Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 26 (15 January 2010)

Last Updated: 18 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 26

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0369

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Confidential

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Mr A Sweidan, Senior Member

Date 15 January 2010

Place Perth

Decision

The Tribunal affirms the decisions of the Social Security Appeals Tribunal made on 7 January 2009, save and except that the amount of the applicant’s rent assistance debt is varied to $2,321.29

.........(sgd) Mr A Sweidan............
Senior Member

CATCHWORDS

- Social Security – whether Family Tax Benefit payable to applicant for a child – applicant married to child’s mother – Mother and child both resident in Indonesia and child has never been in Australia – whether special circumstances exist that warrant waiver of rent assistance debt - decisions under review affirmed and amount of debt varied

LEGISLATION

A New Tax System (Family Assistance) Act 1999, s21, s22, s27

Social Security Act 1991, s7

Social Security (Administration) Act 1999

CASES Angelakos v Secretary, Dept of Employment and Workplace Relations [2007] FCA 25; (2007) 100 ALD 9

Beadle & Director-General of Social Security, Re (1984) 6 ALD 1

Dranichnikov v Centrelink [2003] FCAFC 133

Groth v Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541

Riddell v Department of Social Security [1993] FCA 261; (1993) 42 FCR 443

Secretary, Department of Family and Community Services and Barrett, Re [1999] AATA 196

REASONS FOR DECISION

18 January 2010	Mr A Sweidan
BACKGROUND

1. Applicant seeks review of decisions of the Social Security Appeals Tribunal (“SSAT”) made on 7 January 2009 which relevantly (a) affirmed an earlier decision by a Centrelink Authorised Review Officer that Family Tax Benefit (“FTB”) is not payable to applicant for the child (“the Child”); and (b) affirmed a Centrelink Authorised Review Officer’s decision to raise and recover a rent assistance debt of $3,986.34 from applicant.
2. The amount in relation to the rent assistance debt has been amended by the respondent since the SSAT decision to $2,321.29

FACTS

THE FOLLOWING FACTS ARE NOT IN DISPUTE

3. The applicant is an Australian resident for the purposes of the Social Security and Family Assistance Laws in that the respondent accepts that he meets the requirements of s. 7 of the Social Security Act 1991.
4. The applicant suffers from a chronic mental illness and receives a disability support pension.
5. The applicant departed Australia on 11 March 2006 for Bali, Indonesia and since then he has lived there apart from periods spent in Australia totalling 516 days in all between 9 June 2006 and 24 August 2009.
6. Subsequent to 11 March 2006 applicant became partnered with an Indonesian woman (“the Mother”) who has a daughter (“the Child”). Neither the Mother nor the Child are permanent Australian Residents and applicant is not the birth father of the Child.
7. The Child has never been to or lived in Australia
8. Applicant commenced to provide for the financial support of the Child on or about 6 May 2006 and the Child has lived with him and the Mother in Indonesia since 12 October 2006. The child was born on 17 March 2001.
9. On 10 January 2007 the applicant lodged a computer claim for Family Tax Benefit (“FTB”) in respect of the Child followed by a paper claim on 9 February 2007.
10. On 1 March 2007 applicant was notified that his claim for FTB had been rejected as he did not have any qualifying dependant children. The rejection was subsequently affirmed by a Centrelink Authorised Review Officer and again affirmed by the SSAT.
11. On 24 March 2008 applicant married the Mother of the Child under Australian law. However the Child has not been adopted by applicant under either Indonesian or Australian law.
12. On 26 June 2008 applicant lodged a further computer claim for FTB in respect of the Child followed by a paper claim. The applicant’s second claim was rejected on 5 August 2008 and the applicant was notified of this. An Authorised Review Officer subsequently reviewed and affirmed that decision, which was further affirmed by the SSAT on 7 January 2009.
13. On 25 September 2008 Centrelink raised a $3,986.34 rent assistance debt after confirming with applicant’s mother that during the period 11 March 2006 to 17 September 2008 he had not paid for lodging when he was living overseas. This decision was subsequently reviewed and affirmed by an Authorised Review Officer and thereafter by the SSAT.
14. On 16 June 2009 following the SSAT decision Centrelink recalculated the applicant’s rent assistance debt to be in the amount of $2,321.29

