Tran and Secretary, Department of Family and Community Services
[2004] AATA 1238
•23 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1238
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/932
GENERAL ADMINISTRATIVE DIVISION ) Re LUONG THANH TRAN Applicant
And
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
First Respondent
DUNG NGOC THAI
Second Respondent
DECISION
Tribunal Senior Member Joan Dwyer Date23 November 2004
PlaceMelbourne
Decision 1. The Tribunal finds that, during the period from 15 December 1999 to 27 January 2000:
(a) Mr Tran and Mrs Thai jointly had legal responsibility for the day-to-day care, welfare and development of their children Anne and Alan, who were in their care;(b) Anne and Alan were dependent children of Mr Tran and Mrs Thai and Mr Tran and Mrs Thai were both qualified for family assistance in respect of those two children; and
(c) The family allowance payable in respect of Anne and Alan for that period should be shared equally between Mr Tran and Mrs Thai.
2. The Tribunal affirms the decision under review.
[sgd] Joan Dwyer
Senior Member
SOCIAL SECURITY – family allowance allocation – decision that applicant and second respondent each entitled to 50 percent of family allowance for two oldest children – period of six weeks in which husband and wife separated but living together with children – no dispute that both parents qualified for family allowance – finding that parents both legally responsible for day-to-day care, welfare and development for two children – children in their care – appropriate that family allowance for six week period be shared equally between parents – decision under review affirmed.
Social Security (Administration) Act 1999
Social Security Act 1991, ss 5(1), 5(2), 831, 838, 869.
REASONS FOR DECISION
Senior Member Joan Dwyer 1. This is an application under s 179(1) of the Social Security (Administration) Act 1999 (“the Administration Act”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made 12 July 2004, which affirmed a decision of a Centrelink Authorised Review Officer (“ARO”) made on 5 April 2004. That decision was to pay Mr Tran arrears of family allowance for the period 15 December 1999 to 27 January 2000, on the basis that during that period he and his wife, from whom he was separated although they were still both living in the former matrimonial home, were each qualified for and entitled to receive 50% of the family allowance payable in respect of their two older children, Anne and Alan. Mr Tran claimed that he is entitled to be paid a greater share than 50%, but as he explained at the hearing, his concern was more about the way that Centrelink had dealt with the issue than about the money.
2. The ARO set aside two decisions made by Centrelink officers. The first decision, dated 15 December 1999, cancelled family allowance payable to Mr Tran in respect of Anne and Alan, on the basis that their mother had care of those children. The second decision was a reconsideration made on 9 March 2004, which decided not to change the original decision.
3. At the hearing, Mr Tran and his former wife, Mrs Thai both appeared and gave evidence with the assistance of a Vietnamese interpreter. Mr S. Meehan, an advocate with Centrelink appeared for the Secretary Department of Family and Community Services (“the Secretary”). The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).
RELEVANT LEGISLATION
4. In the period 15 December 1999 to 25 February 2000, the relevant sections of the Social Security Act 1991 (“the Act”) provided as follows:
5(1) In this Act, unless the contrary intention appears:
…
dependent child has the meaning given by subsections (2) to (9).
…
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.
831(1) Subject to sections 832 to 836, each dependent child of a person is also an Federal Agent child of that person.
838(1) A person is qualified for family allowance if:
(a) the person has at least one FA child; and
(b) the person is an inhabitant of Australia; and
(c) the person’s income for the relevant family allowance period does not exceed the person’s income ceiling; and
(d) the value of the person’s assets does not exceed $410,000.
869(1) If the Secretary is satisfied that 2 people who are not members of the same couple are each qualified for family allowance for the same child, the Secretary is to make a declaration:
(a) stating that the Secretary is satisfied that the 2 people are each qualified for family allowance for the child; and
(b) specifying the share of the family allowance for the child that each of the 2 people is to receive.
5. There is now no dispute that Mr Tran and Mrs Thai were each qualified for family allowance for Anne and Alan in the relevant period. The only issue for determination in this proceeding was the way in which family allowance should be shared between Mr Tran and Mrs Thai. Although there is a third child of the marriage between Mr Tran and Mrs Thai, he is younger and there has never been a dispute about payment of family allowance in respect of him. Thus, I have no jurisdiction to consider issues about him.
