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

[2004] AATA 1123

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1123

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/139

GENERAL ADMINISTRATIVE DIVISION		)
Re		CASSANDRA ZENNER

Applicant

And

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

  Respondent

DIANNE DE JAGER

  Second Respondent

DECISION

Tribunal Ms Linda Savage Davis

Date28 October 2004

PlacePerth

Decision  The Tribunal affirms the decision under review.

............(sgd L Savage Davis)..............

Member  

CATCHWORDS

The correct percentage of family tax benefit payable to the Applicant -  minute of Consent orders- reasonable steps to have contact

A New Tax System (Family Assistance) Act1999 s 21, s 22, s 23, s 25, s 59

REASONS FOR DECISION

28 October 2004 Ms Linda Savage Davis     

1.      This is an application by Ms Cassandra Zenner (the applicant) for a review of a decision made by the Social Security Appeals Tribunal (the SSAT) dated 7 April 2004 that Ms Dianne De Jager (the second respondent) be paid family tax benefit (FTB) at the rate of 24% in respect of the child Jesse McLeary for the period 14 May 2003 to 27 July 2003. The SSAT decision set aside a decision made by a Centrelink officer on 24 September 2003 and affirmed by an authorised review officer on 12 December 2003, not to pay FTB to the second respondent in respect of Jesse McLeary for the period 14 May 2003 to 27 July 2003.

2.      At the hearing of 28 September 2004 the applicant represented herself and gave oral evidence to the Tribunal. The respondent was represented by Mr Chris Ward. The second respondent represented herself and spoke to the Tribunal by telephone.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) numbered T1-T87, as well as the Respondent’s Statement of Facts and Contentions lodged with the Tribunal on or about 15 July 2004.  

BACKGROUND

4.        Jesse McLeary (Jesse) is the son of the Cassandra Zenner and David McLeary.  Dianne De Jager is David McLeary’s partner. The Minute of Final Orders dated 30 January 2002 record that Jesse is to live with his father, David McLeary (Mr McLeary) and that his mother, the applicant, is to have reasonable contact (T47). On the basis of this arrangement the second respondent was paid FTB at the rate of 76% and the applicant 24%. On 15  May 2003 Ms Zenner advised Centrelink that Jesse was in her care. On 16 May 2003 Mr McLeary advised Centrelink that Jesse had since 14 May 2003 been in the fulltime care of the applicant.(T7)  Ms Zenner then lodged a claim for FTB at 100% and a decision was made by Centrelink to pay her 100% FTB from 14 May 2003. On 6 June 2003 the second respondent queried the rate of FTB being paid to the applicant. On 28 July 2003 Jesse returned to the care Mr McLeary and the second respondent. Ms De Jager requested that she be paid FTB at the rate of 24% for the period Jesse had been in the care  of his mother on the basis that during that period the arrangements under the Minute of Final Orders had in fact just been reversed. In a decision dated 24 September 2003 Centrelink decided not to pay any FTB to Ms De Jager. This decision was affirmed by an ARO on 12 December 2003. On 7 April 2004 the SSAT set that decision aside and substituted its decision that Ms de Jager was entitled to be paid FTB at  the rate of 24% in respect of Jesse for the period 14 May 2003 to 27 July 2003. On 22 April 2004 Ms Zenner lodged an Application for Review with the Tribunal.

LEGISLATION

5. This issue to be considered is what is the correct percentage of FTB payable to the applicant for the period 14 May 2003 to 27 July 2003. The relevant legislation is contained in sections 21, 22, 23, 25 and 59 of A New Tax System (Family Assistance) Act 1999 (the Act). These sections provide;

“21(1)  An individual is eligible for family tax benefit if:

(a)the individual has at least 1 FTB child (see section 22 and later provisions); and

(b)the individual:

(i)is an Australian resident; or

(ia)is a special category visa holder residing in Australia; or

(ii)satisfies subsection (1A); and

(c)the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.

