James Rainsford and Secretary, Department of Social Services

[2014] AATA 735

[2014] AATA 735  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1923
Re	James Rainsford
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mark Hyman, Member
Date	10 October 2014
Place	Canberra

Mr Rainsford was involved in custody proceedings in Fiji following the birth of his second child, but these proceedings began after he had been absent from Australia for an extended period. As a result he is not entitled to a higher rate of family tax benefit in respect of his second child.

.....................[sgd]...................................................

Mark Hyman, Member

Catchwords

FAMILY ASSISTANCE – family tax benefit – child born overseas – determination of rate of benefit - where recipient spent an extended period overseas – operation of discretion to extend portability – whether recipient involved in custody proceedings –  whether proceedings were in Fiji - whether unable to travel – whether proceedings occurred or began in the initial period of absence – decision set aside

Legislation

A New Tax System (Family Assistance) (Administration) Act 1999, s 109D

A New Tax System (Family Assistance) Act 1999, ss 21, 22, 58, 62, 63, 63A, Schedule 1

Acts Interpretation Act 1901, s 15AA

Administrative Appeals Tribunal Act 1975, ss 37, 42C

Family Law Act 1975, s 70F, Schedule 1A

Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Measures) Act 2000

Social Security Act 1991, s 1218C

Cases

Al Abody and Secretary, Department of Employment and Workplace Relations [2007] AATA 1088

Alcan  (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Alimi and Secretary, Department of Family and Community Services [2004] AATA 621

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner Of Taxation (1981) 147 CLR 297

Estafanos and Secretary, Department of Family and Community Services [2005] AATA 1065

Gemovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 888

IW v The City of Perth (1997) 191 CLR 1

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622

McCormack and Secretary, Department of Education, Employment and Workplace Relations [2013] AATA 647

Morched and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 584

Secondary Materials

Explanatory memorandum to Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Measures) Act 2000

REASONS FOR DECISION

1. Mr James Rainsford, the applicant, is an Australian citizen who lived for an extended period in Fiji. While there he became the father of two children. Mr Rainsford applied for and eventually received family tax benefit (FTB) in respect of his second child, but at a rate lower than he believed he should receive. He sought review of Centrelink’s decision in respect of the rate, and an Authorised Review Officer (ARO) in Centrelink decided that the rate he had been paid in respect of his second child was correct. Mr Rainsford sought review of the ARO’s decision in the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the ARO’s decision, and Mr Rainsford has now sought review in this Tribunal of the SSAT’s decision.

   Issues

2. The issues before me are conveniently put as:

   (a)whether Mr Rainsford should receive FTB in respect of his second child above the base rate; and

   (b)if so, for what period.

   The hearing

3. A hearing was held before me on 20 August 2014. Mr Rainsford participated by telephone. The respondent was represented by Mr David McLaren, a government lawyer seconded to Centrelink.

4. The respondent provided documents under s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the ‘T-documents’). Mr Rainsford attached a number of documents to his statement of facts issues and contentions, and some of them, to which I have allocated exhibit numbers for convenience, throw light on the facts of the matter and constitute evidence before me:

   (a)A letter to Mr Rainsford dated 13 December 2012 from the Commonwealth Ombudsman’s Brisbane office (Exhibit A1);

   (b)A letter to Mr Rainsford dated 21 August 2013 from the Principal Migration Officer in the Australian High Commission in Suva, Fiji (Exhibit A2);

   (c)A consent order signed by Senior Member Robin Creyke of this Tribunal dated 6 February 2014 setting aside DIAC’s decision of 21 August 2013 regarding the citizenship of Mr Rainsford’s first child (Exhibit A3); and

   (d)A bundle of pages relating to different countries’ approaches to questions of custody of children and of immigration (Exhibit A4).

   Mr Rainsford gave sworn oral evidence by telephone.

   The legislative context

5. The applicable legislative provisions are found in A New Tax System (Family Assistance) Act 1999 (the FA Act).

6. Section 21 of the Act is the basic provision determining eligibility for FTB. For present purposes, a person is eligible who has an ‘FTB child’, is not an ‘absent overseas recipient’ and also has at least one ‘rent assistance child’, is an Australian resident and attracts a rate of FTB, properly calculated, that is greater than nil. An FTB child is defined in s 22: relevantly, a child under 16 is an FTB child of an adult if they are an Australian resident or living with the adult, the adult has the day to day care of the child and the adult is legally responsible for the care, welfare and development of the child. A ‘rent assistance child’ is defined in Schedule 1 to the FA Act, clause 38B: an FTB child is a rent assistance child if that child attracts a rate, properly calculated, that is above the base rate.

