TERRY MOORE and and ANNETTE BARTLETT
[2010] AATA 400
•31 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 400
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3898
GENERAL ADMINISTRATIVE DIVISION ) Re TERRY MOORE Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
ANNETTE BARTLETT
Other Party
DECISION
Tribunal Deputy President D G Jarvis
Senior Member K Bean
Date31 May 2010
PlaceAdelaide
Decision The Tribunal affirms the decisions under review. D G Jarvis
(Signed)
Deputy President
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Parenting Payment and Family Tax Benefit – whether mother principal carer – percentage of care for Family Tax Benefit purposes – child in care of each parent for 50 per cent of time – mother principal carer – decision under review affirmed.
Social Security Act 1999 (Cth), ss 5(2), 5(15), 5(18), 5(19) and 5(20)
Social Security (Administration) Act 1999 (Cth), s 68(2)
A New Tax System (Family Assistance) Act 1999 (Cth), ss 22 and 58
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 71, 95, 96, 97 and 101
Re Drake and Minister for immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Thompson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Anor [2009] AATA 29
Re Warne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Anor [2006] AATA 159
REASONS FOR DECISION
31 May 2010 Deputy President D G Jarvis
Senior Member K Bean1. Mr Moore and Ms Bartlett (the applicant and the other party respectively) have a daughter, Taryne, who is now 16 years of age. Mr Moore and Ms Bartlett have not been in a relationship for many years and live separately. Prior to December 2007, their daughter spent most of her time with her mother. However, since that time, she has spent a significant amount of time with each parent. This has given rise to an issue as to precisely how much time she spends with each parent, for the purposes of assessing Ms Bartlett’s entitlement to parenting payment (PP) and the entitlement of both parents to family tax benefit (FTB) in respect of Taryne.
2. On 2 February 2009, a Centrelink officer made a decision that Ms Bartlett had not been the principal carer of Taryne during the period 31 December 2007 to 19 January 2009 and decided to raise and recover a debt against Ms Bartlett arising from an overpayment of PP of $8,765.73. On 29 January 2009, another Centrelink officer made decisions to raise and recover debts arising from overpayments to Ms Bartlett of FTB of $3,534.00 for the period 31 December 2007 to 30 June 2008, and $3,005.52 for the period from 1 July 2008 to 15 December 2008. Ms Bartlett sought review of these decisions, and later an Authorised Review Officer in separate decisions affirmed each of the above decisions.
3. Ms Bartlett then sought review of those decisions by the Social Security Appeals Tribunal (SSAT). In June 2009, the SSAT decided to:
(a)set aside the decision about PP, and substitute its decision that there was no debt as there was no overpayment of PP for the period from 31 December 2007 to 19 January 2009; and
(b)set aside the decisions about the FTB debts and send the matters back to the Families Assistance Office for reconsideration in accordance with directions that:
(i)the shared cared percentage for Ms Bartlett in respect of Taryne is 50 percent for the period from 31 December 2007 to 15 December 2008; and
(ii)that Ms Bartlett’s FTB entitlement should be recalculated on that basis; and
(iii)any resulting overpayment amount of FTB for that period is a debt due to the Commonwealth and should be recovered.[1]
[1] T Docs – Bartlett – T2.
4. On 14 August 2009, Mr Moore sought a review by this Tribunal of the above decisions, giving rise to these proceedings.
Issues
5. The issues for the Tribunal to determine are:
(1)whether Ms Bartlett was the principal carer for Taryne during the period from 31 December 2007 to 19 January 2009;
(2)whether Taryne was an FTB child of Ms Bartlett during the period from 31 December 2007 to 15 December 2008;
(3)whether Taryne was an FTB child of Mr Moore during the period from 31 December 2007 to 15 December 2008;
(4)if Taryne was an FTB child of both parents, the percentage of time during which Taryne was in the care of each parent during the relevant period;
(5)whether there are overpayments of FTB and PP; and if so
(6)whether the amounts are correctly calculated;
(7)whether there are debts due to the Commonwealth; and if so
(8)whether the debts should be recovered in part or in full, or waived or written off.
Legislative Framework
6. The legislative provisions which are most relevant to this matter are ss 5(2), 5(15), 5(18), 5(19) and 5(20) of the Social Security Act 1991 (Cth) (the Act), ss 22 and 59 of the A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act) and ss 71, 95, 97 and 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the FA Administration Act).
