Douglas and Secretary, Department of Families, Community Services and Indigenous Affairs & Anor
[2007] AATA 1072
•20 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1072
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2006/686
GENERAL ADMINISTRATIVE DIVISION ) Re
WAYNE DOUGLAS
Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
First Respondent
And
MELISA PALLETT
Second Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date20 February 2007
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to Centrelink to re-calculate the Applicant’s and Second Respondent’s FTB entitlements in accordance with the following:
Period
Mr Douglas
Ms Pallett
8 August 2005 to 30 January 2006
75%
25%
From 31 January 2006
76%
24%
Mr Douglas is to repay to Centrelink any debt arising as a result of the recalculation.
………..[sgd]………..
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – calculation of shared care percentages – apportionment of family tax benefit payments between carers – common sense approach to determining pattern of actual care – consideration of all available evidence – hostile relationships between parents – administrative error – requirements of good faith and financial hardship not met – no special circumstances – decision under review set aside and remitted for re-calculation of family tax benefit
A New Tax System (Family Assistance) Act 1999, sections 21, 22, 25 and 59
A New Tax System (Family Assistance) (Administration) Act 1999, sections 71(2), 95(2), 97 and 101
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re May and Secretary, Department of Family and Community Services [2003] AATA 1201
Re Nowicz and Secretary, Department, Family and Community Services (2001) 65 ALD 314
Re Plowright and Secretary, Department of Family and Community Services [2000] AATA 840
Re Daly and Secretary, Department of Family and Community Services [2004] AATA 1309
Re Beadle and Director General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
20 February 2007
Ms N Isenberg, Senior Member
DECISION UNDER REVIEW
1. On 22 May 2006 the Social Security Appeals Tribunal (“SSAT”) decided that Mr Douglas was entitled to 54% of the family tax benefit (“FTB”) rate for his daughter Rachqueal from 8 August 2005 to 30 January 2006 and to 76% of the FTB from 31 January 2006. Consequently the SSAT found that Mr Douglas had been overpaid the FTB in the period from 8 August 2005 to 30 January 2006 and that there was no reason the debt should not have to be repaid. On 8 June 2006 Mr Douglas appealed that decision to this Tribunal.
BACKGROUND
2. From 6 November 2003 Mr Douglas was paid 100% FTB as the sole carer of his daughter Rachqueal.
3. On 8 November 2005 Ms Pallett, Rachqueal’s mother, lodged a claim for FTB (in relation to the 2005/2006 financial year) on the basis that she shared the care of Rachqueal with Mr Douglas. The claim was accompanied by court orders indicating that Rachqueal was to commence residing, part time, with Ms Pallett from 8 August 2005.
4. On 11 November 2005, Centrelink decided that from 8 August 2005, Ms Pallett began to share caring responsibilities for Rachqueal with Mr Douglas. On the basis of information contained in the court orders, Centrelink determined that Ms Pallett was entitled to 45% of the FTB rate for Rachqueal and Mr Douglas to 55% of the rate. It was determined that these percentages were reflective of the care each parent provided to Rachqueal.
5. As a consequence of this adjustment, a FTB debt in the amount of $761.67 for the period 8 August 2005 to 8 November 2005 was raised against Mr Douglas. This decision was affirmed on review.
6. On 22 May 2006, the SSAT decided that Mr Douglas was entitled to 54% of the FTB rate for Rachqueal from 8 August 2005 to 30 January 2006 and to 76% from 31 January 2006 when she started school. The debt was recalculated to $791.59.
ISSUES BEFORE THE TRIBUNAL
7. There is no dispute that Rachqueal is an FTB child in accordance with sections 21, 22 and 25 of the A New Tax System (Family Assistance) Act 1999.
8. Therefore, the issues for the Tribunal to determine are:
· What proportion of the FTB Mr Douglas and Ms Pallett are each entitled to from 8 August 2005 to 30 January 2006 and from 31 January 2006;
· Whether Mr Douglas owes a debt for FTB previously paid to him; and, if so,
· Whether the debt is recoverable.
