JYGW and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 277
•20 March 2025
JYGW and Secretary, Department of Social Services (Social security second review) [2025] ARTA 277 (20 March 2025)
Applicant/s: JYGW
Respondent: Secretary, Department of Social Services
Other Parties: VHRY
Tribunal Number: 2024/5609
Tribunal:Deputy President K Dordevic (at Second Review)
Place:Brisbane
Date:20 March 2025
Decision:The Tribunal affirms the decision under review.
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Deputy President K Dordevic
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 161(1B) to 161(1C) of the A New Tax System (Family Assistance) (Administration) Act 1999.
Catchwords
SOCIAL SECURITY – family tax benefit – care percentage decision – court and recovery orders – care arrangements – interim care arrangements – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance)(Administration) Act 1999 (Cth)
Child Support (Assessment Act) 1989 (Cth)
Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (Cth)Cases
Child Support Registrar v CMU23 [2024] FCA 109
Statement of Reasons
JYGW (the mother) and VHRY (the father) are the parents of a (now) 15 year old child (the child). This application concerns the parents’ respective care percentages of the child and the impact that this had on the mother’s entitlement to family tax benefit.
Following notification by the father on 10 November 2022 to Services Australia - Child Support it was determined that the mother had 0% care and the father had 100% care of the child from 3 November 2022.[1] This change to the child’s care arrangements was reported to Services Australia – Centrelink (Centrelink). This had the effect of Centrelink cancelling the mother’s family tax benefit.
[1] T5, folio 78
On 18 November 2022 the mother sought review of that decision. An authorised review officer of Centrelink found that the mother had 0% care and, as the mother had not provided evidence to support that she had taken reasonable action to ensure compliance with the care arrangement, an interim care period could not apply.
The mother then applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT1) for an independent review of the decision. On 17 July 2024 the decision was affirmed.
Dissatisfied with that decision the mother lodged an application for review on 1 August 2024.
From 14 October 2024 the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal. [2]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The hearing took place on 17 February 2025. The mother was self-represented. Centrelink was represented by Ms Maida Kopic. The father advised the Tribunal that he does not wish to participate in these proceedings. Both the mother and Ms Kopic participated by MS Teams video. The Tribunal had before it T-Documents and Statement of Facts, Issues and Contentions provided by Centrelink.
ISSUES
The statutory provisions relevant to this decision are contained in the A New Tax System (Family Assistance) Act 1999 (the Act), the A New Tax System (Family Assistance)(Administration) Act 1999 (the Administration Act), Child Support (Assessment Act) 1989 (the Child Support Act) and the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the Amending Act).
The issue requiring determination in this matter is whether an interim care determination can be made.
CONSIDERATION
The evidence before me
The mother’s evidence can be summarised as follows. There are numerous errors made by Centrelink in the management of this matter. This has caused her untold stress and distress. She wants the record corrected to accurately reflect the events following the change to the child’s care. By way of example, when the father notified the 3 November 2022 care change, the record reflects that there were no written care arrangements in place.[3] As a matter of fact, there were care orders in place.[4] Further, she immediately sought a recovery order and so cannot understand why the Centrelink record does not reflect this.
[3] T6, folio 87
[4] T4, folios 57 to 71
The mother advised that there has been gender bias evident in the handling of the matter. She explained that the father was granted an interim care period, yet when she sought the same, it was denied to her. Different outcomes flowing from the same circumstances aided and abetted the father’s ongoing financial abuse. She seeks a written apology from Services Australia and that disciplinary action is taken against the Centrelink and Child Support officers who ignored her evidence in respect of the court and recovery orders.
The mother also provided compelling evidence regarding many years of family violence she suffered. I accept her evidence that she was the victim of family violence, including coercive control, that continued following the dissolution of the marriage.
