ROBINSON Applicant And And And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 313
•30 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 313
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5424
GENERAL ADMINISTRATIVE DIVISION ) Re SHELBY ROBINSON Applicant
And
And
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
MICHAEL KERR
First Other Party
SANDRA MOSCARDA
Second Other Party
DECISION
Tribunal Professor RM Creyke, Senior Member Date30 April 2010
PlaceEden, NSW
Decision
The decision under review is affirmed. The family tax benefit debt raised against Mr Kerr under section 71 of the Family Assistance (Administration) Act 1999 for the period 14 February to 24 June 2008 should not have been imposed.
..............................................
Professor RM Creyke, Senior Member
CATCHWORDS
SOCIAL SECURITY – Family tax benefit recipients – mother and father separated with shared care parenting orders – actual care arrangements not closely followed – whether father had 100 percent care of child for a period and if so, for how long – Applicant unable to provide evidence to satisfy the Tribunal that child was not in father’s full time care for relevant period – decision under review affirmed
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22(6A), 59
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 16, 31, 71
REASONS FOR DECISION
30 April 2010 Professor RM Creyke, Senior Member 1. Ms Shelby Robinson and Mr Michael Kerr are the parents of Aysha Kerr, born 29 April 1994 and Matthew Kerr, born 11 June 1997. Ms Robinson and Mr Kerr separated on 6 March 1999. Under revised orders made by the Family Court dated 29 June 2000, care arrangements for the two children gave Mr Kerr 52 per cent care and Ms Robinson 48 per cent care for the purpose of receipt of family tax benefit.
2. Following an incident in January 2008 while the children were camping at Fisheries Beach, NSW with Ms Robinson and Mr Peter Gould, with whom Ms Robinson then had a relationship, Mr Kerr took Aysha and Matthew away to stay with him because they were afraid for their safety.
3. Although Matthew resumed the shared care arrangement, Mr Kerr claims Aysha remained with her father for a longer period. However, from November 2008 following a NSW Children’s Court order, Matthew has been cared for by Mr Kerr 100 per cent of the time.
4. On 2 April 2008, Mr Kerr contacted Centrelink about the revised care arrangements. On 23 April 2008, Mr Kerr applied to Centrelink for recognition that he was caring for Aysha 100 per cent care of the time. The application stated that the arrangement commenced on 14 February 2008.
5. On 21 May 2008, Mr Kerr was granted family assistance for Aysha on the basis that she was in his care full-time for the period 14 February 2008 to 24 June 2008. He received payments for caring for Aysha 100 per cent of the time for that period.
6. In 22 May 2008, Centrelink raised a debt of $640.80 against Ms Robinson as she had received more family tax benefit than the sum to which she was entitled for the period 14 February 2008 to 12 May 2008, while Aysha was in her father’s care 100 per cent of the time.
7. On 22 May 2008 Ms Robinson lodged a claim on the basis that the shared care arrangement for Aysha was only in the ‘last 4 weeks (app.). Settling in to new part-time job but will be back next week’.
8. On 30 May 2008, Ms Robinson requested a review of the decision to raise a family tax benefit debt. She maintained that Aysha was supposed to stay with her father for 4 weeks but ‘Aysha did not end up working so returned … home’. That decision was affirmed by Centrelink on 4 June 2008. The period of the overpayment was listed as 5 February 2008 to 12 May 2008.
9. On 28 July 2008, Mr Kerr was informed that, following receipt of the court order and evidence from a third party in support of Ms Robinson’s claim, it had been decided that Mr Kerr was only entitled to 52 per cent family assistance from 14 February 2008 to 24 June 2008. An overpayment of $426.16 was raised accordingly. That decision was affirmed by an authorised review officer on 8 September 2008.
10. On 28 August 2008, Mr Kerr appealed to the Social Security Appeals Tribunal against the decision to raise the debt against him. He claimed that Aysha was in shared care until the end of January 2008 and then spent a fortnight with her mother under the terms of the court order. Thereafter for the next few months from 14 February 2008 he had 100 per cent care of Aysha.
11. On 30 October 2009, the Social Security Appeals Tribunal set aside the Centrelink decision and substituted a decision that Mr Kerr had 100 per cent of care of Aysha between 14 February 2008 and 24 June 2008. Ms Robinson did not attend the hearing. On 10 November 2009 Ms Robinson appealed to the Administrative Appeals Tribunal (Tribunal). At the hearing in Eden on 21 April 2010, Mr Kerr did not attend.
