Curd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor
[2011] AATA 771
•1 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 771
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3441
GENERAL ADMINISTRATIVE DIVISION ) Re MARILYN CURD Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
SEAN CURD
Other Party
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date1 November 2011
PlaceBrisbane
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 10 August 2011 and substitutes the decision that the other party had 0% care and the applicant had 100% care of their children, with effect from 17 January 2011 until 13 April 2011. ...............[sgd]...............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Family assistance – Percentage of care of children – Percentage of care under care agreement – Percentage of care varied for temporary period – Children in exclusive care of mother for temporary period – Whether percentage of care should be altered for temporary period – Decision under review set aside
A New Tax System (Family Assistance) Act 1999 (Cth) s 22, 25, 27, 35B, 35P
Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Cth)
REASONS FOR DECISION
1 November 2011 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Ms Marilyn Curd (the applicant) has sought the review of a decision of the Social Security Appeals Tribunal (SSAT) which determined the appropriate percentages of care of the children of her and Mr Sean Curd (the other party) for the period of 17 January 2011 to 13 April 2011. The applicant contends that during that period she had the children exclusively in her care. She seeks a decision that she had a 100% percentage of care of her children for that period. I have to determine the appropriate percentage of care in accordance with family assistance law.
BACKGROUND
2. The applicant and the other party are the parents of three children. In January 2006 a court order was made by consent whereby each parent had 50% care of the children. In February 2008 this court order was superseded by a new care agreement. Under the new care agreement the other party had the care of the children for one weekend per month and half of the school holidays. The actual nights that the children would be in the care of the other party were specified in the new care agreement. Under the new care agreement the other party would have 19% care of the children. Centrelink's records were amended to record this care agreement. The new care agreement had a list of dates which ran for approximately one year, after which the parents agreed to further dates for the next two years. That further agreement provided for the other party to have the care of the children from 24 December 2010 to 16 January 2011.
3. During 2010 both parents attempted to reach a further agreement for another care agreement for the coming years. However, they were unable to reach any such agreement in 2010. The other party preferred a further list of agreed dates, whereas the applicant preferred a parenting plan setting out a general and indefinite pattern of care. The negotiations stalled when the other party sent an email with a list of proposed dates and the applicant replied that she wanted to reach an agreement on a new parenting plan.
4. The other party had the children in his care from Friday 24 December 2010 to Sunday 16 January 2011. The next time that he had the children in his care was on 14 April 2011. The other party had sent an email on 28 February 2011 in which he asked to have the care of the children over the Easter holidays from 16 to 21 April 2011 and possibly longer over the four day long weekend. The applicant promptly replied that because 15 April 2011 was a pupil-free day he might like to have the children from the night of 14 April 2011, to which he agreed.
5. On 24 March 2011, the other party sent an email to the applicant to advise her that he had received a letter from the “Child Support Agency” stating that he had been recorded as having 0% care of the children from 17 January 2011. After that time negotiations concerning the ongoing care of the children resumed. In mid-April 2011 the parties had signed a parenting plan pursuant to which the other party would have the care of the children for one weekend per fortnight and half the school holidays.
PRIOR DECISIONS
6. On 9 March 2011, Centrelink made a decision to revoke the earlier determination which recorded the other party as having 19% care and the applicant as having 81% care. Instead, a new determination was made by Centrelink which recorded the applicant as having 0% care and the applicant as having 100% care from 17 January 2011. This decision was made because, on 8 February 2011, the applicant advised Centrelink that the children had been in her sole care from 17 January 2011.
7. The other party sought review of the decision of Centrelink. The decision was affirmed by an authorised review officer on 3 June 2011. The other party then sought further review by the SSAT.
ISSUES
8. After hearing from the parties, I consider that the issue that remains for determination is:
What percentage of care is to be applied to the applicant and the other party during the period from 17 January 2011 to 13 April 2011?
RELEVANT LEGISLATION
9. The legislation which is relevant to the determination of this application is A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) and the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Cth) (the Amending Act).
10. This case raises the application of s 35P of the Act as to whether the earlier determination can be revoked. This section, which does not appear to have been previously considered by the Federal Court of Australia or this Tribunal, provides as follows:
35PDetermination must be revoked if there is a change to the individual's shared care percentage etc.
(1) lf:
(a)a determination of an individual's percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and
(b)if section 35C or 35D applied in relation to the individual — the interim period for the determination has ended; and
(c)the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual's existing percentage of care for the child; and
(d)the Secretary is satisfied:
(i)that the individual's shared care percentage for the child would change if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual's percentage of care for the child; or
(ii)that, if the Secretary were to determine under that section another percentage to be the individual's percentage of care for the child, the other percentage would not be in the same percentage range as the individual's existing percentage of care;
the Secretary must revoke the determination.
