ALLAN ROSS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 944
•8 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 944
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4110
GENERAL ADMINISTRATIVE DIVISION ) Re ALLAN ROSS Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Professor RM Creyke Date8 December 2009
PlaceCanberra
Decision The decision under review is affirmed. ....................[sgd]..........................
Professor RM Creyke, Senior Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – child support assessment – maintenance support refused – insufficient proof of paternity – reasonable steps to obtain child support – biological father unreachable in Norway – Applicant seeking review of prospective decisions – Tribunal confined to reviewing decisions already made under legislation providing for review by the Tribunal – decision under review affirmed
A New Tax System (Family Assistance) Act 1999 (Cth) s 21, Sch 1 cl 10
Administrative Appeals Tribunal Act 1975 (Cth) s 25,
Child Support (assessment) Act 1989 (Cth) ss 25, 29A
Social Security (Administration) Act 1999 (Cth) ss 179, 181
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325
REASONS FOR DECISION
8 December 2009 Professor RM Creyke, Senior Member 1. Mr Ross is in receipt of family tax benefit for Svetlana Zadoya, the 5 year old daughter of Mr Ross’s partner, Nina Ross. Mrs Ross and Svetlana arrived in Australia from the Ukraine on 11 March 2009. On that day, Mr Ross applied for family tax benefit (Part A). That benefit was granted to Mr Ross as from 11 March 2009.
2. On 31 March 2009, the Family Assistance Office recorded that Mr Ross had applied for a Child Support Agency assessment. That assessment was refused on 23 April 2009 because Mrs Ross had not been able to provide adequate information about Svetlana’s father. Accordingly, on 10 June 2009, the Family Assistance Office advised Mr Ross that since neither he nor his partner had taken reasonable steps to obtain child support for Svetlana, his family tax benefit payment had been reduced to the base rate.
3. Mr Ross appealed that decision. On 1 July 2009, the original decision-maker upheld the decision and that decision was also affirmed by an authorised review officer on 21 July 2009. However on 13 August 2009, the Social Security Appeals Tribunal, on further review, varied the decision and found that Mr Ross was entitled to family tax benefit (Part A) at above the base rate between 10 June 2009 and 23 July 2009. Mr Ross has sought further review by the Tribunal.
Background
4. Mrs Nina Ross has provided evidence that Svetlana is the daughter of a Mr Arvid Olsen, formerly from Ukraine, who now lives in Norway. Mrs Ross had a relationship with Mr Olsen and at one stage discussed marriage. During a holiday the couple enjoyed in the Ukraine, they had unprotected sex. Subsequently Mrs Ross found she was pregnant. Mrs Ross informed Mr Olsen of her pregnancy, who had since returned to Norway. Mr Olsen was shocked, since his doctor had told him he was unlikely to be able to father a child. At the time, he denied paternity and the relationship came to an end.
5. At the Tribunal, Mrs Ross gave evidence that after Svetlana was born, she had some contact with Mr Olsen, who asked her to come to Norway with the child. Mrs Ross said she was reluctant to do so, since it is her understanding that under Norwegian law, if the father accepts paternity, she would lose the right to remove Svetlana from Norway should Mr Olsen wish to keep her there. She also had concerns that his principal reason for asking her to bring Svetlana to Norway was so Mr Olsen could claim eligibility for tax advantages from having a child to support. She did not go to Norway and subsequently has not spoken to Mr Olsen.
6. Mrs Ross said to the Tribunal that some time in August 2009, Mr Olsen had telephoned her mother in the Ukraine seeking information about Mrs Ross’s whereabouts. However, her mother does not speak English and could not communicate with Mr Olsen. As a consequence, her mother did not pass on the information that Mrs Ross was now in Australia. Mr Ross said in evidence that Mr Olsen appears to have married and to have had another child, information Mr Ross obtained through the internet. Mr Ross said he understood that the Child Support Agency has sent two letters to Mr Olsen seeking to recover maintenance support for Svetlana, but the agency has had no reply to either letter. The letters would, however, have indicated to Mr Olsen that Mrs Ross now resides in Australia.