Findings of fact
I make the following findings:
·Family Court orders dated 12 December 2018 dictate that the child is to live with the mother and the father is to provide overnight care two days each alternate weekend during school terms, seven days each short school holidays and 21 days each summer school holidays. This equates to the mother providing 78% care and to the father providing 22% care;
·From 4 March 2022 the mother had 100% care of the child;
·On 10 October 2022 Centrelink determined that an interim period of 14 weeks should be applied from 4 March to 9 October 2022, [5] so reflecting the court ordered care arrangement and not the actual care of the child;[6]
·This decision was ultimately reviewed and set aside by AAT1 (in application 2023/B179090) whereby, in substitution, it was determined that the mother’s entitlement to family tax benefit should be assessed on the basis that she had 100% care of the child from 4 March 2022;
·From 3 November 2022 the father had 100% care of the child; and
·The mother lodged a recovery order in the Federal Circuit and Family Court of Australia on 4 November 2022[7]
The relevant law
[5] T8, folio 96
[6] T11, folios 140 to 142
[7] T13, folios 167 to 174
Family tax benefit is a payment made to carer of children under the family tax benefit law. Section 21 of the Act states that a person is eligible for family tax benefit if the person has at least one ‘FTB child’ and their rate of family tax benefit is greater than nil.
Section 25 of the Act provides that if a person has less than 35% care of a child during a care period, then the child cannot be a FTB child of that person. Subsection 35(3) of the Act states that the care percentage must correspond with the actual care of the child that the person has had, or will have, during a care period.
Both sections 35P and 35Q of the Act require that the Secretary must revoke an existing care determination if notified that the actual care of the child does not correspond with the individual’s existing percentage of care for the child and that the shared care percentage for the child would change.
However, section 35C of the Act dictates that in situations where there is a care arrangement in place and the actual care of the child during a care period does not comply with that care arrangement and the person with reduced care takes ‘reasonable action’ to ensure that the care arrangement is complied with, then two care percentages must be determined. The first care percentage is the care percentage that corresponds with the care that the person should have had of the child (subsection 35(3) of the Act) and the second is the person’s actual care percentage (subsection 35(4) of the Act). Reflecting the care percentage as that which the person should have had is generally referred to as ‘interim care’ decision.
Section 35F of the Act as in place prior to 29 March 2024 states that section 35C does not apply in certain circumstances. Paragraph 35F(1)(c) of the Act provides that section 35C is not applicable in circumstances where the existing care percentages were revoked pursuant to sections 35P and 35Q of the Act.
Section 35P of the Act relevantly states that a determination must be revoked if either Centrelink or Child Support are notified or become aware of a change to the child’s care and the actual care does not correspond to the child’s existing care percentage and applying the actual care percentage would change the shared care percentage range.
These provisions were largely mirrored in the Child Support Act in force prior to 29 March 2024; the specific provision preventing application of an interim period where a revocation occurred was found at paragraph 53(1)(c) of the Child Support Act.
In the decision of Child Support Registrar v CMU23 [2024] FCA 109 (CMU23) Logan J determined that the equivalent provisions in the child support law meant that interim care decisions could not be made where revocation took place under sections 54F or 54H of the Child Support Act.
The Amending Act commenced on 29 March 2024. Relevantly, it repealed paragraph 35F(1)(c) of the Act. This meant that an interim period could apply even if the existing care determination was revoked under sections 35P or 35Q. However, Item 10 of Part 2 to the Amending Act states that the amendments are only relevant to determinations made in respect of changes to care on or after 29 March 2024.
Application of the facts to the law
I have already determined that the change to the child’s care arrangements occurred on 3 November 2022. It follows that I am obliged to apply section 35F of the Act as was in force immediately prior to the commencement of the Amending Act. There is no discretion; an interim period cannot apply where revocation of existing care percentages was made pursuant to sections 35P or 35Q of the Act. Where there was doubt, CMU23 resolved that doubt. It is uncontroversial that the reasoning in CMU23 is equally applicable to family assistance law. I find accordingly.
As the mother’s existing care percentage of 100% was revoked pursuant to section 35P of the Act as was in force at the time of the care change, an interim care period cannot apply. It follows that the decision to cancel the mother’s family tax benefit with effect from 3 November 2022 is correct as she did not have a FTB child in her care.
The decision under review is correct.
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 17 February 2025 Solicitors for the Respondent: Ms Maida Kopic, Services Australia
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