6. Section 869 of the Act, as at the relevant dates, provided for family allowance to be shared between two people when they were both qualified for family allowance in respect of a “dependent child”. The effect of s 831 is that family allowance is paid in respect of a “dependent child”. That term is defined in s5(2). By reference to that definition it appears that the matter to be determined in these proceedings is the extent to which Mr Tran was legally responsible for the “day to day care, welfare and development of [Anne and Alan] and the extent to which they were in [his] care”. As I said at the hearing, there was no dispute on the evidence that Anne and Alan at the relevant time were dependents of both Mr Tran and Mrs Thai and were in the care of both of their parents. Both Mr Tran and Mrs Thai were at the relevant time legally responsible for the “day to day care, welfare and development” of both children. Thus, they were both qualified for family allowance in respect of Anne and Alan.
FACTS
7. The following facts are taken substantially from the helpful and comprehensive statement prepared by Mr Meehan, although I have made some additions and amendment. The information is taken from records included in the T documents and evidence at the hearing.
8. Mr Tran and Ms Thai have three children of their marriage, Anne (DOB: 18/01/1994), Alan (DOB: 29/10/1995) and Danny (DOB: 16/1/1998).
9. Mr Tran and Ms Thai travelled to Vietnam on 26 June 1999 with their three children (T3, p17).
10. On 19 August 1999, Mr Tran returned to Australia with Anne and Alan (T4, p18).
11. On 24 September 1999, Mr Tran attended a Centrelink office and was interviewed there. He said he had separated from his wife on 18 August 1999 and lodged a claim for Parenting Payment (Single) and family allowance for the children Anne and Alan. (T6, p22).
12. On 15 December 1999, Ms Thai contacted Centrelink and advised that she at that time had care, custody and control of Anne, Alan and Danny. A Centrelink officer suspended Mr Tran's family allowance payments in respect of Anne and Alan, without making any enquiry of him as to what he said in response to Mrs Thai’s claim that she had care, custody and control of all three children. (T8 Page 24).
13. On 16 December 1999, a Centrelink officer wrote to Mr Tran telling him that he could not be paid family allowance for Anne and Alan “because they are not considered to be your dependants”. (T9 Page 25). Not surprisingly, Mr Tran found that statement to be upsetting.
14. On 17 December 1999, Ms Thai lodged a claim for family allowance for Anne and Alan. She also lodged a questionnaire as to the living arrangements of her and her husband while separated under one roof, (T10, pp26-38 and T11, pp39-43).
15. On 31 December 1999, a Centrelink officer decided to pay family allowance for Anne and Alan to Ms Thai from I5 December 1999. (T13 Page 46-49).
16. After receiving the letter of 16 December 1999 (T9, p25), Mr Tran tried to discuss the decision with Centrelink staff. On 21 January 2000, he contacted Centrelink stating that he had custody of his two older children 14 hours a day, and that he did not understand why family payments to him had been cancelled (T14, 50). There is no explanation as to why Mr Tran’s contacts with Centrelink were not treated as requests for a review of the decision of 15 December 1999 (T8).
17. On 2 March 2000, Mr Tran produced to Centrelink a Family Court Order made 24 February 2000, that Anne and Alan reside with him and have contact with Mrs Thai. He lodged a new claim for family allowance. Mr Tran was granted family allowance from 2 March 2000 (T15, p51). The decision as to the earlier period was not reviewed at that time.
18. On 10 July 2000, the Western Suburbs Legal Service wrote to Centrelink on behalf of Mrs Thai, claiming that she was entitled to arrears of family allowance and sending documents supporting her claim. The T documents also include a copy of an order of the Family Court made 22 August 2000, that until further order Anne and Alan reside with Mrs Thai and have contact with Mr Tran (T20, pp58-60).
19. On 5 June 2002, Mr Tran attended at Centrelink and asked to be paid arrears of family allowance in respect of the time in dispute in these proceedings. He was told that he would need to provide evidence that he had shared care of Anne and Alan at the relevant time (T22, p63).
