Drake and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 694

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 694

ADMINISTRATIVE APPEALS TRIBUNAL                 )

)       No: 2009/1130

General Administrative Division           )

Re: John Drake
Applicant

And: Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date of Decision                 17 August 2009

Date of Written Reasons   11 September 2009

Place  Sydney

Decision For the reasons given orally at the hearing of this matter the Tribunal affirms the decision of the Social Security Appeals Tribunal of 19 February 2009. 

…….........SGD........................

Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – Calculation of Shared Care Percentages –Apportionment of Family Tax Benefit Payments Between Carers – Interpretation of the Legislation – Decision Under Review is Affirmed.

LEGISLATION

A New Tax System (Family Assistance) Act 1999, section 25.

REASONS FOR DECISION

11 September 2009 MS N BELL,Senior Member          

1.      At the hearing of this application the terms of the decision intended to be made and my reasons were stated orally. After service upon Mr Drake of a copy of the decision that was made, he, pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision.

2.      Mr Drake applied for review of the Social Security Appeals Tribunal’s (SSAT) decision dated 19 February 2009 to not pay Family Tax Benefit (FTB) to him from 1 July 2008.

3.      He has been assessed by Centrelink as having 29 per cent of the care of two of his children. Mr Drake has tested that assessment by having it reviewed by an Authorised Review Officer of Centrelink.  However, he did not seek to have that assessment reviewed by the SSAT because he did not wish to have his former wife involved in proceedings before the SSAT.  As a person whose interests would be affected by any decision made by the SSAT, that tribunal sought to join her to the proceedings.  Mr Drake decided not to pursue that aspect of the Secretary’s decision in the SSAT.  It follows that the assessment of his percentage care of his children is not before this Tribunal for review.

4.      Even if the question were before this Tribunal for review, it could not be considered without giving Mr Drake’s former wife an opportunity to present evidence and submissions.  In any event, Mr Drake stated clearly that he is not challenging the assessment of 29 per cent care for his children.

5. Section 25 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) from 1 July 2008 provides that if a person has less than 35 per cent care of the person’s children then the person can not receive a monetary amount of FTB. The application of section 25 to Mr Drake’s circumstances, that is, an undisturbed assessment of 29 per cent, means he is not eligible to receive FTB.

6.       Mr Drake was critical of the way in which assessments of care are made.  He maintained that while he has his children for a number of nights that correctly yields a percentage of 29 under the formula used to make assessments of care, he actually sees and cares for his children on 51 per cent of days.  He described the Family Court’s Orders as providing for him to see his children from 3 o’clock until 7 o’clock on Wednesday, from 3 o’clock until 7 o’clock on Friday, from 8 o’clock in the morning until 2 pm in the afternoon every Saturday throughout the whole year, and for half the holidays, every second weekend.

7.      Mr Drake explained the monetary costs associated with this care and contended that the formula used to assess percentage of care does not take the real or full costs of his care into account.

8.      Mr Drake contended that the consequences of the application of the assessment formula are against the intention of Parliament.  He argued that there is inconsistency between the Family Assistance Act and the Family Law Act 1975 in this respect.

9. Where the words of a statute are on the face of them unambiguous and clear, I may not go behind those words by looking at extrinsic material. I see no ambiguity in the words of section 25 of the Family Assistance Act. The operation of the provision is dependent on a figure arising from an assessment that, for a range of reasons, Mr Drake considers a flawed method. Mr Drake objects to the premises of the assessment, rather than to the calculations themselves. His remedy for this lies with the legislature.

10. I have no option but to apply the law as it currently stands. The application of section 25 of the Family Assistance Act means that, with an assessment of 29 per cent, Mr Drake is not entitled to be paid FTB.

11.     I affirm the decision under review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Snr Member Bell

Signed:         ...............................sgd.....................................................
  Associate: Felicia Daniele

Date/s of Hearing  17 August 2009
Date of Decision   17 August 2009
Date of written reasons               11 September 2009    

Representative for the Applicant    Self- represented

Representative for the Respondent           Mr Buchanan, Centrelink Legal Services