Von Kistowski and Secretary Department of Families, Housing, Community Services and Indigenous Affairs and Anor
[2008] AATA 568
•3 July 2008
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/6260
GENERAL ADMINISTRATIVE DIVISION ) Re TRICIA VON KISTOWSKI Applicant
And
SECRETARY DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
WARREN VON KISTOWSKI
Third Party
CORRIGENDUM
Tribunal Dr McDermott, RFD, Senior Member Date10 July 2008
PlaceBrisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The date ’30 June 2006’ where it appears at paragraph (d) on page 2; at paragraph 64; and at paragraph 66(d) should instead read ’30 June 2005’.
...............[Sgd]...............................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 568
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/6260
GENERAL ADMINISTRATIVE DIVISION ) Re TRICIA VON KISTOWSKI Applicant
And
SECRETARY DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
WARREN VON KISTOWSKI
Third Party
DECISION
Tribunal Dr McDermott, RFD, Senior Member Date3 July 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the Secretary with the direction to adjust the family tax benefit payments so that for the period of 1 July 2003 until 30 June 2005 family tax benefit be calculated on the basis that Mrs Tricia Von Kistowski’s percentages are as follows:
(a) From 1 July 2003 to 28 November 2004 – 50% for each of the five children;
(b) From 29 November 2004 to 21 April 2005 – 50% for each of the five children;
(c) From 22 April 2005 to 15 May 2005 – 0% for the child ‘A’, 50% for the child ‘P’, and 100% for the children ‘S’, ’K’ and ‘B’;
(d) From 16 May 2005 to 30 June 2006 – 0% for the child ‘A’ and the child ‘P’ and 100% for the children ‘S’, ‘K’ and ‘B’.
..............[Sgd]................................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – family tax benefit – determination of appropriate percentage of care for each parent – five family tax benefit children – application of discretion to determine percentage of care – determination of a pattern of care of the children – consideration of financial expenditure – decision under review set aside.
A New Tax System (Family Assistance) Act 1999 ss 21, 22, 59(1)
Re Daly and Secretary, Department of Family and Community Services [2004] AATA 1309
Nowicz and Secretary, Department of Family and Community Services [2001] 65 ALD 314.
Re Feeney and Secretary, Department of Family and Community Services [2005] AATA 818
Re Plowright and Department of Family and Community Services [2000] AATA 840
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AATA 159
REASONS FOR DECISION
3 July 2008 Dr McDermott, RFD, Senior Member INTRODUCTION
1. Mrs Tricia Von Kistowski (Mrs Von Kistowski) has sought the review of a decision which determined the appropriate percentages for the payment of family tax benefit payable to her and Mr Warren Von Kistowski (Mr Von Kistowski) respectively for the period of 1 July 2003 until 30 June 2005.
2. Mrs Von Kistowski contends that during that two-year period she has had the children in her care for a greater percentage then that determined by the Social Security Appeals Tribunal. I have to determine the appropriate percentage of family tax benefit that she is entitled to be paid for the period of 1 July 2003 until 30 June 2005.
DECISIONS
3. From 1 July 2003 until 30 June 2005, Mrs Von Kistowski was paid family tax benefit for her five children. She was paid 100% of the family tax benefit on the basis that the children were in her care for 100% of the time.
4. On 29 August 2005, Mr Von Kistowski lodged claims for family tax benefit for the 2003/2004 and 2004/2005 tax years[1].
[1]T8, Folio 52; T9, Folio 66.
5. On 1 November 2005 Centrelink made a decision concerning the appropriate percentages of family tax benefit that were payable to the applicant. Mrs Von Kistowski was dissatisfied with those determinations and sought a review of that decision.
6. On 2 May 2006 an authorised review officer made a new determination[2]. The review officer determined Mrs Von Kistowski’s percentages as follows:
“(a)In the tax year 1 July 2003 to 28 November 2004 – 10% for each of the five children;
(b)From 29 November 2004 to 21 April 2005 – 0% for A and 50% for S, P, K and B;
(c)From 22 April 2005 to 15 May 2005 – 0% for A, 50% for P, and 100% for S, K and B;
(d)From 16 May 2005 to 30 June 2005 – 0% for A and P and 100% for S, K and B”.
