FAMILY TAX BENEFIT - member of a couple - partner choice to not contribute to expenses of FTB children - pooling of resources - interests of the child - discretion to treat as not a member of a couple - exercise of choice not a special reason - discretion not enlivened - decision affirmed

A New Tax System (Family Assistance) Act 1999 ss 3, 21, 27, Schedule 1

Social Security Act 1991 ss 4, 24

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Beadle v Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225

Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531

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

Holt v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143

Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084

WHNV v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 885

1. Sandra Burkett and Peter Lavender are members of a couple in a defacto relationship. They each have two children from previous failed relationships. At Mr Lavender's insistence, they conduct their relationship according to strict rules. Under these rules each parent is not to be held responsible for the other's children. They manage their finances separately. While some household expenses are shared, personal expenses are not - each must bear the costs of their own children.
2. Ms Burkett applied for Family Tax Benefit (FTB). Her claim was refused as she is a member of a couple and her adjusted taxable income, which includes Mr Lavender's income, placed her above the upper threshold of entitlement. This determination has been affirmed on reconsideration and review, and it remains the subject of dispute in these proceedings.
3. At the hearing, Ms Burkett informed me that she accepts that she has been living with Mr Lavender as a member of a couple since August 2008. As Ms Burkett's concession is consistent with the present evidence, I have no difficulty accepting it.
4. The issue for determination is whether there is a special reason not to treat Ms Burkett as a member of a couple for the purposes of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act).
5. Ms Burkett gave a number of reasons why she should not be treated as a member of a couple for the purposes of the Family Assistance Act:

(a) Mr Lavender's income is taken into account when deciding her entitlement to FTB, with disentitling effect, but she and her children do not obtain any financial support or benefit from her relationship with Mr Lavender - she and Mr Lavender conduct their parental responsibilities and their finances separately;

(b) Mr Lavender has no legal obligation to support her or her children financially, and he chooses not to do so - Ms Burkett is unable to compel or persuade him to a different decision;

(c) Ms Burkett does not obtain any economy of scale from her relationship with Mr Lavender and she, alone in this relationship, bears the cost of raising her children with only minimal financial contributions from their biological father;

(d) Ms Burkett is struggling to meet necessary expenses for herself and her children without additional financial support from the biological father of her children, or from Mr Lavender, or in the form of FTB so long as Mr Lavender's income is taken into account;

(e) financially, she would be better off ending her relationship with Mr Lavender, but this would mean sacrificing the emotional and other benefits she and her children obtain from the relationship - she should not be forced to end the relationship in order to obtain FTB payments;

(f) following a work injury to her ankle in 2010, her ability to earn additional income in secondary employment to support her children had reduced;

(g) without any financial support from Mr Lavender (or additional payments from the children's father), she has significant difficulty paying for necessary medical, surgical, dental, osteopathic, physiotherapy and psychological treatments for herself and her children - she is very concerned about the potentially adverse health effects on her children if FTB is not granted and she is unable to pay for the treatment her children require; and

(h) without support from Mr Lavender and without FTB payments her children are experiencing disadvantage and they are being denied opportunities to the detriment of their best interests - Mr Lavender's recalcitrant decision should not be held above the best interests of her children when applying the law.

1. In Ms Burkett's submission these reasons justify exercise of the discretion conferred by section 24 of the Social Security Act 1991 (Cth) (the Social Security Act). Ms Burkett referred to a number of cases - specifically, WHNV v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[1] and Holt v Secretary, Department of Education, Employment and Workplace Relations[2] - that, she says, support her case.
2. I do not agree.
3. Applying section 21 of the Family Assistance Act, Ms Burkett has two FTB children. The rate of FTB payments in respect of her children is to be calculated by applying the rate calculators set out in Schedule 1 of that Act. As can be seen, the rate of FTB is determined, in part, on the basis of her adjusted taxable income calculated under Schedule 3. Under clause 3 of that Schedule, as she is a member of a couple, her adjusted taxable income includes the adjusted taxable income of her partner, Mr Lavender. Ms Burkett's adjusted taxable income as a member of a couple reduces the rate of FTB to nil. In consequence, by operation of section 21(1)(c), she is not eligible for FTB. If Ms Burkett is not to be treated as a member of a couple, Mr Lavender's adjusted taxable income would not be taken into account and a different result may be obtained.
4. The Family Assistance Act imports the definition of the phrase 'member of a couple' under section 4(1) of the Social Security Act. Under section 4(6) of the Social Security Act a person is not a member of a couple if a determination under section 24 of that Act is in force. Section 24 relevantly provides

