Confidential and Secretary, Department of Social Services and Anor

[2014] AATA 872

[2014] AATA 872  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6977
Re	Confidential
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	Anor
THIRD PARTY

DECISION

Tribunal	Ms S Taglieri, Member
Date	25 November 2014
Place	Hobart

The Application is allowed and the matter remitted to the Respondent to give effect to the determination at paragraph 29 of the Reasons.

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Ms S Taglieri, Member

CATCHWORDS

Family Tax Benefit; whether payable for 14 week qualifying period; to mother of child who left without her consent; or actual carer due to special circumstances.

LEGISLATION

A New Tax System (Family Assistance) Act 1999, Section 23(5A)

CASES

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Lomas v SDFaCS (2004)81 ALD 251

Temmen v SDSS (1992) 28 ALD 137

REASONS FOR DECISION

Ms S Taglieri, Member

INTRODUCTION

1. This application concerns whether the Applicant (“A”) or the third party (“TP”) should receive Family Tax Benefit (“FTB”) for the 14 week period after 2.11.12. That date being when the child who will be referred to as “J”, left the care of his mother, who is the third party. At the relevant time, J was aged 15.

2. The Applicant is J’s maternal grandmother and has had care of him since 2.11.12 when J suddenly left his mother’s home and arrived to live with the Applicant.

3. The Tribunal conducted a hearing on 22 October 2014 and all parties appeared and participated in the hearing.

4. Disposition of the Application requires the Tribunal to address two matters. First, as J ceased to live with TP without her consent, did she take reasonable steps to return him to her care after 2.11.12? Secondly, if the TP did take such steps, were there special circumstances pursuant to section 23(5A) of A New Tax System (Family Assistance) Act 1999 (“FAA”), which require that the TP ought not receive the family tax benefit for the 14 week qualifying period.

   DID TP TAKE REASONABLE STEPS TO RETURN J TO HER CARE?

5. The operation of section 22 of the FAA is that when J went to live with the Applicant, she became entitled to receive FTB in relation to J, but subject to provisions of section 23 of the FAA.

6. For the TP to continue to receive FTB after J left and for the 14 week qualifying period referred to in section 23(5) of the FAA, the requirements of section 23(1) of the FAA had to be satisfied. That is, it is necessary for the Tribunal to be satisfied that the TP took reasonable steps to return J to her care.

7. Whether reasonable steps were taken require an evaluation of whether the steps taken (if any) to recover J were reasonable, rather than the reasonableness of the outcome of the steps taken.[1] Further, it is relevant to take into account the content of the Guide to the Family Assistance Law, 2.1.1.70, which relates to Disputed Care Arrangements.[2]

   [1] Temmen v SDSS (1992) 28 ALD 137

   [2] Re Lomas v SDFaCS(2004) 81 ALD 251 approving of Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

8. The evidence in this case (which was not disputed by the Applicant) was that the TP had:

   ·Notified the police of J going missing and sought assistance to locate him and return him;

   ·Had attended the Applicant’s home on the day J left and sought to persuade J to return;

   ·Engaged with the “Reconnect” service conducted by Relationships Australia, to attempt to have counselling with J to persuade him to return;

   ·Sought legal advice about measures to have J returned, but was advised that any recovery proceedings under the Family Law Act 1975 would be unsuccessful because of J’s age.

9. Although the Respondent had submitted in the Statement of Issues Facts & Contentions dated 17 March 2014, that the SSAT had wrongly concluded that the TP had taken reasonable steps within the meaning of section 23(1) of the FAA, Counsel for the Respondent properly submitted otherwise at the conclusion of the hearing. The Applicant did not dispute the evidence noted above about what steps the TP took, but asserted in her final submission at the hearing that the TP could have done more.

10. The requirement of section 23(1) of the FAA is that the TP have taken “reasonable steps”, not all steps or more steps. For this reason, I reject the Applicant’s submission and conclude that the TP did satisfy the requirements of section 23(1) of the FAA and that she took reasonable steps to return J to her care. In arriving at this conclusion I am influenced by the fact that the police and legal advice both were to the effect that there was little that could be done to compel J to return, given his age. That the TP did not take legal proceedings for recovery in these circumstances does not warrant conclusion that she failed to take reasonable steps.

11. If there are no special circumstances within the meaning of section 23(5A) of the FAA, the TP should receive the FTB for the 14 weeks after 2.11.12.