[2] T39, Folio 149.
7. On 4 October 2006[3] the Social Security Appeals Tribunal determined that:
“In the tax year 1 July 2003 to 30 June 2004 Mrs Von Kistowski provided 40% of the shared care of her five children, S, A, P, K and B; and
In the tax year 1 July 2004 to 30 June 2005, Mrs Von Kistowski provided care as follows:
i. From 1 July 2004 to 28 November 2004 – 40% of all five children;
ii. From 29 November 2004 to 21 April 2005 – 0% for A and 100% for S, P, K and B;
iii. From 22 April 2005 to 30 June 2005 – 0% for A and P and 100% for S, K and B”.
[3] T2; Folio 4.
8. As Mr Von Kistowski has an interest in these proceedings, he has been added as a party to this application by Mrs Von Kistowski.
9. I do not mention the given names of the children in these reasons and in the decision of the Tribunal. Instead, I will refer to each child by the first letter of each given name.
BACKGROUND
10. There is evidence before me[4], which I accept, that Mr Von Kistowski and Mrs Von Kistowski are the parents of the following five children:
(a)the child ‘S’;
(b)the child ‘A’;
(c)the child ‘P’;
(d)the child ‘K’; and
(e)the child ‘B’.
[4] T9.
11. Mr Von Kistowski and Mrs Von Kistowski married when they were both young[5]. They separated at some time prior to 2003. At all relevant times Mr Von Kistowski was residing at a property in Peck Road, Kalbar (“the Peck Road property”) whereas Mrs Von Kistowski lived at different addresses. I also mention that there was also no court order which governed which party had the care of the children during the 2003/2004 and 2004/2005 tax years.
[5] T2, Folio 9.
12. Mr Von Kistowski and Mrs Von Kistowski both gave evidence before me. Mrs Von Kistowski stated that she had separated from her husband in 1999. It is clear from the evidence before me that ever since that separation they have had acrimonious relations with each other.
13. Mrs Von Kistowski had advised the authorised review officer that she was staying at the Peck Road property for 3 or 4 nights per week from 1 July 2003 and at other times she stayed with her mother, friends or her boyfriend Mr Kenneth Batchelor.
14. Mrs Von Kistowski had also advised the authorised review officer that from 28 November 2003 until 27 November 2004 she had stayed every night at the Peck Road property until she moved to 6 Short Street, Boonah. I should mention that Mrs Von Kistowski has given different reasons for why she stayed at the Peck Road property during the period from 28 November 2003 until 27 November 2004. The reason that she gave the authorised review officer was to convince all of the children to move out with her to Boonah[6]. Mrs Von Kistowski advised the Social Security Appeals Tribunal that the reason why she stayed every night at the Peck Road property during this period was to convince Mr Von Kistowski to let her take the children to Boonah[7]. However, in her evidence before me Mrs Von Kistowski had stated that that the reason why she had stayed every night at the Peck Road property during that period was to protect her children from violence from Mr Von Kistowski.
[6] T2, Folio 39.
[7] T2, Folio 10.
15. Mrs Von Kistowski in her evidence had stated that she managed all of the household and financial expenses of the Von Kistowski family during the 2003/2004 and 2004/2005 tax years. This was indeed not disputed by Mr Von Kistowski. Mrs Von Kistowski had stated that she had ceased this task in June 2005. Mrs Von has Kistowski informed the authorised review officer that the bills that she paid were the mortgage on the Peck Street property, the groceries, the utilities bills, the petrol/tyres/repairs on the utility vehicle of Mr Von Kistowski, the animal feed, veterinarian fees as well as the children’s daily expenses[8]. In evidence before me Mrs Von Kistowski confirmed that Mr Von Kistowski would sometimes purchase petrol with the use of a card although, he preferred to have cash to buy petrol. In evidence, both Mr and Mrs Von Kistowski confirmed that at the relevant time there were a number of animals on the Peck Street property as it was a farm. At the relevant time there appeared to be various animals on that property including horses, pigs, cattle and dogs.