LEGISLATIVE FRAMEWORK
9. A copy of sections 21, 22, 25 and 59 of the A New Tax System (Family Assistance) Act 1999 and sections 71(2), 95(2), 97 and 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 are attached to these reasons. (Attachment A)
10. Section 59 of the A New Tax System (Family Assistance) Act 1999 allows the decision-maker to determine the percentage that is to be each carer’s percentage of the FTB for the child.
11. Section 59, however, does not explain precisely how this percentage is to be calculated. I referred to the Family Assistance Guide (“the Guide”) to assist me with my calculations. Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416 at 418; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
12. The Guide states that the rate payable depends on the pattern of care over a financial year or, if the care arrangements change during the financial year, for the period that particular arrangement exists. If the pattern of care changes, the level of care is re-assessed from the date it changes. The percentage of care may be assessed in one of the following two ways; the carers may agree to a percentage that they believe reflects the pattern of care or, if the carers cannot agree, the percentage of care is calculated by Centrelink based on available evidence (including written and oral). An assessment period follows the financial year, unless there are changes in the pattern of care.
13. The Guide at paragraph 2.1.1.20 gives the following interpretation of the Act:
If the parents do not agree on what the care arrangements are, [the Secretary] must decide the percentage which reflects the actual care arrangements based on the available evidence. [Emphasis added]
14. In this case it is necessary for me to calculate the pattern of actual care as Mr Douglas and Ms Pallett cannot agree in relation to the period 8 August 2005 and 30 January 2006. They do agree, however, that Mr Douglas had 76% of the care of Rachqueal from 31 January 2006.
CONSIDERATION OF THE EVIDENCE
15. Mr Douglas, his mother, Mrs Jocelyn Douglas, and his sister, Ms Bernadette Douglas, gave evidence, as did Ms Pallett and Mr Skeates, Mr Douglas’ carer.
16. In calculating the pattern of care I considered not only the care apportioned in the Family Court Orders but also the written and oral evidence in order to ascertain what actually happened during the relevant period. This “common sense” approach, as cited with approval by Deputy President S A Forgie in ReMay and Secretary, Department of Family and Community Services [2003] AATA 1201, was described in Re Nowicz and Secretary, Department, Family and Community Services (2001) 65 ALD 314 at 318:
…s22(7) equally does not limit the secretary’s discretion to only consider care arrangements as stipulated in a court order or parenting plan. A commonsense [sic] approach necessarily means that the secretary, and therefore this tribunal, considers the relevant documentation, and the evidence of both parties as to what has been happening in the past, and what is intended to happen in the future, if such differs from the documentary evidence. Based upon such consideration, the secretary is then in a position to determine what pattern of care has existed, or will exist in relation to the relevant FTB child.
17. In calculating the pattern of care I also considered “…the extent to which each parent, with daily legal responsibility, has responsibility for the hunger, thirst, health and safety of the children as the matters of most relevance in considering apportionment” (Re Plowright and Secretary, Department of Family and Community Services [2000] AATA 840 at [20]).
18. I note that “As a matter of policy FTB is intended to assist with such essential costs of caring for children. It is appropriate therefore to consider the proportionality of FTB payments on the basis of temporal as well as financial factors…” (Re Daly and Secretary, Department of Family and Community Services [2004] AATA 1309 at [35])
Family Court Orders: Anticipated Pattern of Care
19. The August 2005 Family Court Orders provide some guidance as to the anticipated pattern of care of Rachqueal.
20. The orders were to the effect that:
·Rachqueal was to reside with her mother from midday Monday 8 August 2005 until midday Monday 15 August 2005 and each alternate week thereafter;
·Rachqueal was to reside with her mother for the first half of the Christmas school holidays and with her father for the second half;
·Rachqueal was to reside with her father from midday Christmas eve until midday Christmas Day 2005; and
·Rachqueal to reside with her father on Father’s Day between 9.00am and 5.00pm.