7. Section 58 of the Act provides that the rate of FTB for an individual is to be determined in accordance with the rate calculator at Schedule 1 to the Act.

8. Subsequent sections vary the calculation where the adult or the child is overseas for extended periods. Subsections 62(2) and 62(3) are especially presently relevant:

   (2)  If an individual leaves Australia, the individual is an absent overseas recipientfor any period that occurs:

   (a)  during that absence from Australia; and

   (b)  after the end of the period of 13 weeks beginning on the first day of that absence.

   (3)  If:

   (a)  an individual is eligible for family tax benefit while the individual is absent from Australia; and

   (b)  the individual then becomes an absent overseas recipient because of the application of subsection (2) or a previous application of this subsection; and

   (c)  the individual returns to Australia; and

   (d)  the individual leaves Australia again less than 13 weeks after returning to Australia;

   the individual is an absent overseas recipientfor any period that occurs during the absence from Australia referred to in paragraph (d).

9. Subsection 62(4) varies the application of the rate calculator in Schedule 1, in particular so that the person does not receive rent assistance and their Part B rate is nil.

10. Section 63 makes provision for an ‘absent overseas FTB child’ where the individual to whom the FTB is paid is not an absent overseas recipient.

11. The Secretary may extend the 13 week period set in s 62, so that a person is not accounted an absent overseas recipient and may continue to receive a higher rate of FTB despite their absence, under the specified circumstances. Subsections 63A(1) and (2), so far as is presently relevant, read as follows:

    (1)  The Secretary may extend the 13 week period (the initial period) referred to in subsection 62(2), …. if the Secretary is satisfied that the individual mentioned in subsection 62(2), …., (in each case, the person ) is unable to return to Australia within that period because of any of the following events:

    (a)  a serious accident involving the person or a family member of the person;

    (b)  a serious illness of the person or a family member of the person;

    (c)  the hospitalisation of the person or a family member of the person;

    (d)  the death of a family member of the person;

    (e)  the person's involvement in custody proceedings in the country in which the person is located;

    (f)  a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

    (g)  robbery or serious crime committed against the person or a family member of the person;

    (h)  a natural disaster in the country in which the person is located;

    (i)  political or social unrest in the country in which the person is located;

    (j)  industrial action in the country in which the person is located;

    (k)  a war in the country in which the person is located.

    (2)  The Secretary must not extend the initial period under subsection (1) unless:

    (a)    the event occurred or began during the initial period;

    ………

    The facts

12. The facts of the matter are not in dispute. Mr Rainsford has spent most of the period since May 2008 out of Australia, but with frequent trips back for short periods. In oral evidence Mr Rainsford explained that he needed to return to Australia to maintain his qualification for disability support pension, which is his only source of income. Thus he returned to Australia over the period 2008-2011 on numerous occasions, for periods ranging from a day to a few weeks.(T2).

13. In Fiji Mr Rainsford formed a relationship with a Fijian national, Ms Siwan Showreen, and two children were born to them, the first on 5 June 2008 and the second on 21 February 2010. At the time of his second child’s birth, Mr Rainsford was already involved in custody proceedings in Fiji with respect to his first child, before the Resident Magistrate’s Court, Family Court Division, in Nadi. Mr Rainsford said that on hearing that Ms Showreen was pregnant, the Magistrate agreed to wait until the child was born. The court made an order by consent on 12 May 2010 (T5) awarding custody of both children to Mr Rainsford, giving him responsibility for their day to day care, and agreeing that the children should move to Australia with their father. Various access arrangements for Ms Showreen, not presently relevant, were included in the order.

    Passports, citizenship and immigration

14. Mr Rainsford proceeded to apply for Australian passports for his children. The documents before me do not include a copy or record of his application, but Mr Rainsford said in evidence that he applied following an email exchange with the High Commission in Suva. Later documentation (T15, T32) suggests the date of application was before 18 June 2010. The Passport Office of the Department of Foreign Affairs and trade returned his application as incomplete on 2 September 2010 because there was nothing to establish the citizenship of the children (T6).

