Kevin Pillay and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Colleen Pillay PARTY JOINED

[2012] AATA 609

[2012] AATA  609

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0796
Re	Kevin Pillay
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
And	Colleen Pillay
PARTY JOINED

DECISION

Tribunal	M D Allen, Senior Member
Date	11 September 2012
Place	Sydney

The decision under review is set aside and this matter remitted to the Respondent with the direction that:

(1)       In the 2007-2008 tax year:

(i)The Applicant had 60 per cent of the care of all three children until 6 April 2008.

(ii)As from 6 April 2008 the Applicant had 100 per cent of the care of the child B and 60 per cent of the care of the two other children of the marriage.

(2)       In the 2008-2009 tax year:

(i)The Applicant had 100 per cent of the care of the child B.

(ii)The Applicant had 60 per cent of the care of the two other children of the marriage until 12 June 2009.

(iii)The Applicant had 31 per cent of the care of M from 13 June 2009 to 30 June 2009.

..........[sgd]..............................................................

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY - Family Tax Benefit - Determination of percentages of care when parties living separately but under the same roof.  Decision under review varied.

LEGISLATION

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

CASES

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259

Re Warne and Secretary, Department of Family Community Services and Indigenous Affairs and Anor [2006] AATA 159

SECONDARY MATERIALS

Department of Families, Housing, Community Services and Indigenous Affairs, Family Assistance Guide, 2012

REASONS FOR DECISION

M D Allen, Senior Member

11 September 2012

1. By application made on 29 February 2012, the Applicant sought review of a decision by the Social Security Appeals Tribunal that determined:

   (i)That in the tax year 2007-2008 the Applicant’s Family Tax Benefit (FTB) was to be calculated on the basis that he had 50 per cent of the care of the three children of his marriage to the Party Joined.

   (ii)That for the tax year 2008-2009 the rate of FTB payable to the Applicant was to be calculated on the following bases, namely:

   ·        for the children T and M from 1 July 2008 until 12 June 2009 at 50 per cent;

   ·        for M from 13 June 2009 to 30 June 2009 at 31 per cent; and

   ·        for T from 13 June 2009 nil.

   (iii)That the Party Joined was not entitled to FTB from 13 June 2009.

2. In these proceedings the Party Joined declined to appear, consequently the evidence given by the Applicant was not subject to challenge.

3. The issues to be determined in these proceedings are what was the Applicant’s and the  Party Joined’s respective percentage of care for the three children of their marriage in the tax years 2007-2008 and 2008-2009 for the purposes of FTB.

4. The legislative provisions relevant to this matter have been attached at T3/12-13 and the Guide to the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) appears at T4/14-15.

5. As per s 21(1) of the Family Assistance Act, a person is eligible for FTB if they have at least one FTB child.  Section 22(2) of the Family Assistance Act provides that an individual is a FTB child of an adult if the individual is under 18 years of age, the adult is legally responsible for the child’s day-to-day care, welfare and development and the child is in the adult’s care.

6. Sections 21 and 22(6A) of the Family Assistance Act set out the qualification criteria for FTB and the requirement for the Secretary to determine the percentage of care.

7. Where two or more people share care of a child and a pattern can be established such that the Secretary is satisfied that the child was a FTB child of more than one FTB claimant, the Secretary must determine the percentage of the period in which the child was in the care of each FTB claimant (see s 22(6A) Family Assistance Act).  If the percentage in relation to an individual is less than 35 per cent, the child is taken not be a FTB child of the person (see s 25 of Family Assistance Act).

8. The legislation applicable prior to 1 July 2008 was somewhat different, in that the determination of the percentage of care was made under s 59, and the FTB was divided in accordance with that percentage precisely, provided the care was at least 10 per cent.

9. Where, as in this case, a couple have separated and FTB is claimed for a period when they were separated under one roof, the one-member eligibility rule does not apply and the percentage of FTB payable to each former member of the couple is a matter for determination by the decision-maker.  Section 29 provides eligibility criteria for FTB of separated members of a couple for a period before separation.

10. Section 59 provides that, where two individuals (who are not members of a couple) share the care of a child, FTB can be apportioned between the two individuals.

11. The legislation requires the Secretary to be satisfied that there has been, or will be, a pattern of care for a child over a period in order for the child to be a FTB child of more than one individual but it does not define how the pattern of care is to be determined.

12. The legislation does not specify whether the percentage of FTB should be determined by reference to the number of hours a child is in an individual parent’s care or the number of nights a child spends with their parent.

