Mitchell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 767
•29 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 767
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/5673
GENERAL ADMINISTRATIVE DIVISION )
Re KIM MITCHELL
Applicant
AndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date29 August 2008
PlaceSydney
DecisionThe Tribunal affirms the decision under review.
.................[Sgd]........................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – Applicant seeks Maternity Payment in respect of twin sons – Applicant imprisoned at time of birth - Children not in care of mother during that time – Department of Community Services took the twins into care - Children not FTB children – Mother not eligible for Maternity Payment - Decision under review is Affirmed.
A New Tax System (Family Assistance) Act 1999.
A New Tax System (Family Assistance) (Administration) Act 1999
Family Assistance Legislation Amendment (More Help for Families–Increased Payments) Act 2004.
Re Sorry and Secretary, Department of Families, Community Services and Indigenous Affairs [2008] AATA 217
Secretary, Department of Social Security v Lowe [1999] FCA 705
Re Nowicz and Secretary FACS [2001] AATA 628
REASONS FOR DECISION
29 August 2008
Ms N Isenberg, Senior Member
issue before this tribunal
1. Whether Ms Mitchell qualifies for Maternity Payment (now known as the “baby bonus”), in respect of her twin sons, Luke and Jake.
background
2. On 30 November 2005, Ms Mitchell was imprisoned at Mulawa Women’s Correctional Centre.
3. On 7 December 2005, Ms Mitchell gave birth to twin boys, Luke and Jake (“the twins”) at Westmead Hospital.
4. On 8 December 2005, Ms Mitchell was returned to prison and the Department of Community Services (“DOCS”) took the twins into care, within 24-hours of their birth.
5. On 15 December 2005, Ms Mitchell lodged a claim for Maternity Payment, a form of financial support payable under the A New Tax System (Family Assistance) Act 1999 (“the FA Act”). Her claim for Maternity Payment was rejected by a Centrelink delegate on 6 January 2006 because the twins were not in her care.
6. On 11 May 2007, Ms Mitchell sent a letter to Centrelink, requesting a review of the decision; however, the original decision of 6 January 2006 remained unchanged.
7. On 16 July 2007, Ms Mitchell sought further review of the decision and appealed to the Social Security Appeals Tribunal (“the SSAT”).
8. On 26 October 2007, the SSAT affirmed the decision of a Centrelink Authorised Review Officer (“ARO”) dated 25 June 2007, that Ms Mitchell was not entitled to Maternity payment. Ms Mitchell now seeks review of that decision by the Administrative Appeals Tribunal.
Legislation
9. The relevant legislation is found in subsection 36(1) and 36(2) of the FA Act which sets out the eligibility requirements for the baby bonus. The section was inserted into the FA Act by section 1 of Schedule 2 of the Family Assistance Legislation Amendment (More Help for Families–Increased Payments) Act 2004.
10. The term baby bonus is defined in section 4 of the FA Act to mean “the payment for which an individual is eligible under Division 2 of Part 3” of the FA Act.
11. An individual is qualified for Maternity Payment in respect of a child in the four situations described in section 36 of the FA Act. It is the situation in subsection 36(2) of that Act which is relevant here. It provides that:
… an individual is eligible for baby bonus in respect of a child if:
(a) the individual is a parent of the child; and
(b) the individual either:
(i) is eligible for family tax benefit in respect of the child at any time within the period of 13 weeks starting on the day of the child’s birth; or
(ii) would be so eligible except that the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is nil; and
(c)if the individual is, under a law of a State or Territory, responsible (whether alone or jointly) for registering the birth of the child in accordance with the law:
(i) at the time the claim for payment of baby bonus is made, the birth of the child has been registered in accordance with the law; or
(ii) at the time the claim for payment of baby bonus is made, the individual has applied to have the birth of the child registered in accordance with the law; or
(iii) the Secretary is notified, or becomes aware, within 26 weeks after the birth of the child, that the individual applied to have the birth of the child registered in accordance with the law.
12.Eligibility for Family Tax Benefit (“FTB”) is defined by section 21 and 22 of the Act. Section 21 provides relevantly:
(1) An individual is eligible for family tax benefit if:
(a) the individual has at least 1 FTB child (see section 22 and later provisions); 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, is greater than nil.
When individual satisfies this subsection
(1A)An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991, and either of the following applies:
(a) the individual is in Australia; or
(b) the individual:
(i) is temporarily absent from Australia for a period not exceeding 13 weeks; and
(ii) the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
(2)However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.
