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

[2010] AATA 337

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 337

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6156

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL BORG

Applicant

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

Respondent

And MELANIE REEVES

Other Party

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date7 May 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Family tax benefit – Whether the percentages used to determine the rate of family tax benefit were calculated correctly – Decision affirmed.

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

Nowicz and Secretary, Department of Family and Community Services and Another (2001) 65 ALD 314

Wade and Secretary, Department of Family and Community Services and Another (2004) 87 ALD 26

REASONS FOR DECISION

7 May 2010 Mr S Karas, AO, Senior Member

BACKGROUND

1.      Paul Borg (the applicant) and Melanie Reeves (the other party) have a son who was born in March 2002.  On 26 November 2008, the Social Security Appeals Tribunal (SSAT) decided that from 21 July 2008 the applicant had 48% of the care of his son and the third party had 52%.  Both parents were paid family tax benefit in relation to their son based on those percentages.

2.      On 26 August 2009, the applicant requested his percentage of care be reassessed on the basis that he had 51% of the care of his son pursuant to a new Court Order issued by the Federal Magistrates Court on 28 July 2009 relating to the care arrangements.

3.      Centrelink decided that the applicant had 44% of the care of his son from 28 July 2009 based on his care being 164 nights per year as calculated by Centrelink pursuant to the court order.

4.      The applicant requested a review of that decision by Centrelink.  On 22 September 2009, an Authorised Review Officer affirmed the decision.  The applicant appealed that decision to the SSAT on 6 October 2009.  On 4 December 2009, the SSAT affirmed the earlier decision.  On 30 December 2009, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

ISSUES AND LEGISLATION

5.      The issue to be determined by the Tribunal is the percentage of care to be attributed to the applicant and the third party and consequently the family tax benefit to be paid to each.

6. The legislative provisions relevant to this matter are found in ss 21, 22, 25 and 59 of A New Tax System (Family Assistance) Act 1999 (Cth) (the Act). Unless there are cogent reasons to the contrary the Tribunal should also have regard to the respondent’s Family Assistance Guide, particularly paragraphs 2.1.1.25, 2.1.1.45 and 2.1.1.50.

7. Under s 21 of the Act an individual qualifies for family tax benefit (FTB) if they have an “FTB child”. Section 22 of the Act sets out how a child is an “FTB child”. Furthermore, notwithstanding s 22 of the Act, s 25 provides that if a child is in the care of an individual for less that 35% of a period, that child is taken not be an “FTB child”. Payment of FTB for a child can be shared between two people who are not members of the same couple, and s 22(7) allows payment to two people where there is a “pattern of care”. Section 59 of the Act provides for the determination of the percentage share of the FTB payable to each person who share the care of an “FTB child”.

8. As indicated earlier, Centrelink’s policy on determining a person’s shared care percentage under s 59 of the Act is referred to in the Family Assistance Guide. The Guide provides that where there is a disagreement about care arrangements for children, the policy requires that a care percentage be applied according to the evidence of what is the actual pattern of care in the case.

EVIDENCE

9.      The applicant stated in part at the hearing of the matter on 20 April 2010 that he was concerned that the SSAT had given Centrelink a direction and Centrelink did not follow it as it had in the past.  His care of his son had been worked out previously on the hours of care and not on a nightly basis.  However, the SSAT in its latest decision indicated that the care arrangements were to be calculated on nights and not hours.  He indicated he had care of his son predominately throughout the day and has been unable to work full time for the last three years.

10.     He confirmed the current care arrangements were in accordance with the Federal Magistrates Court Order in July 2009.  The applicant believes he would requalify for 48% due to the extra time he cares for his son like on school holidays.  The applicant further feels that the SSAT in its 2009 decision “disregarded the previous 7 years arrangements”.

11.     The applicant confirmed that he had abided by the Federal Magistrates Court Order of 28 July 2009 and that there had been no change to that order.