[8] T39, fol 158.
16. Mrs Von Kistowski informed the authorised review officer that her Parenting Payment Single (PPS) and Family Tax Benefit (FTB) as well as Mr Kistowski’s Disability Support Pension (DSP) were all paid into a trust account for the child ‘S’.[9] In evidence before me, Mrs Von Kistowski also stated that some of these social security payments were then transferred into another Suncorp account from which bills would be paid including the mortgage payments on the Peck Street property. Mrs Von Kistowski also claimed that after she left the Peck Street property she would pay Mr Von Kistowski his DSP in cash. She frankly admitted in her evidence before me that this did not always happen whenever the DSP was paid into the trust account: she said that this happened in 9 of every 10 occasions. She confirmed that she had still continued this task of the management of the household expenses even when she was conducting her relationship with Mr Batchelor. This is because Mr Von Kistowski has difficulties with reading and writing.
[9] T39, fol 158.
17. Mrs Von Kistowski had stated prior to the hearing of her application that when the children resided at the Peck Road property in the mornings, she prepared the children’s breakfast and got them ready for school. In evidence before me Mrs Von Kistowski stated that on occasions the children would get their own breakfast by helping themselves to cereal. Mr Von Kistowski had advised the Authorised Review Officer that the children were already fed, dressed and ready to go when she arrived to collect the children for school[10]. In his evidence before me, Mr Von Kistowski claimed that he sometimes had to telephone his wife to collect the children for school. This is disputed by Mrs Von Kistowski who stated that she had arrived in time to collect the children. Mrs Von Kistowski did take the children to school as Mr Von Kistowski could not fit in all the children in his utility.
[10] T2, fol 39.
18. Mrs Von Kistowski stated that she would do volunteer work at the school that the children attended. Mr Von Kistowski in evidence before me agreed that she did such volunteer work. Mr Von Kistowski had advised the Authorised Review Officer that Mrs Von Kistowski did such volunteer work as part of her qualification for a teacher aide certificate.[11]
[11] T39, fol 165.
19. It is not in contention that in the afternoons Mrs Von Kistowski picked the children up from school and then took them back to the Peck Road property[12].
[12] T2, fol 9.
20. Prior to the hearing, Mrs Von Kistowski remarked that she moved back to live at Peck Road from the beginning of September 2004[13]. Mr Von Kistowski denied this allegation stating that Mrs Von Kistowski did not stay overnight at Peck Road at any time after 1999[14]. Mr Von Kistowski appears to then agree that from mid-2003, Mrs Von Kistowski was taking the children to and from school, but says that ‘most mornings’ he had to ring the house where she stayed and wake her[15].
[13] T2, fol 10.
[14] T2, fol 11.
[15] T2, fol 11.
21. Mr Von Kistowski and Mrs Von Kistowski were in agreement that Mrs Von Kistowski moved to Boonah on 28 November 2004[16]. Mrs Von Kistowski asserted that from that date four of her children (the children ‘S’, ‘P’, ‘K’ and ‘B’) lived with her in Boonah[17]. However in evidence before me, Mr Von Kistowski claimed that all of the children stayed with him, although he acknowledged that four of those five children did spend some time at Mrs Von Kistowski’s home in the 2004 Christmas holidays[18]. Mr Von Kistowski claimed that, after the 2004 Christmas holidays, the children were returned to him and Mrs Von Kistowski then drove from Boonah each day to take them to and from school[19].
[16] T2, fol 10; T2, fol 13
[17] T2, fol 10.
[18] T2, fol 13.
[19] T2, fol 13.
22. Prior to the hearing Mrs Von Kistowski has stated that the child ‘P’ was in the care of Mr Von Kistowski from 16 May 2005[20], whilst Mr Von Kistowski has suggested that from April 2005, the children ‘S’, ‘K’ and ‘B’ went primarily into Mrs Von Kistowski’s care with the children ‘A’ and ‘P’ remaining in his care[21].