15. Mr Rainsford apparently then applied for citizenship by descent for the children. Once again, the evidence before me does not include that application, but it does include a letter from the Department of Immigration and Citizenship (DIAC) written in connection with the application. On 29 October 2010 DIAC’s Citizenship Branch wrote to Mr Rainsford noting that he had lodged applications, for the first child on 18 June 2010 and for the second on 21 June 2010 (T15). The letters also stated that on 14 July 2010 a letter had been sent to Mr Rainsford inviting him to undertake DNA testing to establish his paternity of the children, and that in the absence of a DNA test an adverse finding might be made against him ‘on the basis of information available’. The letter further noted that on 19 October 2010 Mr Rainsford withdrew the applications.

16. In oral evidence Mr Rainsford said that he had withdrawn the applications because he could not afford DNA testing.

17. The next step Mr Rainsford took appears to have been to apply to have the custody order of the Magistrate’s Court in Fiji recognised by the Family Court of Australia. On 8 November 2010 the Registrar of the Family Court wrote to Mr Rainsford (T8) to say that his custody order could not be registered. Under s 70F of the Family Law Act1975 only orders made by a court of a ‘prescribed overseas jurisdiction’ or orders under the Hague Convention could be registered. Fiji was not a prescribed overseas jurisdiction in Schedule 1A of that Act, and neither of the children were the subject of a Hague Convention order.

18. On 24 March 2011 an application for a subclass 101 Child (class AH) visa was lodged (presumably by Mr Rainsford on his first child’s behalf) with the High Commission in Suva (T12). On 24 March 2011 DIAC wrote to Mr Rainsford’s first child acknowledging the application. Other evidence suggests a similar application was lodged for the second child (Exhibit A1).

19. During the period that followed Mr Rainsford made two complaints to the Commonwealth Ombudsman. No detail of either complaint is in evidence, but Mr Rainsford has supplied in Exhibit A1 a letter from the Brisbane office of the Ombudsman dated 13 December 2012. It deals with two complaints: one relating to the refusal of visas for the children, and the other relating to the applications (presumably those of 2010) for citizenship by descent for the children. The Ombudsman stated that the refusal of the visas had turned on DIAC’s interpretation of ‘child’ in the visa criteria. DIAC had read the word as limited to ‘biological child.’ Although the Ombudsman did not regard that reading as ‘necessarily correct’, it had been ‘reasonably open’ to the Department to take that position.

20. On the other hand, when considering the application for citizenship by descent, DIAC had appeared to interpret ‘parent’ as limited to ‘biological parent’ in the same way (presumably by insisting on a DNA test, and by implying that a failure to take such a test would lead to rejection of the application). The Ombudsman said that their initial acceptance of that position was a mistake, as there was Federal Court authority for a broader reading of ‘parent’ to include anybody who falls within the normal understanding of that term. The Ombudsman suggested that Mr Rainsford may wish to reapply for citizenship and/or visas for the children.

21. In 2013 Mr Rainsford reactivated his application for citizenship by descent for his first child. On 17 June DIAC agreed to reopen the child’s case. The application was refused by DIAC on 21 August 2013 (T32). The basis for the rejection was that the delegate was not satisfied that Mr Rainsford was the child’s biological father, nor that he had a parent-child relationship with the child at the time of birth. On the same day the Principal Migration Officer at the High Commission in Suva wrote to Mr Rainsford advising that citizenship had been granted to Mr Rainsford’s second child (Exhibit A2).

22. On 6 February 2014 this Tribunal made a consent order setting aside DIAC’s decision of 21 August 2013 and agreeing that Mr Rainsford’s first child was approved to become an Australian citizen (Exhibit A3).

23. Mr Rainsford told the SSAT that his children came to Australia on a permanent basis on 18 February 2014 (T2).

    Applications for family assistance

24. In parallel with these actions related to immigration and citizenship, Mr Rainsford sought to obtain various benefits under family assistance legislation, namely baby bonus and FTB. Mr Rainsford applied in November 2008 for baby bonus and FTB in respect of his first child, but his claim was rejected (T19). It appears that on 29 June 2010 he applied for both benefits again and on 5 July he lodged a claim for lump sum payment of FTB for his first child for the 2008/09 financial year. On 16 July 2010 his application for baby bonus and FTB (the 29 June application) was rejected. On this occasion he sought review and an ARO decided (T9) that baby bonus should be paid for his second child and FTB for both children from 12 May 2010, with FTB Part A paid at the base rate. This decision denied any payment of FTB before 12 May 2010.

25. Mr Rainsford sought review by the SSAT. On 28 February 2011 that Tribunal set aside the ARO’s decision and found that Mr Rainsford should not receive FTB nor baby bonus for either child, as he was not an Australian resident (T11).

