Smart and Secretary, Department of Family and Community Services

[2005] AATA 1220

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1220

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2005/575

GENERAL ADMINISTRATIVE DIVISION		)
Re		NEVIN SMART

Applicant

And DENISE SMART

Party Joined

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date12 December 2005

PlaceMelbourne

Decision The decision under review is affirmed.

..............................................

Senior Member

SOCIAL SECURITY – applicant and party joined married but separated – four children of marriage are “FTB” children” – care of children shared – allocation of FTB – each party kept a diary – dispute of extent of care – decision of SSAT affirmed

A New Tax System (Family Assistance) Act 1999

REASONS FOR DECISION

12 December 2005

1.      The applicant and the party joined are the parents of four children currently aged 14, 10, 8 and 7 years.  They have been unable to agree on the percentage of family tax benefit (“FTB”) payable to them with respect to the children.  The Social Security Appeals Tribunal (“SSAT”) made a finding on 20 May 2005.  Mr Smart is dissatisfied with that finding and sought a review of it by these proceedings.  Ms Smart was joined as a party to the proceedings being a person whose interests may be affected by the review.

2.      There is no issue that each of the four children is an “FTB child” within the meaning of A New Tax System (Family Assistance) Act 1999 (“the Act”).  Additionally there is no issue that there has been a “pattern of care” for each child that attracts an entitlement to one or both parents of FTB.

3.      The period in issue by these proceedings was 17 July 2002 until 23 July 2003.  Decisions were initially made by a Centrelink officer that each parent shared the care of the children and FTB should be allocated at 66 per cent / 34 per cent to Ms Smart and Mr Smart respectively.  On review by an authorised review officer (“ARO”) that decision was varied to an allocation of 72 per cent / 28 per cent.  Upon review by the SSAT it was decided that for the period 17 July 2002 to 28 September 2002, Ms Smart be entitled to FTB at 100 per cent.  The SSAT also decided that for the period 29 September 2002 to 23 July 2003 there be an apportionment in her favour of 76 per cent / 24 per cent.  Ms Smart did not challenge that decision and said at the hearing of the application on 5 December 2005 that she regarded those findings as fair.  Mr Smart is the applicant in these proceedings and seeks a review of the totality of the decision made by the SSAT.

4.      The commencing and concluding dates of the period in issue were unclear to me and I asked assistance from both parties at the hearing.  It is not disputed that the parties separated on 26 May 2002.  The T‑documents at page 34 indicate an assessment notice was received from the Child Support Agency (“CSA”) on 18 July 2002.  Additionally it would appear that an officer of Centrelink decided on 12 November 2004 to commence the period in issue on 17 July 2002 (page 199) and a summary prepared by him of extracts from each parties’ diary appears at page 117 and 118.  The selection of the date 17 July 2002 continues to remain unclear (at least to me) but no issue was taken by either party or by Mr Perdon who appeared on behalf of the respondent.  The concluding date of 23 July 2003 appears to be the date of the last payment for the 2003 financial year.  It was on that date that Mr Smart lodged forms with Centrelink asserting his entitlement to FTB for the preceding 12 months.  Mr Perdon confirmed that in the present case FTB was paid in retrospect.

5.      Prior to 15 July 2002, Mr Smart and his wife had not ever formalised care arrangements for the children.  At 15 July 2002, it was agreed that the matrimonial home be valued in anticipation of property proceedings in the Family Court.  Mr Smart said that he agreed to move out of the home and live elsewhere until the valuation was completed.  He said that a valuer did not attend the home for eight weeks and within that time his wife changed the locks on some of the doors to the home, and denied him access to a key.

6.      Mr Smart did say that he and his wife ultimately agreed that he would have care and responsibility for the children on designated days in alternating weeks.  He said that in one week he would care for the children on Wednesday evenings commencing at the conclusion of school and would be responsible for them until the next morning.  In the interim he would be responsible for collecting the children from school, preparing meals, cooking and feeding, bathing and dressing and preparing breakfast and school lunches the next morning.  In the same week he would be responsible for the children from Friday afternoons at the conclusion of school and then be responsible for them on Friday evenings, all of Saturday and most of Sunday.

