms Reid’s integrity and the reliability of her evidence alleging that Ms Reid had accessed his Centrelink files while working there and had told Mrs Coleman of their contents. Ms Reid said that she has never worked for Centrelink. She said that she was co-located in premises shared by Centrelink, Medibank and Child Support but she has always done Child Support work. She said she cannot access Centrelink records. Furthermore she did not know Mr Crofts’ surname until that very day. Ms Reid said she had never been counselled for acting inappropriately in her 40 years of public service life.
Esme Boothey, Mrs Coleman’s mother and great grandmother of Miss J and Master D provided a hand-written statement dated 3 March 2013. She stated that when Mrs Coleman lived in Rosebud during 2010 and 2011, they would often talk on the webcam or telephone in the evening. They would see Master D and say good night to Miss J before she went to bed. They lived in a regional area and phoned after 7 pm as there was a cheaper rate for telephone calls after that time.
Leanne Storey, Mrs Coleman's daughter, who now takes care of Miss J gave oral evidence. She said that Miss J was with Mrs Coleman during the relevant period. Ms Storey said that they would spend time in the holidays with Mrs Coleman and Miss J was there too. Ms Storey said they were worried about Miss J when she was taken into Mr Crofts’ care after the relevant period.
Terry Harris, Mrs Coleman’s younger sister, provided a statement dated 4 March 2013. Ms Harris stated that Mrs Coleman took Master D into her care when Michelle Carr was too unwell to look after him. Ms Harris stated that Master D and Miss J lived with Mrs Coleman until shortly before Ms Carr died. Ms Harris said that she had seen the children asleep in their rooms. Ms Harris said that she had kissed Miss J goodnight when she was tucked into her bed and had been there when the children had woken in the morning. She stated that Mrs Coleman had made breakfast for the two children and had cared for them to the highest standards on all my visits to their Rosebud home.
Ms Harris stated that she had taken Miss J and Master D on family trips to visit their great grandparents. At Christmas time in 2010, Ms Harris, Mrs Coleman, Miss J and Master D stayed with Mrs Coleman’s and Ms Harris’s parents for several days.
Christopher Reid, Mrs Coleman's godson and the son of Anne Reid, gave evidence that he used to work at a nearby sports stadium and stay the night with Mrs Coleman in 2010. He said that whenever he stayed there, Miss J was always there too. Mr Reid said that he would trust Mrs Coleman with his life. He said that Mrs Coleman had given up the job she enjoyed to take care of Master D and Miss J. He described the distress experienced by Mrs Coleman when the children were taken away in April 2011.
Jayden Ryan, Ms Carr’s son and older half-brother to Miss J, attended the hearing to support his grandmother. He is now aged 19 years. He said he visited the home in Rosebud after visiting his mother in hospital and saw Master D in his cot and Miss J asleep in her bed. He said that on that occasion he and his father stayed for a couple of hours.
CONCLUSIONS
This has been a difficult case for the Tribunal to grapple with. The Tribunal has set out the evidence of both Mrs Coleman and Mr Crofts in detail in an effort to be fair to both of them. However, in the end, it is required to make a decision one way or the other.
As was indicated earlier, Mr Crofts had legal responsibility for Miss J and his son Master D as a result of the court orders during the relevant period. Usually that would result in Miss J being considered his FTB child. However section 22(5)(c) of the Act allows for FTB to be paid to a carer despite that person not having legal custody for the FTB child.
The Tribunal accepts that Mrs Coleman was the carer of Miss J from when she was a baby. Miss J's mother appears to have been a person with significant health problems, some possible drug and alcohol issues and unreliable behaviour patterns. Mrs Coleman provided stability and care for Miss J in the years prior to the relevant period. Ms Carr was still alive during the relevant period but as can be seen from the nature of the court orders described earlier, DoHS were concerned about the child's welfare and Ms Carr’s ability to care for Miss J and Master D.
Mrs Coleman presented relatively consistent evidence of what occurred during the relevant period. An impressive line-up of witnesses corroborated her version of events. She was generally described as a caring and loving grandmother who took good care of Miss J and her younger brother. The witnesses had seen Miss J at the Rosebud home during the day and at night. Notwithstanding that they are relatives or friends of Mrs Coleman, the Tribunal is satisfied that they were truthful in their evidence. There was no impression of a conspiracy to assist Mrs Coleman in her application.
Mr Crofts, too, presented as a caring person prepared to care for a child with whom he had no biological connection. The relationship between Mr Crofts and Ms Carr does not appear to have been a romantic one since prior to Master D’s birth. Mr Crofts told the Tribunal he had pursued the issues in this case to fulfil Ms Carr’s wish for him to do so, after she and her mother had their falling out following Ms Carr’s assault on her mother in March 2010 not long after Master D’s birth.
Mr Crofts presented documentary evidence concerning the court orders during the relevant period as well as material from kindergarten, school and doctor indicating that he had signed forms, paid moneys and participated in activities. Given he had legal responsibility bestowed by the court, that seems sensible. The documentation also shows that Mrs Coleman was nominated as a contact for the kindergarten and school and attended the doctor with him.
However Mr Crofts’ only cited potential witness, Ms Johanssen, did not come forward when it was indicated that she should. Mr Crofts did not explain why she would not give evidence only that she did not wish to do so. His documentary evidence about payments, mainly circling withdrawals a considerable time after they were made, is in the Tribunal’s view, somewhat unreliable.
Weighing up all the evidence, the Tribunal finds on the balance of probabilities that Miss J spent the vast majority of her time during the relevant period with Mrs Coleman. During that period, Mr Crofts had regular contact with Miss J and Master D taking her to kindergarten and the first two months of school. The Tribunal also accepts that Miss J went to his home to enable her to spend time with her mother as per the court orders.
In relation to the care of Miss J, the Tribunal prefers the evidence of Mrs Coleman and her witnesses to that given by Mr Crofts. It seems somewhat implausible that young children would be taken home every night effectively just to sleep and then be taken back to Mrs Coleman’s at 7 am the next morning. The Tribunal accepts that Mr Crofts would call in after opening up the business and then take Miss J to kindergarten rather than dropping them off early and then coming back again. The Tribunal believes it is more plausible that the children, having had dinner, bathed and being in their pyjamas would sleep at Mrs Coleman’s rather than being taken to Mr Crofts’ home and then get woken very early the next day and taken back to Mrs Coleman to have breakfast.
The Tribunal does accept that Miss J spent time at Mr Crofts’ house but does not accept that this happened each night during the relevant period. Taking into account the provisions of section 25 of the Act, the Tribunal determines that Miss J spent less than 35 per cent of her time with Mr Crofts. It is now impossible to come up with a definite percentage but the Tribunal is satisfied that Miss J spent at least 65 per cent and most likely about 80 to 90 per cent of the time with her grandmother caring for her.
The Tribunal finds that Mrs Coleman was entitled to FTB payments based on the provisions of section 22(5)(c) of the Act during the relevant period. Therefore she was entitled to FTB payments during that time. She therefore has no debt to the Commonwealth.
DECISION
The Tribunal sets aside the decisions under review and substitutes decisions that Mrs Coleman was entitled to family tax benefit in the period 9 March 2010 to 13 April 2011.
I certify that the preceding 101 (one-hundred and one) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member .......................[sgd].................................................
Assistant
Dated 28 October 2013
Dates of hearing 26 April 2013, 16 July 2013 Applicant In person Advocate for the Respondent Mr T de Uray Solicitors for the Respondent Department of Human Services Legal Branch Joined Party In person
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