PETER STOKES and and SUSAN LEANNE CARR
[2010] AATA 426
•9 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 426
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4127
GENERAL ADMINISTRATIVE DIVISION ) Re PETER STOKES Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
SUSAN LEANNE CARR
Party Joined
DECISION
Tribunal Mr John Handley, Senior Member Date9 June 2010
PlaceMelbourne
Decision The decision of the Social Security Appeals Tribunal made on 15 July 2009 is affirmed save that IT IS DECIDED the applicant's daughter S was not in his care for 35% for any period after 3 February 2009. (Sgd) John Handley
Senior Member
SOCIAL SECURITY – Applicant and party joined are parents of 6 children – Consent Orders made by Federal Magistrates' Court – Family Tax Benefit paid at 50% to each – applicant's daughter left his care in February 2009 and lived exclusively with her mother (the party joined) – whether there was an event in relation to the child without his consent which prevents the child being in his care – whether reasonable steps taken to have her return to his care – decision affirmed
Administrative Appeals Tribunal Act (Cth) s 27(1) and s 30(1A)
A New Tax System (Family Assistance) Act 1999 (Cth) s 3, s 21, s 22 and s 23
Waters and Ors v Public Transport Corporation (1991) 103 ALR 513
REASONS FOR DECISION
9 June 2010 Mr John Handley, Senior Member 1. The applicant and the party joined (the mother) were previously married. They are now divorced. They are the parents of six children born between 1994 and 2000.
2. Orders were made by the Federal Magistrates' Court (FMC) on 16 November 2006 giving effect to Minutes of Consent Orders achieved between the parties where it was agreed that the applicant and the mother would have shared and equal parental responsibility for all of the children during alternate weeks.
3. Immediately prior to 8 February 2009, the applicant and the mother each received 50% of family tax benefit (FTB) in respect of the children and in reflection of the Orders made by the FMC.
4. Subsequent to that date, the FTB has not been paid to the applicant with respect to their daughter S who was 12 years of age in February 2009. This application is concerned only with the pattern of care of S.
5. This application was lodged by the applicant following a decision made by the Social Security Appeals Tribunal (SSAT) on 15 July 2009. It affirmed a decision previously made by an Authorised Review Officer (ARO) of Centrelink save that the effective date of cessation of entitlement to FTB for S was varied from 8 February until 13 February 2009. The mother has been joined as a party because her interests may be affected by this review (refer s 27(1) and s 30(1A) of the Administrative Appeals Tribunal Act 1975).
6. Qualification and entitlement to FTB is found in A New Tax System (Family Assistance) 1999 (the Act).
7. The applicant satisfies s 21 of the Act to the extent that he is eligible for FTB because he has at least one FTB child (being a child in respect of which FTB is payable – refer s 3) and he is an Australian resident.
8. For the purposes s 22 of the Act in circumstances where a child resides with each parent in different locations because they are separated, FTB is payable in respect of an FTB child who, for the purposes of this application, is under the age of 16 years. Qualification also exists if the parent with whom the child resides has legal responsibility for the care of the child. If there has been a pattern of care of the FTB child, an apportionment of the shared care percentage pursuant to s 59 of the Act is to be determined. If an FTB child is in the care of an individual for less than 35% of a period, the child is not an FTB child for the purposes of that period and FTB is not payable to the parent with respect to that child.
9. Section 23 commands particular focus in this review and rather than providing a summary it is reproduced as follows:
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.
When the child remains an FTB child of the adult
(2)The child is an FTB child of the adult for that part of the qualifying period (see subsection (5)) for which:
(a)the child would have been an FTB child of the adult under subsection 22(2) or (3) if the child had not ceased to be in the adult’s care; and
(b)the circumstances surrounding legal responsibility for the care of the child are those mentioned in paragraph 22(5)(a) or (b).
. . .
(5) In this section:
. . .
qualifying period means the period beginning when the child ceases to be in the adult’s care and ending at the earliest of the following times:
(a)if the child again comes into the adult’s care at a later time—that later time;
(b)after 14 weeks pass since the child ceased to be in the adult’s care;
(c)if:
(i)the adult is a parent of the child; and
(ii)no family law order, registered parenting plan or parenting plan is in force in relation to the child; and
(iii)the child comes into the care of the other parent at a later time;
that later time.
the hearing
10. The hearing of this application was convened on 17 March 2010. The mother was previously notified of the hearing and of arrangements to have her evidence taken by telephone. On the morning of the hearing, the mother was notified that she would be contacted by telephone at 10.00am, when it was proposed to commence the hearing. She then decided that she would not participate in the hearing despite being encouraged to do so. She remained adamant that she would not participate. Accordingly the hearing proceeded without her. The applicant was unrepresented. The respondent was represented by Mr Wee.
peter stokes
11. At the beginning of February 2009, the applicant said he and the mother shared the care of all of the children during alternate weeks pursuant to the Orders made by the FMC.