[20] T2, fol 10.
[21] T2, fol 13.
ENTITLEMENT TO FAMILY TAX BENEFIT
23. The entitlements of both Mr Von Kistowski and Mrs Von Kistowski to each receive family tax benefit is conferred by the A New Tax System (Family Assistance) Act 1999 (“the Act”). Under the Act an individual is eligible for family tax benefit if the individual has at least one “FTB child”[22]. An “FTB child” is defined by s 22 of the Act to be a child of an adult where the child is aged under 18 years and where the adult is legally responsible for the day-to-day care, welfare and development of the child, and the child is in the care of the adult and the child is an Australian resident[23].
[22] See s 21(1)(a).
[23] See s22(1) and (2).
24. The Act enables a child to be an “FTB child” of more than one individual. That will occur where the Secretary is satisfied that there has been or will be a “pattern of care” where the child is an “FTB child” of more than one individual who has care for the “FTB child” for at least 10% of the period for which family tax benefit is being claimed. A child is to be taken to be an “FTB child” of that individual for the purposes of s 22 on each day in that period, whether or not the child was in that individual's care on that day[24]: see s 22(7).
[24] See s22(7).
25. I am satisfied that the Secretary was entitled to determine that each of the five children is a child of both Mr Von Kistowski and Mrs Von Kistowski.
26. Where a child is an “FTB child” of more than one individual, the Secretary may under the Act, determine which percentage of family tax benefit will be paid to each individual: see s 59(1).
FAMILY ASSISTANCE GUIDE
27. In exercising the discretion under s 59(1) of the Act to determine a person’s percentage of family tax benefit for a child, the Secretary has regard to the Family Assistance Guide. This Guide provides that the decision-maker should establish what the pattern of care was, work out the percentage of care (rounded to the nearest whole percent), and then apply that percentage to the total rate that is payable to arrive at the amount payable to each parent. Relevant extracts from that Guide are in evidence before me[25].
[25] T4, fol 26-34.
28. This Tribunal will apply relevant policy in the absence of any compelling reasons why the policy should be disregarded[26]. I consider that in determining a person’s entitlement to family tax benefit in shared care cases, the application of the relevant policy is particularly important. Section 59(1) of the Act confers a broad discretion upon the Secretary, and the consistent application of policy ensures that applicants will be fairly treated on the same basis. The Federal Court of Australia has accepted the appropriateness of applying the Guide in such cases[27].
[26] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
[27] Wade and Secretary, Department of Family and Community Services [2004] FCA 1660 at [29].
DETERMINING A “PATTERN OF CARE”
29. The Family Assistance Guide sets out the relevant policy where a child’s carers disagree on the actual pattern of care of the child[28]. The policy states that the decision-maker ‘must determine the actual pattern of care on the basis of available evidence’[29]. The Guide provides that, generally, a pattern of care is based on the number of nights that a person has the overnight care of the child. This means that to calculate a person’s percentage of care, the Tribunal should take the sum of the number of nights that the child was in that person’s care and divide it by the number of days in the relevant period. This then reflects the person’s percentage of care. In some cases, an alternative approach (such as calculating actual hours) may be appropriate[30].
[28] Part 2.1.1.45
[29] T4, Folio 28.
[30] Wade and Secretary, Department of Family and Community Services [2004] FCA 1660
30. This is an unusual case where Mrs Von Kistowski spent some nights away from the Peck Street property. I would not fairly assess the contribution of Mrs Von Kistowski if I were to decide this matter merely by considering what nights the children were in the care of each parent. Rather I have considered that it would be more just to examine the actual time that was spent by each party in caring for the children.
31. In determining the pattern of care during a period of time, there is no need for precise and exact details of who cared for the child each night. Instead, the FTB scheme is concerned with patterns of care over time rather than with ‘day-to-day variations in that care’[31].
[31] Re Cassidy and Secretary, Department of Family and Community Services [2006] AATA 97 at [6].
