Boscolo and Secretary, Department of Family and Community Services

[2005] AATA 795

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 795

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: N2005/02

GENERAL ADMINISTRATIVE DIVISION		)
Re		SYLVIA BOSCOLO

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

First Respondent

MARIO BOSCOLO

Second Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date18 August 2005

PlaceSydney

Decision

For the reasons given orally the day following the conclusion of the hearing, the Tribunal decides that the decision under review is affirmed.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and are furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

[Sgd]  Ms G Ettinger   Senior Member

CATCHWORDS

FAMILY TAX BENEFIT – FTB child of father and then mother – whether dates for latter correct – did, while the child was an FTB child of the father, an event occur in relation to him without the father’s consent which prevented the child being in his care - did the father take reasonable steps to have the child in his care again - decision affirmed.

I certify that the preceding pages are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:C.M.McLean .....................................................................................
  Associate

Date/s of Hearing  9 August 2005
Date of Decision  10 August 2005  
Representative for the Applicant               Self-represented
Representative for the Respondent          Ms J Green

JUDGMENT  
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2005/02
By MS ETTINGER, Senior Member
SYLVIA BOSCOLO and THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES and MARIO BOSCOLO
SYDNEY, WEDNESDAY, 10 AUGUST 2002

MS ETTINGER:  

I am about to deliver the reasons in the matter of Sylvia Boscolo and Secretary, Department of Family and Community Services and Mr Mario Boscolo, the second respondent.  I note that none of the parties are present today.

BACKGROUND

Just to put this matter into context. I note that the application before me was that of Mrs Sylvia Boscolo made for review of the decision of the Social Security Appeals Tribunal of 24 November 2004 which affirmed the decision of the authorised review officer of the Secretary, Department of Family and Community Services, the first respondent in these proceedings, which was dated 25 May 2004.

The authorised review officer had affirmed the decision of the delegate of Centrelink which decided that Mrs Boscolo's family tax benefit - I have also referred to that as FTB - should commence on 21 April 2004.  Mr Mario Boscolo, former husband of the applicant, was joined as the second respondent.  Mrs Boscolo was self-represented at the hearing, and the advocate for the respondent department was Ms J. Green.

Mr Boscolo, who lives in Perth, attended by telephone.  Mr Boscolo said he felt disadvantaged because he is old, because he was so far away, and due to his language skills - his first language being Italian.  I was concerned to make sure Mr Boscolo could hear everything which was said, and ensured he had every opportunity to question Mrs Boscolo, and to make his closing submissions after the close of evidence.  I was satisfied that Mr Boscolo's English is quite fluent and quite satisfactory and, in fact, took several documents he had produced in fluent English into evidence. They are exhibits R3 and R4 before the Tribunal.

ISSUE BEFORE THE TRIBUNAL

The issue before the Tribunal was whether the correct and preferable decision was to affirm, vary or set aside the decision of the respondent to commence Mrs Boscolo's family tax benefit in respect of David Boscolo on and from 21 April 2004.

THE LEGISLATIVE CONTEXT

As to the legislation.  The relevant legislation in this matter is A New Tax System (Family Assistance) Act 1999,  in particular, sections 22 and 23 to which I shall refer in more detail later on in these Reasons for Decision.

THE EVIDENCE BEFORE THE TRIBUNAL

As to the evidence before the Tribunal. Two sets of documents were lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  They were exhibit R1, a set which was made available to Mr Boscolo, and exhibit R2, the set which Mrs Boscolo had.  Exhibit R1 omitted some documents containing personal information about Mrs Boscolo, including her address and her application for Family Tax Benefit date-stamped by Centrelink on 21 April 2004. 

Mrs Boscolo also tendered a letter confirming the enrolment of David Boscolo at school in Sydney, dated 20 February 2004. It was exhibit A1. 
Both Mr and Mrs Boscolo gave oral evidence and made submissions.

Mr and Mrs Boscolo have been through Family Court Proceedings which awarded custody of David to Mr Boscolo in 1995.  David, whose date of birth is 11 October 1991, had been living in Perth with his father and attending school there since 1995.  Relations between his parents are quite acrimonious, as was quite obvious from documentation before the Family Court and the exchanges between Mr and Mrs Boscolo during the hearing before me.

During 2003, the period relevant to this matter, an agreement was made between the parents after Mrs Boscolo had been in Perth visiting during Mr Boscolo's trip to the Philippines.  The agreement was that David spend the Christmas holidays with his mother, and his other siblings in Sydney.  Accordingly, on 13 December 2003, David travelled by air to Sydney.  His sisters had also purchased a return ticket for him dated 20 January 2004. 

However, it transpired that he did not return to live with his father in Perth.  That has led to the decision to grant Family Tax Benefit to Mrs Boscolo, and her subsequent appeal to this Tribunal.

SUBMISSIONS AND CONCLUSIONS

I move then to the submissions and conclusions.  I have considered all the evidence, oral and written, and the legislation in coming to a decision whether to affirm, vary or set aside the decision of the respondent to commence payments of Family Tax Benefit to Mrs Boscolo for David from 21 April 2004.