7.      In the other week the arrangement was that he would have responsibility for the children from Thursday afternoons after school until the following Friday morning.  In the interim he would undertake all responsibility for collecting the children, preparing meals, feeding them, bathing, dressing and preparing school lunches the following morning.  Additionally it was agreed that he would be responsible for the children for half of all designated school holidays.

8.      On the occasions that Mr Smart had responsibility for the children, he was permitted by his wife to return to the former matrimonial home where he would sleep overnight.  Mr Smart said that he eventually moved back to live on a full time basis in the former matrimonial home in October 2002 at the conclusion of the October school holidays.

9.      On the occasions that he was at the matrimonial home on the designated days (refer above), Mr Smart said that his wife was present for most of the time and she would perform normal activity around the home including washing and other housework.  Mr Smart also said that he purchased food from a supermarket on the nights that he had responsibility for the children.

10.     Mr Smart asserted an entitlement to FTB having regard to the above occasions when he was responsible for the children, and by reference to a letter found at pages 113 and 114 of the T‑documents (which recited a number of dates).  He also made reference to his diary which was copied and exchanged between the parties in the week prior to the hearing.

11.     Ms Smart said that prior to separation her husband “came and went as he pleased.  Nothing changed after separation”.  She said she attempted to encourage him to have the children on regular intervals because she regarded it as important that the children enjoyed a pattern of care with each parent.  She agreed that there were many occasions when he attended the former matrimonial home at Gemini Court in Wheelers Hill but there were many occasions when he then “did nothing”.  She said there were many occasions when he would come home at either 4.00 am or 7.00 am in the morning or on some occasions, in the middle of the day.  There were many occasions she said where he spent time outside on the veranda smoking cigarettes and drinking coffee.  On occasions when they talked there were frequent arguments.

12.     Ms Smart said that she “always looked after the children”.  She said that she would do the grocery shopping and the cooking, but said that she reached the stage where, after Mr Smart returned to the matrimonial home and was consuming the food that she had purchased, she was forced to lock it away from him.  She said that she held records indicating that for the period in issue by these proceedings, Mr Smart purchased food only on four occasions and she identified the dates.  She said that there were many occasions when he was at the home on the days that he referred to earlier but she was responsible for the children and prepared meals and attended to their needs.

13.     Ms Smart said that throughout the period in issue she kept a diary that she produced on an Excel spreadsheet format.  She said that shortly after separation she was advised by a friend to maintain a diary recording the extent of her care of the children and maintenance of the home.  The diary is made up of loose pages commencing on 31 May 2002 and concluding on 3 July 2003.  The diary lists 50 different events which she regarded as being reasonably likely to occur including, washing and folding clothing, preparing meals (and distinguishing between breakfast, lunch and dinner), making beds, cleaning rooms, delivering children to school, kindergarten and crèche, getting the children up in the morning, preparing breakfasts and school lunches, taking children to sporting events and ballet.  Each day has a colour code in pink or blue depending on whether she or her husband undertook the activity recorded on each page.  Additionally, Ms Smart has made handwritten notes on each page of other events which occurred from time to time.

14.     Initially, Ms Smart said that she did not fill in the diary every day because she “did everything”.  She gave examples of the extent of her involvement with four children who, during the period in issue, were at school, kindergarten and crèche.  She spoke of working on a full time basis outside the home and having to drive during the day to collect and deliver children to crèche and kindergarten and then to return home to prepare meals and be responsible for children alone at night time.  She agreed that there were instances in her husband’s diary where he has recorded “@ GC” (meaning at Gemini Court).  However, Ms Smart said that those entries meant nothing because on those occasions he would frequently do nothing. 

