Editors --- "Family tax benefit debt: waiver and special circumstances" [2007] SocSecRpr 9; (2007) 9(1) Social Security Reporter, Article 9

• SECRETARY TO THE DFaCS and TABER
• Background
• The issue
• The law
• The evidence
• The decision

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Family tax benefit debt: waiver and special circumstances

SECRETARY TO THE DFaCS and TABER

Decided: 20th November 2006 by N. Isenberg

Background

Taber was paid Family Tax Benefit(FTB) from 2001 to 2005 at the full rate. However, her estranged husband had care of the children at various times from 2003. Centrelink raised debts of $3476.18. The SSAT affirmed the debts but waived repayment on the grounds of special circumstances. The Secretary appealed to the AAT.

The issue

Taber admitted the debts. The issue was whether there were grounds for non-recovery of all or part of the debt. The Secretary contended that Taber’s circumstances were not sufficiently ‘special’ to attract the benefit of the waiver provisions.

The law

As the debt related to FTB payments, waiver in special circumstances is provided for in s.101 of the Family Assistance (Administration) Act 1999.

The evidence

The Tribunal considered the meaning of ‘special circumstances’ by reference to case law. It was found that Taber’s circumstances were ‘special’ in regards to three areas: error; Taber’s abusive estranged husband, and legal costs arising from protracted family law proceedings over the children.

It was found that there were errors by Taber, but the Tribunal found against the Secretary’s contention that her errors could not be taken into account as forming part of the special circumstances of the case. Taber said she was never asked how frequently the children saw their father, or what the arrangements were in respect of the children. She had a diary with that information if it had been requested. She thought that all reasonable parents would permit their children to see the other parent after separation. She did not know this could amount to ‘shared care’. She conceded that she had received letters from Centrelink that she was to advise if ‘the level of shared care you provide changes’, but found this to be meaningless. The concept of ‘shared care’ had never been explained to her. She had responsibility and care of the children and subsequent Family Court orders were that the children were to reside with her and her husband was only to ‘have contact ‘with them. The Family Court orders formalised the arrangement which had been in place since the separation and therefore, as far as she was concerned, she had the ‘care’ of the children, and it was not ‘shared’ with her estranged husband.

The AAT accepted that Taber’s lack of understanding had resulted in her failure to advise Centrelink of several changes to arrangements regarding access, but that these matters could properly be taken into account in determining special circumstances.

It was also found that Taber had been abused by the children’s father and that the costs of the legal dispute between Taber and him could be taken into account as special circumstances.

Other factors that were considered as special circumstances were her financial position, both at the time of the separation and currently, her restricted ability to work and the effect the father had on the psychological well-being of the children.

The decision

The decision was to affirm the decision of the SSAT to waive the recovery of the debt on the grounds of special circumstances.

[I.T.]