Actual Pattern of Care
21. Mr Douglas’ evidence was that from the outset the orders were not adhered to. He gave evidence that between August and November 2005 “nearly every week” Ms Pallett arrived between half-an-hour to an hour late at the appointed handover time and location. He stated that she provided a variety of excuses, such as, being without money, having had a late night or being unable to fit Rachqueal in the car. He claims that once he waited up to 2 hours to hand over their daughter and, as Rachqueal was becoming agitated, he left.
22. He gave evidence that approximately “6 to 7 times” Ms Pallett did not turn up collect Rachqueal or said she wasn’t coming. On approximately 5 of these occasions Mr Douglas kept Rachqueal for an extra week. Sometimes Rachqueal would stay with his mother for the weekend if Ms Pallett wanted to hand her over early.
23. He said that at one stage he kept Rachqueal for two to three weeks because he said he had concerns for her welfare and had been advised by the Department of Community Services not to return her if he had safety concerns. Ms Pallett brought “breach proceedings” in relation to this incident but these were abandoned.
24. Mr Douglas’ mother said that between August 2005 and when Rachqueal commenced school Ms Pallett never had Rachqueal on weekends. Rachqueal would be returned to her on Thursdays. She, Mrs Douglas, would often have Rachqueal on those weekends and Mr Douglas would make a financial contribution. This is consistent with the account she gave in her statement of 20 April 2006.
25. Mr Douglas’ sister also said that between August and December 2005 Rachqueal never stayed at Ms Pallett’s on the weekend. In fact, it was her evidence that although Rachqueal spent time with her mother, she thought Rachqueal never stayed with her mother at all because there was no bed.
26. Ms Pallett gave completely conflicting evidence. Her evidence was that the Family Court Orders were strictly adhered to between August 2005 and when Rachqueal started school. She conceded that there was one week when Mr Douglas did not return Rachqueal to her, so there were 3 weeks in a row when Mr Douglas had Rachqueal - one of which was Ms Pallett’s week. Allegations had been made by Mr Douglas about Rachqueal’s welfare while in her care. Officers of the Department of Community Services had attended as did the police “every second day’” She denied there had been several occasions when she did not turn up for the handover or that there were occasions when she was late.
27. There was considerable difficulty in reconciling the evidence of the witnesses. Mr Douglas and Ms Pallett clearly now have an acrimonious relationship, although both appeared to be able to speak to each other amicably in respect of Rachqueal’s wellbeing.
28. Mr Douglas urged me to accept his mother’s evidence. He said that in years gone by she had been unsupportive of him and had “sent him to gaol”, so it was unlikely that she would do other than tell the truth. He spoke of her community service. Ms Pallett agreed that throughout the break-up of the relationship the Douglas family had remained supportive of both Rachqueal’s parents and had not taken sides. (She was not, however, sure that this still applied.) While Mrs Douglas’ evidence was consistent with her statement I consider that her claim that Rachqueal never stayed with her mother on weekends to be something of an overstatement. Even Mr Douglas did not put his case on this basis. He and Mr Skeates gave evidence that on 6-7 occasions Ms Pallett simply did not turn up at the time and place for handover and about 5 times this resulted in him keeping Rachqueal for an additional week and, in addition, Ms Pallett was late nearly every week. On other occasions Rachqueal stayed with his mother on Ms Pallet’s weekends.
29. Mr Douglas’ evidence before the SSAT was that “on and off” Ms Pallett would return Rachqueal early, on Thursdays, due to lack of money. (His evidence before me was that he had paid Ms Pallett’s electricity bill and provided food when she said she was unable to have Rachqueal for these reasons.) He also told the SSAT that he withheld Rachqueal from her mother for a month because of the condition in which Rachqueal had been returned to him. Neither of these matters appears to have been taken into account by the SSAT in its calculations. While his evidence before me did not precisely accord with that before the SSAT I consider it to be broadly consistent. Mr Douglas has consistently asserted that Ms Pallett’s care of Rachqueal was less than the orders.
30. I also note Ms Pallett’s position that she did not wish to “drag” others into her business, so did not call any witnesses. Neither did she challenge Mr Douglas or any of his witnesses. It remains then, on the evidence before me, that the evidence of the Douglas family and Mr Skeates is to the effect that Ms Pallett’s care of Rachqueal was considerably less than the orders anticipated.