Note: The Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
CONSIDERATION
11. Both before this Tribunal and the SSAT there was no issue that s 35P(1)(a), (b) and (c) of the Act are satisfied. What has to be determined is whether s 35P(1)(d) of the Act is satisfied, thus enabling the revocation of the previous determination.
12. Therefore, the important consideration concerns the application of s 35P(1)(d) of the Act, namely whether the Secretary is able to make a determination of another percentage of care under either s 35A or s 35B of the Act.
13. In determining this application, s 35B is the material provision. It provides:
35B Determination of percentage of care—child is in the adult's care
Initial determination
(1) lf:
(a)the Secretary is satisfied that there has been, or will be, a pattern of care for a child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of more than one individual; and
(b)one of those individuals (the adult), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and
(c)the adult is not a partner of at least one of the other individuals referred to in paragraph (a);
(d)the Secretary must determine the adult's percentage of care for the child during the care period.
Determination after revocation
(2) if:
(a)the Secretary revokes, under Subdivision E of this Division, a determination of an individual's (the adult) percentage of care for a child that was made under section 35A or this section; and
(b)the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of the adult and at least one other individual; and
(c) the adult is not a partner of at least one of those other individuals;
the Secretary must determine the adult's percentage of care for the child during the care period.
14. In examining the application of s 35B of the Act there is no issue concerning the application of s 35B(1)(b) and (1)(c) of the Act. The applicant has made an application for FTB under s 35B(1)(b) and she is not a partner of an individual under s 35B(1)(c) of the Act.
15. What remains for consideration is whether the Secretary can be satisfied that each child can be regarded as a FTB child of more than one individual for the care period of 17 January 2011 to 13 April 2011 under s 35B(1)(a).
16. In interpreting s 35B(1) of the Act in this instance, it is important to have regard to s 22(2) of the Act, which provides criteria for determining when an individual aged under 16 years of age is deemed to be an FBT child of an adult. Similar provisions apply for older children: s 22(3) – (4). There is certainly no issue with the requirements set out in s 22(2) of the Act: the children are under the age of 16; the children are in the adult’s care and the applicant and the other party are legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the children: see s 22(5).
17. What is important is that each child is an FTB child “of more than one individual” (within the meaning of s 35B of the Act), namely the applicant and the other party.
18. As subsection 22(2) of the Act is satisfied, a determination can be made under s 35B of the Act. Accordingly, Centrelink had the necessary authority under s 35P of the Act to make a decision to revoke the earlier determinations.
19. In my opinion ss 22(7) and 25, which govern the eligibility of a parent to be paid family tax benefit, have no bearing on the construction of s 35B. These provisions are not referred to in s 35B.
20. The authorised review officer considered the pattern of care during the period 17 January 2011 to 13 April 2011 and made a determination that the applicant had 100% care and the other party 0%. This determination certainly reflects the pattern of care during that period. I do not consider that the other party was denied access during this period. Consequently, I consider that it is fair and appropriate that during this period the percentage of care that should be applied is 100% to the applicant and 0% to the other party.
21. I note that the SSAT asked the other party why he had not sought any care of the children from 17 January 2011 to 14 April 2011. On that occasion he replied that he had in an email dated 23 March 2010, but that the applicant had refused. In his email, the other party had proposed specific nights of care during 2010, 2011 and 2012. The applicant replied that she was “not interested in this sort of haggling over dates anymore” and instead put forward her view that a parenting plan could provide when the children will visit without the need for further discussion. Having regard to the acrimonious state of relations between the parties, I accept that it is understandable why the applicant would not want to have any more “haggling”.
22. I should mention that this Tribunal reminded the other party that he had the opportunity to challenge the evidence of the applicant: he did not challenge her account that she did not deny access to the applicant during the relevant period.
23. I should also mention that on 8 August 2010 the other party wrote a letter to the Child Support Agency. A copy of that letter was tendered in evidence (Exhibit D). This letter contains certain serious allegations about the conduct of the applicant. The applicant did not appear to receive a copy of that letter at the time. As the applicant was not questioned about the matters in that letter, I advised the other party at the hearing that it would not be fair to take that letter into account in determining this application.
DECISION
24. I set aside the decision of the Social Security Appeals Tribunal dated 10 August 2011 and substitute a decision that the other party had 0% care and the applicant had 100% care of their children, with effect from 17 January 2011 until 13 April 2011.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ...........[sgd]...................................................................
AssociateDate/s of Hearing 5 October 2011
Date of Decision 1 November 2011
Applicant was self-represented
Other party was self-represented
Solicitor for the Respondent Jasmine Forsyth, departmental advocate
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