Kastrounis and Secretary, Department of Family and Community Services and Anor - [2001] AATA 534

DECISION AND REASONS FOR DECISION [2001] AATA 534

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/632

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JODY KASTROUNIS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  First Respondent
                      And    LINDA MARSDEN

Second Respondent

DECISION

Tribunal Dr Campbell, Member

Date15 June 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be affirmed.

[Sgd] DR CAMPBELL
Member
CATCHWORDS
SOCIAL SECURITY - Family Allowance - Dependent Children under 16 - Shared Payment - Fairness of such a payment

Social Security Act 1991, Sections 5, 831, 838, 869, 1255

REASONS FOR DECISION

Dr Campbell, Member

In this Application Ms. J. Kastrounis ("the Applicant") seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 30 March 2000, which varied the decision of an authorised Centrelink delegate of the Secretary, Department Family and Community Services ("the Respondent") dated 3 February 1999. The SSAT varied the amount of family allowance to be paid to the Applicant from a 77 per cent share to a 85 per cent share, as concluded by the delegate, and from a 23 per cent share to a 15 per cent share to be paid to Ms Linda Marsden (a previous joint Applicant), as concluded by the delegate. The original decision had been reviewed and affirmed by an authorised review officer in a decision dated 19 May 1999.
A hearing was held before the Tribunal in Sydney on 28 November 2000 at which the self-represented Applicant presented oral evidence to the Tribunal. The Respondent was represented by Mr Cox, a solicitor from the Advocacy and Administrative Law team at Centrelink. Following the conclusion of the Applicant's evidence the hearing was adjourned in order that the views of the second party as to the sharing of payments could be obtained.
The hearing resumed on 2 April 2001, and the self represented Applicant presented further evidence to the Tribunal. The Respondent was represented by Ms Collis at the resumed hearing. Despite being given every opportunity to attend or present evidence by phone, the second party to the shared payment arrangement did not attend.
The following material was placed into evidence before the Tribunal:
Description Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Notification of Report of an event to the NSW Police Service on three occasions Application by the Applicant for changing child support arrangements in special circumstances. Respondent's Statement of Facts and Contentions dated 4 September 2000 Proposed Terms of Settlement dated February 2001 Respondent's additional submission dated 30 March 2001 Exhibit No T1-T44 P1-130 A1 A2 R1 R2 R3

ISSUES

The relevant issue in the matter is whether the family allowance payment paid to Ms Kastrounis and Ms Marsden should be paid in accordance with the decision of the SSAT, namely:

