Weickel and Department of Family and Community Services and Smith - [2002] AATA 385

DECISION AND REASONS FOR DECISION [2002] AATA 385

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/1093

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LARRY ADRIAN WEICKEL
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  First Respondent
           And    RACHAEL ELIZABETH SMITH
  Second Respondent

DECISION

Tribunal Dr E K Christie

Date24 May 2002
PlaceBrisbane

Decision      The Tribunal varies the decision under review to the extent that Mr Weickel was entitled to 100% FTB over the period 29 May 2001 to 26 June 2001. This means Mr Weickel's application for review is partly successful.
  ..................(Sgnd)...................
  Member
CATCHWORDS
SOCIAL SECURITY – A New Tax System (Family Assistance) Act - declared care arrangements – disagreement in declared care arrangements.
A New Tax System (Family Assistance) Act 1999, ss 22, 25

REASONS FOR DECISION

24 May 2002 Dr E K Christie

This is an application for review by Larry Weickel of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 19 October 2001. The SSAT decided not to vary the Centrelink decision that Mr Weickel was entitled to be paid 78% Family Tax Benefit ("FTB"), and Ms Smith 22% FTB, over the period 7 February to 26 June 2001. In doing so, Centrelink elected to apply a (78/22)% partition based on the Family Court Order of August 1998. The Centrelink decision applied to the period 7 February 2001 to 26 June 2001.
Mr Weickel and Ms Smith represented themselves at the hearing and gave their evidence by telephone. Mr R McQuinlan, a Departmental Advocate represented the Department of Family and Community Services ("the Department"). The first hearing date of this application for review (19 March 2002) had to be vacated as Ms Smith failed to appear and failed to notify the Tribunal of her non-attendance - notwithstanding that she had been sent a notice of the hearing date and time.
At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 – the "T" documents (Exhibit 1) and the following exhibits:

Orders 1.6.01 of the Family Court of Australia No BR10026 of 1995 (Exhibit 2).

FACTS

On the basis of the evidence before it the SSAT made the following findings of fact:
"(i) The applicant was paid 100% of family allowance and FTB for three children since Family Court orders made on 25 August 1998.
(ii) After a claim for shared care by the mother of the children (the joined party) Centrelink paid her 22% and the applicant 78% after 7 February 2001.
(iii) After the third party's contact was significantly reduced by further Family Court orders on 26 June 2001, the applicant's FTB was restored to 100%." (T2 Folio 7,8)
At the hearing before the SSAT, the SSAT made the following observations on Mr Weickel and Ms Smith:
"30. It is patently obvious that these parties are locked into an extremely high level of conflict and hostility.
31. Mr Weickel expressed a great deal of anger but that could equally be construed as frustration with Ms Smith's conduct. On the other hand, Mr Smith although far more contained in her emotions than Mr Weickel, could be seen as manipulative and controlling instead of reasonable. The accusations flow both ways." (T2, Folio 8)

ISSUES FOR THE TRIBUNAL TO DECIDE

The only issue for the Tribunal to decide was whether Mr Weickel was entitled to be paid 78% FTB and Ms Smith 22% FTB over the period 7 February 2001 to 26 June 2001. The monetary amount in issue is of the order of $700.
LEGAL AND POLICY FRAMEWORK
The relevant legislation is A New Tax System (Family Assistance) Act 1999 ("the Act"). It is not in dispute that the children of Mr Weickel and Ms Smith meet the requirements of s 22 of the Act with respect to being FTB children.
Section 25 (1) of the Act specifies the effect on a FTB child being in an individual's care for less than 30% of a period:
"25 (1) 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 in accordance with subsection 22(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) the Secretary is satisfied that the child was, or will be, in the care of the last-mentioned individual for less than 10% of that period;
the child is to be taken, despite that subsection, not to be an FTB chid of that last-mentioned individual for any part of that period."
The Department policy document "Family Assistance Guide" deals with "Establishing a Pattern of Care" (Para. 2.1.1.45) and "Disputed Care Arrangements" (Para 2.1.1.70).

