Smith and Secretary, Department of Families and Community Services and Indigenous Affairs and Zenoni (Party Joined)
[2007] AATA 1168
•23 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1168
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/249
GENERAL ADMINISTRATIVE DIVISION ) Re KAYLEEN SMITH Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES AND COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
DANIELLA ZENONI
Party Joined
DECISION
Tribunal Mr SC Fisher, Member
Date 23 March 2007
Place Brisbane
Decision (1) The Tribunal orders that Ms Daniella Zenoni be joined as a Third Party to this appeal
(2) The Tribunal affirms the decision under review.
.....................[Sgd].........................
Member
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – question of how much time subject child was in applicant’s care – whether time in applicant’s care exceeded 10% during the claim period –Family Assistance Guide considered – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 43
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 25, 59Secretary, Department of Social Security v Murphy (1998) 52 ALD 268
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Secretary, Department of Social Security v Payne (1999) 54 ALD 357
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Wade v Secretary, Department of Family and Community Services (2004) 139 FCR 285Re Nowicz and Secretary, Department of Family and Community Services (2001) 65 ALD 314
REASONS FOR DECISION
23 March 2007 Mr SC Fisher, Member Introduction
1. Ms Kayleen Smith seeks review of a decision made by Centrelink on 16 September 2005 to reject her claim for family tax benefit (FTB) for her daughter Stephanie for the period 1 July 2003 – 26 April 2005. The Social Security Appeals Tribunal affirmed that decision on 17 February 2006.
2. Ms Smith has three children, but in this appeal only one of her children's shared care is under review, and that is for Stephanie. Stephanie (aged 17) is the daughter of Ms Smith and Mr Robert Zenoni.
Background and Decisional History
3. During the period 1 July 2003 – 26 April 2005 (the "claim period") Stephanie’s parents were not partnered.
4. Mr Zenoni has a daughter Ms Daniella Zenoni. Daniella is the half-sister of Stephanie. On 5 September 2002, Centrelink granted Ms Zenoni FTB in respect of Stephanie with effect from 28 February 2002 on the basis that she had 100% of the care of Stephanie. On 10 February 2004, Ms Zenoni contacted Centrelink and advised Centrelink that she was receiving payments of $30 per week from her father to assist with the care of Stephanie.
5. On 26 April 2005, Ms Smith lodged a FTB claim for her daughter Stephanie, claiming that Stephanie had come into her care on and from 24 April 2005 from Mr Zenoni.
6. On 27 April 2005, Ms Zenoni contacted Centrelink to report that she no longer had care of Stephanie from that day because Stephanie had gone to live with her mother. Centrelink followed this up with a letter to Ms Smith on 3 May 2005 confirming that Ms Smith was in receipt of payments in respect of Stephanie.
7. On 2 September 2005, Ms Smith lodged past period FTB claims for Stephanie for the 2003/2004 and 2004/2005 financial years. Ms Smith said that in support of her claim, she had had the care of Stephanie for 14% of the time during those two financial years.
8. The 14% claim triggered the above 10% claim threshold, and so Centrelink sent a letter to Ms Zenoni advising her of this and invited her to provide details of any dispute about the percentage of care. After some correspondence, Ms Zenoni contacted Centrelink and advised that she had 100% care of Stephanie since 1 July 2003. This led to a decision on 16 September 2005 that Ms Smith's claim for FTB would be rejected on the basis that she was not able to verify that she had had 14% of the care of Stephanie during the relevant claim period.
9. On 22 September 2005, the original decision maker affirmed the decision to reject Ms Smith's FTB claim.
10. A review by the Authorised Review Officer on 12 October 2005 affirmed the earlier decision.
11. Ms Smith's appeal to the Social Security Appeals Tribunal was unsuccessful, and that Tribunal affirmed Centrelink's decision on 17 February 2006.
12. Ms Smith appealed to this Tribunal on 11 April 2006.
The Issue
13. The issue before the Tribunal concerns the percentage of care Ms Smith had for her daughter Stephanie during the period 1 July 2003 – 26 April 2005.
