CORAL DODDS and and RENAE SHEPHERDSON
[2009] AATA 918
•27 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 918
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2645
GENERAL ADMINISTRATIVE DIVISION ) Re CORAL DODDS Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
RENAE SHEPHERDSON
Other Party
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date27 November 2009
PlaceBrisbane
Decision The Tribunal:-
(i) affirms the decision dated 25 March 2008, as later varied on 12 May 2008, in respect of the percentages of care for each FTB child to be attributed to the applicant and the joined party; and
(ii) sets aside the decisions dated 25 March 2008 and 15 April 2008 to raise and recover a debt against the applicant for the periods of 8 December 2007 to 11 March 2008 and 24 March 2008 to 8 April 2008 and remits the matter to the Secretary for reconsideration to ascertain whether there are special circumstances that make it desirable to waive the whole or part of the debt in accordance with these reasons.
................[Sgd]..............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – percentage of FTB to applicant and joined party in respect of children – whether applicant owes a debt to the Commonwealth that should be recovered – no power to waive debt – applicant received FTB that exceeded percentage of care – applicant owes a debt to the Commonwealth applicant be given opportunity to provide information regarding circumstances – affirms decision under review for percentages of care for each FTB child – sets aside decision to raise and recover debt – remits matter to respondent for reconsideration regarding waiver of debt.
A New Fax System (Family Assistance) Act 1999 (Cth) – ss 21, 22, 25, 27, 59
A New Tax System (Family Assistance) Administration Act 1999 (Cth) – ss 22, 71, 96, 97, 98, 99, 101, 102
Secretary, Department of Social Security v Hales (1998) 51 ALD 695
REASONS FOR DECISION
27 November 2009 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. The applicant (Ms Coral Dodds) and Mr Tim Shepherdson are the parents of three children. To safeguard the privacy of these children in these reasons the children are identified by the first initial of their given names (T, B and A). The applicant and Mr Shepherdson have been separated for approximately 10 years. Mr Shepherdson is now married to the joined party (Ms Renae Shepherdson). This application is concerned with the appropriate percentages of family tax benefit (FTB) attributable to the applicant and the joined party in respect of children of the applicant.
FAMILY ASSISTANCE OFFICE
2. On 25 March 2008, the Family Assistance Office determined that the applicant had been overpaid FTB in the amount of $1602.65 from 8 December 2007 to 11 March 2008. This determination was made on the basis that the applicant was paid FTB for 100% care of the three children when two of those children (A and B) were in her 75% shared care and one child (T) was in her 25% shared care. On 26 March 2008, the debt was amended to $855.13 on the basis that the date of change to the care arrangements was 10 February 2008 and not 8 December 2007.
3. On 9 April 2008, the Family Assistance Office reconsidered the decision dated 25 March 2008 in respect of the percentage of care for one of the children (T). The delegate determined that the child was in the applicant’s care for 25% of the time from 24 March 2008.
4. On 15 April 2008, the Family Assistance Office raised an overpayment of FTB being $216.00 for the period 24 March 2008 to 8 April 2008 on the basis that the applicant was paid FTB for 75% shared care of the children (A and B) when they were in her 25% shared care.
5. On 12 May 2008, an authorised review officer (“ARO”) reviewed the decision dated 25 March 2008 and determined the following percentages of care for each FTB child:
(i)The applicant had 49% shared care of child A for the period 25 December 2007 to 22 April 2008. This was based on child A being in the applicant’s care for 59 nights over the assessment period of 120 nights;
(ii)The applicant had 39% shared care of child B for the period 8 December 2007 to 22 April 2008. This was based on child B being in the applicant’s care 54 nights over the assessment period of 137 nights; and
(iii)The applicant had 53% shared care of child T for the period of 8 December 2007 to 9 February 2008. This was based on child T being in the applicant’s care 34 nights over the assessment period of 64 nights.
6. The ARO determined that child T. left the care of the applicant on 10 February 2008 and returned to her care on 23 April 2008. The ARO further decided that the overpayment was a debt due to the Commonwealth and should be recovered.
SOCIAL SECURITY APPEALS TRIBUNAL
7. On 16 February 2009, the applicant appealed to the Social Security Appeals Tribunal (“SSAT”) in respect of review of decisions dated 25 March 2008 and 15 April 2008.
8. On 27 May 2009, the SSAT made the following two decisions (which were despatched on 1 June 2009).
9. One decision affirmed the decision dated 25 March 2008, as later varied by the ARO on 12 May 2008. That decision determined:
(i)for the period 8 December 2008 to 9 February 2008, the applicant’s FTB percentage for child T was 53% and the joined party’s was 47%;
(ii)for the period 10 February 2008 to 22 April 2008, child T was the FTB child of the joined party and not the applicant;
(iii)for the period 8 December 2007 to 22 April 2008, the applicant’s FTB percentage for child B was 39% and the joined party’s was 61%; and
(iv)for the period 25 December 2007 to 22 April 2008, the applicant’s FTB percentage for child A was 49% and the joined party’s was 51%.