7. When Mr Ross applied to the Child Support Agency for a child support assessment, he provided a copy of Svetlana’s birth certificate. That certificate shows the father’s name as Arvid Ivanovych Zadoya. Mrs Ross’s maiden name is Zadoya and the certificate states that in the Ukraine:
… in cases when there is no joint parents’ application, no father’s application and no judgement of a court, the information about the child’s father shall be recorded into the Register of Births by the mother’s surname; the first name and the patronymic of the child’s father shall be recorded as per her statement.
8. Despite this explanation on the birth certificate, and the reference on the certificate to the first names of Mr Olsen, on 23 April 2009, the Child Support Agency advised Mrs Ross that her application for child support had not been accepted since there was insufficient proof of paternity of Mr Olsen. As a consequence, on 10 June 2009, the Family Assistance Office advised Mr Ross that since he had ‘not taken reasonable steps to obtain child support for Svetlana’ this would affect the rate of family tax benefit (Part A) and on 16 June 2009, he was advised that the benefit was to be reduced to the base rate. Mr Ross then sought further review but the decision was affirmed by the original decision maker on 1 July 2009 and by the authorised review officer on 21 July 2009.
9. In a telephone conversation with the authorised review officer prior to the decision being made on 21 July 2009, Mr Ross was advised that to establish proof of paternity in cases like this, Legal Aid could assist. Mr Ross was reluctant to seek their assistance since he believed the effort would be fruitless and would be costly. Nonetheless, Mr Ross said he had arranged to have an interview with Legal Aid on 24 July 2009.
10. At the hearing, Mr Ross said he had also contacted the international division of the Commonwealth Attorney-General’s Department on several occasions, since he had been advised that this was the only avenue through which to obtain a family court order in a foreign country concerning paternity. He was also told that there was only one officer who dealt with such matters, and she works part-time. He was also advised that it was pointless to try to get such assistance in relation to a Norwegian citizen in Norway. Following this advice, he did not pursue the matter.
11. The authorised review officer also told Mr Ross that an exemption from the obligation to seek maintenance might apply and he and Mrs Ross should seek advice from a Centrelink social worker. In evidence, Mr Ross said he had spoken with a social worker. At the time, Mr Ross said he was unable to make an appointment to see the social worker in person since Mrs Ross was taking English lessons in the morning and the couple would have difficulty finding time to make the appointment. In any event, the grounds for such an exemption are set out in the Family Assistance Guide, a policy document. This states that an exemption may be granted where there is the potential for violence or a fear of violence, the paternity of the other parent was unknown, or other exceptional circumstances. At the hearing, Mr Ross said the social worker had told him that she could not do anything about an exemption since Mrs Ross’s circumstances did not fall within these grounds. The authorised review officer, in her decision of 21 July 2009, also found that none of these grounds for an exemption applied.
12. At the hearing Mrs Ross said that at some time, she thought in June 2009, she had presented a statutory declaration to the Child Support Agency concerning the paternity of Svetlana and this was regarded as sufficient evidence for maintenance action purposes. Accordingly, on 31 July 2009, Mrs Ross was advised by the Child Support Agency that her application for a child support assessment had been accepted, and a child support assessment for the period 24 July 2009 to 23 October 2010 was attached to the letter. Mr Olsen was assessed to pay an annual amount of $1,178.00. The assessment satisfied the Family Assistance Office test for taking reasonable maintenance action.
13. On 13 August 2009, the Social Security Appeals Tribunal decided that Mr Ross was entitled to family tax benefit at the above base rate for the period 10 June 2009 to 23 July 2009. This decision was taken based on the letter from the Child Support Agency advising that a child support assessment had been made. The Secretary stated in the letter of 10 November 2009 that this information had not been available to Centrelink at the time it made its decisions, a view disputed by Mr Ross, who suggested the information would have been available to Centrelink from some time in May 2009. From that decision Mr Ross appeals to the Tribunal. He has requested that the Tribunal decide that reasonable administrative action has been taken at all relevant times and that will continue to be the case unless an unlikely event occurs, namely, that Mr Olsen accepts parentage and agrees to pay child support for Svetlana.