The Role of the Tribunal
14. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (1998) 52 ALD 268. The Tribunal is guided by the norm that it should reach “the correct and preferable decision on the basis of the material before it”: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Secretary, Department of Social Security v Payne (1999) 54 ALD 357. “The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent”: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
The Material Before the Tribunal
15. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T73).
Exhibit 2Computer screen image of changes of address for Ms Kayleen Smith.
Exhibit 3Witness Statement of Robert Zenoni (undated).
16. Ms Smith was self-represented.
17. The Respondent lodged documents T1 – T73 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as “Exhibit 1”. Exhibits 2 and 3 were lodged on behalf of the Respondent.
18. The Respondent was represented by Mr Johnson Lo, Solicitor, Clayton Utz. The Respondent provided a Statement of Facts and Contentions to the Tribunal.
19. The Tribunal carefully considered all of the documentary and oral evidence before it.
The Legislation
20. The relevant legislation is contained in the A New Tax System (Family Assistance) Act 1999 (Commonwealth) (abbreviated to “Family Assistance Act 1999”). Section 21(1) of the Family Assistance Act 1999 states that a person is eligible for family tax benefit if that person has at least 1 FTB child and meets other qualifying criteria, including being an Australian resident. Ultimately, the threshold eligibility criteria were not at issue in this case.
21. Section 22 of the Family Assistance Act 1999 states exhaustively and comprehensively when one person is the FTB child of another person. One of those provisions is section 22(7), which reads:
“22(7) 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, an FTB child of more than one other individual under subsection (2), (3), (4), (5) or (6); 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) subsection 25(1), (1A) or (1B) does not require that the child be taken not to be an FTB child of that individual for any part of that period;
the child is to be 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.
22. If, in the case of a child in respect of whom FTB is payable, the pattern of care is less than 10% of that period of time in which the child is with their carer to whom FTB is payable, then section 25(1) discounts that pattern of care beneath a 10% threshold. The 10% threshold rule is designed to avoid very minor FTB disputes between competing claimants.
23. In the case of separated parents of a child for whom FTB is payable, section 59(1) empowers Centrelink (and on appeal, this Tribunal) to make a determination of the percentage that is to be the claimant’s percentage of FTB for the child.
Family Assistance Guide
24. Centrelink has formulated a Family Assistance Guide to guide decision-makers about how to reach the correct or preferable decision when it comes to FTB claims. It is common for this Tribunal to consider to that Guide (and this practice has judicial endorsement by virtue of Wade v Secretary, Department of Family and Community Services (2004) 139 FCR 285 per Kiefel J). This practice has been followed in this appeal. The Family Assistance Guide cannot of course trump or subvert or overturn the text of the legislation. The Family Assistance Guide is just that, a guide for decision-makers.
25. Paragraph 2.1.1.45 of the Family Assistance Guide is captioned “Shared Care & Establishing a Pattern of Care”. It begins:
“If the care percentage or care arrangements are not agreed on between the carers, it is necessary to establish a pattern of care … to make a shared care determination for FTB. A pattern of care is established by using either the number of nights in care … or hours of care for each FTB child. The percentage of care for each FTB child is then calculated and applied to the standard rate … of FTB …”
26. Section 22(7) of the Family Assistance Act 1999 does not set a time frame over which a “pattern of care” is to be established. Implicitly, this has to be by reference to the time period over which the FTB care of the child is at issue. The notion of a pattern of care applies if the parties have not agreed on the care percentage of care arrangements. Paragraph 2.1.1.45 of the Guide uses 2 key integers to calculate a pattern of care. This provision speaks of “A pattern of care is established by using either the number of nights in care … or hours of care for each FTB child." This pattern of care can only be determined by looking at the evidence available to the Tribunal. Whether a shared care determination is made by using or making a “nights in care” assessment or an “actual hours in care” approach is to be determined on a case-by-case basis. Again, it is the evidence available to the Tribunal which will become decisive.
