Stevenson and Secretary, Department of Family and Community Services and Anor

[2005] AATA 1080

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1080

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/999

GENERAL ADMINISTRATIVE DIVISION

Re:         TRACY STEVENSON

Applicant

And:       SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

And:         MAXWELL SKILBECK

Joined Party

DECISION

Tribunal:       Regina Perton, Member

Date:             28 October 2005

Place:            Melbourne

Decision:The Tribunal varies the decision under review and remits the matter to the respondent with a direction that the applicant be paid full family tax benefit from 18 July 2002 to 30 July 2002 for her son, Forrest.  

(sgd) Regina Perton

Member

FAMILY TAX BENEFIT - percentage of care – documentary evidence of changed care arrangements - backdating of decision not possible beyond prescribed period

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

A New Tax System (Family Assistance) (Administration) Act 1999 s 111B

REASONS FOR DECISION

28 October 2005  Regina Perton, Member

1.      This application for review concerns the amount of family tax benefit (FTB) payable to the applicant for review, Tracy Stevenson, over the last few years.  Where parents separate but continue to share custody of a child for whom they receive FTB, the total FTB entitlement is shared between the parents according to the percentage of time each parent takes care of the child.  Mrs Stevenson believes that Centrelink, and subsequently the Social Security Appeals Tribunal (SSAT), which varied the original decision, has paid her less FTB than that to which she is entitled. 

2.      Mrs Stevenson is the mother of two boys, Jai Rah, born on 17 June 1986 and   Forrest Zane, born on 9 February 1988.  She and the children’s father, Maxwell John Skilbeck, separated in 1987.  On 28 November 1990, the Family Court made consent orders in relation to custody and access of the two boys.  The boys were to spend most of their time with their mother and see their father on some weekends and part of school holidays.  These orders were not strictly observed.

3.      As at 1 July 2000, Mrs Stevenson was receiving 78 per cent of the FTB for the boys, which reflected the percentage of time that she took care of the boys as set out in the 1990 Family Court Order.  Mr Skilbeck was receiving 22 per cent of the FTB.  In the latter half of 2000, Mrs Stevenson was confronted with a personal crisis and as a result the care arrangements for the boys changed for a time.   Centrelink was notified by a social worker in late November 2000 that Forrest had been in his father’s care since 18 October 2000.  Information from other sources during 2001 suggested different arrangements.   Centrelink reduced the rate of FTB paid to Mrs Stevenson from October 2000 to mid- November 2001. 

4.      On 13 November 2001, Mrs Stevenson lodged a form with Centrelink notifying it of a change in care arrangements.  She indicated that since 13 August 2001 Jai had been totally in her care and Forrest had been in her care for 80 per cent of the time.  She declared that Jai had been living with her throughout 2001 and had only spent barely one week with his father in that time.  She indicated that Forrest had been with her for the past 3 to 4 months, except for one week.  She stated that in the   future Jai wished to spend 20 per cent of the time with his father.  On 20 December 2001, Mr Skilbeck lodged a form with Centrelink in which he stated that he had 62 per cent of the care of Forrest and none for Jai.  

5.      On 10 January 2002, Centrelink decided that Mrs Stevenson was entitled to 78 per cent of the FTB in relation to both Jai and Forrest and paid her that amount as from 13 November 2001.  Centrelink sent letters to Mrs Stevenson regularly as to the amount she was being paid and indicating her entitlement to apply for a review if she thought the payments were incorrect.   After Jai’s sixteenth birthday on 17 June 2002 and his subsequent move away from home, Mrs Stevenson continued to receive FTB for Forrest, at the rate of 78 per cent. 

6.      On 7 October 2002, Mrs Stevenson applied to an authorised review officer of Centrelink (ARO) for review of the amount of FTB she was being paid in relation to Forrest.  She stated that Forrest had been living with her for 100 per cent of the time over the last 12 months.  On 21 November 2002, the ARO decided that the original decision to pay Mrs Stevenson at the rate of 78 per cent was correct.  The ARO provided a history of the FTB payments since 1 July 2000.  The ARO stated that Mrs Stevenson would need to provide a new Family Court Order, a Parenting Plan or  a letter signed by her and Mr Skilbeck, stating that she had care of Forrest 100 per cent of the time.

7.      Mrs Stevenson sought legal assistance to change the Family Court Order and this took a long time.   On 26 November 2003, the Family Court, in the absence of Mr Skilbeck, ordered that Forrest and Jai reside with their mother, who would have sole responsibility for their day-to-day care.  On 2 December 2003, Mrs Stevenson wrote to Centrelink seeking a review of her payments from June 2001 in relation to both children.  Centrelink began to pay Mrs Stevenson FTB for Forrest on the basis that she cared for him 100 per cent of the time since the date of the Order.  However, Mrs Stevenson sought to be paid arrears of 100 per cent of FTB  for Forrest from the time he returned to her care in July 2003, and for the period prior to that at a rate to be determined.

8.      On 2 January 2004, Mrs Stevenson lodged an application for review with the SSAT.  Both Mrs Stevenson and Mr Skilbeck gave evidence to the SSAT.  On 16 July 2004, the SSAT varied the Centrelink decision.  The SSAT found that:

·   Mrs Stevenson had care of Forrest for all but 6 weekends during 2002;

·   that between 10 May 2003 and 30 July 2003, she did not have care of Forrest; and

·   that Forrest was continuously in her care from 31 July 2003. 

