LYPG and Secretary, Department of Social Services RQHV OTHER PARTY
[2013] AATA 719
[2013] AATA 719
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1158
Re
LYPG
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
RQHV
OTHER PARTY
DECISION
Tribunal Senior Member Bernard J McCabe
Date 8 October 2013 Place Brisbane The decision under review is affirmed.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Family tax benefit – Running away from home not "an event" – "Reasonable steps" to return the child to mother's care – Decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 s 23
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Lomas and Secretary to the Department of Family and Community Services [2004] AATA 278 Campbell and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 58
SECONDARY MATERIALS
Family Assistance Guide
REASONS FOR DECISION
Senior Member Bernard J McCabe
This case is about a runaway child and the family tax benefit (“FTB”). I shall call the child John. John was 14 years old when he decided to move out of his mother’s home on the Easter long weekend in 2012. He moved in to the home of a friend’s mother. John stayed there for approximately ten weeks before he returned to his own mother’s home. The friend’s mother, whom I shall refer to as Joan, claimed FTB in respect of John during this period. The respondent initially rejected the claim. It said John’s mother was entitled to FTB during this period even though the child was not actually living with her at the time. The Social Security Appeals Tribunal (“the SSAT”) took a different view and said Joan was entitled to FTB in respect of John for the period he lived in her care. Since only one person at a time has an entitlement to FTB with respect to a child, John’s mother lost out. John’s mother has asked the Tribunal to revisit that issue. The Secretary made submissions consistent with those of John’s mother.
The outcome of the case revolves around the interpretation of s 23(1)(b) and (c) of the A New Tax System (Family Assistance) Act 1999 (“the FTB Act”). Those sub-sections refer to a situation where:
(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.
There is no dispute that John effectively ran away from home in Easter 2012 to live as part of Joan’s household until 21 June 2012. It was his decision to do so; the fact he was 14, and the reasons for it, are irrelevant. There was some doubt over the precise date on which he left the family home. While he spent most of the Easter long weekend with Joan, I accept his mother’s undisputed evidence that he spent Easter Sunday night at home before departing for Joan’s residence on Easter Monday, April 9, after which he did not return. I shall return below to the question of whether John’s decision to run away is properly regarded as “an event [that] occurs in relation to the child…”.
There was some dispute on the evidence over whether John acted with his mother’s consent. She insisted she was devastated by his decision and begged him not to leave, and subsequently pleaded with him to return. She said she did not consent to him leaving. Joan said in her evidence that John’s mother had said to Joan words to the effect that John was a difficult child and that Joan was “welcome to him”. John’s mother vehemently denies that she said any such thing. Joan also pointed out the case notes from one of John’s counsellors at Reconnect, a counselling service, recorded John’s mother saying in March 2012 that John – who had been experiencing problems following the death of his father – would have one last chance to improve his behaviour. John’s mother said the remarks must be seen in their context: she said she was discussing whether different action might have to be taken to remedy John’s behaviour. I agree the context of the remarks must be kept in mind. While I accept they reflect a mother nearing the end of her tether, I do not think they should be regarded as evidence of consent to the child’s departure from the family home.
What of the angry remarks the applicant supposedly made to Joan? It is difficult to be sure precisely what passed between the two of them during the period in question. Their relationship was tense and acrimonious. I accept John’s mother may have said some unfortunate things in the heat of these exchanges, but I am not persuaded she genuinely accepted her son’s decision to move out of the family home. Indeed, the relationship with Joan was tense precisely because the applicant resisted her son’s decision.
In the circumstances, I am satisfied John departed the family home without his mother’s consent.
I return to the question of whether there was “an event [that] occurred in relation to the child”. Can it be said that John’s decision to run away from home prevents the child being in [his mother’s] care? The applicant said it did. The Secretary agreed. I was referred to the Family Assistance Guide used by Centrelink officers assessing claims in relation to FTB. It assumes “an abducted, absent or missing child” is an event that prevented the child from being in an adult’s care even in circumstances where the child in question “may have left of their own volition but be under age and living with someone who does not have legal responsibility for them, without their parent/carer’s consent”. Of course, the Guide is not an authority that can be used to interpret legislation. It merely represents the Secretary’s view of how the law should be interpreted and applied. It is certainly useful when considering how a statutory discretion should be exercised, for the reasons explained in Drake No 2 – Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
The use of the words “event” and “prevents” in s 23(1)(b) is interesting. They certainly cover a situation where a third party or external circumstances intervene to create an obstacle to the child remaining in the home. Examples are not hard to imagine: if the child were taken into care, or into custody, or fell ill, or if he were stranded in a remote place – these are all events that would prevent the child from being in his parent’s care. But is John’s voluntary departure an event that prevents him being in his mother’s care?