85 per cent to Ms Kastrounis
15 per cent to Ms Marsden

LEGISLATION

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 5, 834, 838, 869, 1255.
BACKGROUND AND FILE EVIDENCE
The Applicant and her former partner Mr Tony Kastrounis during the period of their relationship had two children, Elenne born in July 1991 and Martha Jane born in June 1994. The relationship was terminated and agreement was reached concerning the care of the two children. Pursuant to clause 8 of the terms of settlement approved by the Family Court on 11 November 1998, each parent was to have responsibility for the "day to day care, welfare and development" of the children while in the care of one or other parent.
Clause one of the Family Court settlement provided that the children should reside with their mother, and clause two stipulated that their father should have care every alternate weekend and for half of all school holiday periods. Other clauses in the settlement were concerned with the particulars delivering and returning the children to each parent (T3).
The Applicant received family allowance at a rate which took into account the last monthly amount of maintenance received up to 2 February 1999 (T4). On 3 February 1999 the second party, Ms Marsden, lodged a claim for family allowance with Centrelink for the shared care arrangements nominated in the Family Court settlement (T5). On 3 February 1999 Centrelink advised the Applicant that her family allowance payments had been recalculated according to the recent court order, and that in future she would receive a payment based on 77 per cent of care undertaken during a fortnightly period (T8).
On 30 March 1999 the Applicant called Centrelink to appeal against the decision of 3 February 1999, and formally appealed in writing on 7 April 1999, citing her former partner's non compliance with the terms of the settlement order in relation to weekend and Easter care for the two children (T19, 20, 21). On 16 April 1999 Centrelink affirmed the decision on family allowance payments in accordance with the current Court order, namely her care of the two children for 77 per cent of the time (T23).
On 22 April 1999 the Applicant requested review by an authorised review officer. Following a review of the circumstances and issues raised by the Applicant, the authorised review officer affirmed the previous decision on 19 May 1999 (T29).
On 30 March 2000 the SSAT concluded that, based on the assessment of the magnitude of the differences between the parents in their respective capacities to pay and their financial responsibilities for the care of the children, Ms Kastrounis' share of family allowance should be increased to 85 per cent. Pursuant to subsections 1255(3), 1255(5) and 1255(1) of the Act, the SSAT found that the proper date of effect was the first pay day after the date of the decision, namely 17 March 2000 (T2).
EVIDENCE OF THE APPLICANT
The Applicant told the Tribunal that her two children aged nine and six were in grade three and kindergarten respectively. The Applicant stated that she completely provides for her two children including shoes, clothes, food, school uniforms and money for them to buy presents for their father on his birthday and fathers day. She cannot afford holidays for the children but they go to a friends house for a barbeque from time to time.
The Applicant told the Tribunal at the first hearing that her average earnings from part time work were $150 per fortnight, while at the resumed hearing the Applicant indicated that she was now in full time employment at Royal Price Alfred Hospital earning $900 a fortnight. At the earlier hearing the Applicant informed the Tribunal that her financial situation was poor, in that she owed $4,000-$5,000 for a loan from the Commonwealth Bank for Austudy Supplement, $600 to the Housing Commission for arrears of rent, deferred school fees, and $100 to friends, with $1 in each of her two accounts at Westpac and the Commonwealth Bank. At the resumed hearing the Applicant confirmed her earlier statements and indicated that $401 per fortnight is required for rent of her housing commission accommodation, and that her mother still helps on particular financial matters as she has to also meet work transport costs and the cost of food on a daily basis. She requires a refrigerator, washing machine and beds.
The Applicant stated that she left school at age 16/17, half way through year 11 and since then has worked episodically in catering and in hospitals. Further she indicated that she was dyslexic and experienced particular trouble reading documents. She has endometrioses for which she has had two operations. She also requires extraction of her wisdom teeth. Further, one of the children requires glasses when writing, and at one stage they were broken, with her father purchasing a pair for use only when his daughter was in Newcastle.
The Applicant stated that she and her ex partner had been together for eight years and that the children got on well with their father but not with their stepmother. The Applicant stated that she currently has no partner, but some friends; that her mother helped out and that a number of hurtful allegations about her mother, herself and brother have been made during the many legal meetings on custody and child support.
At the earlier hearing the Applicant stated that her former partner failed to turn up to pick up the children as arranged; that from 30 June 1999 he failed to turn up for six weeks; that he did not collect them for the school holidays; and that he was in Queensland after an operation. The Applicant indicated that when her ex partner, did not turn up to collect the children, she would report the matter to the police as evidenced by Exhibit A1. Nevertheless the Applicant did indicate that her ex partner after these episodes, had been diligent in the performance of picking up and delivering the children and making the appropriate phone calls. However a major concern for the Applicant was her ex partner's failure to provide the child support payments in a timely fashion and in the appropriate amounts.
The Applicant indicated that there have been further settlement agreements which have altered particulars of pick up and delivering arrangements of the children but in essence the shared care arrangement for the two children remain the same.
APPLICANT'S SUBMISSIONS
The Applicant submitted that irrespective of the time share arrangements concerning the children, she has the overall financial burden as a single mother, of providing accommodation, schooling expenses, uniforms, food, clothing and other accessories. She stated that none of these expenses are in any way lessened by the current arrangements, whereby the two children spend alternative weekends and half the school holidays with their father.
Further the Applicant contended that while she was in full employment at the time of the resumed hearing, much of her nett fortnightly pay goes towards rent and she is still having particular difficulty in 'making ends meet'. The Applicant continues to contend that she should be entitled to the full amount of family allowance.
RESPONDENT'S SUBMISSION
The Respondent contended that Ms Marsden is qualified for payment of family allowance pursuant to subsection 5(2) of the Act, and further pursuant to subsection 869(1) of the Act, the Secretary may make a declaration, where he is satisfied that two people, who are not members of the same couple, are qualified for family allowance and specify the share of family allowance each of the two people should receive.
In considering such matters, and recognising that in other decided matters, factors which have been considered include time spent by the children with the respective parties and financial responsibility and capacity of each party, the Respondent submitted that the correct outcome has been assessed in this matter.
CONSIDERATION AND FINDINGS
The Tribunal must first note that every opportunity was given to the second party, Ms Marsden, who had been joined as a Second Respondent in this matter to place her case before the Tribunal in so far as issues raised by the Applicant and to draw to the Tribunal's attention any relevant matter. Despite particular attempts by the Tribunal to adopt an inclusive process in dealing with this Appeal, the Second Respondent declined to be a party to these proceedings, and as indicated to that party, the Tribunal moves to consider the matter in the absence of further input.
In addressing the material put forward by the Applicant, the Tribunal does consider that the Applicant's financial situation has improved and that her financial situation is difficult although not parlous.
The Tribunal does express some concern with the Applicant's ability to plan financial expenditure and believes that her marshalling and handling of her financial resources and responsibilities could be improved by securing appropriate financial management advice.
In noting that the time sharing arrangements for the two children are essentially unchanged, but with the point of collection being altered to Hornsby, the Tribunal considers that this particular element of the decision remains unchanged, apart from an increased financial burden on the Applicant.
STATUTORY FRAMEWORK
The statutory framework within the Act provides for the following:
(a)Dependent Child of another person:
"5.(2) Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the "adult") if:
(a)the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care; or
(b)the young person:
(i)is not a dependent child of someone else under paragraph (a); and
(ii)is wholly or substantially in the adult's care."