26. Mr Rainsford sought review of the SSAT’s decision in this Tribunal. On 9 September 2011 the Tribunal made a decision under s 42C(1) of the AAT Act recording an agreement between Mr Rainsford and the Secretary that Mr Rainsford was an Australian resident for baby bonus and FTB purposes. In accordance with that decision, Centrelink reinstated payments at the rates determined in the previous ARO decision.

27. Mr Rainsford sought further review of the ARO’s decision of 22 November 2010, in respect of payment of FTB before 12 May 2010. On 20 April 2012 the SSAT affirmed the ARO’s decision (T19) and Mr Rainsford sought review in this Tribunal once again. On 22 April 2013 (T21) the Tribunal set aside the SSAT’s decision and decided, by consent under s 42C(1) of the AAT Act that claims lodged on 28 November 2008 and 5 July 2010 in respect of Mr Rainsford’s first child were ineffective and that neither the SSAT nor the AAT had jurisdiction to review them; that the claim for baby bonus for Mr Rainsford’s first child lodged on 29 June 2010 was ineffective; but that the claim for FTB for both children, made on 29 June 2010 was effective. In respect of that effective claim, the decision stated that:

    (a)The claim was taken to be a past period claim for the 2008/09 and 2009/10 tax years and as a claim for payment by instalment;

    (b)Mr Rainsford’s eligibility for FTB could be considered from 1 July 2008;

    (c)For the purposes of determining eligibility, it was accepted that Mr Rainsford had the legal responsibility for both children’s care, welfare and development, the first child from 1 July 2008 and the second from 21 February 2010.

    The matter was remitted to the Secretary for determination of the claim on the above basis.

28. On 6 May 2013 Centrelink made a decision in accordance with the Tribunal’s decision of 22 April 2013, making payments for each of the 2008/09, 2009/10 and 2010/11 financial years (T23, T24, T25). Mr Rainsford sought review of that decision, and on 9 September 2013 an ARO decided that the amount Mr Rainsford was to be paid for the 2008/09 financial year should be increased by a further $1,029.26, but that the payment made for 2009/10 was correct (T27). Mr Rainsford sought review of that decision, and the SSAT affirmed the ARO’s decision on 11 April 2014 (T2). That is the decision which Mr Rainsford now seeks review in this Tribunal. The issue on which Mr Rainsford disagreed with Centrelink was whether FTB in respect of his second child should be paid at the maximum rate. He thought it should; the ARO and the SSAT thought it should not. The issue therefore is whether the maximum FTB rate should be paid in respect of Mr Rainsford’s second child, and if so for what period, between the child’s birth on 21 February 2010 and the end of the 2009/10 financial year.

    CONSIDERATION

29. There is no disagreement among the parties on the facts of Mr Rainsford’s attempts to return to Australia and to secure for himself the benefits of the family assistance measures available to him. Many of the matters required to establish the availability of benefits have already been decided: Mr Rainsford is accepted to have been an Australian resident throughout the period in question, and his second child is accepted to have been his ‘FTB child’ during that time. The only issues that remain to be resolved are whether Mr Rainsford can receive in respect of the second child a higher rate than the rate determined under Part A of FTB, and if so over what period that higher rate should be paid.

30. Mr Rainsford spent large parts of 2008, 2009 and 2010 in Fiji. Although when asked to verify the actual dates of his travel in giving evidence he said he could not remember the details, he has not contested the dates of his departures from and entries into Australia as recorded by the SSAT and AROs when other issues were being determined (T2, T9). I am prepared to accept those dates, which are given below with the periods spent in Fiji and Australia derived from them:

Return to Australia	Period in Fiji	Departure from Australia	Period in Australia
25 May 2008
19 June 2008	25 days	6 August 2008	48 days
12 November 2008	98 days	7 December 2008	25 days
16 March 2009	99 days	26 March 2009	10 days
15 June 2009	81 days	18 June 2009	3 days
11 September 2009	85 days	25 September 2009	14 days
17 December 2009	83 days	18 December 2009	1 day
28 March 2010	100 days	29 March 2010	1 day
25 June 2010	90 days	21 July 2010	26 days

1. On the basis of those dates, Mr Rainsford is an ‘absent overseas recipient’ for the purposes of s 62 of the FA Act: his total absence exceeded 13 weeks and he did not return for any period exceeding 13 weeks between June 2008 and March 2011. That means that s 62 applies to him and s 63 does not (s 63 operates where a child is overseas but the FTB recipient is not).