7. Sections 5(2), (15), (18), (19) and (20) of the Act provide:
“5(2)Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if:
(a)the adult is legally responsible (whether alone or jointly with another person) for the day‑to‑day care, welfare and development of the young person, and the young person is in the adult’s care; or
(b) the young person:
(i)is not a dependent child of someone else under paragraph (a); and
(ii) is wholly or substantially in the adult’s care.
…
(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.
…
(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.
(20)The Secretary may make the determination even if all the adults have not claimed a social security payment that is based on, or would be affected by, the adult being the principal carer of the child.”
8. Section 22(2) of the FA Act sets out the criteria for an individual to be “an FTB” child under the Act. It relevantly states:
“22 …
Individual aged under 18
(2) The individual is an FTB child of the adult if
(a) the individual is aged under 18; and
(b)the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; and
(c)the individual is in the adult’s care; and
(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.”
9. Sections 22 and 59 of the FA Act also provide for the determination of shared care percentages. These sections relevantly state:
“22(6A) If:
(a)the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, under subsection (2), (3), (4), (5) or (6), an FTB child of more than one other individual; and
(b)one of those other individuals 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 that period; and
(c)that individual is not a partner of at least one of those other individuals;
then the Secretary must determine the percentage of the period during which the child was, or will be, in the care of that individual.
(6B) If the percentage determined by the Secretary under subsection (6A) is not a whole percentage:
(a)if the percentage is greater than 50%—the percentage is rounded up to the nearest whole percentage; and
(b)if the percentage is less than 50%—the percentage is rounded down to the nearest whole percentage.
(6C) For the purposes of subsection (6A), a child cannot be in the care of more than one of the other individuals referred to in paragraph (6A)(a) on any particular day.
(6D) For the purposes of subsection (6A), the Secretary must determine which of the other individuals referred to in paragraph (6A)(a) has the care of the child on any given day having regard to the living arrangements of the child.
Percentage of care at least 35%
(7) If, under subsection (6A), the Secretary determines that a child was, or will be, in the care of an individual for at least 35% of a period, 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.
…
59(1) An individual has a shared care percentage under this section for an FTB child of the individual if:
(a)the Secretary has determined, under subsection 22(6A), a percentage of the period mentioned in that subsection during which the child was, or will be, in the care of the individual; and
(b)that percentage is at least 35% and not more than 65%.
(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 determined under subsection 22(6A)
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.”
10. Section 71 of the FA Administration Act provides for overpayments of FTB being debts due to the Commonwealth. However, ss 95, 97 and 101 of the FA Administration Act each provide for circumstances in which such a debt may be waived or written off.
11. Section 95 of the FA Administration Act provides for write off of a debt and the most relevant parts of that section are as follows:
“95(1) The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.
Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.
(2) The Secretary may decide to write off a debt under subsection (1) if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.”
12. Section 97 provides for a debt to be waived if it has been caused solely by administrative error. Section 101 of the FA Administration Act also provides for waiver of a debt if there are special circumstances as follows:
“101 The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of the family assistance law; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.”
The Evidence
13. We propose first to refer to the oral evidence given at the hearing, before proceeding to address some of the more salient aspects of the documentary evidence before us. Oral evidence was given at the hearing by Mr Moore, his friend Mr Lane, Ms Bartlett and her sister Ms Bolland, and we will discuss the evidence of each of those witnesses in turn.
Mr Moore
14. Mr Moore said that he had lived with Ms Bartlett between 1996 and 2003, when the relationship between he and Ms Bartlett broke down. He said that Taryne had come to live with him in December 2007 and had continued to live with him since then, although she often went to her mother’s. He said that a diary Ms Bartlett had supplied purporting to indicate when Taryne was with her as opposed to with him was not accurate as it suggested that Taryne was with her mother for more time than she actually was. Mr Moore also explained that he had not realised that Ms Bartlett had continued to claim FTB after December 2007, and as he was not claiming the benefit himself at that stage, he had not kept contemporaneous records of when Taryne was with either parent.
15. He said that during the period when Taryne had been living with him, she spent a lot of time with friends as well as occasional nights at her mother’s house. For a while Taryne had been staying out late at friends’ places all the time, however then he “put [his] foot down” and after that she would be home by 9.00 or 10.00 o’clock. He claimed that about 90 per cent of the time she would come back to his place after being with friends, although on some occasions she would go to her mother’s place. As her mother lived close to one of her friends, it was sometimes more practical for her to go from that friend’s place to her mother’s place to sleep. He said that before he put his foot down, Taryne was staying out late at friends’ places approximately two nights per week as well as on weekends, however, he put his foot down in about March 2008.