It was not in dispute, and I have accepted that David Boscolo is an FTB child pursuant to section 22(2) of the Act.  Section 22(2) of the Act has subsection (a) to (d), all of which are met in David's situation.  That is, he is under 18 years of age, his mother has the responsibility for his day-to-day care, welfare and development, he is in her care, and he is an Australian citizen.

It was also not in dispute, and I accepted that pursuant to section 21(1) of the Act, Mrs Boscolo is eligible for Family Tax Benefit because she has David who is an FTB child, she is an Australian resident, and her rate of Family Tax Benefit calculated appropriately is greater than nil.

What was in contention was section 23(1) of the Act, that  is, whether when David was an FTB child of Mr Boscolo, an event occurred in relation to him without Mr Boscolo's consent which prevented David being in his care, and whether Mr Boscolo had taken reasonable steps to have David in his care again. 

That would influence the date of commencement of Mrs Boscolo's entitlement to Family Tax Benefit. She made an application on 21 April 2004, coincidentally, on the day Mr Boscolo decided he did not wish to further formally pursue recovery action for David.

Mrs Boscolo asserted that Mr Boscolo knew of David's wishes to stay with his mother and siblings in Sydney from December 2003, and knew that David would not be returning for the 2004 school year.  She said that when she visited Perth in 2003, she had taken David to a paediatrician because he was having headaches.  She was concerned that he was malnourished, and even that Mr Boscolo had struck him.  Mrs Boscolo also said that David had expressed his wishes to her in December 2003 when he arrived back in Sydney. She said that she had informed Mr Boscolo of those, and that after visiting Mr Boscolo a few times in Sydney, David had on each occasion, expressed the wish to stay with his mother and his siblings.

In support of her statements, Mrs Boscolo drew my attention to a letter she had written to Mr Boscolo on 19 January 2004, stating that:

Over the past few weeks that David has been in Sydney David has continually said he has made up his mind that he wishes to remain in Sydney.

She continued:

David has also expressed these same wishes on many occasions since his last stay in Sydney in October and prior to his arrival in Sydney on 13 December 2003.

Mrs Boscolo's said that before David left Perth for Sydney on 13 December 2003, he had parties and farewelled his friends. I noted that that first came up in submissions, not in Mrs Boscolo’s evidence.  She was able to name George and Albert as friends.  She said that the only reason her daughters had purchased a return ticket for David, dated 20 January 2004, was because Mr Boscolo would not let him come to Sydney without that in place.

Mr Boscolo, on the other hand, disagreed with that.  He said that he expected David to return to Perth, and had had to notify the school in Perth when David did not return.  He wrote to the school on 2 February 2004, as follows:

I have to unhappily report that my young David has not returned from visiting his mother and siblings in Sydney and their information to me that he is presently remaining there.  So far I am unable to comment further.

Mrs Boscolo's evidence was that when Mr Boscolo came to Sydney in February 2004, it was not, as he had told the Tribunal, to get David to go back with him, but to deal with a residential tenancy matter.  She drew my attention to various documents in the T-documents in support of her case.  They were, amongst others, T6.  These are in the pink set of T- documents which Mrs Boscolo has, and in a different place in the blue T-documents which are Mr Boscolo's.  T6 in the pink documents, is a letter from Mrs Boscolo to her former husband dated 19 January 2004, from which I have quoted above.  T11, was a file note of Centrelink, referring to Mr Boscolo, dated 26 March 2004, with the annotation:

Queried customer re care of David.  Customer was inconsistent.  Stated has 100 per cent.

Mrs Boscolo interpreted that as her former husband not being up-front with Centrelink.  Then there was T34, a file note made 23 November 2004 by the Boscolo's daughter Karina.  Mrs Boscolo said she is now a solicitor.  In it she stated that she had a telephone conversation with her father on or about April 2004, and noted there that Mr Boscolo found David a bit much to handle, and had agreed to have him remain in Sydney.

Mrs Boscolo submitted in summary that it was clear from the evidence and documents, that on 13 December 2003, David had come into her care with his father's knowledge and consent, and that Mr Boscolo knew David would not be returning to Perth.  She submitted that her former husband did not restrain David or persuade him from remaining in Sydney.

I then moved to consider whether David remained in Sydney with Mrs Boscolo, from 20 January 2004, without Mr Boscolo's consent.  In that regard I noted that David had a return ticket to Perth for 20 January 2004 purchased by his sisters.  At T10, dated 15 February 2004, there was a letter from Mr Boscolo which he had written to the Family Assistance Office in Fremantle stating that he had not yet taken a recovery order out to have David returned to him, adding that he was going to attempt to do so without litigation because he was worried about the “sensibility” of a 12-year-old child.

Mrs Boscolo made quite a fuss about use of the word "sensibility" in the letter which was used, perhaps, when "sensitivity" may have been intended.  She read out a dictionary definition of the word.  In my view nothing turns on that except that I consider it is likely Mr Boscolo used the term because in Italian "sensitivity" translates into "sensibilita" which sounds more like "sensibility".