THE LAW

15. The relevant legislation is contained in the Social Security Act 1991 (“the SS Act”), the Social Security (Administration) Act 1999 (“the SSA Act”) and the A New Tax System (Family Assistance) Act 1999 (“the FA Act”).
16. Eligibility for FTB is determined by sections 21, 22 and possibly 27 of the FA Act, as follows:

21 When an individual is eligible for family tax benefit in normal circumstances

(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i) has at least one FTB child; or
(ii) is not an absent overseas recipient and has at least one regular care child who is also a rent assistance child; 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.
When individual satisfies this subsection
(1A) An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991, and either of the following applies:
(a) the individual is in Australia; or
(b) the individual:
(i) is temporarily absent from Australia for a period not exceeding 13 weeks; and
(ii) the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
(2) However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.

22 When an individual is an FTB child of another individual

(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, registered parenting plan or 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 spend time; 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.
(4) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) the individual is in the adult’s care; and
(c) the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual; and
(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
Individual aged 18-20
(5) The individual is an FTB child of the adult if:
(a) the individual has turned 18 but is aged under 21; and
(b) the individual is in the adult’s care; and
(c) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
Individual aged 21-24 undertaking full-time study
(6) The individual is an FTB child of the adult if:
(a) the individual has turned 21 but is aged under 25; and
(b) the individual is in the adult’s care; and
(c) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d) the individual is undertaking full-time study.

Determining percentages of care

(6A) 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, under subsection (2), (3), (4), (5) or (6), an FTB child of more than one other individual; 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) that individual is not a partner of at least one of those other individuals; then the Secretary must determine the percentage of the period during which the child was, or will be, in the care of that individual.
Note: The percentage determined under subsection (6A) for an individual in respect of a child is used to work out the individual’s shared care percentage for the child in section 59.
(6B) If the percentage determined by the Secretary under subsection (6A) is not a whole percentage:
(a) if the percentage is greater than 50% — the percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than 50% — the percentage is rounded down to the nearest whole percentage.
(6C) For the purposes of subsection (6A), a child cannot be in the care of more than one of the other individuals referred to in paragraph (6A)(a) on any particular day.
(6D) For the purposes of subsection (6A), the Secretary must determine which of the other individuals referred to in paragraph (6A)(a) has the care of the child on any given day having regard to the living arrangements of the child.
Percentage of care at least 35%
(7) If, under subsection (6A), the Secretary determines that a child was, or will be, in the care of an individual for at least 35% of a period, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
Note: If the Secretary determines that a child was, or will be, in the care of an individual for less than 35% of a period, the child is taken not to be an FTB child (see section 25).
 22A Exceptions to the operation of section 22
Exceptions
(1) Despite section 22, an individual cannot be an FTB child of another individual (an adult) in the cases set out in this table:

When the individual is not an FTB child of the adult at a particular time
If the individual is aged: then the individual cannot be an FTB child of the adult if:
1	5 or more and less than 16	(a) the individual is not undertaking full-time study or primary education and the individual has adjusted taxable income, for the income year in which the particular time occurs, that equals or exceeds the cut-out amount (see subsection (2)); or (b) the adult is the individual’s partner, or would be if the individual was over the age of consent applicable in the State or Territory in which the individual lives.
2	16 or more	(a) the individual has adjusted taxable income, for the income year in which the particular time occurs, that equals or exceeds the cut-out amount (see subsection (2)); or (b) the adult is the individual’s partner; or (c) the individual, or someone on behalf of the individual, is, at the particular time, receiving payments under a prescribed educational scheme.
3	any age	the individual, or someone on behalf of the individual, is, at the particular time, receiving: (a) a social security pension; or (b) a social security benefit; or (c) payments under a program included in the programs known as Labour Market Programs.