(2) Where:

(a) a person has a relationship with another person, whether of the same sex or a different sex (the partner); and

(b) the person is not legally married to the partner; and

(c) the relationship between the person and the partner is a de facto relationship; and

(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

1. Presently, there is no dispute that preconditioning factors set out in section 24(2)(a), (b) and (c) are satisfied. The term 'special reason' is not given any special meaning. It can readily be understood to refer to a reason that is conditioned by a characteristic or circumstance that sets it apart from that which is ordinary or usual or commonplace[3]. The term is instrumental - "a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened"[4]. The importance of maintaining flexibility when determining what constitutes 'special reasons' is well established in the settled cases[5]. The purposes of the Act must be kept in mind and the particular circumstances of Ms Burkett's defacto relationship with Mr Lavender must be carefully considered when determining "whether, for practical reasons, they could not reasonably be expected to enjoy the pooling of resources that usually occurs in a marital relationship"[6].
2. Ms Burkett and Mr Lavender gave oral evidence, which was not challenged.
3. I did not accede to Ms Burkett's request for her children, who are both under 16, to give evidence. In a case such as this, it is not necessary for the FTB children to give evidence about parental relationships, financial arrangements and relevant familial circumstances; those matters are best addressed by the adults involved. Of course, there are cases in which it may be necessary to hear the evidence of a child; but this is not one. The issues Ms Burkett raises about the best interests of her children can properly be dealt with without hearing from the children. Moreover, to my mind, the best interests of the children are served by not requiring them to submit to cross-examination. While it is necessary to consider all the relevant circumstances, including the circumstances of children and circumstances concerning Mr Lavender, the subject of primary consideration is Ms Burkett. When determining whether or not a special reason exists not to treat her as a member of a couple and deciding whether or not to exercise the discretion, her position in the particular circumstances must be carefully considered.

1. Ms Burkett has two FTB children under the age of 16 for whom she is legally responsible. She is the primary carer for these children. These arrangements and the payment of child support by the children's father are the subject of Family Court orders[7]. Ms Burkett and her children reside in a 4-bedroom house with Mr Lavender. Ms Burkett described her domestic circumstances as a single-parent family, being herself and her two children, sharing a house with Mr Lavender and his children, albeit that she and Mr Lavender are members of a couple. Mr Lavender also has two children of similar age who regularly stay at the house. I understand that these arrangements and Mr Lavender's payment of child support to the mother of his children are also the subject of Court orders.
2. Ms Burkett and Mr Lavender became members of a couple in a defacto relationship in August 2008. Ms Burkett's FTB payments in respect of her children ceased at or about that time, as a consequence of Mr Lavender's income being taken into account.
3. Ms Burkett says that her children are not FTB children of Mr Lavender - he has no legal responsibility to care for them and no obligation to support them; and he does not. In these circumstances it is iniquitous, in her submission, to treat her as a member of a couple for FTB purposes.
4. The proposition that Ms Burkett's children are not FTB children of Mr Lavender requires consideration of sections 22 and 27 of the Family Assistance Act. Section 22 sets out the criteria applying to an FTB child. Clearly, Ms Burkett's children meet these criteria. Section 27 is in the following terms

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 the Secretary has determined, under section 35A or 35B, one individual's percentage of care for the qualifying child during a care period (whether before or after the 2 individuals became members of that couple) - the Secretary is taken to have determined the same percentage to be the other individual's percentage of care for the child during that period.

