LORNE HURLEY and SECRETARY DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 133

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 133

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1180

GENERAL ADMINISTRATIVE DIVISION		)
Re		LORNE HURLEY

Applicant

And SECRETARY DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

And            PATRICIA FLETCHER

Third Party

DECISION

Tribunal  M J Carstairs, Senior Member

Date4 March 2009

Place Bundaberg

Decision The Tribunal affirms the decisions under review. 

..............................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – family tax benefit – care of the FTB children – taking reasonable steps to resume care – decision under review affirmed

A New Tax System (Family Assistance) Act 1999 (Cth), ss 21, 22, 23.

REASONS FOR DECISION

4 March 2009  M J Carstairs, Senior Member     

1.      Lorne Hurley is the father of two children, for whom he was receiving 14% of the overall family tax benefit paid for the children, because that was the agreed percentage of his care of them.

2.      This care, in accordance with the terms of Mr Hurley’s agreement with Ms Fletcher (the children’s mother), was on the basis that Mr Hurley ordinarily would have the children every second weekend and part of the school holidays.

3.      This pattern of care was interrupted from 4 December 2006 to about September 2007, at which point it seems Mr Hurley’s normal pattern of care resumed.  During that time, Mr Hurley admits that he did not have the children in his care, because Ms Fletcher was not allowing the usual pattern of access to occur.  He said he continued to turn up at the agreed pick up point, but the children were never there.  Clearly there were problems between Mr Hurley and Ms Fletcher.

4.      Under the legislation there is a minimum requirement that a child be in the person’s care for them to obtain the family tax benefit[1].  There are of course a number of additional requirements, but whether the children were in Mr Hurley’s care was one of the issues before me in this application.

[1]        A New Tax System (Family Assistance) Act 1999, s 22(3).

5.      There are times when a child will be taken from the care of another without their consent.  Essentially that is what happened when Ms Fletcher denied Mr Hurley his usual pattern of access.  In those circumstances, family payments may continue for up to 14 weeks, but only if the person is taking “reasonable steps to have the child again in the adult’s care”[2].  

[2]        A New Tax System (Family Assistance) Act 1999, s 23(1).

6.      Centrelink stopped Mr Hurley’s payments of family tax benefit on 25 June 2007, and have since raised a debt for the payments he continued to receive in that time.

ISSUES

7.      The issues then are:

§  were the children in his care during the period?

§  if not, was Mr Hurley taking reasonable steps to have the children again in his care?

8.      The relevant statutory provisions are found in A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act). I have briefly mentioned the eligibility requirements which are found at ss 21 and 22 of the Family Assistance Act. There was no question that Mr Hurley satisfied the provisions of s 21 of the Family Assistance Act regarding eligibility.

9.      The nub of Mr Hurley’s argument was that primary regard ought be given to the Family Court Orders, and that Centrelink’s actions flew in the face of those Orders.  Mr Hurley said that Centrelink decision-makers ought not to have looked beyond what had been agreed as the shared care.  Mr Hurley said that he did not dispute that he was prevented from having the children in his care, but he also said that he never lost the responsibility for them, as reflected in the Court Orders. 

10.     Ms Fletcher had contacted Centrelink late in January 2007 to advise that she had the children 100% of the time.

11.     Mr Hurley said that he had been upset when Centrelink telephoned him, (he thought about February 2007), making enquiries about whether he had the children.  He did not like the way he was spoken to, and he said that it was none of the caller’s business.  He said he thought it was wrong that Centrelink could ignore the fact that the children’s mother had breached Court Orders.   

12.     There was a computer record of a similar contact with Centrelink in May 2007.  Centrelink sent follow-up letters asking about the question of care, and checking whether Mr Hurley was taking any legal action. Centrelink received no reply from Mr Hurley.

13.     Mr Hurley said that he was taking steps to go back to Court, and had obtained a kit, but had not approached a solicitor.  He also referred to discussions with Relationships Australia and a lone fathers group. 

14.     It is clear that Mr Hurley did not have the children in his care at any time in the period.  Being available to them, by attending regularly at the pick up point and having readied himself by purchasing food for them was not sufficient.  During the period under review, Mr Hurley was only maintaining telephone contact with the children.  The children simply were not “in his care” in that time.  The legislation makes plain that it is not only that there are Family Court Orders in place that provide a basis for entitlement (section 22(3)(b)), but that the child must also be in the adult’s care (s 22(3)(c)).  So Mr Hurley’s complaint that Centrelink did not give sufficient recognition to the existing Orders misses the point.  That was only one part of the test.  When Mr Hurley could not show that the children were in his care, he was not eligible for the family tax benefit payment.  

15.     This principle applies, regardless of the rights and wrongs of how those circumstances came about.  It is not Centrelink’s job to determine such matters, only to apply the legislation.

16.     So it comes down to whether Mr Hurley was entitled to at least 14 weeks of continuing payments on the basis of his taking “reasonable steps” to assert his rights to see the children.  I find myself in agreement with the Social Security Appeals Tribunal on this point:  Mr Hurley was not taking any reasonable steps, but only making some preliminary enquiries.  The Family Assistance Guide suggests that reasonable steps might include contacting a solicitor to commence proceedings, notifying the police or contacting the Courts.  None of these steps were taken.  Mr Hurley had told Centrelink that he had decided to proceed without legal assistance, and had obtained a kit to do so.  It was evident from what he said at the hearing that he was mistrustful of lawyers.  However, it was evident that he took no action of any substance in the nine months or so that he was prevented from seeing his children. 

17.     He mentioned his attendance at a lone father’s group and Relationships Australia, but Mr Hurley does not suggest that this led to any further action on his part to resume his access to the children.  The Social Security Appeals Tribunal referred to Mr Hurley’s activities as being information gathering, and in that sense preliminary, rather than taking steps.  I agree.  Taking “reasonable steps” involves something more than research, particularly in view of the pace at which this was proceeding.  According to Mr Hurley’s evidence, he did not obtain the kit until February 2007, some two months after he had ceased having the children in his care.

18.     Accordingly, I am not satisfied that Mr Hurley took reasonable steps. The consequence is that he is not entitled to have the 14 week period of grace in which payments of family tax benefit can continue for people who are taking steps to regain access to their children.  This means that Mr Hurley ceased to be eligible for 14% of the family tax benefit, with effect from 4 December 2006.

19.     The Tribunal will separately list for hearing Mr Hurley’s application for review of the debt Centrelink raised for the payments made to him after 4 December 2006.

DECISION

20.     The Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:...............................................................................
  Emily Clarke, Associate

Date of Hearing  20 February 2009  
Date of Decision  4 March 2009
The Applicant was self-represented         

Advocate for the Respondent   Mr Rick McQuinlan
The Third Party was self-represented