Liang and Secretary, Department of Family and Community Services and Anor
[2004] AATA 530
•25 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 530
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/65
GENERAL ADMINISTRATIVE DIVISION ) Re YAN HUA LIANG Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
First Respondent
XIAO FENG YANG
Second Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Date25 May 2004
PlaceSydney
Decision The decision under review is affirmed. ..............................................
Ms S M Bullock
Senior Member
SOCIAL SECURITY - Family Tax Benefit – FTB Child
A New Tax System (Family Assistance) Act 1999 ss 21, 22, 25 and 59
REASONS FOR DECISION
25 May 2004 Ms S M Bullock, Senior Member 1. Ms Yan Hua Liang, the Applicant, has made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of a decision made on 3 December 2002, by the Social Security Appeals Tribunal (“the SSAT”) that Ms Liang’s former husband, Xiao Feng Yang, had care of their daughter Deanna, now 5 years of age, one hundred per cent of the time during the period 1 July 2001 to 15 April 2002. That decision set aside a decision of an Authorised Review Officer of the Respondent, Secretary, Department of Family and Community Services, that Mr Yang owed a debt of Family Tax Benefit totalling $1,367.58 for the given period.
2. A Hearing was held in Sydney on 9 January 2004. Ms Liang provided oral evidence, with the assistance of an interpreter, in the Cantonese language. Ms Liang was represented by her friend, Mr P Cunningham. The First Respondent was represented by Ms S Mantaring, Departmental Advocate. The Second Respondent, Mr Yang, was self-represented and provided oral evidence to the Tribunal, also with the assistance of an interpreter, in the Cantonese language. Documents were lodged and taken into evidence (“T Documents”, T1-T11) and a number of exhibits which are listed in Schedule 1 to this decision.
issue
3. The issue in this matter is whether or not Mr Yang had care of Deanna for one hundred per cent of the time during the period 1 July 2001 to 15 April 2002.
legislation
4. The legislation applicable to a determination in this matter is the A New Tax System (Family Assistance) Act 1999 (“the Act”).
5. Eligibility for Family Tax Benefit (FTB) is the subject of section 21 of the Act and provides as relevant at subsection 21(1) that:
“
When an individual is eligible for family tax benefit in normal
circumstances
(1) An individual is eligible for family tax benefit if:
(a) the individual has at least 1 FTB child (see section 22 and later provisions); and
(b) the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); and
(c) the individual's rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.”
6. Of relevance also is section 22 of the Act, which details the circumstances in which a person is an FTB child of an adult. In so far as is relevant to this matter section 22 provides that:
“
When an individual is an FTB child of another individual
(1) An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 18
(2) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and
(c) the individual is in the adult's care; and
(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
(3) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) a family law order or registered parenting plan is in force in relation to the individual; and
(c) under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the individual is supposed to have contact; and
(d) the individual is in the adult's care; and
(e) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
(4) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) the individual is in the adult's care; and
(c) the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual; and
(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
Individual aged 18-20
(5) The individual is an FTB child of the adult if:
(a) the individual has turned 18 but is aged under 21; and
(b) the individual is in the adult's care; and
(c) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
Individual aged 21-24 undertaking full-time study
(6) The individual is an FTB child of the adult if:
(a) the individual has turned 21 but is aged under 25; and
(b) the individual is in the adult's care; and
(c) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d) the individual is undertaking full-time study.
(7) If:
(a) the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual under subsection (2), (3), (4), (5) or (6); and
(b) one of those other individuals makes, or has made, a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in that period; and
(c) subsection 25(1), (1A) or (1B) does not require that the child be taken not to be an FTB child of that individual for any part of that period;
the child is to be taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual's care on that day.”
7. Section 25 of the Act deals with the circumstances in which an individual is in a person’s care for less than ten per cent of a period. Section 25 also describes the concept of “pattern of care”.
8. In circumstances where an individual has been found to be an FTB child of two people, but those two people are not a couple, section 59 of the Act provides that the Secretary may determine by way of percentage, the level of care being provided by each caregiver for FTB purposes.
background
9. The following information is provided by way of background to this matter:
(i) On 22 December 2000, Ms Liang wrote to the Registrar of the Family Court of Australia giving Mr Yang guardianship of their daughter Deanna (T9).