16. Mr Moore acknowledged that Taryne had gone to Perth with her mother in April 2008, but said that after that she had come back to live with him and remained there since. He said that he had never stopped Taryne going to her mother’s, but Taryne only slept at her mother’s place once or twice every few months. He said that since April 2008, she had only spent the night at friends’ places two or three times in a six-month period.
17. As to other aspects of his involvement in caring for Taryne, Mr Moore said that in the period 2008 – 2010, Taryne had needed to attend the dentist in Adelaide every couple of months and that he and Ms Bartlett would take it in turns to bring her to Adelaide (from Port Pirie) to go to the dentist. As to how Taryne got to school, he said that she would often walk. However, sometimes he would leave work and pick her up from home and drop her to school in his car. He explained that it was necessary for him to do this as he generally started work around 6.00 – 6.30 am. He said that sometimes his sister or her husband would also take Taryne to school. He claimed that her mother would take her to school only about 9 percent of the time.
18. Mr Moore claimed that he and Ms Bartlett had had a private agreement in relation to child support. He said that although this arrangement had recently ceased with Ms Bartlett’s consent, he had previously been paying at least $150 per week in child support in the form of either cash or goods.
19. Under cross-examination, Mr Moore was asked about some statements made by Taryne and contained in the T documents. In relation to a written statement made to Centrelink and signed by her[2], he confirmed that he had taken Taryne to the Centrelink office and asked her to provide this statement. In relation to the last sentence of the statement “I am currently still in my father’s care” he confirmed that he, not Taryne, wrote this. He said that both he and Taryne were guided by the Centrelink staff member as to what to put in the statement.
[2] T docs – Moore – T2, p 4.
20. Mr Moore was also asked about a statutory declaration signed by his daughter on 27 November 2008[3], and confirmed that his daughter was aware of the animosity between her parents when she was asked to sign this.
[3] T10
Mr Lane
21. Mr Lane confirmed that he was a friend of Mr Moore, and stated that to his knowledge Taryne had been living with Mr Moore for at least the last two years. He said that he saw Taryne at Mr Moore’s house about two or three times per month and that Taryne had stated to him that she has “no time” for her mother.
22. Under cross-examination, he stated that he was a very good friend of Mr Moore but bore no animosity towards Ms Bartlett. He also acknowledged that he did not really know how often Taryne stayed at her mother’s place, and nor could he comment on how often she stayed with friends. We therefore found his evidence of little assistance.
Ms Bartlett
23. In her evidence, Ms Bartlett stated that in December 2007, as she was having difficulty managing Taryne, she asked Mr Moore to help her with Taryne. However, she stated that Taryne was still in her care at this stage, was still living at her address and did not go to live with Mr Moore. She said that Taryne spent periods staying with both her and Mr Moore during December and January 2007/2008, and in 2008 spent the majority of her time with the family of one of her friends. However, she continued to come “home” to Ms Bartlett’s address regularly and Ms Bartlett continued to do her washing and ironing. In fact Ms Bartlett said that she continued to do the things she had always done for Taryne, including providing food for her, and trying to make sure she was going to school. She stated she would usually take Taryne to school after getting her out of bed. She said that sometimes Taryne would walk to school but she was usually dropped off.
24. She acknowledged that Taryne sometimes stayed with Mr Moore during 2008 and on these occasions either Mr Moore would take her to school or she would pick Taryne up from Mr Moore’s and take her. If Taryne was not with her, she would often ring her to ask her how she was going to get to school and if there was no other arrangement in place, she would take her. She agreed with Mr Moore that in relation to dental appointments in Adelaide, each of them would take Taryne about half of the time. She said that Taryne had a room, clothes and personal belongings at both her home and Mr Moore’s.
25. In relation to the statements made by Taryne to the effect that she was living with Mr Moore full-time, Ms Bartlett said that she believed her daughter had been coerced and felt pressured to make those statements.
26. Under cross-examination, Ms Bartlett said that she accepted that during the relevant period, she and Mr Moore each had had care of Taryne for about 50 percent of the time. However, she said that she had been the principal carer.
27. In relation to the cessation of child support in relation to Taryne, she said that although she had no specific recollection of this, she would probably have been relieved when she found out this was going to be stopped, as she had never received any child support from Mr Moore and if the Child Support Agency (CSA) pursued this from him, he “harassed” her about it.
