(b) after the determination is made an event occurs; and

(c) when the Secretary becomes aware of the occurrence, the Secretary considers that, if he or she were making the determination immediately after the occurrence, he or she would conclude:

(i) that the claimant was no longer eligible for family tax benefit; or

(ii) that the claimant was still so eligible but that the rate of family tax benefit should be a different rate to the rate previously determined;

(d) if subparagraph (c)(i) applies - vary the determination so that the claimant is not entitled to be paid family tax benefit with effect from the date of occurrence; and

(e) if subparagraph (c)(ii) applies - vary the determination so as to establish the different rate with effect from the date of occurrence.

(1A) For the purpose of subsection (1), the occurrence of an event includes the expiration of a period of time if the expiration of that period is relevant to the operation of this Act.

(1B) The reference in subsection (1) to the occurrence does not include the occurrence of any event:

(a) that causes the claimant to provide a revised estimate of the claimant's adjusted taxable income to the Secretary; or

(b) that causes the Secretary to revise an estimate of the claimant's maintenance income; unless:

(c) the event also affects the claimant's eligibility for family tax benefit, or the rate of family tax benefit payable to the claimant, for a reason other than the amount of the claimant's adjusted taxable income or maintenance income; or

(d) the event is the claimant's becoming, or ceasing to be, a member of a couple.

1. The Applicant submitted that the cumulative effect of subsection 31(1) and section 31C of the Administration Act and paragraph 21(1)(c) of the Act was that the Respondent was no longer eligible for family tax benefit from 1 July 2020.
2. The Applicant submitted that the Agency issued notice to the Respondent on 4 June 2020, sent to the Respondent's myGov inbox, was deemed to have been received on 8 June 2020 as she was notified of the notice via email on this date, in accordance with subsection 14A(1) of the Electronic Transactions Act 1999 (Cth).[4]
3. I find that the relevant notice in this matter is the notice sent to the Respondent on 4 June 2020, as this notice replaces the previous notice of 21 May 2020 and provides an updated indexed estimate of family income to be used by the Agency in relation to the Respondent's family tax benefit if no estimate is provided. I accept the submission from the Applicant that the Respondent is deemed to have received the notice issued by the Agency on 8 June 2020 irrespective of whether they viewed the notice, in accordance with previous decisions of the AAT.[5]
4. I discussed the letters received from the Applicant on 21 May 2020 and 4 June 2020 with the Respondent.[6] I asked whether the Respondent recalled the letters. The Respondent's evidence was that she could not recall receiving the letters or how they were received from the Agency. She said that the majority of the time, she left it to the Agency to determine the income estimate because she had elected to receive a nil rate of family tax benefit by instalment throughout the financial year. The Respondent stated that this was to avoid the possibility of an overpayment if her husband, who is self-employed, had a very good year and therefore she might be required to repay family tax benefit because of an overpayment. This had happened in the past and so she wished to avoid this occurring again. As a consequence, even if she could recall reading the notice, she would not have contacted the Agency to lodge an estimate of family income because she would not be receiving family tax benefit by instalment during the financial year as she had elected to receive a nil rate for the financial year. I accept that the Respondent did not take any action to notify the Agency of an estimated family income for the financial year commencing 1 July 2020.
5. As a consequence of the Respondent not advising the Agency of an estimated family income, the Respondent applied an indexed estimate of family income of $108,177.00 from 1 July 2020. This amount, when applied to the Respondent's rate of family tax benefit, resulted in the rate of family tax benefit being nil. I note that the indexed estimate of $108,177.00 was not the amount advised to the Respondent in the notice on 4 June 2020.
6. The Applicant submitted that due to a technological issue, the Respondent's estimated indexed amount of family income was recorded incorrectly as $106,510 in the notice issued on 4 June 2020. The Applicant submitted that the incorrect amount in the notice did not invalidate the notice as the amount in the notice of 4 June 2020 still exceeded the family tax benefit income threshold for eligibility from 1 July 2020.
7. I accept that the indexed estimate of family income amount in the notice of 4 June 2020 was higher than the family tax benefit income threshold and would have resulted in a rate of family tax benefit of nil. I am also satisfied that the Agency varied the determination under section 31C of the Administration Act to determine the rate of the Respondent's family tax benefit on the basis of the indexed estimate of family income of $108,177.00. As a consequence, as the rate of family tax benefit was not greater than nil as required under paragraph 21(1)(c) of the Act, the Respondent was not eligible for family tax benefit from 1 July 2020 and the Agency was required, in accordance with subsection 31(1) of the Administration Act, to determine that the Respondent was no longer entitled to family tax benefit from 1 July 2020.
8. The notice to the Respondent which purported to 'cancel' family tax benefit did not specify the income used. I accept that the actual indexed estimate of family income used in the decision on 18 June 2020 and sent to the Respondent advising that family tax benefit was 'cancelled', was the higher indexed estimate of family income than used in the notice of 4 June 2020. However, on either amount of indexed estimate, the amounts were above the income threshold from 1 July 2020. The Respondent's evidence was that the amount of the estimate of family income was left to the Agency to determine and they would not have contacted to advise otherwise, as they had elected to be paid a nil rate of family tax benefit from 1 July 2020.

