Whale and Secretary, Department of Social Services (Social services second review)

[2016] AATA 517

Whale and Secretary, Department of Social Services (Social services second review) [2016] AATA 517 (22 July 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0067
Re	Kylie Whale
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Ian Jones
OTHER PARTY

DECISION

Tribunal	Deputy President I R Molloy
Date	22 July 2016
Place	Brisbane

The decision under review is affirmed.

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Deputy President I R Molloy

CATCHWORDS

FAMILY TAX BENEFIT – qualification – FTB child – percentage of care – where inconsistent evidence between parents – decision under review affirmed.

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) s 22

REASONS FOR DECISION

Deputy President I R Molloy

22 July 2016

1. This is an application by Kylie Whale for review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) made on 27 November 2015 concerning the family tax benefit (“FTB”). 

   Background

2. Miss Whale (“the Applicant”) and Ian Jones (“the Other Party”) are the parents of Georgina born on 27 August 1996, and Ashleigh born on 20 April 1998. This review is only concerned with FTB in respect of Ashleigh.

3. On 14 January 2013 the Department made a determination that the Applicant’s care percentage in respect of Ashleigh was 50% with effect from 1 July 2011 on an ongoing basis.

4. On 11 June 2015 an Authorised Review Officer (“ARO”) varied the decision, making the following determination:

   (a)the Applicant had 60% care of Ashleigh and the Other Party had 40% care of Ashleigh for the period 1 July 2011 to 30 June 2012;

   (b)the Applicant had 60% care of Ashleigh and the Other Party had 40% care of Ashleigh for the period 1 July 2012 to 30 June 2013;

   (c)the Applicant had 59% care of Ashleigh and the Other Party had 41% care of Ashleigh for the period 1 July 2013 to 30 June 2014; and

   (d)the Applicant had 61% care of Ashleigh and the Other Party had 39% care of Ashleigh from 1 July onwards.

5. The decision under review:

   (a)affirmed the ARO’s decision on 11 June 2015 that the Applicant had 60% care of Ashleigh and the Other Party had 40% care of Ashleigh for the period 1 July 2011 to 30 June 2012; and

   (b)varied the ARO’s decision of 11 June 2015 as follows:

   (i)the Applicant had 56% care of Ashleigh and the Other Party had  44% care of Ashleigh for the period 1 July 2012 to 30 June 2013;

   (ii)the Applicant had 52% care of Ashleigh and the Other Party had 48% care of Ashleigh for the period 1 July 2013 to 30 June 2014; and

   (iii)the Applicant had 59% care of Ashleigh and the Other Party had 41% care of Ashleigh for the period 1 July 2014 to 30 June 2015.

   Issues

6. Qualification for the FTB depends, among other criteria, on a person having an FTB child as defined in s 22 of the A New Tax System (Family Assistance) Act 1999 (Cth) (“the Family Assistance Act”).

7. The Family Assistance Act provides that where a child is an FTB child of more than one person, the Secretary is required to reach a determination as to the percentage of a period that a child was, or is likely to be, in the care of each individual for whom the child is an FTB child.

8. The issues are the percentage care provided to Ashleigh by each of Miss Whale and Mr Jones for the following periods: 

   (a)1 July 2011 to 30 June 2012;

   (b)1 July 2012 to 30 June 2013;

   (c)1 July 2013 to 30 June 2014;

   (d)1 July 2014 to 30 June 2015.

9. At the hearing the parties did not dispute the reviewable decision in respect of the first of these periods. 

   Evidence

10. Miss Whale and Mr Jones were each self-represented. The Secretary was represented by a Government lawyer.

11. Both Miss Whale and Mr Jones gave sworn evidence in person. They each relied in part on their respective diary entries showing when they had care of Ashleigh. In each case an entry on a particular day was said to record whether Ashleigh had stayed overnight.

12. Mr Jones produced diaries in conventional book form which were dedicated almost exclusively to recording his care of his daughters. He said that the entries were made contemporaneously with events or within a few days afterwards.

13. He was asked about the question-marks following some of the entries such as “Both with me?”. He disputed that entries of this nature indicated some uncertainty as to their accuracy. He said they were just bad grammar. I do not wholly accept this explanation.

14. As it happens, these particular entries to which Mr Jones was taken, 15 March and 11 May 2012, were dates on which Miss Whale’s records also record he had the care of Ashleigh.

15. Miss Whale said she recorded her care of Ashleigh in her work diaries. She said she used the work diaries to create diaries in electronic form confined to recording the days on which she had care of Ashleigh generally by entering “Ash”. Miss Whale said she did this because she did not want to produce her work diaries containing information unconnected with these proceedings. 

16. The differences between the parties’ records were not substantial and usually involved odd days when each parent had recorded having care of Ashleigh. It is not surprising to find occasional discrepancies of this sort.

17. An exception to this was the period Sunday 9 December 2012 to Monday 17 December 2012. Mr Jones has recorded “Ash with me Georgie pop’s” during this time. His entries then from Tuesday 18 December 2012 to the New Year appear as “Both girls mother” or in substantially similar words.

18. Miss Whale’s entries, however, show Ashleigh was in her care from Sunday 9 December to Friday 14 December 2012 inclusive. She said she was sure Ashleigh was with her for these five days because she always had the girls with her on her birthday which falls on 11 December.

19. However she acknowledged that Georgina was in fact staying with her grandfather in New South Wales at this time as recorded in Mr Jones’s diary.

    Consideration

20. I do not believe either Miss Whale or Mr Jones has deliberately fabricated records or set out to deceive the Department or this Tribunal.

21. In all the circumstances, however, having seen and heard the witnesses, I prefer the evidence of Mr Jones. Amongst other things, including his manner and demeanour when giving evidence, I think his records are more likely accurate.

22. The respondent submitted that I should restore the decision of the ARO. The ARO referred to the evidence provided by the each parent, referred to the number of days in dispute in each financial year, and “in the absence of any other information”, split the disputed periods 50/50 or as near to that as possible.

23. The decision was described as fair and balanced in circumstances where there is little consistent evidence. There is a question, however, whether that approach fulfils the requirement to make a determination as to the percentage of a period that a child was in the care of each individual for whom the child is an FTB child.

24. It is not necessary for me to express any opinion on that because, as I have said, I am satisfied that the inconsistencies should be resolved in the same way as they were in the reviewable decision of 27 November 2015. That decision is therefore affirmed.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

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Associate

Dated 22 July 2016

Date of hearing	24 June 2016
Applicant	Self-represented
Solicitors for the Respondent	Department of Human Services
Other Party	Self-represented