SNFY and Secretary, Department of Social Services (Social service second review)

[2016] AATA 12

SNFY and Secretary, Department of Social Services (Social service second review) [2016] AATA 12 (15 January 2016)

Division

GENERAL DIVISION

File Number(s)

2015/3604

2015/3963

Re

SNFY and FXPB

APPLICANTS

And

Secretary, Department of Social Services

RESPONDENT

And

YFXM and LPHQ

OTHER PARTIES

DECISION

Tribunal	Senior Member McCabe
Date	15 January 2016
Place	Brisbane

The decisions under review are affirmed.

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

Senior Member McCabe

Catchwords

SOCIAL SERVICES – entitlements and benefits – family tax benefit – parenting payment – whether applicant had more than 35% of care during care period – applicant unable to demonstrate more than 35% of care – decisions under review affirmed

Legislation

A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 25, 35B

Social Security Act 1991 (Cth) ss 5(18), 500D(2)

REASONS FOR DECISION

Senior Member McCabe

15 January 2016

1. This case is about the applicant’s entitlement to receive family tax benefit (FTB) in the period 6 October 2014 through 12 June 2015, and his entitlement to receive the parenting payment-single (PPS) when he applied for it in January 2015. The answers to both questions turn on the extent to which the applicant had care of his daughter. The first tier review before this Tribunal concluded the applicant did not have as much care as he claimed. While the Tribunal acknowledged there was only limited evidence, it preferred the account of the applicant’s former partner (the child’s mother).

2. The applicant has asked the Tribunal to revisit the ultimate question of care arrangements. The discussion has been complicated by the fact the other party to these proceedings has not been contactable. It seems she is now living in the United States. But the applicant has also had difficulty providing clear evidence of what the actual care arrangements were during the period in question. I am left trying to resolve a puzzle in which important pieces are missing.

   The FTB issue

3. A person may be eligible to receive FTB if they have at least one “FTB child”: s 21(1) of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Assistance Act). A child will be an FBT child of another person in the circumstances outlined in s 22 – but s 25 says a child will not be an FBT child of that individual if the individual's percentage of care for the child during a care period is less than 35%. The Secretary must be satisfied there was (or will be) a pattern of care by an individual over the period in question and make a determination as to the percentage of care of that individual: s 35B. The Secretary was at one point satisfied the pattern of care was as set out in court orders dated 4 June 2014. Those orders (reproduced in exhibit 6) contemplated the couple’s single child being:

   5. That the child live with each party at all times as may be agreed between the parties, but failing agreement, as follows:

   a)With the father:

   i.Commencing 20 May 2014, each week from 7:30pm Tuesday to the commencement of school Wednesday and from 7:30pm Saturday to 3:00pm Sunday;

   ii.During the 2014 September school holidays as follows:

   1.From 7:30pm Tuesday 23 September 2014 to 3:00pm Wednesday 24 September;

   2.From 7:30 Saturday 27 September 2014 to 3:00pm Monday 29 September 2014;

   3.From 7:30pm Saturday 4 October 2014 to 3:00pm Sunday 5 October 2014;

   iii.Commencing the week of 6 October 2014 (Term 4) as follows:

   1.From 7:30pm each Saturday to the commencement of school Monday;

   2.From 7:30pm each Wednesday to the commencement of school Thursday;

   iv.Commencing the week of 15 December 2014 each week from 7:30pm Saturday to 3:00pm Tuesday;

   b)With the mother at all other times.

   6.  That commencing 3 January 2015 the child live with each of the parties as may be agreed between the parties, but failing agreement, with each party in alternate weekly blocks with changeover to occur at 12:00pm each Saturday.

4. The other party contacted Centrelink and informed officers that the care arrangements provided for in the court orders were not being observed. She claimed she was caring for the child for longer periods each week than had been agreed when the orders were made.

5. The applicant insists he observed the terms of the court orders and that he provided at least the amount of care to his daughter contemplated in those orders. On that evidence, it follows – as the Tribunal accepted in the first tier review – the applicant had less than 35% care of his daughter between 20 May 2014 and 5 October 2014. It follows the decision should not be disturbed in that respect. I also note it is accepted the applicant did have 100% care of his daughter from 12 June 2015 when the child’s mother left the country. But what of the period between 6 October 2014 and 12 June 2015?