1. As can be seen, while Ms Burkett and Mr Lavender are members of a couple, Ms Burkett's FTB children are deemed to be FTB children of Mr Lavender.
2. Ms Burkett says that this is not what occurs in reality - she, alone in their relationship, is responsible for her children and Mr Lavender is not. I accept that she and Mr Lavender have decided to conduct their relationship in this manner.
3. Before agreeing to move in together as a couple, Ms Burkett and Mr Lavender agreed to maintain separate responsibility for their respective children and to keep their finances and assets separate and apart, with strict rules of agreement governing any shared expenditure. This agreement was not reduced to writing. On Ms Burkett's evidence the decision to conduct their affairs in this manner was made at Mr Lavender's insistence - "I don't like it, but I can't change it". But she also gave evidence that she was a willing party to the agreement and that she and Mr Lavender discuss, negotiate and decide the ongoing effect and form of the arrangement, concerning items they will jointly pay for and those that they will not for example. This discursive process has resulted in changes to the fortnightly amount they each contribute towards the cost of agreed household expenses. It has also resulted in agreement to expand the items that they jointly pay for - family private health insurance cover is one example.
4. Mr Lavender's evidence is that his biological children are his primary concern and every other aspect of his domestic life, including Ms Burkett, is a secondary consideration. Mr Lavender was expansive in his evidence on this point. He referred to his divorce and the deleterious effect this had on his assets. He expressed his determination to protect his income and assets from the risk that this may occur again. His evidence is that he directs his income to benefit his biological children. It appears that he pursues this course with Ms Burkett's concurrence. And he does so despite, and perhaps with little regard to, the effect of his position (or his related actions and behaviour) on Ms Burkett or on her children - "they are not my responsibility". On his evidence, that is so even though he says that he loves Ms Burkett and sees her as his "life partner".
5. Ms Burkett described the nature of her household with Mr Lavender[8]. This description was not challenged and it is largely consistent with Mr Lavender's evidence. As can be seen, chores are shared - she and her children are responsible for inside chores, such as cleaning and vacuuming, whereas Mr Lavender is responsible for outside chores, such as lawn mowing and tending his vegetable garden. It appears that cooking is a shared responsibility - Mr Lavender cooks when his children are in residence, but otherwise Ms Burkett and her elder child cook. There appears to be some sharing in respect of washing clothes, although Ms Burkett informed me that, in the main, the burden of this chore falls to her. Nevertheless, Mr Burkett's evidence is that Mr Lavender does not care for, baby sit or look after her children. While occasionally they do things together with all the children as a family, this is rare. Mr Lavender does not attend events at her children's school and he is not party to decisions about their education or activities. Ms Burkett and Mr Lavender do not go on holidays together with the children.
6. To my mind these arrangements do not give rise to a special reason not to treat Ms Burkett as a member of a couple with Mr Lavender. Adults with children from failed relationships make a wide variety of arrangements when entering into new relationships or when living in blended family circumstances. The arrangements Ms Burkett and Mr Lavender have agreed upon, including the division of responsibilities in respect of their children, do not strike me as arrangements that are out of the ordinary course. It is an unfortunate reality that the breakdown of relationships between parents of children is common. It is also commonplace for separated parents with dependent children to form new relationships and, in that context, for new partners to jointly negotiate responsibilities and arrangements in respect of children, finances and the conduct of household affairs within the blended family. These are matters of personal choice from which a great diversity of familial arrangements may spring, reflecting the wide array of circumstances, preferences and reasoning that inform the choices people make. The arrangements Ms Burkett and Mr Lavender agreed upon are within this frame.