(ii) On 11 September 2000, Mrs Yang signed a Parenting Plan where it was agreed that Ms Liang would have contact with Deanna two days and two nights every weekend. Mr Yang signed the same Parenting Plan on 12 September 2000 (T4).
(iii) On 11 March 2001 to 5 April 2001 and from 21 December 2001 to 31 December 2002, Ms Liang was absent from Australia (T11).
(iv) On 30 June 2001 to 13 July 2001, Mr Yang was absent from Australia with Deanna (Exhibit R2 (a)).
(v) From 18 July to 23 July 2001, Ms Liang was a patient of Bankstown-Lidcombe Hospital (Exhibit A5).
(vi) On 18 July 2001, Ms Liang was provided with a lung scan report which showed a high probability of pulmonary embolism (Exhibit A5).
(vii) On 16 December 2001 to 19 January 2002, Mr Yang was absent from Australia with Deanna (Exhibit R2 (a)).
(viii) On 15 April 2002, the Family Court ordered that Deanna have contact with her mother each weekend from 8.30am until 4.30pm on Saturday and Sunday, and that pending a further Family Court Order, Deanna was to live with her father (T5). This arrangement was changed on 16 May 2002, and a new Family Court Order made, stating that Deanna have contact with her mother each weekend from 8.30am Saturday until 4.30pm Sunday (T6).
(ix) On 20 February 2002, Mr H Xu wrote claiming that Mr Yang had Deanna with him on the Saturday night of 11 August 2001, 18 August 2001 and 25 July 2001 (Exhibit R2 (a)).
(x) On 23 February 2003, Mr J Huo provided a letter claiming that Mr Yang looked after Deanna on the night of 22 July 2001 and that approximately at 4.30pm one Saturday in September 2001, Deanna was at Mr Yang’s home (Exhibit R2 (a)).
(xi) On 2 April 2003, Mr Cunningham detailed dates he claimed Ms Liang had Deanna in her care (Exhibit A2).
(xii) An undated statement from Ms S Singh, detailed evenings she claimed Ms Liang had Deanna in her care (Exhibit A3).
evidence of ms liang
Ms Liang told the Tribunal that she has a tendency to become tense and nervous, as she wants everything to be perfect. Ms Liang stated that when she is nervous she tends to forget things and that she was nervous.
10. Ms Liang stated that up until June 2001 she would collect Deanna at 8.30am on Saturday and Deanna would stay with her overnight. On Saturday morning, Ms Liang would go through a teaching program (Exhibit A6) with Deanna, usually on Saturday mornings, or sometimes visit a friend’s home. On occasions, Ms Liang and Deanna would stay overnight at a friend’s home or on other occasions friends would stay at Ms Liang’s home with their children.
11. Ms Liang stated that during June, and halfway through July 2001, Deanna was in China. On 16 or 18 July, Ms Liang told the Tribunal that she was hospitalised with pneumonia for approximately one week and was unable to care for Deanna during that hospitalisation and for a further two weeks because she had to recuperate. Ms Liang stated that she resumed overnight care of Deanna on the weekend commencing 10 August 2001. Deanna stayed with Ms Liang from 8.30am on Saturday through to 4.30pm on Sunday.
12. Ms Liang agreed that she had signed a Parenting Plan on 12 September and 15 September 2001 but stated that it was not her plan, but Mr Yang’s plan (Exhibit T4). Mr Yang had encouraged her to sign the Parenting Plan noting that if she did not sign it, then Centrelink would amend the Family Tax benefit. Ms Liang understood the Parenting Plan to mean that she could have Deanna every weekend, that is, one night and two days.
13. During the period 1 July 2001 to 15 April 2002, Ms Liang stated that Deanna stayed with her overnight on the weekends, apart from the period when Ms Liang was ill in hospital and recuperating, and when Deanna was in China. Thus, Ms Liang did not have Deanna stay with her from 18 to 23 July 2001 or for a further two weeks. Deanna was also not with Ms Liang from 11 March 2001 to 5 April 2001. Deanna was in China from 30 June 2001 and 13 July 2001 and therefore was not with Ms Liang nor was she with Ms Liang, she stated from 16 or 20 December 2001 until 19 January 2002. During the week, Ms Liang stated that Deanna did not stay with her because she had to attend School.