10. The other decision affirmed the decisions dated 25 March 2008 and 15 April 2008 to raise and recover a debt against the applicant for the periods of 8 December 2007 to 11 March 2008 and 24 March 2008 to 8 April 2008. That decision determined to raise and recover a FTB debt of:
(i)$1,602.25 for the period 8 December 2007 to 11 March 2008; and
(ii)$216.00 for the period 24 March 2007 to 8 April 2008.
11. The applicant has sought review of these decisions of the SSAT.
ISSUES
12. I have to decide the appropriate percentage of FTB to be attributed to the applicant and the joined party in respect of:
(i)the child T for the period of 8 December 2007 to 22 April 2009;
(ii)the child B for the period 8 December 2007 to 22 April 2008; and
(iii)the child A for the period 25 December 2007 to 22 April 2008.
13. I am also required to determine whether the applicant owes a debt to the Commonwealth and, if so, whether the debt should be recovered.
LEGISLATION
14. The legislation that I have to administer is A New Tax System (Family Assistance) Act 1999 (Cth) (“the Family Assistance Act”) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“the Family Assistance Administration Act”).
ftb child
15. A person is eligible for FTB for a child if that child is an “FTB child” of the person. Section 21 of the Family Assistance Act provides:
(1) An individual is eligible for family tax benefit if:
(a) the individual has at least 1 FTB child…; and
(b) the individual:
(i) is an Australian resident; …
…; and
(c) the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.
16. Section 22 of the Family Assistance Act contains the following definition of an FTB child:
(2) This 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 category visa holder residing in Australia or is living with the adult.
17. Section 25(1) of the Family Assistance Act provides that if the child is not in the individual’s care for at least 10% of a period, the child will cease to be an FTB child for the purposes of the Act.
18. Section 27 of the Family Assistance Act provides that where a member of a couple has an FTB child from a previous relationship, while the child is an FTB child of the parent, the child will also be an FTB child of the partner.
19. Section 59 of the Family Assistance Act provides that where a child is in the care of two adults who are not members of the same couple the rate of FTB for the child is split between the two adults. If care arrangements are not agreed between the two adults, Centrelink is required to determine the percentage of payment to be paid. The percentage will be based on an established pattern of care.
debt owed to the commonwealth
20. Section 71 of the Family Assistance Administration Act provides that if a person has been paid an amount greater than the correct amount of benefit that should have been paid under Family Assistance Law, then the difference is a debt due to the Commonwealth. It is understandable in this case for the Secretary to want to recover the overpayment. As French J explained in Secretary, Department of Social Security v Hales:[1] “The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered”.
[1] (1998) 51 ALD 695 at 696.
waiver of debt
21. On behalf of the Commonwealth, the Secretary is authorised under section 96 of the Family Assistance Administration Act to waive the right to recover all or part of a debt only if the circumstances described in certain provisions of the Act (sections 98, 99, 101 or 102) are satisfied.
22. Section 97(2) of the Family Assistance Administration Act requires the Secretary to waive the right to recover a debt if it is attributable solely to an error by the Commonwealth and the person received the payments in good faith and the person would suffer severe financial hardship if it were not waived. The evidence before me does not suggest that the overpayment was solely due to administrative error by the Commonwealth. I accordingly do not have any power to waive the debt under section 97 of the Family Assistance Administration Act.
23. Section 101 of the Family Assistance Administration Act allows the Commonwealth to waive the right to recover a debt if the debt did not arise because the debtor or another person knowingly contravened the Act and there are special circumstances (other than financial hardship alone) that make it more appropriate to waive than to write off the debt.
CONSIDERATION
24. In these reasons I will not mention the birthdates of the children but simply state that the children are all under the age of 18 years. I mention this in view of the definition in s 22(2) of the Family Assistance Administration Act.
25. The case of the applicant was that she agreed to let Mr Shepherdson have care of the children in late 2007. The applicant stated that the children were in the care of Mr Shepherdson on the evening of Christmas Day 2007 and then for a period of two weeks to the beginning of February 2008. The applicant stated that this period was at the end of the school holidays.
26. I do not accept the evidence of the applicant.
27. The case of the applicant was contradicted by evidence given by the witnesses who were called by the applicant. The first witness, Mrs Harrison, the mother of the applicant, stated that Mr Shepherdson had the children for a few weeks although she quite properly stated that she was not good with dates. However, Mrs Harrison had on 2 April 2008 signed a statement which had been tendered by Mr Shepherdson, who advised her that the statement was required for “tax purposes”. Mr Shepherdson was obviously preparing a claim for family tax benefit.