Ms Bolland
28. Ms Bolland said that she was Ms Bartlett’s sister and had lived in Western Australia for the last 18 years. She said that she believed that Taryne had spent a significant amount of her time with her mother over the last couple of years. She said this was based upon information she had received not only from Ms Bartlett but also from speaking with their mother and Taryne’s brother Rory, as well as Taryne herself. We attach little weight to this evidence, as Ms Bolland was unable to provide evidence based on her own knowledge or observations.
Relevant Documents
CSA documents
29. Mr Moore tendered into evidence a number of documents produced in response to a summons issued to the CSA, as well as some correspondence he had received from them. These documents included an internal record of conversations between the CSA, Mr Moore and Ms Bartlett in relation to care of Taryne in February and March 2008. Those records indicate that on 27 February 2008, Mr Moore advised the CSA that Taryne had come into his sole care on 14 December 2007. When he was asked when Taryne saw and stayed with Ms Bartlett, he apparently indicated that this occurred whenever Taryne wanted to see or stay with her mother and there was no pattern.
30. The records also indicate that there was a conversation between an officer at the CSA and Ms Bartlett on 25 March 2008, in which the care of Taryne was discussed. However, the substance of that conversation has been redacted from the document produced, for privacy reasons.
31. The records also indicate that as a result of the information provided, the relevant officer made a decision to change the CSA’s records so as to reflect that Mr Moore had sole care of Taryne from 14 December 2007. Consistently with this, a letter was forwarded to Mr Moore on 25 March 2008 advising him that he was no longer required to pay child support from 27 February 2008 in relation to Taryne “because the amount of time Annette cares for them is not enough to receive child support”. Other documentation from the CSA indicates that Mr Moore’s child support liability actually ceased as and from 14 December 2007.
Receipts
32. Included in the T documents are a number of receipts provided by Ms Bartlett relating to various expenses including dental expenses, the purchase of a mobile phone and purchases of clothing. In conjunction with Ms Bartlett’s oral evidence, these appear to indicate that Ms Bartlett purchased various items for her daughter in 2008, including clothing and a mobile phone. They also indicate that Ms Bartlett and Mr Moore each paid half of a dental bill received on 29 January 2008.
School records
33. Also included in the T documents are notices received by Ms Bartlett from Taryne’s school recording attendances at the school by her parents. These indicate that on 24 January 2008, Ms Bartlett attended a school conference in relation to Taryne at which her father was not present. However, both parents were present at a subsequent conference on 26 February 2008[4] and at a further conference on 1 April 2008[5]. Both parents were also present at further conferences on 3 and 31 July[6].
[4] T docs – Bartlett – p 87.
[5] p 89
[6] pp 90 – 91.
34. The Tribunal also notes from these records that a notice of exclusion from school issued to Taryne on 3 June 2008 lists her home address as being both her mother’s address and her father’s, with both addresses being given in full.
Diaries
35. As referred to above, Ms Bartlett provided to the Tribunal diaries compiled by her and recording when Taryne was with her and when she was elsewhere. She explained in her evidence that these were not prepared contemporaneously in the form in which they were tendered, but were compiled from other notes made by her at the time. The diaries covered the period 1 March – 18 July 2008[7] and 18 February – 14 May 2009[8].
[7] pp 96 – 100.
[8] Exhibit TP 2.
36. The Tribunal has scrutinised these records and found that, if they are accepted as accurate, they show that in the relevant period in 2008 Taryne spent 43 nights with her mother, 45 nights with her father and 38 nights with friends, with her whereabouts on 10 nights being unknown. In respect of 2009, Ms Bartlett’s diary suggests that during the relevant period Taryne spent 26 nights with her mother, no nights with her father and 10 nights with friends, with her whereabouts on 40 nights being unknown.
Consideration
Percentage of care for FTB purposes
37. On the basis of the evidence referred to above, which indicates that during the relevant period Ms Bartlett and Mr Moore shared responsibility for Taryne, we are satisfied that she was an “FTB child” of each of them during periods when she was in either of their care within the meaning of s 22(2) of the FA Act. The next question to be determined therefore is the precise percentage of time during which Taryne was in the care of either parent.
38. It has been accepted in other decisions of the Tribunal that it is important in disputed cases to take a “broad brush” approach and “one in which a number of factors or aspects of care may be taken into account”. It has also been pointed out that the Family Assistance Guide (the Guide) suggests reference to nights in care as one approach, but nevertheless allows for flexibility in order to avoid inequitable results.[9]
[9] Re Warne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Anor [2006] AATA 159; Re Thompson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Anor [2009] AATA 29 at [29].