14. During the period 1 July 2001 until 15 April 2002, Ms Liang worked as a Child Care Worker at Elstead Nursery Kindergarten. Ms Liang worked full time during 2001 then, from February 2002, she worked three days per week. Ms Liang had become qualified through TAFE as a Child Care Worker and had obtained a Certificate of Childrens Services.
15. In relation to Ms Liang’s evidence to the SSAT that she had Deanna stay on Saturday and Sunday, each day from 8.30am until 4pm, she stated that she did not express herself clearly at the SSAT hearing as she did not quite understand what she was being asked because there was no interpreter present. Mr Cunningham was also not with her at the SSAT. Ms Liang could not recall exactly what she had said to the SSAT, apart from that she was trying to explain that only on some occasions, Deanna did not stay overnight with her on the weekend. Ms Liang then reiterated that apart from the periods when Deanna was overseas in China, or when Ms Liang had been hospitalised, Deanna stayed with her overnight on the weekends. This first occurred on the weekend of 11 August 2001 and this continued until November 2001 when Ms Liang was hospitalised, thus one weekend in November should be deducted. Deanna then stayed overnight on 8 or 9 December 2001, prior to Mr Yang and Deanna leaving for China on 16 December 2001. Ms Liang herself left for America on 21 December 2001. From 26 January 2002 until 15 April 2002, except for one weekend on 30 March 2002, Deanna stayed with Ms Liang.
16. Ms Mantaring put to Ms Liang that on her evidence, she would have had Deanna stay overnight with her on 28 weekends out of a total of 41 weekends during the period from 1 July 2001 to 15 April 2002. Ms Mantaring noted, however, that Mr Cunningham had only vouched for five weekends and Ms Sheena Singh had vouched for just three weekends. Ms Liang stated that her teaching plans verified that Deanna was with her to the extent that she claimed. She stated that she would take Deanna to friends’ houses for dinner on Saturday night but they were scared to confirm Ms Liang’s care of Deanna because Mr Yang had threatened them.
17. In relation to Mr Yang’s statement dated 27 February 2003, which at point three noted that a friend had invited Mr Yang and Deanna to supper for his son’s one-month birthday, Ms Liang stated she did not know this person but noted that she was in hospital on 22 July 2001 (Exhibit R2(a)). Further evidence from Mr Yang was that he and Deanna, on one Saturday night in August, attended the house of a friend of Mr Yang to have a supper. Ms Liang explained that apart from the first weekend in August when she was ill, Deanna was with her. In relation to a Saturday night in September when Mr Yang asserted that Deanna went to dinner with him to a friend’s home, Ms Liang noted that Mr Yang brought Deanna back to her home after that dinner.
18. Mr Yang had noted in his statement at point six that, on another Saturday night in September 2001, he took Deanna to a friend’s house for dinner. Ms Liang stated that she knew this person and that he is a taxi driver. Ms Liang considered it very unlikely that a taxi driver would have been at home on Saturday night; rather, she thought that he would be driving his cab. In relation to Mr Yang’s statement that on a Saturday night in November 2001, he took Deanna for supper to another friend’s home, Ms Liang stated that she knew that friend, but it was her opinion that Mr Yang and Deanna visited this friend on Friday nights not Saturday nights.
19. Ms Liang agreed that Deanna had an asthma attack on Saturday 11 December 2001. That day, Ms Liang stated that she was with Deanna, but when Deanna started to have an asthma attack she became scared. Mr Yang picked up Deanna and Ms Liang from Ms Liang’s home and they went to the doctor together. After the consultation with Deanna’s doctor, Ms Liang, Mr Yang and Deanna returned to Mr Yang’s home. The reason that Deanna stayed at Mr Yang’s home on that occasion was that Mr Yang had a nebuliser which assisted in the treatment of Deanna’s asthma. Ms Liang stated that she did not have a nebuliser herself for Deanna’s treatment during the period 1 July 2001 until 15 April 2002. Ms Liang told the Tribunal that she did have a “puffer”, as prescribed by Deanna’s doctor. It was Ms Liang’s evidence that as Mr Yang lived in the next street, it was not a serious matter that she did not have a nebuliser at her home. Ms Liang could recall Deanna going to her general practitioner on a number of occasions during September and December 2001, but not necessarily on a Saturday night.
