Tracey-Bower and Secretary, Department of Family and Community Services and Anor

[2004] AATA 1318

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1318

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/420

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHEN TRACEY-BOWER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

First Respondent

And           BRENDA WILLIAMS

Second Respondent

DECISION

Tribunal Senior Member McCabe

Date10 December 2004

PlaceBrisbane  

Decision The Tribunal affirms the decision under review.

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

Senior Member McCabe

CATCHWORDS

SOCIAL SECURITY LAW – pensions and benefits – Family Tax Benefit – whether child in applicant’s care for greater than 10% of the relevant period – decision affirmed

A New Tax System (Family Assistance) Act 1999

REASONS FOR DECISION

10 December 2004 Senior Member McCabe    

introduction

1.      Mr Steven Tracey-Bower is the applicant in these proceedings. The Secretary is the first respondent, and his former wife, Ms Brenda Williams, is the second respondent. There were two children of the marriage between Mr Tracey-Bower and Ms Williams: Andrew and Shaun. Mr Tracey-Bower has a new partner, Ms Sharon Racine. The Tribunal has been asked to determine the amount of time the applicant had the children of the marriage in his care so his entitlement (if any) to the family tax benefit can be determined.

2. The Secretary originally decided Ms Williams cared for her children 89% of the time during 2002-2003. She had been paid 100% of the family tax benefit, so the Secretary raised a debt and sought to recover $1581.86 from her. The Social Security Appeals Tribunal (the SSAT) took a different view after hearing the evidence and concluded the applicant did not have care of the children for at least 10% of the time during the relevant period. Since a person must have care of at least “1 FTB child” for at least 10% of the time in order to be eligible for the payment, Mr Tracey-Bower could not succeed in his claim: s 25, A New Tax System (Family Assistance) Act 1999. 

3.      It appears that Centrelink has in the meantime paid Mr Tracey-Bower an amount calculated on the basis that he had care of the children for at least 11% of the time. The Secretary wishes to recover that money in light of the SSAT decision. Mr Tracey-Bower has asked the Tribunal to review the case. Ms Williams says the SSAT’s assessment was correct.

4.      Disputes of this nature are always fraught with tension. The applicant and his former wife have a difficult relationship these days. The facts are unclear. People have difficulty remembering dates: we are only concerned with the arrangements that were in place between 1 July 2002 and 30 June 2003.  The witnesses sometimes take sides rather than give a disinterested account. There is little in the way of documentary evidence to corroborate the claims of either party. The children themselves are too young to provide useful evidence. Questions of credit become important.

5.      I am not satisfied that the applicant had custody of either of his children for at least 10% of the time during the relevant period.  I will explain my reasons below.

the material before the tribunal

6. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975.  A number of statements were also filed, including:

·A statement of Sharon Racine (dated 12 July 2004);

·A form entitled “Change to assessment”, completed by the applicant (undated);

·A document created by the second respondent entitled “This is my rebuttal to Stevens’s [sic] application to review” (undated). 

·Two statements of the second respondent’s nephews: Sam Bienke (dated 21 September 2004) and Liam Williams (dated 21 September 2004).

7.      The applicant, Ms Williams and Ms Racine gave evidence. The Tribunal also heard telephone evidence from Mrs Lesley Williams, Mr Liam Williams, Ms Yvette Kerr and Ms Melissa Humphries.

8.      The applicant represented himself. He was assisted by Ms Racine, who asked most of the questions of the witnesses. Ms Williams represented herself. Mr Howard represented the Secretary.

the factual background

9.      Ms Williams and the applicant married in 1993 and separated in January 2000. They were divorced last year. There are two children of the marriage. Shaun is five years old, and Andrew is eight. There was no formal custody arrangement in place during the relevant period. The children lived with their mother most of the time, but there was a loose understanding that they would spend every second weekend with their father. The applicant and his former wife have negotiated a more formal arrangement, but that did not commence until July 2003 – after the period in question.

10.     Mr Tracey-Bower is a long distance truck driver. He is away from home for days at a time. He commenced a relationship with Ms Racine in April 2002. They were not living together at the time, although Ms Racine would stay with him when he was in Brisbane. Ms Racine said she would often collect the children after school on Fridays when Mr Tracey-Bower had an access weekend. She would look after the children in his home until he returned. She said he would not necessarily come home until the Saturday on some weekends because of his work. She estimated the applicant was present with her and the children between 40-60% of the time. Ms Racine has a daughter from another relationship. She said her daughter and the two boys enjoyed the company of each other.

11.     The applicant said his work schedule was demanding but he only missed two or three of his scheduled weekend visits during the relevant period. On one of those weekends he was away overseas.  Time sheets from his employer were included in the T-documents but an analysis of their contents is inconclusive.  Ms Williams argued they preclude a finding that the applicant was available on at least 22 weekends. The SSAT commented that the records were hard to interpret, and I agree. His employer explained in a note (T1, p15) that the applicant requested that he be home every weekend so that he could see his children but adds:

“At times, this isn’t always possible, due to the nature of the position that he has with us as a long distance driver.”.

12.     Ms Williams said the applicant missed a number of weekends during the relevant period. She said the applicant often failed to show up to collect the children as agreed, which caused her considerable inconvenience. She was reluctant to estimate the number of weekends he missed.

13.     Mrs Lesley Williams is Ms Williams’s mother. She gave evidence that the applicant often missed weekends. Mr Liam Williams is a relative who resided with Ms Williams for several months during the period in question. He said he rarely saw the applicant during his time with Ms Williams, and did not recall the applicant taking the children on a regular basis. Ms Humphries is a family friend. She visited Ms Williams at home regularly. She agreed the applicant did not have regular custody of the children.  Yvette Kerr gave similar evidence, but I note she relocated to Hervey Bay and had limited access to Ms Williams and her home. Her evidence is therefore of limited weight. Sam Bienke, another relative who lived with Ms Williams for a time, also gave evidence that he rarely saw the children go to their father. Mr Bienke could not be contacted to give evidence, so his statement necessarily carries less weight.

14.     Ms Racine supports the applicant’s account. There is certainly evidence that the children stayed with their father on some occasions: for example, a statement from Allen Grieve, found at T1, p22.

15.     I think the weight of the evidence favours Ms Williams. I note the applicant only claims to have his children for 11% of the time. If he missed a relatively small number of weekends, he would fall below the 10% threshold. I am satisfied he missed more than three weekends during the relevant period. I note in particular the evidence of his employer which I have already recounted which confirms he was not home on every second week as requested. Although the witnesses called by Ms Williams were predictably partisan, I am satisfied the evidence of Mr Williams in particular was reliable.  I am not satisfied the applicant had care of his children for at least 10% of the time during the relevant period.

conclusion

16.     The decision under review is therefore affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         .....................................................................................
  Associate:  Thomas Ritchie

Date of Hearing: 4 October 2004
Date of Decision: 10 December 2004
The applicant represented himself.
The first respondent was represented by Mr Howard, a departmental advocate. The second respondent represented herself.