Krawczyk and Secretary, Department of Social Services (Social services second review)

[2018] AATA 2304

Krawczyk and Secretary, Department of Social Services (Social services second review) [2018] AATA 2304 (13 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6115

Re:Antoni Krawczyk

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:13 July 2018

Place:Sydney

The decision made by the Social Security & Child Support Division of the Administrative Appeals Tribunal on 8 September 2017 is affirmed.

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

Senior Member M J McGrowdie

Catchwords

SOCIAL SECURITY – Centrelink – family tax benefit – whether the Applicant had 100% care of children – whether Applicant was a member of a couple – Applicant and spouse residing at same address – decision under review affirmed

Legislation

A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

Social Security Act 1991 (Cth)

REASONS FOR DECISION

Senior Member M J McGrowdie

13 July 2018

1. This is an application by Mr Antoni Krawczyk in respect of the family tax benefit for the period 10 July 2016 to 3 December 2016.

2. Through that period Mr Krawczyk was married to Cherie Krawczyk. They are the parents of five children.

   FACTS

3. On 26 September 2016, Mr Krawczyk made an application to Centrelink for the family tax benefit upon the basis of a change of circumstances, namely, that he and Ms Krawczyk had separated on 10 July 2016 even though they continued to reside under the same roof until December 2016 and, consequently, he was entitled to the benefit as the children were in his care.

4. On 10 July 2016, Ms Krawczyk, who had been suffering from PTSD and having problems dealing with alcohol, fell through a shower screen at home and was attended to by one of her daughters. From that time onwards, Mr Krawczyk re-arranged his work schedule as a self-employed pest controller in an attempt to be at home when the children were there.

5. In September and December 2016, Ms Krawczyk was hospitalised for a short period in respect of her illness.

6. Also, on 23 September 2016, there was an AVO in respect of Ms Krawczyk following an incident involving one of her daughters who became the “protected” person. The AVO was extended on 29 November 2016 to include Mr Krawczyk as a “protected” person.

7. Until hospitalised in December 2016, Ms Krawczyk continued to make financial contributions such as contributing to the payment of the mortgage. Following hospitalisation in December 2016, Ms Krawczyk moved residence.

8. It is clear that the marriage was under strain, particularly from July 2016 and certainly by September 2016.

9. Mr Krawczyk argues that he and Ms Krawczyk were no longer members of a couple for the purposes of the Social Security legislation from July 2016. Ms Krawczyk argues that they continued living as a couple until December 2016.

10. Centrelink originally granted Mr Krawczyk 100% of the family tax benefit from 23 September 2016. An Authorised Review Officer (ARO), however, found that Mr Krawczyk had 100% care from 10 July 2016. On a first level review by the Social Services & Child Support Division of the Administrative Appeals Tribunal on the application of Ms Krawczyk, 100% entitlement to the family tax benefit by Ms Krawczyk was accepted from 10 July 2016 to 23 September 2016, 50% between 26 September 2016 and 3 December 2016, with 100% to Mr Krawczyk thereafter.

11. The relevant sections of the Social Security Act 1991 (Cth) and the A New Taxation System (Family Assistance) Act 1999 (Cth) are clearly set out in the AAT1 decision made on 8 September 2017.[1]

    [1] T documents at 8-10.

12. The Department of Social Services does not seek to cavil with the earlier decision of the Tribunal, nor does Ms Krawczyk.

    CONSIDERATION

13. In reviewing the matter in its entirety, it is difficult to accept the proposition that Mr Krawczyk had 100% responsibility for the children until Ms Krawczyk entered hospital in December 2016. They remained under the one roof and Ms Krawczyk continued to make contributions.

14. Whilst it is also clear that from July 2016 there were significant relationship difficulties, I consider that it was from September to December 2016 that it could be concluded that care of the children was shared between the parents who had separated even though they were living under the one roof (and despite Ms Krawczyk’s illness).

15. It is significant that in September 2016 there was the AVO, Mr Krawczyk notified Centrelink of a change in circumstances, and that Ms Krawczyk had been admitted to hospital for the first time. From at least September 2016 all payments of the family tax benefit received by Ms Krawczyk were paid over to Mr Krawczyk by her.

    CONCLUSION

16. These circumstances lead me to conclude that there was a change in circumstances and care at that time. I regard the reasons given by the Social Security & Child Support Division of this Tribunal (AAT1) for indicating this change in circumstances in September 2016 as sound.

17. In respect of the period from 10 July 2016 to 23 September 2016, I consider that Mr and Ms Krawczyk continued living as members of a couple, entitling Ms Krawczyk to 100% of the family tax benefit.

    DECISION

18. Accordingly, the decision made by the Social Security & Child Support Division of the Administrative Appeals Tribunal on 8 September 2017 is affirmed.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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

Associate

Dated: 13 July 2018

Date(s) of hearing:	22 February 2018
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services