20. Later in evidence to the Tribunal, Ms Liang’s stated that on a number of Saturday nights during the relevant period, she stayed at Mr Yang’s home because Deanna had asked her to stay and that this occurred between August and 16 December 2001. Ms Liang explained that from Monday to Friday she would, on occasions, go to Mr Yang’s home and cook for Mr Yang and her daughter. Ms Yang stated that she sometimes did this on a Saturday (Transcript, 9 January 2004, p80). After 19 January 2002, when Deanna and Mr Yang returned from China, Ms Liang stated that she would not go and stay with Deanna at Mr Yang’s house on Saturday nights. Prior to January 2002, Mr Yang was helping Ms Liang with repairing her car but in January 2002, they had an argument over money. Ms Liang confirmed that prior to January 2002, Mr Yang and Ms Liang had an amicable relationship despite being separated.
21. Ms Liang stated that she could not recall the event described at point 11 of Mr Yang’s statement, which reported that Deanna stayed with him on one Saturday night between February and March 2002, because he had to take Deanna to a medical centre in Bankstown.
22. Given that Ms Liang had provided evidence to the Tribunal that between August and December 2001, she would stay on Saturday night with Deanna at Mr Yang’s home, Ms Mantaring questioned Ms Liang as to whether or not she had attended a dinner with Mr Yang and Deanna with Mr Yang’s friend, Ms Himpson Xu, on 11, 18 and 25 August. Ms Liang stated that she did not know this person and then stated that when referring to the period when she stayed with Deanna and Mr Yang that this was from July to December 2001 (Transcript, p84). When questioned by the Tribunal, Ms Liang stated, “My evidence was for a period from one month to another month and I was not certain. I did not give definitive evidence about August” (Transcript p84).
evidence of mr paul cunningham
23. Mr Cunningham provided a statement dated 2 April 2003, in which he indicated that there were five specific weekends where he could confirm that Ms Liang had Deanna stay over night (Exhibit A2). At the time of his statement, Mr Cunningham had known Ms Liang for a period of three years and four months and noted that she is one of his closest friends. He noted that for the past two years, Ms Liang and himself had spent most weekends together, Deanna included. The five occasions during which Deanna was with Ms Liang overnight on Saturday, were instances where he personally witnessed Deanna in the sole care of Ms Liang. In Mr Cunningham’s statement, he noted that he had no doubt that Deanna spent other weekends with Ms Liang, but he had left Ms Liang’s home before Deanna went to bed. He noted in evidence to the Tribunal that on at least one dozen other weekends, when he had telephoned Ms Liang on a Saturday morning, she had not been able to go out with him because she was going to pick up Deanna and have her stay for the weekend.
24. In relation to Mr Yang’s statement that on one Saturday night in September 2001, he had taken Deanna to a friend’s Wiley Park home for supper, Mr Cunningham noted that he could not be 100 per cent certain, but was fairly confident that Deanna was not at the residence of the people mentioned by Mr Yang as living at Wiley Park. Mr Cunningham made this assertion because he resides across the road from the person mentioned by Mr Yang and knows who he is. On Saturday evening, Mr Cunningham told the Tribunal that, almost religiously, he sits on his balcony. He has seen Mr Yang’s vehicle in the street previously and thus knows the vehicle very well. Mr Cunningham could not recall seeing Mr Yang’s car parked outside the Denman Avenue house in Wiley Park on a Saturday evening.
evidence of mr xiao feng yang
25. Mr Yang stated that his date of birth is 28 September 1958 and he lives in an apartment in Eastwood. Prior to providing oral evidence to the Tribunal, Mr Yang had provided a statement dated 27 February 2003 (Exhibit R2(a)). Apart from the details contained within that statement, Mr Yang told the Tribunal that he does not have any other independent collaborative evidence to substantiate his claim that Deanna stayed with him on Saturday nights during the relevant period. In relation to his statement that on a Saturday evening of 11 December 2001, Deanna had stayed with him, Ms Mantaring noted that in fact 11 December 2001 was a Tuesday. Mr Yang stated that in that case, he meant the weekend which was 8 and 9 December 2001. Mr Yang told the Tribunal that Ms Liang’s evidence was incorrect and that Deanna did not stay overnight on Saturday’s. While Mr Yang noted the evidence from Ms Liang that Deanna stayed with her on 28 weekends during the relevant period, Mr Yang stated that this was incorrect and he had no more evidence than that which was in his statement and that provided to the SSAT. He also stated that Ms Liang’s evidence to the Tribunal that between August and December 2001, she stayed overnight with Deanna at Mr Yang’s house, was also incorrect. He stated that Ms Liang did not stay overnight at his home. Deanna had not expressed any wish for her mother to stay with her on those Saturday nights, Mr Yang stated. He further noted that Deanna learned to speak very late, thus even if she had thought about her mother staying on a Saturday night with her at Mr Yang, she would not have been able to express it. Mr Yang confirmed that between July or August 2001 up until December 2001, Ms Liang and himself had quite a good relationship. In those circumstances however, Mr Liang did not consider that he might have mistakenly overlooked the fact that Ms Liang was staying at his home overnight on those Saturday nights.
