Player and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor
[2007] AATA 1782
•20 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1782
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0283
GENERAL ADMINISTRATIVE DIVISION ) Re KIM PLAYER
ApplicantApplicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
First Respondent
IAN PLAYER AND SUSAN CASSIDY -PLAYER
Second Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date20 September 2007
PlaceNewcastle
Decision The Administrative Appeals Tribunal affirms the decision under review. .................sgd.............................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – Calculation of Shared Care Percentages –Apportionment of Family Tax Benefit Payments Between Carers – Common Sense Approach to Determining Pattern of Actual Care – Consideration of all Available Evidence – Hostile Relationships Between Parents – Decision Under Review is Affirmed.
LEGISLATION
A New Tax System (Family Assistance) Act 1999, sections 21, 22, 25 and 59.
A New Tax System (Family Assistance) (Administration) Act 1999, sections 71(2), 95(2), 97 and 101.
CASE LAW
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
REASONS FOR DECISION
20 September 2007
Ms N Isenberg, Senior Member
DECISION UNDER REVIEW
Ms Kim Player (“the applicant”) applied for a review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 9 January 2007 (T2), which set aside the decision of an authorised review officer (“ARO”), dated 8 June 2006 and sent the matter back to Centrelink for reconsideration in accordance with directions that the applicant is entitled to be paid 35% of the Family Tax Benefit (“FBT”) for her two sons, for the period 1 July 2003 to 12 January 2006.
BACKGROUND
1. Mr Ian Player (“Ian”) and Mrs Kim Player (“Kim”) are the parents of two sons, (“the boys”) ages 17 and 14. Ian and Kim separated in June 2001 and made informal arrangements about the care of the boys. This amounted to the boys living with their mother but staying with their father every second weekend (Friday – Sunday nights inclusive), and one mid-week night, every week (being alternate Tuesday and Thursday nights). Ian would also have them for some (unspecified) time during the school and Christmas holidays.
2. Since 1 July 2001 Kim has been receiving FTBs for the boys at the rate of 90%.
3. On 16 November 2005, Ian and his partner, Susan Cassidy-Player (“Ian and Susan”) lodged an FTB claim for the 2005/2006 financial year at the rate of 35%. A further claim followed for the financial years 2003/2004.
4. Kim informed Centrelink that her estimate of care for the boys was 80% in her care and 20% with Ian, later amending her care of the boys to 75% for the period 1 July 2004 to 13 January 2006.
ISSUES BEFORE THE TRIBUNAL
5. There is no dispute that the boys are FTB children as defined in sections 21, 22 and 25 of the A New Tax System (Family Assistance) Act 1999.
6. Therefore, the issue for the Administrative Appeals Tribunal (“the Tribunal”) to determine is what proportion of the FTB Kim and Ian are each entitled to from the period of 1 July 2003 – 12 January 2006?
LEGISLATIVE FRAMEWORK
7. A copy of sections 21, 22, 25 and 59 of the A New Tax System (Family Assistance) Act 1999 and sections 71(2), 95(2), 97 and 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 are attached to these reasons. (Attachment A)
8. Section 59 of the A New Tax System (Family Assistance) Act 1999, allows the decision-maker to determine the percentage which is to be each carer’s percentage of the FTB for the child.
9. Section 59, however, does not explain precisely how this percentage is to be calculated. I referred to the Family Assistance Guide (“the Guide”) to assist me with my calculations. Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416 at 418; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
10. The Guide states that the rate payable depends on the pattern of care over a financial year or, if the care arrangements change during the financial year, for the period that the particular arrangement exists. If the pattern of care changes, the level of care is re-assessed from the date it changes. The percentage of care may be assessed in one of the following two ways; the carers may agree to a percentage that they believe reflects the pattern of care or, if the carers cannot agree, the percentage of care is calculated by Centrelink, based on available evidence (including written and oral). An assessment period follows the financial year, unless there are changes in the pattern of care.