Evidence of the Applicant
27. Ms Smith said that she had more than 14% care of Stephanie throughout what the Tribunal has termed the "claim period".
28. Ms Smith referred to her residential movements during the claim period. Ms Smith admitted that the events she had experienced (including divorce and her long-standing mental health problems) meant that her mind was blank at times because of those events.
29. Ms Smith claimed that she sent the bus tickets to Robert Zenoni every fortnight so that Stephanie could make the bus trip to see her.
30. In cross-examination, Ms Smith agreed that she did not have any care of her children between July 2003 and July 2004.
31. In cross-examination, Ms Smith disagreed with the changes of address entries in the Centrelink computer system (Exhibit 2). Ms Smith was not able to tell the Tribunal clearly about, for example, when she moved from Nundah to Zillmere.
Other Evidence concerning the Applicant
32. The Tribunal noted a Statutory Declaration declared 23 September 2005 where Ms Smith stated that she had had her daughter Stephanie "more than 14% of the time and [has] had [Stephanie] every second weekend and during the week and half the holiday".
Assessment of the Evidence of the Applicant
33. Even allowing for the stress of a hearing in the Tribunal to somebody in the position of Ms Smith, it was quite clear to the Tribunal that Ms Smith was very confused about dates and times and places and occasions when Stephanie was with her. Unfortunately, the Tribunal found Ms Smith an unreliable historian. Ms Smith was quite embittered towards her former partner Mr Zenoni and his daughter Ms Daniella Zenoni, and the quality of care that she felt they provided to Stephanie. This may have coloured her recollection of events.
34. At times, Ms Smith was non-responsive to questions put to her in cross-examination.
35. The 17 February 2006 decision of the Social Security Appeals Tribunal narrated at length evidence of Ms Smith given before that Tribunal. This Tribunal placed some weight on this body of evidence given by Ms Smith because she appeared confused and stressed during the hearing before this Tribunal.
Evidence of Ms Stephanie Allen
36. Ms Smith's daughter, Ms Stephanie Allen, gave evidence to the Tribunal. Ms Allen said that she visited her mother every fortnight and for half of the school holidays.
37. Stephanie was unclear concerning some of the dates she had lived with people involved in her life, such as her mother, her father and Ms Daniella Zenoni. Stephanie described some dates where she lived with her father for a period of three weeks sometime in 2002 and between 2004 – 2005 and with her mother for a 3 – 4 month period and for 12 months while she was in either Year 8 or Year 9 at school. Stephanie also described living with her boyfriend for about one month between April – May 2005.
38. Stephanie described how she visited her mother in the company of her sister every second weekend. Stephanie described how she had had some Christmas holiday work during the claim period, but could not recall exactly how long she worked or what was the frequency of her work. Stephanie was unclear concerning the dates she had lived with different people as her carer, although she was able to narrate key stages such as foster care and occasions (in broad terms) associated with time she had lived with Daniella Zenoni and her father.
39. Stephanie said that sometimes instead of catching a bus to visit her mother, she would be driven. Stephanie's evidence on this aspect was vague and not very clear to the Tribunal.
Evidence of Mr Glenn Edwards
40. Mr Glenn Edwards, a friend of Ms Smith, gave evidence on her behalf.
41. Mr Edwards described the circumstances under which he first met Ms Smith, which was when they were both in hospital.
42. Mr Edwards said that he saw the children of Ms Smith "quite a few times” over a period of about eight months. He estimated that 80% of this was on weekends.
43. The Tribunal did not find evidence of Mr Edwards very helpful or very detailed. Accordingly, Mr Edwards' evidence was not of much assistance to the Tribunal.
Evidence for the Respondent
44. Mr Robert Zenoni and Ms Daniella Zenoni gave evidence to the Tribunal on behalf of the Respondent.
Evidence of Ms Daniella Zenoni
45. Ms Daniella Zenoni gave evidence to the Tribunal on behalf of the Respondent. Ms Zenoni is the daughter of Mr Robert Zenoni.