20. On June 21 2002, the Western Region Health Centre wrote to Centrelink, on behalf of Mr Tran, requesting a review of the decision to cancel his family allowance for the period 15 December 1999 to 1 March 2000. The letter from Western Region Health Centre stated (T23, p64-65):
Mr Tran acknowledges that the amount involved (Family Payment) is not significant, and has been advised that due to the time that has passed and the nature of the legislation back in 1999/2000 the family payment itself cannot be reassessed. His request for a review is in relation to decisions made by Centrelink at the time and his treatment when he has attempted to clarify the reasoning behind decisions. He is seeking a meeting with a senior staff person to explain why Centrelink made the decisions it did at that time.
Mr Tran states the following:
That he and his family holidayed in Vietnam in June 1999, and Mr Tran returned with two of the three children to Australia in August 1999. His wife returned on 28 October 1999 and the third child and the couple lived as a separated couple under the same roof from this time.
Mr Tran reports that he has always been an active, involved parent and he and his wife shared the care of the three children. He also continued to pay all the bills during throughout this period, and he and his wife shared the shopping bills.
21. The letter went on to explain that Mr Tran was upset about the letter of 15 December 1999 because “His honour has been hurt”. He understood the letter to mean that he was an irresponsible father, when it stated that Anne and Alan “were not considered his dependants”. Further, the letter stated that Mr Tran had continued “to provide care for the children and cover bills for the period 16th of December to 22 February 2000 just as he did before the separation”. The letter complained about Mr Tran’s treatment by Centrelink officers, and said that he had felt “angry and disrespected” (T23, p64-67).
22. On 19 May 2003, Centrelink sent Mr Tran a lengthy letter of apology which explained that correct procedures had not been followed at the time his payments of family allowance had been cancelled. The letter acknowledged that Centrelink had an obligation to investigate the care arrangements of the children Anne and Alan, which it had failed to do. The letter also stated that the terminology in the letter had been inappropriate, in stating that Anne and Alan were not considered Mr Tran’s dependents. Centrelink also apologised for the delay in dealing with the issues of concern to Mr Tran (T28, pp22-23).
23. On 11 June 2003 and 13 August 2003, Mr Tran arranged for letters to be sent to Centrelink stating that he was happy with the recent response from Centrelink, but asking more questions about the issue (T31 & 32, pp 78-79). The second letter added (T32, p79);
During this entire process I have not wanted the money that was given to my wife for Family Allowance and Family Tax Payment for Alan and Anne Tran. I have now changed my mind and want Centrelink to take what action is needed to pay me the money for the period 15 December 1999 – 1 March 2000.
That letter also complained about the conduct of one named Centrelink officer.
24. On 15 August 2003, Centrelink sent another letter of apology to Mr Tran and advised that the named officer had been made aware of how Mr Tran felt about his behaviour. Mr Tran was told that the officer concerned had been reminded of his obligation to adhere to Guidelines as to how Centrelink delivers customer service “with respect and courtesy” (T34, p81).
25. On 22 September 2003, Mr Tran lodged a number of documents with a Centrelink in support of his claim to have family allowance paid to him in respect of the period 15 December 1999 to 27 January 2000.
26. On the 16 October 2003, Mrs Thai made a statement in which she said that she had been the full-time carer of Anne and Alan for the period 15 December 1999 to 1 March 2000. Mrs Thai said that if any thing happened at school she was the contact person for emergencies. She also wrote that in January 2000 she and the three children had left the home and moved to a women’s refuge. She said they stayed there until 31 March 2000 (T37, pp122-123). Mrs Thai also lodged a document responding to statements made by her husband. She said that from 27 October 1999, when she returned from Vietnam, she had been the main caregiver for the children. She said she had done the cooking, washing, feeding and clothing of the children, and had attended to their needs on a daily basis. She said she had always supervised them, except when she was overseas. Mrs Thai said that she had supported the children from her Centrelink payments with little financial assistance from her husband, who was working three full days a week.
27. The material lodged on behalf of Mrs Thai included an annexure to an affidavit sworn by her on 16 February 2000. (T37, pp137-143). Mrs Thai stated in paragraphs D, G,H,I and O:
D.In relation to paragraph 7 of the husband’s Affidavit: Although I agree that the husband took some part in caring for one or two of the children when I was exhausted, I deny that he was the main parent responsible for, and who cared for and supervised the children each and every day including preparing their breakfast. I do admit however that the husband would generally be the one with the car and would drive the child Anne to School. I would otherwise be responsible for preparation of the children’s breakfast and clothing for the day. …
…
G.In relation to paragraph 10 of the husband’s Affidavit: Although Anne was mainly driven to School by her father, the father did not otherwise share all other responsibilities for care of the child Anne.
