Confidential and Secretary, Department of Social Services and Anor
[2014] AATA 70
•14 February 2014
[2014] AATA 70
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1536
Re
Confidential
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Confidential
OTHER PARTY
DECISION
Tribunal Mr Conrad Ermert, Member
Date 14 February 2014 Place Melbourne The Tribunal sets aside the reviewable decisions dated 4 March 2013 and substitutes the decision that, for the period 1 February 2009 to 26 April 2010, each party cared for their son 50 per cent of the time.
The Tribunal remits the matter to the respondent under section 43 of the Administrative Appeals Tribunal Act 1975 to recalculate the Family Tax Benefits (FTB) payable to each party and to determine the consequences of that recalculation.
[sgd]........................................................................
Mr Conrad Ermert, Member
SOCIAL SECURITY – jurisdiction to review SSAT decisions – eligibility for family tax benefits – shared care – percentage of care – decision set aside – whether a debt is owed to the Commonwealth – can the debt be written off or waived – decision remitted
Legislation
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance)(Administration) Act 1999
Cases
Re Mason and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Hamer [2008] AATA 1105
REASONS FOR DECISION
Mr Conrad Ermert, Member
14 February 2014
The applicant, A (father) and the other party, B (mother) are the parents of C, who is 9 years old. The couple separated in February 2009. At that time they were living in Toowong, a suburb of Brisbane. In August 2009, A moved to Camberwell in Melbourne. B and C moved to Melbourne sometime between early September and mid-October 2009. C attended a day care centre from September 2009 and in February 2010 he commenced primary school.
In a parenting plan signed on 4 June 2009, the parties agreed to share parental responsibility for C equally. On 30 October 2009 the parties engaged in mediation (T-document 5) and agreed, amongst other things, that both parents shall have equal shared parental responsibility for C and that C shall spend time with his parents at reasonable times, by agreement.
On 19 February 2010 A lodged a Details of Your Child’s Care Arrangements form with Centrelink, the service provider for the Department of Social Services and its predecessor, the Department of Families, Housing, Community Services and Indigenous Affairs (the Department). In the form (T6), A stated that he had 58 per cent care of C. On the same date another Details of Your Child’s Care Arrangements form was lodged with Centrelink that was signed by A and B. B recorded 1 December 2009 as the date from which she had 58 per cent care of C and A had 42 per cent. A had crossed out those percentages and reversed them.
On 14 April 2010 a departmental officer notified A that his FTB rate was based on 58 per cent care of C.
On 27 April 2010 B advised Centrelink (Supplementary T (ST)-document 31) that C “was solely in my care for the time period from 01.02.09 – 01.12.09”, and “during the time period between September and December [C] was predominantly in my care”, and that from the beginning of December 2009 she cared for C 58 per cent of the time with C spending 42 per cent of his time with A. On 28 April 2010 A lodged a statement in which he estimated that he was responsible for 58 per cent of the custodial care of C from February 2009 and B was responsible for 42 per cent.
On 7 May 2010 an officer of the Department notified A of a decision, the first decision, to pay him FTB based on his having 42 per cent care of C. On 2 August 2010 an officer of the Department notified A of a decision, the second decision, to raise and recover an FTB debt of $484.54 for the period between 1 December 2009 and 26 April 2010.
An authorised review officer (ARO) affirmed the first and second decisions on 9 September 2010. On 14 August 2012 A applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision. Although A’s application for review was outside the time limit, the SSAT was satisfied that it was appropriate to extend the time for bringing the review proceedings. The SSAT then considered whether A’s care of C from 1 December 2009 was set correctly at 42 per cent. The Tribunal also considered whether a different level of care should be set for the parties from a date before 1 December 2009.
On 4 March 2013 the SSAT affirmed the ARO’s decision (the percentage of care decision). The SSAT determined further that it would not change the Centrelink payments made between 1 February 2009 and 30 November 2009. On 4 March 2013 the SSAT also affirmed the ARO’s decision relating to the FTB debt of $484.54 for the period between 1 December 2009 and 26 April 2010 (the debt decision).
Although not recorded in the SSAT decision, from the date of the couple’s separation, taken as 1 February 2009, until 1 December 2009, B had been receiving FTB on the basis that she had 100 per cent of Cs care; and A received no FTB payments.
This matter is an application for review of the SSAT’s decisions.
THE HEARING
I heard the matter on 22 October 2013 and 22 January 2014. A gave evidence under oath. On 22 January 2014 I heard oral evidence, on behalf of A, by telephone, from Mr X and Ms Y. B declined to appear either in person or by telephone. Mr Noonan, a departmental lawyer, represented the respondent.