1. Ms Burkett asserts that Mr Lavender has no legal obligation to support her or her children financially, and he chooses not to do so. She says that this is his decision and he is intransigent.
2. In their evidence, Ms Burkett and Mr Lavender agreed, separately, that their initial decision to maintain separate responsibility for their respective children and their finances, with strict rules governing any shared expenditure, was jointly made. Furthermore, it is given ongoing effect in decisions they both make, day by day. On their evidence, this ongoing decision-making process has a discursive character and, over time, some of aspects of the original agreement have changed or blurred to some degree: what originally appeared in black and white has become tempered by shades of grey. Mr Lavender informed me that he expected that this would continue to change and progress over time as a natural consequence of changing circumstances, particularly relating to his children, and the depth of his feelings for Ms Burkett.
3. It is very clear that Ms Burkett made choices about the conduct of her relationship with Mr Lavender before co-habiting with him. It is also very clear that those choices are ongoing and alive in the decisions they both make about the manner in which they conduct their parental responsibilities, their household, their collective family affairs, and their finances. They each do this by their own choosing, without apparent coercion. Even though the present evidence suggests that Mr Lavender is the driving force behind the arrangement, it appears to me that Ms Burkett willingly and actively participates in and gives effect to the arrangement in the choices she makes from day to day. She has done so, by her own account, in the knowledge that those choices and decisions have practical and other effects on herself and her children.
4. This is not simply a matter of Mr Lavender making decisions that affect Ms Burkett, which she is compelled in some way to comply with. Even though Ms Burkett's evidence is that she does not like the arrangement, it is very clear on her own evidence that she is a willing and active participant in making decisions that give it ongoing effect. This is not a circumstance in which she has no choice, that is beyond her control, or that is fixed and decided without her involvement and agreement. Furthermore, I am not persuaded that Ms Burkett is unable to change the arrangement - her own evidence and the evidence of Mr Lavender is that incremental changes have been made, by agreement, over time. Even so, I accept that it may not be easy for Ms Burkett to negotiate changes to the arrangement with Mr Lavender and that she is reluctant to raise some issues with him. But difficulties of this kind are not unusual or out of the ordinary course in the conduct of family relationships.
5. Discussions and decisions between parents may be expected to occur in the usual course of negotiating the conduct of life in many family circumstances, although perhaps most sharply in blended families where, as here, both partners have children from previous failed relationships. I am not persuaded that such negotiations and acts of choice are unusual or uncommon. Nor am I persuaded that the content of the decisions Ms Burkett has made with Mr Lavender give rise to a special reason not to treat her as a member of a couple.

1. Ms Burkett says that Mr Lavender's income should not be taken into account when deciding her eligibility for FTB, as she and her children do not obtain any financial support or assistance from him.
2. In Ms Burkett's submission, she does not obtain any economies of scale from her relationship with Mr Lavender. She says that, while she and Mr Lavender share some household expenses and contribute equal fortnightly amounts into a joint account for that sole purpose, she pays up to $90 per week more of the household expenses than Mr Lavender. This is said to be because her children spend more time in the house than his children. Ms Burkett asserts that she, alone in this relationship, bears the cost of raising her children with only minimal financial contributions from their biological father.
3. While accepting that there is some pooling of resources in respect of the household she and Mr Lavender have established, Ms Burkett strenuously denies any pooling of income, assets or other resources in respect of the children. Her relationship with Mr Lavender does not produce any reduction in the cost of caring for and raising her children than if she was living separately and apart from him. In her submission, it is more expensive for her to raise her children in her present circumstances, living in a house larger than she would otherwise require and obtaining no financial support from Mr Lavender, than if she was single. She handed up a comparative analysis of her financial position in 2008, prior to co-habiting with Mr Lavender, and in 2011[9].
4. Ms Burkett and Mr Lavender own the house in which they reside as tenants in common. The property was purchased in August 2009 and is mortgaged. They each have separate mortgage accounts, initially for 50 percent of the total mortgage. The evidence reveals no other jointly owned assets. Ms Burkett owns her own car, as does Mr Lavender. Ms Burkett owns some items of furniture, but Mr Lavender owns most of the contents in the house they share[10]. They do not jointly own shares or other property. They have one joint bank account, from which certain household expenses are paid[11], but otherwise they do not have joint accounts or credit facilities of any kind - those facilities are strictly separate responsibilities. It appears that Ms Burkett and Mr Lavender, by mutual agreement, have made complementary wills[12] and have taken out life insurance policies, ostensibly, on Mr Lavender's evidence, to protect their estates for their respective children.
5. In 2010-2011 Ms Burkett and Mr Lavender each contributed equal amounts of $1,320 per fortnight[13] into their joint bank account to cover certain agreed household expenses. This is ongoing. Agreed household expenses include: mortgage repayments; house and contents insurance premiums; life insurance premiums for Ms Burkett and Mr Lavender; health insurance premiums for Ms Burkett, Mr Lavender and their respective children; household rates and utilities including water, gas, electricity, home telephone and data services; household repairs and maintenance; some household furnishings and equipment; and occasional entertainment expenses in respect of Ms Burkett and Mr Lavender, when they are together without any of the children and, rarely, when they and all of the children do something together. Additionally, food and groceries are purchased using this joint account. All other expenses are managed separately unless otherwise agreed.
6. As can be seen, the financial arrangements between Ms Burkett and Mr Lavender are not entirely separate; there is some pooling of resources and income, most notably in respect of the joint household and arrangements in which they share, and from which they and their respective children benefit. Arrangements of this kind are not unusual, uncommon or out of the ordinary course.
7. It is not to the point that Ms Burkett's financial arrangements and costs would be different in different circumstances. I must consider the circumstances as they stood at the relevant time.
8. Ms Burkett asserts that, unlike the Social Security Act, there is no express deeming provision under the Family Assistance Act whereby members of a couple are to be taken to pool their income and assets on a 50:50 basis. That is plainly correct. The Family Assistance Act deems that the FTB child of one member of a couple is also the FTB child of the other member and it requires the combined adjusted taxable income of both members to be taken into account when calculating FTB entitlements. This formulation is not equivalent to section 1064-A2 of the Social Security Act, and it does not require Ms Burkett's income, assets and expenses to be pooled on a 50:50 basis with those of Mr Lavender. But this does not assist Ms Burkett and it does not mean that her financial arrangement with Mr Lavender is a special reason not to treat her as a member of a couple.