12. On a day in February (refer later) S walked home from school to his house and was irritated because she saw her mother deliver the other children from their respective schools, in her car. The applicant said S was angry and abusive and he sent her to her room. A short time later the applicant said to her words to the effect if you are not happy ring up your mother. S did ring her mother who returned to the applicant's house and took her away. She has not resided with the applicant since that date. She has at all times subsequently resided with her mother.
13. The applicant said all of his children were aware that he would refuse to be emotionally blackmailed. However, he acknowledge that on this occasion he over extended my puff, which played into the hands of the other parent. He said the mother was very maternal but he preferred the idea of boundaries, consequences, and he did not believe in rewarding bad behaviour. He said the reason why he preferred alternate weeks of care of the children was to have the children exposed to the differences in the care exercised by the mother, which he described as laissez faire and the type of care that he would exercise, which he described as structured and an emotional, stable background (Trans p7).
14. Subsequent to that day in February the applicant said he has undertaken a number of reasonable steps to have S returned to his care.
15. He said he contacted the police and notified them of S residing with the mother in breach of the FMC Order. However, he was advised that in the absence of any apparent criminal misdemeanour the issue should be determined through civil proceedings.
16. The applicant said he notified Centrelink shortly after the day that S left and advised that she was living with her mother and without his consent.
17. The applicant said he also sought legal advice but he was unable to consult a solicitor until about May of 2009. In the interim the applicant had made enquiries through the Legal Aid Commission (LAC) and through the Public Interest Legal Clearing House (PILCH). He ultimately contacted a solicitor – Ms Thomas – who advised him that it was unlikely that the LAC would fund proceedings to have S returned to him and it was also her opinion that by reason of S's age it was more than likely that the Court would say that the child can vote with her feet. The applicant accepted that advice and did not institute legal proceedings.
18. He did contact the Family Relationships Centre in Geelong and requested that a mediation conference be convened between him, the mother and S. The mother was notified that a mediation conference had been convened but it was abandoned because she refused to participate.
19. The applicant has had contact with S from time to time by an exchange of emails and discussions with her on the occasions when she would travel to his house in the car of the mother when she was delivering or collecting children during a changeover at the end or beginning of alternate weeks. There have also been occasions when he and S have spoken on the telephone and where each of them have initiated the telephone calls.
conclusions and reasons for decision
20. The ARO decided there was an alteration of the percentage of care in February 2009 and from 8 February 2009 the applicant was not entitled to FTB.
21. On 19 March 2009, a Centrelink officer recorded the applicant had advised that S had left his care on 8 February 2009 (p23). The date of notification is not recorded.
22. On 2 April 2009 another officer recorded the percentage of care changed in favour of the mother, on 3 February 2009 (T10, p25).
23. In an extract from a shared care module found at page 13 of the T‑documents, and apparently completed by the mother, it is recorded that the current care arrangements for S started on 3 February 2009.
24. For the purposes of these proceedings I am satisfied that S left the applicant's home on 3 February 2009. That was a Tuesday and therefore a day where S would have been at school. (The 8th of February in 2009 was a Saturday). It is the same date recorded by the mother in the shared care module. It is the date also found by the SSAT (refer Reasons at paragraph 20).
25. It is not in dispute that S left the applicant's home and thereafter was not in his care. The issue is whether he has any entitlement during the 14 week qualifying period (refer s 23(2) and (5)). That will depend on whether he can satisfy s 23(1)(a)‑(d) inclusive.
26. Section 23(1)(a) and (aa) are not in dispute. Section 23(1)(b) requires identification of the event or a finding of whether there was an event that prevents S being in the applicant's care.
27. S left the applicant's care when she was collected by her mother on 3 February 2009. From that date she has resided exclusively in her mother's home. Her mother collected her because the applicant said to her a short time earlier if you are not happy, ring up your mother. He acknowledged that he over extended (his) puff (Trans p7) which I understand him to mean that he was calling her bluff.
28. There is no evidence, nor was it suggested by the applicant, that he took any steps to restrain or prohibit S leaving or the mother taking her. Equally, there is nothing which points to S leaving without his consent.
29. On a number of occasions the applicant said that he did not want S to be caught up in emotional conflict of having to choose between one parent and the other (Trans p8). He agreed that it was S's decision to commence to reside permanently with the mother (Trans p19) and he would not force S to stay with him (Trans p23). He did not want her to be distressed or torn between he and the mother (Trans p28). He also agreed that S had been allowed to make a choice (Trans p43) and he had decided not to enforce the Order made by the FMC (Trans p46).
30. I cannot in the circumstances find that S left without the applicant's consent. I acknowledge that he was disappointed that she did leave and I also acknowledge that he would have preferred to have her continue to reside with him, but on his terms. Indeed it would appear that there was an occasion shortly after S left that he did have a conversation with her and indicated that should she decide to return to live with him, it would be under the same rules and same conditions that it always was. He also said that he was not going to all of a sudden change just to get you back (Trans p48).
31. The remaining issue for determination under s 23(1)(b) was whether the event of S being taken away by the mother prevents her being in the applicant's care.
