Cossart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 879 (13 November 2009)

Last Updated: 24 November 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/6017

GENERAL ADMINISTRATIVE DIVISION		)
	Re		IAIN COSSART

Applicant

	And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent
	And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Second Respondent
	And	TAMMY COSSART Third Party

DECISION

Tribunal

M J Carstairs, Senior Member

Date 13 November 2009

Place Brisbane (heard in Cairns)

Decision

The Tribunal affirms the decision under review as it relates to Tammy Cossart’s family tax benefit and parenting payments in the period 31 January to 20 February 2007, and varies the decision under review as it relates to the family tax benefit in the period 12 April to 5 June 2008, to provide that Iain Cossart was entitled to 17% of family tax benefit and Tammy Cossart to 83%.

....................[sgd]..........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – shared care – reasonable steps to regain care – pattern of care – decision under review affirmed

A New Tax System (Family Assistance) Act 1999 (Cth), s 22, 23, 59

Re Nowicz and Secretary Department of Family and Community Services [2001] AATA 628; (2001) 33 AAR 337

Wade v Secretary Department of Family and Community Services [2004] FCA 1660

REASONS FOR DECISION

13 November 2009

M J Carstairs, Senior Member

1. Iain and Tammy Cossart are the parents of two children in respect of whom Centrelink had paid family tax benefits (FTB) based on estimations of percentages of shared care between the parents.

ISSUES

2. The dispute now before me relates to two decisions, referable to two discrete periods during which FTB was paid to the parents:

• the first was some three weeks in January/February 2007 when the children came into Mr Cossart’s care; and
• the second period was from April to June 2008, and in this period the parents disagree on the percentages of FTB that they each ought to be paid.

BACKGROUND

3. It seems that Mr and Mrs Cossart’s marriage broke down in about September 2006. However for some time thereafter, Mr Cossart intermittently returned to the family home and continued caring for the children in that setting. One such occasion was about the end of 2006 while Mrs Cossart was recovering from surgery.
4. Mr Cossart had first indicated to Centrelink after the breakdown of the marriage that he would be waiving his rights to FTB[1]. But later he made a claim for a share of the FTB. Mr and Mrs Cossart have framed different agreements concerning their shared care for the children; have provided these to Centrelink; and have varied these agreements from time to time.
5. Section 59(1) of the A New Tax System (Family Assistance) Act 1999 (“the Act”) provides for FTB to be shared between two people:

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.

6. The Act does not explain how a person’s percentage of FTB for the child is to be determined. However, Centrelink has formulated policy provisions, to provide some guidance on the range of situations that can arise.
7. Apart from the more general provisions dealing with who will be paid FTB payments, the Act also deals with circumstances (such as arose here in January 2007) when Mr Cossart kept the children in his care, and Mrs Cossart took steps to have the children returned to her.
8. Reference must be made to the legislation in that regard. The general qualification provisions for FTB are to be found at s 22 of the Act which provides:

22.(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.

9. There is no question that the children were FTB children of Mr and Mrs Cossart. However, where children leave the care of an adult without the adult's consent, FTB can still be paid to that adult for up to 14 weeks beyond the date where the care ceased. This is outlined in s 23 of the Act as follows:

23.(1) This section applies if:
(a) an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3) (including that subsection in its application by virtue of subsection 22(7)); and
(b) an event occurs in relation to the child without the adult's consent that prevents the child being in the adult's care; and
(c) the adult takes reasonable steps to have the child again in the adult's care.
23.(4) Except as provided in subsection (2), the child cannot (in spite of section 22) be an FTB child of any individual during the qualifying period.
23.(5) In this section:
qualifying period means the period beginning when the child ceases to be in the adult's care and ending at the earliest of the following times:
.... (b) after 14 weeks pass since the child ceased to be in the adult's care;

10. The words of s 23(1) provide that for FTB to continue in payment, the adult must take “reasonable steps” to have the child returned to their care. Where the child has not returned to the adult's care after 14 weeks, the payment of FTB will cease. Centrelink policy guidelines suggest that “reasonable steps” might include notifying the police that the child has been taken from the adult's care without consent, or applying for recovery orders.
11. Mrs Cossart unquestionably had the care of the children before Mr Cossart took them. So the question comes down to whether she took reasonable steps to secure their return.

WERE REASONABLE STEPS TAKEN TO RECOVER THE CHILDREN?

