Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Sand and Sand (Joined Third Party)

[2010] AATA 955

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 955

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0914

GENERAL ADMINISTRATIVE DIVISION		)
Re		Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Applicant

And Sandra Sand

Respondent

And Ian Sand

Joined Third Party

DECISION

Tribunal Ms N Bell, Senior Member

Date30 November 2010   

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides that Mr Sand had the sole care of the children between 30 June 2008 and 23 November 2008.

......................[sgd].............................

Ms N Bell, Senior Member

CATCHWORDS - Social Security – Family Tax Benefit - percentage of care – actual care

A New Tax System (Family Assistance) Act 1999

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Sandra Sand and Ian Sand are the parents of two children.  Centrelink made a decision that the children were in Mr Sand’s sole care from 30 June 2008 and he was therefore entitled to the full rate of family tax benefit from that time.  Ms Sand appealed this decision to the Social Security Appeals Tribunal.  That tribunal decided that the children were in the shared care of Mr Sand and Ms Sand between 30 June 2008 and 23 November 2008.

2.      The Secretary now seeks a review of the SSAT’s decision.

3.      

Mr Sand and Ms Sand disagree on most things. Each one’s evidence was highly critical of the other and they were in dispute over almost every matter except that from 30 June 2008 until at least 23 November 2008 the children lived with

Mr Sand about 18 kilometres out of Port Macquarie while Mrs Sand was away working in the Northern Territory. The children did not live with her during that period.

4.      However, Ms Sand insists that she and Mr Sand had separated some time earlier and that she had asked Mr Sand to move into her house to care for the children in her absence.  She maintained that she met the bulk of the children’s and the household’s expenses while she was away, spoke to the children every day to help them with homework, gave or withheld permission for outings and activities and generally remained the person who made all decisions in relation to the children.  She painted Mr Sand as an irresponsible alcoholic who was unable to care properly for the children and largely neglected them.

5.      

Mr Sand painted a very different picture.  He said that he had always lived in the house and that until she went to the Northern Territory, he and Ms Sand were a normal married couple with a normal family. He said that during her absence

Ms Sand contributed only the rent for the house as had always been the arrangement between them and some other minor expenses, that she was not making decisions in relation to the children and that he had full care of the children.  He said Ms Sand had originally proposed to be away for three months and then extended the period to six months.

6.      

The issue in this application is not about the rights or wrongs of the Sands’ marriage. The issue is who had the care of the children during the period

30 June 2008 to 23 November 2008.

7.      I note that since the original decision made by the Secretary, the A New Tax System (Family Assistance) Act 1999 has been amended. For the purposes of this application and the issues that arise, the amendments have not affected the relevant substantive legislative requirements. I note that the legislation applied by all decision makers to date has been the provisions as they were at the date of the original decision. The concepts are the same. That is the legislation that I apply here.

8.      Section 21(1) of the Act provided that a person is eligible to receive family tax benefit if the person has at least one “FTB child”.  Section 22(2) of the Act provided that an individual is an FTB child of a person if, among other things, that person is legally responsible (whether alone or jointly with someone else) for the day to day care, welfare and development of the individual and the individual is in the person’s care.  Section 22(6C) provided that a child cannot be in the care of more than one person on a particular day.  Section 22(6D) provided that in determining which person has the care of the child on any given day, the Secretary must have regard to the living arrangements of the child.

9.      The Family Assistance Guide provides that usually overnight care is a determining factor in deciding who has the care of a child.  Elsewhere, the Guide provides that family tax benefit will be paid to the person who has “the actual care of a child”.  This suggests that on site, physical care of a child is the determining factor. I also note that the amended Act now provides at section 35J that determining the actual care of a child may be worked out on the basis of the number of nights the child was in the care of the individual during the care period.

10.     The Guide also provides that a temporary change in care during which the parent who does not have the care of the child continues to receive family tax benefit should not extend beyond four weeks and that after that time the “actual carer” should receive the benefit. Later, the Guide provides that when it is clear from the outset that the child will be in ongoing care then the carer will be eligible for the benefit from the date the child enters their care.