32. In Nowicz and Secretary, Department of Family and Community Services [32], Senior Member Kiosologous remarked:
“14. … The apportionment must instead, be based upon a common sense appraisal of the pattern of care exhibited over a period of time. Minor variations do not effect the apportionment payable pursuant to the wording of sub-section 22(7).
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 common sense 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.”
[32] [2001] 65 ALD 314 at 318.
33. Whilst day-to-day variations need not be accommodated, it has been recognised by this Tribunal that in some instances there may be several different patterns of care during an assessment period[33]. Therefore a pattern of care is varied where there is ‘a significant departure in an established pattern of care’, such as weekend contacts changing from a fortnightly basis to a monthly basis[34].
[33] Re Daly and Secretary, Department of Family and Community Services [2004] AATA 1309, [30]).
[34] Nowicz and Secretary, Department of Family and Community Services (2001) 65 ALD 314, [16].
34. Deputy President P E Hack SC has ruled that ultimately, a ‘broad brush’ approach is appropriate to determine the pattern of care[35].
[35] Warne and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AATA 159, [25].
RELEVANCE OF FINANCIAL EXPENDITURE
35. When making a determination of percentages of FTB under s 59(1), this Tribunal has accepted that it may be appropriate to consider and take into account financial factors to ensure a just and appropriate apportionment. In Re Daly and Secretary, Department of Family and Community Services[36], the Tribunal observed that family tax benefit is intended to assist with the essential costs of caring for children, and as such, it is appropriate to consider the proportionality of FTB payments on the basis of temporal as well as financial factors.
[36] [2004] AATA 1309, [35].
36. Similarly, in Re Feeney and Secretary, Department of Family and Community Services[37], the Tribunal considered the financial expenditure of both parents but came to the conclusion that there was no compelling evidence that such expenditure was disproportionate to the amount of time the children spent in the care of each person.
[37] [2005] AATA 818
37. The approach in Feeney’s case and also in Re Plowright and Department of Family and Community Services[38] suggests that a departure from an apportionment based on temporal factors in should only be made in light of financial expenditure if the Tribunal is satisfied that such a departure is necessary to ensure fairness.
[38] [2000] AATA 840.
38. In Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs[39], Deputy President P E Hack SC has accepted the correctness of considering financial factors in appropriate cases and said:
It would be wrong, I think, to require the Secretary to undertake a minute examination and comparison of the expenditure of the parties on their children. Moreover it would in all likelihood certainly lead to greater disputation between the parties in an area where there is already sufficient disputation. But where, as I find to be the case here, there is a significant difference between the amounts expended by one party compared with the amounts expended by the other, an adjustment, again on a broad brush basis, seems to me to be plainly warranted.
[39] [2006] AATA 159.
CONSIDERATION
39. Where a child is an “FTB child” of more than one individual, the Secretary may under the Act, determine which percentage of family tax benefit will be paid to each individual[40].
[40] See s 59.
40. In this application I am required to determine the “pattern of care” for the five children during the 2003/2004 and 2004/2005 tax years.
41. I make the observation that during the hearing of this application, I continually emphasised that any evidence must be relevant to the 2003/2004 and 2004/2005 tax years. I was concerned that the evidence before me was relevant to the resolution of the dispute.
42. I was prepared to hear evidence of the time that the children spent with each parent. I was also prepared to receive evidence of any expenditure of the parties. However, I made it clear, on a number of occasions, to the parties that any evidence had to be relevant to the determination of this application. I was not concerned to enter into any moral questions such as why a relationship had broken up. I was certainly not prepared to consider unsubstantiated allegations as to which person may have poisoned animals.
43. The parties are not in agreement as to what “pattern of care” is appropriate for the 2003/2004 and 2004/2005 tax years. It has been previously decided in this Tribunal that if the evidence is inconclusive or uncertain it may be appropriate for the Tribunal to decide the FTB entitlement based on a reasonable approximation of the pattern of care[41]. I have already mentioned that it has been previously decided that a Deputy President has ruled that a “broad brush”[42] approach is appropriate when considering the evidence regarding care of the children.