26. Considering Ms Liang’s evidence that Deanna would not have had dinner with Mr Yang and his taxi driver friend on a Saturday night because the taxi driver would have been driving a cab, Mr Yang refuted this stating that Saturday was a rest day for his friend and secondly, this friend has a large family and on Saturday nights, he would have his extended family over for dinner.
consideration and finding
27. I have come to a decision in this matter taking into account the oral and documentary evidence and legislation.
28. I am satisfied that pursuant to subsection 22(3) of the Act, Deanna is an FTB child of Ms Liang and Mr Yang.
29. Ms Liang contends that apart from periods when Deanna was in China with her father, or when Ms Liang was herself away or ill in hospital, she had care of Deanna on every Saturday night during the period 1 July 2001 to 15 April 2002. Mr Yang refuted this and told the Tribunal that Deanna would only stay with Ms Liang on Saturday from 8.30am until 4.30pm and again with Ms Liang on Sunday from 8.30am until 4.30pm.
30. In her evidence to the SSAT, Ms Liang stated that she did have Deanna in her care on each Saturday and Sunday until 4.30pm each day. At the Tribunal’s hearing, initially Ms Liang stated that apart from when Deanna was in China from 30 June 2001 to 13 July 2001; or from 16 December 2001 until 19 January 2002; or when Ms Liang was in hospital between 18 July 2001 and 23 July 2001 and recuperating at home for a period of two weeks; and when she was ill on 28 and 29 July 2001, and again on 4 and 5 August 2001, that Ms Liang had Deanna on every weekend overnight on Saturday night. The difficulty for the Tribunal is that later in evidence to the Tribunal, Ms Liang stated that either from July or August 2001 until 16 December 2001, she would stay at Mr Yang’s home on a weekend with Deanna. Again this evidence contradicts evidence provided to the SSAT as well as earlier evidence provided by Ms Liang to the Tribunal. Ms Liang stated that during the period either July or August 2001, up until January 2002, her relationship with Mr Yang was quite good. In January 2002, the relationship was no longer amicable as there was an argument over finances. Mr Cunningham submits that when considering the changing and inconsistent evidence provided by Ms Liang, that the Tribunal should take into account Ms Liang’s health and stress levels as mentioned by Ms Liang in her evidence.
31. There is written evidence, confirmed at Hearing, from Mr Cunningham that on five specific weekends, he personally witnessed Deanna in Ms Liang’s overnight care on a Saturday night. Ms Singh claims Deanna stayed overnight on the weekends on 11 and 12 August 2001, 2 and 3 February 2002 and 9 and 10 February 2002. Ms Liang’s evidence at the Tribunal, where an interpreter was provided, contradicts even this evidence.
32. Mr Yang provided statements from his friend Mr Xu, stating that Deanna stayed with Mr Yang on the evening of 11 August 2001, 18 August 2001 and 25 August 2001. In relation to the 11 August, there is conflicting evidence provided by Ms Singh and Mr Xu. A further statement was provided by Mr Huo that Deanna stayed with Mr Yang on 22 July 2001, which the Tribunal noticed, cover periods when Ms Liang was hospitalised. Other friends mentioned in Mr Yang’s letter of 27 February 2003, do not provide specific dates to back up their assertion that Mr Yang cared for Deanna on Saturday nights during the relevant period.
33. Ms Liang told the Tribunal that when, in her evidence to the SSAT, she had said that Deanna was in her care on Saturday and Sunday until 4.30pm, she was misunderstood. She noted in this regard that there was no interpreter present during the hearing. It was nevertheless the case that during the Tribunal‘s hearing, where a competent interpreter was present, that Ms Liang’s evidence shifted from stating that Deanna was with her every weekend and overnight on the Saturday night, to later evidence that up until December 2001 from either July or August 2001, Ms Liang was staying with Deanna at Mr Yang’s home because Deanna had requested this.