Issues
14. The main issues are:
·Whether it was reasonable to require that either Mr or Mrs Ross take action to seek maintenance support for Svetlana from Mr Olsen;
·Whether Mr or Mrs Ross have taken reasonable maintenance action; and
·Whether the correct rate of family tax benefit was paid to Mr Ross for the period 10 June 2009 to 23 July 2009.
15. Mr Ross argues that the decision by the Social Security Appeals Tribunal about the rate is for a closed period only and he has been advised that the Family Assistance Office may review the assessment potentially every 14 days. He suggests that the Tribunal should make a decision which precludes reconsideration by the Family Assistance Office, thus avoiding the couple being required repeatedly to undertake the process they have already gone through to establish that they have taken ‘reasonable administrative action’.
16. The Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs, accepts that for the period 10 June 2009 to 23 July 2009, Mr Ross was entitled to an exemption from the maintenance action test. The Secretary argues, however, that after the child support application was accepted, the maintenance exemption does not continue as the Child Support Agency has accepted proof of parentage and that the parent resides in a country, namely, Norway, which is a country which has a reciprocal agreement with Australia as to payments of these kinds. That is, Norway is a ‘reciprocating country’. The Secretary also noted that future reviews are not part of the present application to the Tribunal for review, as they have not been decided upon by the Social Security Appeals Tribunal and it is not possible to know if or when circumstances will arise that may lead to a review.[1]
[1] Secretary’s Statement of Facts & Contentions, dated 10 November 2009.
Legislation
17. The legislation is found in a combination of A New Tax System (Family Assistance) Act 1999 (Cth) (The Act) and the Child Support (Assessment) Act 1989 (Cth). Section 21 of the Act provides the eligibility criteria for family tax benefit. Broadly the section provides that a person is eligible for family tax benefit if the person has a family tax benefit child, is an Australian resident, and the person’s rate of family tax benefit is greater than nil. The rate of family tax benefit is to be calculated ‘in accordance with the Rate Calculator in Schedule 1’.[2] The rate, again broadly, is based on factors such as whether the person is a member of a couple, the adjusted taxable income of the person (and their partner), and the number and age of any dependent child.
[2] A New Tax System (Family Assistance) Act 1999 (Cth) s 58.
18. In calculating the amount of family tax benefit, clause 10 of Schedule 1 of the Act provides that a person’s rate of family tax benefit is restricted to the base rate if the person or their partner has not taken steps the Secretary considers reasonable to claim or apply for maintenance for the child. The clause provides:
10 Effect of Maintenance Rights
The FTB child rate for an FTB child of an individual is the base FTB child rate (see clause 8) if:
(a) the individual or the individual’s partner is entitled to claim or apply for maintenance for the child; and
(b) the Secretary considers that it is reasonable for the individual or partner to take action to obtain maintenance; and
(c)the individual or partner does not take action that the Secretary considers reasonable to obtain maintenance.
Section 25 of the Child Support (Assessment) Act 1989 (Cth) provides the mechanism by which a person can apply for an assessment to be made when the parent is a resident of another country and that country has an agreement with Australia for reciprocal arrangements for payments of child support. The provision states:
25 Persons who may apply––parents
A parent (the applicant) of a child may apply to the Registrar under this section for administrative assessment of child support for the child if:
(a) the applicant applies for both parents to be assessed in respect of the costs of the child; and
(b) the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent); and
…
(d) if either parent of the child is not a resident of Australia on the day on which the application is made–the application meets the requirements of sections 29A and 29B.
Section 29A of the Child Support (Assessment) Act 1989 (Cth) provides:
29APerson by whom child support is payable must be Australian resident or resident of reciprocating jurisdiction
(1) This section applies if:
(a) an application is made under section 25 … for a parent to be assessed in respect of the costs of the child; and
(b) the parent is not a resident of Australia on the day on which the application is made.