[41] Cassidy and Secretary, Department of Family and Community Services [2006] AATA 97, [32]).
[42] Warne, supra.
44. In making a finding as to the “pattern of care” for the five children during the 2003/2004 and 2004/2005 tax years, I have taken into account the conduct of the parties during the hearing. On a number of occasions, I informed the parties that the hearing was their opportunity to challenge the evidence that was given by a witness. On at least one occasion Mrs Von Kistowski had not challenged a witness on his or her evidence. This occasion will be later mentioned in these reasons.
45. I should also mention that I have had grave difficulty in accepting all of the evidence that was given by both Mr and Mrs Von Kistowski.
46. Mr Von Kistowski has always contended that Mrs Von Kistowski never stayed overnight at the Peck Road property after he and Mrs Von Kistowski had separated in Easter 1999[43]. I am, for a number of reasons, not prepared to accept that assertion.
[43] T2, fol 11.
47. The first reason is that Mr Von Kistowski has himself signed a Separated under One Roof form in March 2004 which states that both he and Mrs Von Kistowski were living at the Peck Road property[44]. I appreciate that he has remarked that he may have not appreciated what he had signed “because he can’t read and write”[45]. However, there is a contemporaneous document, which I regard as cogent evidence, that Mrs Von Kistowski did indeed reside at the property. On 7 April 2004 Mrs E Von Kistowski (the mother of Mr Von Kistowski) had spoken to a Centrelink officer: she had then confirmed that there were separate residences on the Peck Road property and that Mr Von Kistowski and Mrs Von Kistowski “both maintain separate sleeping arrangements”[46].
[44] T6, fols 46-49.
[45] T39, fol 163.
[46] T2, fol 13.
48. I appreciate that three unidentified people had informed the Social Security Appeals Tribunal that Mrs Von Kistowski lived with Mr Batchelor after the separation[47]. It would not in my view be fair to rely upon these assertions where Mrs Von Kistowski would not have the opportunity to confront these people as witnesses at the hearing. In any event, Mrs Von Kistowski has admitted that she stayed some nights with Mr Batchelor.
[47] T2, fol 14-15.
49. I also mention that Mrs Von Kistowski in this application has asserted that on 28 November 2004 Mr Von Kistowski had let her move to her Boonah house with, at least, three or four children. However, Mrs Von Kistowski has not been consistent in the information that she had provided to Centrelink and there are records of conversations with her which are at variance with that assertion. I will mention those records in the next paragraph of my reasons.
50. On 6 October 2005 Mrs Von Kistowski spoke to a Centrelink officer: the record of that conversation is that the “children do stay o/n[48] with father but the day to day care financial support is made by her”[49]. On 12 January 2006 Mrs Von Kistowski spoke to a Centrelink officer in which the officer had stated that Mrs Von Kistowski had full time care of three children from April 2005. The record of that contact is that Mrs Von Kistowski is reported to have stated that “the children lived with the father but that she would stay there frequently and provide day to day care for all children and still make major decisions for them[50]”. On or about 2 May 2006 Mrs Von Kistowski advised the authorised review officer of Centrelink that “on 28/11/04 you moved to 6 Short St, Boonah with 4 of your 5 children”[51]. Having regard to the inconsistencies in the statements made by Mrs Von Kistowski, particularly her statement on 12 January 2008, I cannot be satisfied that on 28 November 2004 the children had all moved to the Boonah house.
[48] Overnight
[49] T16, fol 95.
[50] T33, fol 143.
[51] T39, fol 153.
51. The record of conversation that Mrs Von Kistowski had with the Centrelink officer on 12 January 2006 is significant. The Centrelink officer had advised Mrs Von Kistowski that there was evidence that the three children (‘B’, ‘S’ and ‘K’) “entered your full time care from April 2005”. Mrs Von Kistowski then did not dispute the correctness of that statement. She did not claim that the three children were in her full-time care at any earlier date. On that occasion she had stated (as I have mentioned earlier) that “the children lived with the father”. The officer had mentioned that Mr Von Kistowski had claimed that after 29 November 2004 there was shared care at 50% and Mrs Von Kistowski did not then demur to that suggestion.