2. Section 62 leads to a lower rate of FTB. If Mr Rainsford is to receive a higher rate of FTB he will require the exercise of the discretion in s 63A. That discretion, on review, rests with this Tribunal. Section 63A lists a number of specific circumstances which might make a person unable to return to Australia: the circumstance potentially relevant to Mr Rainsford is paragraph (e): ‘the person’s involvement in custody proceedings in the country in which the person is located’. Mr Rainsford’s case rests on the construction of that provision and the rest of the section.

3. To satisfy the criteria needed to enliven the discretion, Mr Rainsford must establish several facts:

   (a)that he was involved in custody proceedings;

   (b)that those proceedings were in Fiji;

   (c)that those proceedings occurred or began during the first 13 weeks of his absence; and

   (d)that he was unable to return to Australia because of them.

   If the discretion is enlivened, I must then answer the separate question whether it should be exercised in this particular case.

   The applicants argument

4. Mr Rainsford argued that his entire struggle to be able to return to Australia with his children should be understood as one long uninterrupted process of establishing custody over them. Although the question of custody under Fijian law was settled in May 2010, he faced considerable difficulties in establishing the relationship with his children to the satisfaction of Australian authorities for the purpose of citizenship and immigration, and the struggle to get recognition of his family was essentially a continuation of the custody proceedings begun in Fiji. As for where those proceedings happened, he was in Fiji throughout (apart from his brief return trips to Australia), and so for him all the proceedings happened in Fiji. And until the proceedings were resolved, he was unable to return to Australia.

5. Mr Rainsford’s central argument was that in s 63A the legislature had sought to recognise that people who were kept from returning to Australia through no fault of their own should not be disadvantaged. That was the intention and it applied directly to his case.

   The respondent’s argument

6. The respondent’s argument focused closely on the words of s 63A. In the first place, ‘custody proceedings’ are about obtaining legal responsibility for the care, supervision and control of a child. Mr Rainsford’s attempts to gain citizenship or visas for his children were not about custody but rather concerned immigration and citizenship. Second, the use of the word ‘proceedings’ requires action before a court; the respondent proposed adopting the SSAT’s words: ‘a court of competent jurisdiction’. Mr Rainsford’s applications to DIAC were not before any kind of court and hence were not ‘proceedings’.

7. Third, the Secretary argued that the ‘initial period’ referred to in the chapeau of s 63A began with Mr Rainsford’s departure from Australia on 18 December 2009, and his return for three days on 26 March is deemed not to have occurred by virtue of subsection 62(3). Mr Rainsford lodged an application for citizenship for his second child on 21 June 2010, which is well outside the 13 week initial period. The operation of subsection 63A(2)(a) thus excludes Mr Rainsford from claiming the discretion provided by s 63A.

8. Fourth, the ‘proceedings’ that Mr Rainsford was involved in did not take place in Fiji. They were applications to Australian authorities, or appeals to Australian tribunals. These ‘proceedings’ did not happen in the country in which Mr Rainsford was located.

9. Fifth, it was clear that whatever the effect of these ‘proceedings’ they did not have the effect of making Mr Rainsford unable to return to Australia. That is evidenced by the fact that he returned on a number of occasions, including on 26 March 2010, during the initial period. Further, the causal connection required by the statute has not been met: there is no evidence that the custody proceedings and other processes undertaken by Mr Rainsford had the effect of making him unable to return to Australia.

   Questions of statutory construction

10. How to apply s 63A raises a number of questions of statutory construction. What was the intention of the legislature in this provision and how should that intention be determined? What effect should those considerations have on the plain meaning of the provision? What assistance can be gained from extrinsic aids such as the Explanatory Memorandum accompanying the introduction of the provision? How should the beneficial and remedial nature of the legislation influence the construction to be adopted?

11. No direct assistance can be gained from the courts or from other decisions of this Tribunal. This section has not been the subject of any reported decisions, barring a single decision in which its importance was minor and no detailed consideration was given to questions of construction (see Estafanos and Secretary, Department of Family and Community Services [2005] AATA 1065).

12. The respondent supplied a helpful submission addressing some of the general questions of construction outlined above. The essence of the submission is that the starting point of statutory construction is the text itself; that courts and tribunals should avoid attributing a ‘collective mind’ to parliaments or overlaying their own policy judgment, but rather apply settled principles of construction to the text of the statute. Beneficial legislation must be interpreted broadly and generously so as not to deny the intended benefits to people for whom they were intended, but that generous construction cannot ignore the actual language used. Applying these arguments to Mr Rainsford led to the outcome that he had not met the statutory tests, as outlined above.

