O'Regan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 465

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 465

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4298

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Denis O'Regan

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date31 May 2010

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing of this matter, the decision under review is AFFIRMED.

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

M D Allen, Senior Member  

CATCHWORDS

SOCIAL SECURITY – Claim for family tax benefits and baby bonus refused. Children at all times resided in the Philippines and are not residents of Australia.  Applicant does not provide day-to-day care, welfare and development of children.  Not entitled to baby bonus as child is not an FBT child. 

LEGISLATION

A New Tax System (Family Assistance) Act 1999

Family Assistance Act 1999

REASONS FOR DECISION

23 June 2010 M D Allen, Senior Member            

1. At the conclusion of the hearing of this matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         ................[sgd]..............................................
  K. Lynch, Associate

Date of Hearing  31 May 2010
Date of Decision  31 May 2010
Date of Written Reasons  23 June 2010
Representative for the Applicant               Mr D O’Regan (self) 
Representative for the Respondent          Centrelink Advocacy Service          

EXTRACT OF TRANSCRIPT OF PROCEEDINGS:

MR ALLEN:  By application made the 10^th day of September 2009, the Applicant sought review of a decision of a Social Security Appeals Tribunal, made on the 11^th day of August 2009, rejecting his claim for family tax benefit (“FTB”) and a claim for a baby bonus.  The claims for FTB relate to his two children, born in October 2003 and February 2009, whereas the claim for baby bonus is in respect of the latter born child.  It is not disputed by the Applicant that the two children have, at all times, lived in the Philippines with their birth mother, who is the Applicant’s wife.

Apparently, the Applicant visits the Philippines from time to time, when he is able, but conceded to the Social Security Appeals Tribunal in a passage which today he said was correct, that he is not responsible for their day-to-day care, welfare and development because, as stated, they are living with their birth mother in the Philippines. The qualifications for family tax benefit are set out in part 3 of A New Tax System (Family Assistance) Act 1999, (“the Act), whereas section 22 of the Act says, inter alia:

(1)An individual is a FTB child of another individual (the adult) in any of the cases set out in this section.

Individual aged under 18

(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. 

It is abundantly clear from the admitted facts in this matter that the two children are not Australian residents. They have, at all times, resided with their mother in the Philippines. Therefore, they cannot be an FTB child of the Applicant. The Applicant referred me to section 24 of the Act which refers to absences of a family tax benefit child from Australia. Subsection (1) of section 24 reads, inter alia:

If:

(a) any of the following applies:

(i) an FTB child leaves Australia, or

(ii) a child born outside Australia is an FTB child at birth;… and

(b) the child continues to be absent from Australia for more than three years:

during that absence from Australia, the child is not an FTB child… at any time after the period of 3 years beginning on the first day of the child’s absence from Australia.

I regard the section as peculiarly ill-drafted. However, as I interpret it, it means that a claim to have the child recognised as a FTB child of an individual, the claim must be made when that child enters Australia, and then section 22 applies. If the child has never entered Australia, then the claim is not effective. As a matter of record, I would suggest that the Respondent reconsider the examples which are set out in its guidelines, because to me the examples relating to section 24, in particular example 2, are positively misleading and do not follow the Act.

As I see it, the Act is, in section 22, relatively straightforward. Unless the child is in Australia and a resident of Australia, then any claim for FTB must be refused. That being so, section 36 of the Family Assistance Act 1999 refers to a claim for a baby bonus and a baby bonus can only be paid if the child is an FBT child of the individual and I have already ruled that, in this case, the youngest child is not.  So the decision under review is AFFIRMED.

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