    ARE THERE SPECIAL CIRCUMSTANCES?

12. The effect of subsection 23(5A) is to authorise the Respondent to shorten the 14 week qualifying period if it is satisfied that there are special circumstances. I am required to determine whether the facts of this case demonstrate special circumstances, such that the qualifying period should be reduced. It was argued by the Applicant that J left the TP’s care because of violence or physical/emotional abuse by the TP’s husband, who will be referred to as AR.

13. The Applicant gave evidence by Statutory Declarations sworn, 7 April and 8 September 2014.[3]  She was cross-examined by the TP and Counsel for the Respondent.  The effect of the Applicant’s evidence is as follows:

    a.   That on 2.11.12 J phoned and was in a distressed state and wanted her to collect him as he had left home.

    b.   She refused, but sometime later J arrived at her home. He was upset and explained that he had been hit by AR while there was disagreement about going on a camping trip. That J had said he could not go back home.

    c.   She believed that AR had hit J as she had witnessed AR physically and emotionally abuse J on many occasions.

    d.   That she was aware of Child Protection intervention in Queensland relating to J and she produced documents from Queensland Government, Department of Child Safety demonstrating Notifications relating to J in March 2010 and early December 2010.

    e.   That she was living in the TP’s home to help care for J and the TP’s other children in June 2011 when she witnessed AR bullying J, taking things from him and hiding them, pushing and shoving him, hounding him relentlessly.

    f.   That she had visited the TP’s home in Launceston early to mid 2012 and witnessed an altercation between J and AR.

    g.   She had seen AR hit J before, even when J was about 3 years old.

    [3] Exhibits A1 and A2 

14. The Applicant also called her daughter (who will be referred to as F), aged 19 to give evidence at the hearing.  F gave evidence as follows:

    I.That on 2.11.12 she was present at her mother’s home when her brother received a phone call from J;

    II.From what she heard of the conversation between J and her brother on the phone, J was asking to be collected and he was upset. Her mother also spoke to J and told him he needed to work it out.

    III.That 40 to 45 minutes after the phone call, J arrived at their house and told them what had occurred and he was upset and crying.  He told them that he had argued with AR about going on a camping trip and it had got physical. AR had thrown punches and one hit him. He said to AR that it was abuse and AR had replied, “no, that is battery”. J claimed that he had told the TP about this and her reply was that “you make my life harder”. J claimed that he could not go back to the TP’s home.

    IV.That the TP arrived at their home some hours later and was enraged, that she told J to get in her car but he refused, so she put J into a headlock and abused the Applicant stating, “this is your fault”.

    V.The Applicant and her brother intervened and the TP left, picking up a chair and throwing it at a window, breaking it as she left.

15. F was subject to very limited cross-examined about this account by the TP, and maintained it to be accurate. I accept her evidence.

16. F also gave evidence about incidents of physical abuse of J that she had witnessed as follows:

    i.      That she had seen AR intentionally slam the door into myself and J’s body as he tried to enter a doorway. This was said to have occurred at the TP’s home in Bentley a suburb of Melbourne in Victoria in about 2008. She said she was 12 years old and had a clear recall of this incident, it was about 5 years ago.

    ii.That when visiting the TP’s home in Brisbane in about 2010, she observed AR push J against a wall for refusing to do a household task.

    iii.On a third occasion, she saw AR push J by his shoulders and as a result J had a small gash on his forehead and some bleeding.

17. Apart from being asked whether any of the above incidents were reported to the Department of Human Services, F was not seriously challenged about these accounts.

18. AR was invited by the Tribunal to give evidence about the events on 2.11.12 and evidence of allegations of physical and emotional abuse. He agreed to do so. The invitation to AR to give evidence was given to ensure he was given opportunity to respond to allegations that concerned him. 

19. He was specifically asked about whether he had an altercation of some kind with J on 2.11.12. His evidence was that J did not want to go on the family camping trip and was going back and forward between him and his mother, refusing and objecting to be told to go. He claimed that J had become aggressive over his desire to want to stay at home alone. Despite this, AR said that he did not verbally or physically abuse J and only became aware that J was missing after some time.

20. AR was also asked about the incidents of physical abuse that were the subject of F’s evidence. He said he refuted the evidence she gave, but also said he could not recall any of the incidents.