I took into evidence the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act) – the T-documents and the Supplementary T (ST)-documents (Exhibit R1). A number of the T-documents and the ST-documents were confidential to and/or contained personal information of A and were not provided to B. Other T-documents and ST-documents were confidential to and/or contained personal information of B and were not provided to A. Neither party gave authority for those documents to be provided to the other.
In addition, for the respondent, I took into evidence a record of payments made to B from 5 January 2009 to 5 July 2010 (Exhibit R2).
For A, I took into evidence letters from school staff members at two primary schools that C attended dated 7 August 2013 and 9 August 2013 (Exhibit A1 and A2, respectively), letter from Mr X, received 18 November 2013 (Exhibit A3) and letter from Ms Y, dated 1 November 2013 (Exhibit A4).
THE ISSUES
Preliminary Issue
The respondent posed a preliminary issue, namely whether this Tribunal can review the SSAT’s decision to extend the time for A to apply for a review of the original decisions. In his Statement of Facts and Contentions (SF&C), the respondent referred the Tribunal to the decision of Re Mason and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Hamer [2008] AATA 1105, in which the Tribunal decided that it had no jurisdiction to review the SSAT’s decision.
In that case the Tribunal said at paragraph 10:
10.“The Administrative Appeals Tribunal has no jurisdiction to review this decision of the SSAT in accordance with section142 of the Social Security (Administration) Act 1999. That section permits the SSAT to affirm, vary or set aside a decision of the Secretary, the CEO or an ARO. The SSAT, however, did not reconsider or review a decision of any of these persons with the result that it did not affirm, vary or set aside a decision of the Secretary …
11. As the SSAT did not conduct any review of the decision made in June 2004, there is no reviewable decision before me. This means I cannot review the SSAT decision of 6 February 2008”
In his SF&C, the respondent submitted that in making its extension of time decision, the SSAT did not affirm, vary or set aside a decision of the respondent. Accordingly, the Tribunal has no jurisdiction to review the SSAT’s decision to extend the time for A to apply to the SSAT, “Accordingly, the Tribunal can consider [A]’s claim for an increased rate of FTB based on his percentage of care of [C] during the period 1 February 2009 to 26 April 2010”.
A made no submissions in regard to this preliminary issue.
I accept the respondent’s submission on the preliminary issue and find accordingly. I will now proceed to consider the principal issues.
Principal Issues
The principal issues are:
(a)What are the percentages of care attributable to A and B in respect of C?
(b)What are the periods of care applicable to those percentages?
(c)Whether A owes a debt to the Commonwealth with respect to the period 1 December 2009 to 26 April 2010; and
(d)Whether all or part of that debt should be waived or written off.
THE EVIDENCE – 22 OCTOBER 2013
A stated that he and B separated in February 2009. A month later he moved into her parents’ home with C. At this time, he was caring for C four days a week. In August 2009 he moved to Melbourne. He said he travelled back to Brisbane each week and spent the Fridays, Saturdays and Sundays there to care for C. In October 2009 B and C moved to Melbourne. C was enrolled in a day care centre. A said he collected C from the day care centre and that he cared for C three to four days, each week. He said this continued until February 2010, after which he and B shared care for C on a 50/50 basis.
Mr Noonan referred A to paragraph 18 of the SSAT’s percentage of care decision which referred to a letter from B detailing her claimed nights of care for the months of December 2009 to April 2010. A said that February 2010 was the only month that they did not share care on a 50/50 basis. When asked for more details about his care for C, A said that B left his house in mid-March 2009. He had 100 per cent care of C for the next month. In mid-March he moved into her parents’ house. Between March and August 2009, they had a loose arrangement of three to four days of care each. A said he had C on Mondays, Wednesdays, Thursdays and Fridays. They were flexible over Tuesdays. He said that B commonly worked on weekends and in the evenings.
Mr Noonan referred to a letter to Centrelink written by Ms Z dated 24 May 2010 (ST 33) in which she said “From my understanding during the period (01.02.09 – 01.12.09) [C] was living in his Mother’s care [B]. [C] was visited by his father, but they did not live in the same home and the father lived in Melbourne”. A disputed the statement saying that he lived in her parents’ house.
A also disputed the entry at Question 14 in T6 “Ex partner [B] completed FAOR stating never being (sic) married”. He stated that they were married.
