Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs
[2011] AATA 473
•7 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 473
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5073
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN GILLSON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
LOUISE BRUNT
Other Party
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date7 July 2011
PlaceBrisbane
Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 15 October 2010, insofar as it relates to the period 28 May 2010 to 30 June 2010 where the Tribunal awarded the applicant a percentage of 44% and varies the decision insofar as it relates to the period from 1 July 2010 onwards, by substituting the applicant’s percentage of care to be 44% instead of 41%. ....................[Signed]..........................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Family relationships – Calculation of Family Tax Benefit – Shared care of child – Means of calculation of shared care – Whether ‘nights in care’ basis or ‘hours in care’ basis should be applied – Calculation on ‘nights in care’ basis appropriate in circumstances – Decision under review affirmed in part and varied in part
A New Tax System (Family Assistance) Act 1999 (Cth), s 35M
Administrative Appeals Tribunal Act 1975 (Cth), s 35(3)
Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159
Wade v Secretary of Family and Community Services [2004] FCA 1660; (2004) 139 FCR 285
REASONS FOR DECISION
7 July 2011 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr John Gillson (“the applicant”) has sought review of a decision that from 28 May 2010 he is entitled to 46% of the family tax benefit (“FTB”) for his child. This percentage has been assessed on the basis of the “nights in care” that the applicant has care of his child.[1] Ms Louise Brunt (“the added party”), who is the mother of the child and who also cares for the child, is an added party to this application. I have to determine the appropriate basis for calculating the percentage of FTB that the applicant is entitled to receive. I also have to determine whether this entitlement should be assessed on the basis of the “nights in care” or “hours in care” that the applicant has care of his child.
[1] In these reasons I have decided to not mention the name or sex of the child.
PRIOR DECISIONS
2. On 21 July 2010, Centrelink made a decision that from 28 May 2010 the pattern of care and the percentage of FTB be set at 46%. On 25 August 2010, this decision was affirmed by an authorised review officer.
3. On 15 October 2010, the Social Security Appeals Tribunal (“SSAT”) varied the decision so that the rates of FTB paid to the applicant be calculated on the basis that the applicant has:
· 44% of the care of the child for the period from 28 May 2010 to 30 June 2010; and
· 41% of the care of the child for the period from 1 July 2010 to 30 June 2011.
4. On 22 November 2010, the applicant lodged an application for review of the decision to this Tribunal.
BACKGROUND
5. The following tables that have been submitted by the respondent represent the dates as well as the hours that the applicant has the care of his child. The respondent has submitted tables for the following periods:
(a)Table A (28 May 2010 to 30 June 2010); and
(b)Table B (1 July 2010 and onwards).
Table A
Period Dates in Mr John Gillson’s care Number of Nights in Care Equivalent hours in care 28 May 2010 to 16 June 2010 30 and 31 May
1, 6, 7, 8, 13, 14 and 15 June9 75.5 x 3 = 226.5 16 June 2010 to 30 June 2010 20, 21, 22, 27, 28, 29 June 6 75.5 x 2 = 151 Total 15 377.5 PERCENTAGE 15/34 = 44.1% 377.5/816 = 46.2%
Table B
Period Dates in Mr John Gillson’s care Number of Nights in Care Equivalent hours in care 1 July 2010 to 17 July 2010 (school holiday period) 4, 5, 6, 11, 12, 13 July 6 72.5 x 2 = 145 18 July 2010 to 24 September 2010 18, 19, 20, 25, 26, 27 July
1, 2, 3, 8, 9, 10, 15, 16, 17, 22, 23, 24, 29, 30, 31 August