52. The statement that was made by Mrs Von Kistowski on 12 January 2006 that “the children lived with the father” is quite inconsistent with the evidence that was given by the witnesses that were called by Mrs Von Kistowski. I cannot give any weight to the evidence of both Mrs Cindy O’May[52] and Mrs Patricia Ash[53] who claim that four of the children moved to the mother’s residence on 29 November 2004. I also mention that Ms O’May was shown when being cross-examined by Mr Von Kistowski to have been mistaken as to the year when she alleges her son was verbally abused by one of the Von Kistowski children.
[52] Exhibit J, Statement dated 14 February 2006 ; Exhibit K, Statement dated 19 July 2006.
[53] Exhibit N, Statement dated 27 September 2006.
53. Quite apart from the inconsistent information that Mrs Von Kistowski has provided to the Centrelink officers, I have another reason for concluding that on 28 November 2004 the children did not move to the Boonah house. Ms Angela Von Kistowski, in her evidence in chief, stated that after 28 November 2004 the children slept at the Peck Road property. She stated that she visited that property late at night to see the children as she would not be sure when Mrs Von Kistowski would be present. After Ms Angela Von Kistowski had given her evidence, Mrs Von Kistowski did not challenge her evidence that the children had slept at the Peck Road property after 28 November 2004. I regard the failure of Mrs Von Kistowski to challenge this account of Ms Angela Von Kistowski to be significant. I appreciate that Mrs Von Kistowski is not versed in the practice of the Tribunal. However, after Ms Angela Von Kistowski had concluded her evidence-in-chief I had reminded Mrs Von Kistowski that she then had an opportunity to challenge the evidence of Ms Angela Von Kistowski. She did not then avail herself of that opportunity.
54. In considering this application it is convenient to divide the 2003/2004 and 2004/2005 tax years into three distinct periods which I will refer as the first period, the second period and the third period respectively. The first period is from 1 July 2003 until 28 November 2004. The second period is from 29 November 2004 to 1 May 2005. The third period is from May 2005 until 30 June 2005.
First period
55. The first period is from 1 July 2003 to 28 November 2004. Both Mr Von Kistowski and Mrs Von Kistowski are in agreement that during this first period, all of the five children resided at the Peck Road property. Those parties also agreed that the added party took the children to and from school and had some level of care of the children.
56. There is some dispute between Mr Von Kistowski and Mrs Von Kistowski as to whether Mrs Von Kistowski stayed overnight during this period and, if so, how often she stayed overnight. However, I have already mentioned that on 7 April 2004 Mrs E Von Kistowski (the mother of Mr Von Kistowski) had confirmed that Mrs Von Kistowski then had “sleeping arrangements” at the Peck Road property. I make the inference that she would have spent some nights at the property. It is, however, not possible for me on the available evidence to conclude how many nights she had spent at that property.
57. What is important is that Mrs Von Kistowski did make an contribution to the running of the family farm. She did things which were important to the running of the household and farm. She managed all the accounts for the household and farm. She took the children to and from school. She also was at school (which is a small country school) with her children. She took the children to the doctors. One child has special needs and she took that child to all of her appointments including therapy sessions. She saw the children on a daily basis. Having regard to all of the evidence I consider that a reasonable approximation of the percentage of care of Mrs Von Kistowski for the first period is 50%.
The second period
58. The second period into which this matter may conveniently be considered is from 29 November 2004 to 1 May 2005. Mr Von Kistowski and Mrs Von Kistowski are in agreement that, during this second period, the child ‘A’ remained in the care of Mr Von Kistowski. I consider that during this second period Mrs Von Kistowski continued to make a substantial contribution to the care of the other four children during this period.
59. In making an assessment for this second period I have had regard to the statements of Mr Von Kistowski. Mr Von Kistowski himself acknowledged, in his 2004/2005 Past Family Tax Benefit form that he had 50% of the care of those four children during the period of 16 December 2004 and 22 April 2005[54]. In giving evidence before me he also acknowledged that his wife had 50% care of the children during this second period.