Legislation
12. The relevant legislation is found in the A New Tax System (Family Assistance) Act 1999 (Cth) (Family Assistance Act) and the related legislation, A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Family Assistance Administration Act). Sections 21 and 22 of the Family Assistance Act provide for eligibility for family tax benefit. Where there is a shared care arrangement, the payment of family tax benefit is made according to the number of days the person was legally responsible for the day-to-day care, welfare and development of the individual (Family Assistance Administration Act s 16 and Family Assistance Act s 22). Where the shared care arrangements change, the Secretary may vary the rate payable (Family Assistance Administration Act s 31). If shared care is undertaken by persons not members of the same couple, the Secretary determines the shared care percentage payment for the child or children in such shared care (Family Assistance Act s 59). If an overpayment arises in respect of family assistance, the amount overpaid is a debt to the Commonwealth (Family Assistance Administration Act s 71).
13. Section 22(6A) of the Family Assistance Act states:
Determining percentages of care
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, under subsection (2), (3), (4), (5) or (6), an FTB [Family Tax Benefit] child of more than one other individual; 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)that individual is not a partner of at least one of those other individuals;
then the Secretary must determine the percentage of the period during which the child was, or will be, in the care of that individual.
Note:The percentage determined under subsection (6A) for an individual in respect of a child is used to work out the individual’s shared care percentage for the child in section 59.
Issues
14. The issue is whether Mr Kerr had 100 per cent care of Aysha from 14 February 2008 to 24 June 2008.
Evidence
15. Ms Robinson informed the Tribunal that she moved to Eden from Tura Beach, NSW in, she thought, April 2007. She had separated from the father of the youngest of her four children (not Mr Kerr), she believed, in about August 2006. Tura Beach, where her former husband Mr Kerr resides, is about half an hour’s drive away from Eden.
16. Ms Robinson said she had not attended the Social Security Appeals Tribunal hearing in this matter because her life was in some turmoil at the time and she simply forgot. She said that following the raising of the family tax benefit debt against her she had been in financial difficulty and had to get food vouchers from Anglicare and she had to borrow money to pay her bills.
17. Ms Robinson said she believed that Aysha, through some friends of Mr Kerr, had obtained a part-time after school job in a fish and chips shop in Merimbula towards the end of January 2008. Merimbula is closer to Tura Beach than to Eden.
18. The days on which Aysha was to work were days that Aysha was to spend with Ms Robinson under the shared care arrangements. However, Mr Kerr had said since the position for Aysha was something of a favour to him, he was not prepared to jeopardise the offer by trying to negotiate different days. So it was agreed that Aysha would live with her father for 100 per cent of the time while she was employed at the fish and chips shop.
19. Ms Robinson maintained that Aysha was only away from her for 100 per cent of the time for between three to four weeks at most. She thought the period was between 23 January 2008 and about 24 February 2008, but could not be sure. She said, however, when asked about her statement to Centrelink that ‘Aysha did not end up working so returned … home’, that this was incorrect. Mrs Robinson said that Aysha did work a few shifts at the fish and chips shop, but she could not be certain of the dates.
20. When asked how she could establish the period of Aysha’s absence, Ms Robinson referred to a statement by Ms Regi Moulds. Ms Moulds was in an employment agency contracted to find work for people under the Job Network. Ms Robinson would see Ms Moulds on a weekly basis and the two had struck up a friendship.
21. The Tribunal pointed out that it did not appear that Ms Moulds had actually seen Aysha at Ms Robinson’s house during the period in issue but was relying on Ms Robinson’s telling her about Aysha’s whereabouts. Ms Robinson agreed that this was not satisfactory evidence as to Aysha’s location.
22. Ms Robinson was asked whether there was other evidence which corroborated her story that Aysha was only absent from her shared care for between 3 to 4 weeks. In response she said that the rate of rent she was paying at this time was based on Aysha being in her shared care.
23. Ms Robinson said, however, she could not find any documents to show this. She also agreed that even if those documents were available, the rate of rent shown might simply reflect the fact that she had neglected to tell the Department of Human Services that Aysha was no longer living with her. She agreed that this could have been the case since she did not want to owe money to the Department. Ms Robinson said Aysha’s evidence would have been valuable but when asked to attend, Aysha had declined since it was the first week back at school this term
24. Ms Robinson said Aysha had also obtained another after school job at McDonalds in Merimbula from, she thinks, around May 2008 for approximately 12 months, although she could not be certain about when Aysha commenced her employment. She said she remembered picking Aysha up once or twice a week after Aysha had finished her shift. However, she could not remember on what days Aysha worked. Ms Robinson said she would try to provide the Tribunal with some McDonald’s pay slips to establish when Aysha worked there. The Tribunal has not received this evidence.