5, 6, 7, 12, 13, 14, 19, 20, 21 September30 75.5 x 10 = 755 25 September 2010 to 2 October 2010 (School holiday period) 26, 27, 28 September
3, 4, 5 October6 72.5 x 2 = 145 10 October 2010 to 7 December 2010 10, 11, 12, 17, 18, 19, 24, 25, 26, 31 October
1, 2, 7, 8, 9, 14, 15, 16, 21, 22, 23, 28, 29, 30 November
5, 6 December26 75.5 x 8 + 48.5 (for Sunday 8.30am 5 December to Tuesday 9am 7 December) = 652.5 8 December 2010 to 6 January 2011 16 (from 3pm), 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 December
1 January
2 January (to 9am)17 16 x 24 + 18 hours = 402 6 January 2011 to 26 January 2011 6 (from 4pm), 7, 8, 9, 10, 11, 12, 13 (to 4pm), 20 (from 4pm), 21, 22, 23, 24, 25, 26 (to 3pm) January
13 13 x 24 – 1 hour = 311 27 January 2011 to 9 April 2011 30 and 31 January
1, 6, 7, 8, 13, 14, 15, 20, 21, 22, 27, 28 February
1, 6, 7, 8, 13, 14, 15, 20, 21, 22, 27, 28, 29 March
3, 4, 5 April30 75.5 x 10 = 755 10 April 2011 to 27 April 2011 10, 11, 12, 13, 14, 15, 16, 17 April (first half of school holidays) 8 8 x 24 = 192 27 April 2011 to 30 June 2011 1, 2, 3, 8, 9, 10, 15, 16, 17, 22, 23, 24, 29, 30, 31 May
5, 6, 7, 12, 13, 14, 19 20, 21, 26, 27, 28 June27 75.5 x 9 – 7.5 hours (Mother’s Day) = 672 Total · 163 nights · 4029.5 hours PERCENTAGE · 163/365 = 44.6% · 4029.5/8760 = 45.9%
CONSIDERATION
6. The relations between the applicant and the added party are certainly acrimonious. This is, perhaps, reflected by the fact that the applicant and the added party confirmed that the care arrangements of the child are strictly in accordance with the court order and that there appears to be no willingness of the parties to vary the care arrangements by consent. The added party has obtained an interim domestic violence order against the applicant.
7. Initially, the added party sought to give evidence by telephone with the exclusion of the applicant from the hearing room. After I informed the parties about the terms of s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the added party, after further reflection, decided to give evidence by telephone. It is fair to say that the evidence of the added party was more directed to the inflexibility of the applicant in varying the care arrangements to cater for visits from her relatives as well as threats of court action that have been made to her. I advised the parties that, from my perspective, I was only concerned to hear evidence in relation to the actual care arrangements.
8. The applicant did not cast any doubt upon the accuracy of the tables that had been submitted by the respondent, with the exception of the calculation of “hours in care” by the respondent. The respondent has considered it appropriate to apportion three hours of care for each party for the Wednesdays that the child was in pre‑school or school. Clause 2 of the final order that was made by the Federal Magistrates Court on 28 May 2010 provides that the child “live with the mother from 9:00am Wednesday in each week until 8:30am on Sunday morning”.[2] Clause 15 of the final order that was made on 28 May 2010 provides that the child “live with the father from 8:30am Sunday in each week until 9:00am on Wednesday during the school term”.[3] That clause was later amended on 16 June 2010 to substitute “3:00pm” for “9:00am”.[4] I accept that the applicant is concerned with the welfare of his child by providing a freshly-prepared lunch at lunchtimes. The tenor of the evidence of the applicant is that the school regards him as a contact person. The added party, in giving her evidence, was not aware of this arrangement.
[2] T-Document 33; Folio 121.
[3] T-Document 33; Folio 123.
[4] T-Document 33, Folio 123.
9. The applicant gave evidence concerning his care when the child is in school on Wednesdays. He stated that he provides his child with a fresh lunch at lunchtimes. The applicant, who has a nearby pottery business, asserted that he does not work at these times in case he is needed. There was, however, no evidence before me that the child frequently needs parental assistance whilst attending school.