[54] T2, Folio 18.
60. Ms Angela Von Kistowski was called to give evidence by Mr Von Kistowski. She had herself acknowledged that Mrs Von Kistowski spent a considerable amount of time at the Peck Road property. The tenor of her evidence was that it was difficult to predict when Mrs Von Kistowski would be there hence her midnight visitations. On the basis of the evidence before me I find that a reasonable approximation of the percentage of care of Mrs Von Kistowski during this second period is 50%.
The third period
61. The third period that may conveniently be considered is from May 2005 until 30 June 2005. Mr Von Kistowski and Mrs Von Kistowski are in agreement that during this period three children (‘S’, ‘K’ and ‘B’) were in the care of Mrs Von Kistowski.
62. Mrs Von Kistowski had cared for another child (‘P’) until 15 May 2005. There is some agreement that, after April or May 2005, the child ‘P’ was wholly or substantially in the care of Mr Von Kistowski. I am prepared to accept the assertion of Mrs Von Kistowski that the child ‘P’ was in the care of her father on and after 16 May 2005[55].
[55] T2, Folio 10.
63. I accept the submission of the advocate of the Secretary that there is no need for minute analysis and specific findings as to the exact date. I consider that it is reasonable to adopt 16 May 2005 as the date from which the child ‘P’ was wholly or substantially in the care of Mr Von Kistowski.
64. I consider that during this third period the percentage that should be allocated to Mrs Von Kistowski is as follows:
·From 22 April 2005 to 15 May 2005 – 0% for the child ‘A’, 100% for the children ‘P’, ‘S’, ‘K’ and ‘B’;
·From 16 May 2005 to 30 June 2006 – 0% for the child ‘A’ and the child ‘P’ and 100% for the children ‘S’, ‘K’, and ‘B’.
FINANCIAL CONSIDERATIONS
65. I have reviewed the considerable evidence before me in an endeavour to decide whether an adjustment was warranted on the basis of the amounts expended by each party. Mrs Von Kistowski has asserted that she has made a greater financial contribution and cited an instance when her mother assisted her to make a mortgage payment. There was no documentary evidence to support her assertion. I am not persuaded by the evidence that Mrs Von Kistowski has made a greater financial contribution. I have also had regard to her own evidence that on occasions she had failed to pay Mr Von Kistowski his DSP. In the absence of any compelling evidence to suggest that one party incurred significantly greater financial expenditure in relation to the children, the Secretary has contended in written submissions that there is no basis for an adjustment to the percentage determinations in this case. In any event I mention that there was unanswered evidence before me that Mrs Von Kistowski had declined to pay $3,000 worth of bills[56].
[56] T2, Folio 13.
DECISION
66. The Tribunal sets aside the decision under review and remits the matter to the Secretary with the direction to adjust the family tax benefit payments so that for the period of 1 July 2003 until 30 June 2005 family tax benefit be calculated on the basis that Mrs Tricia Von Kistowski’s percentages are as follows:
(a)From 1 July 2003 to 28 November 2004 – 50% for each of the five children;
(b)From 29 November 2004 to 21 April 2005 – 50% for each of the five children;
(c)From 22 April 2005 to 15 May 2005 – 0% for the child ‘A’, 50% for the child ‘P’, and 100% for the children ‘S’, ‘K’ and ‘B’;
(d)From 16 May 2005 to 30 June 2006 – 0% for the child ‘A’, 0% for the child ‘P’ and 100% for the children ‘S’, ‘K’ and ‘B’.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Dr McDermott, RFD, Senior Member
Signed: .............[Sgd]................................................................
Elizabeth Young, Research AssociateDate/s of Hearing 16, 17 and 18 April 2008
Date of close of submissions 7 May 2008
Date of Decision 3 July 2008
The applicant was self-represented.
Solicitor for the Respondent Mr Matt Black, Departmental Advocate
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