46. Ms Zenoni said that she had the care of Stephanie from August 2002 until April 2005.
47. During the care period, Ms Zenoni described that at times she lived in her own residence and at other times with her father.
48. Ms Zenoni described the contact between Stephanie and her mother as "very irregular" and that "months would go by without contact". Ms Zenoni was not able to recall specific dates of contact between Stephanie and her mother. She said that there were occasions when Stephanie had day contact with her mother which did not involve overnight contact. Ms Zenoni said that there were hardly any school holiday visits by Stephanie with her mother.
49. Ms Zenoni said that Stephanie had worked from November 2004 until January 2005. This involved some weekday work involving two hour shifts and then two four hour shifts on Saturday and Sunday.
50. In general, the Tribunal accepted the evidence of this witness.
Evidence of Mr Robert Zenoni
51. Mr Robert Zenoni as the father of Stephanie.
52. Mr Zenoni provided a witness statement (Exhibit 3). This became his evidence in chief.
53. Mr Zenoni said that in August 2002, Stephanie had moved in with his daughter Daniella. Between April -- September 2003, Daniella and Stephanie lived with him at Taigum and later in Bald Hills between September -- November 2003. In November 2003, Daniella and Stephanie moved to Brendale.
54. Mr Zenoni estimated that Stephanie visited her mother about once a month. Often, visits would be cut short because of phone calls from Stephanie to him or to Daniella saying that she wanted to come home because her mother was drinking.
55. Mr Zenoni admitted that occasionally, Ms Smith would post him a bus ticket for Stephanie to travel and visit her at either Blackbutt or Kingaroy.
56. Mr Zenoni estimated that between early 2005 to April 2005, Stephanie visited her mother about six times. Some of those visits were overnight visits but many were day visits only.
57. In general, the Tribunal was able to accept the evidence of this witness.
The Applicant's Case
58. The case for Ms Smith was quite simple. Ms Smith said that on the available evidence she had more than 14 % care of Stephanie. Ms Smith complained about the references to her health, and of the collaboration between Robert Zenoni and Daniella Zenoni.
59. Ms Smith complained about the unfair treatment of her by Centrelink.
The Respondent's Case
60. The Respondent argued that the bus transport records of the Applicant were inconsistent.
61. The Respondent argued that the pattern of bus travel that it was able to discern meant that Stephanie did not visit her mother as frequently as Ms Smith said. A document in the nature of an aide memoir detailing bus travel and an analysis of time, dates and trips was provided to the Tribunal. Although this document did not formally become part of the evidence, the Tribunal did have some regard to it.
62. The Respondent argued that the evidence by Ms Smith and Stephanie did not support the 14% care claim on a pattern of care basis.
63. The Respondent relied on its Statement of Facts and Contentions, which the Tribunal considered also.
Discussion of the Evidence
64. Having regard to the evidence of the witnesses before it, and also the documentary evidence (predominantly Exhibit 1), it is clear that the parties were polarised in terms of the presentation of their cases and also the evidence adduced.
65. The Tribunal found Ms Smith and Stephanie to be unreliable historians. Their recollection of key dates and events was not very clear. The Tribunal did not gain the impression that these witnesses were not telling the truth, as much as their recollection was imperfect (which is understandable, given the passage of time), and so the evidence was vague, imprecise and incomplete on key aspects concerning the pattern of care issue. The Tribunal did not gain a great deal of assistance from their evidence.
66. By contrast, the Tribunal found Mr Robert Zenoni and Ms Daniella Zenoni to be more reliable witnesses and historians.
67. On balance, the Tribunal was not able to accept the evidence of the Applicant and on her behalf in preference to then adduced by the Respondent.
68. The evidence before the Tribunal concerning the pattern of care of Stephanie by the Applicant is less than satisfactory. The Tribunal, however, is inclined to find that at most Stephanie stayed with her mother overnight on average approximately 1 day per month during the claim period (approximately 12 times each year for the claim period). There were also times when Stephanie had day contact with her mother, and the Tribunal finds that this took place once a month alternatively to overnight contact (approximately 12 times per year). This makes an approximate total of 24 contacts per calendar year, mixed between overnight and day contact This means that the pattern of care is less than the 10% minimum threshold.
