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

[2010] AATA 667

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 667

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2009/6079

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARRY DANIELS

Applicant

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

Respondent

DECISION

Tribunal   Member Mark Hyman

Date  3 September 2010

Place  Canberra

Decision   The decision under review is affirmed.

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

Mr M. Hyman, Member 

CATCHWORDS

SOCIAL SECURITY - family tax benefit – child of separated parents - shared care – pattern of care – decision under review affirmed

Administrative Appeals Tribunal Act 1975 s 37

A New Tax System (Family Assistance) Act 1999 ss 3A, 21, 22, 25, 35B, 35J, 59

Wade v Secretary, Department of Family and Community Services [2004] FCA 1660

Re Harrison and Secretary, Department of Family and Community Services [2002] AATA 347

Re Feeney and Secretary, Department of Family and Community Services [2005] AATA 818

Re Robinson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 313

Re Nowicz and Secretary, Department of Family and Community Services [2001] AATA 628

REASONS FOR DECISION

1.      Mr Daniels, the applicant, is father to Shauna Priest, who was born to Mr Daniels and his then partner, Sandra Priest, now Sandra Adlam, on 19 February 1995. Mr Daniels and Ms Adlam separated in 1997. Mr Daniels has received family assistance payments and (with the passage of the A New Tax System (Family Assistance) Act 1999 – ‘the Family Assistance Act’ or ‘the Act’) family tax benefit (FTB) since 1999.

2.      Mr Daniels has applied for review of the rate at which he is being and has been paid family tax benefit. The rates were reviewed by Centrelink authorised review officers in 2002, 2004 and 2009; on each occasion the rate was found to be correct. In October 2009 Mr Daniels appealed to the Social Security Appeals Tribunal (SSAT). The SSAT again affirmed the rate at which the benefit had been and was being paid. Mr Daniels has now sought review by this Tribunal.

3. Mr Daniels represented himself at the hearing. Ms Keely Horan, a Centrelink advocate, represented the respondent. Besides the documents submitted to the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975, the Tribunal had before it three Centrelink brochures (Exhibits A, B and C) tendered by the applicant.

The Issues

4.      The issues before the Tribunal  are:

(a)the rate of family assistance and family tax benefit Mr Daniels was entitled to from the time of his claim in August 2000 up to 26 February 2001 (‘the earlier period’);

(b)the rate of family tax benefit Mr Daniels was entitled to from 26 February 2001 to the present (‘the later period’).

The applicant’s case

5.      In respect of the earlier period Mr Daniels gave evidence that he provided equal care of his daughter with her mother, that is, his percentage of care was 50%; and that this percentage of care established a basis for a higher rate of benefit.

6.      For the later period, it is common ground between the parties that Mr Daniels has provided 35% of Shauna’s care. Mr Daniels’s argument is that the Family Assistance Act has been wrongly applied to him: that in particular the provisions relating to ‘shared care’ do not apply to him because he does not ‘share’ the care of Shauna; rather he is a single parent.

The application of the Family Assistance Act to Mr Daniels

7.      The first of the two issues raised by the Applicant involves matters of fact and law – the percentage of care Mr Daniels gave Shauna over the earlier period (a question of fact), and the application of the legislation to him once that percentage has been established (a question of law). The second issue is entirely a matter of law. It is sensible to consider the second of the above issues first, that is, to determine which provision of the Family Assistance Act should apply to Mr Daniels. If the Act has been wrongly applied to Mr Daniels, that may affect his entitlements during both periods in question.

8.      The Family Assistance Act has been amended several times over the decade under consideration, and as FTB entitlements change with changing carer arrangements, the Act applies to Mr Daniels as amended from time to time. Throughout that period, however, the entitlement to family tax benefit of separated parents, each of whom contributes to a child’s care, has remained essentially the same. Section 21 of the Act establishes the basic entitlement to FTB. The essential provisions relating to separated care givers are to be found in sections 22 and 59, at times supplemented by other provisions. The thrust of these provisions, taken together, is that a child that meets certain tests is an FTB child; where an FTB child is cared for by two separate adults, each of whom contributes to the child’s care, the Secretary may or must determine the percentage of care each adult provides. Those percentages are then used to decide the amount of FTB that each receives. From 1 July 2008 each of the adults must contribute between 35% and 65% of the child’s care for these provisions to apply (if the amount is less, the adult is regarded as not caring for the child; if greater, as being the sole carer; other proportions have obtained in earlier periods).