25. Ms Robinson said she thought Aysha had attended High School in Eden in year 7, then moved to Lumen Christi school in Pambula for year 8 and then returned to the high school in Eden for year 9. Pambula Beach is closer to Mr Kerr’s residence in Tura Beach than Ms Robinson’s residence in Eden. In 2010, Aysha is in year 10 at Eden. Ms Robinson said she would send copies of Aysha’s school reports for the last few years to the Tribunal to verify her places of schooling. The Tribunal did not receive this evidence either.
26. Ms Robinson agreed that an incident occurred at Fisheries Beach when she and Mr Gould, became drunk and Aysha and Matthew were anxious about their safety. She said that Mr Gould had never lived with her, although he stayed on occasions, and the relationship came to an end when she took out an apprehended violence order (AVO) against him in June 2008.
27. The Tribunal asked Ms Robinson to provide a copy of the AVO. Ms Robinson said she may have shredded the order, but she could obtain a copy from the magistrate’s court in Eden. She agreed to do so by the middle of the week following the hearing. The Tribunal requested a copy of the AVO to corroborate Mr Kerr’s evidence that following the issue of the AVO Ms Robinson had rung Aysha to tell her that she and Mr Gould had split up because, following that news, Aysha said she felt comfortable about returning to her mother’s house and did so.
28. The Tribunal had not received the information from Ms Robinson about the date the AVO was made so it confirmed with the Eden Courthouse that an interim AVO order was made on 29 June 2008 and a final order was made on 3 September 2008. The date of the interim order is sufficiently close to 24 June 2008, the date chosen as the end of the period when Mr Kerr had sole care of Aysha, to satisfy the Tribunal that 24 June 2008 was when Aysha left Mr Kerr’s 100 per cent care.
29. Ms Robinson also agreed that Mr Kerr had 100 per cent of the care of Matthew since November 2008. However, she said that since Aysha had returned after the 3 to 4 weeks with Mr Kerr in January to February 2008, Aysha had only spent short periods of time with her father, usually following Ms Robinson’s attempt to discipline her. She thought that this had occurred on about three occasions since the first half of 2008. The third time, she said, was in January 2010 when Aysha and Mr Kerr went on holiday together for about a week. Ms Robinson agreed that the strict terms of the court order about shared care had not been followed for some time. She has thought about whether to get the order changed but has not yet done so.
30. According to Ms Robinson, the reasons Aysha now prefers to live with her mother are that Aysha’s high school is in Eden, her friends are in Eden, and she ‘does not see eye to eye’ with her father.
31. Ms Robinson said she is currently working half days in a permanent part-time job.
Consideration
32. In accordance with section 21(1) of the Family Assistance Act, a person is eligible for family tax benefit if they have at least one family tax benefit child. A child is a family tax benefit child if they are under 18 years of age, an adult is legally responsible for the child’s day-to-day care, welfare and development (alone or jointly), the child is in the person’s care and is an Australian resident. There is no dispute that Aysha is a family tax benefit child.
33. In accordance with section 22(6A) of the Family Assistance Act the Secretary may determine the percentage of the rate of family tax benefit to be paid when two people are qualified to receive family tax benefit for a family tax benefit child. Following the Family Court order in 2000, the Secretary accepted that Ms Robinson was entitled to 48 per cent and Mr Kerr to 52 per cent family tax benefit for Aysha.
34. If the percentage of care changes, the Secretary can vary the payment of family tax benefit under section 59 of the Family Assistance Act. At Mr Kerr’s request, Centrelink in May 2008 had altered the percentage of family tax benefit for Aysha to show that Mr Kerr had been responsible for 100 per cent of Aysha’s care between 24 February 2008 and 24 June 2008. Ms Robinson had disputed that change and Centrelink then agreed that the shared care arrangement should be recalculated based on the original division of responsibility as shown in the Family Court order.