11. The Guide at paragraph 2.1.1.20 gives the following interpretation of the A New Tax System (Family Assistance) Act 1999:
“If the parents do not agree on what the care arrangements are, [the Secretary] must decide the percentage which reflects the actual care arrangements based on the available evidence.” [Emphasis added]
12. In this case it is necessary for me to calculate the pattern of actual care as Kim and Ian cannot agree in relation to the relevant period.
THE EVIDENCE
13.Kim and Ian gave oral evidence and each provided written submissions. Both agreed that throughout the period under review Ian had the boys every second weekend, in accordance with the informal arrangement. For the most part this arrangement entailed Ian collecting the boys from school on Friday afternoon and dropping them at school on Monday morning.
14. Ian’s position was that he (and later Susan) had the boys consistently throughout the period under review (1 July 2003 to 12 January 2006) for five nights per fortnight, that is, every second weekend and one mid-week night, every week.
15. Kim said the informal arrangement worked satisfactorily for about 12-18 months, but once Ian met Susan he missed some opportunities to see his sons, spending more time with Susan.
16. As to the period under review, Kim said that in 2003 there was “no set pattern of care”, and Ian was “sporadic” in having the boy’s mid-week. By “sporadic”, she said, she meant about once per month. She thought he may have had the boys for a few days during the school holidays, a few days at Christmas and for the last two weeks in January. Ian said that he took the boys to Fiji during school term during 2003.
17. In 2004 Kim said Ian again only had the boys about one weeknight per month. He possibly had them some weeknights during the school holidays. She did not think he had them during the school holidays during the day because he was working. He had them a few odd days at Christmas, but she could not recall if he had them for a block of time. During the year Ian and Susan had two fortnight overseas trips without the boys.
18. In 2005 Kim thought that while Ian had the boys every second weekend, in the middle of the year he started bringing the boys home on Sunday evenings instead of dropping them at school on Monday mornings as before. Ian said he distinctly remembered how hectic Mondays were because of the need to get his (and Susan’s) children to their schools, some distance apart – on time.
19. Kim said that for the first half of the year Ian would have the boys mid-week only about once a month. In her letter of 21 June 2007, however, she said that he “had the boys every second weekend and one night mid-week, until June 2005.” She said in her evidence that he had not had the boys at all from about mid-year onwards. She could not recall him having them over the school holidays other than possibly a few days over the Christmas period (2005-2006) and for a day or two at the end of the holidays. She said the boys were left with her mother or friends during the school holidays, after she had to return to work, at the end of her annual leave. She said she threatened to restrict Ian’s access and he then sought Family Court Orders to formalise an arrangement.
Evidence before the SsaT
20. Kim had told the SSAT that Ian only “had the boys mid-week for one night per fortnight instead of one night per week.” As to school holiday arrangements she had said that “the usual pattern at Christmas time was for Ian to have the boys for three days at a time, over two separate weeks.” She said that Ian “had the boys for one night mid-week per fortnight instead of one night per week and did not have the boys during school holidays except for a few days only at Christmas.” There was also evidence that Ian and Susan spent two fortnights overseas during 2004.
21. The SSAT reached its decision on the basis that it was satisfied that the pattern of care, generally speaking, was that Ian had the boys five nights per fortnight. On this basis his care would exceed the 35% he claims.
Other evidence
22. In support of her application to Centrelink Kim had provided statements made in February 2006 by her sister, Lyn Poole, and her friend, Christine Penfold. Each had written that the boys were with Ian every second weekend from Friday after school until Monday morning, and also one night each week. They each wrote that during school holidays the boys spent a few days “here and there” with their father. They also wrote that these had been the arrangements for “the last three years” (Penfold) and “approximately three to four-five years” (Poole).
23. Later, letters were provided by Ms Poole and Ms Penfold at Kim’s request to the effect that they were unaware that the “period in question” was from 2003 to January 2006. Ms Poole said that Ian had little or no mid-week contact from mid- way through 2005, and no care during the school holidays at all from mid-2005.
24. Ms Penfold thought that from January 2005 Tuesday and Thursday were usually the mid-week nights but that from June 2005 the arrangement was less frequent, ceasing altogether around the end of June 2005. She also thought no care was provided at all during the holidays.