(1A) For the purposes of subsection (1), an individual is taken to be undertaking primary education if the individual is:
(a) participating in a course of primary education; or
(b) enrolled to participate in such a course.
Definition
(2) In subsection (1):
cut-out amount means $11,233.

24 Effect of certain absences of FTB child etc. from Australia
Absence from Australia of FTB or regular care child
(1) If:
(a) any of the following applies:
(i) an FTB child leaves Australia;
(ii) a child born outside Australia is an FTB child at birth;
(iii) a regular care child leaves Australia;
(iv) a child born outside Australia is a regular care child at birth; and
(b) the child continues to be absent from Australia for more than 3 years; during that absence from Australia, the child is neither an FTB child, nor a regular care child, at any time after the period of 3 years beginning on the first day of the child’s absence from Australia.
(2) If:
(a) an FTB child, or a regular care child, who has been absent from Australia for more than 13 weeks, but less than 3 years, comes to Australia; and
(b) the child leaves Australia less than 13 weeks later;
for the purposes of subsection (1), the child is taken not to have come to Australia.
(3) If:
(a) a child is neither an FTB child nor a regular care child because of the application of subsection (1) or a previous application of this subsection; and
(b) the child comes to Australia; and
(c) the child leaves Australia less than 13 weeks after coming to Australia; the child is neither an FTB child nor a regular care child at any time during the absence from Australia referred to in paragraph (c).
Maximum period of eligibility for family tax benefit while individual overseas
(4) If an individual leaves Australia, the maximum period for which the individual can be eligible for family tax benefit during that absence from Australia is the period of 3 years beginning on the first day of that absence.
(5) If:
(a) an individual who has been absent from Australia for more than 13 weeks, but less than 3 years, returns to Australia; and
(b) the individual leaves Australia again less than 13 weeks later;
the individual is taken not to have returned to Australia for the purposes of subsection (4).
(6) If:
(a) an individual is eligible for family tax benefit while the individual is absent from Australia; and
(b) the individual then ceases to be eligible for family tax benefit because of the application of subsection (4) or a previous application of this subsection; and
(c) the individual returns to Australia; and
(d) the individual leaves Australia again less than 13 weeks after returning to Australia; the individual is not eligible for family tax benefit at any time during the absence from Australia referred to in paragraph (d).
...

27 Extension of meaning of FTB or regular care child in a blended family case
(1) This section applies if:
(a) 2 individuals are members of the same couple; and
(b) either or both of the individuals have a child (the qualifying child) from another relationship (whether before or after the 2 individuals became members of that couple).
(2) While the 2 individuals are members of that couple:
(a) each qualifying child that is an FTB child, or regular care child, of one member of the couple is taken also to be an FTB child, or regular care child, (as the case requires) of the other member of the couple; and
(b) if, under subsection 22(6A), the Secretary determines (whether before or after the 2 individuals became members of that couple) a percentage of a period during which the qualifying child was, or will be, in the care of one member of the couple — the Secretary is taken to have determined that the child was, or will be, in the care of both members of the couple during that percentage of the period.

APPLICANT’S CONTENTIONS

17. Under the relevant provisions of s21, an individual is eligible for family tax benefit if the individual has at least one FTB child and the individual is an Australian resident. It is accepted by the respondent that the applicant is an Australian resident.
18. The question is therefore whether the applicant has an FTB child.
19. The relevant subsection of s22 is as follows:

(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 of 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 and Australian resident, is a special category visa holder residing in Australia or is living with the adult.