21. When asked about whether he had struck J with a pot in Queensland[4], he claimed that there had been disagreement between him and J when he was unloading a dishwasher and he had a pot in his hand. That J was arguing and having a tantrum and ran at him, then ran into the pot he was holding. He said it was accidental and not a deliberate strike of J with the pot. I found AR’s evidence unconvincing.

    [4] Subject of notification to the Queensland Department of Children’s safety, part of exhibit A1

22. The TP gave evidence to the effect that her husband was not violent and he was a passive person. She also said that on 2.11.12 AR had not hit J, but there had been disagreement with him about going on a camping trip. She claims that J was yelling, she told him to stop making things difficult and he left. The impression given by her evidence is that there was no engagement in argument or conflict with J by either her or AR. The TP also said in evidence that it was completely out of character for J to have left and he had not done so before.

23. Under cross-examination, the TP said that there was normal conflict about what J would not want to do. When asked whether “chesting and shoving” was normal, this being what the letter from Child Protection Services Tasmania (“CPST”)[5] referred to, she answered “to some extent, it is between a father and son”.  She then claimed that she did not say what was attributed to her and AR by the content of the letter from CPST, but I do not accept that claim.  Her evidence that “chesting and shoving” was normal to an extent and between a father and son, demonstrate that the attribution to her is likely to be correct.

    [5] Annexure P of Statutory Declaration of TP, exhibit TP1   

24. The TP also gave evidence about the episode reported in the Queensland Department of Child Safety records. Her account that J was going to hit her and AR grabbed him by the arm is inconsistent with the records and AR’s account. The account of the incident in Queensland records is based on interview with J and is preferred, being recorded proximate to the event and the most likely to be reliable. Although the Queensland records do not identify the person said to be responsible for striking J with the pot by name, it is clear from the evidence given by AR that he is the person to whom the records refer as the person responsible, as he agrees there was an incident in Queensland involving J being struck with a pot he was holding.

25. The allegations concerning past physical/emotional abuse or violence towards J are not directly relevant to the question of whether there were special circumstances relating to violence at the time J left on 2.11.12.  The actual events on the 2.11.12 are more informative of whether special circumstances existed. I am invited by the Applicant to accept that J was subjected to being physically hit on 2.11.12 and she has produced evidence of past violence and abuse to seek to persuade me that in the absence of direct first hand evidence that AR hit J on 2.11.12, the account J gave to her and F is likely to be true.

26. The Guide to the Family Assistance Law, 2.1.1.70 (“the Guide”) provides guidance to what may constitute special circumstances and provides evidence of the legislative intent of the provision. It provides that the discretion to immediately base the percentage of care on the actual level of care, is designed to recognise that if a person’s own unusual and unreasonable actions are a significant cause for the established care arrangement not to apply, then the person should not benefit from the 14 week qualifying period, even if they are seeking return of the child.

27. I am entitled to take the guide into account in arriving at a conclusion about whether there were special circumstances applying. [6]

    [6] Re Lomas v SDFaCS(2004) 81 ALD 251 approving of Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

28. I consider it quite possible that J had been physically and/or emotionally abused by AR in the past as I prefer the evidence of the Applicant, F and what is contained in the records from Queensland Department of Child Safety and CPST. While the evidence of past violence and abuse were not the immediate reason J left the TP’s care on 2.11.12, they assist me in being satisfied that was a serious enough level of conflict between J, the TP and AR (which may or may not have involved an actual strike to J) and this caused him to flee in a manner that was uncharacteristic.  I am satisfied, that J left because of serious conflict because I accept the evidence of F and the Applicant about what J told them had happened and that there is no evidence that J fabricated what he told them.  The Applicant and the TP both gave evidence that it was uncharacteristic of J to leave, even in the context of the past events and that causes me to be satisfied that the behaviour of the TP and AR on 2.11.12 towards J was unusual and unreasonable, in the manner referred to in the Guide. 

    CONCLUSION

29. As I have found special circumstances applied to the events that caused J to leave the TP’s care, I conclude that she is not entitled to the FTB for the 14 week period commencing 2.11.12.

30. The Application is allowed and the matter remitted to the Respondent to give effect to these findings.

    I certify that the preceding 30 (thirty) paragraphs
    are true copies of the reasons for the decision
    herein of Ms S Taglieri, Member.

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    Administrative Assistant

    Dated   25 November 2014

    Date of hearing  22 October 2014

    Applicant  Self

    Solicitor for the Respondent              Mr Brian Sparkes, Program Review and Litigation Branch

    Third Party  Self