34. Neither the Applicant nor the Second Respondent has provided any truly independent collaborative evidence. It is extremely difficult in these circumstances, given the added inconsistency of Ms Liang’s evidence at the SSAT and again before this Tribunal, to come to a firm determination as to where the truth lies. There is contradictory evidence between the information provided by Ms Liang’s friends and the evidence provided by Mr Yang’s friends. There are 41 weekends during the relevant period and it is Ms Liang’s assertion that she had the care of Deanna for 28 of those weekends. There is an evidence from Ms Liang’s friends that, if accepted, Deanna stayed with Ms Liang overnight on a Saturday night during the relevant period on eight occasions. Even if that is true, I am unable to accept, giving the contradictory nature of Ms Liang’s evidence not just at the SSAT, but during the course of the Tribunal’s hearing, that there was any higher level of care provided by Ms Liang overnight during weekends in the relevant period. While Mr Cunningham asserts that he is sure that there were other occasions apart from the five he could specifically record, when Deanna stayed overnight with her mother, his statements about hearing Deanna on the telephone on Saturday mornings does not provide evidence that Deanna stayed overnight on Saturday.
35. On the balance of probabilities, accepting that Deanna stayed with Ms Liang on eight weekends overnight during the relevant period, I am not, on all of the evidence available to me at the Tribunal, able to determine other than that which was determined by the SSAT. In so finding, I note the First Respondent’s alternate submission that I make a week by week determination as to whose care Deanna was in over the weekends during the relevant period. Because of the unsatisfactory nature of Ms Liang’s evidence that repeatedly was contradictory, I am unable to do this.
36. In all of the circumstances and for the reasons expressed above, I find that Deanna has not been in the care of Ms Liang for two nights every weekend during the relevant period, and accordingly the pattern of care was less than ten per cent. In those circumstances, Deanna Yang is to be taken not to be an FTB child of Ms Liang for any part of the period for the purposes of subsection 25(1)(c) of the Act. Accordingly, section 59 of the Act which allowed FTB to be paid on a percentage rate, does not apply in this case. Mr Yang was entitled to 100 per cent rate of FTB for the relevant period from 1 July 2001 to 15 April 2002. There is, as the SSAT found, no debt of FTB payable by Mr Yang. Having so decided, pursuant to section 43 of the Administrative Appeals Act 1975, the decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member
Signed: .....................................................................................
AssociateDate of Hearing 9 January 2004
Date of Decision 25 May 2004
Representative for the Applicant Mr P CunninghamRepresentative for the 1st Respondent Ms S Mantaring, Departmental
Advocate
Representative for the 2nd Respondent Self-represented
SHEDULE 1
list of exhibits
NUMBER DESCRIPTION DATE A1 Statement of Ms Yan Hua Liang Undated A2 Statement of Mr Paul Daniel Cunningham 2 April 2003 A3 Statement of Ms Sheena Singh Undated A4 Residential Tenancy Agreement (4/14 Willeroo St. Lakemba) 16 June 2001 A5 Bundle of documents from “Bankstown Health Service, Clinical Information Service” regarding Ms Yan Hua Liang Various A6 Handwritten program for Deanna January 2001 – May 2002 R1(a) Statement of Facts and Contentions with attachments 16 June 2003 R1(b) Affidavit from Xiao Feng Yang 30 May 2002 R1(c) Letter of request from Ms Collis, Centrelink 17 June 2003 R2(a) Statement by Mr Yang 27 February 2003 R2(b) Photocopy of Aust.passport extracts fro Mr Yang & Deanna Yang under cover of letter 1 February 2003 R2(c) Handwritten letter from Ms Liang 22 December 2000 R2(d) Photocopy of Marriage Certificate 12 February 2001 R2(e) Letter from Ms Liang in Cantonese with translation from Leonie 5 December 2001 R2(f) Letter from Ms Liang in Cantonese with translation from Leonie 6 January R2(g) Prescription in relation to Deanna Yang 3 March 2002 R2(h) Family Court Order 30 September 2003
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice & Procedural Fairness
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