39. It appears to us on the evidence before us that this is an example of a matter where an equitable result can only be reached by taking a “broad brush” approach. On the evidence available to us, no pattern of care has been established such that we could confidently rely upon that pattern to reflect the actual hours or nights spent by Taryne in the care of either Mr Moore or Ms Bartlett. Rather, the picture which emerges on the evidence is a highly fluid and unstable one, whereby Taryne spent some nights with friends, some nights at her mother’s and some at her father’s.
40. Further, it appears that each of her parents was actively involved in caring for Taryne throughout the relevant period, in a variety of ways. We accept Ms Bartlett’s evidence that, even during the periods when Taryne was not staying with her, she continued to provide for her, such as by cooking for her, washing her clothes and so on. We note that it is not disputed that each parent has been equally involved in taking Taryne to the dentist in Adelaide.
41. In relation to the number of nights spent with each parent, it is impossible to entirely reconcile the evidence of Ms Bartlett on the one hand and Mr Moore on the other. The picture which emerges from Mr Moore’s evidence is that Taryne spent the vast majority of nights in the relevant period at his place, albeit sometimes after returning from friends’ places. The evidence of Ms Bartlett in conjunction with her diaries suggests that Taryne spent a similar number of nights with each parent, but also many nights with friends, with many nights being unaccounted for.
42. This evidence could be partially reconciled by a conclusion that, on the majority of nights when Ms Bartlett thought Taryne stayed with friends or did not know where she was, she was in fact staying at her father’s place. However, Ms Bartlett had clearly tried as far as possible to ascertain Taryne’s movements during the relevant period, and she provided relatively detailed evidence as to that matter. Whilst she readily conceded that Taryne did spend a number of nights with Mr Moore (and appeared more willing to make appropriate concessions in this regard than Mr Moore), she gave details of her daughter’s habits and movements which, together with the details provided in the “diaries”, satisfied us that she was in regular contact with her daughter during these periods in her role as a carer, and that the diaries are a reasonably accurate reflection of her daughter’s movements.
43. We have also had regard to the fact that although Mr Moore claimed that he “put [his] foot down” in March 2008 and that Taryne spent fewer nights at friends’ places after that, this is not borne out by Ms Bartlett’s diaries. According to these, Taryne spent 14 nights at friends’ places in March 2008. She spent the majority of April 2008 in Perth with her mother, however she spent 12 nights at friends’ places in May and 12 nights at friends’ places in June 2008, which suggests there was no significant change in the pattern of her movements after March 2008.
44. As we have indicated above, we consider Ms Bartlett’s diaries to be a reasonably accurate reflection of Taryne’s movements. Therefore to the extent Mr Moore’s evidence conflicts with those diaries, we prefer the evidence contained in the diaries. Given the number of nights in the period 18 February to 14 May 2009 for which there is no record in Ms Bartlett’s diary of where Taryne was, we are prepared to accept that on some of those nights Taryne was in fact staying with her father. However, we do not accept that after March 2008, Taryne spent significantly more nights at her father’s place than she had previously. Rather, we are satisfied that in the relevant period, Taryne spent an approximately equal number of nights with each parent, with a significant number of nights being spent with friends.
45. Doing the best we can on the evidence therefore, and having regard to other aspects of parenting as well as the number of nights spent under the roof of either parent, we have concluded that, throughout the relevant period, Taryne was in the care of her father for 50 percent of the time and her mother for the other 50 percent.
46. We note that this conclusion is inconsistent with the conclusion reached by the CSA in March 2008 that Mr Moore had sole care of Taryne at that time. That conclusion was apparently reached after speaking with both parents. However, we have not had access to the record of what Ms Bartlett said to the CSA, and at the hearing before us she was not able to recall what she had said. We are also mindful of her evidence that she had no desire to pursue child support through the CSA as she did not expect this to result in any payment of child support. It is possible that this may have caused her not to dispute what Mr Moore had said to the CSA. In any event, the CSA’s assessment related to only a relatively small portion of the period to which we must have regard. In these circumstances, we have put little weight on the CSA assessment.