15.     Ms Smart explained that in October 2002 she commenced recording activities undertaken by her and her husband in her diary on a daily basis.  At or about that time she and her husband were engaged in Family Court proceedings and he had moved back to Gemini Court and was living in the home on a full time basis.  She said that the completion of the diary was exhausting but that she was continually encouraged by her friends to make the notations as a memorial of the activities she undertook.

16.     The original diary was received into evidence.  A copy of it is found within the T‑documents.  The copy in the T‑documents concludes on 8 May 2003 and has coloured entries until that date.  The original diary has coloured entries until 10 April 2003 only.  Ms Smart was unable to explain at the hearing why the copy of the diary in the T‑documents differed from the original diary.  However, I am satisfied nothing turns on this.

conclusion and reasons for decision

17.     In the period between 17 July 2002 and 28 September 2002, Ms Smart was living in the home on a full time basis.  Mr Smart returned to the home from time to time.

18.     In that period an examination of the diary of Mr Smart records a number of entries described as “@ GC” (refer earlier), “at GP” (explained in evidence as describing a friend with whom he stayed), “at GC kids” (described as meaning being responsible for the children at Gemini Court) and other entries of a similar nature described as recording where Mr Smart resided or attended from day to day.  There are entries in the diary within this period describing some of the activities undertaken by him with the children, for example, on 24 July he recorded “picked up kids, slept at GC” and on 26 July he has recorded “picked up kids and fed them”.  The diary also contains references (apparently) to other activities associated with his self employment.  However, the diary does not contain anywhere near the detail, or description of activities undertaken with the children, or on their behalf, as was contained in the diary of Ms Smart.  Mr Smart acknowledged that his diary was not detailed but relied on it to indicate activity undertaken by him with the children and the occasions of those undertakings.

19.     There would appear to be some credibility in the evidence of Ms Smart as to the extent of her husband’s time spent with the children.  For example, on Saturday, 20 July, Mr Smart has recorded that he attended baseball with his children but then went to work.  The last entry on that day is “Gemini at 4.00 am”.  On the next day, Sunday, 21 July, it is recorded “home fed kids breaky” and another entry is “left for work 10.30”.  On the same day it is recorded that he returned home at 8.00 pm, that he helped to put the children to bed and then “slept at WH”.

20.     The remainder of the diary within this period does contain a number of references to occasions where he spent time with the children and entertained them outside the home but there is nothing to indicate that he was engaged in the activities that he described.  That is, collecting children, feeding, bathing, clothing and caring for them at all or with the frequency suggested by the routine that he described in evidence.

21.     I accept the evidence of Ms Smart and find that she was the primary and dominant care provider.  She lived in the home on a full time basis and attended the children and was available to them during the day despite her being engaged in full time employment.

22. In order for Mr Smart to qualify for any benefit within this period he would need to have provided care for the children for a minimum of 10 per cent of the time. I cannot be confident, having heard the evidence from them both and from perusal of their diaries that Mr Smart was engaged with the children and was responsible for their care for 10 per cent or more of the period in issue. He must have been engaged for more than 10 per cent of the time in order for the children to be FTB children within the meaning of s 25 (1) (c) of the Act.

23.     Accordingly I am satisfied that the first part of the decision of the SSAT should be affirmed.

24.     The second part of the SSAT decision concerns the period 29 September 2002 to 23 July 2003.

25.     This period is different to the former for the following reasons; Mr Smart returned to the matrimonial home to live on a full time basis in October, Family Court proceedings were occurring at or about this time and from 19 October 2002, the diary completed by Ms Smart is much more comprehensive and detailed and does record “pink and blue” entries on a daily basis.

