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

[2015] AATA 702

Robinson and Secretary, Department of Social Services (Social services second review) [2015] AATA 702 (11 September 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0638
Re	Paul ROBINSON
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Clare ROBINSON
OTHER PARTY

DECISION

The Tribunal sets aside the determination of the respondent that the applicant's level of care for his children between 1 July 2011 and 13 August 2013 was 14%, and determines that the level of care was 38%.

Tribunal  Dr Gordon Hughes  

Date  11 September 2015

Place  Melbourne

………………[sgd]………………………

Dr Gordon Hughes
Member

Catchwords

Family Tax Benefit – applicant deliberately understated level of care in order to enable wife to receive an increased percentage of benefit – applicant seeks to rectify the record – no evidence to contradict applicant's assertions

Legislation

A New Tax System (Family Assistance) Act 1999 section 35B

REASONS FOR DECISION

Dr Gordon Hughes, Member

3 September 2015

Background

1. This claim related to the determination of care percentages for the applicant and the other party (the applicant's estranged wife, Mrs Clare Robinson) between 1 July 2011 and       13 August 2013 in respect of their two children born in 2002 and 2005 respectively. The applicant sought an amendment to his recorded percentage contribution for the period between 1 July 2011 and 13 August 2013. 

2. Initially Mrs Robinson received Family Tax Benefit (FTB) for the children based on a care percentage rate of 57%, with Mr Robinson's rate being 43%.  On 12 July 2011                Mr Robinson contacted Centrelink and advised that his percentage should be reduced to 14%.  On 24 September 2011 a Family Assistance Officer agreed that Mr Robinson's care percentage was 14% and Mrs Robinson's 86%, with effect from 1 July 2011, and varied the rates accordingly on the record.

3. On 10 December 2013 Mr Robinson advised Centrelink that since November 2010 he had in fact had care of the children for 40% of the time, not 14% of the time as previously stated.  On 24 March 2014, a Centrelink officer determined that the children’s care arrangements were 38% with Mr Robinson and 62% with Mrs Robinson, effective from   14 August 2013.

4. The applicant asserted that, although there would be  no tangible benefit to him were this alteration to be made, the record  ought to be an accurate reflection of his contribution during the period, namely 38%.

5. Mrs Robinson, the other party, chose not to appear at the hearing.

   Legislation

6. Section 35B(1) of the A New Tax System (Family Assistance) Act 1999 provides:

   (1) If:

   (a) the Secretary is satisfied that there has been, or will be, a pattern of care for a child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of more than one individual; and

   (b) one of those individuals (the adult), or the partner of the adult, 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 the care period; and

   (c) the adult is not a partner of at least one of the other individuals referred to in paragraph (a);

   the Secretary must determine the adult's percentage of care for the child during the care period.

   Consideration

7. The applicant told the Tribunal that after separating in 2010, he and his wife attended mediation. As care arrangements had been agreed, the Robinsons did not finalise or sign a formal parenting agreement.  The applicant said that no such agreement had been signed because he and Mrs Robinson were on good terms and did not perceive any need to formalise their arrangement.

8. The applicant stated that since 2010, the care arrangements had not varied in any material respect.  He picked the children up from school every Wednesday and dropped them off on Thursday morning, and also had care of them every second weekend.  This arrangement reflected the unsigned parenting agreement.

9. The applicant’s notification to the Family Assistance Office in July 2011 that he had only 14% care of the children  was, according to his own evidence, a deliberate understatement of the extent of his care of them  

10. The applicant told the Tribunal that he agreed to state that he only had 14% care of the children because, at the time, Mrs Robinson was struggling financially and it was thought appropriate that she should claim all of the FTB even though this allocation did not reflect the true care arrangements.

11. The applicant told the Tribunal that at no time did 14% reflect the actual share of time he spent with the children, which was always closer to 38-40%.  His assumption, in agreeing to the figure of 14%, was that this was a temporary arrangement which would last only until Mrs Robinson's financial position improved.

12. The applicant stated that he reviewed the arrangement on numerous occasions with Mrs Robinson.  He urged her to contact the Child Support Agency (CSA) regarding his level of care in order to rectify the record, and she consistently reassured him that she was attending to the matter.  The applicant estimated that he raised the issue with        Mrs Robinson every few months. 

13. The applicant told the Tribunal that finally, in October 2013, he took the initiative himself to contact the CSA in order to rectify the record.

14. The applicant told the Tribunal that he paid child support throughout the period in question.  He paid $420 every month and would make extra payments if Mrs Robinson required assistance with schooling costs.  These arrangements were conducted independently of the CSA. One of the reasons he did not feel a sense of urgency about rectifying the incorrect child care percentage on the record during that period was that it did not affect the amount he was paying Mrs Robinson.

15. Mr Robinson contended that the reason for his agreeing in 2011 to submit inaccurate information about his care percentage was purely altruistic. He said he now simply wanted the record to reflect the actual care arrangements and that this was important to him as he felt that the 14% figure incorrectly and unfairly reflected poorly upon him as a father.

16. The applicant called George Edward Bell as a witness.  Mr Bell lived with the applicant between May 2012 and August 2013.  Mr Bell affirmed the contents of a statutory declaration dated 14 February 2014 which corroborated the applicant's evidence as to the time he spent with his children.

17. The effect of a decision in favour of Mr Robinson would be that Mrs Robinson would be left with a significant FTB debt, whilst Mr Robinson would receive no financial advantage because he had not himself claimed child support.

18. Taking into account the applicant's evidence to the Tribunal, the corroborating evidence from Mr Bell and Mrs Robinson's failure to appear or to submit any contradictory evidence, the Tribunal accepts that the original allocation of a 14% care percentage to the applicant for the period 1 July 2011 to 13 August 2013 was inaccurate.  The Tribunal considers that, based on the evidence before it, the applicant's level of care provided to his children has remained constant since 2011 and that an appropriate allocation of time would be 38%.

19. The Tribunal considers the applicant's explanation for providing incorrect information in 2011 is plausible.

20. In reaching this decision, the Tribunal is mindful of a number of unanswered questions.  It is unclear whether the applicant's motives for bringing this claim are in fact purely altruistic, or whether there is some other motivation. Moreover, it is debateable whether the interests of the children are best served by an outcome which will encumber their mother with a significant FTB debt. Finally, the implications to the applicant of having misled the Commonwealth by acquiescing in the overstatement by Mrs Robinson of her level of care are yet to be considered.  None of these issues, however, is relevant to the Tribunal's determination of fact in this instance.

    Decision

21. For the above reasons, the Tribunal sets aside the determination of the respondent that the applicant's level of care for his children between 1 July 2011 to 13 August 2013 was 14%, and determines that the level of care was 38%.

22.     I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision of Dr Gordon Hughes.

.........................................

Associate

Dated 11 September 2015

Date of hearing	20 July 2015
Applicant	In person
Advocate for the Respondent	Mr T Noonan
Solicitors for the Respondent	Department of Social Services