Allen and Anor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Allen (Third Party Joined)

[2008] AATA 911

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 911

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0085

GENERAL ADMINISTRATIVE   DIVISION		)
Re		SCOTT ALLEN, LEANNE HOPGOOD

Applicants

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

Respondent

And VIKKI ALLEN

Joint Third Party

DECISION

Tribunal Miss E A Shanahan

Date10 October 2008

PlaceMelbourne

Decision

The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 6 December 2007 relating to the period between 1 July 2005 and 20 January 2006 and the period between 1 July 2006 and 5 February 2007.

The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 6 December 2007 relating to the period between 21 January 2006 and 30 June 2006 and substitutes the decision that Leanne Hopgood’s percentage of shared care, for each of the three children concerned, for this period equated to 22 per cent.

(sgd) EA Shanahan

Member

SOCIAL SECURITY – family tax benefit – shared care – disputed percentage of care – annual assessment in payment of family tax benefit – pattern of care – night verses hours – substantial change absent – decision substituted in part.

A New Tax System (Family Assistance) Act 1999 ss 21, 22, 59 and Sch 1 Cl 11

A New Tax System (Family Assistance)(Administration) Act 1999  ss 16, 17

Re Brightman and Secretary, Department of Families and Community Services and Brightman [2004] AATA 405

Re Kasia Warne and Secretary, Department of Families, Community Service and Indigenous Affairs and Warne [2006] AATA 159

Re May and Secretary, Department of Families, Community Services and Horne [2003] AATA 1201

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

REASONS FOR DECISION

10 October 2008 Miss E A Shanahan           

1.      On 24 July 2007 an authorised review officer (ARO) of Centrelink determined the family tax benefit (FTB) entitlement of Ms Leanne Hopgood, Mr Scott Allen’s partner. In order to do so, the ARO determined that Ms Hopgood provided the following  percentage of care for the three children of Scott Allen and Ms Vikki Allen (Mr Allen’s former partner):

·Between 1 July 2005 and 20 January 2006 – nil per cent;

·Between 21 January 2006 and 30 January 2006 – 14 per cent;

·Between 1 July 2006 and 5 February 2007 – 25 per cent;

·From 6 February 2007 onwards (in respect of the twin boys, Callum and Toby) – 25 per cent; and

·From 6 February 2007 onwards (in respect of the oldest child, Mitchell) – 23 per cent. 

The FTB was paid to Ms Hopgood, a decision made by Centrelink for administrative convenience, as Ms Hopgood was already registered as a Centrelink client when she and Mr Allen lodged a Centrelink Parenting Payment – Change of Marital Status becoming Partnered form on 3 February 2006.  Centrelink acts as the service delivery agent for the Department of Families, Housing, Community Services and Indigenous Affairs (the respondent).

2.      Ms Hopgood sought a review of the ARO’s decision by the Social Security Appeals Tribunal (the SSAT).  The SSAT affirmed the decision on 6 December 2007.  Mr Allen and Ms Hopgood (now Leanne Allen) applied for a review of the SSAT decision by the Administrative Appeals Tribunal (AAT) on 7 January 2008. Ms Vikki Allen was joined as a Third Party.

3. Mr Allen represented himself and Ms Hopgood. Ms Hopgood was not able to attend the hearing as she had been confined to her home for medical reasons. Mr Mark Hester, Senior Legal Services Officer of Centrelink represented the respondent. Ms Vikki Allen represented herself. Mr Allen and Ms Allen gave evidence. The Tribunal was provided with documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).

BACKGROUND TO THE APPLICATION

4.      Scott Allen and Vikki Allen are the parents of three boys: Mitchell, born on 20 September 2001 and twins, Toby and Callum, born on 30 July 2003.  The parents separated before 1 July 2005.  The children satisfy the definition of an FTB child and the parents are eligible for FTB.  They elected to be paid FTB annually, initially on a nights-in-care basis and later on an hours-in-care basis.  The Federal Magistrates Court made an Order regarding each parent’s care of the children, arrived at by consent, on 25 July 2006.  Prior to the formal order, the parents had agreed that Mr Allen would have the care of the children for Friday and Saturday nights every second weekend, one week during holidays and ten other or alternative nights during the year.  The relationship between the parents was acrimonious and Ms Allen had taken out a Restraining Order against Mr Allen.  Contact between the parents was limited to the change over of the care of the children.

