Thompson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2009] AATA 29 (16 January 2009)

Last Updated: 19 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 29

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0722

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KATHLEEN THOMPSON

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

And

DANIEL BUTTURINI

Third Party

DECISION

Tribunal

M J Carstairs, Senior Member

Date 16 January 2009

Place Brisbane

Decision

The Tribunal sets aside the decision under review and substitutes the decision that Daniel Butturini was qualified for 70% of family tax benefit in the period and Kathleen Thompson was qualified for 30%.

.....................[sgd].........................
SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – family tax benefit – care of the FTB child – apportionment of percentage of care – decision under review set aside

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

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), 10

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

Wade v Secretary, Department of Family and Community Services [2004] FCA 1660; (2004) 139 FCR 285

Re Nowicz and Secretary, Department of Family and Community Services [2001] AATA 628

REASONS FOR DECISION

16 January 2009

M J Carstairs, Senior Member

1. This case concerns a dispute between the father and grandmother of a toddler over family tax benefit payable for the child between 1 July 2005 and 14 June 2006 (the period). In 2007, the grandmother, Ms Kathleen Thompson, lodged a backdated claim for family tax benefit with respect to the period[1].
2. During this period Centrelink had paid all the family tax benefit to the father, Mr Daniel Butturini, essentially in accordance with the terms of a Family Court Order relating to the child, and because no-one else was making a claim. The legislation with respect to Family Assistance makes provision for backdated claims[2] such as Ms Thompson’s. It fell then to Centrelink to determine what the correct percentage of care provided by each was.
3. There was little agreement between the parties about the facts upon which percentages of care might be determined. It is a fair summary of Mr Butturini’s view of their arrangement, that Ms Thompson was merely babysitting her grandchild at Mr Butturini’s request while Mr Butturini was at work. On that view, during the times the child was with her, Mr Butturini retained the parental responsibility and remained entitled to all the family tax benefit. Ms Thompson however claimed to have been the primary carer in the period[3].
4. The parties’ fundamentally divergent views about the nature of the care arrangements were reflected in the conclusions that different decision makers have reached about how the family tax benefit should have been allocated:
   • Centrelink originally paid Mr Butturini 100% of the family tax benefit in the period;
   • when Ms Thompson made a backdated claim for family tax benefit, Centrelink then decided that Mr Butturini had less than 10% actual care of the child. Under the legislation 10% is the minimum care level required in order to be eligible for family tax benefit. Accordingly, Centrelink decided Mr Butturini was not entitled to family tax benefit and was required to repay the money; and
   • the Social Security Appeals Tribunal took a different view of the evidence and concluded that Mr Butturini simply delegated aspects of care to Ms Thompson but retained the overall responsibility as well as full entitlement to family tax benefit.
5. I would observe at the outset that, having heard the evidence of both, I can be no more confident at this stage of the review process than others who have looked at this matter before me. As the evidence unfolded, it was reasonably clear that Ms Thompson and Mr Butturini were more committed to stating their divergent positions in their dispute than to providing an accurate or detailed account of what happened with respect to care in the period. To be fair to both of them, they have probably forgotten much of the detail, or it has been lost in their later acrimonious disputes in the Family Court.

CARE OF THE CHILD IN 2005/2006

6. In 2004 Mr Butturini took over the care of the child, after his relationship with the child’s mother had come to an end. Since then, the child’s mother has not been involved in the child’s upbringing, nor has she made any claims for family tax benefit. In 2005 it became necessary to formalise matters between the parents of the child in the Family Court, the proceedings not being contested by the mother. However, some insight into arrangements that Mr Butturini and Ms Thompson intended for the care of the child, can be gleaned from the contents of a Family Report prepared by Mr Sean Moriarty, consultant social worker[4]. Relevant matters included that:
   • Mr Butturini lived with his father, but this house was ten minutes walk away from Ms Thompson’s. Their arrangement was that the child would stay with Ms Thompson from Sunday night till Thursday and that Mr Butturini would have the child with him on weekends from Friday night. Mr Butturini told Mr Moriarty that there were other nights during the week when he would stay over at Ms Thompson’s home, but generally it was more convenient for him to live with his father; and
   • the child was enrolled in day-care 2 days per week[5].
7. The 2005 Family Court Order that issued awarded residence and care of the child to Mr Butturini, and made provision for contact by the child’s mother, as might be arranged. There was no suggestion that the child’s mother has availed herself of access.
8. Although Mr Moriarty’s Family Report predates the relevant period, it nevertheless provides some insight into the intentions in 2005 of grandmother and son with respect to the child’s care.
9. As to what then actually occurred, there are several versions. Mr Butturini and Ms Thompson were firstly required by Centrelink to provide their recollections of the care they each provided to the child in the period, by filling out calendars concerning who had the child on particular days. Their “recollections” were each quite different[6]. Ms Thompson acknowledged at the hearing that she had not recorded dates and could not fully recall the details when she filled out the calendar in 2007. Mr Butturini said at the hearing that he had filled out his calendar from a document that he had prepared for the Family Court proceedings (but no longer has). I doubt the truth of that evidence but in any event it was apparent to me that each was using the calendar exercise to re-state their broad claims without the need for any accurate attention to detail.
10. I note that in her most recent written statement[7] Ms Thompson said that she had insisted that Mr Butturini maintain contact with his son, and she stated that he had done so until December 2005:

