Liane Steele and Secretary, Department of Social Services Edward Steele OTHER PARTY
[2014] AATA 123
[2014] AATA 123
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3092
Re
Liane Steele
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Edward Steele
OTHER PARTY
DECISION
Tribunal Ms N Bell, Senior Member
Date 7 March 2014 Place Sydney The Tribunal sets aside the decision under review and instead decides that Ms Steele’s percentage of care of the two children is 87 per cent in the period 1 July 2010 to 31 December 2011.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – shared care – percentage of care – decision under review set aside
LEGISLATION
A New Tax System (Family Assistance) Act 1999
REASONS FOR DECISION
Ms N Bell, Senior Member
7 March 2014
Ms Liane Steele and Mr Edward Steele are parents to two children.
Ms Steele claims Family Tax Benefit in respect of their children. Ms Steele, the Applicant in these proceedings, seeks a review of the decision relevant to the percentage of care that each parent has of their children.
In September 2010, the Child Support Agency assessed the care arrangements of Ms Steele and Mr Steele prompting Centrelink to update its records to reflect the assessment. The assessment provided that Ms Steele had an 80 per cent care of the children and Mr Steele had 20 per cent care.
Ms Steele sought internal review of that decision and in December 2011, an authorised review officer of Centrelink decided that Ms Steele had a care percentage of 88 per cent, and Mr Steele had a care percentage of 12 per cent from 1 July 2010. This decision was set aside by the Social Security Appeals Tribunal which attributed a percentage of care of 84 per cent to Ms Steele from 1 July 2010.
Ms Steele, in her application to this Tribunal, contends that the Social Security Appeals Tribunal made either a typographical or calculation error in arriving at a care percentage of 84 per cent. No other issues have been raised by Ms Steele, Mr Steele or the Secretary.
With the consent of all parties, the decision under review has been reviewed by considering the documents and other material lodged with the Tribunal and without holding a hearing. I note that this review follows the making of directions to the parties for the filing of further evidence and submissions and that the time for filing set out in those directions is lapsed. The Secretary filed a Statement of Facts and Contentions, Ms Steele filed further documents in support of her contention that she has a properly calculated care percentage of 87 per cent and Mr Steele filed no documents.
ISSUES
The sole question before the Tribunal is: what is the percentage of care attributable to Ms Steele and Mr Steele in respect of their children from 1 July 2010 to 31 December 2011?
WHAT IS THE PERCENTAGE OF CARE FOR MS STEELE AND MR STEELE IN THE RELEVANT PERIOD?
The relevant legislative provisions are contained the A New Tax System (Family Assistance) Act1999.
Section 35J of the Act provides that the actual care of a child is determined by calculating the number of nights the child was or will be in the care of a person during the care period. The care period is defined as the period where there has been, or will be, a ‘pattern of care’ for the child (see ss 3 and 35B(1)(a) or (2(b)).
The ‘pattern of care’ is not in dispute in this application. It is not in dispute that the care period of 1 July 2010 to 31 December 2011, comprises 547 days. On the basis of oral evidence from Ms Steele and Mr Steele to the Social Security Appeals Tribunal and the documentary records provided by Ms Steele, the Social Security Appeals Tribunal found that of those 547 days, Mr Steele had care of the children for 74 days. On the basis of the evidence before me, I have no reason to disturb that finding.
As a percentage of 547 days, 74 days equates to 13.53 per cent.
Section 35M of the Act provides:
Rounding of a percentage of care
If an individual's percentage of care determined under this Subdivision is not a whole percentage:
(a) if the percentage is greater than 50%--the percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than 50%--the percentage is rounded down to the nearest whole percentage.
Accordingly Mr Steele’s percentage of care is rounded down to 13 per cent. It follows that Ms Steele’s care percentage is 87 per cent.
DECISION
The Tribunal sets aside the decision under review and instead decides that Ms Steele’s percentage of care of the two children is 87 per cent in the period 1 July 2010 to 31 December 2011.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. ......[Sgd]..................................................................
Associate
Dated 7 March 2014
Date of hearing 6 March 2014 Applicant Self-represented Solicitors for the Respondent A Garcia, DHS Program Review Litigation Branch
Other Party Self-represented
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