Mr Noonan asked A for more detail about the arrangements in Melbourne. A said that they enrolled C at a primary school on 2 February 2010. He lived only a ten-minute walk from the school. He said that he and B shared equally the day care fees, the school fees and all expenses, from February 2009 to the present.
Mr Noonan referred to A’s overseas trips as detailed in the respondent’s SF&C. A agreed they were accurate and said that he made up the care time to be equal. He said that B went somewhere before C started school but they “made it up”. He summarised his care of C, saying he had 58 per cent care from February 2009 to the end of January 2010, and 50 per cent care from 2 February 2010 to the present. He said the change was occasioned by C starting school, when he and B adopted a “week about” care arrangement.
Mr Noonan asked A for his explanation of the disparities between the Details of your child’s care arrangements forms, T6, and ST30, both date stamped 19 February 2010. A said that T6 was B’s document, that he signed it, but should not have done so. He said his document was T14, date stamped 2 June 2010, but he had no explanation for the different dates.
When referred to the intervention order mentioned in B’s letter to Centrelink, dated 27 April 2010 (ST32, page 39), A said that it was the reason the 50/50 care arrangement did not start until the end of February 2010. He said, however, that he made up the three weeks of the intervention order by having C for three and a half weeks in March and April 2010 when B went away for a week and a half.
Mr Noonan asked A for his responses to specific statements in the letter sent by B to Centrelink dated 27 April 2010 (ST31, page 35), to which A responded as follows:
(a)“[C] was solely 100% in my care for the time period from 01.02.09 – 01.12.09” – disagree;
(b)“[C] and I moved … beginning of December 2009” – agree; and
(c)“Your office is aware of the current standing arrangement …58% in my care, 42% in the care of his father” – disagree.
Referring to B’s letter to Centrelink also dated 27 April 2010 (ST32, page 38), A agreed that C attended the day care centre from the start of September 2009. He stated further “[s]he moved down in October. I moved in September. [C] is registered at [the primary school] under his father’s name. I don’t know about the Outside School Hours”. Referring to the table on page 38, A said that the care was roughly 50/50 in terms of hours. He said further that after about the first three months of C’s schooling he and B went to a “week about” care arrangement.
Referring to a further Details of your child’s care arrangements form dated 1 June 2010 (ST34, page 59) A said he disagreed with the 58 per cent care for B and the statement “Prior to 1.12.09 [C] was in my care full time (100%)”. A disagreed with a similar statement on page 63.
Mr Noonan referred to the letter from a staff member at one of C’s primary schools dated 7 August 2013 (Exhibit A1) and asked how the staff member would know of the care arrangements. A said that she would see them on a weekly basis and at performance discussions. In regard to the letter by a staff member at another primary school dated 9 August 2013 (Exhibit A2), A agreed that it did not relate to the period under discussion and was not relevant to these proceedings.
Mr Noonan asked A a series of questions related to the existence of a debt to the Commonwealth and any circumstances said that could be considered special in the terms of the Act. A responded:
(a)He considered Centrelink had made an administrative error in changing his care percentage from 58 per cent as shown in T7, dated 14 April 2010, to 42 per cent as shown in the notification dated 7 May 2010 (T13);
(b)He is self-employed and that business is slow;
(c)He has a credit card debt of $5,500 and pays a monthly mortgage of $960.00; and
(d)He has a rental property in Queensland worth approximately $320,000.
At this point, I adjourned the hearing to enable A to obtain further witness statements.
THE EVIDENCE – 22 JANUARY 2014
I heard telephone evidence from Mr X and Ms Y.
Under affirmation Mr X agreed that his undated statement, Exhibit A3, was true and correct. In answer to questions from Mr Noonan, he agreed that the information provided in his statement related to the period from August 2009 to April 2010, and that it was based on what he had been told by A at their regular meetings. He had not personally observed C in the care of A.
Under affirmation Ms Y agreed that her statement dated 1 November 2013, Exhibit A4, was true and correct. She said she had a good recollection of the events despite the four-year interval. She used to see A collecting C from the day care centre. She would also know when C was staying with A because her own son, who was friendly with C would speak to him on the telephone and would recount to her that C spoke about being with Daddy. Ms Y added that, from her own knowledge, B had work commitments which were not very flexible and that A would take care of C, when needed.