In considering this subsection, the Tribunal, having considered the Family Court settlement orders in which both the Applicant and Mr Kastrounis have responsibility for the day to day care, welfare and development of the said children, and further noting that Ms Marsden usually looks after the two children when residing with Mr Kastrounis and Ms Marsden, concludes that the children are wholly or substantially in Ms Marsden's care during those periods. Accordingly it is the Tribunal's finding that Ms Marsden satisfies subsection 5(2)(b)(i) and (ii) of the Act and therefore qualifies for the payment of family allowance.

(b)Declaration by Secretary where two people who are not members of the same couple are qualified for family allowance for the same child:

"869.(1) If the Secretary is satisfied that 2 people who are not members of the same couple are each qualified for family allowance for the same child, the Secretary is to make a declaration:
(a)stating that the Secretary is satisfied that the 2 people are each qualified for family allowance for the child: and
(b)specifying the share of the family allowance for the child that each of the 2 people is to receive."

In addressing this issue, the Tribunal observes that both the Applicant and Ms Marsden are qualified for the payment of family allowance for the same two children. Accordingly subsection 869(1)(a) of the Act is found to be satisfied.

In addressing subsection 869(1)(b) of the Act, the Tribunal notes the decision in McNamara and Secretary Department of Social Services (1985) 25 SSR 302, and in particular the following extract:
"I have formed the view that it would be appropriate, in terms of [s.869] for [the mother] to receive two thirds of the family allowance payable in respect of James, and Mr McNamara one-third. It is not desirable in my view that the Department should be required to calculate proportions of an amount on the scale of family allowance…other that on a fairly broad basis. An amount calculated on a denominator of 14 assumes a precision which does not in fact exist and which could not in fact exist. Some assumption must be made."
The Tribunal, in considering the issue of relative share of the family allowance between the two qualified individuals, has addressed the issues of length of time of care, financial capacity and financial responsibility by each of the qualified partners in paragraphs 24, 25 and 26 of this decision. As a result of these considerations the Tribunal concludes that there has been no evidence placed before the Tribunal which would alter the decision of the SSAT on this issue. In brief, the Tribunal finds that the Applicant is entitled to an 85 per cent share of the family allowance payment and Ms Marsden to 15 per cent.
DETERMINATION
The Tribunal determines that the decision under review be affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  28 November 2000
Date of Decision  15 June 2001
Counsel for the Applicant        Self Represented
Counsel for the Respondent    Anthony Cox