Establishing a Pattern of Care (Carers disagree on pattern of care).
"Where the carers do not agree on the actual pattern of care for the child, the FAO must determine the actual pattern of care on the basis of available evidence. This applies even if a family law order (1.1.F.10), registered parenting plan (1.1.P.20) or court order (1.1.C.70) exists. If the carers do not agree on the care arrangements each carer should be asked to provide additional evidence to support their declared arrangements in order for the FAO to make a decision as to the actual pattern of care."
Disputed Care Arrangements (Discrepancy in declared care arrangements).
"If there is a discrepancy between the care arrangements declared by each carer and there is no formal agreement, or there is a variation to the formal agreement, each person may be asked to provide additional evidence to support their declared arrangements. Directing carers to a Court of Law for an alteration to be made to a formal agreement, should only be encouraged as a last resort.
Example: Evidence provided by the customer may include:
Any diaries or documentary records completed by either carer,
Confirmation of playgroup, kindergarten or school enrolment,
Attendance or membership of local organisation or activities,
Receipts for expenses incurred while the child was in care,
Confirmation from close family friends or relatives,
Confirmation from professional members of the community who have regular contact with the family, such as teachers, police, ministers of religion, accountants, lawyers or doctors,
Social worker reports, especially in cases where there may be a fear of violence if the other parent is contacted,
Records from Centrelink or other government departments, which may confirm present or previous patterns of care, such as information about past shared family payments, which may be relevant to the current situation."