26.     The following analysis has regard to the evidence of them both concerning this period and also by reference to the diary, but with the qualification that the ultimate findings cannot be precise and must be general in nature.  That is to say there are a number of occasions when every entry on a given day in the diary of Ms Smart contains the colour pink only.  Clearly on that day, upon her evidence, she was responsible for the children totally.  If, on the same day, there is no entry in the diary of Mr Smart concerning any undertaking or activity by him with the children, I would be inclined to find that on that day Ms Smart had total care.  I readily acknowledge that such a conclusion is imprecise but I can do no more.  Events that occurred more than three years ago are the subject of this analysis.  What each party did on a particular day (or did not do) would now be beyond recall.  Additionally, I would acknowledge that the diary of Mr Smart is nowhere as precise, or detailed, as the entries in the diary maintained by Ms Smart.  However in fairness, Ms Smart acknowledged at the commencement of the hearing that she regarded the assessment made by the SSAT of him having care for 24 per cent of the time within this period to be fair.  She has recorded a number of entries in her diary in the colour blue indicating that there were a number of occasions when Mr Smart did undertake activity on behalf of the children.  Those “blue” entries in her diary occur at a frequency greater than was suggested by perusal of his diary during the first period of 17 July 2002 to 28 September 2002.

27.     The other issue of concern in making the ultimate findings is the value which should be placed upon days when there are a number of entries in blue and a number of entries in pink.  Surely the legislation does not require an analysis to be made of the total time taken to complete each of the designated activities in order to determine which of the two parents had the greatest degree of care.  Further what is to be made of the occasions when activities have been jointly undertaken, for example when the children have been put to bed by both parents (and there are a number of entries where this has occurred).

28.     I think on balance it would be preferable to adopt the diary of Ms Smart to be more accurate.  Additionally, I regard it as being to the benefit of Mr Smart that it be used as the source to calculate the extent of the care respectively provided by each of them.  For example, Mr Smart’s diary has no recording of him undertaking any care on behalf of the children on 20 November 2002.  Ms Smart has recorded in her diary that he collected the children from kindergarten and school and put them to bed on that day.  On 21 November 2002, Mr Smart has recorded only that he “pu kids” (which I understand to mean that he picked up the children).  Ms Smart has recorded that on that day he picked up some of the children from school, some of the children from kindergarten, prepared their evening meal, cleaned the kitchen, supervised the children cleaning their teeth, tidied the house and put all the children to bed.  That is to say, her diary has greater recordings of the care undertaken by him, than the diary that he has maintained.

29.     The SSAT recorded that Mr Smart advocated that he had the children in his care for 113 days in this period.  The SSAT found, as a fact, that Mr Smart had the children in his care for 71 days.

30.     The basis for the finding made by the SSAT of 71 days appears to be found at a summary of the evidence at pages 9 and 10 of the T‑documents, where on a month by month basis the days upon which Mr Smart had the care of the children (as agreed by Ms Smart) is recorded.  It would appear by reference to her diary that where there are more entries in blue than in pink, she has conceded that he had the majority of the care on those days.  When the dates recorded on page 9 and 10 are totalled a finding of 71 days results (and where a loading of .5 is made on those occasions, there has been a finding of 50/50 share on a designated date).  Mathematically, 71 days in this period coverts to 24%.

31.     I think the methodology undertaken by the SSAT is appropriate.  There is some limitation in these proceedings in adopting the same methodology because the coloured entries in the diary completed by Ms Smart expired on 8 May 2003 yet the period in issue expired on 23 July 2003.  For the reasons given earlier, I think the reliance upon the diary of Mr Smart would be disadvantageous to him.  It appears that the SSAT found that Ms Smart had access to another diary (refer third last dot point on page 9) which was not available at the hearing of these proceedings.

32.     Ms Smart regarded the allocation to her husband of 24 per cent in this period as being fair.  I agree.

33.     In the circumstances the decision under review should be affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         .....................................................................................
  Associate

Date of Hearing  5 December 2005
Date of Decision  12 December 2005
Solicitor for the Applicant          Self Represented
Solicitor for the Party Joined     Self Represented
Departmental Advocate            Mr D Perdon