Bohnstedt and Secretary, Department of Social Services (Social services second review)
[2016] AATA 599
•12 August 2016
Bohnstedt and Secretary, Department of Social Services (Social services second review) [2016] AATA 599 (12 August 2016)
Division
GENERAL DIVISION
File Number
2015/2816
Re
Sven Bohnstedt
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Kylie Gronberg-Greenhill
JOINED PARTY
DECISION
Tribunal Deputy President Bernard J McCabe Date 12 August 2016 Place Brisbane The decision under review is set aside pursuant to s 43 of the Administrative Appeals Tribunal Act 1975. It is decided in substitution that:
(a) The existing care determinations are revoked because they do not accurately reflect the shared care percentage;
(b) A fresh care determination be made for the period 1 January 2013 through 31 December 2013 in which the applicant had 32% of the shared care; and
(c) A fresh care determination be made for the period 1 January 2014 through 31 December 2014 in which the applicant had 35% of the shared care.
.......................[Sgd].................................................
Deputy President Bernard J McCabe
Catchwords
SOCIAL SECURITY – family tax benefit – determination of shared care percentage – whether the applicant had more than 35% care in the relevant period – whether shared care should be determined by hours children spent in the applicant’s care – period for determination – whether two years can be considered one period – one period is one year – shared care to be determined by nights of custody per year – decision under review substituted – existing care determinations revoked – the applicant had less than 35% shared care in calendar year 2013 – the applicant had more than 35% shared care in the calendar year 2014
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth) ss 23, 35J, 35P, 59
Administrative Appeals Tribunal Act 1975 (Cth) s 43Cases
QFZS and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 98
Secondary Materials
Guide to Social Security Law (2013, Cth), Part 2.1.1.45
REASONS FOR DECISION
Deputy President Bernard J McCabe
12 August 2016
REASONS FOR DECISIONXXXX
Sven Bohnstedt, the applicant, and his former partner, Kylie Gronberg-Greenhill, disagree over their respective entitlements to the family tax benefit (FTB). Centrelink, on behalf of the Secretary of the Department of Social Services, initially granted Mr Bohnstedt the FTB from 1 July 2013 on the basis that he had at least 35% care of the couple’s three children. But an authorised review officer (ARO) changed the decision after Ms Gronberg-Greenhill sought a review. The ARO concluded Mr Bohnstedt only had 33% care of the children from 1 January 2013. That is a problem for the applicant because a parent is not entitled to be paid FTB in respect of an FTB child over a period unless the parent has at least 35% care of the child during that period. The Social Security Appeals Tribunal (as it then was) (the SSAT) reached a different view about the percentages of care. It made a care determination that specified the applicant had 31% care over the period 1 July 2013-30 June 2014 and 34% care in the period after 1 July 2014. The end result was the same: the applicant, Mr Bohnstedt, was not entitled to be paid FTB. He has now asked this Tribunal to review the decision.
The law
The relevant law is contained in the A New Tax System (Family Assistance) Act 1999 (the Assistance Act). The legislative scheme permits a parent to claim FTB with respect to an FTB child. Special arrangements apply where two parents are both eligible to apply for FTB in relation to the same children – most obviously because the parents are no longer members of a couple and they have shared responsibility for the children. The Assistance Act permits the Secretary to make an assessment of the percentage of care each parent has with respect to the children and divide the FTB between the parents accordingly. But s 59 makes it clear a claimant must have at least 35% care but not more than 65% if he or she is to have a "shared care percentage”. A parent who has less than 35% shared care will not be paid anything.
The Secretary has already made a care determination with respect to the three children. That determination is set out in the decision of the SSAT. The care determination that is currently in force must be revoked before a new care determination is made. That can only occur in the circumstances described in s 35P of the Assistance Act. I will assume for the purposes of the argument that it is appropriate to set aside the determination which has been made.
The Secretary played a neutral role in these proceedings. Ms Whittemore, who appeared on the Secretary’s behalf, provided a statement of facts and contentions that usefully summarised the evidence of both parties and the relevant legislation. The Secretary argued I should focus on the period 1 January 2013 through 30 December 2013 and 1 January 2014 through 30 December 2014. That was a different timeframe than the one considered by the SSAT. The Secretary says I should prefer the longer period examined by the ARO. The Secretary said the SSAT erred when it considered a different period.
I accept it is appropriate to have regard to the timeframe considered by the ARO for the reasons explained by SM Britton in QFZS and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 98 at [10]-[11].
Having established a timeframe, I am next required to consider the pattern of care (translated into a percentage) the parents had in relation to the FTB children: s 35J of the Assistance Act. The usual starting point will be the arrangements the parties have agreed with respect to the children. In this case, there were court orders made in 2010 that provided for the applicant to have care of the children four days per fortnight with half the school holidays in 2013. The orders had lapsed after the end of the holidays in 2013 but Mr Bohnstedt and Ms Gronberg-Greenhill said the parties generally continued to observe them in the period under review, with a few exceptions, until fresh orders were made.
