Emmerson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor
[2008] AATA 913
•13 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 913
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2593
GENERAL ADMINISTRATIVE DIVISION ) Re LAWRENCE EMMERSON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
DIANNE LEWIS
Third Party
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date13 October 2008
PlaceBrisbane
Decision The Tribunal determines that:
(1) The decision under review is set aside.
(2) Mr Emmerson is entitled to 14 weeks FTB from 17 April 2007.
.................[Sgd].............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits & allowances – family tax benefit – whether child is in adult’s care – whether applicant took reasonable steps to have the child returned to their care – applicant entitled to 14 week period – decision under review set aside.
A New Tax System (Family Assistance) Act 1999 ss 21, 22, 23, 23 (5) (b), 23(5) (c), 25
Re QX05/7 and Secretary, Department Employment and Workplace Relations and Secretary, Department of Family and CommunityServices [2005] AATA 921
REASONS FOR DECISION
13 October 2008 Dr K S Levy RFD, Senior Member BACKGROUND
1. A decision was made initially by Centrelink that the Applicant in this matter was not entitled to Family Tax Benefit (FTB) from 17 April 2007. That decision was affirmed on appeal to the Social Security Appeals Tribunal, dated 13 May 2008. Mr Emmerson now seeks review of that decision.
2. Ms Lewis did not appear at the hearing. The hearing, which was held at Maroochydore, was delayed for a period while further attempts were made by the Tribunal staff, both at Maroochydore and in Brisbane, to provide an opportunity for Ms Lewis to be heard. The Presiding Member was advised that attempts had been made in the previous week to make arrangements for telephone contact for Ms Lewis to give evidence, if needed. The Tribunal was also advised that the Third Party had not previously returned calls or appeared when opportunities to present evidence in relation to this matter had been provided to her. I then directed that the matter proceed in her absence.
3. Mr Emmerson appeared on his own behalf. Mr Matt Black appeared on behalf of the Secretary (“the respondent”).
ISSUES
4.The Tribunal is to address the following questions:
(1)Was the Applicant’s daughter prevented from being in the care of Mr Emmerson from 17 April 2007? and
(2)If the answer to (1) is yes, did Mr Emmerson take “reasonable steps” to have his daughter returned to his care?
EVIDENCE
5. The Tribunal had access to documentary evidence in the form of Section 37 material. It also had the Respondent’s Statement of Facts and Contentions and, in addition, the Applicant tendered a further statement dated 4 September 2008.
6. A preliminary point was raised by the Applicant about the Respondent’s Statement of Facts and Contentions which, he contended, were lodged out of time. He therefore submitted that they should not be admitted. After hearing the parties on the matter, I regarded such an omission, if it was so, to be not significant and the Applicant was not, as a result, disadvantaged. In any event, Mr Black submitted to the Tribunal that the law deemed the Secretary’s submission as being delivered on the day it was posted. There was evidence that it was provided on the final day due for submissions. I was satisfied there was no injustice to Mr Emmerson as a result.
7. Mr Emmerson provided a lengthy history to Family Court proceedings and the Family Court Orders pertaining to contact for him and Ms Lewis with his children. The Family Court Orders[1] were clear as to the responsibilities of the parents.
[1] Exhibit 1; Folio 29 – 82.
8. Mr Emmerson also provided evidence that he had over a long period of time, documented his actions and his assertions to his wife that he regarded her as preventing his daughter from having contact with him. He had proposed at one stage that his son live with him and the daughter live with Ms Lewis, subject to other contact arrangements. This was as a result of his son having been poorly treated by his wife. However, following that arrangement, he alleges that his wife then prevented his daughter from having contact with him. His case was that his daughter was intimidated by Ms Lewis and that his daughter was not well cared for.
9. In particular, Mr Emmerson provided evidence that he was concerned for the medical condition of his daughter and her emotional state because of difficulties with Ms Lewis. He maintained both his son and his daughter had been harshly treated. He directed the Tribunal to a lengthy history of attempts to recover his daughter from his wife[2].
[2] See further Exhibit 1: T5, folio 33; T9, folio 48.
10. He challenged the decision of the Social Security Appeals Tribunal (SSAT) and its interpretation of the law in relation to s 23 of the A New Tax System (Family Assistance) Act 1999 (“the Act”), and in particular, its interpretation of that provision as amplified in the Family Assistance Guide [3] (“the Guide”).
[3] Australian Government, Family Assistance Guide (Version 1.107 - Released 19 September 2008).
11. Mr Emmerson provided new evidence that he had tried to contact his children on numerous occasions and as well, went to the police and other authorities in an endeavour to find lawful means of regaining control. There was evidence also of numerous emails between himself and his daughter which supported his position. His evidence also was that he met with his daughter regularly after school at the back gate and saw her for brief periods until his daughter was concerned of the ramifications to her if her mother discovered that she was meeting with Mr Emmerson.
12. Some of the evidence provided was new evidence. Mr Black acknowledged the weight of some of this evidence and that it pointed to Mr Emmerson not having consented to giving up contact with his daughter.
13. While some of the evidence in support of Mr Emmerson’s case was his evidence only about his wife’s lack of cooperation and attempting to prevent his contact with his daughter, I sought more objective evidence. Mr Emmerson indicated that there was a letter from the Queensland Department of Child Safety which indicated that a recent assessment had shown that his children’s interests were best served if they were placed under his control. I directed that a copy of that correspondence be provided to the Tribunal and also to the Respondent. Mr Emmerson, shortly after the hearing, faxed a copy of a letter dated 10 April 2008 verifying his assertions and which provided the independent evidence which I had sought.
