Starlight and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

[2010] AATA 772

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 772

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/2354

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Lisa Starlight

Applicant

And Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

Respondent

And Michael Starlight

Third Party

DECISION

Tribunal Mr G L McDonald, Deputy President

Date11 October 2010

PlaceMelbourne

Decision The decision under review is affirmed.

......(sgd G L McDonald).......

Deputy President

CATCHWORDS

Social Security - Family Tax Benefit - Calculation of rate for each carer of FTB child - Evidence required to substantiate claim for change in percentage rate – decision affirmed.

Administrative Appeals Tribunal Act 1975 (Cth), s 37

A New Tax System (Family Assistance) Act 1999, ss 21, 22 and 59

REASONS FOR DECISION

11 October 2010 Mr G L McDonald, Deputy President

1.      This review concerns the percentage rate of family tax benefit (FTB) which should be allocated between the mother and father of their daughter, Rose Starlight.  Rose, now aged 14 years, is the eldest of three children.  The parents of Rose, and the other two infant children, share her care, but they do not live together.

2. At the hearing, the applicant presented her matter by telephone. Her husband also spoke by telephone to the Tribunal to present his view. Mr B Wee represented the respondent, and he had already filed with the Tribunal the T Documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) as well as the Respondent’s Statement of Facts and Contentions.

3. Sections 21 and 22 of A New Tax System (Family Assistance) Act 1999 (the Act) respectively establish the criteria for eligibility for the payment of a FTB and the criteria for eligibility as to who is an “FTB child”.  Section 59 of the Act permits the FTB to be split between two adults who share the care of an FTB child, but who do not live together.  In circumstances when there is a disagreement about the degree of shared care, s 59(1) of the Act provides:

An individual has a shared care percentage under this section for an FTB child of the individual is:

(a) the Secretary has determined, under subsection 22(6A), a percentage of the period mentioned in that subsection during which the child was, or will be, in the care of the individual; and

(b) that percentage is at least 35% and not more than 65%.

4.      On 23 April 2009 the Federal Magistrates’ Court decided that care for the three children would be shared between the parents with the father having them for half of the school term holidays (that is, three weeks a year), two weeks in the summer school holidays and from 4 pm Friday to 9 am Tuesday every second weekend[1].  This equates to 125 days out of 365 days in a year and is equivalent to the father having 38% care and the mother 62% care.  It was also a term of the Court order that,

[i]n the event that the child ROSE MAREE STARLIGHT born 31 July 1996 wishes to engage in school related or other extra-curricular activities that are independent of the other children, the husband facilitate Rose’s return to the wife at the commencement of school on the Monday or excuse her from attendance with the husband on the Wednesday AND the wishes of Rose with respect to the spending time with either parent be respected by both parents.[2]

[1] T Documents, T 6, p 154.

[2] Ibid p 155.

Following that Court order, from 29 April 2009 the respondent decided that as the mother had 62% of the care of Rose that she should receive 62% of the FTB.

5.      On 29 May 2009, her mother claimed a higher rate of care for Rose on the basis that she cared for Rose on 11 nights per fortnight and that Rose stayed three nights a fortnight with her father.  That is, including the same time in term and in summer holidays, but excluding celebration days, is 95 days a year, which is the equivalent of the father having 27% care and the mother 73% of care.  The application, according to the mother, arose as the result of Rose opting to spend three nights, rather than five, with the father.[3]  The father opposes the alteration of the rate.

[3] T Documents, T 8, p 177.

6.      The initial decision of the respondent, dated 29 July 2009, was to decline the application claiming the increased care of Rose.[4]  In the letter sent to the applicant, dated 8 September 2009, after the internal review of the decision, it was stated by the Authorised Review Officer that the initial decision was correct.[5]  The document setting out the reasoning of the Authorised Review Officer seems to accept the applicant’s claim of increased care for Rose to 73% care, but it noted that the father maintained a claim for 38%.[6]  The Authorised Review Officer decided that 11% was in dispute[7].  This is the difference between the initial decision and the mother’s new claim that is, between the original decision of 62% and her claim for 73%.  If the mother’s claim was accepted, this would reduce the father’s percentage care to 27%.  However, the Authorised Review Officer decided that,

[g]iven the lack of agreement in regards to Rose’s care from 29 May 2009 the disputed care- 11% will be withheld from each carer.  Your shared care from 29 May 2009 will continue to be assessed 62% care.[8]

[4] T Documents, T 9, p 178.  This was because the form was not lodged with the father’s signature on it and she had not presented evidence of the change in care.

[5] T Documents, T 10, p 179.

[6] T Documents, T 11, pp 181.

[7] Ibid p 182.

[8] Ibid p 183.

Her decision was based on the “absence of evidence/confirmation of your care considerations”[9].  She then stated that, the “disputed care is to be equally divided and withheld from each carer’s shared care assessment”[10].  This would suggest that five and a half percent would be withheld from both parents, which is inconsistent with her decision which in effect left the mother’s rate the same as in the initial decision.  The Authorised Review Officer decided that each carer would lose half of the disputed 11% which was determined to return the mother’s percentage care for Rose to 62% with the incidental result that the father’s share would be reduced from 38% to 33% (rounded down).  The stated percentage of care reduction to the mother is clearly incorrect – the figure should be 67% (rounded down) not 62%.

[9] Ibid, p 182.

[10] Id.