20. Dealing with each of these provisions in turn.
21. There is no dispute that the Child meets the requirements of s22(2)(a). She is currently aged just 8 years, clearly under the age of 18.
22. Although initially asserting that he has legal responsibility for the day to day care, welfare and development of the Child both under Australian Law and Indonesian law, the applicant subsequently conceded that he does not have legal responsibility for her under Indonesian Law. However he continued to assert that he has legal responsibility for her under Australian law. For the reasons set out below the Tribunal does not accept this contention.
23. The applicant asserts that the Child commenced living with the applicant and the Mother on or after 12 October 2006. FTB is claimed from that date and subsequently and it is further asserted that for a number of relatively short periods when the applicant spent between 7 and 12 days in Australia, the Child continued to live with the applicant and the Mother. For various longer periods of between 83 and 197 days during which the Child was living with her grandparents and the applicant and the Mother were living in Australia, it is accepted by the applicant that in the context of s22(2)(d), the Child was not living with her mother and the applicant, but rather living with her grandparents.
24. The applicant contends that S24 of the FA Act is an exclusion clause and is “quite specific” in its terms; S24 including it’s heading commences as follows:

Effect of certain absences of FTB child etc. from Australia
Absences from Australia of FTB or regular care child
(I) If:
(a) any of the following applies:
(i) an FTB child leaves Australia;
(ii) a child born outside Australia is an FTB child at birth;
(iii) a regular care child leaves Australia;
(iv) a child born outside Australia is a regular care child at birth; and
(b) the child continues to be absent from Australia for more than 3 years;
During that absence from Australia, the child is neither an FTB child, nor a regular care child, at any time after the period of 3 years beginning on the first day of the child’s absence from Australia.

25. The applicant further asserts that in accordance with standard statutory construction, the heading of a Section does not form part of the Act (see s13(3) of the Act Interpretation Act 1901 (Cwth). The Child has never been to and had therefore never left Australia; it is contended that the Child was neither an FTB child, nor a “regular care child” at birth. Accordingly it is claimed that none of the subparagraphs (i) to (iv) of s24(1)(a) apply to the Child. Accordingly, if none of the required qualifying provisions of the section apply to the Child it is said that the remainder of the section cannot apply to her. It is said that it is no answer to say that this created an anomaly and that the Tribunal is required to apply the law as it has been written; it is up to Parliament to correct any drafting errors.
26. The applicant accordingly contends under the FA Act, the Child is an FTB child as defined under s22, that she is not excluded under s24 and the applicant is entitled to claim and to be paid FTB in respect of the Child. The Tribunal does not accept these contentions for the reasons set out below.
27. Finally the applicant asserts that the blended family provisions contained in s27 of the FA Act do not apply to the applicant. Applicant says that the Child is not an FTB child of the Mother, as the Mother does not qualify under s21 of the Act. Accordingly, it is claimed that the applicant’s entitlement to FTB arises by reason of s21 and s22, not by reason of s27. For the reasons set out below these contentions are rejected by the Tribunal.

OVERPAYMENT OF RENT ASSISTANCE – WAIVER OF DEBT – APPLICANT’S CONTENTIONS

28. To the extent that there has been an overpayment of rent assistance and there is therefore a debt due to the Commonwealth the applicant says that the debt should be waived.
29. The applicant claims that he and his family are under severe financial hardship, which is out of the ordinary. The family of 3 when living in Indonesia lives on the applicant’s single rate disability support pension and without rent assistance. The applicant travels to Australia each 13 weeks to maintain payment of his pension. He said that he had no savings and has credit card debts to the limit on 2 credit cards which he is unable to pay. In order to come to Australia he has had to borrow money from a money lender in Bali and then to repay out of his disability support pension payments over the succeeding 13 weeks.
30. It is claimed that the applicant’s situation is exceptional and there are special circumstances, which all point in favour of the waiver of the debt pursuant to the provisions of s1237AAD of the SS Act.
31. Applicant concedes that write-off is not an appropriate alternative; whatever the hardship caused, the respondent had the legal and actual ability to enforce recovery of the debt, by deducting the payments from the applicant’s disability support pension.