13. The need to start the process of construction with the text of the statute is well established, but it is also well established that the task of construction is informed by the context of the provision and the legislative purpose. Thus in Alcan  (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Hayne, Heydon, Crennan and Kiefel JJ stated that (at [47]):

    …the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intentionhttp:// - . The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy (footnotes omitted).

14. The role of the purpose or object of legislation as an aid in construction is underlined by s 15AA(1) of the Acts Interpretation Act 1901:

    In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

15. It is also well established that where a literal reading of a provision would lead to absurd or unreasonable results, an alternative construction may be adopted. Thus in CooperBrookes (Wollongong) Pty Ltd v Federal Commissioner Of Taxation (1981) 147 CLR 297 Mason and Wilson JJ noted that in statutory construction:

    Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute (at 320).

16. The courts have recognised that where legislation sets out to confer a benefit on a class of people or provide them with a remedy to some mischief, the courts should interpret the legislation generously. Thus in IW v The City of Perth (1997) 191 CLR 1, Brennan CJ and McHugh J said (at [12]):

    [There is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given a “fair, large and liberal” interpretation rather than one which is “literal or technical” (footnotes omitted).

    The court went on to note that in approaching the statute in this way, a court could not adopt a reading that was strained or unnatural. In other cases the courts have adopted a similar balance (see eg Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622). The construction of a beneficial statute is to be accommodating, but within what is reasonably open on the words of the statute.

17. Section 63A was introduced as part of an extensive package of amendments to social security and related legislation in the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Measures) Act 2000. The Explanatory Memorandum to the Bill notes only that the introduction of s 63A was intended to mirror the discretion for extending portability of social security benefits, provided for by s 1218C of the Social Security Act 1991 (SSA). The latter provision is in similar terms to s 63A, although there are some significant differences: it refers to extending the ‘portability period’ that has been established in the previous sections; it applies to a wide range of benefits having different qualification requirements, which leads to differences in the interaction with the discretion to extend the portability period; and finally and significantly for present purposes, it does not refer in subsection (2) to an ‘initial period’ but rather to ‘the period of absence’. These differences lead to some differences in the applicability of the two sections.

    Was Mr Rainsford unable to travel because he was involved in custody proceedings in Fiji?

18. Taking all these matters into account, I cannot agree with the strict and narrow construction the respondent has placed on s 63A. The reference to ‘custody proceedings’ is one of eleven circumstances that are considered possible causes of a person being unable to return to Australia. The Secretary argued that the inability referred to in this paragraph must be an actual physical inability, but that cannot be correct. Custody proceedings would be highly unlikely to result in a physical inability to travel, so the Secretary’s preferred construction would leave the paragraph with no work to do. Others of the eleven circumstances face a similar obstacle, including the illness or hospitalisation of a family member (paragraphs (b) and (c)) or ‘a legal requirement for the person to remain outside Australia in connection with criminal proceedings’ (paragraph (f)), where the inability to travel is clearly envisaged as legal rather than physical.

19. The mischief that this section is attempting to address is evidently those circumstances where people find themselves prevented in a practical sense from returning to Australia by one of the enumerated events. In the case of custody proceedings, the issue preventing return is evidently the effect on the family unit of deserting the children before custody is settled; in the case of hospitalisation, it is the need to provide support and assistance to a family member; in other cases, such as war or disasters, it may be the presence of physical risk or absence of infrastructure for travel. These questions would come to be decided in each case in accordance with its particular circumstances. But the words of the section will not serve the purpose for which they were drafted if an unduly narrow construction is adopted.

20. That approach is confirmed by the case law in relation to other similar provisions. There are many decisions relating to s 1218C of the SSA; they illustrate that a physical inability to travel is not necessary for the section to apply. Many cases involve serious illness of the recipient of the benefit and others involve seriously ill relatives (see for example Alimi and Secretary, Department of Family and Community Services [2004] AATA 621; Morched and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 584; Gemovic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 888; Al Abody and Secretary, Department of Employment and Workplace Relations [2007] AATA 1088. In such cases it is the practical consideration of whether the recipient’s illness, or the illness of the relative, is sufficiently serious to prevent the recipient travelling. Clearly a relative’s illness, in particular, in no case creates a physical inability to travel on the part of the recipient.