9.      Shauna meets the tests for an FTB child. From 26 February 2001, Mr Daniels and his former partner cared for Shauna on the basis of the Family Court order handed down on that date (on an interim basis, made final in July of that year). That order, which allocated time caring for Shauna to Mr Daniels and Ms Adlam, was the basis for the 35% percentage care determination by Centrelink which has governed Mr Daniels’s FTB payments since that date.

10.     There has been no suggestion that the actual care being provided to Shauna departed in significant or consistent ways from the pattern established by the Family Court order. Mr Daniels has not pressed any arguments regarding the calculation of the amounts paid to him, nor regarding the percentage of care he has given Shauna since 26 February 2001. He agrees that he has provided 35% of her care: his argument is that the above provisions of the Act do not apply to him.

11.     There appear to be several elements to Mr Daniels’s argument: first, he objects to the characterisation of his arrangement as ‘shared care’. Apparently he does not regard the care of Shauna as a cooperative venture between him and his former partner, and because he has not had and does not have a partner regards himself as not sharing the care of Shauna with anyone.  He argues that the provisions relating to ‘shared care’ therefore do not apply to him; rather he should be paid FTB as a single parent. Second, he argues that the provisions, and some of the guidance material relating to the administration of the Act, are worded so that they are not relevant to his circumstances; that he was ‘bullied’ by Centrelink into completing sections of the claim form that do not accurately describe his circumstances, and that as a result of being compelled to complete those sections he has been treated as being involved in ‘shared care’ of Shauna when he is in fact a single parent. To this second argument Mr Daniels adds assertions that he has been consistently misled by Centrelink, denied access to material on his file, and generally bullied and treated unfairly.

12.     Mr Daniels’s reading of his entitlements under the Family Assistance Act rests on a misapprehension. The point can be illustrated drawing on the Act as it currently stands, which has been operating from 1 July 2010. The relevant provisions are as follows:

3A  An individual may be in the care of 2 or more other individuals at the same time

For the avoidance of doubt, except where express provision is made to the contrary, an individual may be taken, for the purposes of this Act, to be in the care of 2 or more other individuals at the same time.

22  When an individual is an FTB child of another individual

An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

Individual aged under 16

(2) An individual is an FTB child of the adult if:

(a)          the individual is aged under 16; and

(b)          the individual is in the adult’s care; and

(c)          the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and

(d)          the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).

.....

Legal responsibility for the individual

(5) The circumstances surrounding legal responsibility for the care of the individual are:

(a)          the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; or

(b)          under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or

(c)          the individual is not in the care of anyone with the legal responsibility for the day‑to‑day care, welfare and development of the individual.

.....

Percentage of care at least 35%

(7) If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.

Note:           If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).

35B  Determination of percentage of care—child is in the adult’s care

Initial determination

(1)If:

(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);

the Secretary must determine the adult’s percentage of care for the child during the care period.

35J  Working out actual care, and extent of care, of a child

(1)The actual care of a child that an individual has had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.

(2)The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.

(3)For the purposes of this section, a child cannot be in the care of more than one individual at the same time.

(4)This section does not limit section 35B, 35C, 35D or 35H.

59  Shared care percentages where individual is FTB child of more than one person who are not members of the same couple

(1)An individual has a shared care percentage under this section for an FTB child of the individual if:

(a)the Secretary has determined the individual’s percentage of care for the child during a care period; and

(b)that percentage is at least 35% and not more than 65%.

Note:           Paragraph 27(2)(b) deals with the percentage of care in a blended family case.

(2) The individual’s shared care percentage for the FTB child is the relevant percentage specified in column 2 of the table.