(2) The Registrar must determine whether child support is reasonably likely to be payable by the parent.
(3) If the Registrar determines that child support is reasonably likely to be payable by the parent, the application is taken to have been properly made only if:
…
(b) the parent is a resident of a reciprocating jurisdiction on the day on which the application is made.
Norway is a reciprocating jurisdiction for the purpose of the Child Support (Assistance) Act 1989 (Cth).
19. In assessing the rate of family tax benefit, the Secretary must decide whether the person seeking family tax benefit or the person’s partner is entitled to claim or apply for maintenance for the child; it is reasonable to require the person to do so; and what would be reasonable action to seek maintenance support.
20. The Family Assistance Guide, a policy guide for assistance in interpreting the provisions in the Act, gives examples at clause 3.1.5.30 of what would be reasonable steps. The clause provides that reasonable maintenance action has been taken when a person has applied for a child support assessment through the Child Support Agency, and is having payments collected by the Child Support Agency, or the person has lodged a Child Support Agreement. The Family Assistance Guide at 3.1.5.40 also provides that a person takes adequate action to obtain maintenance while the person is taking action to prove parentage.
21. The Family Assistance Guide clause 3.1.5.70 indicates the circumstances when an exemption from seeking maintenance or taking maintenance action is countenanced. The provision states, as relevant:
Applicants/recipients may be granted an exemption from the maintenance action test in the following circumstances:
·If they fear that if they take action for child support the payer will react violently towards them or their family,
·If the identify of the other parent of the child … is unknown,
·If they have had legal advice that paternity could not be proven through a court,
·Where there are other exceptional circumstances.
Agreed facts
22. At the hearing Mr Ross agreed that the facts as set out in the Statement of Facts & Contentions provided by the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs were correct.[3] In essence, those facts set out in brief the history and the decisions in relation to Mr Ross’s application.
[3] Above n 15, paras 5 - 25.
Evidence
23. At the hearing, Mr Ross said that since he was in receipt of family tax benefit at above the base rate, he was not seeking review of that decision. His principal concern was that through administrative oversight he has been required to take steps which have led him into a situation in which he may be required, possibly on a regular basis, to show that he has taken action to obtain maintenance. As he said at the hearing, the effect of the reasons provided by the Social Security Appeals Tribunal is that, in effect, it gave the Family Assistance Officer permission to review his circumstances on a fortnightly basis from 24 July 2009. No such review had been sought to the date of the hearing. Indeed, the Tribunal notes that the period for which the assessment was granted lasts until October 2010.
24. As Mr Ross pointed out, had the information in another policy document, the ‘e-Reference’ been applied, he could have been granted an exemption for taking maintenance action. Clause 007.900.90 of the ‘e-Reference’, sets out a procedure for applying the maintenance action test in circumstances such as those applying to Mrs Ross. The relevant clause in the ‘e-Reference states:
The Child Support Agency will reject the application [for a child support assessment] if:
· The payer is in a reciprocating country and proof of parentage does not exist. …
In these cases, the customer should be given an exemption for the Maintenance Action Test without referral to Legal Aid. It is considered unreasonable to force the customer to continue to pursue child support because of the expense and length of time involved and unlikely successful outcome.
Had that policy been applied, he would not now be faced with the prospect of having to establish again, at some time in the future, that he was taking reasonable maintenance action. However, since the Child Support Agency had accepted Mrs Ross’s statutory declaration as to parentage that avenue is no longer open.
25. Mr Ross also said at the hearing and in his statement that it is not likely that the Child Support Agency will be able to collect child support payments from Mr Olsen. Not only has he not accepted parentage, but since he appears from information on the world wide web to now have another partner and a child, and since Svetlana’s birth, he has not contacted Mrs Ross or Svetlana, or responded to the Child Support Agency correspondence concerning child support, it is unlikely that he will be prepared to accept any financial obligation for her in the future.