I was satisfied from the evidence that notwithstanding he may have had an appointment for a tenancy matter, Mr Boscolo came to Sydney in February 2004 to try and get David to go back with him.  He filled in a form on 21 February 2004 - to be found at T14 - indicating that David would be living with him permanently.

I was mindful also of Mrs Boscolo's evidence that David had expressed his wish to stay in Sydney, and that her former husband had said to David in February 2004 that he had not come to take him back.  She submitted that Mr Boscolo had filled in forms simply to obtain a benefit.

Having heard all that evidence and seen the documentation, I was satisfied that David travelled to Sydney on 13 December 2004, and that he had a return ticket to Perth for 20 January 2004.  It is not in dispute that he did not return on that date.  I was satisfied that David remained in Sydney from 20 January 2004 without Mr Boscolo's consent.  The evidence indicated that the trip by Mr Boscolo to Sydney in February 2004 was, notwithstanding he may have had other reasons, an attempt to have David return to Perth.  I was satisfied that Mr Boscolo had briefed solicitors to initiate action to recover David, and that, notwithstanding contact with Centrelink in May by Mr Boscolo indicating he was still wanting David back, his recovery action was withdrawn on 28 April 2004.

I noted with interest that Mrs Boscolo applied for Family Tax Benefit for David on 21 April 2004, precisely on the date on which Mr Boscolo stated that he would not be pursuing further recovery of David.  I noted Mrs Boscolo's explanation, which I did not accept, that she understood she could have applied at any time, and that the benefit would have been back-dated.

I then moved to consider whether Mr Boscolo had taken reasonable steps to have David in his care again.  In that regard I have noted that Mr Boscolo came to Sydney in February 2004 and, notwithstanding he may have come because he also had an appointment in regard to a residential tenancy matter, the evidence indicated he discussed David's return with David, and with his former wife.  He filled in a form which is at T14 of the T documents, dated 21 February 2004, in which he indicated that David would be living with him permanently.  Mr Boscolo visited Centrelink with regard to David's return, stating, however, that in consideration for the child's welfare he did not want to take litigious action.

Mr Boscolo engaged solicitors, David H. Cohen and Co, to deal with recovery of David.  At T12 there is a letter from the solicitors to Mrs Boscolo, recording service of an application for recovery of the child.  Mr Boscolo said that he had not instructed the solicitors to proceed with recovery of David, and had later withdrawn his brief to them, and attended at E.H. Tebbutt and Sons, Lawyers.  A letter from E.H. Tebbutt and Sons, dated 23 April 2004, to Mrs Boscolo was before the Tribunal at T16.  In that letter the solicitors stated:

We are instructed that our client did not wish to seek a recovery order in respect of David and that the application for the recovery order was brought about due to a miscommunication with his solicitors.  Our client acknowledges David's wishes to stay with you and therefore accepts for him to remain in your care in New South Wales.

The application for recovery was then withdrawn on 28 April 2004. 

However, file notes of Centrelink on 5 May 2004, which are at T19 and T20, recorded regarding a contact by telephone with Mr Boscolo indicated he was still waiting to recover David, and that Mrs Boscolo had refused to return David to his father.

There was some contradiction or miscommunication in that E.H. Tebbutt and Sons wrote to Mr Boscolo on 7 May 2004 and 4 June 2004 confirming their advice to the Court of Mr Boscolo's intention to accept David's wishes to remain in Sydney with his mother.  At the hearing Mr Boscolo expressed dissatisfaction with the lawyers, and a possibility he would make a complaint about them for not communicating with him in a timely manner.  I noted that he has now briefed a third firm of solicitors.  However, the application for recovery of David was finally withdrawn on 28 April 2004.

Notwithstanding some apparent confusion in regard to instructions to lawyers, I was satisfied that Mr Boscolo intended David to remain with him before 21 April 2004.  He ensured a return ticket was bought for David for 20 January 2004, for a return in time for the 2004 school year, and action for recovery was taken through solicitors.  I was satisfied with his explanation of the withdrawal of recovery action made in a letter dated 9 July 2004 to E.H. Tebbutt and Sons.  Mr Boscolo stated:

The reason I never wished to seek a recovery order simply was and is that an adversary action would upset child David.

I was satisfied that notwithstanding his statements to Centrelink in May and June 2004 regarding his wish to recover David, Mr Boscolo had agreed that David should remain with his mother and siblings on or about 21 April 2004.

Now, a qualifying period; -- I am required also to take into account section 23(2), of the Act in which reference to section 23(5), of the Act is made to determine the period during which David was an FTB child of Mr Boscolo.  As I have accepted that David left his father's care on 13 December 2003, and remained in his mother's care without his father's consent until 21 April 2004, Mr Boscolo's qualifying period is determined accordingly. 

Mrs Boscolo's FTB therefore cannot be paid before 21 April 2004. Accordingly, the decision under review must be affirmed. 

DECISION

The Tribunal affirms the decision under review.