Shared care percentages
Item	Column 1 Individual’s percentage of care	Column 2 Shared care percentage
1	35% to less than 48%	25% plus 2% for each percentage point over 35%
2	48% to 52%	50%
3	more than 52% to 65%	51% plus 2% for each percentage point over 53%

13.     Applying these provisions to Mr Daniels’s circumstances, it is clear that Shauna is an FTB child of Mr Daniels under section 22 of the Act, as she is under 16 years of age; she is in the care, separately of her mother and father; she is an Australian resident; and her legal circumstances meet both (a) and (b) of paragraph (7). The Secretary’s delegate in Centrelink has been satisfied, (and on review I am satisfied) that there is a pattern of care provided by Mr Daniels under section 35B (that specified by the Family Court) and the Secretary has determined the percentage in accordance with section 35J. Section 59 of the Act defines an individual’s ‘shared care percentage’ for a child, and this percentage is then used to calculate FTB. Section 59 applies to Mr Daniels because his percentage of care for Shauna has been determined at 35%, which is between 35% and 65%. Applying section 59 gives Mr Daniels a shared care percentage of 25%.

14.     I should note that the term ‘shared care’ is established for the purposes of the Act; it carries no broader implication. Mr Daniels cannot escape it: the Act defines ‘shared care’ through a series of provisions that capture Mr Daniels’s circumstances, namely that of a separated parent who cares for his child for a substantial percentage of the time while his former partner also cares for the child for a substantial percentage of the time.

15.     Earlier versions of the Act had slightly different provisions but yield the same result. The Act as it stood (for present purposes) between 1 July 2008 and 1 July 2010 also classified Shauna as an FTB child (although the provision was structured differently it had the same outcome in her case), and the Secretary was under the same obligation to calculate a percentage care figure where satisfied that there was a pattern of care. The same formula was applied through section 59 to establish a ‘shared care percentage’.

16.     The Act as it was (again for present purposes) from 1 July 2001 to 1 July 2008 also defined Shauna as an FTB child. Through section 59 as it then stood the Act permitted (rather than required) the Secretary to calculate the percentage of care that separated parents each contributing to care were giving an FTB child. In Mr Daniels’s case a percentage of care was indeed calculated, based on the Family Court order. There is no mention of ‘shared care’ in these provisions as they stood at the time: but the outcome for Mr Daniels is the same nonetheless. The Act from 1 July 2000 to 1 July 2001 was for present purposes essentially identical to the Act from 1 July 2001.

17.     Thus throughout the period from 1 July 2000 to the present the provisions of the Family Assistance Act applied to Mr Daniels so as to provide him with a level of FTB that reflected his position as someone who cared for Shauna part but not all of the time. Mr Daniels’s argument cannot be sustained. This conclusion is reinforced by decisions of the Federal Court in Wade v Secretary, Department of Family and Community Services,[1] and of this Tribunal in cases such as Re Harrison and Secretary, Department of Family and Community Services,[2] Re Feeney and Secretary, Department of Family and Community Services,[3] Re Robinson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[4] and Re Nowicz and Secretary, Department of Family and Community Services.[5]

[1] [2004] FCA 1660 (Kiefel J).

[2] [2002] AATA 347.

[3] [2005] AATA 818.

[4] [2010] AATA 313.

[5] [2001] AATA 628.

18.     Mr Daniels argues he should be entitled to the benefits of a ‘single parent’. That term is not defined in the Act, and not used in the provisions relating to the care of children. Where two care givers each contribute to the care of a child, one of them does not receive any FTB where he or she provides less than 35% of care (subsection 22(7) and section 25); lower in earlier versions of the Act). Under such circumstances the other adult providing care receives the full FTB entitlement. At no time since 2000 have the care arrangements for Shauna allowed the engagement of these provisions in Mr Daniels’s favour. Nor does Mr Daniels’s lack of a partner, now or over the past decade, entitle him to a higher rate of FTB: the FTB provisions focus on the care of the child, not whether separated partners have repartnered.