26. Mr Ross also noted that the conjunction of two agencies – the Child Support Agency, and the Family Assistance Office – in cases such as his, complicates the position for applicants, especially when both agencies give inconsistent advice or do not agree about the process. Such a situation, as he pointed out, would be particularly difficult for new arrivals in Australia, especially those whose first language is not English.
Consideration
27. Mr Ross is not seeking review of the decision by the Social Security Appeals Tribunal. This decision was that Mr Ross was entitled to family tax benefit (Part A) at above the base rate from 10 June 2009 to 23 July 2009.
28. Mr Ross has asked the Tribunal to decide that there has been reasonable maintenance action at all relevant times, and that will continue to be the case. The Tribunal notes the evidence that Mr Olsen has not decided to accept a financial obligation towards Svetlana and on present indications, such a change is unlikely.
29. In relation to this argument, the Tribunal points out that the jurisdiction of the Tribunal is confined. Under the Administrative Appeals Tribunal Act 1975 (Cth) section 25, the Tribunal may only review decisions made under legislation which provides for Tribunal review. The Social Security (Administration) Act 1999 (Cth) describes the powers of review of the Tribunal. Section 179 of that Act states:
Review of decisions by AAT
(1) If:
(a) a decision has been reviewed by the SSAT; and
(b) the decision has been affirmed, varied or set aside by the SSAT;application may be made to the AAT for review of the decision of the SSAT.
Section 181 of that Act provides the Tribunal may only review a decision which has been reviewed by the Social Security Appeals Tribunal (SSAT).[4] Accordingly, the jurisdiction of the Tribunal is limited to review of decisions which have been reviewed by the SSAT.
[4] Social Security (Administration) Act 1999 (Cth) s 181.
30. Since Mr Ross is not seeking review of the decision by the SSAT that he was entitled to family tax benefit (Part A) at the above base rate for the period 10 June 2009 – 23 July 2009, the Tribunal has no jurisdiction in relation to that aspect of the decision.
Mr Ross is seeking review of the possibility that he may be subjected to the maintenance action test in the future. The Tribunal is unable to make decisions having prospective effect which may preclude further hypothetical decisions. As Davies J noted in Freeman v Secretary, Department of Social Security[5]:
Regard must always be had to the nature of the decision which is under review. …[I]f the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration.[6]
[5] Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.
[6] Ibid, 345.
Since no actual decision has yet been taken to require Mr Ross to again take reasonable administrative action, there is no ‘decision’ capable of being reviewed by those individuals or bodies with authority to review decisions under social security law, including the Tribunal.
31. If in the future, Mr Ross is faced with establishing he has taken reasonable maintenance action, he could seek to establish that although theoretically entitled to claim maintenance for Svetlana from Mr Svetlana’s biological father, assuming that, as he argues, it is not likely that Mr Olsen will either accept parentage of, or any financial obligation towards, Svetlana, it may no longer be reasonable for the Secretary to require maintenance action.[7]
[7] A New Tax System (Family Assistance) Act 1999 (Cth), sch 1 cl 10.
32. The Tribunal acknowledges that Mr Ross’s arguments that the Family Assistance Guide and any other policies are no more than guides. However, the agency is entitled to apply those policies to the extent that they are lawful and do not prevent officers considering arguments about other circumstances.[8]
[8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641; Re Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325 at 334-335.
33. The Tribunal also acknowledges Mr Ross’s frustration about the difficulties he has faced in seeking to navigate his way between two agencies, operating in multiple offices, and dealing with complex legislation and disparate circumstances. However, in the circumstances outlined, the Tribunal is unable to do more than affirm the decision under review and to indicate that the broader issues raised by Mr Ross may be an appropriate topic for consideration by the Office of the Commonwealth Ombudsman.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.
Signed: .....................[sgd]....................................
C. Kocak, AssociateDate of Hearing 23 November 2009
Date of Decision 8 December 2009Solicitor for the Applicant Ms J Furner, Centrelink Legal Services
Solicitor for the Respondent Self represented
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