The SSAT informed Mrs Stevenson that it could not make any orders dating back beyond 1 July 2002 because the date of lodgement of her SSAT application was more than 13 weeks after she was given notice of the decision of which she sought review. 

9. Mrs Stevenson lodged an application for review with the Tribunal on 26 August 2004. As any decision made by the Tribunal in relation to the amount of FTB payable to Mrs Stevenson would affect the amount to which Mr Skilbeck was entitled during the period in dispute and result in a change to his entitlements, he was joined as a party to the proceedings. The Tribunal made several unsuccessful attempts to contact Mr Skilbeck: by mail to his last known addresses, by telephoning him on his mobile telephone number, leaving messages on his voicemail and by sending SMS text messages. He failed to respond to any of the attempted contacts. At the request of the other parties, the Tribunal has not conducted a hearing and has determined this matter in their absence, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

10.     In light of the SSAT decision,  the issues before the Tribunal now are:

·whether Mrs Stevenson should receive 100 per cent FTB in relation to Forrest for any period before 31 July 2003; and

·whether Mrs Stevenson is able to obtain back payment of FTB for Jai while he was living with her, prior to leaving home in June 2002.

EVIDENCE

11.     In a written statement which accompanied her application to the Tribunal, Mrs Stevenson submitted that the SSAT had erroneously decided that Forrest had returned to her, after staying with his father, on 18 July 2003.  She provided a copy of Forrest’s train ticket showing that he had travelled from Kempsey to Melbourne via Sydney on 18 July 2003.  Mrs Stevenson queried why she had been ineligible for FTB when Mr Skilbeck allegedly took Forrest, then aged 15 years, to an unspecified location in New South Wales without her approval, when Forrest was supposed to be visiting him in Melbourne for a few days.  Mrs Stevenson described the boys’ education, the difficulties Forrest had at school, his unannounced visits to his father and her personal situation during 2000 and the first half of 2001.  She indicated that from August 2001, both boys were with her and did not see their father.  Jai moved out of home in early June 2002, after his sixteenth birthday, and has not returned.  Mrs Stevenson stated that Forrest was completely in her care until May 2003 when his father contacted him.  He stayed with his father until his return on 18 July 2003. 

12.     Mrs Stevenson described her various contacts with Centrelink and the difficulties, frustrations and delays she experienced in getting the Family Court Orders changed.  She expressed her disappointment that the SSAT did not deal with her dispute over FTB payments for Jai, who was fully under her care during all of 2001 and until June 2002.  She indicated that her review application was lodged late due to the difficulties in obtaining documentation that satisfied Centrelink.   

13.     On 13 May 2005, at the Tribunal’s request, Centrelink calculated that if Forrest had been back in Mrs Stevenson’s care on 18 July 2002 rather than 30 July 2002 as stated in the SSAT’s decision, she would be entitled to an additional $219.70 in FTB.   The respondent indicated that it accepted that Forrest was in Mrs Stevenson’s care for 100 per cent of the time between 18 July 2002 and 30 July 2002.

CONSIDERATION OF THE ISSUES

14. Sections 21, 22, 23 and 25 of A New Tax System (Family Assistance) Act 1999 (the Act) set out the entitlements to FTB for a person in Mrs Stevenson’s situation.  There are specific provisions taking account of shared care and changes to care arrangements.

15.     A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act) sets out administrative matters in relation to FTB, including the powers of review bodies. In cases where a person applies to the SSAT for review more than 13 weeks after the original decision, s 111B limits the power of the SSAT as far as back-dating the effect of a decision about FTB. The SSAT is only allowed to back-date a decision to pay FTB to the first day of the income year, preceding the year in which the application to the SSAT was made. The same restrictions apply to this Tribunal’s review. There are certain limited circumstances where an order can be back-dated further, where the applicant was prevented from applying for review. However, there is no evidence that that exception is applicable in this case.

16.     Mrs Stevenson applied to the SSAT on 2 January 2004.  The application was received in the financial year 2003/2004.  Hence, the SSAT was only entitled to make orders in relation to FTB dating back to the beginning of the previous financial year, that is to 1 July 2002.  Even if this Tribunal is of the view that Mrs Stevenson should have been entitled to a greater share of FTB for Jai or Forrest prior to 1 July 2002, it cannot order that FTB be paid for that earlier period.

17. In relation to Jai, the Tribunal notes the evidence that he moved away from home in June 2002. In light of s 111B of the Administration Act, the Tribunal is not entitled to make any order in relation to the period while he still lived with his mother.

18.     In relation to Forrest, the Tribunal finds that he returned to his mother’s care on 18 July 2002 rather than on 30 July 2002.  Therefore, Mrs Stevenson is entitled to FTB for 18 July 2002 to 30 July 2002.  The Tribunal otherwise agrees with the SSAT’s decision.

DECISION

19.     The Tribunal varies the decision under review and remits the matter to the respondent with the direction that the applicant be paid full family tax benefit from 18 July 2002 to 30 July 2002 for her son Forrest.  

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Elite Aloni

Clerk

Date of hearing:  Hearing on the papers

Date of decision:  28 October 2005
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Ms E King, Centrelink
Advocate for joined party:           No appearance