H.In relation to paragraph 11 of the husband’s Affidavit: I agree that the father attended some parent teacher interviews and agree that he has better English skills than I, and accordingly he took on this role. …
I.In relation to paragraph 13 of the husband’s Affidavit: I deny that I did not want to be involved in any of Anne’s schooling and say that my main responsibilities were with the 2 younger children whilst the husband was able to drive Anne to School and alleviate me with some of the burden of caring for Anne.
28. Mr Tran, on 20 February 2004, again produced to Centrelink the Family Court Order stating that until further order Anne and Alan were to live with him and to have contact with Mrs Thai (T40, pp169-172). He also lodged a copy of an affidavit he swore on 7 February 2000 for the Family Court proceedings. In that affidavit, he stated (T40, pp174-9):
4.Following the parties’ marriage until 1996 I worked on a full time basis. The wife was responsible for the children’s care, welfare and development whilst I was at work. I took an active role in caring for the children outside my hours of employment.
5.In 1996 I received a redundancy package from my then employment. The funds received by me pursuant to that package were applied by me for the benefit of the family.
6.I have been in receipt of unemployment benefits since that time. I have supplemented that income by working as a part time cleaner for the past 12 months. My work hours are between 5.00pm and 7.00pm each Monday, Wednesday and Friday.
7.Since ceasing to work, I have been equally responsible in caring for the children and attending to all of their needs. Each morning, I was the parent who cared for and supervised the children and prepared their breakfast for them. … Throughout the day, the wife and I shared all the responsibilities and the care and supervision of the children. However I was responsible for getting the elder two children, Anne and Alan, ready for bed and the wife prepared the younger child, Danny, for bed.
8.Since August 1997 an arrangement arose whereby Anne and Alan slept in bunk beds in my bedroom and Danny slept with the wife in her bedroom. Accordingly, since that time, I was responsible for attending to the needs of Anne and Alan of a night time and getting up to them if they required settling and the wife attended to Danny if he required settling in the night.
…
11.During 1999 I was responsible for delivering Anne to and collecting Anne from school each day. I was responsible for attending parent teacher interviews and other meetings arranged for the parents of children at that school. I was also responsible for monitoring Anne’s progress, particularly with her English language skills.
…
17.Upon the wife’s return to Australia, the wife attended upon Centrelink, advising them that she was responsible for all three children. I received correspondence from Centrelink dated 16 December 1999 advising that my benefits had been cancelled. Centrelink advised me that my benefits were cancelled because they had been informed that the children no longer resided in my care. Centrelink would not tell me who had provided them with that information. Thereafter, the wife commenced to receive the sole parents benefit and family allowance in relation to the three children.
18.In mid December 1999 I received correspondence from solicitors for the wife, Mantello Solicitors, seeking a property settlement and sole use and occupation of the real property. The parties’ had continued to life separately but under the one roof since the wife’s return to Australia on 27 October 1999. The sleeping arrangements which had previously been in place for the children remained in place and I had continued to remain solely responsible for attending to all of Anne’s schooling needs.
29. On 9 March 2004 a Centrelink officer reconsidered the decision not to pay Mr Tran family allowance and decided not to change that decision (T43 pages 184-5)
30. On 5 April 2004, an ARO set aside the decision not to pay family allowance for the children Anne and Alan to Mr Tran in the period I5 December 1999 to 27 January 2000, and decided that arrears of family allowance were payable to him at a shared care rate of 50% (T45, p190).
31. On 12 July 2004, the SSAT affirmed the decision of the ARO. (T2, pp2-16).
EVIDENCE AT THE HEARING
32. Mr Tran said that when his wife took the children to the doctor, as referred to by Dr Bui (T17, p54), he had driven his wife and the children to the doctor and was always in the waiting room, while she went into the surgery. He said his wife had a driving licence but she was anxious about driving to Footscray. He said he also drove his wife and children to the Maternal and Child Health Centre.
33. Mr Tran agreed that the 1999 school year would have finished on or about 15 December 1999. He said that he would not have been driving Anne to school or supporting her reading practice during the school holidays, but he still spent time at home with the children. He said that while he was working two hours a day, three days a week, his wife looked after all three children at home. He said that the rest of the time he and his wife both looked after the children. Mr Tran confirmed that, as stated in his affidavit (T40, p175), Anne and Alan had slept in his room and Danny had slept in his mother’s room.