19.     To support his second argument Mr Daniels brought in evidence three examples of guidance material issued by Centrelink to help applicants for family assistance (Family Assistance Office: Guide to Payments, 1 January to 19 March 2008 (Exhibit A); Family Assistance Office: Guide to Payments, 1 July 2009 to 19 September 2009 (Exhibit B); Are you a Parent or a Guardian? A Guide to your Options and our Services, July 2007 (Exhibit C)). Exhibit C, for example, offered advice under the heading ‘Shared Care’ that ‘If your children spend at least 10 per cent of the time with someone other than your current partner...there are special rules about how much Family Tax Benefit you can get’. Mr Daniels asserted that as he does not and did not have a current partner, this cannot be intended to apply to him.

20.     Similarly, Mr Daniels stated that he was told he should answer Question 29 of the Claim Form he completed on 30 April 1999 (T5). This question, headed ‘Change of Care’, asked ‘Have you or any of the children or students you are caring for recently come into your care from someone else?’ (to which he answered ‘Yes’). Mr Daniels notes, accurately, that this was not the case: Shauna was in his care and remained in his care for some percentage of the time, but did not come into his care from having been in his former partner’s care. Mr Daniels says he should have rather answered Question 24, which asked whether he had in his care any children between 26 weeks and 16 years of age. In his view, that would have presented his situation more accurately and led to a different entitlement.

21.     Mr Daniels’s arguments on these points seem disingenuous at times but they are in any case impossible to sustain. A person’s entitlements are determined by legislation; Centrelink’s guidance material provides a simplified indication of how the legislation works but cannot take its place. Some of the guidance material may be poorly drafted, and Centrelink staff may slip into the unfortunate habit of treating guidance material as having greater authority than it does, but none of that alters a person’s entitlements. Similarly, the forms by which Centrelink gathers information serve only that purpose – they collect the raw material from which a person’s entitlements under legislation can be determined. Provided accurate and complete information is collected, it does not matter which questions are answered. Even if Mr Daniels answered a question which did not match his circumstances – and I think he has made a good case that he did – his entitlements would not have changed. If he had answered Question 24 in the form at T5, for example, he would have been obliged also to answer Question 27, which asked whether another person also contributed to the child’s care. Mr Daniels’s entitlements flowed from his circumstances, and the information he provided was sufficient to enable those circumstances to be accurately divined.

Mr Daniels’s percentage care over the earlier period

22.     With regard to the earlier period, Mr Daniels asserts that up to the time the Family Court decided the care arrangements for Shauna, he provided 50% of her care. Mr Daniels offered the following evidence:

(a)his own statement at the hearing that he provided 50% of Shauna’s care at that time;

(b)his claim of 16 August 2000 for Family Tax Benefit (T8), in which he asserted that he provided 50% of care;

(c)his oral evidence that the pattern of care recorded by Centrelink at this time (T14) did not accurately capture all the care he provided Shauna; and

(d)a written statement by his former partner, dated 22 April 1998, that at that time ‘he has equal custody of [Shauna]’ (T47).

23.     Of this evidence, the last is clearly of no utility to the Applicant, as it relates to a date well before the period in question, deals with custody rather than care, and has no bearing on the percentage of care Mr Daniels was providing Shauna some two years later.

24.     Centrelink determined the percentage of care for Shauna provided by Mr Daniels at 35% from 23 August 2000 (T14). The evidence supporting the figure of 35% is limited at this time, in the absence of any evidence from Mr Daniels’s former partner. The evidence relied on by the respondent is electronic records noting the contents of conversations with Mr Daniels and recording patterns of care over the period from August 2000 to 26 February 2001, when the Family Court handed down its decision. These documents (T11 dated 26 October 2000, T12 dated 31 October 2000 and T14 dated 15 November 2000) record a consistent pattern of care.

25.     In his evidence at the hearing, Mr Daniels agreed to the pattern of care determined by Centrelink (T14), but suggested that that pattern did not capture all the care he gave Shauna. He suggested for example that it did not include particular occasions when he provided care after school, and special occasions such as his birthday and Father’s Day; that such care brought his total to 50%, but that there was ‘no pattern’ to this additional care. On questioning, he admitted that his former partner might have had equivalent occasions (eg her birthday, Mother’s Day) when she provided care to Shauna beyond that established by the basic care pattern.

