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

[2015] AATA 507

TKJN and Secretary, Department of Social Services (Social services second review) [2015] AATA 507 (14 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6189
Re	TKJN
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	ZBBC
OTHER PARTY

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	14 July 2015
Place	Brisbane

The decision under review is varied by deciding that the applicant had 100% care of the child from 20 August 2013; the decision under review is otherwise affirmed.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – FTB – percentage of care – decision varied

LEGISLATION

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

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

14 July 2015

INTRODUCTION

1. The applicant seeks review of a decision of the Social Security Appeals Tribunal (“SSAT”) in relation to the percentage of care that she and the other party had of their child during the period of 24 June 2013 to 16 October 2013 (“the relevant period”) for the purposes of family tax benefit (“FTB”). 

2. On 4 November 2014 the SSAT set aside a decision of an Authorised Review Officer (“ARO”) and substituted a new decision that from 24 June 2013 to 16 October 2013 the other party provided 56% of the care of that child.

   PRIOR DECISIONS

3. From 20 February 2012 until 30 June 2012 the applicant and the other party had a shared agreement. Under that agreement the applicant had 65% care of the child and the other party had 35% care of the child.

4. On 21 March 2013 the applicant notified the Department that she then had 44% care of the child and that the other party had 56% care of the child. The applicant then also stated that this change of care commenced on 11 February 2013. On 21 March 2013 the other party was contacted by the Department; he advised that he agreed that this change of care occurred on 11 February 2013.

5. On 15 October 2013 the applicant notified the Department that she then had 100% care of the child from 20 August 2013. The applicant also lodged an FTB claim form which she had signed on 9 October 2013 which provided this information. On 19 October 2013 the Department requested the other party provide information regarding the applicant’s claim she had 100% care of the child from 20 August 2013. On 30 October 2013 the other party provided a number of documents and stated that the applicant had commenced 100% care of the child on 16 October 2013 and not 20 August 2013. The applicant in turn provided a number of documents after she had discussions with an officer of the Department on 6 November 2013.

6. On 23 June 2014 a decision was made that before 16 October 2013 the applicant did not have 100% care of the child. On 13 August 2014 an ARO made a decision that the shared care percentage of the child of the applicant was 44% from 24 July 2013 to 19 August 2013, with 100% care commencing from 20 August 2013. On 24 November 2014 the SSAT made a decision that from 24 June 2013 to 16 October 2013 the other party had 56% care of the child.

   LEGISLATION

7. This application is governed by the A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”).

8. There is no issue that the child comes within the definition of an “FTB child” in s 22 of the Act.

9. Where a child is an FTB child of more than one person who are not members of the same couple, s 59 of the Act provides the amount of FTB payable to each person depends on the shared care percentage of each person.

10. The determination that was in place prior to the notification by the applicant on 9 October 2013 was that the applicant had 44% care and the other party had 56% care of the child.

11. Section 35P of the Act requires that a determination must be revoked if there is a change to the individual’s shared care percentage, and this percentage would alter the percentage range the individual was currently contained within.

    CONSIDERATION

12. There is no dispute that the applicant now has 100% care of the child; what is in issue is the date that percentage of care commenced.  The applicant maintains that her care commenced before 20 August 2013. However, the other party contends the relevant commencement date is 16 October 2013.

13. At the commencement of the hearing I raised with the parties the question of the appropriate care period. I did this because the reasons of the SSAT indicated (at [14]) that the issue in dispute is limited to the period of 20 August 2013 to 16 October 2013. However, the decision of the SSAT operated for the period of 24 June 2013 until 16 October 2013. At the hearing I indicated that it was appropriate in my view to consider the period of 20 August 2013 to 16 October 2013. The reason why it is fair in my view for that period to be considered is because the FTB claim form completed by the applicant on 9 October 2013 indicates that the date that the “current care arrangement started” was 20 August 2013. The applicant who appeared by telephone and who gave evidence on affirmation verified that she had 100% care of the child from that date.

14. The other party contended that the change in care occurred on 16 October 2013. The other party elected not to give evidence but relied upon his submission of 6 March 2015 and other documents. That submission was filed in this Tribunal on 17 March 2015 and admitted into evidence as Exhibit B. In that submission the other party contends the child would normally stay with him during the week and would stay with the applicant on the weekends.

15. This Tribunal has to determine when the change in care took effect. This is a matter where the parties have not kept a diary in relation to the care of the child for the relevant period. I have decided to give greater weight to the evidence of the applicant which was verified on affirmation. I find that the current care arrangement started on 20 August 2013.

    DECISION

16. I vary the decision under review by deciding that the applicant had 100% care of the child from 20 August 2013; the decision under review is otherwise affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 14 July 2015

Date(s) of hearing	15 May 2015
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor
Other Party	In person