Lolanga and Secretary, Department of Social Services (Social services second review)

Lolanga and Secretary, Department of Social Services (Social services second review) [2017] AATA 1542 (25 September 2017)
Division:GENERAL DIVISION
File Number: 2016/5882
Re:Santa Lolanga
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndMohmoud Abdallah
OTHER PARTY

DECISION
Tribunal:Senior Member R W Dunne
Date:25 September 2017
Place:Adelaide

The decision under review is set aside and substituted.
..................[Sgd]......................................................
Senior Member R W Dunne
CATCHWORDS
FAMILY TAX BENEFIT - second review of decision to cancel payment of family tax benefit - whether applicant is entitled to payment of family tax benefit for a child - at first review, payment of family tax benefit to applicant cancelled - decision under review set aside.
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth), ss 21, 22 and 23
SECONDARY MATERIALS
Family Assistance Guide
REASONS FOR DECISION
Senior Member R W Dunne
25 September 2017
INTRODUCTION

The applicant in this case is Santa Lolanga. The matter involves a claim for family tax benefit (“FTB”) in respect of a child (who, for confidentiality reasons, I shall call “Child A”) under the A New Tax System (Family Assistance) Act 1999 (“FA Act”). The other party is Mohmoud Abdallah.
Ms Lolanga and Mr Abdallah were partnered from 15 September 2009 to 25 July 2010 and again from 3 May 2014 to 1 February 2016.
Child A was born in Africa in 2010. Both of Child A’s biological parents are now deceased. Child A is the daughter of Mr Abdallah’s sister.
In June 2014, Mr Abdallah applied for a visa for Child A to reside in Australia. In the visa application Mr Abdallah was described as Child A’s sponsor and the applicant was shown as Mr Abdallah’s partner.
In July 2015, Child A was granted an orphan relative visa and she arrived in Australia on 1 September 2015 with Mr Abdallah. The applicant began to be paid FTB for Child A from 1 September 2015. From 7 October 2015 the applicant began to be paid the Double Orphan Pension for Child A.
When Mr Abdallah made a claim for FTB for Child A, a decision was made by the Department of Human Services (“Department”) to determine that Child A was in Mr Abdallah’s full-time care and he was paid 100% of the FTB and the Double Orphan Pension for Child A.
When the applicant sought a formal review of the Department’s decision, it was reviewed and affirmed by an authorised review officer (“ARO”). The applicant then applied for first review of the Department’s decision by this Tribunal (“AAT1”). When AAT1 reviewed and affirmed the ARO decision, the applicant applied to this Tribunal for second review.
At the hearing before me, the applicant represented herself, with the assistance of an interpreter, and the respondent was represented by Mr C Visser (Department of Human Services). I admitted into evidence the T Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 [1] together with the following exhibits:
·Federal Circuit Court Orders dated:
o15 June 2016
o2 August 2016
o15 September 2016
o28 September 2016
o13 December 2016
o13 December amended on 19 January 2017.
[1] Exhibit R1.
ISSUES FOR THE TRIBUNAL
The issues for determination by the Tribunal are as follows:
(a)From 3 April 2016 who, if anyone, was entitled to payment of Family Tax Benefit for Child A?
(b)Was the decision to cancel the Family Tax Benefit paid to the applicant for Child A, from 3 April 2016, the correct decision?
LEGISLATION
The legislation that applies in this case is contained in the FA Act. The provisions in the FA Act that are relevant here are contained in s 21(1), s 22(1), (2), (5) and in s 23(1).
“21 When an individual is eligible for family tax benefit in normal circumstances
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i)     has at least one FTB child; or
(ii) has at least one regular care child who is also a rent assistance child; and
(b) the individual:
(i)     is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii)    satisfies subsection (1A); and
(c)the individual's rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding section 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1, is greater than nil.
…
22 When an individual is an FTB child of another individual
(1) An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
(2) An individual is an FTB child of the adult if:
(a)       the individual is aged under 16; and
(b)       the individual is in the adult's care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
Legal responsibility for the individual
(5) The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b)under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
…
23       Effect of FTB child ceasing to be in individual's care without consent
(1) This section applies if:
(a)an individual is an FTB child of another individual (the adult ) under subsection 22(2) or (3); and
(aa)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph 22(5)(a) or (b); and
(b)an event occurs in relation to the child without the adult's consent that prevents the child being in the adult's care; and
(c)the adult takes reasonable steps to have the child again in the adult's care.
…”
BACKGROUND
The material facts in this case are not in dispute and are largely extracted from the T Documents and the statement of facts and contentions of the respondent.