1. Ms Burkett says that as a result of Mr Lavender's decision not to support her or her children financially, and in order to honour her commitments under the financial arrangement with him, she has struggled to make ends meet. With some emotion, she informed me that she now finds herself in a very difficult position, facing potentially dire circumstances, to the extent that she is considering ending her relationship with Mr Lavender for financial reasons.
2. Ms Burkett provided estimates of her weekly expenses as of March 2011[14]. These were not challenged and I accept that they provide a guide as to the approximate level of her weekly expenses at that time. On her unchallenged evidence, her fortnightly contribution of $1,320 to 'household' expenses exceeded her 'personal' expenditure for herself and her children - estimated to be $1,170 per fortnight. Ms Burkett's evidence is that she found it difficult to pay for some things for herself and for her children during 2010-2011, but she was able to manage. She was not able to provide an estimate of her weekly or fortnightly income.
3. At all relevant times Ms Burkett has been earning in employment. In July 2010 she was employed on a full time basis (8.30am to 5.00pm, five days per week) at the ASO5 level by the ACT Magistrates Court, earning approximately $54,000 per annum. She was temporarily appointed to act in a higher position at the SOGC level for a period of eight weeks, during which she earned approximately $83,000 per annum. She took on a second job in August 2010, working 6 hours per week, but in November she fell at work and sustained an ankle injury. She was unable to return to her second job. In her claim for FTB on 21 January 2011, she estimated her income in the 2010-2011 financial year would be $65,000[15]. In May 2011, Ms Burkett obtained a promotion to the APS6 level in the Australian Public Service, earning approximately $68,000 per annum. I am not able to determine with precision the amount of her actual earnings in 2010-2011.
4. At this point, even though this matter primarily concerns Ms Burkett's circumstances, it is relevant to briefly note Mr Lavender's employment and income. Mr Lavender is an Information Technology contractor. In her claim for FTB, Ms Burkett recorded his income to be $120,000 and his child support payments to be $8,000 for the 2010-2011 financial year[16]. Mr Lavender gave oral evidence that these figures are approximately correct, but he could not be precise, noting that his income declines if he finds himself between contracts. He also noted that he expends a variable, and indeterminate, amount each week on his children, purchasing clothes or other items they require, or undertaking recreational activities. His evidence is that his total expenditure on child support and child-related expenses would be approximately $10,000 each year.
5. Reviewing the evidence in respect of Ms Burkett's financial position, it appears that she was able to make ends meet during the relevant period in 2010-2011, although she could not afford to pay for some items. The evidence does not reveal any significant outstanding balance on her credit card or other debts; nor is there evidence of her being in default or in arrears in respect of her financial commitments.
6. I accept that Ms Burkett may experience difficulty paying for certain items from time to time. I also accept that her capacity to earn additional income from a second job may have been reduced, at least temporarily, in consequence of her ankle injury. But she maintained a regular income from employment that increased during 2010-2011. She owns her car and jointly owns the house in which she resides with Mr Lavender, albeit with a mortgage. These are not unusual financial circumstances that set her case apart from the usual run of cases, or that constitute a special reason not to treat Ms Burkett as a member of a couple.

