Pires and Secretary, Department of Family, Community Services and Indigenous Affairs

[2006] AATA 812

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 812

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/311     

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAULO PIRES

Applicant

And SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal  Ms N Isenberg, Member

Date 22 September 2006

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg,
  Member

CATCHWORDS

SOCIAL SECURITY – Applicant seeks maternity payment in respect of son – lodgement of claim for family tax benefit (which includes claim for maternity payment) – application refused – consideration of evidence and legislation – decision under review affirmed.

LEGISLATION

A New Tax System (Family Assistance) Act 1999 – sections 21(2), 22(2), 36(1) and 36(2).

REASONS FOR DECISION

22 September 2006     Ms N Isenberg, Member

ISSUE BEFORE THIS TRIBUNAL

1.      Mr Pires seeks Maternity payment in respect of his son Anthony. 

BACKGROUND

2.      Anthony was born on 2 November 2004 and was immediately placed in foster care by the NSW Department of Community Services (“DOCS”) Anthony was not restored to Mr Pires’ care on an indefinite basis until 16 September 2005.

3.      Mr Pires lodged a claim for family tax benefit (which includes the claim for maternity payment) in respect of Anthony on 21 September 2005, but was refused, because Mr Pires did not claim within 26 weeks of Anthony’s birth (T4, pgs 11-19).

4.      This decision was affirmed on review and by the Social Security Appeals Tribunal (“the SSAT”).

LEGISLATION

5.      The relevant legislation that applies in the case of Mr Pires are subsections 21(1), 22(2), 36(1) and 36(2) of the A New Tax System (Family Assistance) Act 1999 (“the Act”) and they provide as follows:

“21. (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.

22. (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.

…

36. (1) An individual is eligible for maternity payment in respect of a child in any of          the 4 cases set out in this section.

Parent of child

36. (2) First, an individual is eligible for maternity payment in respect of a child if:

(a)       the individual is parent of the child; and

(b)       the individual 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 and the individual’s Part A rate at that time is greater than              nil.”

CONSIDERATION OF THE EVIDENCE

6.      In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.

7.      Mr Pires told me that as soon as Anthony was born he was taken into foster care by DOCS.  His mother’s family wanted nothing to do with Mr Pires and would not let him see the child.  On 25 January 2005 the results of a paternity test established Mr Pires as Anthony’s father.  From February he saw Anthony at the foster carer’s.

8.      He was told by DOCS that Anthony would be coming into his care from 14 April 2005.  In anticipation he applied to Centrelink for Family Tax Benefit, but his application was refused because Anthony was not in his care at that time.

9.      Later DOCS told him he had to do several courses before Anthony would be restored to him and “full custody” did not occur until September 2005.  At that stage he again approached Centrelink.

10.     Mr Pires said he had received no support whatsoever from DOCS, notwithstanding that the expense of meeting that Department’s requirements before restoring Anthony to him was nearly $3,500.

11. Entitlement to maternity payment is set out in section 36(2) of the Act, insofar as is relevant: an Applicant must be the parent of the child; and also be 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. In turn, entitlement to Family Tax Benefit is set out in 22(2) of the Act: the child must be under 18; and the Applicant is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the child; and the child is in the Applicant’s care.

12.     Mr Pires unfortunately cannot be eligible to receive maternity payment under subsection 36(2)(b)  because he was not eligible to receive family tax benefit at any time within the period of 13 weeks starting on the day of Anthony birth on 2 November 2004.  This is because Mr Pires was not legally responsible for Anthony and Anthony was not in Mr Pires’s care during the relevant period.

13.     In the alternative, Mr Pires contended that his situation was more like an adoption.  Centrelink’s position in relation to this contention was that adoption is not relevant where an applicant is a natural parent. 

14.     Section 36(5) sets out the eligibility criteria for maternity payment where the child is adopted.  It envisages a formal adoption process.  The term “adopted child” in the Family Assistance Guide means a child adopted under the law of any place.  In this case however, once paternity was established, there was no issue that Mr Pires was not the natural father, in which case, no formal adoption process was required.  Mr Pires’s care of Anthony had only been delayed: firstly to establish paternity, and then by the need to meet DOCS requirements. 

15.     I am sympathetic to Mr Pires’s position that he has had to overcome a number of obstacles in order to obtain the custody of his son.  He has been subject to the scrutiny of DOCS and has met all its demands.  He has received no financial support from DOCS, and, regrettably, for the reasons given above, is ineligible for the maternity payment too.

DECISION

16.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:  Associate

Date of Hearing  21 August 2006
Date of Decision  22 September 2006
Representative for the Applicant               Mr P Pires, Self-Represented and
  accompanied by Anthony
Advocate for Respondent  Mr A Zhang, Centrelink