13. The term “family tax benefit” is defined to mean “the benefit for which a person is eligible under Division 1 of Part 3”: section 3 of the FA Act
14. The term “FTB child”, under section 21 of the FA Act, is defined to mean in relation to FTB, the meaning given in Subdivision A of Division 1 of Part 3: section 3 of the FA Act.
15. The twins are FTB children if the requirements of section 22 of the FA Act are met. The section relevantly provides:
(2) The individual is an FTB child of the adult if:
(a)the individual is aged under 18; and
(b)the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; and
(c)the individual is in the adult’s care; and
(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
…
(4)The individual is an FTB child of the adult if:
(a)the individual is aged under 18; and
(b)the individual is in the adult’s care; and
(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; and
(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
Individual aged 18‑20
16.The first matter for consideration is whether either of those provisions is satisfied. In particular, the issue is whether the twins were in “Ms Mitchell’s care” at any time in the period of 13 weeks after their birth. If they were, consideration must then be given to section 25 of the FA Act which, in nominated circumstances, removes the twins FTB status. It relevantly provides:
25.(1) If:
(a)the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); and
(b)one of those other individuals makes, or has made, a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in that period; and
(c)the Secretary is satisfied that the child was, or will be, in the care of that last‑mentioned individual for less than 10% of that period;
the child is to be taken, despite that subsection, not to be an FTB child of that last‑mentioned individual for any part of that period.
17. The entitlement to be paid Maternity Payment is governed by the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Administration Act”) which sets out the procedural framework for administering the FA Act.
18. Pursuant to section 36 of the Administration Act the only way to be entitled to be paid Maternity Payment is to make a claim in accordance with Division 3 of Part 3 of that Act.
19. Section 38 of the Administration Act deals with the manner and form of claim for a baby bonus payment.
20. The term “normal circumstances” is relevantly defined in section 42 of the Administration Act to mean circumstances where the Secretary is satisfied that the claimant is eligible for baby bonus in accordance with Subdivision A of Division 2 of Part 3 of the FA Act.
21. The Secretary is required to determine an effective claim in accordance with sections 41 to 44 of the Administration Act. Section 41(2) of the Administration Act reads:
The Secretary is to make the determination:
(a)having regard only to the information in the claim (and any accompanying documents or information required by the Secretary); or
(b)having regard to the things in paragraph (a) and also to any other information or documents (whether or not provided by the claimant)
ms mitchell’s evidence
22. Ms Mitchell gave evidence that for four-five months she had had been getting everything together in anticipation of the birth of the twins in December 2005. She was unexpectedly arrested on 30 November 2005 for receiving stolen goods – a computer to maintain the twins’ photographs. Bail was refused because she had previously failed to appear on earlier charges.
23. On 7 December 2005, Ms Mitchell went into labour and was transported under guard to Westmead hospital by ambulance. A caesarean had previously been scheduled, because both babies were in breach position, but by the time she got to the hospital, it was too late and by about 9:00 am both her sons were born.
24. Because they were about four weeks premature they were, after initially being put on the breast, taken away to the nursery, and possibly put on oxygen. After she had had a shower, the nursery told her she could come to visit the twins. She expressed milk which was fed to them via tubes through their noses. She stayed with them, until the guards told her, at about 6:00 pm, that it was time to return to the prison.
25. Ms Mitchell said that DOCS had been informed of the impending births as soon as she had gone into custody because her daughter was already in DOCS’ care. She understood that the prison welfare services contacted DOCS, while she was at the hospital.
26. Ms Mitchell said, that she had applied to see the twins daily so that she could breast feed them, but the paperwork was lost.
27. Ms Mitchell saw them again at Gosford hospital about two-three weeks later, where they had been hospitalised because the foster carer had mis-medicated one twin. She spent about four hours there and held them, fed them a bottle and changed their nappies. She had photographs taken of them.
28. Ms Mitchell stated in her evidence, that she had hoped to be transferred with the twins to ‘Jacaranda’, a mothers and babies facility within the prison. Her application, which was at the discretion of the prison authorities, was refused. She understood it to be because she had not yet been sentenced at the time she had applied. After she was sentenced to 12 months imprisonment in January or February 2006, she did not press her application because it had already been refused.
29. Therefore, there was no other option for the care of the twins than to have them in DOCS’ care. Her husband was also in gaol and his parents were unwilling to take the twins. She had no other family.
30. When the twins were about seven months old they were made wards of the State, against her wishes. Prior to that time DOCS consulted her about whether, for example, the twins were to be inoculated. They were also circumcised at her request.