1. Ms Burkett says that without any financial support from Mr Lavender (or additional payments from the children's father) or access to FTB payments, she has significant difficulty paying for necessary medical, surgical, dental, osteopathic, physiotherapy and psychological treatments for herself and her children. She is very concerned about the potentially adverse health effects on her children if FTB is not granted and she is unable to pay for the treatment her children require.
2. During the 2010-2011 financial year, Ms Burkett required surgery on two occasions. One surgical procedure related to a medical condition that required prompt attention. Ms Burkett's evidence is that she could not afford to pay for the procedure, but Mr Lavender would not assist her. She applied for a personal loan, but her application was rejected. Fortuitously, she obtained a tax refund and was able to pay for the procedure. On Mr Lavender's evidence, however, he did not need to provide Ms Burkett with assistance as she managed to pay for the procedure herself - leaving open the possibility that he may have provided assistance if there was no other option. The other surgical procedure related to her ankle injury. On her evidence this was covered by work-injury compensation. Following both surgical procedures she was not able to walk or drive for a time, and she required assistance to care for her children. In both cases, Mr Lavender provided her with no assistance and she relied, instead, on her mother.
3. It appears that Ms Burkett and her children experience medical conditions that require treatment[17]. This was so during 2010-2011 and it is ongoing. Ms Burkett suffers from periodic low back pain (relating to an old injury) that requires osteopathic treatment. She also suffers from an ankle injury, to which I have already referred. Both children require orthodontic treatment. Her younger child requires weekly psychological treatment and physiotherapy. This child suffers from a psychological condition that commenced two years ago (apparently when her biological father commenced co-habiting with his present partner, although that is not corroborated by medical evidence) and she has recently been diagnosed with visual dyslexia. Ms Burkett is very concerned that she will not be able to pay for the treatments that she and her children require. On her evidence, these are not matters that she feels able to discuss with Mr Lavender as "He is not prepared to assist with my children".
4. I accept that it may be difficult for Ms Burkett to discuss such matters with Mr Lavender. It may be that Mr Lavender is not willing to assist Ms Burkett or her children under any circumstances, but this is not presently established. Mr Lavender's evidence is that his first priority is his biological children. It is clear that he expects Ms Burkett to explore all options that may be open to her in order to meet her personal costs or those relating to her children. Having carefully considered his evidence, he did not rule out assisting Ms Burkett if no other option exists and it is necessary. Mr Lavender's position may appear hard, even harsh, but on his evidence before me it is not rigidly black and white, or fixed. By his own account, he enjoys the benefits of a loving relationship with Ms Burkett and it is almost inconceivable that he would refuse to assist her in the event of dire need. Mr Lavender struck me as a reasonable man, grappling with the effects of conflict and an unhappy divorce, who is attempting to do the best he can for his children while navigating the complexities of a new intimate relationship and blended family life.
5. For these reasons I am not persuaded that Ms Burkett's perceptions concerning Mr Lavender's apparent intransigence are reliable. But even if they are, and Mr Lavender has been rigid in his dealings with Ms Burkett, refusing to assist her when she was unwell and denying any support to her children, it does not mean that behaviour of this kind, albeit difficult to comprehend in a purportedly loving relationship, constitutes a special reason not to treat her as a member of a couple. As I have said, these are matters of free choice for both Ms Burkett and Mr Lavender.
6. I accept that Ms Burkett has experienced some difficulty meeting the costs of medical and other treatments she and her children have required. But the present evidence does not establish that she was not able to pay for necessary treatment or that any necessary treatment has been foregone for this reason. Ms Burkett's concern about her capacity to cover future treatment expenses has a prospective quality that is supported by the contents of Exhibit B. The extent to which the cost of these treatments may be covered by the private health insurance cover Ms Burkett and Mr Lavender hold is not clear. Furthermore, it is not presently clear whether all the treatments to which reference has been made are essential or elective treatments - orthodontic treatments for example.
7. There are many who experience health issues from time to time that require treatment. Children are no exception. These circumstances are not unusual. Ms Burkett has private health insurance that may assist her to pay for treatments, subject to cover; but many do not. I accept that Ms Burkett experiences stress, concern and difficulty as a result of the medical conditions and health issues to which reference has been made, particularly in respect of her younger child. Those are unfortunate and challenging issues for any parent. But they are not unusual or uncommon circumstances, and they do not provide a special reason not to treat Ms Burkett as a member of a couple.