21. A similar conclusion is derived from the case law on s 109D of A New Tax System (Family Assistance) (Administration) Act 1999. That section allows the period for seeking review of decisions under the FA Act to be extended where a person is prevented from applying for review within the period provided. In successive cases the Tribunal has treated ‘prevented’ as being something less than an absolute bar. In McCormack and Secretary, Department of Education, Employment and Workplace Relations [2013] AATA 647, for example, the Tribunal decided that a person who suffered a serious spinal condition requiring heavy medication should have the period for seeking review extended despite having gone into Centrelink for other purposes but not having lodged an application for review. The Tribunal there concluded that the heavy medication clouded her mind to the point that she was effectively prevented from lodging an application.

22. The Secretary’s preferred construction of ‘proceedings’ is also unduly narrow. Presumably the intent of the section was to capture those circumstances where one of the enumerated reasons prevents a person from travelling. As Mr Rainsford pointed out, in some countries custody may be decided by religious institutions. Provided the process that is followed arrives at a settled outcome accepted in law and by the parties, and its completion thus allows the family to travel back to Australia, the process should in my view be accepted as falling within the class of ‘proceedings’.

23. Nor do I accept the Secretary’s argument that there is no evidence that ‘custody proceedings’ caused Mr Rainsford to be unable to travel. Some of the enumerated reasons in s 63A will require evidentiary support, such as serious illness, where some illnesses would prevent travel and some might not. For others, the consequence of inability to travel will follow inevitably once the circumstance is demonstrated. Custody proceedings are surely in the latter category, provided a clear intention to return to Australia is in evidence. Travel to Australia before resolution of custody would involve either bringing the children out before custody is decided, presumably in breach of the law of the country where the proceedings were going on, or else deserting the children. Neither outcome is conceivably what the legislation contemplates. In Mr Rainsford’s case, the terms of the custody order by the Fijian Magistrate’s Court expressly contemplate that Mr Rainsford would take the children back to Australia, so that course of action seems to have been clearly in prospect. Subsequently he sought citizenship and visas for the two boys. I do not think any more direct causal connection needs to be demonstrated.

24. That said, however, the section does impose other constraints on qualification for the exercise of the discretion. In particular, I must be satisfied that the proceedings or processes Mr Rainsford was involved in were ‘custody’ proceedings; that they took place in Fiji; and that they occurred or began in the initial period of Mr Rainsford’s absence.

25. The determination of custody of Mr Rainsford’s children by the Fijian Magistrate’s Court is clearly within the usual understanding of ‘custody proceedings’. Those proceedings began before the birth of Mr Rainsford’s second child on 21 February 2010, and were ongoing until the court issued its decision on 12 May 2010. They took place in Fiji. The subsequent processes, however, cannot, on the most generous construction of the language, be regarded as ‘custody proceedings’. Clearly once the Fijian proceedings were resolved Mr Rainsford turned to the resolution of the other matters – matters of citizenship and of immigration status, with all the attendant questions of parentage that then arose. In those processes it seems that the custody of the children was not in dispute and was not treated by those deciding matters as a relevant consideration. It is not clear when Mr Rainsford approached the Family Court of Australia seeking recognition of his custody outcome, but the result was not issued and could not be drawn on until November 2010, by which time he had already withdrawn his application for citizenship by descent for the children. It is not possible to regard the various attempts by Mr Rainsford to resolve these matters as custody proceedings, nor to treat them as some sort of continuation of the Fijian proceedings, even if that is how they were perceived by Mr Rainsford. They did not focus on resolving the custody of his children.

26. The legislation also requires that the custody proceedings be ‘in the country in which the person is located’. It would be beyond what the legislation will allow to treat those words as extending to the immigration and related matters, which were clearly taking place in Australia. In the modern world, with much activity taking place in cyberspace, it may often be difficult to know where something is occurring, and Mr Rainsford participated in all these processes, including earlier matters resolved by this Tribunal, from Fiji often apparently by remote means. There is no doubt, nevertheless, that those matters were all taking place in Australia. It was open to the legislature not to have included the words of location in paragraph (e); their inclusion means they must be given effect. Mr Rainsford’s immigration-related processes following the outcome of his Fijian custody matter did not occur in the country where he was located, and the discretion is not enlivened in respect of the period concerned.

    Did the custody proceedings occur or begin during the ‘initial period’?

27. I am led to conclude that Mr Rainsford was involved in custody proceedings in Fiji until their resolution on 12 May 2010 and that these proceedings made him unable to travel to Australia. That leaves s 63A(2)(a), which requires that the event making Mr Rainsford unable to travel occurred or began ‘during the initial period’, ie during the first 13 weeks of his absence; it is that 13 weeks which he seeks to extend through the exercise of the discretion in s 63A.

