Stojanovski and Secretary, Department of Social Services (Social services second review)

[2019] AATA 557

Stojanovski and Secretary, Department of Social Services (Social services second review) [2019] AATA 557 (27 March 2019)

Division:GENERAL DIVISION

File Number:           2018/2860

Re:Zorance Stojanovski

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndNicole Psarogiannis

OTHER PARTY

DECISION

Tribunal:Damien Cremean, Senior Member

Date:27 March 2019

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the share of care of the child of the Applicant and the Other Party during the period 1 March 2017 and 1 March 2018 was 75% as to the Applicant (with, of that, 35% to his mother Olga Stojanovski) and 25% as to the Other Party. In consequence during that period the Other Party fails to qualify by operation of law.

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

Damien Cremean, Senior Member

Catchwords

FAMILY TAX BENEFIT – FTB – determination of the care period – determination of the applicant’s and the other party’s percentage of care in the care period – pattern of care –the child is not an FTB child of the other party – decision under review is set aside and substituted

Legislation

A New Tax System (Family Assistance) Act 1999 (Cth), ss 22(7), 25, 35B, 59

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

Cases
Barrett; Department of Family and Community Services [1999] AATA 196

Reece and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Parsons (Party Joined) [2008] AATA 525

REASONS FOR DECISION

Damien Cremean, Senior Member

27 March 2019

1. The Applicant, Mr Zorance Stojanovski, seeks review of a decision of the Social Services & Child Support Division of this Tribunal made on 6 April 2018.

2. At the hearing, the Applicant was in attendance in person with his mother Ms Olga Stojanovski and his son whose mother is the Other Party.

3. The Respondent was represented by Mr Tim Noonan, a lawyer of the Department of Human Services.

4. The Other Party, Ms Nicole Psarogiannis, did not attend the hearing and was not represented. Attempts were made by my Associate to contact her by telephone but each occasion was unsuccessful.

5. In consequence I have only the sworn evidence of the Applicant and Ms Stojanovski to base my decision on. There are papers on file lodged by or on behalf of the Other Party including one document T22 of the T-Documents which is prohibited from publication and is to remain confidential.

6. I should indicate there was no reason apparent to me why I should not accept the evidence of the Applicant and his mother and accordingly I accept it.

7. I should say in particular I have no basis upon which to make findings that the Applicant is lying as the Other Party contends (which the Applicant denied), or that anything adverse as alleged by or on behalf of the Other Party is known about him. The persons who made statements in support of the Other Party did not give evidence.

8. The relevant provision of the Act is s 59 of the A New Tax System (Family Assistance) Act 1999 (Cth) (‘the Act’):

   59 Shared care percentages where individual is FTB child of more than one person who are not members of the same couple

   (1)  An individual has a shared care percentage under this section for an FTB child of the individual if:

   (a) the Secretary has determined the individual’s percentage of care for the child during a care period; and

   (b)that percentage is at least 35% and not more than 65%.

   (c)Note: Paragraph 27(2)(b) deals with the percentage of care in a blended family case.

   (2)   The individual’s shared care percentage for the FTB child is the relevant percentage specified in column 2 of the table.

Shared care percentages
Item	Column 1 Individual’s percentage of care	Column 2 Shared care percentage
1	35% to less than 48%	25% plus 2% for each percentage point over 35%
2	48% to 52%	50%
3	more than 52% to 65%	51% plus 2% for each percentage point over 53%

(3)  If the shared care percentages, specified in the table, of all of the individuals of whom the child is an FTB child add to less than 100%, then the Secretary may determine a different whole percentage for one or more of those individuals for the FTB child. Despite subsection (2), the individual’s shared care percentage for the child is the percentage so determined for that individual.

1. Relevant to the operation of s 59 is s 35B of the Act:

   35B  Determination of percentage of care—child is in the adult’s care

   Initial determination

   (1)  If:

   (a)the Secretary is satisfied that there has been, or will be, a pattern of care for a child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of more than one individual; and

   (b)one of those individuals (the adult), or the partner of the adult, 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 the care period; and

   (c)the adult is not a partner of at least one of the other individuals referred to in paragraph (a);

   the Secretary must determine the adult’s percentage of care for the child during the care period.

   Determination after revocation

   (2)  If:

   (a)the Secretary revokes, under Subdivision E of this Division, a determination of an individual’s (the adult) percentage of care for a child that was made under section 35A or this section; and

   (b)the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and

   (c)the adult is not a partner of at least one of those other individuals;

   the Secretary must determine the adult’s percentage of care for the child during the care period.

   Percentage of care

   (3)  The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.

   (4)  Despite subsection (3), if section 35C, 35D or 35G applies in relation to the adult, the Secretary must determine the adult’s percentage of care under subsection (1) or (2) in accordance with that section.

2. Relevant also are ss 22(7) and 25 of the Act:

   22  When an individual is an FTB child of another individual

   …

   (7)  If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.

   Note: If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).

   …

   25  Effect of an individual’s percentage of care for a child being less than 35%

   If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.

3. Based on the evidence of the Applicant in particular I find that during the relevant period –which I accept is between 1 March 2017 and 1 March 2018 – the Applicant together with his mother (and his father) looked after his son for most of each day and that the Other Party looked after the child for about 5 hours each day.

4. I find that that was the pattern of care for the child which was established. I did not hear from the Other Party as I have noted.

5. This means that the Applicant and his mother (and his father) had legal responsibility in respect of the child for about 75% of the time but the Other Party for only about 25% of the time.

6. It follows, based on the evidence given to me that the decision under review must be set aside.

7. In reaching that conclusion I have had regard to the two authorities to which I was referred by Mr Noonan, in particular: Barrett; Department of Family and Community Services [1999] AATA 196 and Reece and Secretary Department of Families, Housing, Community Services and Indigenous Affairs and Parsons (Party Joined) [2008] AATA 525. Both authorities were helpful.

8. I have assessed the appropriate figures for care based on the evidence given to me as follows: the Applicant at 40% and Ms Stojanovski at 35% as I accept that she has participated significantly, to that extent, in looking after her grandson.  I am unable to be satisfied of any extent to which the Applicant’s father has helped look after his grandson but it would seem to me to be only occasional.

9. Assessing the Other Party at 25% has the consequence that she does not qualify under the legislation because she does not reach the prescribed 35% figure under s 25 of the Act.

10. For these reasons, I set aside the decision under review and substitute a decision that under the Act the share of the care of the child between the Applicant and the Other Party during the relevant period was 75% to the former (40% as to him and 35% as to his mother) and 25% to the Other Party.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the written reasons herein of Damien Cremean, Senior Member.

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Associate

Dated: 27 March 2019

Date of hearing:

Applicant:

Advocate for the Respondent:

11 February 2019

In person

Mr Tim Noonan
Department of Human Services