28. Mrs Harrison stated that she was reluctant to sign that statement of 2 April 2008. I did not have the benefit of seeing Mrs Harrison giving evidence in person but do not think that she is a person who would sign such a document if it was not correct. I have given her statement some weight.
29. The statement of Mrs Harrison of 2 April 2008 outlined the following facts:
·Since 10 February 2008, child T had been living with Mr Shepherdson.
·On 18 February 2008, the applicant was evicted from her house and at the time of the statement did not have a house to live in.
·From 15 February 2008 until 5 March 2008, children A and B had been living with Mr Shepherdson. They returned to the care of Mr Shepherdson on 24 March 2008 and were still (on 2 April 2008) living with Mr Shepherdson. In the meantime, A and B were living with their grandmother.
·The applicant had not given Mr Shepherdson any money to look after the children. He had only been able to support them with one income. He had provided his children with food, clothes, train fares to school and school equipment.
30. The case of the applicant was also contradicted by another witness (Sian Nicholas) who had been called by the applicant. Ms Nicholas stated that Mr Shepherdson had the care of the children “only for the two weeks at the end of February” 2008. This was at a time after the applicant had been evicted. The witness stated that she thought that this period of care was in the school holidays; however, this period of care is during the school term when the applicant had claimed to have the children in her care.
31. Mrs Margaret Counsel, the joined party’s mother, gave evidence before me. In her evidence, she verified the correctness of her statement of 7 September 2009. In that statement, she stated that she saw the three children with the joined party on numerous occasions between December 2007 and April 2008. In that statement, she gave three specific dates of seeing all three children in the presence of the joined party and Mr Shepherdson. These dates are:
·26 January 2008, when the three children went ice skating;
·2 March 2006, when the three children attended church; and
·30 March 2008, when the three children attended a church assembly.
32. Mrs Counsel was subject to cross-examination on the accuracy of these dates but I consider that the dates of the children attending church were accurate as they were significant dates in the church calendar. The dates the children attended church were dates on which they were in the care of the joined party according to the statement of Mrs Harrison. There is a consistency between the statements of Mrs Counsel and Mrs Harrison. As a decision-maker, I have placed weight on both statements.
33. One matter that I regard as significant is that the applicant had been evicted from her home on 18 February 2008. She was not able to have the care of the children. It is more probable than not that the children had resided with their father for some time after this date.
34. I find that on 5 March 2008, A and B was returned to the applicant and her mother following the misbehaviour of the children. I also find that on 23 March 2008 the children returned to live with the joined party. This was at the request of the Mrs Harrison following a “barney” between her and the applicant and her mother. Mrs Harrison had informed the SSAT of this incident.
35. I should record that I have given weight to the evidence provided by the joined party in the form of detailed emails. As the applicant was not legally represented, I advised her that when cross-examining a witness she then had the opportunity to challenge the evidence that had been given by that witness. The joined party was not cross-examined on the accuracy of the dates she provided in document T23. The applicant did not dispute the accuracy of the material that was provided by the applicant, which is document T24.
36. I have also given weight to the statement dated 11 August 2009 of Mrs Barbara Shepherdson who is the mother of Mr Shepherdson. In her statement, she mentioned that the children went to live with their father because the applicant had to move house. She also stated that two of the children had been suspended from school and the joined party and Mr Shepherdson had to have meetings at the school concerning the behaviour of the children. This evidence contradicts the evidence of the applicant that she had the care of the children during the school term.
37. I have also put some weight on the fact that the joined party had provided the Family Assistance Office with letters of enrolment of all three children that bear the address of the joined party. Two of these letters, which were both dated 28 March 2008, were signed by the deputy principal of the high school attended by two of the children. One of the letters, dated 3 April 2008, was signed by the principal of the primary school attended by one of the children. I regard the provision of these letters by the joined party as confirmation of the fact that the joined party had the care of all three children on the dates of the letter. These letters, in my view, contradict the evidence of the applicant that she had the care of the children during the school term.
FINDINGS CONCERNING CARE
Child “A”
38. I find that for the period from 25 December 2007 to 22 April 2008, child A was in the care of the applicant for 59 nights and in the care of the joined party for 61 nights. This has the consequence that the applicant’s FTB percentage for the child was 49% and for the joined party was 51%.
39. This finding is based upon the following facts:
(i)Child A had three contact visits with the joined party, of various durations, between 25 December 2007 and 17 February 2008;
(ii)Child A resided with the joined party for a continuous period between 17 February 2008 and 5 March 2008;
(iii)On 5 March 2008, child A was returned to the applicant and her mother following the misbehaviour of the child; and
(iv)Child A was in the care of the joined party between 23 March 2008 and 22 April 2008. This was at the request of the applicant’s mother following an altercation between the applicant and her mother.