Ms Lolanga was born in Burundi, East Africa in 1987. She came to Australia in 2007 and she was granted Australian citizenship in February 2007. When Ms Lolanga and Mr Abdallah were partnered, they had four children together. Ms Lolanga cared for these children. She also cared for Child A from 1 September 2015.
Mr Abdallah departed Australia in February 2016 and the applicant advised the Department that she had separated from him. However, he returned to Australia on 31 March 2016 and made a claim for FTB for Child A in April 2016. Later in April 2016, the Department determined that Child A had left the applicant’s care and a decision was made to determine that Child A was in Mr Abdallah’s full time care as of 3 April 2016. He commenced to be paid all of the FTB and Double Orphan Pension for Child A from this date.
When the applicant sought a review of the decision to cancel her FTB for Child A from 3 April 2016 and the ARO affirmed the decision, it appears that parental problems developed at the school at which the children of the parties (including Child A) attended. The school principal requested that Ms Lolanga and Mr Abdallah resolve the problems. It appears Ms Lolanga did this by seeing a lawyer regarding the care of Child A, and the lawyer said that he would be lodging an application for a court order stating that Child A was in the applicant’s care, and applying for full care/custody for Child A.
On 15 June 2016, Ms Lolanga and Mr Abdallah appeared (by representation) before Judge Heffernan in the Federal Circuit Court. By consent, the court ordered:
(a)that their three biological children and Child A would live with Ms Lolanga; and
(b)that Mr Abdallah spend time with the said children each Sunday from 12.00noon to 2.00pm.
On 2 August 2016, 15 September 2016, 28 September 2016 and 13 December 2016 (amended to 19 January 2017), Ms Lolanga and Mr Abdallah again appeared (by representation) before Judge Heffernan in the Federal Circuit Court. By consent, the court further ordered:
(a) that their now four biological children and Child A would reside with Ms Lolanga; and
(b) that Mr Abdallah spend time with the said children each Sunday from 12.00noon to 2.00pm, or from 1.00pm to 5.30pm, or from 10.00am to 5.00pm.
On 25 August 2016 when the AAT1 reviewed and affirmed the ARO decision it found that the applicant did not have legal responsibility for the day-to-day care, welfare and development of Child A as at April 2016.
It appears that Mr Abdallah departed Australia on 18 January 2017 and later returned. In its statement of facts and contentions the respondent stated that on 19 January 2017 the applicant commenced on FTB (at 100% rate) for Child A. The respondent’s statement also stated that the applicant began to receive the Double Orphan Pension for Child A on 14 March 2017. Although there is no mention of these dates and events in the AAT1 decision, there is no reason to suggest that they are not factually accurate.
EVIDENCE
Evidence of Ms Lolanga
In giving her evidence, I asked the applicant to review the respondent’s statement of facts and contentions. She said the facts in the statement were essentially correct. However, she asserted that Child A had never left her care from 3 April 2016. I then asked the applicant to review the decision of the AAT1. She said she thought that what the AAT1 Member (Mr Cullimore) had said in his decision was broadly correct. However, the Member’s findings regarding her children were not accurate. She said she only had four biological children with Mr Abdallah and also cared and was responsible for Child A. Two of the children that the AAT1 Member referred to were not her biological children, but were the children of Mr Abdallah from a previous relationship.
When I referred the applicant to paragraph 16 of the AAT1 Member’s decision, she said that what the Member had said was not correct. She said she had not agreed that Child A was in the sole care of Mr Abdallah from 3 April 2016 and had returned to her care in early May 2016. She made it clear that at no stage had Child A left her care from 3 April 2016. The applicant confirmed that she had been receiving FTB for Child A from 1 September 2015 and she was receiving FTB again in December 2016.
Evidence of Pastor Nkombera
Pastor Nkombera gave evidence by telephone. He said he had known the applicant for more than four years and that she is known in his church as the guardian of Child A. Child A has lived with the applicant since she arrived in Australia in September 2015.
Evidence of Ms McBride
It was Ms McBride’s evidence that she is a close friend of the applicant. She said she has known the applicant and her family for two years and her sponsored child, Child A. Child A has been living with the applicant and her own children since the arrival of Child A in Australia in September 2015.
CONSIDERATION
From 3 April 2016 who, if anyone, was entitled to payment of Family Tax Benefit for Child A?