25. The combined effect of these witnesses evidence differs from the account Kim gave at the hearing. Ms Poole and Ms Penfold did not retract their observations that Ian consistently had the children every second weekend from Friday to Monday, as Ian contended. This differed to Kim’s contention.
26. Ms Poole and Ms Penfold, in their amended statements, confirm that Ian had the boys one night per week until at least June 2005. This had also been Kim’s contention until her evidence at the hearing.
27. Curiously, Ms Poole and Ms Penfold differ from both Kim and Ian in relation to holiday care, each specifying in their amended statement that Ian provided no holiday care from mid-2005. Kim had said Ian had the boys for the last two weeks of the 2003/04 summer holidays, and for a few days for each of 2004/05 and 2005/06. Ian’s evidence was that he had them for at least 10 days.
28. I had before me other witnesses statements which confirmed Ian’s account. Kim was critical of these witnesses’ as being unknown to the boys and that they are Susan’s family and friends. Ian responded that they were neighbours, and provided details as to how each was in a position to observe the boys.
CONSIDERATION OF THE EVIDENCE
29. I have attempted to reconcile the evidence. Overall, I prefer the account given by Ian, primarily because of its consistency. Ian had referred me to his affidavit in support of his application to formalise the childcare arrangements in January 2006. There, in respect of the various premises he had occupied, he wrote, consistently, that the boys had been in his care for five days every fortnight from October 2002 until November 2005. He invited my attention to the fact that Kim had not demurred from his assertion at that time.
30. His evidence was that this arrangement was only varied during their vacation time. He said Kim would have the children for about two weeks at Christmas. During that time he and Susan would take their own holidays. After that he would have the children for a block of at least 10 days, although in his written submissions his estimate was 14 days. Although he was working, the children would be at home with Susan. As she is a theatre nurse, no surgery was scheduled during January and she would be off work then.
31. Kim’s account has varied over time. Her evidence before me was in very general terms and she appeared to have difficulty making the estimations of time the boys spent with their father. The evidence of her sister and friend, too, were ultimately, unhelpful to her case. I accept that during the January holidays the boys spent some time with their maternal grandmother and with friends, but this is not inconsistent with the evidence that they spend 10 days or more with their father and Susan. (In making my calculations I have adopted the more conservative 10 days, rather than 14 days which Ian had previously claimed).
32. This produces the following:
1 July 2003 - 31 December 2003
·188 days
·5 days per fortnight
·12 fortnights (deducting the Fiji holiday)
·7 full days (Fiji)
(5x12) / 188 x 100 = 31.9
Fiji - 7/188 x 100 = 3.7
31.9 + 3.7 = 35.6%
1 January 2004 to 31 December 2004
·10 full days in January
·5 days per fortnight
·23 fortnights (deducting two fortnights with no contact care due to overseas trip and deducting one fortnight for January).
January Holiday – (10x1) / 365 x 100 = 2.7
(5x23) / 365 x 100 = 31.5
(I.e. less 2x1 fortnight overseas)
(1x January)
2.7 + 31.5 = 34.2%
1 January 2005 to 31 December 2005
·10 full days in January
·5 days per fortnight
·25 fortnights (deducting one fortnight for January)
January holiday - (10x1) /365 x 100 = 2.7
(5x25)/365 x 100 = 34.2
2.7 + 34.2 = 36.9%
1 January 2006 to 12 January 2006
·5 nights per fortnight
·one fortnight
5/14 x 100 = 35.7%
33. In reaching the correct and preferable decision I note that these amounts approximate the 35% claimed by Ian and for that reason I find that 35% is a reasonable estimate of Ian’s care of the boys for the whole of the period under review.
DECISION
34. The Tribunal affirms the decision of the SSAT.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER
Signed: …….[ Felicia Daniele ]……….
AssociateDates of Hearing: 20 August 2007
Date of Decision: 19 SeptemberThe Applicant: Kim Player
The First Respondent: Susan Mantaring, Centrelink.
The Second Respondent: Ian Player
attachment a
A New Tax System (Family Assistance) Act 1999
21 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.
When individual satisfies this subsection
(1A)An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991, and either of the following applies:
(a) the individual is in Australia; or
(b) the individual:
(i)is temporarily absent from Australia for a period not exceeding 13 weeks; and
(ii)the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
(2)However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.