26.     Mr Daniels also argued that Centrelink had consistently recorded his details incorrectly, had pushed him into completing forms that did not reflect his circumstances and had preferred the evidence of his former partner to that he provided. He said this applied to information in T11 and T12, on which the respondent relied, and a number of other documents which drew on them (his 2002 request for a review (T24), the 2002 review by an Authorised Review Officer (T26), a Claim for FTB for 2003-04 (T36) and the 2004 review by an Authorised Review Officer (T50)). He suggested people working on his case were biased against him, and that Centrelink would owe him a large amount if these errors were corrected; that potential debt, he argued, supplied the motive for Centrelink’s behaviour. The original error setting his care percentage at 35% had been the cause of all his problems thereafter. By implication, the Family Court had merely adopted this Centrelink figure.

27.     While these claims are inherently implausible, the real problem for Mr Daniels’s argument is that the Act, from 1 July 2000, has required that decisions about percentage of care by separated parents be based on a ‘pattern of care’ (subsection 22(7) from 1 July 2000; subsection 22(6A) from 1 July 2008; section 35B from 1 July 2010); if there was ‘no pattern’ to the additional care provided by Mr Daniels, then there is no basis for any decision I might take to increase the percentage of care beyond the 35% determined by Centrelink. Once again, that understanding of the Act is reinforced by previous decisions on this issue: the pattern of care must be something established over a period – isolated departures on particular occasions should not be regarded as disturbing the pattern.[6] If the 35% percentage set at that time stands - and my conclusion is that it must - then none of Mr Daniels’s other arguments are of any weight. And the Family Court’s decision cannot in any case be assailed in this Tribunal.

[6] See, for example, Wade v Secretary, Department of Family and Community Services [2004] FCA 1660; Re Nowicz and Secretary, Department of Family and Community Services [2001] AATA 628.

Mr Daniels and Centrelink

28.     Mr Daniels evidently has a poor relationship with Centrelink, and feels aggrieved by Centrelink’s treatment of him. Regardless of how well founded these concerns are (and I make no finding on that point), they cannot change his entitlements under the Family Assistance Act unless Centrelink has failed to apply the law correctly to him. I have explained above that the law has been correctly applied to Mr Daniels’s circumstances. Further, although Centrelink staff may have encouraged Mr Daniels to complete certain sections of the claim form, and he may have had difficulty from time to time accessing papers he was seeking, I can find no evidence that any such difficulties prejudiced his access to the benefits to which he was entitled, or prevented him receiving payments to which he had established an entitlement.

Mr Daniels and the Tribunal

29. In the period immediately before the hearing, and at the hearing itself, Mr Daniels expressed some dissatisfaction with the way Tribunal procedures had applied to him. He complained of late access to documents, and that he had not had access to the Tribunal’s alternative dispute resolution processes. Mr Daniels also complained at the inclusion of computer-generated records from Centrelink among the documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975, suggesting they were “not evidence”. I am satisfied that Mr Daniels’s interests have not been prejudiced by the way in which the procedures of the Tribunal have applied to him: he has brought some of the problems on himself (eg by not collecting material in a timely fashion after advice to him that it was available). A decision was made in the normal way that his application was not amenable to alternative dispute resolution and should proceed to a hearing, and that decision seems to have been sound. Mr Daniels’s concerns about use of computer-generated records as evidence were considered at the hearing, and have been taken into account in these reasons. To ensure that Mr Daniels received every opportunity to present his case, additional time was provided for him to make further written submissions after the hearing.

Decision

30.     The decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of MR M. HYMAN, MEMBER

Signed:         ....................................[sgd]....................................
  Associate

Date/s of Hearing  27 July 2010
Date of Decision  3 September 2010
Solicitor for the Applicant          Self Represented
Solicitor for the Respondent    K. Horan