TRIBUNAL’S FINDINGS

32. The Tribunal is of the view that the Child meets the requirements in s. 22 of the A New Tax System (Family Assistance) Act 1999 (FA Act) and therefore the Tribunal finds her to be an FTB child of the Mother from her date of birth because:

the Child is aged under 18 years; and

the Mother is legally responsible for the Child; and

the Child is in her mother’s care (including those periods where her care was delegated to her grandparents); and

the Child, while not being an Australian resident or a special category visa holder residing in Australia, is living with her mother.

33. The Tribunal notes that the fact that the Child is the Mother’s FTB child is merely one factor in assessing under s21 whether or not an individual is eligible to receive FTB. It is the individual, and not the FTB child, who may be eligible to receive FTB.
34. Although the Child is an FTB child of her mother, the Tribunal finds that the requirements under s21 of the FA Act are not met because the Mother does not meet the residency or visa requirements of subsection 21(1)(b)(i), (ia) or (ii) as she is not an Australian resident; is not a special category visa holder residing in Australia; nor does she satisfy ss21(1A). Consequently, the Mother is ineligible to be paid FTB in relation to the Child.
35. The Tribunal finds that the applicant is not eligible for FTB because the Child is not his FTB child.

S22 of the FA Act sets out when an individual is an FTB child of another individual. S22 relevantly provides that:

(1) An individual is an FTB child of another individual (the adult) in any of the case 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.
...

(4) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) the individual is in the adult’s care; and
(c) the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual; and
(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

36. The Tribunal finds that the Child is not the FTB child of the applicant under subsection 22(2) as he has no legal responsibility for the Child. She is also not his FTB child under subsection 22(4) because the Child is in the care of another adult that is legally responsible for day-to-day care, welfare and development of the Child (the Mother).
37. Legal responsibility is further referred to below, however, the Tribunal finds that this is in any event not decisive of the issue as, pursuant to the limitations imposed by the 3 year absence rule in section 24 of the FA Act, the Child ceased to be an FTB child after she remained outside of Australia for 3 years, which was at a time before the applicant and the Mother became members of a couple.

SECTION 24 - 3 YEAR ABSENCE RULE

38. Section 24 of the FA Act provides that if a child born outside Australia is an FTB child at birth and continues to be absent from Australia for more than 3 years, during that absence from Australia, the child is neither an FTB child, nor a regular care child, at any time after the period of 3 years beginning on the first day of the child’s absence from Australia.
39. The applicant asserts that because the Child was not an FTB child at birth, section 24 can never apply to her. The Tribunal’s opinion as to why the Child became the Mother’s FTB child at birth is set out above. When two possible interpretations of legislation are available, as is the present case, it is permissible to look to the Explanatory Memorandum for clarification.
40. The FA Act Explanatory Memorandum, states, in relation to absences from Australia, that:
    

The absence of an FTB child from Australia has an impact on the child’s status as an FTB child. Similarly, the absence from Australia of an individual will effect the individual’s eligibility for FTB. The rules that deal with these matters are outlined in section 24.

If an FTB child is absent from Australia for between 26 weeks and 3 years, the child ceases to be an FTB child after the period of 3 years beginning on the first date of the child’s absence. This rule also applies to a child born overseas who is an FTB child.

If an FTB child has been absent from Australia for between 26 weeks and 3 years, the child comes to Australia and then leaves less than 26 weeks later, the child is taken not to have come to Australia. This rule deems the child to continue to be absent from Australia for the purposes of the 3 year absence rule.

If a child is overseas for longer than 3 years, comes to Australia and then leaves less than 26 weeks later, then the child is not an FTB child during the subsequent absence from Australia. The child may, however, be an FTB child of an individual while the child is in Australia.
Similar rules apply to an individual who is absent from Australia. Such an individual loses eligibility for FTB after 3 years of absence. If the individual has been absent from Australia for between 26 weeks and 3 years, comes to Australia and then leaves less than 26 weeks later, the individual is taken not to have come to Australia. This rule deems the individual to continue to be absent from Australia for the purposes of the 3 year absence rule. ...

