SAMMY CAMPIONE and and DEBRA UNDERWOOD

[2009] AATA 872

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 872

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2009/3191

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAMMY CAMPIONE

Applicant

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

Respondent

And DEBRA UNDERWOOD

Third Party

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date12 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Family tax benefit – Applicant cared for children for less than 35% of the relevant period – Applicant did not have an FTB child for that period – Family tax benefit not payable for that period – Decision under review affirmed.

A New Tax System (Family Assistance) Act 1999 (Cth), ss 21, 22, 23, 25

REASONS FOR DECISION

12 November 2009 Mr S Karas, AO, Senior Member

BACKGROUND

1.      Sammy Campione (“the applicant”) and Debra Underwood (“the third party”) were married on 21 August 1993 and divorced on 24 March 2005.  There are two children of the marriage, now aged 8 and 13.  A Family Court order dated 8 October 2004 detailed the shared care of those children: in effect, the third party was to have 76% care and the applicant 24%.

2.      By arrangement, the applicant was to care for the children for half of the school holiday period commencing on 5 December 2008.  They were to remain in the applicant’s care until 12 January 2009.  However, the children were not returned to the third party on that date and remained in the care of the applicant.

3.      The applicant submitted a form (Details of your child’s care arrangements) to Centrelink on 5 December 2008, claiming that he would have 100% care of the children from 5 December 2008 to 12 January 2009 and that that care arrangement would be “indefinite/ongoing”.

4.      On 15 January 2009, the applicant submitted another form concerning the children’s care arrangements, in which he claimed that he would have 100% care of the children from 5 December 2008 and that these arrangements would be “indefinite/ongoing”.  On that basis he claimed for family tax benefit (“FTB”) from 5 December 2008.

5.      Centrelink rejected the applicant’s claim, a decision which was affirmed by an Authorised Review Officer.  However, the Federal Magistrates Court granted the applicant care of the children under the Family Law Act 1975 on 16 March 2009 and Centrelink then decided to pay the applicant FTB from that date. Three months later, the Social Security Appeals Tribunal affirmed the original decision not to pay FTB from the earlier date of 5 December 2008.  The applicant then applied for review to the Administrative Appeals Tribunal (“the Tribunal”).

ISSUES AND LEGISLATION

6.       The issue for the Tribunal to determine is whether the applicant was eligible to be paid FTB prior to 16 March 2009.

7.      In order to qualify for FTB in respect of a child, the applicant must satisfy the requirements of A New Tax System (Family Assistance) Act 1999 (“the Act”). The relevant provisions of the Act are ss 21, 22, 23 and 25. Under s 21 of the Act, an individual qualifies for FTB if they have an “FTB child”. Section 22 of the Act sets out how a child is an “FTB child” of an individual. Furthermore, notwithstanding s 22 of the Act, s 25 provides that if a child is in the care of an individual for less than 35% of a period, that child is taken not to be an “FTB child” of that individual.

EVIDENCE

8.      The applicant stated that he had care of the children from 5 December 2008. He did not return the children to the third party as she intended to relocate to the Gold Coast and have the children change schools, without his knowledge or that of the children.  He noted that the Federal Magistrates Court gave him temporary care of the children in March 2009, and that that arrangement was made ongoing and indefinite by a further order of that court in June 2009.

9.      The applicant was aware of the earlier Family Court order of 2004 granting the third party care of the children and was aware that he was in breach of that order by not returning the children to her on 12 January 2009.  He also noted that the children “were suffering” and did not want to live with their mother.  He agreed that the third party made attempts to regain custody of the children by approaching the police, seeing solicitors and applying to the Family Court.  He referred to “misunderstandings” contained in the letters of the third party’s lawyer.

10.       The applicant has not spoken personally to his former wife since July 2007.  He said he had been “breached” several times by her for “ridiculous reasons”.  The applicant referred to his financial situation and upcoming school expenses he will need to pay.  He has had to sell his “stuff” to assist his children and he is “struggling”, living a “frugal life”.  He tries to keep his children out of harm’s way.  He has done everything “openly and by the book” and does the “very best” for his children.  His daughter has now improved her grades at school and meets the national average.

11.     The third party referred to the original Family Court order of 2004 that was breached by the applicant when he refused to give the children back to her after Christmas 2008.  She said it has been “a saga ever since then.”  When the applicant did not return the children in January 2009, she went to the police, sought legal advice and applied for recovery orders.  She noted that the 2004 Family Court order has been changed and that she is adhering to that new order.   

12.     The third party referred to engaging lawyers to assist her.  She recalled completing Family Court documents for a continuation order after the applicant had kept the children in January 2009.  She also applied for an order to recover her children.  She stated “things changed” after she went to court this year: she consented to the Family Court orders giving the applicant “predominant care of the children.”  She noted that she has two Domestic Violence Orders out against the applicant, who did not consult her on their daughters’ schooling.  There has never been good communication between her and the applicant.

13. Mr Hamilton, for the respondent, emphasised that this Tribunal’s sole task was to consider the Social Security legislation. He referred to Centrelink’s decision not to grant the applicant FTB from 5 December 2008 to 15 March 2009. He submitted that this decision was correct pursuant to s 25 of the Act, as the third party was receiving FTB for the children following the 2004 court order (and continued to receive it until March 2009). Mr Hamilton referred to the actions taken by the third party after the children were not returned to her on 12 January 2009 and stated that those actions were reasonable in the circumstances. Mr Hamilton submitted that it was only after the March 2009 Family Court order (requiring the children to live with their father from 16 March 2009) that the pattern of care changed between the parties for FTB purposes. He referred to s 25 of the Act to ground his assertion that the children did not become FTB children of the applicant until that time. Subsequently, Mr Hamilton submitted, Centrelink paid the applicant FTB from the correct date.

CONSIDERATION AND FINDINGS

14.     From the evidence and material before it, the Tribunal finds that the Family Court order of 2004 (giving the applicant 24% care) governed the care of the children from 8 October 2004 to 16 March 2009.  Given that the care of the children by the applicant was less than 35%, the respondent correctly determined that the children were not the FTB children of the applicant during that time period.  Consequently, no FTB is payable to the applicant for that period.

15. There is no dispute that the third party opposed and did not consent to the applicant’s retaining care of the children in breach of the 2004 Family Court order. Further, by contacting the police, seeking legal advice and lodging an application for a recovery order, the third party took reasonable steps to have the children returned to her care. Indeed, the third party did not regard the children as being out of her care on the basis that she had not consented to the applicant’s actions. Consequently, the Tribunal finds that, for the purposes of the Act, the children remained the FTB children of the third party for the relevant period of 12 January 2009 to 16 March 2009: see s 23 of the Act.

16.     The Tribunal notes the passions and concerns of the parties in this matter and their agitated participation in the proceedings, presumably caused by their difficulties and hostilities following their matrimonial breakdown.  However, the nature of their relationship, personal dealings and the like is a matter for another jurisdiction.  The Tribunal’s role is to review the matter of FTB in relation to the children of the marriage.  This has been done in accordance with the relevant legislation without consideration of any matrimonial relationships or difficulties.

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.

Signed: ....................[Sgd].........................................................
             Mátyás Kochárdy, Research Associate

Date of Hearing  27 October 2009
Date of Decision  12 November 2009
Applicant was self-represented
Third party appeared by telephone
Solicitor for the Respondent     Mr R Hamilton, Departmental Advocate