SHANE SALMON and SECRETARY, ATTORNEY-GENERAL'S DEPARTMENT SANDRA SIBBICK OTHER PARTY
[2012] AATA 419
•6 July 2012
[2012] AATA 419
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2699
Re
SHANE SALMON
APPLICANT
And
SECRETARY, ATTORNEY-GENERAL'S DEPARTMENT
And
RESPONDENT
SANDRA SIBBICK
OTHER PARTY
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 6 July 2012 Place Brisbane The Tribunal affirms the decision under review.
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Senior Member Dr K S Levy, RFD
CATCHWORDS
SOCIAL SECURITY – Australian Government Disaster Recovery Payment – Portion of payment for dependent children – Principal carer – Dependant’s not in applicant’s care at time of disaster - Carer most in need – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 5, 1061M
Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 2), prepared 19 January 2011
SECONDARY MATERIALS
The Guide to Social Security Law, instructions 1.1.P.416, 3.7.3.10
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
6 July 2012
INTRODUCTION
The applicant, Shane Salmon, applied for the Australian Government Disaster Recovery Payment (AGDRP) when his residence was affected by flood waters near Ipswich in January 2011. On 20 January 2011, Centrelink granted AGDRP to the applicant but did not approve payment of an additional component, which is related to the number of children an applicant has. This additional component was rejected on the basis that Mr Salmon was not the principal carer of those children. Mr Salmon and his ex-partner, Sandra Sibbick, the other party in this matter, have two children aged six and nine years respectively, and they share the care of those two children equally. The amount of AGDRP for the component pertaining to children is $400 per child.
The applicant sought review of the decision to reject his application for this latter component of AGDRP. It was first reviewed by an Authorised Review Officer on 18 February 2011 and then by the Social Security Appeals Tribunal on 14 May 2011. Both reviews affirmed the original decision not to pay this component. Mr Salmon now seeks review by the Administrative Appeals Tribunal (the Tribunal).
ISSUES
The issues for determination by the Tribunal are:
1)Was Shane Salmon the principal carer of the children as at 11 January 2011; and
2)Should Mr Salmon be paid the additional component of AGDRP for the children?
EVIDENCE
The applicant did not appear at the hearing but was represented by his father, Mr Robert Salmon. Ms Sibbick appeared at the hearing and represented herself.
Mr Salmon and Ms Sibbick separated prior to January 2011 but had an agreement for equal legal responsibility and also shared equal care of both children. They each receive 50% of the Family Tax Benefit allowance.
Mr Robert Salmon, on behalf of the applicant, put a submission to the Tribunal that his son had not been advised that Ms Sibbick was deemed to be the principal carer, which was the basis for his application being rejected. He further submitted that the amount claimed should go to the person in greater need. He argued that his son was in greater need as Ms Sibbick was not affected by the flood at all. He also said the claim was based on a loss of utilities (electricity) over the period during which he should have had custody of his children. He further submitted that his son needed the money as he wanted to provide air conditioning in the children’s bedroom at his residence.
Ms Sibbick stated that she had not sought payment of the amount claimed by the applicant. She explained that at the time that she and the applicant separated, they had agreed that they would each have alternate weeks with the children except over the Christmas/New Year period, when they would each have a block of three weeks with the children. Over the Christmas 2010 and January 2011 period, her husband, however, had gone overseas and was due back on 17 January 2011. He was due to have the children from that date as he only arrived back from overseas the day before. However, the floods had intervened three days earlier and the underneath part of his house was affected. She told the Tribunal that the applicant asked her to keep the children at that time as his house was not fit to accommodate them and he needed to clean up after the floods. Ms Sibbick said that, in effect, she had the children from 25 December 2010 to 28 January 2011. From that date, they then resumed their normal pattern of having alternative weeks with the two children.
Ms Sibbick went on to explain that for the 2010 year and up to the January 2011 floods, she had had the children for more than 50% of the time as the applicant was required to travel in his job as a salesman and she therefore had the children for longer periods. However, the applicant did pay the amounts that he otherwise would have expended on day-care and after-school care as if he had been present during those additional times.
Ms Sibbick stated that the Child Support Agency (CSA) had advised her that the record showed that she had care of the children 49% of the time and Mr Salmon had the children for 51% of the time. She enquired with the CSA about that break up even though they had agreed a 50%:50% sharing arrangement. The CSA had advised her that because there are 365 days in the year, it wasn’t possible for the department’s system to have a 50%:50% split and, consequently, their records would record one partner as having 51% care and the other would have 49%. Mr Salmon was allocated 51% merely because he had applied to the CSA first and Ms Sibbick applied after Mr Salmon. She was told, however, that in respect of the 49%:51% split, “it has no practical impact” and therefore she did not challenge the decision at any time.
File notes made by Centrelink indicate that Ms Sibbick was listed as the principal carer. The applicant had claimed that there were court documents about his status as principal carer, but he was unable to provide the documentation to establish his claim.
CONSIDERATION
I have considered all of the evidence presented to the Tribunal. Critical to the determination of the matter are the following relevant provisions of the Social Security Act 1991 (Cth) (the Act):
1061M Amount of payment for disasters in Australia
(1) The amount of an AGDRP payable to a person in relation to a major disaster that occurs in Australia is the sum of:
(a) the adult rate for the financial year in which the major disaster is declared under section 36; and
(b) if the person is the principal carer of one or more children—the amount worked out by multiplying the child rate for that financial year by the number of children for whom the person is the principal carer.