The inclusion of a minimum period of return to Australia of 26 weeks as a condition for starting a new 3 year period of eligibility for an absence from Australia would prevent brief periods of return to Australia from acting as a means to circumvent the intent of the 3 year limit. Otherwise, a brief return to Australia would effectively avoid the limit on eligibility (assuming the individual was still regarded as an Australian resident while outside Australia).

Note: the 26 weeks absence was reduced to 13 weeks absence by the introduction of the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003.

41. In the opinion of the Tribunal the Explanatory Memorandum makes it clear that it is not intended that a child who has been out of Australia for longer than 3 years should continue to be an FTB child.
42. As already noted the Child was the FTB child of the Mother at birth and she was born outside Australia.
43. The Child has never been to Australia and has continued to be absent from Australia for more than 3 years. As a consequence, pursuant to s24, the Child ceases to be an FTB child after the period of 3 years beginning on the first day of her absence from Australia.
44. The Tribunal finds that the Child ceased to be an FTB child on 17 March 2004, her third birthday, pursuant to the 3 year limitation imposed by s24 of the FA Act.
45. The Tribunal is of the opinion that the Explanatory Memorandum clearly supports the position that children cease to be FTB children after an absence from Australia of more than 3 years and that it was the intent of the FA Act to impose such a time limitation on the payment of FTB.

BLENDED FAMILIES – SECTION 27

46. S27 of the FA Act provides for the extension of meaning of FTB child in a blended family case.
47. On the basis of subsection 27(2) of the FA Act, it is prima facie possible for the Child to be regarded as being the FTB child of the applicant during the period that she is an FTB child of the Mother and the applicant and the Mother are members of a couple.
48. However the Tribunal notes that under section 24 of the FA Act the Child ceased to be an FTB child of the Mother on 17 March 2004. Therefore she is not an FTB child of the Mother from that date. Furthermore as the applicant and the Mother were not members of a couple until 11 April 2006, s27 cannot apply and it is the Tribunal’s opinion that the Child is not and was not at any relevant time an FTB child of the applicant.

Section 21 - Legal responsibility

49. The term “legal responsibility” is not defined in the FA Act.

The Family Assistance Guide defines legal responsibility and parents as follows:

1.1.L.20 Legal responsibility
Definition
For the purposes of FA, legal responsibility is the right to have and to make decisions concerning the day-to-day care, welfare and development of a child. Both parents are legally responsible for their child, except where:
they agree that one parent should have greater or sole responsibility, or
a court makes an order that changes their responsibility in a particular matter.

1.1.P.17 Parental responsibility
Definition
For the purposes of FA and the Social Security Act 1991, and under section 61B of the Family Law Act 1975, parental responsibility means all the duties, powers, responsibilities and authority that parents have, by law, in relation to their children.

According to section 61C of the Family Law Act 1975, both parents of a child aged less than 18 years, have parental responsibility (subject to court orders) for their child. This responsibility continues, despite any changes in the nature of the parental relationship of a child (i.e. parental responsibility will not change if a child's parents become separated, or if one or both parents remarry).

A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any) expressly provided for in the order; or necessary to give effect to the order.

Act reference: Family Law Act 1975 refer to sections 61B Meaning of parental responsibility and 61C Each parent has parental responsibility (subject to court orders)

50. In considering whether a child was a “dependant child” for the purpose of the social security law, the Tribunal in Secretary, Department of Family and Community Services and Barrett, Re [1999] AATA 196 held:

40.Legal responsibility is not determined by who has the actual physical care and control but by a consideration of those who, either at common law, or as a result of an order of the Family Court, have that responsibility. Such responsibility may flow from a person's entitlement to custody of a child or, in certain circumstances, from his or her having access. The Field case is authority for this proposition.