During that time, he used to come and spend time with (the child) most afternoons. He used to take (the child) to his father’s place during most weekends.

11. The Social Security Appeals Tribunal decision discussed some of the many inconsistencies in the evidence. The versions of each have indeed varied on each re-telling. Ms Thompson had told the Social Security Appeals Tribunal that Mr Butturini would stay 3 nights per week at her place and at weekends. She referred to Mr Butturini sleeping in a top bunk above the child at her home. Later in the period, she had said, from about August 2005, Mr Butturini would take the child to his father’s (Mr Butturini senior) place every second weekend. Ms Thompson told the Social Security Appeals Tribunal (and said in evidence before me) that Mr Butturini had the child for at least 10 days in April 2006, although this information, it seems, was not provided earlier to Centrelink. (I would make the observation here that if Ms Thompson had told Centrelink this earlier it would have been impossible for Centrelink to assess Mr Butturini as having less than 10% care of the child.)
12. In an affidavit dated 21 February 2007, Ms Thompson stated that Mr Butturini would spend time with the child on weekends, not necessarily every weekend. At another point in her oral evidence Ms Thompson said that Mr Butturini had the child overnight every second weekend in the relevant period.
13. Ms Thompson did agree that Mr Butturini provided her with money from his family tax benefit to care for the child. Their evidence diverged on the amount. She said it was $50; he said it had started out at $75 but he increased it. Mr Butturini, it seems, also paid the child care fees, and it seems that he was more committed to the child attending day-care than was Ms Thompson.
14. Mr Butturini’s view of the arrangement was that he and his mother had an understanding, according to which Ms Thompson would care for the child three days per week and take the child to day-care on two other days. In turn he would pay her from the family tax benefit to reimburse her for the care she provided.
15. Some support was lent to Mr Butturini’s version of events by the letter from Ms Shelley Malouf, child safety officer with the Queensland Department of Child Safety[8]. She stated that police had visited Mr Butturini in May 2006 at his father’s house, where the police reported there were visible signs of children’s toys and clothing and that the living conditions were suitable. Of course this can only refer to the very end of the disputed period, but it suggests that there was an established household for the child that was not simply the one at Ms Thompson’s house.
16. It seems evident that relations between Ms Thompson and Mr Butturini were souring over the period. Ms Thompson acknowledged in her evidence that she had improperly withheld access from Mr Butturini at one stage, by hiding the child. She said she regretted having done this. Somewhat later Mr Butturini took matters into his own hands and took the child from Ms Thompson at the end of 2006. However, before that occurred, Centrelink was paying Ms Thompson parenting payment single[9] with respect to the child and, as I understand it, 100% of the family tax benefit. This was for a relatively brief period, and later than the period here under review.
17. Ms Thompson and Mr Butturini attended mediation about mid-2006, and apparently some agreement was reached in August[10] (a copy of the agreement in the documents provided was only signed by one party, so I cannot be confident that this was a final form). What was being discussed was that the child would live with Ms Thompson during the week but Mr Butturini would have the care of the child on weekends. Terms included:

That the child...live with the paternal grandmother.
That the father will not remove the child from the grandmother’s care.
That the father have the care of and spend time with the child each alternate Sunday from 10am to 6pm...and each alternate weekend from 3pm Saturday to 6pm Sunday...