1. Ms Burkett says that, without support from Mr Lavender and without FTB payments, her children are experiencing disadvantage and they are being denied opportunities. Her elder child, who is due to turn 16 later this year, will not be entitled to Youth Allowance if Mr Lavender's income is taken into account.
2. Ms Burkett's evidence is that she is not able to pay for many items for her children. These items include school excursions, recreational activities and a laptop or second computer for her children to use at their grandmother's house. This latter point is significant as her children do not have access to a computer for school work when they stay with their grandmother from time to time (their grandmother does not possess a computer). Ms Burkett says that Mr Lavender's income precludes her from eligibility for the Education Expenses Tax Offset, but without any financial support from him she cannot afford these educational costs. On Ms Burkett's evidence, her children struggle with this and other material disadvantages and the resulting domestic disparities with Mr Lavender's children - by his own account, Mr Lavender is an IT consultant who is able to afford laptops or Apple iPads and a variety of discretionary items for his children.
3. With regard to Ms Burkett's evidence about computers, it appears that her children have access to a computer in the household she shares with Mr Lavender, but they do not have laptop computers or Apple iPads like Mr Lavender's children and some of their peers. That may be so, but many are those who do not have equipment of this kind. It may be inferred that Ms Burkett has carefully considered her options and her budget and expenditure priorities with regard to purchasing a laptop or a computer for her children to use when visiting their grandmother. There is no evidence before me in respect of the cost of such equipment; nor am I able to determine whether Ms Burkett seriously explored the issue. I note that Mr Lavender is an IT contractor and, on Ms Burkett's evidence, he installed and maintains complex computer systems in the household they share. In any event, it is likely that many people may not be in a position to afford their children a laptop or second computer. If Ms Burkett experiences difficulty in that regard, her experience would not be unusual or uncommon.
4. In her submission the best interests of her children should not be held subservient to Mr Lavender's recalcitrant decision when applying the law. These considerations and the purposes of the Family Assistance Act must be taken into account when applying section 24 of the Social Security Act. In her submission, the circumstances that flow from Mr Lavender's refusal to provide any financial support to herself and her children, even though he has the financial resources to do so, are particular and unusual. Those circumstances, she asserts, are a sufficiently special reason to exercise the discretion in her favour.
5. I accept that Ms Burkett has a limited financial capacity and that she experiences difficulty paying for various things for her children from time to time. I also accept that disparities may exist between her children and Mr Lavender's children. But there is little clarity with regard to Ms Burkett's assertions concerning disadvantage. She asserts that she is not eligible for the Education Expenses Tax Offset. The Offset is subject to eligibility rules, one of which relates to FTB Part A - if Ms Burkett is not entitled to receive FTB Part A then she is unlikely to be eligible for the Offset. The point she makes is that Mr Lavender does not contribute to the educational costs of her children, but his income effectively renders her ineligible for FTB and the Offset. That may be so, but it does not advance Ms Burkett's case - the issue turns on matters already addressed, concerning the particular manner in which Ms Burkett and Mr Lavender have chosen to conduct their defacto relationship.
6. With regard to school excursions, Ms Burkett informed me that she was not able to afford to pay for her elder child to participate in a school excursion to Italy, but she could not recall any other specific instance - her descriptions were of a more general nature concerning "day trips to Sydney" and "year 6 and 7 excursions". Clearly, many parents may struggle to pay for a child to attend a school excursion to Italy; difficulty of that kind would not be uncommon or unusual. If Ms Burkett was not able to pay for her children to attend less extravagant excursions, to Sydney for example, it is necessary to examine why that occurred. Without more detailed evidence this is a challenging task. It may be inferred, however, that her apparent inability was the result of a conscious decision-making process, in which other items of expenditure and commitments were weighed against the (unknown) cost of the particular activity or excursion. The kinds of expenditure that weighed in the balance when making such decisions can be seen in her own estimates of fortnightly expenses[18]. As can be seen, there are a number of discretionary items of expenditure, including deposits into savings accounts, "coffee/lunch", "school misc" and "entertainment" totalling $185 per fortnight. Additionally, there is an amount of $110 for parking; but this was not required from May 2011 when Ms Burkett changed her employment. To my mind, considerations of this kind, concerning expenditure priorities, are matters that engage most parents (and most people) on a daily or weekly basis. There is nothing unusual about that.