22 (1)   An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

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.

(3)       The individual is an FTB child of the adult if:

(a)the individual is aged under 18; and

(b)a family law order or registered parenting plan is in force in relation to the individual; and

(c)under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the individual is supposed to have contact; and

(d)the individual is in the adult’s care; and

(e)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

PLEASE INSERT S23(1)      

25(1)    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, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); 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)the Secretary is satisfied that the child was, or will be, in the care of that last‑mentioned individual for less than 10% of that period;

the child is to be taken, despite that subsection, not to be an FTB child of that last‑mentioned individual for any part of that period.

(1A)     If:

(a)the Secretary is satisfied that 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, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); 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)the Secretary is satisfied that the child was, or will be, in the care of that last‑mentioned individual for not less than 10%, but less than 30%, of that period; and

(d)that last‑mentioned individual, by written declaration given to the Secretary, waives the individual’s eligibility for family tax benefit in respect of the child for some or all of the days in that period;

the child is to be taken, despite that subsection, not to be an FTB child of the last‑mentioned individual on any day covered by the declaration.

(1B)     If:

(a)the Secretary is satisfied that 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, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); and

(b)the Secretary is satisfied that, if one of those other individuals was to make 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, the Secretary would be satisfied that the child would have been, or would be, in the care of that individual for not less than 10%, but less than 30%, of that period; and

(c)that last‑mentioned individual, by written declaration given to the Secretary, waives the individual’s eligibility for family tax benefit in respect of the child for some or all of the days in that period;

the child is to be taken, despite that subsection, not to be an FTB child of the last‑mentioned individual on any day covered by the declaration.

(1C)If an individual has given the Secretary a written declaration under subsection (1A) or (1B), the individual may, by further notice in writing given to the Secretary, revoke the declaration with effect from a specified day, not being a day earlier than the date of the revocation.

(1D)A written declaration referred to in subsection (1A) or (1B), or a revocation of such a declaration, must be made in a form and manner required by the Secretary.

(2)For the purposes of this section, a child cannot be in the care of more than one of the other individuals referred to in subsection (1), (1A) or (1B) on any particular day.

(3)For the purposes of this section, the Secretary must determine which of the other individuals referred to in subsection (1), (1A) or (1B) has the care of the child on any given day having regard to the living arrangements of the child.

59  Secretary may make determination where individual is FTB child of 2 people who are not members of the same couple

(1)       If the Secretary is satisfied that:

(a)an individual is an FTB child of an individual (person A); and

(b)the FTB child is also an FTB child of another individual who is not person A’s partner;

the Secretary may determine the percentage that is to be person A’s percentage of family tax benefit for the child.

(2)If the FTB child is one of 3 or more FTB children who were born during the same multiple birth, the Secretary may specify in the determination under subsection (1) the manner in which multiple birth allowance under Division 2 of Part 5 of Schedule 1 is to be dealt with.

(3)Without limiting subsection (2), the Secretary may specify that the whole of the multiple birth allowance is to be paid to one of the 2 individuals involved.”

Applicant’s Evidence and Submissions

6.        The applicant told the Tribunal that from 14 May to 27 July 2003 Jesse was in her care full-time. This was supported she said by the paperwork, in particular point 20 of the Respondent’s Statement of Facts and Contentions that stated:

“On 10 September 2003 a decision was made not to pay Ms De Jager FTB for Jesse during the period 14 May 2003 to 28 July 2003 because she had advised Jesse had left her care permanently, a cancellation letter was sent on 16 May 2003 and Ms Zenner said there was no intention to reverse the existing court order to allow Ms De Jager 24 % FTB (T66/143)”.