12.     The applicant referred to the job capacity consultant, Mr Burke and his association with Centrelink and how he could not assist the applicant’s case.  Reference was made to Mr Burke’s assessment report to Centrelink dated 31 July 2009 (exhibit B).

13.     The applicant confirmed his health and that of his son that he attends school regularly and is in grade 3.  The applicant takes him to and from school on the days the applicant is responsible for his son’s care. 

14.     Ms Reeves, the other party, confirmed that both she and the applicant adhere to the Court Order in their care arrangements for their son.  She states that she is happy to go along with the care arrangement calculation by Centrelink and whatever decision is made.

15.     Mr McQuinlan for the respondent informed the Tribunal that Mr Burke was not an employee of Centrelink but was a contractor.  He referred to the Federal Magistrates Court Order and stated that the care arrangement calculation by Centrelink was in accordance with policy and the relevant legislation.  Mr McQuinlan referred to the Facts and Contentions (exhibit C) submitted in this matter and also how the SSAT in the decision under review had referred to the applicant seeking a 51% care arrangement for the child.  He referred to the SSAT decision in 2008 that led to Centrelink’s calculation of the care arrangement percentages based on hours and to the later SSAT decision that based its percentage calculations and decision on the nights for the child’s care arrangements based on the July 2009 Federal Magistrates Court Order.

16.     He referred to Centrelink consistently calculating care arrangements on nights in accordance with policy and not hours as it had done following the SSAT decision in 2008.  Whether the care arrangement calculations are calculated on the basis of hours or nights is at the discretion of the decision maker.

CONSIDERATIONS AND FINDINGS

17.     From the evidence and material before it, the Tribunal finds that the care arrangements for the child and his parents is in accordance with the Federal Magistrates Court Order dated 28 July 2009.  Evidence has been presented that Centrelink’s calculation of the care arrangements for the child using nights and not hours following the latest decision by the SSAT in this matter is consistent with the practice and policy as reflected in the legislation and Family Assistance Guide.  Further, there are no urgent reasons for that policy to be departed from especially here when the SSAT decision under review was being followed.

18.     Although the applicant submitted that Centrelink should have continued to follow the earlier SSAT decision based on a Court Order in 2005 when the child was an infant, the Tribunal finds that it is not relevant to the proceedings on the basis that the decision of the SSAT was made on its own facts and circumstances at another time.  The Tribunal notes that in the form headed “Details of your child’s care arrangements” dated 26 August 2009 submitted to Centrelink by the applicant, indicated that the applicant would be providing 51% of the care for the child.

19.     The Tribunal notes that neither party disputed the Federal Magistrates Court Order dated 28 July 2009 as an accurate record or reflection of the care arrangements for the child.  Indeed both parties indicated they were following it.  The Tribunal further finds that the calculations of the care arrangements for the child using nights and not hours is in accordance with the legislation and policy in this regard.  Further, there is no urgent reason to depart from this in spite of the applicant’s protestations to the contrary.  Counsel for the respondent referred to Wade and Secretary, Department of Family and Community Services and Another (2004) 87 ALD 26 and Nowicz and Secretary, Department of Family and Community Services and Another (2001) 65 ALD 314 in this regard. The report by Mr Burke does not assist in relation to the matter before the Tribunal as the Tribunal’s role is to review the matter of FTB in relation to the child in accordance with relevant legislation.

20.     The Tribunal finds that in accordance with the care arrangements for the child as indicated in the Federal Magistrates Court Order dated 28 July 2009 the applicant has the care of his son for 164 nights in a year and his percentage care in this regard for the FTB purposes is 44%.  Consequently, the Tribunal finds that Centrelink has properly determined the amount of FTB payable to him in the circumstances of this case.

DECISION

21.     The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed: ...........................[Sgd]..................................................
  Kate Slack, Research Associate

Date/s of Hearing  20 April 2010
Date of Decision  7 May 2010
The Applicant was self represented
The Other Party was self represented
For the Respondent                  Rick McQuinlan, departmental advocate