1. It is unclear as to the legislative basis which allows for the Respondent to elect a nil rate during the financial year and to receive the family tax benefit as a lump sum at the end of the financial year. The Guide allows for a family tax benefit recipient to make such a choice and contemplates that the payment of family tax benefit by instalment be received by way of a lump sum at the end of the relevant year.[7] I find that the choice by the Respondent to receive family tax benefit by instalment as a lump sum payment at the end of the relevant year does not affect the decision on 18 June 2020 by the Agency which determined that the Respondent was not entitled to family tax benefit from 1 July 2020.
2. As a determination was made on 18 June 2020 by the Agency that the Respondent was not entitled to family tax benefit from 1 July 2020, it was open to the Respondent to test their eligibility for family tax benefit for the 2020-21 financial year by making a further claim for family tax benefit.
3. I note that the documents provided by the Applicant contain such a claim for family tax benefit for the 2020-21 financial year.[8] This claim was not determined, according to the documents provided by the Applicant, until 24 September 2024, when the Agency notified the Respondent of a decision not to pay family tax benefit for the 2020-21 financial year because the claim was not received by 30 June 2022.
4. Subsections 10(1), (2) and (2A) of the Administration Act provide as follows:

Restrictions on claims for payment of family tax benefit for a past period

Restriction where previous claim or instalment determination

(1) A claim for payment of family tax benefit for a past period is not effective if:

(a) the claimant has previously made a claim for payment of family tax benefit for any of the past period (whether or not the claim has yet been determined); or

(b) the claimant was entitled to be paid family tax benefit by instalment at any time in the past period; or

(i) a determination under section 16 was in force at any time in the past period under which the claimant was not, because of a variation of the determination under subsection 27(5), 27A(3), 28A(2), 28B(2), 28B(3), 29(2), 30(2), 30A(2) or 30B(2), entitled to be paid family tax benefit;

(ii) the claim is made before the end of the income year following the one in which the variation mentioned in that subsection took effect.

Claim must relate to one income year and be made within a certain period

(2) A claim for payment of family tax benefit for a past period is not effective if:

(a) the period does not fall wholly within one income year; or

(b) the period does fall wholly within one income year (the relevant income year ) but the claim is made after the end of:

(i) the first income year after the relevant income year; or

(ii) such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making the claim before the end of that first income year.

(2A) The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.

1. I note that this decision has not been internally reviewed by the Agency. It is open to the Respondent to seek further review of this decision and, given the claim was made on 24 October 2022 by the Respondent, whether there are special circumstances which prevented the Respondent from making the claim before 30 June 2022.
2. As this decision has not been reviewed by the Agency, it is not before me for consideration and I have not made a decision as to whether there are special circumstances which prevented the Respondent from making the claim before 30 June 2022. Any such decision, when made, will have attached to it rights of review.

1. The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the Respondent is not entitled to be paid family tax benefit with effect from 1 July 2020.

[2] T-documents, pages 1 to 101; Supplementary T-document pages 102-112.

[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.

[4] Page 105 of the supplementary T-documents.

[5] As per Paoli v Secretary, Department of Social Services [2021] AATA 1703 (at para [34]); Secretary, Department of Social Services v Schuh [2022] AATA 53 (at para [52]; and Riediger v Secretary, Department of Social Services [2024] AATA 118 (at para [36]).

[6] Pages 102 to 104 and 106 to 108 of the supplementary T-documents.

[7] See Chapter 4.3.1.20 - FTB payment choices of the Guide.