Reasons of the Tribunal
69. The critical issue in this appeal is the incidence of FTB eligibility, having regard to the pattern of care element in section 22(7) of the Family Assistance Act 1999. The relevant evidence has been identified and summarised above together with findings concerning the pattern of care.
70. In Wade v Secretary, Department of Family and Community Services (2004) 139 FCR 285, Kiefel J said:
“[30] There is nothing in the [A New Tax System (Family Assistance) Act 1999] which requires the percentage to be determined by reference to whole days that a person has the care of the child. The references in ss 22 and 25 of the [A New Tax System (Family Assistance) Act 1999] to days of care is for the purposes of these provisions. It does not follow that the reference to days of care can be imported into what is necessary to calculate the actual percentage of care. It is however clear from the Act that its object is to provide a benefit to the person having the care of the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided by them.
[31] The ‘pattern of care’ referred to in the Guidelines has two aspects, it seems to me. In the first place it reflects the care arrangements agreed between the parties or involves a finding which has regard to the actual care arrangements for the child. It is said that ‘as much as possible’ the pattern of care should be the pattern agreed. That was the course taken here. The pattern of care is also used as the basis for the calculation of percentage in par 2.1.1.50. Although they are expressed as the respective party’s ‘days of care´ under par 2.1.1.45, which are to be divided by the number of days in the period in question, the Guidelines permit more than one method of assessing those days. Relevantly one is to calculate the number of hours of care and aggregate them.”
71. Because of the largely unsatisfactory state of the evidence adduced by the Applicant, it was not possible to use the aggregation of hours method to calculate the number of days that Stephanie stayed with her mother. Wade sanctions the approach of decision-makers dissecting the days of contact and overnight contact when applying section 22(7) of the Family Assistance Act 1999.
72. In Re Nowicz and Secretary, Department of Family and Community Services (2001) 65 ALD 314 at 318 this Tribunal said:
“[15] In that regard, s 22(7) equally does not limit the Secretary's discretion to only consider care arrangements as stipulated in a Court order or parenting plan. A commonsense approach necessarily means that the Secretary, and therefore this Tribunal, considers the relevant documentation, and the evidence of both parties as to what has been happening in the past, and what is intended to happen in the future, if such differs from the documentary evidence. Based upon such consideration, the Secretary is then in a position to determine what pattern of care has existed, or will exist in relation to the relevant FTB child.”
73. Following the commonsense approach enjoined by Nowicz and the interpretation of section 22(7) laid down in Wade, it appears to this Tribunal that the evidence in this case did not result in Ms Smith having a pattern of care of Stephanie that exceeded 10% (or 36.5 days per annum) during the relevant claim period. This means that Ms Smith has not met the 10% minimum threshold under section 25 of the Family Assistance Act 1999.
74. It is unclear from reviewing the registry file in this matter whether Ms Daniella Zenoni was ever formally joined as a Third Party. As necessary, this Tribunal orders that Ms Daniella Zenoni be and is joined as a Third Party. Ms Zenoni gave evidence on her behalf, and has had an opportunity to be heard in respect of her interests.
Disposition
75. The correct or preferable decision in this case is that the Tribunal decides that the pattern of care that Ms Smith had in respect of her daughter Stephanie is less than 10% (namely, on the evidence, no higher than 7%) under section 25 of the A New Tax System (Family Assistance) Act 1999. Consequently, Stephanie is not a FTB child of Ms Smith and Ms Smith is not eligible to be paid FTB in respect of Stephanie.
Decision
76. (1) The Tribunal orders that Ms Daniella Zenoni be joined as a Third Party to this appeal; and (2) The Tribunal affirms the decision under review.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. C. Fisher, Member
Signed …………………………………………………….
Legal Research OfficerDates of Hearing 8 August 2006
Date of Decision 23 March 2007
The Applicant was self represented
For the Respondent Mr Johnson Lo, Clayton Utz Lawyers
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