7.        The applicant said the suggestion that the police or Family and Community Services came on more than one occasion was false. The police did come once on 20 June 2003 but left when told she was Jesse’s mother. She said Jesse had come into her care because his father and the second respondent didn’t want him. When he came to live with her full-time the applicant told them that Jesse could visit them and that it would be a reversal of the existing Minute of Final Orders dated 30 January 2002 (T47/87-89). The applicant said that although she said this, it was not the truth. She said in the first and only telephone discussion she had with the second respondent and Jesse’s father some 4 days after Jesse came to live with her she told them she was seeking a change of contact orders and till they were in place they could have no contact with Jesse. The applicant said the reason she did this was because she believed if Jesse had contact with them he would not be returned to her. She then typed up a new Minute of Consent Orders (T47/95-96). The earliest date she could get at the Family Court was in July 2003 by which time Jesse had left her care and so they were never finalised. The applicant said she returned Jesse because he missed his grandmother so much. She made the decision about 20 July 2003. The applicant said she dropped him off at a roadhouse in Upper Swan on 27 July 2003 and he was collected by his father and the second respondent. She currently has no contact with Jesse.

8.         The applicant said she was contacted by Jesse’s grandmother about one month after Jesse came to live with her. This was following the death of Ms De Jager’s baby, Jesse’s half sister. She said that that they wanted Jesse to have photos with his dead baby sister and to see her which she refused because she did not think it was suitable. The applicant denied she ever agreed that Jesse could be picked up by his grandmother to attend the funeral. When Jesse’s grandmother came to the house to pick him up she had been hospitalised for the day because of both the stress of her pregnancy and the demand that Jesse see his dead sister. Jess was not at the house when his grandmother arrived. The applicant told the Tribunal she was also asked if Jesse could spend a long weekend with them but it was too short notice. Jesse spoke to his father every Wednesday night at 6.30pm. The applicant could not recall being contacted to request that Jesse be allowed to visit the second respondent and his father on either the first or second weekend.

9.         The applicant told the Tribunal that during the period 14 May to 27 July 2003 the only child living with her was Jesse until her daughter was born on 2 July 2003. When she went to hospital to have her daughter Jesse stayed with her brother and sister in law. For the remainder of her 4 day stay in hospital her then partner, Mr James Heal looked after Jesse.

10.      The applicant submitted that up until now Centrelink has rejected the second respondent’s request to be paid any FTB for the period in question. This had been the decision on 3 occasions until the SSAT changed the decision. She did not believe it was fair that the second respondent should receive money for a child they did not see, or actively try or exhaust all avenues to see, for the entire period he was with her. The police had only contacted her once and no evidence had been produced to support the claim that attempts had been made to have access to Jesse. The applicant referred the Tribunal to the statement signed by herself that records an agreement between herself and Jesse’s father received by Centrelink on 21 May 2003 in regard to arrangements for Jesse. She submitted that on the basis of this Centrelink told her she would get 100% until the second respondent made a claim.

First Respondent’s Submissions

11.      Mr Ward referred the Tribunal to the Statement of Facts and Contentions filed on behalf of the first respondent, in particular point 17 of the Contention that states;

“The Tribunal needs to decide whether Ms Zenner should be paid FTB for Jesse at the rate of 100% for the period 14 May 2003 to 27 July 2003 when Jesse was totally in her care, or whether it was the intention of the parties to reverse the court order and Mr McLeary and Ms De Jager took reasonable steps to recover Jesse and are entitled to 24% FTB for Jesse for such period, or such other rate as the Tribunal may determine.”

Second Respondent’s Submissions

12.      The second respondent submitted that the agreement was that the existing contact orders were to be reversed. The applicant herself had agreed she had said this was the case and also agreed that she had lied and subsequently had prevented the second respondent from having contact with Jesse. She submitted the applicant had agreed that Jesse could attend the funeral for his step-sister and it was for this reason that his grandmother went to collect him. This led to the second respondent and Jesse’s father contacting the police at Ballajura. They rang Jesse every week but their attempts to have contact with him were denied.