31. If, as the orders reflect, Ms Pallett’s care was 45% of the time, this is 79 out of 176 nights.
32. Therefore, on the basis of Mr Douglas’ evidence that he retained Rachqueal for 5 additional weeks when her mother did not arrive to collect her, Ms Pallett’s number of days reduces to 44 out of 176, which is 25%. This is a more conservative basis than would result from either Mrs Douglas’ or Ms Douglas’ account.
33. Following May and Daly, in determining the appropriate apportionment, I am also take into account the additional responsibility and financial burden that each parent has borne. Mr Douglas gave evidence that Rachqueal has a queen-sized bed with a single bed above. She has a large flat screen television, a DVD player and a laptop with educational programs. She has a bookcase full of books, a trampoline and a dog. He spent $900 on her last birthday party. He estimated her to have about $2000 worth of clothes. He no longer allows her to take clothes and toys to her mother’s as they are never returned. He gave evidence that, currently, for example, there are 4 pairs of shoes there that have not been returned. There was no dispute that for some time Rachqueal did not even have a bed at her mother’s.
34. Therefore in respect of the whole of the period under review I find the relative proportions of care to be:
Period
Mr Douglas
Ms Pallett
8 August 2005 to 30 January 2006
75%
25%
From 31 January 2006
76%
24%
35. This will necessitate a recalculation of the FTB entitlements of Mr Douglas and Ms Pallett and the matter is remitted to Centrelink to re-calculate the FTB entitlements in accordance with the above decision.
Is There a Debt and Is There Any Reason It Should Not Be Recovered?
36. As the FTB to which Mr Douglas is entitled in respect of the period 8 August 2005 to 8 November 2005 is less than he was paid, but the FTB to which he is entitled in respect of 9 November 2005 to 30 January 2006 is more than he was paid it would appear that there is likely to have been a small overpayment which is a debt due to the Commonwealth: s71(2) A New Tax System (Family Assistance) (Administration) Act 1999.
37. Mr Douglas submitted that he should not have to repay the debt.
38. Debts to the Commonwealth may be written off in very limited circumstances, none of which apply to Mr Douglas: s95(2).
39. Debts may be waived under s97 A New Tax System (Family Assistance) (Administration) Act if the debt is attributable solely to an administrative error by Centrelink as follows:
97 Waiver of debt arising from error
(1) The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2) The Secretary must waive the administrative error proportion of a debt if:
(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b) the person would suffer severe financial hardship if it were not waived.
(3) The Secretary must waive the administrative error proportion of a debt if:
(a) the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and
(b) the debt is raised after the end of:
(i) the debtor’s next income year after the one in which the eligibility period or event occurs; or
(ii) the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last; and
(c) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
(4) For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.
40. Mr Douglas gave evidence that “basically immediately” after the Family Court made the orders on 1 August 2005 he provided Centrelink with a copy of the (handwritten) orders. He said he phoned Centrelink and then Mr Skeates attended Centrelink to deliver the orders. Mr Skeates agreed that this was within a day or two of the date of the orders. Mr Skeates said he was able to do this as he was Mr Douglas’ nominee.
41. Centrelink, however, has no record that a copy of the orders was provided on Mr Douglas’ behalf. I was informed that while Mr Skeates was recorded by Centrelink as Mr Douglas’ carer since June 2005 he was not recorded as his “nominee” until October 2005. Documents relating to a Centrelink beneficiary would not be accepted by Centrelink from another person unless they were the beneficiary’s nominee.
42. Ms Pallet said that she had attended Centrelink in August 2005 with a copy of the (handwritten) orders but was told Centrelink would require a sealed version. Mr Bullock, on behalf of the Respondent, said that there was no policy within Centrelink about whether officers could rely on handwritten orders, or must wait for sealed orders. It was a matter for the discretion of individual officers. I observe, in any event, that Centrelink’s records show that it first received notice of the orders, by telephone, on 8 November 2005.