CONSIDERATION
14. I make the following findings of fact in relation to the evidence:
(1)Ms Lewis provided no evidence.
(2)Mr Emmerson had made significant efforts to maintain contact with his children.
(3)Mr Emmerson had expended considerable resources, financial and emotional, in endeavouring to support and maintain contact with both of his children.
(4)Mr Emmerson pursued avenues to maintain contact with his children and to regain control of them through the police and directly with his wife.
(5)Mr Emmerson was concerned about both of his children particularly his daughter who had a condition which required medical treatment.
(6)Mr Emmerson now has custody of both his children following intervention by the Department of Child Safety. As a result, Mr Emmerson’s daughter was removed from Ms Lewis’ care.
15. The relevant law is as follows:
(a)The Applicant is entitled to FTB if there is at least one FTB child[4].
(b)FTB can be paid where a child is normally in the adult’s care[5].
(c)Where an adult is denied access to a child without the adult’s consent, the FTB may continue to be paid for up to 14 weeks provided the adult took “reasonable steps” to have the child returned to his care[6].
(d)Where care is in dispute between the parents, the Secretary is empowered to pay FTB to a parent if satisfied that the child is in the care of one or either of the parents, and provided that care amounts to at least 10% of the time[7].
[4] A New Tax System (Family Assistance) Act 1999 s21.
[5] A New Tax System (Family Assistance) Act 1999 s22.
[6]A New Tax System (Family Assistance) Act 1999 s23.
[7]A New Tax System (Family Assistance) Act 1999 s25.
16. The term “reasonable steps” is not statutorily defined. Section 23(5)(c) of the Act provides that where a child is in the care of one parent, then the provision enabling a continuation of FTB for up to 14 weeks after a child leaves an adult’s care, can only apply if there is “a family law Order, registered parenting plan or parenting plan is in force”[8]. Therefore, “reasonable steps” must be seen in the context of lawful arrangement providing access to the parties in dispute.
[8]Re QX05/7 and Secretary, Department Employment and Workplace Relations and Secretary, Department of Family and Community Services [2005] AATA 921.
17. The Respondent submitted that reasonable steps had been seen to be taken, taking account of the detailed explanation in the Family Assistance Guide and in particular circumstances. While the Applicant challenged the lawfulness of the Social Security Appeals Tribunal’s (SSAT) application of the Family Assistance Guide, I do not accept his submissions. The SSAT’s application of the Guide was lawful and appropriate.
18. The precedents which the Respondent submitted provides some guidance to show that the Tribunal has accepted reasonable steps have been taken in cases such as the following:
(a)Contacting state authorities, school authorities and seeking assistance from community members such as the school bus driver[9].
(b)Where a father contacted his solicitor when children left his care and was active in confronting the other carer in an endeavour to recover the children[10].
(c)Where a father had followed up with police and the Department of Family Services in trying to have children returned to his care[11].
(d)Where the father made numerous telephone contacts with his children and also consulted his solicitor[12].
[9]Re Campbell and Secretary, Department of Families, Community Services and Indigenous Affairs and Smith [2007] AATA 58.
[10] Re Thorpe and Secretary, Department of Family and Community Services and Hochkins [2006] AATA 39.
[11]Re Lomas and Secretary, Department of Family and Community Services andFoster [2004] AATA 278.
[12]Re Hayward and Secretary, Department of Family and Community Services and Taylor [2002] AATA 1241.
19. Having considered those authorities and the evidence in this matter, I am satisfied that an event occurred which removed Mr Emmerson’s daughter from his care. That event involved his daughter being intimidated and prevented from being in Mr Emmerson’s care. It is clear from email evidence from Mr Emmerson’s daughter that she was prevented by Ms Lewis from maintaining contact with him. I therefore find in relation to issue (1) that an event did occur in terms of s 23 of the Act.
20. In relation to issue (2), I find that based on the evidence presented by Mr Emmerson, there is now more than adequate evidence that he was in fact prevented from access to his daughter following 17 April 2007 and that he did take “reasonable steps” to have her returned to his care. There was clearly a genuine concern for his daughter’s well being. It is also clear that his daughter was inhibited in her dealings with her mother (Ms Lewis) in relation to having contact with her father. Mr Emmerson certainly wrote to Ms Lewis on numerous occasions in an endeavour to regain control. There is evidence that he also went to the police but was ultimately advised that there was no legal mechanism for the police to intervene on his behalf. I am persuaded that the submissions made by Mr Emmerson have been verified by the availability of an independent assessment from the Department of Child Safety. This independent evidence provides increased weight to Mr Emmerson’s assertions in light of the fact that his evidence was uncontested by Ms Lewis.
21. I would note for the record that Mr Black, on behalf of the Secretary, adopted a model litigant approach, and while not conceding the Secretary’s case, acknowledged that there was new evidence which substantially went in Mr Emmerson’s favour. That evidence had not previously been available prior to the hearing.
CONCLUSION
22. In the circumstances, I find that Mr Emmerson took all reasonable steps in terms of s 23 of the Act to regain care and control of his daughter for the relevant period following 17 April 2007. I therefore find he is entitled to be paid 14 weeks FTB under s 23(5) (b) of the Act.
DECISION
23. The Tribunal determines that:
(1) The decision under review is set aside.
(2) Mr Emmerson is entitled to 14 weeks FTB from 17 April 2007.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member
Signed: ........................[Sgd]....................................................
Elizabeth Young, Research AssociateDate/s of Hearing 11 September 2008
Date of Decision 13 October 2008
Applicant was self-represented
Third Party did not appear
Solicitor for the Respondent Mr M Black, Departmental Advocate
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