In making my calculations, I am entitled to refer to the number of nights the children spent in Mr Bohnstedt’s care: s 35J of the Assistance Act. But I can calculate the time spent in care in different ways – most obviously by reference to the number of hours. Mr Bohnstedt said there were a number of occasions when he had care of the children for longer hours in a day than expected, so the ‘nights in care’ approach is inappropriate. He spoke in his oral evidence about spending extra time with the children in connection with their attendance at a swimming club. He also said he would routinely pick up the children early and return them to their mother later by agreement.
Ms Gronberg-Greenhill acknowledged there were occasions when the applicant spent longer hours with the children by agreement but pointed out there were ‘swings and roundabouts’: she also spent more time with the children on occasion. I am not satisfied the ‘nights in care’ approach is inappropriate in this case, so I propose using it.
There was also evidence about a dispute that arose in January 2014. Mr Bohnstedt was accustomed to having care of the children for half their school holidays, and the children had been with their mother at the start of the school holidays in December 2013. The children were not delivered to Mr Bohnstedt in January as expected. There was a dispute which was not resolved until fresh court orders were made in February. The applicant says he is entitled to include in his calculations up to 26 days over January when the children should have been in his care, though I note he has previously claimed only 24 days in that period: exhibit one, p 213.
I acknowledge the applicant is entitled to count the nights he was otherwise entitled to have the children as part of his tally: see s 23 of the Assistance Act. But I do not accept the correct figure is 26 days. The applicant was entitled to have the children for half the school holidays each year. As a practical matter, given virtually the whole of January prior to Australia Day was a holiday period, he was entitled to have the children for half the month. I take that view because I am satisfied I should have regard to two discrete periods of 12 months rather than make an assessment over a two year period.
Mr Bohnstedt said it made sense to look at a two year period rather than two consecutive 12 month periods. On that approach, he says he is entitled to succeed in the claim for FTB because, by his calculation, he had care of the children on 255 or perhaps 256 nights over the two year period. When reduced to a percentage, that would amount to 34.93% care (if he had 255 nights of care) or 35% (if he had 256 nights of care) over the two year period. If I accepted Mr Bohnstedt had 256 days, he would be entitled to the FTB over the whole two year period under review.
The Secretary says that is not the correct approach. The Secretary argues I should make two assessments, each for a 12 month period. That is the approach contended for in the Social Security Guide at Part 2.1.1.45. I am not bound by the Guide but I agree with the Secretary’s approach. FTB is paid on a yearly basis so it makes sense that the percentage of care be determined over a 12 month period. There is no sufficient reason to depart from that norm in this case.
Mr Bohnstedt and Ms Gronberg-Greenhill both gave evidence at the hearing, and they provided calendars and other records. The Secretary helpfully analysed documents in the state of facts and contentions. That evidence suggests the applicant cannot succeed in relation to the period 1 January 2013 - 31 December 2013 because on his own evidence he had care of the children for 117 nights during that period – which is 32% of shared care.
The outcome in respect of the period 1 January 2014 through 31 December 2014 is different. The calendars provided by Ms Gronberg-Greenhill in relation to that period concede the applicant had care for 118 nights. That figure does not account for the nights in January 2014 where the children remained in her care beyond the agreed time while the parties were involved in a dispute. I have already indicated I am satisfied it was appropriate that the applicant be able to take into account half of the school holidays in January 2014 – that is, 13 out of 26 days. The applicant’s calendars and submissions estimated he had or was deemed to have care for a total of 136 nights. His estimates are inflated partly because he counted more days for the school holidays than I would allow, although there is still a discrepancy between the submissions on actual nights in care. In the circumstances, I prefer the evidence of Ms Gronberg-Greenhill which acknowledged the applicant had 118 nights of care. Her evidence relied on documents and has been relatively consistent whereas it was less clear how Mr Bohnstedt’s arrived at his estimates. In the circumstances, I accept the applicant had 118 nights in care plus 13 nights in which he is taken to have care of the children. Translated to a percentage, that is 35.8%, which must be rounded down to 35% shared care.
Conclusion
The decision under review is set aside pursuant to s 43 of the Administrative Appeals Tribunal Act 1975. I decide in substitution that:
(a)The existing care determinations are revoked because they do not accurately reflect the shared care percentage;
(b)A fresh care determination be made for the period 1 January 2013 through 31 December 2013 in which the applicant had 32% of the shared care; and
(c)A fresh care determination be made for the period 1 January 2014 through 31 December 2014 in which the applicant had 35% of the shared care.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe ........................[Sgd]................................................
Associate
Dated 12 August 2016
Date of hearing 8 April 2016 Date final submissions received 21 April 2016 Applicant In person Advocate for the Respondent Katherine Whittemore Joined Party In person
1
1
2