43. Without coming to a view as to whether there has been any administrative error on the part of Centrelink, I note that under s97 there are two requirements before Mr Douglas’s debt could be waived under this section: the payment must have been received by him in good faith, and he must be in severe financial hardship if it were not waived.
44. In relation to whether the payment was received by Mr Douglas in good faith, I note that he was well aware of the terms of the orders from 1 August 2005. His evidence is that he did notify Centrelink, however, he continued to be paid at 100% until November 2005 and there was no evidence that he took any steps to query that rate of payment in the meantime. In those circumstances I have some reservations that it could be said that he had received the payments at the rate of 100% “in good faith”.
45. As to severe financial hardship, I accept that Mr Douglas is on the disability support pension and has little, if any, assets. He has high medical expenses and must use taxis extensively because of his condition. He has provided most generously for his daughter. He gave evidence that he owes his father $10,000 which he pays back at the rate of $100 per fortnight. I do not consider that to have to repay the debt to Centrelink at the current rate of $15 per fortnight would result in severe financial hardship.
46. Therefore even if there was an administrative error by Centrelink, my findings in relation to good faith and severe financial hardship preclude Mr Douglas from obtaining the benefit of the section.
47. The remaining basis on which a debt may be waived is set out in s101 of the A New Tax System (Family Assistance) (Administration) Act as follows:
101 Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of the family assistance law; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
48. I accept Mr Douglas’ evidence about his ill health. He requires an urgent stomach-banding operation. His has multiple fractures in his back and it is because of this that he requires a carer. He also suffers an anxiety condition for which he consults a counsellor weekly.
49. The term “special circumstances”, however, has been examined by the AAT and the Federal Court. In Re Beadle and Director General of Social Security (1984) 6 ALD 1 at 3, Toohey J stated:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
50. I find that Mr Douglas’ circumstances are not so special as to attract the discretion in the section. They are not "unusual, uncommon or exceptional" or "have a particular quality of unusualness that permits them to be described as special": Re Beadle.
51. Therefore, to the extent that there may be a relatively small debt as a result of my findings in relation to FTB entitlement, I find there is no reason Mr Douglas should not have to pay that back to Centrelink.
DECISION
52. The decision under review is set aside and the matter is remitted to Centrelink to re-calculate the FTB entitlements in accordance with the following:
Period
Mr Douglas
Ms Pallett
8 August 2005 to 30 January 2006
75%
25%
From 31 January 2006
76%
24%
Mr Douglas is to repay to Centrelink any debt arising as a result of the recalculation.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER
Signed: …….[Emily Gadsby]……….
AssociateDates of Hearing 19 December 2006 & 13 February 2007
Date of Decision 20 February 2007The Applicant Self-represented, in person and assisted by his carer, Mr G Skeates on 19 December 2006 and by conference telephone on 13 February 2007
The First Respondent Represented by Ms A Garcia of Centrelink Legal Services on 19 December 2006 and Mr K Bullock of Centrelink Legal Services on 13 February 2007
The Second Respondent Self-represented, by conference telephone
attachment a
A New Tax System (Family Assistance) Act 1999
21 When an individual is eligible for family tax benefit in normal circumstances
(1) An individual is eligible for family tax benefit if:
(a)the individual has at least 1 FTB child (see section 22 and later provisions); and
(b) the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); and
(c)the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.
When individual satisfies this subsection
(1A)An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991, and either of the following applies:
(a) the individual is in Australia; or
(b) the individual:
(i)is temporarily absent from Australia for a period not exceeding 13 weeks; and
(ii)the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
(2)However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.
…
22 When an individual is an FTB child of another individual
(1)An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 18
(2) The 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 special category visa holder residing in Australia or is living with the adult.
(3) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b)a family law order or registered parenting plan is in force in relation to the individual; and
(c)under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the individual is supposed to have contact; and
(d) the individual is in the adult’s care; and
(e)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
(4) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b the individual is in the adult’s care; and
(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; and
(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
Individual aged 18‑20
(5) The individual is an FTB child of the adult if:
(a) the individual has turned 18 but is aged under 21; 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.