7.      The applicant appealed to the Social Security Appeals Tribunal (SSAT).  While the reasons make it evident that the SSAT did not agree that a change in Rose’s circumstances had occurred from the time the Court order had been made, in what can only be described as a curious decision, the SSAT set the decision under review aside and substituted the same decision describing the appeal as being “successful”[11].  Whereas, from the applicant’s perspective, this was not so.  The basis for the decision was the same as that relied on by the respondent in reaching its initial decision, namely, that there was no substantiated evidence to support the change in care which the mother submitted had occurred (that is, that Rose only stayed with her father three, rather than five, days for 40 weeks of the year)[12]. 

[11] T Documents, T 2 p 15.

[12] Ibid p 20.

8.      This Tribunal has set out the above sequence of events appreciating that whatever decisions were made before have no bearing as it must determine this review on the merits as it finds them.  However, a consideration of what has occurred before is necessarily a part of undertaking any merits review.  A lack of clarity in past proceedings sometimes explains why applications to this Tribunal are made.

9.      It is evident to the Tribunal that the mother and the father do not enjoy a harmonious relationship, which would be conducive to determining the merits of this case.  The mother regards it as a matter of principle that the respondent correctly determines the correct percentage of shared care.  The father regards the mother’s application as an attempt by her to deprive him of a payment, which he needs to maintain his children when they visit him as he is a disability support pensioner.

10.     The father told the Tribunal that following the decision of the Authorised Review Officer, the amount he received by way of FBT in respect of Rose declined.  It would have under the Departmental policy ceased altogether, because the percentage care he shared had dropped to below 35%, the minimum amount of care which the policy provides should be in place before the benefit can be shared.  The father was unsure of whether this sum had been repaid to him following the SSAT decision.  Mr Wee undertook, during the hearing, to have enquiries made and has since notified the Tribunal that the sum had been repaid to the father.  

11.     The applicant told the Tribunal that Rose only spent three days a fortnight with her father.  She said that Rose decided to spend time with her mother without the presence of her two younger siblings on Monday evenings of every second week when she could also devote more time to undertaking her homework.  The father maintained that prior to the commencement of the second school term in 2010, the terms of the Court order had been followed with Rose occasionally, but irregularly, not spending Monday nights with him.  However, the father said that this had changed after the commencement of the second school term in 2010, at which time Rose and another of the daughters had been enrolled, by their mother, to attend ballet classes on Monday nights.  Instead of spending Monday nights with him as per the Court order, he claimed that they spent Wednesday nights with him.  The mother said that Rose did not spend Wednesday nights with the father.

12.     Initially, the mother maintained that she had diarised or marked on a calendar the nights that the children spent with their father.  The Tribunal adjourned the hearing to allow her time to find the diary or calendar for 2009.  While she claimed to have a 2008 diary, she was unable to locate a diary or calendar for 2009 and stated that the entries on this topic for 2010 were unreliable.  The additional, and only independent, evidence that the mother produced was a statutory declaration, in proper form, made 6 May 2010, attached to her application to the Tribunal from a Ms Alyson Skinner.  On the day of the hearing, the mother advised that Ms Skinner was holidaying abroad and could not be contacted.  The statutory declaration relevantly states that: Rose is known to Ms Skinner who drops her school age child at the bus stop which is used by Rose; and that she sees Rose there every school morning except for alternate Mondays.

13.     The content of the statutory declaration supports the proposition that Rose, not being at the school bus stop every second Monday, is, therefore, not staying every second Monday with her mother.  While the declaration was arranged by the mother to support her case, its contents in fact support the father’s contention that Rose stays with him on Monday nights – or, at least, she did until the start of the 2010 second term of school.  It does not support the mother’s contention that Rose had abandoned spending Monday nights with her father in the period from May 2009.  

14.     The Tribunal notes that the 2010 second term schooling commences on 12 April and that no mention is made of any change to what the deponent observed in the two fortnight periods before the declaration was made.  The Tribunal is prepared to accept that a period of two fortnights is too short a timeframe for the deponent to realise that a change in arrangements had been made.  That being the case, there is no independent evidence to support the mother’s submission that Rose does not attend her father’s house on a Wednesday night.  The Tribunal is left with opposing evidence from the mother and the father on this aspect.

15.     The mother declined to produce any independent evidence on the basis that the original decision of the respondent based on the terms of the Court order, was made at the husband’s behest.  The Tribunal assumes that the Court order must have changed some previously existing care arrangements between the parents, and that the change acted to the mother’s detriment.  She told the Tribunal that she wanted the respondent to reach a decision about care that reflected the facts.  The mother has been advised to obtain independent evidence of the changed arrangements, but other than the statutory declaration, which did not assist her case, she has been unable to do so.

16.     The departmental policy provides that, in the absence of agreement between carers on the care percentage, each carer should be asked to provide evidence to support his or her claim.[13]  This policy is not binding on the Tribunal.  It is open to the Tribunal to consider the credibility of the evidence given to it by mother and father.  However, the Tribunal is not satisfied to reach a decision on the basis of credibility without having the benefit of seeing, as well as hearing, the mother and father give evidence.  All that the Tribunal can safely be satisfied about is that the evidence supports the father’s claim that Rose spent Monday nights with him until the commencement of the second term of the 2010 school year, and there is insufficient evidence to demonstrate that, even if that arrangement subsequently changed with Wednesday nights being substituted for Monday nights, Rose did not spend the Wednesday nights with the father.  That being the case, the status quo according to the Court order, and the initial decision of the respondent, should be maintained.

[13] Family Assistance Guide 1999, para 2.1.1.45.

17.     For the reasons given, being different from the reasons of the SSAT, the decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         ........(sgd D De Andrade)...............
  D De Andrade, Personal Assistant

Date of Hearing  27 September 2010
Date of Decision  11 October 2010
For the Applicant  self represented
Solicitor for the Respondent     Mr B Wee, DLA Phillips Fox
For the Third Party  self represented