34. Mrs Thai said that her main activity from the time her first child was born was looking after her children and her household. She said she continued to look after the three children when she and her husband became unhappy in their marriage. She said that at that time he was often out during the day, even when he was not working. She said she thought he left the home to avoid his family who were coming around, hoping to arrange a reconciliation.
35. Mrs Thai also said that, although she had not kept receipts for food, she had bought for the family, as her husband had done. She said she always bought the main household food, as well as doing the cooking, washing and childcare. She said she had also sometimes taken Anne to school and spoken with the Vietnamese teacher aide there.
SUBMISSIONS
36. Mr Meehan submitted that the correct rate of family allowance payable to Mr Tran and Ms Thai in the period I5 December 1999 to 27 January 2000 was 50% each on the basis of their shared care of Anne and Alan. He submitted that the decision under review should be affirmed. He gave an undertaking on behalf of the Secretary that there would be no action taken to recover the 50% family allowance that would then have been overpaid to Mrs Thai in respect of the period 15 December 1999 to 27 January 2000.
FINDINGS
37. I find that both children were dependent on both parents at the relevant time. The Act does not require that family allowance be shared strictly according to the share of daily care each qualified person provides to a child. The criteria for qualification, which are derived from the definition of a “dependent child” in s 5(2) of the Act, require that the child be in the care of the adult, and that the adult have legal responsibility for the “day-to-day care, welfare and development of the young person”.
38. In a matter like this, where, at the relevant time, there were no court orders as to custody, care and control of the children, and where the parents were living separately and apart under the one roof and sharing the parenting responsibilities for the children in question, it will usually be appropriate to specify that each parent receive one half of the family allowance payable. This is not a case where there is any suggestion that either parent was irresponsible or not legally responsible for the children. I find that Mr Tran and Mrs Thai at the relevant time were both good caring parents, legally responsible for the day-to-day care, welfare and development of Anne and Alan. They were both qualified for family allowance, and entitled to an equal share of that allowance.
39. Unfortunately, when it first became apparent that there was a dispute between the parents, Centrelink did not conduct any investigation into the arrangements as to legal responsibility for the childrens’ “day-to-day care, welfare and development”. The payments were transferred from one parent to the other with no investigation and the letter of explanation was insulting to Mr Tran. Centrelink has already apologised to Mr Tran for the way it handled that issue.
40. The clear impression I have gained from reading all the material is that this is a matter where legal responsibility for the “day-to-day care, welfare and development” of Anne and Alan at the relevant time was shared between both their parents, with each parent doing what they were best able to do to care for their children. It seems to me to be exactly the situation where family allowance should be shared equally between the two parents.
41. I do not consider that, in a case like this, it is necessary to look at the precise details of day-to-day care provided by each parent. I consider that would be appropriate if the children spent part of the week with one parent and part with the other. In this matter, the children and both parents shared a home and the parents shared parenting responsibilities.
42. I find from the evidence that both parents did what they could to look after their three children in the best possible way, even though the situation was difficult because the marriage relationship had broken down. It is very difficult to know, in 2004, precisely what tasks were performed by each parent during six weeks at the end of 1999 and the beginning of 2000. But it is not necessary to perform that exercise. I find, as Mr Tran said, in his affidavit of 7 February 2000, that both parents shared the care of the two older children equally. I find that during the day, Mrs Thai primarily looked after all the children at home, but at night Mr Tran had primary responsibility for Anne and Alan. The division of duties between the parents was not different from the arrangement that would have operated, if the parents were still in a marriage like relationship. They each did the best they could to comply with their legal responsibility to provide for their children’s “day to day care, welfare and development”. I find that they shared their responsibility for the two older children during the relevant period. Thus, the appropriate share of family allowance payable to Mr Tran was one half of the allowance payable for Anne and Alan.
43. The decision under review will be affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Joan Dwyer
Signed: Josephine McKay
AssociateDate/s of Hearing 23 November 2004
Date of Decision 23 November 2004
Applicant’s Representative Self
First Respondent’s Representative Mr S Meehan
Second Respondent’s Representative Self
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