Individual aged 21‑24 undertaking full‑time study
(6) The individual is an FTB child of the adult if:
(a) the individual has turned 21 but is aged under 25; 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 individual is undertaking full‑time study.
(7) If:
(a)the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual under subsection (2), (3), (4), (5) or (6); and
(b)one of those other individuals 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 that period; and
(c)subsection 25(1), (1A) or (1B) does not require that the child be taken not to be an FTB child of that individual for any part of that period;
the child is to be 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.
25 Effect of FTB child being in individual’s care for less then 30% of a period
(1) If:
(a)the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); and
(bone of those other individuals 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 that period; and
(c)the Secretary is satisfied that the child was, or will be, in the care of that last‑mentioned individual for less than 10% of that period;
the child is to be taken, despite that subsection, not to be an FTB child of that last‑mentioned individual for any part of that period.
(1A) If:
(a)the Secretary is satisfied that there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); and
(b)one of those other individuals 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 that period; and
(c)the Secretary is satisfied that the child was, or will be, in the care of that last‑mentioned individual for not less than 10%, but less than 30%, of that period; and
(d)that last‑mentioned individual, by written declaration given to the Secretary, waives the individual’s eligibility for family tax benefit in respect of the child for some or all of the days in that period;
the child is to be taken, despite that subsection, not to be an FTB child of the last‑mentioned individual on any day covered by the declaration.
(1B) If:
(a)the Secretary is satisfied that there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); and
(b)the Secretary is satisfied that, if one of those other individuals was to make 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 that period, the Secretary would be satisfied that the child would have been, or would be, in the care of that individual for not less than 10%, but less than 30%, of that period; and
(c)that last‑mentioned individual, by written declaration given to the Secretary, waives the individual’s eligibility for family tax benefit in respect of the child for some or all of the days in that period;
the child is to be taken, despite that subsection, not to be an FTB child of the last‑mentioned individual on any day covered by the declaration.
(1C)If an individual has given the Secretary a written declaration under subsection (1A) or (1B), the individual may, by further notice in writing given to the Secretary, revoke the declaration with effect from a specified day, not being a day earlier than the date of the revocation.
(1D)A written declaration referred to in subsection (1A) or (1B), or a revocation of such a declaration, must be made in a form and manner required by the Secretary.
(2)For the purposes of this section, a child cannot be in the care of more than one of the other individuals referred to in subsection (1), (1A) or (1B) on any particular day.
(3)For the purposes of this section, the Secretary must determine which of the other individuals referred to in subsection (1), (1A) or (1B) has the care of the child on any given day having regard to the living arrangements of the child.
…
59Secretary may make determination where individual is FTB child of 2 people who are not members of the same couple
(1) If the Secretary is satisfied that:
(a) an individual is an FTB child of an individual (person A); and
(b) the FTB child is also an FTB child of another individual who is not person A’s partner;
the Secretary may determine the percentage that is to be person A’s percentage of family tax benefit for the child.
(2)If the FTB child is one of 3 or more FTB children who were born during the same multiple birth, the Secretary may specify in the determination under subsection (1) the manner in which multiple birth allowance under Division 2 of Part 5 of Schedule 1 is to be dealt with.
(3)Without limiting subsection (2), the Secretary may specify that the whole of the multiple birth allowance is to be paid to one of the 2 individuals involved.
A New Tax System (Family Assistance) (Administration) Act 1999
71Debts arising in respect of family assistance other than child care benefit and family tax benefit advance
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Overpayment
(2)If:
(a)an amount (the received amount) has been paid to a person by way of assistance; and
(b)the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.
95Secretary may write off debt
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(2)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
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97Waiver of debt arising from error
(1)The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2)The Secretary must waive the administrative error proportion of a debt if:
(a)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b)the person would suffer severe financial hardship if it were not waived.
(3)The Secretary must waive the administrative error proportion of a debt if:
(a)the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and
(b)the debt is raised after the end of:
(i)the debtor’s next income year after the one in which the eligibility period or event occurs; or
(ii)the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last; and
(c)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
(4)For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.
101Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of the family assistance law; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
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