The FA Act is part of the family assistance law (“FA Law”). The FA Law relates to the assistance provided to an adult who is responsible for the day-to-day care, welfare and development of a child. Section 21(1) of the FA Act outlines when a person is eligible for FTB. To be eligible, a person must have an FTB child. Under ss 22(1) and (2) of the FA Act, an individual is an FTB child of another individual (the adult) if the individual is aged under 16 years, is in the adult’s care and is living with the adult. There must also be circumstances surrounding legal responsibility for the care of the individual. These circumstances are those relevantly referred to in subsections 22(5)(a) and (b) of the FA Act. The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b)under a Family Law Order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time.
The family assistance arrangements under the FA Act were implemented as part of changes to Australia’s taxation system on 1 July 2000. Family assistance payments are administered by Centrelink under the FA Act. Information relating to the operation of the FA Law is provided under the Family Assistance Guide (“the Guide”). Point 1.1.P.19 of the Guide relates to parenting orders. These include:
(a) an order dealing with the allocation of parental responsibility for a child; and
(b)an order dealing with the person or persons with whom a child will live, but does not usually allocate legal responsibility to a particular person.
Point 1.1.L.20 of the Guide relates to legal responsibility. That Point relevantly provides:
For the purposes of FA, legal responsibility is the right to have and to make decisions concerning the day-to-day care, welfare and development of a child. Both parents are legally responsible for their child, except where:
— they agree that one parent should have greater or sole responsibility, or
— a court makes an order that changes their responsibility in a particular matter.
Having read the orders made by Judge Heffernan in the Federal Circuit Court referred to in paragraphs 15 and 16 above, I am satisfied that those orders comprise or include or are the equivalent of parenting orders under Point 1.1.P.19 of the Guide. In my view the orders made by Judge Heffernan are also consistent with the issue of the legal responsibility of the applicant insofar as it relates to the day-to-day care, welfare and development of her biological children and Child A.
On the evidence available, Child A is a FTB child of the applicant because Child A satisfies subsections 22(2)(a), (b) and (c) of the FA Act. Child A is also a FTB child of the applicant pursuant to subsection 22(2)(d) of the FA Act. This is because the circumstances surrounding legal responsibility for the care of Child A are those mentioned in subsections 22(5)(a), (b) or (c) of the FA Act.
In giving her evidence, the applicant said that she did not agree with Mr Abdallah that Child A was in the sole care of Mr Abdallah from 3 April 2016 to early May 2016, after which time Child A was again in the applicant’s sole care and remains so to date. She was adamant that Child A was in her care from the time she arrived in Australia in September 2015. Hearing what the applicant said and having reviewed what the AAT1 Member decided, I do not believe that paragraphs 17, 18 and 19 of the decision are correct. Moreover, in reviewing what the AAT1 Member mentioned in paragraph 28 of his decision, I do not agree that paragraph 22(5)(b) of the FA Act cannot apply. In my view, the orders of Judge Heffernan in the Federal Circuit Court mentioned in paragraph 26 above are sufficient to satisfy the requirements of paragraph 22(5)(b).
The evidence of Pastor Nkombera and Ms McBride was that Child A lived with and was cared for by the applicant since she arrived in Australia in September 2015. There is no contrary information available to suggest that the evidence of these witnesses should not be accepted.
CONCLUSION
Having regard to the documentary evidence, to the evidence of the applicant and to the evidence of the applicant’s witnesses I am satisfied that the applicant was entitled to the payment of family tax benefit for Child A from the date of Child A’s arrival in Australia in September 2015. It is clear from the orders of Judge Heffernan that this entitlement continued from 15 June 2016. I am further satisfied that the applicant continued to be entitled to the payment of family tax benefit for Child A from 3 April 2016.
Was the decision to cancel the Family Tax Benefit paid to the applicant for Child A, from 3 April 2016, the correct decision?
Having concluded that the applicant was entitled to the payment of family tax benefit for Child A from the date of Child A’s arrival in Australia in September 2015 and continued to be entitled to the payment of family tax benefit for Child A from 3 April 2016, it follows that the decision to cancel the family tax benefit paid to the applicant for Child A from 3 April 2016 was not the correct decision. The decision should be corrected.
DECISION
For the reasons set out above, the decision under review is set aside and substituted.

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

......................[Sgd].....................
Administrative Assistant
Dated: 25 September 2017

Date(s) of hearing: 11 August 2017

Applicant: In person

Advocate for the Respondent: Mr C Visser

Solicitors for the Respondent: Dept of Human Services

[2017] AATA 1542

25 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date(s) of hearing:	11 August 2017
Applicant:	In person
Advocate for the Respondent:	Mr C Visser
Solicitors for the Respondent:	Dept of Human Services