Editors --- "Family tax benefit: percentage if care;person affected by a decision" [2013] SocSecRpr 5; (2013) 15(1) Social Security Reporter, Article 5

• SECRETARY TO THE DFaHCSIA and CONFIDENTIAL
• Background
• Issues for determination
• Discussion
• Formal decision

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Family tax benefit: percentage if care;person affected by a decision

SECRETARY TO THE DFaHCSIA and CONFIDENTIAL

(2013/02)

Decided: 8th January 2013 by R.G. Kenny

Background

Under Family Court orders from 2009 the mother/father of the child T had a percentage of care of 74%/26% respectively. In August 2011, the mother advised Centrelink that, from 2 July 2011, T had been in her care for 100% of the care period. On 22 September 2011, Centrelink changed the care percentages to 100%/0% in favour of the mother. The father then sought review and on 11 January 2012 an authorised review officer changed the decision so that the percentage of care reverted to 74%/26% from 2 July 2011 and to 100%/0% from 8 October 2011. This decision was affirmed by that authorised review officer on 17 February 2012 and again on 24 February 2012 after the mother sought review of the decision. The mother sought review with the SSAT and the father was joined as a party to those proceedings. On 9 May 2012 the SSAT set aside the decision and sent it back to Centrelink for reconsideration on the basis that the father was not entitled to seek review of the care percentage decision of 22 September 2011 because he had not been in receipt of family tax benefit (FTB) when his care percentage was 26%. The Secretary appealed to the AAT on the basis that the SSAT’s interpretation of the term ‘affected by’ was too narrow.

Issues for determination

There were two issues for determination: firstly whether the father and/or mother were persons ‘affected by’ the Centrelink determinations of, respectively, 22 September 2011 and 24 February 2012; secondly the correct care percentages that ought to apply for the periods from 2 July 2011 to 7 October 2011 and from 8 October 2011.

Discussion

The AAT considered s.109A(1A) and s.111(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘the Family Assistance Act’) which provided that review of a decision may be sought by a person ‘affected by’ the decision. They examined the amendments made by theChild Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Cth) (the Amending Act) which confirmed that a determination about child care percentages for FTB purposes affected the child care percentages for the purposes of assessing a person’s child support liability.

The AAT was satisfied that the effect of the Amending Act was such that the care percentage determinations made on 22 September 2011 and 24 February 2012 for FTB purposes also applied to child support liability. As such, while the change in relation to FTB had no effect, because the father’s percentage of care was less than 35%, the change in percentage of care impacted directly on his child support obligations. The AAT discussed the effect of s.80A of the Child Support Registration and Collection Act 1988 (Cth), under which the father was entitled to lodge an objection to the care percentage decision made on 22 September 2011, and the mother was entitled to lodge with the SSAT an objection to the care percentage decision made on 24 February 2012. Because of the legislatively deemed consequence that a decision in relation to child care percentage for FTB purposes is effective for child support obligations, the AAT found that the father was a person ‘affected by’ the Centrelink decision of 22 September 2011 and that the mother was a person ‘affected by’ the authorised review officer’s decision of 24 February 2012.

The AAT then considered the issue of correct child care percentages. The Tribunal found it was not disputed that from 2 July 2011 the mother retained 100% of the care of T without the consent of the father and did so without taking appropriate steps to have the Court Order varied. They found that T remained an FTB child of the father for the purposes of s.23 of the FA Act which dealt with where an FTB child ceases to be in an individual’s care without consent. The AAT found that the father’s actions, including making a contravention application with the Family Court and seeking mediation with Relationships Australia, constituted ‘reasonable steps’ to have T again in his care within the meaning of s.23 (1)(c) of the Family Assistance Act. The AAT found that Centrelink correctly determined that the care percentages were 74%/26% for the mother / father respectively for the period from 2 July 2011 to 7 October 2011, and 100%/0% for the period from 8 October 2011.

Formal decision

The Tribunal set aside the decision of the SSAT and substituted its decision that the father was a person affected by the decision of the authorised review officer dated 22 September 2011; that the mother was a person affected by the decision of the authorised review officer 24 February 2012; and that the care percentages for the mother and the father were 74% and 26% respectively for the period from 2 July 2011 to 7 October 2011 and 100% and 0% respectively for the period from 8 October 2011. A confidentiality order was made under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to protect the identities of the respondent and other party.

[K.W.]