5.      On 15 April 2008 Senior Member Handley of this Tribunal conducted an Interlocutory Hearing with respect to the contents of the unedited diary of Mr Allen, relating in part to his care of the children.  Senior Member Handley ordered that the contents of the unedited diary be removed from the T-Documents. He directed Mr Allen and Ms Hopgood to prepare a list of dates relating to the care of the children and provide this list to the Tribunal, Ms Allen and the respondent, following which Mr Hester would calculate the percentage of care.  Ms Allen also provided her diary record of the dates when Mr Allen had care of the children, these entries commencing in January 2007.

6.      Prior to the hearing, Mr Hester had conducted conferences with Mr Allen and Ms Allen, separately.  This resulted in both parties agreeing to the percentage of care figures calculated by Mr Hester on an hourly basis for all periods from 1 July 2005 to the present, except for the period between 21 January 2006 and 30 June 2006.  This disputed care period was prior to the Federal Magistrate Court Order.

7.      Mr Allen had claimed in 2006 that he had 18 per cent care of the children; the SSAT calculated his care at 14 per cent; and on the data provided by Mr Allen, Mr Hester calculated that Mr Allen had, on an hourly basis, 22 per cent of the care of the children for the period under consideration. 

8.      Both Mr Allen and Ms Allen have incurred debts to the Commonwealth and FTB payments changed at the end of the financial year.  Ms Allen has repaid her debt and Mr Allen’s debt has been reduced in amount.  Mr Hester had calculated that if the figure of 22 per cent care for the period between 21 January 2006 and 30 June 2006 was accepted, Ms Allen would incur a debt of $304.20.  He advised that the respondent would most probably waive this debt in the circumstances. 

THE ISSUE

9.      The only remaining issue is to determine the percentage of care of the three children that Mr Allen and Ms Hopgood provided between 21 January 2006 and 30 June 2006.

EVIDENCE BEFORE THE TRIBUNAL

Ms Vikki Allen

10.     Early in the hearing, Ms Allen objected to proceeding without legal representation.  Mr Hester informed the Tribunal that he had held discussions with Ms Allen’s lawyer, who had advised that he should not be involved given the amount in dispute and the costs that would be incurred.  Ms Allen appeared to accept this explanation and the hearing proceeded.  She argued that Mr Allen had claimed 17.86 per cent of the care for the entire 2005/2006 financial year and at another time had claimed 18 per cent of the care; and that he should be held to those figures.  If the Tribunal was to rely on the diary entries of Mr Allen then it would be accepting that these claims were accurate.  Ms Allen said there had been inaccuracies in Mr Allen’s evidence such as his statement in the initial Centrelink claim that he and Ms Hopgood became partners on 21 January 2006 whereas he had informed the Federal Magistrates Court that he and Ms Hopgood commenced living together in December 2005.  Ms Allen said she had not kept a diary prior to the beginning of January 2007.  She agreed that Mr Allen had the three children for a ten day period in February 2006 and for all of Easter 2006, which would have increased his percentage of care in the six months under consideration.  Ms Allen was prepared to accept that Mr Allen had the care of the children for 18 per cent of the time during the period in issue but not for 22 per cent of the time. 

Mr Scott Allen

11.     Mr Allen said he had not calculated the percentage of care himself between 21 January 2006 and 30 June 2006. Instead, he had relied on the calculations determined by Centrelink, on a nightly basis.  Mr Hester’s calculations based on hourly care differed from those of the original Centrelink and the SSAT calculations and Mr Allen accepted Mr Hester’s figures.

LEGISLATION

12.     The relevant legislation is contained in A New Tax System (Family Assistance) Act 1999 (FA Act) and the relevant provisions are:

21When an individual is eligible for family tax benefit in normal circumstances

(1)An individual is eligible for family tax benefit if:

(a)     the individual has at least 1 FTB child (see section 22 and later provisions); …

22When an individual is an FTB child of another individual

(1)An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

Individual aged under 18

(2)The individual is an FTB child of the adult if:

(a)     the individual is aged under 18; and

(b)     the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and

(c)     the individual is in the adult’s care; and

(d)     the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

…

(7)        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 under subsection (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)     subsection 25(1), (1A) or (1B) does not require that the child be taken not to be an FTB child of that individual for any part of that period;

the child is to be taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.