Consideration of Issues and Decision

13. In reaching a decision the Tribunal took into account the oral and documented evidence, the submissions and relevant legislation. It is not in dispute that Jesse is an FTB child in accordance with s 22(2) of the Act. By an order of the Family Court of Western Australia Mr McLeary was granted sole responsibility for the day to day care and welfare of Jesse and Ms Zenner was to have reasonable contact. On the basis of these orders Centrelink paid the second respondent FTB at a rate of 76% and the applicant received the remaining 24% in accordance with s 59 of the Act.

14.       On 16 May 2003 Centrelink recorded that Mr McLeary attended “to advise Jesse had left his care from 14 May 2003 to return to full time care of mother”.  The Centrelink record notes that he will provide orders from Family Court as soon as possible (T7/17; T55/121).

15.       On 21 May 2003 Centrelink received a hand written statement signed by the applicant, but not apparently signed by Mr McLeary or the second respondent, that states as follows (T9/23);

“1        The child Jesse J.P. McLeary to live with his Mother for a trail (sic) time of 12 months.

2        One week-end per month/2 phone calls. School holidays with Father in 2003 (2 weeks) until 2004 when school Order’s start.

3        Xmas, birthday, Mother/Father’s day as stated in Orders

4         These are the only parts to change (paragraph 1 & 2) otherwise Orders stay as are! Apart from below

5         Added to Orders child is to not to be placed (sic) in an environment or contact with his Uncle William Farelley (Billy) and all medical to be disclosed. Grandparent allowed contact.

The above to be finalised on phone conference with family courts.

This is only verbal agreement between David McLeary and Ms Cassandra Zenner.”

16.       The applicant referred the Tribunal to new orders she subsequently prepared but that never were finalised because Jesse returned to his father’s full time care after approximately 10 weeks in her care (T47/95-96).  As such they have no bearing in this matter.

17.       The applicant has admitted to the Tribunal she lied to the second respondent when she told her the existing Court orders would be reversed.  Her evidence that she declined the request for Jesse to attend his stepsister’s funeral because she believed it was inappropriate, and to the visit for the long weekend because she did not have adequate notice, contradicts her stated position that Jesse was to have no contact with his father and the second respondent until the Family Court orders were changed under any circumstances.

18.       The Tribunal believes that the existing orders, that the applicant led the second respondent to believe were reversed when Jesse came into her care, provide the only substantial basis on which to decide this matter.  The applicant’s evidence shows her to have misled the second respondent.  The Tribunal does not accept that the second respondent then in effect accepted that in fact she and Jesse’s father were to have no contact.  The applicant herself agreed the police visited her on 20 June 2003. The visit by the police on at least one occasion directly concerned Jesse and whilst there is no evidence before me of the precise reason the police attended I think it is not unreasonable to surmise that it was in relation to the whereabouts of the child. The applicant herself admitted she had no intention of complying with a reversal of the orders of 30 January 2002. The Centrelink file note of 16 May 2003 that records that Jesse has returned to the fulltime care of his mother has led Centrelink to assume that will result in no other person being entitled to FTB. This was not correct as day to day care of a child does not necessarily result in only one person receiving FTB as was the case when Jesse was in the day to day care of the second respondent and the applicant received 24% of the FTB.

19. The Tribunal is satisfied that reasonable steps were taken in accordance with s 23(1)(c) of the Act. The Tribunal accepts that the visit of the police was in relation to the child, that attempts were made, as admitted by the applicant, by the second respondent and Jesse’s father to have him visit on a number of occasions and attend his step sister’s funeral. The Tribunal therefore finds the second respondent is entitled to be paid a rate of 24% of FTB in respect of Jesse for the period 14 May – 27 July 2003 and therefore affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Linda Savage Davis

Signed:         ........(sgd V Wong)...................................
  Associate

Date/s of Hearing  28 September 2004
Date of Decision  28 October 2004
Counsel for the Applicant         In person
Counsel for the Respondent     Chris Ward
Solicitor for the Respondent     Service Recovery Team, Centrelink
Counsel for the Joined Party     In person