13. The Family Assistance Guide (the Guide) at paragraph 2.1.1.45 states:

    If the care percentage or care arrangements for a child are not agreed between carers, it is necessary to establish a pattern of care (1.1.P.70) to make a shared care determination for FTB.  A pattern of care is established by using the number of nights in care (1.1.N.15) for each FTB child.

    …

    There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child.  In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days in care.

14. Furthermore, the Guide at paragraph 2.1.1.50 states:

    Having established the pattern of care during the care period, the number of nights in care (1.1.N.15) is divided by the number of days in the care period and multiplied by 100 to arrive to a percentage.

15. The Family Assistance Act further does not prescribe how the decision-maker should approach the task of deciding how the benefits should be paid under s 29 of the Family Assistance Act.  The Guide also provides some guidance for such a situation at 2.1.1.25:

    Sharing FTB between a separated couple for a period prior to separation – past period claim

    If the Secretary is satisfied that 2 individuals:

    ·are no longer members of a couple, and

    ·have an eligible FTB child for a past period, and

    ·would both have been eligible for FTB but for subsection 26(1) (only one member of a couple eligible for FTB),

    then the Secretary may determine that both applicants are eligible for that period and determine the percentage of care applicable for each applicant/recipient for that period.

    The recipients can agree on the percentage of care they each had for their FTB child, providing the total care percentage does not exceed 100%.  If they do not agree on a percentage of care, an assessment of their actual care arrangements for the period must be made. In this case the care arrangements for the period being claimed for must be declared, and the determination of the percentage of FTB to be paid for each person will be the same as for any other shared care case.

    In determining the percentage of FTB to which each individual is entitled, the decision will be based on issues of fairness and appropriateness, taking into account equity considerations and the sharing and pooling within a family unit that can result in a 50:50 split of FTB.

16. At the outset, although the Guide gives guidance as to how apportionment of care should be assessed for FTB, it is only policy and as Davies J, sitting as President of this Tribunal, said in Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at [266]:

    But to say that is not say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has  been laid down.

    …

    As was said in Re Aston at p 376: "Policy is not law. A statement of policy is

    
    

    not prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.

17. In addition, in approaching this matter I believe that the correct approach is that stated by Deputy President Hack SC in Re Warne and Secretary Department of Family Community Services and Indigenous Affairs and Anor [2006] AATA 159, namely that in dispute cases it is important to take a broad brush approach in determining the percentage of shared care, one in which a number of factors or aspects of care may be taken into account.

18. In this matter the Applicant’s case was essentially that whilst he and the Party Joined were living separately but apart, under the same roof, he had the major percentage of care of the three children.

19. To this end he produced into evidence a series of diary notes which he submitted evidenced that he had had the preponderance of care of the three children, especially the younger child M.

20. What also emerges from the Applicant’s evidence is that, at an early stage, the relationship between the Party Joined and the eldest child of the marriage, B, had broken down irretrievably long before the formal separation of the parties, and that on, 6 April 2008 the Party Joined had stated to B “you get nothing from me”. I accept the Applicant’s evidence that from this time he provided 100 per cent of B’s care.

21. Although I have had regard to both the Applicant’s diary notes and the judgment of the Federal Magistrates’ Court regarding custody of the children, I am conscious of the fact that the Party Joined did not appear in these proceedings. 

22. Whereas the Social Security Appeals Tribunal adopted the “broad brush approach”, namely, that whilst both parties remained under the same roof, they had equal care of the children, the uncontradicted evidence before me is to the contrary.

23. I note the Applicant did state that the Party Joined cooked meals for the two younger children, and the diary notes suggest that she performed other tasks, I am satisfied that the preponderance of care was carried out by the Applicant. 

24. Doing the best I can I am satisfied that the Applicant had 60 per cent of the care of the children until 6 April 2008.  From that time he had 100 per cent of the care of B and 60 per cent of the care of the two younger children, until he left the former matrimonial home.

25. The decision under review will be set aside and this matter remitted to the Respondent with the direction that:

    (1)In the 2007-2008 tax year the Applicant:

    (i)Had 60 per cent of the care of all three children until 6 April 2008.

    (ii)Had 100 per cent of the care of the child B and 60 per cent of the care of the two other children of the marriage.

    (2)       In the 2008-2009 tax year the Applicant:

    (i)Had 100 per cent of the care of the child B.

    (ii)Had 60 per cent of the care of the two other children of the marriage until 12 June 2009.

    (iii)Had 31 per cent of the care of M from 13 June 2009 to 30 June 2009.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member.

.........[sgd]...............................................................

Associate

Dated  11 September 2012

Date(s) of hearing	20 August 2012
Applicant	In person
Solicitors for the Respondent	Ms P Sharma, DHS Program Litigation Review Branch
Third Party	In person