28. Section 1218C of the SSA which parallels s63A of the FA Act sheds some light on how the latter should be construed. Section 1218C contemplates that a person may qualify for a benefit in Australia, and then go overseas. The portability provisions limit the period the benefit may be received while the recipient stays overseas, but the discretion in s 1218C allows the period to be extended where there are circumstances beyond the person’s control - falling into the enumerated categories – that render the person unable to return. There are two main effects of the limitations to the time at which the relevant circumstances enliven the discretion: first, a person to whom the relevant circumstances apply before departing Australia may not claim the exercise of the discretion (eg if a person suffered from a serious illness before leaving Australia, that person could not claim the benefit of the discretion because the illness would not have arisen in the 13 weeks following departure); and a person who stays overseas for an extended period cannot claim the exercise of the discretion if the relevant circumstances arise after the first 13 weeks of their absence. In the latter case, it is plain that the circumstances in question could not have been the cause of extending the overseas absence beyond the 13 weeks provided for.

1. In the context of FTB most of the same considerations apply. FTB is payable at the lower rate after the first 13 weeks of an absence; the higher rate can continue to be paid on the exercise of the discretion in s 63A where the relevant circumstances arise. But those circumstances must arise during the initial 13 week period if the discretion is to be enlivened. On a plain reading of s 63A (1) and (2)(a) and s 62(2) and (3), the higher rate can only be paid where the relevant circumstances occur during the first 13 weeks of the absence and are the reason for extending that absence.

2. The Secretary, in his submission, treated the 13-week period as beginning at the time of Mr Rainsford’s return to Fiji immediately before the birth of his second child, ie from 18 December 2009. The SSAT took the same view. That seems to assume that the effect of subsections 62(2) and 62(3) is to create a new 13-week ‘initial period’ after each return to Australia. That is not how the two sections operate. The chapeau of s 63A refers to the ‘initial period’; the initial period (for present purposes) is that set in s 62(2). Subsection 62(3) extends the meaning of an absent overseas recipient is, but it does not alter what the ‘initial period’ is nor encourage a new initial period to be set after each brief return to Australia. There is no warrant in the statute for that construction.

3. The ARO whose decision the SSAT reviewed (T27) read the 13 weeks as starting from the birth of Mr Rainsford’s second child on 21 February 2010 but continuing only to Mr Rainsford’s next departure from Australia on 29 March 2010. Again, there is nothing in the statute that leads to that construction.

4. A plain reading of the words of ss 62 and 63A requires that the ‘initial period’ referred to in s 63A begin 13 weeks into Mr Rainsford’s first absence of more than 13 weeks from Australia, ie in November 2008. That absence (see the table at [30] above) was between 6 August and 12 November 2008, totalling 14 weeks (98 days). Subsequent visits to Australia were each less than 13 weeks, and so Mr Rainsford remained an absent overseas recipient during the remainder of his stay in Fiji, by operation of subsection 62(3). As for the custody proceedings in Fiji, Mr Rainsford told the SSAT they started in 2009, and he certainly has not tried to claim that they began as early as 2008, when his first child was a newborn and the second still more than a year away from birth. To enliven the discretion, the proceedings would need to have begun before 5 November 2008. Thus the discretion is not enlivened.

   Conclusion

5. Mr Rainsford is therefore not entitled to FTB at the higher rate for his second child  for the period he was in Fiji. That is a harsh result for him: not only is he denied the benefit he is seeking, but he is also denied some of what he has already received, which will presumably be recovered from him. Nevertheless, it is a result that flows directly from the legislation.

6. Looking more broadly at Mr Rainsford’s circumstances, it is clear that he has been without the higher rate of benefit for a good period between the birth of his second child and his return to Australia because of adverse decisions which were later reversed. If the children had been granted citizenship when he first applied, for example, he could have returned to Australia some years earlier than he did, and received the higher benefit for most of that period. Mr Rainsford may wish to consider applying for compensation under the Compensation for Detriment caused by Defective Administration (CDDA) Scheme.

   DECISION

7. The decision under review is set aside and in its place is substituted a decision that FTB Part A and Part A supplement in respect of his second child was payable to Mr Rainsford for the period 21 February 2010 to 28 March 2010, for the remainder of the 2009/2010 financial year.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of

..............[sgd]..........................................................

Associate: Sarah Wardell

10 October 2014

Date of hearing	20 August 2014
Date final submissions received	29 August 2014
Applicant	In person
Counsel for the Respondent	David McLaren
Solicitors for the Respondent	Department of Human Services