Gardner and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor

[2007] AATA 2037

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2037

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2007/3636

)

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KARIN GARDNER

Applicant

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

Respondent

And          BRETT GARDNER

Third Party

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:14 November 2007

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.  

(sdg) G.D. Friedman

Senior Member

SOCIAL SECURITY – family tax benefit – percentage of shared care – method of calculation

A New Tax System (Family Assistance) Act 1999 ss 21, 22, 59

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Wade v Department of Family and Community Services (2004) 139 FCR 285

REASONS FOR DECISION

14 November 2007   G.D. Friedman, Senior Member

1.      Karin Gardner and Brett Gardner are no longer members of the same couple but share the care of their two children, Shannon and Mitchell.  Both Ms Gardner and Mr Gardner receive Family Tax Benefit (FTB) on a shared care basis.  On 12 February 2007 Centrelink decided to pay Ms Gardener 62% of FTB and Mr Gardener the remaining 38%.  Ms Gardner believes that she is entitled to a greater percentage of FTB and sought review by the Social Security Appeals Tribunal.  On 12 July 2007 the SSAT decided to affirm the decision and on 6 August 2007 Ms Gardner lodged an application for review by this Tribunal.  Mr Gardner is a party to the proceedings.

ISSUE

2.      The issue before the Tribunal is to determine the correct percentage of FTB to be paid to Ms Gardner.

BACKGROUND

3.      Ms Gardner and Mr Gardner have a shared care agreement in place.  This is a result of an order made by the Federal Magistrates Court on 22 August 2005.  The percentage of care of the children, if calculated on the hours set out in the court order, are 65% care to Ms Gardner and the remaining 35% to Mr Gardner.  It is accepted by all parties that these orders have generally been complied with.

4. Ms Gardner and Mr Gardner are eligible for FTB under ss 21 and 22 of the A New Tax System (Family Assistance) Act 1999 (the Act).  On 12 February 2007 Centrelink decided that from 23 August 2005 Ms Gardner is entitled to 62% of FTB and that Mr Gardner is entitled to the remaining 38%.

5.      Ms Gardner is not disputing the times and days that the children were in Mr Gardner’s care.  She disagrees with the way Centrelink has calculated the percentage of shared care for FTB.  Centrelink made its decision on the basis of the number of nights the children were with either Ms Gardner or Mr Gardner.  Ms Gardner believes that the calculation should be based on the number of hours the children were with either parent.

LEGISLATION

6. Section 59(1) of the Act provides for FTB to be shared between two people:

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.

The Act does not explain how the person’s percentage of FTB for the child is to be determined.

WHAT IS THE CORRECT PERCENTAGE OF FTB TO BE PAID TO MS GARDNER?

7.        Ms Gardner said that the original agreement, as set out in the court order, was 65% care to her and 35% to Mr Gardner and that all parties agreed that this was to be the arrangement.  She said that if Centrelink has assessed a different percentage, then that should be calculated on the number of hours spent with the children.  Ms Gardner said that this is the most accurate way of calculating shared care.

8.        Mr Gardner said that Centrelink was correct in calculating the percentage of shared care based on the number of overnight stays the children have with either parent.  Mr Gardner said to the Tribunal that daily life with children is not predictable and that circumstances change from day to day, week to week, and even hour to hour.  He said that calculating the percentage of care on an hourly basis is too difficult and would involve a large amount of paperwork and a great amount of time.  He acknowledged that the children may be in his care a little less or a little more some days, but that overall it seems to be the clearest and simplest method.

9.        Mr Gardner also acknowledged that the care was originally agreed at 65% to Ms Gardner and 35% to himself, but now says that this is not necessarily correct.  He suggested that a more accurate estimate is 62% care with Ms Gardner rather than 65% or 67%.

10.      Mr Todd, on behalf of the Secretary, said that although there have been times in this case when the number of hours has been used to calculate shared care, these were on the occasions where Ms Gardner had provided the information to Centrelink.  It wasn’t until later when Mr Gardner provided his care arrangements, detailing the children’s overnight stays, that Centrelink re-assessed the percentage from 67% to 62% based on the number of overnight stays.  Mr Todd stated that using the nights in care as the method of calculation is the usual test adopted by Centrelink and that this is set out in the policy guidelines contained in the Family Assistance Guide 1999 (the Guide).

11.      This Tribunal is guided by government policy unless there are sound reasons to depart from it (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634). The Guide and the overnight stay method of calculation has been endorsed in Wade v Secretary, Department of Family & Community Services (2004) 139 FCR 285. In that case, the Federal Court found that there was nothing in the Act which requires the percentage to be determined by reference to whole days that a person has care of the child. The Court accepted the overnight stay method of calculation as being consistent with the purpose and intended operation of the Act if it generally reflects the actual percentage care provided.

12.      The Tribunal finds both Ms Gardner and Mr Gardner to be caring and committed parents who are doing their best for the children.  Dealing with children’s timetables and their changing needs within separated families can be understandably frustrating and difficult to manage.  In this type of case there are inevitable differences of opinion.  However, in this matter the difference of opinions of shared care are quite small and the Tribunal finds no reason to depart from the policy that was applied.  The Tribunal acknowledges that using the overnight stay method of calculation may sometimes lead to inequalities due to school hours and unexpected timetable changes but is satisfied that this is the most practical and fair method of calculation in this case.

DECISION

13.      For reasons given orally at the hearing the Tribunal affirms the decision under review.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)            Mara Putnis

Associate

Date of hearing:  14 November 2007

Date of decision:  14 November 2007

Advocate for applicant:                Self‑represented

Advocate for third party:              Self-represented

Advocate for respondent:            Mr M. Todd, Centrelink