59       Secretary may make determination where individual is FTB child of 2 people who are not members of the same couple

(1)If the Secretary is satisfied that:

(a)     an individual is an FTB child of an individual (person A); and

(b)     the FTB child is also an FTB child of another individual who is not person A’s partner;

the Secretary may determine the percentage that is to be person A’s percentage of family tax benefit for the child.

13.     Schedule 1 Clause 11 of the FA Act states as follows:

11Sharing family tax benefit (determination under subsection 59(1))

If the Secretary has determined under subsection 59(1) the percentage (the specified percentage) that is to be the individual’s percentage of family tax benefit for an FTB child of the individual, the FTB child rate for the child, in working out the individual’s standard rate, is the specified percentage of the FTB child rate that would otherwise apply to the child.

14.     Section 16(1) and s 16(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act) provide:

16Determination of instalment entitlement claim

(1)This section applies if the claim is one for payment of family tax benefit by instalment.

(2)If the Secretary is satisfied that the claimant is, at the time the Secretary makes the determination on the claim, eligible for family tax benefit in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act, the Secretary must determine that the claimant is entitled to be paid family tax benefit for each day on which the determination is in force at the daily rate at which the Secretary considers the claimant to be eligible.

15. Section 17 of the Administration Act states:

17Determination of past period entitlement claim

If:

(a)the claim is one for payment of family tax benefit for a past period; and

(b)the Secretary is satisfied that the claimant was eligible for family tax benefit:

(i)     for the whole of the period in accordance with Subdivision A or C of Division 1 of Part 3 of the Family Assistance Act; or

(ii)     for part of the period in accordance with Subdivision A of that Division and for the remainder of the period in accordance with section 31 of that Act;

the Secretary must determine that the claimant is entitled to be paid family tax benefit for the past period.

16.     The respondent’s Family Assistance Guide (the Guide) provides instructions on how to interpret and estimate shared care and the establishment of a pattern of care.  

TRIBUNAL’S DELIBERATIONS

17.     The Tribunal has checked Mr Hester’s figures and accepts them as correct on the basis of the evidence provided.

18.     While this may not entirely reflect the exact hours of care, the overall figures, particular those from January 2007 do establish a pattern of care and the parties agree that this is the case.

19.     In Re Brightman and Secretary, Department of Family and Community Services and Brightman [2004] AATA 405 the Tribunal quoted with approval the decision in Re Nowicz and Department of Family and Community Servicesand Nowicz [2001] AATA 628 (at para15):

…A common sense approach necessarily means that …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 Tribunal] is then in a position to determine what pattern of care has existed, or will exist in relation to the relevant FTB child.

The Senior Member went on to say that (at para 16)

Once established it is appropriate that variation only occur where there is to be a significant departure in an established pattern of care.  This may occur, for example, when contact weekends are changed from fortnightly to monthly.  It would not occur when the odd weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period.

20.     In Re Kasia Warne and Secretary, Department of Families, Community Services and Indigenous Affairs and Warne [2006] AATA 159 Deputy President Hack said (at para 25):

In approaching the task of determining the pattern of care I have considered the matter with a broad brush. The Guide, rightly in my view, accepts that no adjustment to FTB is warranted for minor variations in care arrangements. Consistently with that approach I do not propose to make any adjustment for the occasions when Mrs Warne was present whilst Mr Warne had primary care of the children nor do I propose to make any adjustment for the likely number of occasions there were variations as between the parties to suit the convenience of one or the other. …

and in Re May and Secretary, Department of Families, Community Services and Horne [2003] AATA 1201, Deputy President Forgie, in reference to s 25 and s 22(7) of the Act said (at para 32):

… They recognise that there may be gaps in the care and that there may be variations in the pattern of the care.  The important thing is that there is a pattern of care over a period.  There are, however, occasions on which the variations are such that there can no longer be said to be a pattern of care or that the pattern of care has changed to the extent that it is a new pattern. …

21.     The Tribunal is satisfied that there is an existing pattern of care, albeit there may have been some variations in this pattern but none of these have been substantial. 

22.     The Tribunal adopts the percentage of care calculations provided by Mr Hester in relation to the period between 21 January 2006 and 30 June 2006. In all other respects the decision of the SSAT is affirmed.

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan

(sgd) Mara Putnis

Clerk

Date of Hearing  26 August 2008
Date of Decision  10 October 2008
Self Represented  Mr Scott Allen (Applicant)
Self Represented  Ms Vikki Allen (Third Party)
Advocate for the Respondent       Mr Mark Hester, Centrelink Legal Services