18. A second family report was compiled in June 2007[11], again by Mr Moriarty, Ms Thompson having then taken more formal legal action to assert her right to have the care of the child. On this occasion, Mr Moriarty interviewed both Ms Thompson and Mr Butturini, but there was little common ground in what each told Mr Moriarty: Mrs Thompson maintained that Mr Butturini had little involvement with the child; Mr Butturini, on the other hand, maintained that he had full care, assisted by Ms Thompson in a baby-sitting role during the week while he was at work. It was clear in the report that Mr Moriarty considered that both Mr Butturini and Ms Thompson were distorting the facts as they gave their histories to him.
19. Mr Moriarty nevertheless appears to have been persuaded to the view, overall, that Ms Thompson had been providing the majority of the child’s actual care. Mr Moriarty saw the more beneficial approach for the future, generally speaking, would be that the child should be cared for by the parent in preference to a grandparent.
20. Whilst this report postdates the relevant period, it is hard to escape the conclusion that Mr Moriarty thought that the actual care as it had unfolded (since his previous report in 2005) was undertaken for the most part by Ms Thompson.
21. Formal recognition came to be given to Ms Thompson’s role. An Interim Order was issued by the Federal Magistrates Court on 25 June 2007, providing that the child reside with Mr Butturini but that Ms Thompson have the care of the child Thursday/Friday in alternate weeks and otherwise Tuesday to Friday[12]. Relatedly, the 2007 claims for family tax benefit lodged by Ms Thompson and Mr Butturini, referring to their respective percentages of care then, showed the parties agreeing on 29% by Ms Thompson and 71% by Mr Butturini[13]. At present, according to Ms Thompson, she is paid 35% of family tax benefit[14].

CONCLUSIONS ABOUT ENTITLEMENT TO FAMILY TAX BENEFIT

22. Cases which involve disputed facts about care of a child are notoriously difficult, the more so where there is the level of ill-will between the parties evident here. It was apparent that both were committed to positions that allowed no compromise, and I had no confidence that either was attempting to accurately recall what had in fact taken place.
23. Aspects of the Centrelink decision-making appear to have been undertaken with perhaps too much haste, given the complexities of the case. Mr Butturini was tardy in sending back his calendar of the care. He had not been given much time to respond. However, a decision with such adverse consequences for him ought not to have been made without hearing his side. In that process, matters such as the April period (when the child was with Mr Butturini) were overlooked. I also note a record of a telephone contact between Ms Thompson and Centrelink on 30 June 2006 advising that the child was not in her care until 15 June 2006.
24. That said, A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) allows for the child to be “an FTB child”[15] of both Mr Butturini and Ms Thompson, and allows for late claims to be paid and care re-apportioned. Family tax benefit was paid for the FTB child of Mr Butturini under s 22(3) of the Family Assistance Act because there was a Family Law Order in force and no other claimant. Once Ms Thompson made a claim, it was necessary to decide whether the child was an FTB child with respect to her, the relevant provision upon which her claim might be based being s 22(4) of the Family Assistance Act.
25. Decisions about shared care generally are made with reference to Centrelink’s Family Assistance Guide which sets out some of the Centrelink policy for determining the percentages of shared care. I will apply the Guide here, as its use is acknowledged by Tribunals as encouraging consistency in decision-making.
26. I should say something here about the basis on which the Social Security Appeals Tribunal decided the matter. That Tribunal was persuaded to the view, accepting what was essentially Mr Butturini’s position, that Mr Butturini retained the care of the child and merely delegated aspects of his parental responsibility to Ms Thompson. The Social Security Appeals Tribunal referred to a number of indicators that their arrangement was merely that of delegation, including that Mr Butturini availed himself of actual care of the child whenever he could; taking on full care when he was on holidays; taking back the child when Ms Thompson prevented him seeing his son; and, making the major decisions such as those involving structured child care (a matter upon which Ms Thompson was not fully in agreement). I note also that Ms Thompson’s lawyers in her Family Court application made plain to her that her role was that of support person[16] and I would agree that was so, given Mr Butturini was a parent who was wanting to care for his child.
27. However, in view of the amount of care that Ms Thompson was providing in the period, and the conclusions reached by Mr Moriarty in the second Family Report some adjustment from 100% is warranted. I accept that the child was present in Ms Thompson’s home for more nights than the child was with Mr Butturini. This may not have been the intention when Mr Butturini and his mother discussed how the care would occur. It would not be expected that in a family arrangement for a small child that all the details would be spelled out. In the circumstances they would not need to be, as the grandmother was available and no doubt more than willing to look after the child. However the arrangement must have become unbalanced, to a greater extent than Ms Thompson was prepared to tolerate.
28. The Social Security Appeals Tribunal stretches the concept of delegation rather too far, on the facts here. The intention of the Act is to attempt to match payments to the reality of arrangements between people with respect to children, and what actually happens. To accept that there was merely a delegation of parental care in the unusual circumstances here, fails to take account of the conclusions, in particular, of the second of the Family Reports.
29. As Deputy President Hack of the Tribunal pointed out in Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor[17] it is important in disputed cases to take a broad brush approach; one in which a number of factors or aspects of care may be taken into account. Deputy President Hack noted that the Family Assistance Guide (the Guide) does suggest reference to nights in care as one approach, but nevertheless allows for flexibility in order to avoid inequitable results.
30. In paragraph 2.1.1.45 of the Guide, ‘Shared Care & Establishing a Pattern of Care’, it is said that where care is not agreed between claimants, what must be looked to is the “pattern of care” (ordinarily, but not necessarily, reflected by the number of nights in care and hours of care given). A pattern of care must be determined on the basis of available evidence: Wade v Secretary Department of Family and Community Services[18]:

The “pattern of care” referred to in the Guidelines has two aspects, it seems to me. In the first place it reflects the care arrangements agreed between the parties or involves a finding which has regard to the actual care arrangements for the child. It is said that “as much as possible” the pattern of care should be the pattern agreed.

31. These provisions are concerned with the “pattern of care” over a period and not with day to day variations in the care: Re Nowicz and Secretary, Department of Family and Community Services[19]. There may be more than one way of assessing a pattern of care, as indeed the Guide makes plain.
32. In this case I accept Mr Butturini’s evidence that there was an intention in the first place that Ms Thompson, as the child’s grandmother, would be there for the child while Butturini was at work and undertaking his apprenticeship. It is important to recall that in 2005 Mr Butturini was only 23 years old. Perhaps he pushed the arrangement too far. It is impossible to arbitrate this matter now. Equally, I do not that think the solution lies in denying that the pattern of care changed, even though the evidence itself is hard to resolve. As I see the matter, the arrangement between Ms Thompson and Mr Butturini began as an “agreed pattern of care”, one that would not be unusual for a grandmother who was not in paid employment to volunteer, and would have amounted to delegation only.
33. Doing the best that is possible with the evidence, it seems to me that the family tax benefit should have been divided much as it was when the shared care was decided between the parties by agreement in 2007. That is, roughly 70/30. It seems clear that at the start of the relevant period there was some sort of agreement or at least an understanding, along the lines that Ms Thompson would provide day-to-day care of the child with Mr Butturini coming and going to visit the child at her home during week days and taking the child to his father (Mr Butturini senior’s home) at weekends. This may not have been every weekend.
34. Throughout, however, Mr Butturini was the one with responsibility for the child, making the decisions about the arrangements of care including other formal child care attendance. In that respect I would treat his intention as to the arrangement as more important to an understanding of the pattern of intended care than the grandmother’s understanding of it. He was the parent and he had the residence of the child.
35. I would observe, as a final matter, that no issues of waiver of any debts that might result from the decision that I have made, were canvassed at the hearing. To do so would have been premature, in view of the dispute being about the amounts of care being provided, upon which outcome any consequential decisions about debts would be based.

DECISION

36. The Tribunal sets aside the decision under review and substitutes the decision that Daniel Butturini was qualified for 70% of family tax benefit in the period and Kathleen Thompson was qualified for 30%.
    

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:.......................[sgd]........................................................

Joan, Torbey Associate

Date of Hearing 31 October 2008

Date of Decision 16 January 2009

Solicitor for the Applicant Sharma Lawyers

Advocate for the Respondent Ms M Brazier, Centrelink

The Third Party was self-represented

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[1] Folio 104; T24.
[2] A New Tax System (Family Assistance) (Administration) Act 1999, s 10(2).
[3] Folio 135; T25.
[4] Folio 203; T48.
[5] Folio 210; T48.
[6] Folio 172; T35 and Folio 174; T37.
[7] Exhibit A1.
[8] Folio, 181; T42.
[9] Exhibit R1, Annexure A.
[10] Folio 139; T29.
[11] Folio 149; T33.
[12] Reference being made to this Interim Order in a letter at Folio 76;T15.
[13] Folio 95; T20 and Folio 147; T32.
[14] Exhibit A1.
[15] A New Tax System (Family Assistance) Act 1999, s 22(3) and 22(4).
[16] Folio 78; T17.
[17] [2006] AATA 159.
[18] [2004] FCA 1660; (2004) 139 FCR 285 at [31].
[19] [2001] AATA 628.