6. During the hearing the applicant accepted he did not have any independent recollection of the number of nights his daughter was in his care in October and November 2014. He said he did have an independent recollection of her being in his care approximately 43% of the time in December, and that he independently recollected having care at least 50% of the time in January-June 2015. I note he has reported he had care up to 70% of the time during this period: exhibit 1 at p 51. (He acknowledged he was away for a week early in the period and said his former partner did not make the child available as she was supposed to do in May 2015, but he recollected there was a pattern of care that conformed to the arrangement set out in the orders.)

7. The other party provided evidence at the first tier hearing and produced two affidavits. The first, dated 1 April 2015, was signed but it did not appear to be filed. The second was sworn and filed in Federal Circuit Court proceedings on 16 April 2015. The second affidavit, which is reproduced in exhibit 2.1 at pp 45ff, says the applicant did not have care of the child as he alleged between January and April 2015. If that affidavit is believed, the applicant had care of the child for less than 35% of the time during that period – and he has already acknowledged he had less care during May. The other party’s lawyer also prepared a further affidavit dated 1 June 2015 that was not signed or filed but which purports to summarise the amount of time the applicant spent with her daughter. That summary is broadly consistent with the other party’s other accounts and with telephone reports she made to Centrelink in January and March 2015: exhibit 2.1 pp 98 - 102. Whose account should I believe?

8. I must approach the evidence contained in the other party’s affidavit material with caution – especially the unsigned or unfiled affidavits – because the applicant has not had the opportunity to test that evidence through cross-examination. But it must also be said the applicant has not produced much in the way of evidence to support his assertions about the level of care he was providing. I accept he was not residing in Sydney at the time and he was not studying as the other party suggested after November 2014. But when pressed to provide evidence that suggested he was taking care of the child, he tended to refer to the court orders as if that disposed of the matter.

9. I think the outcome turns on the evidence provided by one of the witnesses the applicant provided in support of his claim. The witness in question provided a statement which is reproduced at p 70 in exhibit 1. He was and is a neighbour of the applicant. The statement was written on 23 February 2015. The applicant said the witness wrote the statement himself; when the witness was called during the hearing to give evidence, he seemed to indicate he had merely signed what was put in front of him. In any event, his oral evidence was telling. He said the applicant’s daughter now resided with the applicant, and had done since around August (or perhaps a little earlier in the middle of the year) 2015. Before that, she had been a regular visitor on weekends in the first half of 2015, and perhaps on occasions during the week. He agreed he was a shift worker so he was not able to offer a detailed account of the child’s presence, but he was able to identify the child was present full time from around the middle of the year. He confirmed that evidence as to the pattern of the applicant’s care when he was recalled during the hearing. That evidence is consistent with the other party’s account of the care arrangements.

10. The applicant’s other witness, another neighbour, provided a statement in similar terms to the one provided by the first witness. He was not available to give evidence. I note the applicant provided a further letter from his daughter’s general practitioner after the conclusion of the hearing. The letter was not provided to the Secretary who has not had the opportunity to test the evidence. The doctor expresses the opinion that the applicant was the carer of the child, but it is unclear on what evidence the doctor has based that opinion. I do not think the evidence is of any real assistance.

11. I am not persuaded the applicant provided the percentage of care provided for in the court orders between October 2014 and June 2015. The evidence of the other party, which is consistent with the oral evidence provided by an independent witness, suggests the applicant had less than 35% care during the period in question. It follows I do not accept the child was an FTB child of the applicant during that period. The decision under review with respect to FTB should therefore be affirmed.

    The parenting payment

12. An individual is eligible to receive parenting payment if he or she was the principal carer of the child: s 500D(2) of the Social Security Act 1991 (Cth). Section 5(18) confirms only one person may be regarded as the principal carer of a child.

13. My conclusions with respect to the applicant’s percentage of care are relevant to this discussion. It is difficult to see how the applicant could be regarded as the principal carer of the child when the claim was made in January 2015 if the child’s mother was actually undertaking most of the care prior June 2015. The applicant certainly did not provide any evidence that would provide a basis for reaching a different conclusion.

14. It follows the decision with respect to the applicant’s claim for parenting payment should also be affirmed.

15.     I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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

Associate

Dated 15 January 2016

Date of hearing	11 January 2016
Applicant	In person
Solicitor for the Respondent	Mr T Aviram, Clayton Utz