CFWN and Secretary, Department of Social Services and Anor [2013] AATA 913 (19 December 2013)

Last Updated: 19 December 2013

[2013] AATA 913

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3589
Re	CFWN
	APPLICANT
And	Secretary, Department of Social Services
	RESPONDENT
And	JWNC
	OTHER PARTY

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	19 December 2013
Place	Brisbane

The decision under review is affirmed.

.........................[Sgd]...............................................
Senior Member Bernard J McCabe

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Family tax benefit – Percentage of care of children – Decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) ss 22, 35P, 59

CASES

Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AATA 159

REASONS FOR DECISION

Senior Member Bernard J McCabe


19 December 2013

1. The applicant (“the father”) and his former partner (“the mother”) disagree how much time each of them spent looking after their children between 1 January 2012 and 7 August 2012. The question is important because the pattern of care determines their respective entitlements (if any) to family tax benefit (FTB). The Secretary formed the view at one stage that the mother only had care of the two children for 33% of the time – which meant she fell below the threshold and was ineligible to receive any FTB. The Social Security Appeals Tribunal (“SSAT”) subsequently decided the mother had care for 52% of the time. That decision meant the father was required to refund some of the FTB he had received in respect of the period. He asked this Tribunal to reconsider the matter.
2. The relevant law is found in the A New Tax System (Family Assistance) Act 1999 (“the Assistance Act”). The Assistance Act provides for FTB to be paid in respect of a child who qualifies as an FTB child. Where a family breaks down and the FTB child is in the care of more than one person, the Act requires the Secretary to make a determination as to the percentage of time that the child was in the care of each individual. If a particular individual has less than 35% care, the child is deemed not to be an FBT child of that individual. If the individual has at least 35% care but not more than 65%, that individual is deemed to have shared care of the child: s 59. In this case, the mother was initially found to have 33% care, so she was ineligible to receive FTB in respect of either child. That determination – which revoked an earlier determination – was reviewed pursuant to s 35P of the Assistance Act.
3. Inevitably, in reviewing the evidence provided by the parties, the Tribunal must take a “broad brush”: see Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AATA 159 at [25]. It is impossible to be precise: the records and memories of the parties are rarely that good.
4. The mother in this case gave her evidence first at the hearing. She referred to her diaries which purported to show the precise dates on which the children were with her throughout the period in question. She also read several diary entries in relation to some of the period under review. However, not all of the diaries were before the Tribunal. The extracts she did provide were consistent with her evidence that she had the children in her care on at least three days a week, and most of the schools holidays. She conceded there were a few weekends during the period when she might not have had care of the children but she pointed out there were other occasions during the course of some weeks where she had care of the children for in excess of 3 days a week.
5. The father disputed the mother’s account. He did not have any diary entries and he admitted he was unable to remember precise details of when his children were staying with him. He agreed the mother had care of the children on occasions, even though the court orders following their separation assumed the children would have no unsupervised contact with her. He insisted the mother only had care every second weekend, with a week of contact during the school holidays.
6. If the mother is right, the SSAT’s estimate of 52% care is correct. If the father is right, the percentage of care is much lower – probably 33%. Which account should I prefer?
7. I prefer the mother’s account. She has contemporaneous diary notes. I accept it is possible they may have been altered, but she was a forthright witness who made concessions and avoided claims that were, on their face, extravagant. The father’s account is more problematic in any event. A note on the Centrelink file created by an officer who interviewed the father confirms he told the officer the mother had care every weekend and for two weeks in some of the school holidays: annexure to exhibit two at p 29. The father denies he said that, but I note the SSAT also quoted the father as saying the mother’s estimates (which were effectively the same as those contended for in this hearing) were “pretty reasonable”: exhibit one at p 17. The father suggested in these proceedings that he did not really understand what was going on at the SSAT hearing, and may have been confused. But he effectively supplied the same information twice: once to the Centrelink officer and once to the SSAT.
8. Both parties provided statements from witnesses who were friends or family members. I think it is appropriate to treat all of that evidence with caution given the links between the witnesses and the mother or father. The father also provided evidence from his daughters’ school, but that evidence did not really assist me. Similarly, the evidence from the mother’s general practitioner did not help me decide whose account I should believe.
9. I am satisfied I should prefer the mother’s evidence in light of the independent evidence that corroborates her story (namely the advice given by the father to the Centrelink officer and to the SSAT). That evidence is consistent with the conclusions of the SSAT.

CONCLUSION

10. The decision of the Social Security Appeals Tribunal is affirmed.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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

Dated 19 December 2013

Dates of hearing	20 November and 9 December 2013
Applicant	In person
Solicitors for the Respondent	Department of Human Services
Other Party	In person