12. It seems that at least for Mrs Cossart, it was quite unexpected when Mr Cossart took the children into his sole care, collecting them from after school care, contrary to an arrangement that he would have them overnight after picking them up from the family home.
13. Mr Cossart says that when he collected the children, he understood that he did so with Mrs Cossart’s consent, the matter having being mutually discussed and agreed between them. Mr Cossart said that immediately before these events, he had been living at the family home and caring for the children while Mrs Cossart recovered from surgery. He generally thought it was best for the children that they remain with him at this time.
14. Mrs Cossart’s evidence was that Mr Cossart had arrived at the after school care centre ahead of her and the children were not there when she got there. She said that later, back at the house, she handed over some of the children’s clothes and favourite toys to Mr Cossart, as she did not want to make a scene which might distress the children. Mrs Cossart said that she was devastated that the children were taken in this way, and recalled Mr Cossart issuing threatening words (which he denies). Mrs Cossart said she went inside the house and telephoned family members and then approached Legal Aid for help.
15. Mr Cossart claimed FTB payments on 2 February 2007, stating that the children were now living with him permanently. At the hearing, Mr Cossart said he was surprised that Mrs Cossart did not, during the first fortnight after he took the children, ask him to return them, and he says that he was confused by her not doing so. Here, I would observe, Mrs Cossart’s account was at odds with Mr Cossart’s. She said that when she telephoned Mr Cossart he would not allow her to speak with the children and the arrangements for a later proposed face to face meeting at a police station broke down.
16. Having heard both Mr and Mrs Cossart on the matter, and having the advantage of their additional written submissions filed after the hearing, I prefer Mrs Cossart’s account. I regard it as entirely plausible that she provided Mr Cossart with a few of the children’s personal items and toys so that the children would be comfortable and not stressed with the events taking place. I do not see this behaviour on her part as amounting to her giving consent to Mr Cossart keeping the children with him. This was contrary to the usual arrangements, whereby the children lived with her, and it is not consistent with “agreement” on her part that she quickly took steps to have the children returned.
17. It is consistent with Mrs Cossart’s version that she quickly applied for Legal Aid (which was granted) and sought the assistance of a social worker. The Social Security Appeals Tribunal referred to the social worker’s letter to Legal Aid noting Mrs Cossart’s evident distress and the actions that she took immediately to recover the children, including contacting police and the Department of Families. In a short period of time, the Federal Magistrates’ Court issued an interim (consent) order dated 20 February 2007, ordering that the children were to live with the mother, and the father was to return them.
18. It seems to me the only available conclusion to be reached on the evidence is that Mrs Cossart must take the benefit of s 23(2) and s 23(5) of the Act, and remained entitled to the FTB (and parenting payment single) in that time because she took reasonable steps to secure the children’s return.
19. The Social Security Appeals Tribunal was quite right to set aside the Centrelink decisions that had raised debts of FTB and parenting payment against Mrs Cossart. Accordingly, I would affirm the Social Security Appeals Tribunal decisions on both accounts.

WHAT IS THE CORRECT PERCENTAGE OF SHARED CARE IN 2008?

20. Things seem to have settled down between the parents thereafter with reference to shared care. Further, final, consent Orders issued on 30 May 2007[2] provided that the parents would have equal shared responsibility for the children, moving progressively to equal time caring for the children.
21. I have no doubt that Mr Cossart fully intended to maintain his level of care of the children. However, as he outlined in a statement to Centrelink dated 23 June 2008[3], and in evidence at the hearing, his intentions were overtaken when he was required to vacate his rental premises in Noosa, and when his mother required medical treatment which necessitated his spending more time in Bundaberg to support her post surgery. Mr Cossart said that he discussed all this with Mrs Cossart and she was agreeable to taking on extra care, which he later would try to make up (for instance, taking the children for extra time during school holidays), thereby restoring the 50/50 balance. Mrs Cossart appears to support these discussions taking place between them; she mentions as much in a statement made to Centrelink in May 2008[4].
22. Mr Cossart said that losing his rental accommodation in Noosa threw his life into disarray. He was unable to find suitably priced housing in the area. Mr Cossart said that Mrs Cossart seemed to understand and was quite cooperative. He did acknowledge that he was willing, but unable, to undertake his share of the care. Mr Cossart said that his housing and family health problems should be taken into account, and that these arrangements were only a temporary departure from the agreed pattern of care. He pointed out that, throughout, he maintained contact with the children by telephone and paid school fees.
23. Mr Cossart said that later he came to realise that given various constraints the more feasible arrangement would be that care be divided on a 70/30 basis. Mr and Mrs Cossart put this into effect from June 2008.
24. As to what Centrelink decided during this time:
    • Mr and Mrs Cossart advised Centrelink on 3 January 2008 that a shared care arrangement, essentially 50/50, would commence from 25 January 2008. Centrelink paid Mrs Cossart 52% and Mr Cossart 48% FTB.
    • About May 2008, Mrs Cossart notified Centrelink that from 12 April 2008 she had the children 100% of the time, and stated that while Mr Cossart might believe he would later make up the time, she did not believe that this would happen. Centrelink then cancelled Mr Cossart’s FTB and parenting payments and raised debts against him.
    • The authorised review officer decided, however, that for the period 12 April 2008 to 6 June 2008, the change to child care was temporary only; and the existing Order (assigning care on a 50/50 basis) should continue to be given effect until 6 June 2008. Thereafter, Mr Cossart’s level of care would reduce to 30%, by the parties’ agreement.
25. The Social Security Appeals Tribunal saw matters rather differently, allowing 50/50 shared care until 12 April 2008, but then assigning Mrs Cossart 85% of care from 12 April 2008. I would note that the Social Security Appeals Tribunal was unable to contact Mr Cossart, so they did not have the advantage of hearing from him in oral evidence, but he had filed a lengthy statement for the previous review which the Social Security Appeals Tribunal took into account.
26. Attached to that statement, Mr Cossart had provided his record of the days/hours in which the children were in his care. This is undoubtedly an important document, especially as Mr and Mrs Cossart agree (for the main part) that these were the days/hours that Mr Cossart had the children, with what I would see as a minor dispute over two days, being 3 - 4 May 2008. I would decide those days in Mr Cossart’s favour. The children seem to have been with their grandmother, rather than with Mr Cossart on those days, and there is nothing untoward in that, nothing that is, which ought to detract from the children being, nevertheless, in his care.
27. Mr Cossart’s case[5] is that I ought to give primacy, as did the authorised review officer, to the extant court orders, taking into account the parents’ further agreement of 2 January 2008[6]. This would mean that their respective entitlements to FTB would remain 50/50 between the parents, treating what happened in the period April to June 2008 as a temporary and unavoidable departure from the agreed care, for reasons justified in the circumstances.