Child “B”
40. I find that for the period 8 December 2007 to 22 April 2008, child B was in the care of the applicant for 54 nights and in the care of the joined party for 83 nights. This has the consequence that the applicant’s FTB percentage for the child was 39% and for the joined party was 61%.
41. This finding is based upon the following facts:
(i)Child B had seven contact visits with the joined party of various durations between 8 December 2007 and 17 February 2008;
(ii)Child B resided with the joined party for a continuous period between 17 February 2008 and 5 March 2008;
(iii)On 5 March 2008, Child B returned to the applicant and her mother following misbehaviour;
(iv)Child B was in the care of the joined party between 23 March 2008 and 22 April 2008. This was at the request of the applicant’s mother following an altercation between the applicant and her mother.
Child “T”
42. I find that for the period 8 December 2007 to 9 February 2008, child T was in the care of the applicant for 34 nights and in the care of the joined party for 30 nights. Therefore, the applicant’s FTB percentage of care was 53% and for the joined party was 47%.
43. I find that in the period 10 February 2008 to 22 April 2008, child T was in the sole care of the joined party. The statement of Mrs Harrison of 2 April 2008 is evidence that the period commenced on 10 February 2008. Therefore, child T was the FTB child of the joined party. For this period the child was not a child of the applicant. This is because of the operation of section 25(1) of the Family Assistance Act which provides that if the child is not in the individual’s care for at least 10% of a period, the child will cease to be an FTB child for the purposes of the Act.
AMOUNT OF DEBT
44. I am satisfied that the applicant received FTB that exceeded the actual percentage of care for the relevant periods and as a result she owes a debt to the Commonwealth.
45. The amount of the debt should be calculated as the total of the following amounts:
·$855.13 for the period of 8 December 2007 to 11 March 2008 (previously $1,602.25); and
·$216.00 for the period of 24 March 2008 to 8 April 2008; and
·$927.61 for the period 8 December 2007 to 22 April 2008; and
·$354.23 for the period 8 December 2007 to 27 April 2008.
46. It is not in contention that the total amount of the debt is $2352.97[2]: this amount may have to be adjusted in accordance with any instalments which have been paid.
[2] As stated in the annexure to the respondent’s Statement of Facts and Contentions dated 8 October 2009.
SPECIAL CIRCUMSTANCES
47. The Secretary has submitted that the applicant does not have special circumstances that would require the debt to be waived under section 101 of the Family Assistance Administration Act.
48. I note that on 28 March 2008 the applicant completed a Details of your child’s care arrangements form and stated that the children were “always with me”. In that claim form she stated that the joined party only saw the children for a couple of weekends and over the holidays. This claim form was signed at a time when the three children were in the care of the joined party.
49. The Secretary has not made a submission that the applicant has knowingly contravened the Act when completing the form. In such circumstances, it would not be fair to make a finding that the applicant has knowingly contravened the Act when no such allegation was put to her in the hearing of the application. I therefore consider that it is open to me to exercise the power vested in the Secretary under section 101 of the Family Assistance Administration Act.
50. In determining this social security application it is essential that I have recent information relating to the circumstances of the applicant. The applicant informed the SSAT that she had no other debts, apart from usual household expenses. However, the tenor of the evidence of the applicant is that since she appeared before the SSAT there has been a marked change in her circumstances, which are now desperate. She no longer has the support of a partner and is a single person who is responsible for the care of her three children. She has also mentioned that Mr Shepherdson no longer contacts the children.
51. In these circumstances, I consider that the appropriate course of action is for the applicant to have the opportunity to provide information of her circumstances for the consideration of the Secretary who can then decide whether it is desirable to waive the whole or part of the debt under section 101 of the Family Assistance Administration Act. I have reviewed the material in the T-Documents, which exceeds 300 folios. One matter that I consider worthy of investigation is the comment of the applicant that she has trouble paying for medications.[3]
[3] T22, fol 79.
DECISION
52.The Tribunal:-
(i)affirms the decision dated 25 March 2008, as later varied on 12 May 2008, in respect of the percentages of care for each FTB child to be attributed to the applicant and the joined party; and
(ii)sets aside the decisions dated 25 March 2008 and 15 April 2008 to raise and recover a debt against the applicant for the periods of 8 December 2007 to 11 March 2008 and 24 March 2008 to 8 April 2008 and remits the matter to the Secretary for reconsideration to ascertain whether there are special circumstances that make it desirable to waive the whole or part of the debt in accordance with these reasons.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
Signed: ....................[Sgd].........................................................
Research AssociateDate of Hearing 9 November 2009
Date of Decision 27 November 2009
The Applicant was self-represented
For the Respondent Michelle Brazier, departmental advocate
The Other Party was self-represented
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