SUBMISSIONS
A submitted that from February 2009 to August 2009 he cared for C three to four days a week. He moved to Melbourne in August 2009 but flew back to Queensland each week to look after C. He said that B moved to Melbourne soon afterwards and they shared care at three to four days a week until April 2010. Then they adopted a 50/50 care arrangement. He said the three to four days was always flexible and that they shared care on a 50/50 basis. A concluded by submitting that, from February 2009 to the end of November 2009 he had 58 per cent care of C, and from December 2009 to 26 April 2010 he had 58 per cent care of C.
Mr Noonan summarised the competing claims as follows:
(a)A: from mid February 2009 to end February 2010 on average he had 58 per cent of the care of C; and from end February 2010 to 26 April 2010 he had 50 per cent of the care.
(b)B: from February 2009 to 30 November 2009 she had 100 per cent of the care of C; and from 1 December 2009 to 26 April 2010 she had 58 per cent of the care.
In regard to the period from mid-February 2009 to 30 November 2009, Mr Noonan submitted that neither party had documentary evidence to corroborate their contentions. He said that Ms Y gave partial corroboration to A’s evidence. However, her evidence was vague and he questioned whether she was really in a position to know. Mr Noonan contended that Mr X’s evidence was based on hearsay and should be given little weight. Mr Noonan contended further that B’s supporting evidence was untested.
For the period between 1 December 2009 and 26 April 2010, Mr Noonan submitted that there was no corroborative documentation to distinguish which version of events was more credible.
CONSIDERATION
Starting with the period between 1 February 2009 and 30 November 2009, I note the conflicting evidence of the parties. A claims 58 per cent of C’s care, while B claims 100 per cent of the care. A appeared at the hearing, gave his evidence under oath and was cross-examined on his evidence. Ms Y submitted a witness statement covering the period up to and including August 2009, based on her own observations, which supports the statements of A that over that period he cared for C three to four days a week. Ms Y confirmed her statement when giving her oral evidence. B’s claims of 100 per cent care over this period are untested and uncorroborated. She declined to appear at the hearing.
For the period between 1 February 2009 and the end of August 2009, I accept the evidence of A, supported by that of Ms Y that A cared for C on average three to four days a week. As there is no corroborated evidence to the contrary, I also accept A’s evidence that he cared for C three to four nights a week for the remainder of the period until 30 November 2009. Accordingly, I find that C was in the care of A for three to four nights a week for the period between 1 February 2009 and 30 November 2009.
In considering what three to four nights a week means in terms of percentages of care, I note the Parenting Plan agreed to by A and B on 4 June 2009 (T4). In that plan, they agreed that “Both parent shall have equal shared parental responsibility for [C]”. This agreement was confirmed at the mediation conducted on 30 October 2009 (T5). I note also the evidence of A, in which he said on a number of occasions that, while they were flexible with their periods of care, they always made up any differences. From this evidence, I accept that the intent of the shared care plan was for both parties to have an equal share of the care, meaning that each party had 50 per cent share of C’s care over the period. Accordingly, I find that for the period between 1 February and 30 November 2009, A and B had 50 per cent care of C.
There is also no corroborated evidence in support of either party’s claims for the period between 1 December 2009 and 26 April 2010. However, I am prepared to accept the evidence of A as it was given under oath and subjected to cross-examination. B declined to appear and her statements remain untested. The statements purporting to support her evidence were likewise untested. Their authors were not presented as witnesses to the hearing. Accordingly, I accept the evidence of A that, between 1 December 2009 and 26 April 2010, A cared for C three to four nights per week. Although, in his submissions, he specifically contended that his care was for 58 per cent of the time, I have not seen any evidence to suggest that the basic care agreement between the parties varied from the 50/50 arrangement they had for the previous year. As a consequence, I find that, for the period between 1 December 2009 and 26 April 2010 the parties shared their care responsibilities for C at 50 per cent each.
As my findings will significantly vary the amounts of FTB to be paid to each party it is not possible to determine if or to what extent either party may owe a debt to the Commonwealth. The matter needs to be remitted to the respondent for a recalculation of the amounts of FTB payable to each party.
DECISION
The Tribunal sets aside the reviewable decision dated 4 March 2014 and substitutes the decision that, for the period between 1 February 2009 and 26 April 2010, each party cared for their son 50 per cent of the time.
The Tribunal remits the matter under section 43 of the Act to the respondent for a recalculation of the FTB payable to each party, and a determination of the consequences of that recalculation.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member [sgd]...............................................................
S Herath, Associate
Dated 14 February 2014
Date(s) of hearing 22 October 2013 and 22 January 2014 Applicant In person Advocate for the Respondent Tim Noonan, Centrelink Program Litigation and Review Branch
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