31. The twins were brought to her again in about November 2006, shortly before she was released from prison. Again she fed them a bottle, changed their nappies, cuddled and played with them.
32. She had planned to see DOCS about having the twins restored to her but she was again incarcerated after only a couple of weeks after being released. She is due to be released again shortly and plans again to seek restoration.
consideration of the evidence
33. It was not in dispute that:
(a)Ms Mitchell is the mother of the twins;
(b)the birth of the twins was registered in accordance with the law;
(c)Centrelink was notified of that fact within 26 weeks of the birth of the twins;
(d)Ms Mitchell is an Australian resident;
(e)the twins are aged under 18; and
(f)the twins were taken from their mother within 24 hours from their birth.
34. Ms Mitchell’s position was to the effect that she should be eligible for the baby bonus because she had the care of the twins, albeit for a short period, within 13 weeks from their birth. Ms Mitchell therefore claims to have been eligible to benefit FTB, because from 7 December 2005 to the time that they were taken away from her by DOCS, she was legally responsible for the provision of day-to-day care of the children and they were in her care.
35. Eligibility for the baby bonus is linked to entitlement to FTB: subsection 36(2)(b)(i) of the FA Act. Ms Mitchell thought that this in itself was unfair, but the Tribunal is bound by relevant legislation when making the correct and preferable decision.
36. I therefore turned, firstly, to consider if Ms Mitchell circumstances come within those identified in subsection 22(2) of the FA Act, which relates to FTB, namely that she was legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the twins, and that they were actually in her care: Subsection 22(2)(b) and (c) of the FA Act (emphasis added). Centrelink conceded that Ms Mitchell was legally responsible for the twins and that they were in her care on 7 December 2005. In that respect, the matter differs from Re Sorry and Secretary, Department of Families, Community Services and Indigenous Affairs [2008] AATA 217, to which I was referred, where the child was not found to be in the mother’s care at all but in the care of nursing staff. In this matter, a better view is that, during 7 December 2005 the twins were jointly in the care of Ms Mitchell and nursing staff.
37. There was a period of about seven months during which the twins were in foster care pending being made wards of the State. On her evidence at the hearing, Ms Mitchell was consulted about inoculation, and her request that the twins be circumcised was acceded to. In that time, however, she saw the twins only once for four hours, at Gosford hospital. This is more akin to the Re Sorry scenario. Ms Mitchell’s input into the twins’ care was marginal. I doubt that DOCS would have put Ms Mitchell’s views about the twins’ care ahead of its own assessment of their welfare. I find the twins, not to have been in their mother’s care during that time.
38. Therefore, the only period during which she had actual, albeit shared, care of the twins was the period of about nine hours at the hospital at the time of birth.
39. I, secondly, turned to consider if that period was sufficient to attract FTB.
40. Subsection 22(7) of the FA Act enables me to determine that a child is an FTB child if there is “a pattern of care” for the child over a period of time. “Period of time” is not defined in the FA Act. Read in the context of section 22 of the FA Act as a whole, I consider that the terms “pattern of care” and “day-to-day” envisage that the welfare and development of a child is to be provided for over a period of time that exceeds mere hours. In coming to that view, I note the “common sense appraisal of the pattern of care exhibited over a period of time” in Secretary, Department of Social Security v Lowe [1999] FCA 705, to which I was referred. Further, in Re Nowicz and Secretary FACS [2001] AATA 628 the Tribunal in considering section 22 of the FA Act found that “pattern of care” refers not to the actual daily care of the children, but to the care of the children as assessed over a period of time.
41. In addition, I note that section 25 of the FA Act provides a discretion to determine that a child is not to be an FTB child where the child will be in the care of a person for less than 10% of that period. Considering even the 13 week period referred to in section 36 of the FA Act, Ms Mitchell’s care of the twins was but a fraction of that time. I, therefore, find that Ms Mitchell was not eligible to receive FTB.
42. Ms Mitchell cannot be eligible to receive the baby bonus under subsection 36(2)(b)(i) of the FA Act because she was not eligible to receive FTB at any time within the period of 13 weeks starting on the day of the twins’ birth on 7 December 2005.
decision
43. The decision under review is affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ................[Sgd].........................
AssociateDate/s of Hearing: 18 July 2008
Date of Decision: 29 August 2008
Solicitor for the Applicant: Self -RepresentedSolicitor for the Respondent: Mr Mark Nicoletti, Legal and Procurement Branch, Sydney
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