7. The issue of disparity is no doubt difficult for Ms Burkett and for her children. One might hope that responsible parents in blended families would manage such things to minimise any adverse effects on children. But those are matters for the adults concerned. Disparities between children may arise in all kinds of families and circumstances - favouritism of one child over another takes many forms and it is a common cause of unfairness and disharmony. Unfortunate as it may be for those who are adversely affected by it, it is not an unusual or uncommon circumstance, albeit one that is within the power of responsible adults to address. In Ms Burkett's case, these circumstances do not provide a special reason not to treat her as a member of a couple.
8. Ms Burkett has raised issues about Youth Allowance. Her eldest child has not yet turned 16. A claim for Youth Allowance has not been made and the eligibility criteria for payment have not been considered or tested. Anticipating these matters is not a proper basis on which to determine the present matters before the Tribunal.
9. Finally, the issues Ms Burkett has raised concerning the best interests of her children do not take the matter further. I have carefully considered her submissions on this point. The difficulty I have with her submission is that, at the core, it suggests that the circumstances of her relationship with Mr Lavender stand contrary to the best interests of her children. But the manner in which she conducts her relationship, and the terms she settled upon with Mr Lavender, are matters of her own choosing. If the choices she has made (and continues to make) truly bear against the best interests of her children, then it is for her to decide how to best manage her circumstances, including whether those choices should stand or be reconsidered.
10. The cases to which Ms Burkett drew attention do not advance the case - each is clearly distinguished on the facts. The case of WHNV v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[19] was not decided under section 24 of the Social Security Act, but dealt with issues concerning the presence of a marriage-like relationship and applied sections 4(2) and (3) of that Act. The case of _Holt v Secretary, Department of Education, Employment and Workplace Relations[20]_turned on substantially different facts - Mrs Holt did not bring any resources to the marriage and the couple resided in an extremely remote location that adversely affected her capability to obtain employment (the case concerned Newstart Allowance). In the present case, as I have said, Ms Burkett pooled resources with Mr Lavender and she was in employment at all relevant times. The extent of the pooling may not be as extensive as Ms Burkett would like, but it is not correct to say that she does not or could not reasonably be expected to enjoy the benefits of pooling resources and income with Mr Lavender; nor is it correct to conclude that Mr Lavender's income is not available for pooling - in part it is, and in part it is not. These are matters of degree that are predicated, in substantial part, on personal preferences and choices rather than on legal or other practical reasons.

1. Ms Burkett's circumstances, individually and as a whole, do not give rise to a special reason not to treat her as a member of a couple. The decision under review is affirmed.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Simon Webb, Member

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

Representative for the Respondent Mr Michael Najem, Centrelink Program Litigation and Review Branch

[1] WHNV v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 885.

[2] Holt v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143.

[3] Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at 535; Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545.

[4] Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at 535.

[5] Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, at [33]; Beadle v Director General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228.

[6] Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 at [40].

[8] See T11 folios 110 and 111 for example.

[11] T11 folio 110; T11 folios 112-114 refer.

[19] WHNV v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 885

[20] Holt v Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143