51. The applicant is married to the Mother, and as such is the Child’s stepfather. However, he has not formally adopted the Child in Australia (or in Indonesia). The applicant is not the natural or adoptive parent of the Child nor does he have a Family Court Order giving him legal responsibility. The Tribunal accordingly finds that he has no legal responsibility for the Child as envisaged by s22 of the FA Act.

OVERPAYMENT OF RENT ASSISTANCE

52. It is not disputed that the applicant was overpaid rent assistance in the amount of $2,321.29 and that the overpayment is a debt to the Commonwealth.

SHOULD ALL OR PART OF THE DEBT BE WRITTEN OFF FOR A PERIOD OF TIME?

53. S1236 of the SS Act provides for a debt to be written off, that is that the recovery thereof be deferred to a later date, if the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown or it is not cost effective for the Commonwealth to take action to recover the debt.
54. The respondent contends and the Tribunal finds that the applicant remains in receipt of Disability Support Pension and therefore the debt can continue to be repaid via a reasonable rate of withholdings from payment and write off is not appropriate. Currently he is repaying $20 per fortnight.

WAS THE DEBT, OR ANY PART OF THE DEBT CAUSED BY SOLE ADMINISTRATIVE ERROR?

55. Subsection 1237A(1) of the Act provides that a debt, or part of a debt, must be waived if it was caused solely by administrative error. There is no evidence of administrative error.

ARE THERE SPECIAL CIRCUMSTANCES THAT WARRANT WAIVER OF THE DEBT?

56. The Tribunal is satisfied that neither the applicant nor his mother ‘knowingly’ or deliberately failed to advise of him not paying rent when absent from Australia, therefore waiver of the debt under section 1237AAD of the Act can be considered.
57. This section of the Act allows for recovery of a debt to be waived if there are ‘special circumstances’ that make it desirable to do so.
58. The applicant asserts that the debt was caused by his mother not notifying Centrelink that he had ceased paying rent in Australia. In addition, the applicant refers to his significant psychiatric condition which impacts on his ability to deal with daily living activities and prevents him from working. Further, he has stated that he and his family are in financial hardship.
    
59. ‘Special circumstances’ have been interpreted by the Federal Court to mean circumstances that distinguish a case from the usual or ordinary case. The case of Angelakos v Secretary, Dept of Employment and Workplace Relations [2007] FCA 25; (2007) 100 ALD 9 reviews numerous authorities in regard to special circumstances, eg Groth v Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, Dranichnikov v Centrelink [2003] FCAFC 133 and Beadle & Director-General of Social Security, Re (1984) 6 ALD 1 in which is was held that special circumstances were:

Circumstances which distinguish the case in consideration from the usual case ... such that [they take] the case out of the ordinary
and that all of a person’s circumstances have to be considered in determining whether special circumstances exist or not. The Federal Court in Angelakos commented that:

The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.

And referred to Riddell v Department of Social Security [1993] FCA 261; (1993) 42 FCR 443
which found that:

‘Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.’

60. The Tribunal finds that the applicant’s circumstances are not unusual or uncommon and do not warrant the exercising of the discretion to waive all or part of the debt under s1237AAD of the Act.

DECISION

The Tribunal:

(a) affirms that part of the SSAT decision made on 7 January 2009 to reject the applicant’s FTB claim in respect of the Child; and

(b) affirms the SSAT decision to raise and recover a rent assistance debt but varies the debt to an amount of $2,321.29.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan

Signed: ..............(sgd) Ms Lan Huynh......................................

Associate

Date/s of Hearing 21 September 2009

Date of Final Submissions 11 December 2009

Date of Decision 15 January 2010

Counsel for the Applicant Mr Henry Christie Barrister and Solicitor.

(until 30 October 2009, after that date the applicant was self-represented)

Counsel for the Respondent Ms Cressey Wallwork

Centrelink Principal Legal Services Officer