32. As a fact I am satisfied that S is not prevented from being in his care. Having regard to the passages from the evidence recorded above, S has been allowed by him to continue to reside with the mother. There is no evidence of the mother or any other person preventing S being in his care. The applicant acknowledged that S resides with her mother and it is her choice to do so.
33. It would appear s 23(1)(b) contemplates a situation where a child is taken from or leaves the care of a legally responsible adult without the consent of that adult and is prevented from returning. That circumstance did not occur in the present case. The applicant cannot satisfy subsection (1)(b) of the Act. By reason of the conjunctive construction of s 23(1) it is probably unnecessary therefore to consider sub-section (1)(c) namely, whether the applicant took reasonable steps to have the child again in his care.
34. This was a major issue for the applicant during the proceedings. He frequently expressed his frustration in not having the word reasonable defined by the legislation or assistance given to him by Centrelink in comprehending the meaning of that word. Consideration of this issue is not now necessary but the applicant is entitled to an explanation of the meaning to be given to the word in the context of this review.
35. He submitted that he contacted Centrelink shortly after S left and this may be verified by Memorandum found at T5 where on 3 March 2009 the applicant had a conversation with a Centrelink officer. It is recorded that the applicant then said that S did not have his formal permission to move in with her mother permanently. It is also recorded that the change in the care arrangements was an act of defiance on the child's part. I cannot find that that communication constitutes a reasonable step to have S return to him. It amounts to no more than a communication by him to Centrelink of the alteration in care arrangements.
36. The applicant said he notified the police that S was living with her mother. It is not surprising that the police declined to act. Whilst there was then a contravention of the Orders made by the FMC, the police in Victoria would have no powers to act with respect to a civil order made in a Commonwealth Court.
37. The applicant did seek legal advice having made a number of enquiries through the LAC and PILCH. Eventually he contacted Ms Thomas who advised him that LAC would not fund her acting for him. It appears also that she gave him advice that attempting to either enforce the Order previously made or vary it to cause S to live with him would be unlikely to succeed. It would appear that the applicant accepted that advice and did not thereafter pursue any legal remedies or institute legal proceedings.
38. The applicant has communicated with S from time to time by telephone, email and personally when he has seen her during changeovers.
39. Those types of communication are to his credit and it would appear have permitted him to continue to have a relationship with her. But it would not appear that the communications as described by him were of a type to permit me to find that they constitute reasonable steps to have S again in his care.
40. The applicant has not ever spoken or communicated with the mother to request that she encourage S to return to his care. That would have been a reasonable step.
41. The issue I think of significance and which would point to the applicant having taken reasonable steps was his approach to the Family Relationship Centre requesting a mediation conference. Centrelink has a copy of a letter addressed to the applicant from the Family Relationship Centre, dated 12 March 2009 (T7, p22) confirming a conference was convened but was abandoned because the mother refused to participate in it.
42. If it can be found that the applicant did take reasonable steps to have S return to his care, he may have an entitlement to FTB during the qualifying period of 14 weeks subsequent to S ceasing to be in his care (refer s 23(2) and (5)).
43. In those circumstances, and because I would be satisfied that the approaches made to the Family Relationship Centre were a reasonable step in the circumstance, I would otherwise have found that the applicant would have an entitlement to FTB during the qualifying period from the date S ceased to be in his care until 12 March 2009 when the Family Relationship Centre notified him that the mediation conference had been abandoned.
44. The word reasonable is not defined but words are rarely defined which invite or compel the exercise of a discretion. The Macquarie Dictionary defines reasonable as agreeable to reason or sound judgment.
45. In Waters and Ors v Public Transport Corporation (1991) 103 ALR 513 at 539 the majority of the High Court decided that reasonable meant reasonably in all the circumstances of the case. Brennan J at p534 decided reasonableness cannot be determined in abstract.
46. The word reasonable in the present case must be interpreted in the context of the legislation which is welfare and beneficial in nature. It is an Act regulating the entitlement to parents of a monetary benefit when they have children in their care.
47. But more precisely, having regard to its location within s 23(1)(c) of the Act, it requires an examination of the steps taken by a parent (an adult) to have a child return to that person's care.
48. In the present case, any step taken by the applicant, in order to determine reasonableness does require examination. It cannot be decided in abstract and must be reasonable in the circumstances the applicant – and S (and the mother) – were placed after 3 February 2009.
49. For reasons given above, the only step I would find was reasonable to have S return was the approach to the Family Relationship Centre and the mediation conference convened for 12 March 2009.
50. However, for reasons given above (refer especially at paragraphs 32 and 33) I am not satisfied that he can satisfy s 23(1)(b).
51. The examination of the applicant's reasonable steps is by way of acknowledging the concern he expressed during the hearing. For reasons given above, consideration of that issue is dependent on satisfying sub-section (1)(b). I am not satisfied that was achieved.
52. From 3 February 2009 the applicant has not had the care of S for at least 35% of a period (s 22(7)) and accordingly, from that date he has not had an entitlement to FTB for S.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Signed: Grace Carney, Member Support Team
Date of Hearing 17 March 2010
Date of Decision 9 June 2010
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Brian Wee, DLA Phillips Fox
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