Parenting Payment
47. In relation to the payment of PP in circumstances where care is shared equally between two people, we note that the Social Security Guide provides as follows:
“In situations of equal care where only one of the carers is claiming or receiving income support, that person should be determined as the principal carer. If both carers are claiming or receiving income support, the carer who is most in need of a favourable determination should be deemed principal carer.
A decision maker MUST take into account the following factors when deciding which carer is in most need of a favourable determination:
·whether one carer already qualifies as principal carer of another child
…
·whether only one carer would be eligible for PP,
·which carer would receive the higher rate of payment,
·any other sources of income the carers may have, whether actual or potential, including both employment and investment income,
·the asset levels of each carer.
…
The following factors MAY be taken into consideration by the decision maker, if further information is required to make the determination:
·the expenses of each carer
…
·workforce experience, education levels and future employment prospects of each carer,
·the duration that each carer has been on income support and their principal carer status during this time. If there are no substantial differences between the parties, then generally the determination should be favoured which maintains the ‘status quo’, and
·any other factors considered relevant by the decision maker.”
48. We note that it is well established that the existence of an applicable government policy is a relevant factor for the Tribunal to take into account and an “unobjectionable” policy should generally be taken into account in the interests of consistency.[10]
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.
49. As we have determined that the care of Taryne was divided equally between Ms Bartlett and Mr Moore during the relevant period, and only Ms Bartlett has claimed PP, consistently with the policy set out in the Guide, we consider that she should be regarded as the principal carer for the purposes of payment of PP. We should add that, even if Mr Moore had also claimed PP, having regard to the other relevant matters referred to in the Guide including the fact that Ms Bartlett was the principal carer of Taryne prior to December 2007, we are satisfied in any event that Ms Bartlett should be regarded as the “principal carer” of Taryne for the period 31 December 2007 to 19 January 2009.
Has Ms Bartlett been overpaid FTB?
50. During the period under consideration, from 31 December 2007 to 15 December 2008, Ms Bartlett was paid FTB on the basis that she had 100 percent
care of Taryne. As set out above, we have concluded that she only had 50 percent care of Taryne during that period and it follows that this issue will need to be remitted to the respondent for calculation of the resultant debt.
51. As we anticipate that she will have a debt as a result of our finding that she had 50 percent care of Taryne rather than 100 percent, it is appropriate that we proceed to consider whether there are any grounds upon which that debt should be waived or written off.
Should any resulting debt be waived or written off?
52. As outlined above, s 95 of the FA Administration Act provides for write off of a debt on the basis that it cannot be recovered, s 97 provides for waiver of a debt if it has arisen solely as a result of administrative error, and s 101 provides for waiver if there are special circumstances providing that the debt has not arisen as a result of a false statement or representation, or a failure to comply with the Family Assistance Law.
53. On the evidence before us, we are not satisfied that the debt is irrecoverable or that Ms Bartlett has no capacity to repay the debt. Accordingly, we do not consider that the debt should be written off pursuant to s 95. Nor are we satisfied that the debt has arisen solely as a result of administrative error. Rather, the debt has arisen because Centrelink was not made aware that Ms Bartlett did not have care of Taryne for 100 percent of the time during the relevant period.
54. In relation to the possible application of s 101, we consider that the debt arose at least partly as a result of Ms Bartlett failing to comply with a provision of the Family Assistance Law, namely s 28 of the FA Administration Act, which requires a person to inform Centrelink if anything which has happened or is likely to happen and which will affect their eligibility for FTB. Therefore the debt cannot be written off pursuant to s 101, regardless of whether there are special circumstances.
55. It follows that any resulting debt due to the Commonwealth as a result of our findings set out above must be recovered.
Conclusion
56. For the reasons given above, we agree with the conclusions of the SSAT that:
(a)in the period 31 December 2007 to 15 December 2008, Taryne was in the care of each of her parents for 50 percent of the time;
(b)Ms Bartlett’s entitlement to FTB during that period should be re-calculated accordingly;
(c)any resulting overpayment of FTB for that period is a debt due to the Commonwealth and should be recovered;
(d)Ms Bartlett was the principal carer of Taryne in the period 31 December 2007 to 19 January 2009 and therefore there has been no overpayment of PP.
Decision
57. The Tribunal affirms the decisions under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President
D G Jarvis and Senior Member K BeanSigned:
…….. (Signed) ……..
AssociateDate/s of Hearing 31 March 2010
Date of Decision 31 May 2010
Applicant In person
Other Party By video link
Advocate for the Respondent Mr C Visser
Solicitor for the Respondent Centrelink Advocacy Branch
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