…
5 Family relationships definitions—children
[see Appendix for CPI adjusted figures]…
(15) A person is the principal carer of a child if:
(a) the child is a dependent child of the person; and
(b) the child has not turned 16.
Note: The definition of dependent child in subsection (2) requires:
(a) the adult to be legally responsible (whether alone or jointly with another person) for the day‑to‑day care, welfare and development of the child: subsection (16) deals with the circumstances in which a step‑parent is taken to have such legal responsibility; and
(b) a child to be in an adult’s care: subsection (17) deals with the circumstances in which a child is taken to remain in an adult’s care.
…
Principal carer—a child can only have one principal carer
(18) Only one person at a time can be the principal carer of a particular child.
(19) If the Secretary is satisfied that, but for subsection (18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must:
(a) make a written determination specifying one of the adults as the principal carer of the child; and
(b) give a copy of the determination to each adult.
…
(20D) The Secretary must give a copy of the determination to each member of the couple.
The Secretary’s advocate further referred me to the Guide to Social Security Law (the Guide) and, in particular, to instruction 1.1.P.416. That instruction deals with who is the principal carer where there is a shared care arrangement. Section 5(18) of the Act provides that only one person at a time can be the principal carer and, in accordance with s 19 of the Act, in all shared care cases, it will be necessary to determine which of the carers is the principal carer. Where there is shared care, the Guide provides an example which shows that where the two carer’s level of care differs by less than 10%, then the level of care is considered as being shared equally. In other words, whether the care is shared 50%:50% or up to 54%:46%, the parties are deemed to share care of their children equally. Further, where only one of the carers is receiving income support, that person should be determined as the principal carer. However, where both parties receive income support, then the carer who is most in need should be deemed to be the principal carer.
It is also noted instruction 3.7.3.10 of the Guide provides that persons who are “adversely affected” may be the recipient of AGDRP. There are a number of categories which might justify such assistance, one of which is where the person’s principal place of residence:[1]
…
(b) was without electricity, water, gas, sewerage service or another essential service for at least 48 hours (a utility failure)
...
[1] Social Security (Australian Government Disaster Recovery Payment) Determination 2011 (No. 2), s 4, sch 2 (b), made 19 January 2011.
In respect of the evidence, I make the following findings of fact:
1)Mr Salmon’s residence was affected by flood waters in January 2011 and was without electrical power for some days.
2)At the time of the flood, the children were not with the applicant as he was overseas.
3)At the time of the subsequent loss of utilities, the children were not with the applicant, at his specific request.
4)The record shows that Ms Sibbick was the principal carer of the two children.
I find that based on the evidence, Mr Salmon was not the principal carer. Therefore he cannot succeed on Issue 1.
In respect of Issue 2, the question is whether he can be paid the amount of the AGDRP component for the children. There is no dispute about the payment of the amount of AGDRP already made to Mr Salmon. However, in respect of the additional component, s 1061M of the Act provides that it is payable to the principal carer. That view is to be determined by reference to ss 5(18) and 5(19) of the Act. Only one person can be the principal carer of a particular child at any one time. Where there is equal care, the Secretary must make a determination and provide a copy of that determination to each adult carer.
The record shows Ms Sibbick is recognised as the principal carer. There is no record available to show that Mr Salmon was advised of that determination, as required. The lack of such a record is not evidence that a letter of advice was not produced. In any event, the absence of proof of such a letter does not result in any penalty or have any effect in determining the question of whether Mr Salmon is entitled to the payment he claims. I give no weight to that fact in determining the issues in dispute. The question to be determined depends on who is the principal carer and Centrelink file notes show that Ms Sibbick was recognised as the principal carer.
However, in making a determination as to whether Mr Salmon is entitled to the additional AGDRP component for the children, the Guide states that in cases of “equal care”, where there is less than 10% difference between the parties’ determined percentage of care, as is the case here, care is regarded as being shared equally. Where both carers are receiving income support, the carer most in need of a favourable determination should be deemed to be the principal carer. The applicant claims he should be the principal carer. Attachment A to the Secretary’s Statement of Facts and Contentions shows the “cost percentage” of care for each child is shared equally between the applicant and the other party. However, the shared “care percentage” is 49%:51% in favour of the applicant. As there is less than 10% difference, they must be taken to share care of the children equally.
I accept the evidence that Ms Sibbick was determined by Centrelink to be the principal carer. However, based on the child support assessment in Attachment A, it is apparent that, at least for the period 1 September 2010 to 30 November 2011, Ms Sibbick required support from Mr Salmon based on her income. Therefore, under the terms of the Guide, Ms Sibbick would appear to be in greatest need. The applicant states that Ms Sibbick is now re-partnered. However, no evidence of those circumstances has been put before the Tribunal and it has not resulted in any change by the CSA to the recognised division of child support provided by the applicant compared with the other party for the relevant period.
I find, therefore, the applicant is not the party of greater need as between himself and the other party. On the basis of either the person determined to be the principal carer by Centrelink or using the data of the CSA to determine the child support assessment of both the parties, I find that the decision about who was the principal carer must be made in favour of the other party.
DECISION
The decision under review is affirmed.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD. ........................[Sgd].......................................
Associate
Dated 6 July 2012
Date(s) of hearing 24 May 2012 Advocate for the Applicant Robert Salmon, Father of the Applicant Advocate for the Respondent Jasmine Forsyth Other Party In person
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