10. In support of his submission to disturb the apportionment that has been made by the respondent in respect of care when the child is in school on Wednesdays, the applicant, through his solicitors, has also relied upon clause 16 of the order that was made on 28 May and amended on 16 June 2010 by the Federal Magistrates Court. The applicant’s statement of facts and contentions refers to clause 16 of the order made on 16 December 2010 (paragraph 21). However, this appears to be intended as a reference to the final order made on 28 May 2010 as later amended on 16 June 2010 (paragraph 4). Clause 16 of that final order enables the applicant to be a volunteer at the child’s pre-school in 2010. This does not, in my view, afford a ground for disturbing the apportionment that was made.
11. The main contention of the applicant is that his entitlement to FTB should be assessed on the basis of “hours in care” rather than on the basis of “nights in care”. The respondent has submitted that it is appropriate to have regard to Centrelink’s policy guidelines. From the inception of this Tribunal there has been judicial guidance concerning the need of the Tribunal to have regard to policy.[5] Centrelink decisions about shared care are generally made with reference to the Family Assistance Guide 1999 (“the Guide”). In my view it is appropriate to have regard to this policy document in contested cases of shared care; the application of the policy encourages consistent decision-making.[6]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.
[6] Wade v Secretary of Family and Community Services [2004] FCA 1660; (2004) 139 FCR 285.
12. The Guide provides that, generally, a pattern of care is based on the “number of nights in a care period where an individual has the care of a FTB child”.[7] The Guide also provides that “there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child”.[8] I appreciate that in some cases it may be appropriate to assess care arrangements on an “hours in care” basis where a greater financial burden is placed on one parent.[9] However, there is no evidence that one party has made a greater financial contribution which would warrant a departure from the "nights in care" basis of calculation.
[7] Family Assistance Guide 1999, 2.1.1.45; T-Document 4, Folio 32.
[8] Family Assistance Guide 1999, 2.1.1.45; T-Document 4, Folio 32.
[9] Cf. Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533; Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159.
13. The applicant, in written submissions, pointed out that the applicant has specifically negotiated care up until 3.00pm on a Wednesday. It would not be appropriate in my view to apply an "hours in care" method of calculation merely to include the time that is spent by a child in school. This is not a case where the applicant has to be present while the child attends school.
14. There was in my view no reason placed before me which would justify a departure from the “nights in care” basis of calculation.
15. I should mention that even if I decided that it was appropriate to determine the FTB entitlement of the applicant on an “hours in care” basis, it would be artificial to credit to either the applicant or the added party the hours that were spent by the child in school.
16. The applicant submits that if this Tribunal was to assess the entitlement of the applicant by reference to a percentage that is calculated by nights in care, the applicant contends that the percentage of 44.6% should be “rounded up” to 45%. This approach is not sanctioned by s 35M of the A New Tax System (Family Assistance) Act 1999 (Cth), which requires that the percentage of the applicant, who has less than 50% care, should be “rounded down” to 44%.[10]
[10] A New Tax System (Family Assistance) Act 1999 (Cth) s 35M(b).
17. I have decided that the decision of the SSAT should be affirmed in respect of the entitlement of the applicant for the period from 28 May 2010 to 30 June 2010. However, I consider that for the period from 1 July 2010 to 30 June 2011, the decision of the SSAT should be varied by increasing the percentage entitlement of the applicant from 41% to 44% to reflect the pattern of care recorded in Table B.
DECISION
18. The decision of the SSAT dated 15 October 2010, insofar as it relates to the period 28 May 2010 to 30 June 2010 where the Tribunal awarded the applicant a percentage of 44%, is affirmed; insofar as the decision relates to the period from 1 July 2010 onwards, the decision should be varied by substituting the applicant’s percentage of care to be 44% instead of 41%.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed:.........................[Signed]..............................................
Research AssociateDate/s of Hearing 13 May 2011
Date of Decision 7 July 2011
Applicant was self-represented
Other Party was self-represented
Solicitor for the Respondent Simon Letch, departmental advocate
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