…
22 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.
25 Effect of FTB child being in individual’s care for less then 30% of a period
(1) 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 in accordance with subsection 22(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)the Secretary is satisfied that the child was, or will be, in the care of that last‑mentioned individual for less than 10% of that period;
the child is to be taken, despite that subsection, not to be an FTB child of that last‑mentioned individual for any part of that period.
(1A) If:
(a)the Secretary is satisfied that 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 in accordance with subsection 22(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)the Secretary is satisfied that the child was, or will be, in the care of that last‑mentioned individual for not less than 10%, but less than 30%, of that period; and
(d)that last‑mentioned individual, by written declaration given to the Secretary, waives the individual’s eligibility for family tax benefit in respect of the child for some or all of the days in that period;
the child is to be taken, despite that subsection, not to be an FTB child of the last‑mentioned individual on any day covered by the declaration.
(1B) If:
(a)the Secretary is satisfied that 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 in accordance with subsection 22(2), (3), (4), (5) or (6); and
(b)the Secretary is satisfied that, if one of those other individuals was to make 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, the Secretary would be satisfied that the child would have been, or would be, in the care of that individual for not less than 10%, but less than 30%, of that period; and
(c)that last‑mentioned individual, by written declaration given to the Secretary, waives the individual’s eligibility for family tax benefit in respect of the child for some or all of the days in that period;
the child is to be taken, despite that subsection, not to be an FTB child of the last‑mentioned individual on any day covered by the declaration.
(1C)If an individual has given the Secretary a written declaration under subsection (1A) or (1B), the individual may, by further notice in writing given to the Secretary, revoke the declaration with effect from a specified day, not being a day earlier than the date of the revocation.
(1D)A written declaration referred to in subsection (1A) or (1B), or a revocation of such a declaration, must be made in a form and manner required by the Secretary.
(2)For the purposes of this section, a child cannot be in the care of more than one of the other individuals referred to in subsection (1), (1A) or (1B) on any particular day.
(3)For the purposes of this section, the Secretary must determine which of the other individuals referred to in subsection (1), (1A) or (1B) has the care of the child on any given day having regard to the living arrangements of the child.
…
59Secretary may make determination where individual is FTB child of 2 people who are not members of the same couple
(1) If the Secretary is satisfied that:
(a) an individual is an FTB child of an individual (person A); and
(b) the FTB child is also an FTB child of another individual who is not person A’s partner;
the Secretary may determine the percentage that is to be person A’s percentage of family tax benefit for the child.
(2)If the FTB child is one of 3 or more FTB children who were born during the same multiple birth, the Secretary may specify in the determination under subsection (1) the manner in which multiple birth allowance under Division 2 of Part 5 of Schedule 1 is to be dealt with.
(3)Without limiting subsection (2), the Secretary may specify that the whole of the multiple birth allowance is to be paid to one of the 2 individuals involved.
A New Tax System (Family Assistance) (Administration) Act 1999
71 Debts arising in respect of family assistance other than child care benefit and family tax benefit advance
No entitlement to amount
(1) If:
(a) an amount has been paid to a person by way of family tax benefit, baby bonus or maternity immunisation allowance (the assistance) in respect of a period or event; and
(b) the person was not entitled to the assistance in respect of that period or event;
the amount so paid is a debt due to the Commonwealth by the person.
Overpayment
(2) If:
(a) an amount (the received amount) has been paid to a person by way of assistance; and
(b) the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.
95 Secretary may write off debt
(1) The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.
Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.
(2) The Secretary may decide to write off a debt under subsection (1) if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
97 Waiver of debt arising from error
(1) The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2) The Secretary must waive the administrative error proportion of a debt if:
(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b) the person would suffer severe financial hardship if it were not waived.
(3) The Secretary must waive the administrative error proportion of a debt if:
(a) the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and
(b) the debt is raised after the end of:
(i) the debtor’s next income year after the one in which the eligibility period or event occurs; or
(ii) the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last; and
(c) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
(4) For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.
101 Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of the family assistance law; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
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