Newman and Anor and Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs - [2010] AATA 849

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 849
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0211; 2010/0514

GENERAL ADMINISTRATIVE DIVISION )

Re RODNEY NEWMAN

1^st Applicant

Re PAULA NEWMAN
2^nd Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr P Wulf, Member
Date1 November 2010
PlaceBrisbane

Decision
In accordance with section 43 of the Administrative Appeals Tribunal Act (Cth) the Tribunal:

1.    Sets aside the decision under review;

2.    Remits the matter to the Respondent with directions to adjust the FTB payments such that:

(a) for the period 1 July 2006 to 30 June 2007, FTB is calculated on the basis that the 2^nd applicant had primary care of the children, R, L and M;

(b) subject to paragraph (a), the FTB for the period from 1 July 2006 to 30 June 2007 be determined on the basis that 1^stapplicant had care of the three children during the 1^stperiod for 38 nights, this being 10.41% of the year, and the 2^nd applicant had the children for 327 nights (89.59%);

(c) for the period 1 July 2007 to 30 June 2008, FTB is calculated on the basis that the 2^nd applicant had primary care of the children, R, L and M; and,

(d) subject to paragraph (c) the FTB for the period from 1 July 2007 to 30 June 2008 be determined on the basis that:

  (i)    the 1^st applicant had care of L and M during the 2^ndperiod for 39 days (10.65% of the year) and the 2^nd applicant had care of the L and M for 325 nights (89.35%); and,

                   (ii)    the 1^st applicant had care of R during the 2^nd period for 34 days (9.29% of the year) and the 2^nd applicant had care of R for 332 nights (90.71%).

....................[Sgd]................
Member

CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Family tax benefit – Apportionment of shared care of children – Means by which the calculation of shared care made – Decision under review varied.
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 43
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 25 and 59
Family Assistance Guide
Wade v Secretary, Department of Family and Community Services (2004) 139 FCR 285
Re Nowicz and Secretary to the Department of Family and Community Services (2001) 33 AAR 337
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AATA 159
REASONS FOR DECISION

1 November 2010 Mr P Wulf, Member

1. Mr Rodney Newman (1^st applicant)[1] and Mrs Paula Newman (2^nd applicant)[2] have appealed against a decision of the Social Security Appeals Tribunal (“SSAT”) that the 1^st applicant was eligible to receive Family Tax Benefit (“FTB”) payments for the year 1 July 2006 to 30 June 2007 (“1^st period”) but was not eligible to receive FTB payments for the year…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Newman and Anor and Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 849
Case: [2010] AATA 849
Decision Date: 1 November 2010

CaseChat Overview and Summary

Newman and Anor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs involved a dispute concerning the apportionment of family tax benefit (FTB) payments between two parents, the applicants. The Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs was the respondent in the case. The applicants sought a review of the respondent's decision regarding the calculation of FTB payments for two financial years, 2006/07 and 2007/08, based on the shared care arrangements of their children.

The primary legal issue before the court was the interpretation and application of relevant sections of the A New Tax System (Family Assistance) Act 1999 (Cth) and the Family Assistance Guide, specifically in relation to the calculation of FTB for parents sharing care of their children. The court was required to determine the appropriate method for calculating FTB payments when parents share care of their children, considering the percentage of nights each parent has care of the children. This involved an examination of the relevant statutory provisions and guidelines, as well as the relevant case law.

The court found that the respondent's decision to calculate FTB payments based on the number of days rather than nights each parent had care of the children was incorrect. The court held that the Family Assistance Guide required the calculation to be based on the number of nights, not days, each parent had care of the children. The court noted that the Family Assistance Guide explicitly states that the number of nights each parent has care of the children should be counted, and not the number of days. The court also found that the respondent's decision was inconsistent with the relevant case law, which had established that the calculation should be based on the number of nights.

The court set aside the respondent's decision and remitted the matter back to the respondent with directions to adjust the FTB payments for the relevant periods based on the number of nights each parent had care of the children. The court ordered that the FTB payments be recalculated for the periods 1 July 2006 to 30 June 2007 and 1 July 2007 to 30 June 2008, taking into account the correct percentage of nights each parent had care of the children.

Orders

Orders of the court

In accordance with section 43 of the Administrative Appeals Tribunal Act (Cth) the Tribunal:

1. Sets aside the decision under review;

2. Remits the matter to the Respondent with directions to adjust the FTB payments such that:

(a) for the period 1 July 2006 to 30 June 2007, FTB is calculated on the basis that the 2nd applicant had primary care of the children, R, L and M;

(b) subject to paragraph (a), the FTB for the period from 1 July 2006 to 30 June 2007 be determined on the basis that 1st applicant had care of the three children during the 1st period for 38 nights, this being 10.41% of the year, and the 2nd applicant had the children for 327 nights (89.59%);

(c) for the period 1 July 2007 to 30 June 2008, FTB is calculated on the basis that the 2nd applicant had primary care of the children, R, L and M; and,

(d) subject to paragraph (c) the FTB for the period from 1 July 2007 to 30 June 2008 be determined on the basis that:

(i) the 1st applicant had care of L and M during the 2nd period for 39 days (10.65% of the year) and the 2nd applicant had care of the L and M for 325 nights (89.35%); and,

(ii) the 1st applicant had care of R during the 2nd period for 34 days (9.29% of the year) and the 2nd applicant had care of R for 332 nights (90.71%).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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