Bryan Kushert and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 95

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 95

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5875

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Bryan Kushert

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date10 February 2010

PlaceSydney

Decision The decision under review is affirmed.

................[sgd]..................................

Senior Member

CATCHWORDS

SOCIAL SECURITY - Family tax benefit – whether partner’s income should be taken into account in assessing eligibility for family tax benefit - decision under review is affirmed.

A New Tax System (Family Assistance) Act 1999

REASONS FOR DECISION

10 February 2010	Senior Member Jill Toohey
Background

1.      On 2 September 2008 Mr Bryan Kushert applied to Centrelink for Family Tax Benefit (FTB) for 2007-2008 in respect of his thirteen year-old daughter, Jorden. 

2.      Jorden lives with her mother.  Mr Kushert has been living with his partner, Kylie Goldspink, since March 2007 and has care of Jorden for 19% of the time.  That figure was arrived at by Centrelink and Mr Kushert does not dispute it.

3.      Centrelink rejected Mr Kushert’s application on the ground that his adjusted taxable income, combined with that of Ms Goldspink, was $94,325 and exceeded the limit to which FBT was payable. 

4.      On 19 November 2008 the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision.  Mr Kushert seeks review of that decision.

5. The parties have agreed that this review should be determined without a hearing. I am satisfied that the issues for determination can be adequately determined in their absence on the basis of the documents before me. The documents comprise Mr Kushert’s application for review, documents filed by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975, and a statement of facts and contentions filed by the respondent.

Relevant legislation

6.      Payment of FTB is governed by the A New Tax System (Family Assistance) Act 1999 (the Act).

7.      Where two people who are not members of the same couple share the care of a child in respect of whom FTB may be claimed, then the Secretary may determine the percentage to which each is entitled to FTB.  Their entitlement is apportioned according to the percentage of time each has actual care of the child.  At the time that Mr Kushert applied for FTB, a child had to be in a person’s care for not less than 10% of the time in order for the person to qualify for FTB.

8.      FBT entitlement is calculated in accordance with Schedules 1 and 3 of the Act.  By clause 3 of Schedule 3, where person is a member of a couple, his or her adjusted taxable for the year includes the adjusted taxable income for the year of his or her partner. 

The issue

9.      Mr Kushert does not dispute that Ms Goldspink is his partner for the purposes of the Act.  Nor does he dispute the calculation of his adjusted taxable income or that of Ms Goldspink.  His grievance is with the fact that Ms Goldspink’s income is taken into account when she is not Jorden’s mother and does not contribute financially to her care.  He believes that financial responsibility for a child lies with his or her parents and that it is neither appropriate nor fair that Ms Goldspink’s income is taken into account in assessing his eligibility for FTB.

10.     The sole question to be determined is whether Ms Goldspink’s income should be taken into account in determining whether Mr Kushert was entitled to FBT in 2007-2008. 

Calculation of Mr Kushert’s and Ms Goldspink’s adjusted taxable incomes

11.     The calculation of a person’s adjusted taxable income is complex and the method runs to several pages in the legislation.  It is not necessary to set it out in detail.  Documents provided by the respondent set out the calculations of Mr Kushert’s and Ms Goldspink’s adjusted taxable income for 2007-2008 by reference to the relevant provisions of the Act and I am satisfied they are correct.  I note that the SSAT also was satisfied that the calculations were correct.

Conclusion

12.     The Act does to provide for any exception or discretion that might apply in Mr Kushert’s case.

13.     I understand Mr Kushert’s grievance but, in determining this application, I can only exercise the powers conferred by the Act.  There is no discretion in the Act that would enable me to disregard Ms Goldspink’s income for the purposes of assessing Mr Kushert’s eligibility for FTB and I have no option but to affirm the decision under review. 

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey

Signed:         ................[sgd]...............................................................
           Diana Weston  Associate

Date of Hearing:  13 January 2010
Date of Decision:  10 February 2010
Applicant:  Self-represented
Solicitor for the Respondent:     Andrea Garcia, Centrelink