11.     Ms Sand gave evidence of having paid money into the Sands’ joint account for the purpose of rent, utilities, food, clothing, registration of Mr Sands’ car, gifts for the children and various other expenses.  Mr Sand said the arrangement had always been that Ms Sand paid the rent while he paid, and continued to pay, utilities and food.  He said he also met the costs of clothes for the children, books, outings and other incidentals as they arose.  He said that the money deposited for registration was for her car and that an additional $1,000 of the money she deposited was for the purpose of getting her car to her in Alice Springs.

12.     Mrs Sand said she came down from Alice Springs to spend two weeks with the children. Mr Sand said she came in order to attend her grandmother’s funeral and spent most of her time with her relatives and friends.

13.     Mrs Sand said she was in constant telephone contact with the children, helping them with homework and making decisions about their activities.  Mr Sand said she was often unavailable or impossible to contact because she was working in remote parts of the Northern Territory.

14.     

Mrs Sand said that Mr Sand neglected the children and she was forced to arrange for her son from her previous marriage to care for the children when

Mr Sand had been too intoxicated to do so. Mr Sand described his and the children’s daily life of getting them ready for school, going to work (across the road from his house), feeding and caring for the animals with the children after school, preparing the evening meal and getting them to bed.  He said that he, being unaccustomed to study himself, arranged a tutor for the children to help with their schoolwork.

15.     It is difficult not to wonder why, if Mr Sand was such an irresponsible parent as Ms Sand says, she still left the children in his care for six months and moved so far away from them.  I also note that, from November 2008, the children were left in his permanent care.

16.     

It is also difficult to determine the truth of the circumstances.  However, one essential thing is not in dispute:  the children lived with Mr Sand from 30 June 2008 to 23 November 2008 and during that time Ms Sand was living and working in

Alice Springs

.  Both parents contributed financially to the children’s upkeep, but the children lived with Mr Sand.  Even if Ms Sand spoke to them on the telephone every day, they were in Mr Sand’s physical care and remained so for six months and then beyond that.

17.     The Guide makes it clear that “actual” care is the focus of family tax benefit eligibility.  This is consistent with the terms of the legislation which, in section 22 (2) of the Act required legal responsibility for the child’s “day to day care, welfare and development” and that the child is “in the adult’s care”.  I see no inconsistency of the kind discussed in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 that would make it inappropriate to have regard to the Guide when applying the legislation.

18.     Ms Sand’s focus, in her evidence, was on the money she contributed to the children’s upkeep. This is not a determining factor.  There are many parents who pay child support and who are not considered to have the care of their children.

19.     

Ms Sand contended that she had delegated the care of the children to

Mr Sand.  However, as the children’s father, Mr Sand already had legal responsibility for them; this was not a delegated responsibility. He also had the physical care of them.  This continued for six months. I am mindful that the Guide anticipates an informal delegation of care lasting for no more than four weeks.

20.     

In all of the circumstances, I consider that from 30 June 2008 to

23 November 2008 the children were in the care of Mr Sand.  They were not in the care of Ms Sand.  It follows that they were “FTB children” of Mr Sand, but not of

Ms Sand, that is, they were children in respect of whom Mr Sand was eligible to be paid family tax benefit.

Decision

21.     

The decision under review is set aside and instead the Tribunal decides that Mr Sand had the sole care of the children between 30 June 2008 and

23 November 2008.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: ..........[sgd]....................................................................
  Associate

Dates of Hearing  16 July 2010, 5 August 2010, 25 August 2010 & 21 September 2010

Date of Decision  30 November 2010

Solicitor for the Applicant                 Ms Raewyn Harlock, Centrelink Legal Services

Solicitor for the Respondent            Unrepresented 

Solicitor for the Third Joined Party  Unrepresented