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

[2015] AATA 998

Slim and Secretary, Department of Social Services (Social services second review) [2015] AATA 998 (21 December 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2916
Re	John Slim
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Monika Birch
OTHER PARTY

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	21 December 2015
Place	Brisbane

The Tribunal sets aside the decision under review and decides that the applicant had care of the child of:

·            12% from 1 July 2012;

·            46% from 1 April 2013;

·            44% from 25 November 2013.

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

Deputy President Dr P McDermott RFD

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit  – percentage of care – evidence – decision under review set aside.

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 25, 35B, 35J, 35P, 35M, 59.

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

21 December 2015

INTRODUCTION

1. This is a matter concerning the applicant’s entitlement to Family Tax Benefit (“FTB”).

   BACKGROUND

2. The applicant and other party are parents of a child. The applicant applied to this Tribunal for review of a decision of the Secretary dated 15 September 2014[1] which determined a claim for an annual lump sum payment of FTB.[2] The Secretary decided for FTB purposes that the applicant had the following percentages of care of the child:

   ·14% from 1 July 2012;

   ·30% from 1 April 2013;

   ·44% from 25 November 2014.

   [1] Exhibit A, f 126.

   [2] Ibid f 10.

   LEGISLATION

3. A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”) contains provisions that are important in determining this application.

4. Under the Act, the applicant is eligible for family tax benefit (“FTB”) if he has, among other things, at least one “FTB child”.[3] It is not in issue that the child is an “FTB child” of the applicant according to s 22(1)-(2) of the Act. However the applicant’s eligibility for FTB is affected by other provisions of the Act[4] such as s 25, which provides that a child is taken not to be an FTB child where the percentage of care during a care period is less than 35%.

   [3] A New Tax System (Family Assistance) Act 1999 (Cth) s 21.

   [4] Ibid s 21(2).

5. Section 35B(1) of the Act provides in essence that the Secretary must determine a percentage of care where satisfied that an individual:

   ·had care over a period for an FTB child;

   ·has claimed FTB;

   ·is not a partner of an individual also having care of that FTB child.

6. Relevantly in this case, the Secretary must revoke the determination of a percentage of care if:

   ·there is a change to an individual’s care percentage that would put the individual in another percentage range; or

   ·the individual’s shared care percentage would change.[5]

   [5] Ibid s 35P.

   CONSIDERATION

7. The applicant and other party have made serious allegations in their written submissions which are in evidence. The Act is not concerned with the quality of parenting delivered by an individual, or their relationships with others. Accordingly those allegations are irrelevant to my consideration of the applicant’s entitlement to FTB.

8. It is relevant to note that the applicant and the other party each confirmed in oral evidence that they did not have the total number of days or nights of care calculated. Both parties maintained that following the Court Order dated 25 November 2013,[6] care had occurred in accordance with those orders.

   [6] Exhibit C, f 45.

9. The applicant had completed three sets of records across different sources, which he said he assembled in May 2014 into a document which appears in Exhibit A.[7] In oral evidence the other party noted that she produced calendar documents from a combination of her memory, diaries that she completed and a mobile phone on which she kept information. She said however that she had never written anything too substantial in the diaries and that the mobile phone is now inoperative.

   [7] Exhibit A, ff 76-99.

10. The other party was reminded during proceedings that the hearing was the opportunity to challenge the evidence of the applicant. She declined to challenge the evidence of the applicant in cross-examination but asserted that the applicant had not had the child for the nights indicated by the records that he relied on.[8] The other party, to her credit, was frank in acknowledging a lack of evidence by saying that this was a “he said, she said type of situation”.

    [8] Ibid.

11. Statements from acquaintances of the respective parties are in evidence. Those statements speak only in general terms of care arrangements. Evidence was given by the other party, under the sanction of an affirmation, that one affidavit made by a former employee of the applicant may not have represented the true state of affairs. Indeed much of the documentary evidence presented by the parties was in direct conflict. In circumstances where the deponents of affidavits and other written statements were not called as witnesses to clarify their assertions, I am not prepared to rely on such statements to support findings of fact.

    The period beginning 1 July 2012

12. The applicant asserted in his claim that he had 298 nights of care of the child in the period 1 July 2012 to 30 June 2013.[9] Records made by the applicant indicate that from 1 July 2012 to 1 April 2013, the child was with the applicant for all but 26 nights. [10] At the hearing the applicant relied on these records as an accurate indication of his care of the child. By contrast, calendars completed by the other party are circled on certain dates,[11] which she said represent the nights she had care of the child. No Sunday between July and December 2012 has been marked by the other party, however a letter dated 11 August 2014 and bearing her signature notes:

    Before 9^th March 2013 [the applicant] only had [the child] by himself on Sunday Nights due 2 me working mondays [sic].[12]

    [9] Exhibit A, f 34.

    [10] Ibid ff 76-99.

    [11] Exhibit C, f 69; 93.

    [12] Ibid ff 27-28.

13. The decision below me indicated that the applicant had a percentage of care of the child in the period of 14%. Taking into account the Sunday nights in the period as well as any circled dates that are not Sundays, the applicant appears to have had care of the child for 35 nights out of a possible 274 nights in the period 1 July 2012 to 31 March 2014. I determine that this amounts to a percentage of care of 12%, taking into account rounding down mandated by the Act.[13]

    [13] A New Tax System (Family Assistance) Act 1999 (Cth) s 35M.

    The period beginning 1 April 2013

14. The applicant and other party gave evidence that a change in care occurred on 1 April 2013. The Secretary’s representative referred the other party to folio 95 of Exhibit C which is a 2013 calendar. Markings on that calendar appear to begin at 1 April 2013 and continue through December 2013. The other party stated that she had circled the nights the Applicant had care of the child, and that the unmarked dates were nights she had care of the child.

15. The days between and including 1 April 2013 and 24 November 2013 are 238. The encircled dates in that period are 110, or 46% of the total dates accounting for rounding down.[14] It is appropriate to determine the care of the child based on the number nights of care provided by an individual.[15]

    [14] A New Tax System (Family Assistance) Act 1999 (Cth) s 35M.

    [15] Ibid s 35J.

16. The decision of the Secretary was that the applicant had 30% care of the child from 1 April 2013.[16] I am required by s 35P(1)(d)(i)-(ii) to revoke the percentage of care determination where the applicant’s shared care percentage would change,[17] or where a change to his individual percentage of care would put the percentage in a different range. In accordance with s 35B(2) of the Act, I must determine the percentage of care for the child during the care period. I determine that the applicant had 46% care of the child from 1 April 2013.

    [16] Exhibit A, f 126.

    [17] See in relation to shared care percentages: A New Tax System (Family Assistance) Act 1999 (Cth) s 59.

    The period beginning 25 November 2013

17. The parties did not dispute (and I determine) that an amount of care of the child by the applicant of 44% from the date of court orders, being 25 November 2013,[18] was appropriately recorded. There is no cogent evidence before me which would contradict such a finding.

    [18] Exhibit C, f 45.

    CONLUSION

18. I set aside the decision under review and decide that the applicant had care of the child of:

    ·12% from 1 July 2012;

    ·46% from 1 April 2013;

    ·44% from 25 November 2013.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated 21 December 2015

Date(s) of hearing	6 October 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services
Other Party	In person