Mr Bishop, for the respondent, referred me to two decisions of the Tribunal which he said were consistent with the proposition that running away from home was an event that “prevents the child being in the adult’s care”. I accept in Lomas and Secretary to the Department of Family and Community Services [2004] AATA 278 and Campbell and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 58 that the Tribunal proceeded on the assumption a runaway could be covered by the sub-section, although it does not appear the question was explicitly agitated in either case.
Joan did not pretend to understand the detail of the legislation, but she did make the obvious point that she had borne the cost of looking after the applicant’s son while he lived in Joan’s home. She did not think it was fair that John’s mother continued to be entitled to FTB during this period when Joan was the one out of pocket. Joan has a point: if FTB is intended to assist in the upbringing of children, it makes sense that it would be available to the person who was actually bearing the cost of looking after the child.
The only thing that prevented the child from being in his mother’s care in this case was his voluntary decision. I do not think that is the sort of thing contemplated by the use of the expression “an event [that] occurs in relation to the child without the adult's consent that prevents the child being in the adult's care”. I think the sub-section refers to an external event – a happening or circumstance apart from the child’s voluntary decision – that operates to prevent the child from being in the care of the parent.
In those circumstances, I do not think the applicant can succeed in her application. But there is one further matter I will discuss for the sake of completeness. I am referring to the additional requirement (set out in s 23(1)(c) of the FTB Act) that “the adult takes reasonable steps to have the child again in the adult's care”. John’s mother described in her written and oral evidence how she repeatedly pleaded with her son to return. She provided phone records which demonstrated she called John on a number of occasions and sent many text messages. She also spoke of calling his friends and contacting him on Facebook.
In her evidence, John’s mother explained:
·she did not approach the Department of Family Services or a lawyer to discuss whether there was any way she could compel her son to return home, although Joan said “child safety” officers did contact her and interview John and her own son. The applicant said she did not want to make a formal approach to the Department of Family Services out of fear it would trigger formal action that would make the situation worse;
·she spoke with one of the police officers who attended the family home when John arrived to remove his belongings after the Easter long weekend and became unruly. She said she was told there was nothing she could do to stop her son moving out;
·she contacted John’s school and alerted the principal to the situation – although that was not, strictly speaking, a step to have John returned to her care;
·she spoke with John’s counsellor at Reconnect, who said there was nothing formal that could be done to secure John’s return. The counsellor told the applicant she would just have to do her best to make John understand she loved him in an attempt to persuade him to come back;
·she spoke with a Centrelink officer who also told her there was nothing formal that could be done to compel her son to return home.
Joan said she overheard at least one call from the applicant to her son, and Joan said she was shown some of the text messages from the applicant to John. Joan said the messages were abusive.
I am not satisfied the applicant did everything she could to secure the return of her son. I am also inclined to accept some of the applicant’s attempts at communication were, to say the least, counterproductive. I reach that view in light of the evidence of Joan about the content of some of the text messages that were sent to John. Joan gave her evidence in a relatively considered way, and she made some attempt to avoid exaggeration and excessive personal accusations. Her demeanour can be contrasted with the applicant’s agitated behaviour while giving evidence that tended to indicate (a) the applicant was given to emotional outbursts and (b) she was at least partly motivated by anger at what she regarded as Joan’s interference, and that anger almost certainly affected her communications with her son. But the fact the applicant did not do everything she could have done to secure her son’s return is not the test. The question is whether she took reasonable steps.
The question is a difficult one. While her son was only 14, he was apparently fixed in his determination not to return. He was not living on the streets; he was not in any danger. Indeed, it seems he was being provided with appropriate (and in the circumstances, generous) care and support in Joan’s home. It is not clear whether anything could or should have been done to compel his return. I have already noted the applicant did not approach the Department of Family Services or consult a lawyer to discuss whether this was an option. (I note the applicant consulted a lawyer in relation to the proceedings, so there was no practical obstacle to her doing so.) But she explained what she thought were good reasons for not adopting that course. In the circumstances, I am inclined to accept she did take reasonable steps.
CONCLUSION
The decision under review is affirmed in light of my finding the applicant was unable to satisfy the requirement in s 23(1)(b) of the FTB Act.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 8 October 2013
Date of hearing 29 August 2013 Solicitors for the Applicant Barclay Bierne Lawyers Solicitors for the Respondent Department of Human Services Other Party In person
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