CONTENTIONS AND SUBMISSIONS OF THE PARTIES

Mr McQuinlan submitted that the Department's position relied on the Family Court Order for access arrangements when it determined the apportionment of FTB. The Family Court Order had been made on 25 August 1998 and had set out access arrangement for the children of Mr Weickel and Ms Smith (T4). Furthermore, because there had been extreme conflict between Mr Weickel and Ms Smith (see T13, Folio 40), the Department had relied on the original Family Court Order as the objective evidence upon which to base their apportionment.
Mr McQuinlan stated that access arrangements over the relevant period for this application for review were in dispute by Mr Weickel. However, he contended for at least part of this period, the times specified in Mr Weickel's diary (see T26, Folios 108, 109) accorded with Ms Smith's diary (see T23, Folio 133). Mr McQuinlan contended that over the period 2 February to 1 April 2001 that Ms Smith had at least 17% access and that Ms Smith had asserted that access problems had led to the situation where she could not achieve the 22% prescribed by the Department.
Mr McQuinlan referred to a Departmental policy where disputed access arrangements existed and submitted that the policy might apply in certain circumstances. However, he acknowledged that very different views and explanations existed between the parties.
Finally, Mr McQuinlan acknowledge that a new application had been lodged in the Family Court where the access arrangements were in dispute (T19, 29 May 2001). As a consequence a new Family Court Order was made on 26 June 2001 and varied the access arrangements from the original August 1998 Order. The new Family Court Order was the basis for the Department changing Mr Weickel's FTB apportionment from 78% to 100%.
Mr Weickel states that over the period 2 February to 1 April 2001, a comparison of his records with Ms Smith indicated that Ms Smith's access amounted to only 17% - less than the prescribed amount of 22%.
Mr Weickel referred to the Family Court Order of 22 June 2001 that had reduced access arrangements for Ms Smith and contended that his ex-partner had been using the Family Court Order to obtain FTB in circumstances where she had not abided with the Order.
Mr Weickel stated that he had raised a query with the Department, with respect to the FTB apportionment over the relevant period. However, he had been advised that nothing could be done until the Family Court Order had been changed. Departmental advice to him was that to have the Family Court Order changed, Mr Weickel would require third party evidence to corroborate his claim that Ms Smith was not abiding with the original Family Court Order.
Mr Weickel submitted that after five months of queries and inputs with the Department he had done everything possible to meet Centrelink's advice to seek a change in the original Family Court Order. In addition, it was his contention, the new Family Court Order (June 2001) that changed the contact and access arrangements was based on evidence that he had presented to the Family Court.
Mr Weickel concluded by stating that the Family Court proceedings from which the order was made on 26 June 2001 incorporated affidavits from himself and Ms Smith, as well as appearances of children's representatives. He stated that Ms Smith had contravened in not appearing at two of the hearings that had been set down.
Ms Smith acknowledged that she did not attend the Family Court proceedings on 26 June 2001 as her child was ill. She said that she had supplied the Court with a medical certificate. Ms Smith stated that she had attended the Family Court on 23 April 2001 [for mention] where Mr Weickel did not attend.
With respect to access and contact with their children, Ms Smith said that she had resumed contact on 8-10 June 2001, and thereafter every second weekend. She asserted that she had been refused contact by Mr Weickel from 22-24 June 2001.
Ms Smith concluded by referring the Tribunal to entries in her diary that had been date stamped at the Coolangatta Police Station (T33, Folio 146). In response to a Tribunal question as to what the date stamping indicated, Ms Smith stated that it indicated that she had attended access changeover. However, she could not respond to the question whether the date stamp also indicated Mr Weickel failed to attend.
CONSIDERATION OF THE ISSUES
The objective of the Tribunal is to review administrative decisions, not only on the merits, but in accordance with the law at all times. The legislature is the A New Tax System (Family Assistance) Act 1999 ("the Act").
The Tribunal had considered the application of both Family Court Orders in the context of the Act and the Department's Policy guidelines.
The Tribunal makes the observation that the Family Court Order of August 1998 was based on a retrospective analysis of the pattern of care of the children in the past. The Family Court Order then established the actual access arrangements to apply into the future. Mr Weickel and Ms Smith would have to adhere to these arrangements.
In circumstances where Mr Weickel and Ms Smith did not agree on the actual pattern of care, the Departmental policy guidelines specify the best available evidence required to corroborate any such claim. The Tribunal notes that the policy states "Directing carers to a Court of Law for an alteration to be made to a formal agreement, should only be made as a last resort" (see para 9).
The Tribunal makes the further observation that the June 2001 Family Court Order, in its assessment of the preceding history of the pattern of care, confirms that at some stage over the period from the date of the first order to the time of the second application was lodged (29 May 2001, T19-20), the pattern changed. As a consequence, access arrangements were changed when the June 2001 Order was made. In turn, FTB apportionment was changed by the Department to 100% for Mr Weickel from 26 June 2001.
The Tribunal accepts Mr Weickel's evidence that he had raised queries with the Department over time disputing compliance by Ms Smith with the care arrangements. In addition, that he had ultimately relied on the June 2001 Family Court Order to corroborate his claim that Ms Smith had not adhered to the declared pattern and so it should be varied.
The Tribunal also accepts Mr McQuinlan's submission that, for at least some of the period 7 February 2001 to 26 June 2001, the actual pattern of care and FTB apportionment specified by the Department (78/22)% applied (see para 11).
The Tribunal finds that, at some later stage in this period, the actual pattern of care changed – and so resulted in the changes to access made under the Family Court Order of June 2001.
The Tribunal concludes that the only objective evidence upon which a date could be specified where the actual pattern of care and FTB apportionment should be varied during the period 7 February to 26 June 2001 is the date Mr Weickel filed documents with the Family Court to seek a variation in access arrangements i.e., 29 May 2001 (T19, T20).
The Tribunal considers that the analysis of the material contained in these documents should have acted as a "trigger" for the Department to apply its policy guidelines when there was a dispute in care arrangements (see para 9). Ultimately, these documents formed part of the evidentiary materials that led to the Family Court Order in June 2001; in effect, the Family Court Order became the "last resort" for Mr Weickel.
For all the above reasons the Tribunal decides that over the period May 29 2001 to 26 June 2001 the FTB apportionment should be varied to reflect the changes in the actual pattern of care. Over this period Mr Weickel was entitled to 100% FTB.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed:         .............................................................................
  Associate
Date/s of Hearing  8 April 2002
Date of Decision  24 May 2002
The Applicant Appeared in Person
Solicitor for the First Respondent Mr R McQuinlan, Departmental Advocate
The Second Respondent Appeared in Person