35. Subsequently, Ms Robinson agreed that Aysha was out of her care for approximately 4 weeks from 14 February 2008. However, at the hearing, she said she could not be sure of the dates and the 4 weeks could have commenced late in January 2008. Mr Kerr’s evidence was that Aysha was in shared care until late January 2008 and then spent two weeks with Ms Robinson before he commenced sole care for her from 14 February 2008.
36. The Tribunal prefers the evidence of Mr Kerr on the question of the commencement of the changed care arrangement as Ms Robinson was not a good historian and had not been clear about dates, which varied both in Centrelink files and before the Tribunal. For example, Ms Robinson said variously that Aysha was with her father for 3 to 4 weeks from the end of January, from the middle of February, and during April or May 2008. For that reason the Tribunal finds that the shared care arrangement for Aysha ceased on 13 February 2008 and Mr Kerr undertook 100 per cent care for her from 14 February 2008.
37. The reason for that change is not clear. The evidence was either that Aysha obtained part-time work at the fish and chips shop in Merimbula at that time, or that the incident at Fisheries Beach when Aysha became anxious for her safety occurred about then. However, since Ms Robinson agreed that Aysha was away from her care possibly around that time, and Mr Kerr, whose evidence on this issue the Tribunal prefers, says the date was 14 February, the Tribunal is satisfied that from that date, Aysha was for a period in Mr Kerr’s care for 100 per cent of the time.
38. The real issue is how long did this changed care arrangement last. Ms Robinson’s evidence was that it was either between 3 to 4 weeks, or only for a short time because the job did not materialise, or that it was for a slightly longer time because Aysha actually did work one or two shifts at the fish and chips shop.
39. Mr Kerr’s evidence was that the arrangement lasted until Ms Robinson took out an AVO against Mr Gould when Aysha felt safe to return to shared care with her mother. This evidence is consistent with the evidence about the incident at Fisheries Beach when Aysha felt unsafe to be around Mr Gould. Mr Kerr spoke with a Centrelink social worker on 2 April 2008 and said that Aysha had been in his care at that time for ‘a couple of months’. That is also consistent with Aysha’s full-time stay with Mr Kerr having commenced in February 2008.
40. There is also evidence from the date of the AVO being taken out that Aysha would have been with her father until she felt safe to return to her mother in late June 2008. The period for which a debt was raised against Mr Kerr was from 14 February 2008 to 24 June 2008.
41. In deciding who is entitled to family tax benefit, the Family Assistance Act section 22(2)(b) allocates entitlement according to who is ‘legally responsible’ for a family tax benefit child. The legislation does not define what is meant by ‘legally responsible’. The Guide to the Family Assistance Act provides at 2.1.1.30:
If all parties do not agree on what the care arrangements are, further verification is required in order for the FAO [Family Assistance Office] to determine the actual care arrangements. Obtaining a copy of the document detailing any formal arrangement is one means of verification that may be used.
42. Centrelink obtained a copy of the Family Court order and the Authorised Review Officer, under a delegation from the Secretary, decided that this was evidence which it would accept of ‘actual care arrangements’.
43. The Tribunal has heard, however, from Ms Robinson and Mr Kerr that the ‘actual care arrangements’ had differed from those set out in the court order and this had been the case for some time even prior to the beginning of 2008.
44. In the face of Ms Robinson’s concession that Aysha was not living with her under the shared care arrangements for some time in 2008, the fact that Matthew has, since November 2008, been 100 per cent in the care of Mr Kerr, and Mr Kerr’s evidence that Aysha was in his full-time care until 24 June 2008, the Tribunal finds that the court order is not a useful guide as to the ‘actual care arrangements’ of Aysha in the first half of 2008.
45. The Tribunal also finds that Ms Robinson has been unable to provide evidence to the Tribunal which would enable it to be satisfied that Aysha was not in Mr Kerr’s full-time care for the period 14 February 2008 to 24 June 2008. In those circumstances, the Tribunal affirms the decision under review.
46. That means the family tax benefit debt raised against Mr Kerr under section 71 of the Family Assistance Administration Act for the period 14 February to 24 June 2008 should not have been imposed.
47. In these circumstances there is no need to consider whether there is a need to write off or to waive the debt,[1] or whether there are special circumstances which justify the debt being waived.[2]
[1] A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 95, 97.
[2] Id at s 101(b).
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: .....................................................................................
C. Kocak, AssociateDate/s of Hearing 21 April 2010
Date of Decision 30 April 2010
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Centrelink Advocacy & Litigation Branch
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