28. However it seems to me that the task is to establish the level of care given. It has regularly been remarked in Tribunal and Court decisions that the percentage of care should reflect the actual care provided by each party. In this period the parties agree that the level of care changed. The Federal Court in Wade v Secretary Department of Family and Community Services [2004] FCA 1660 observed that the object of the Act is to provide a benefit to the person who has the care of the child.

29. It is true, as Mr Cossart submitted, that minor variations in the pattern of care should not alter the apportionment decided upon, based on relevant evidence and agreements[7]. However, on the facts here, I am satisfied that the period between April and June 2008 was more than a minor variation, and was part of what developed later into a new pattern of care.

30. It is relevant to take into account that by June, Mr and Mrs Cossart had agreed that the 50/50 arrangement at that time was unachievable, and proceeded to put in place the 70/30 arrangement. It is also important to observe that for a significant period the burden of care before that (reflected in the agreed hours and days of care that applied during April and May) was rather less. It seems only right, this being a significant departure from the Court Order, that Mrs Cossart receive the level of payment for this time that reflects the care given. I accept that the events leading to the changed level of care largely arose out of matters beyond Mr Cossart’s control. I also accept that it was always Mr Cossart’s intention to observe the 50/50 pattern, but the legislative provisions are based upon what in fact happens in relation to the care of children, not simply a person’s best intentions.

31. I would however vary the Social Security Appeals Tribunal decision in one respect. The period comes to an end on 5 June when Centrelink accepts that the 70/30 arrangement came into effect. Taking into account the two disputed days of care (3rd and 4th May), which should be allowed to Mr Cossart, I am satisfied that the actual care in the period was 17% to Mr Cossart and 83% Mrs Cossart.

DECISION

32. The Tribunal affirms the decision under review as it relates to Tammy Cossart’s family tax benefit and parenting payments in the period 31 January to 20 February 2007, and varies the decision under review as it relates to family tax benefit in the period 12 April to 5 June 2008, to provide that Iain Cossart was entitled to 17% of family tax benefit and Tammy Cossart to 83%.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the order herein of M J Carstairs, Senior Member.

Signed ..................[sgd]...................................

Emily Clarke, Associate

Date of Hearing 31 August 2009

Date of Final Submissions:

Applicant 18 September 2009

Respondents 28 September 2009

Third Party 30 September 2009

The Applicant and Third Party were self-represented

Advocate for the Respondents Mr R Hamilton

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[1] Exhibit 4.
[2] Attachment “H” to Exhibit 1.
[3] Attachment “M” to Exhibit 1.
[4] Attachment “K” to Exhibit 1, p 79.

[5] Applicant’s submissions on Decision 2 filed 18 September 2009.
[6] Attachment “I” to Exhibit 1.

[7] Re Nowicz and Secretary Department of Family and Community Services (2001) 33 AAR

337.