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

[2011] AATA 476

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 476

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0884

GENERAL ADMINISTRATIVE DIVISION		)
Re		PNZY

Applicant

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

Respondent

And VRSN

Other Party

DECISION

Tribunal Senior Member A K Britton

Date7 July 2011

PlaceSydney

Decision1. The application made by PNZY to call the child to give evidence in these proceedings is refused.

2. Leave is granted to all parties to participate in the hearing listed for 14 July 2011 at 10:00am by telephone providing that they provide the Registrar with a land line number that they will use to participate in the hearing on or before noon 12 June 2011.

3. Any party who seeks to rely in the hearing on any document not previously provided, must provide a copy to the Tribunal and all parties, on or before noon 12 June 2011.

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

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE – admissibility of evidence – relevance – child witness

A New Tax System (Family Assistance) Act 1999 (Cth) – ss 21(1), 22(7), 23

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Administrative Appeals Tribunal Act 1975 (Cth) – ss 33(1)(c), 35A, 39

Evidence Act 1995 (Cth) - ss 55, 56(2)

REASONS FOR DECISION

7 July 2011  Senior Member A K Britton          

1.      These reasons concern an application made by PNZY for leave to call his 11 year old son to give evidence in these proceedings.  That application is opposed by his former wife, VRSN, who is a party to these proceedings.

2.      The substantive proceedings concern an application made by PNZY seeking review of a decision made by the respondent Secretary and affirmed by the Social Security Appeals Tribunal, about his entitlement to family tax benefits (FTB). In short, it was decided that despite the fact that the child resided with PNZY from 25 September 2010 to 23 December 2010 (the subject period), the child was not taken to be a “FTB child” of PNZY for the purposes of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act). As a consequence of that decision, PNZY was ineligible for FTB throughout the subject period in respect of his son.

Background

3.      To decide the issue of whether leave should be granted to PNZY to call the child to give evidence in these proceedings, it is necessary to sketch in the background to this matter.

4.      PNZY and VRSN separated in July 2009.

5.      In June 2010, by consent, the Federal Magistrates Court ordered that from 18 June 2010, the child would live with PNZY on the weekends and for part of the July 2010 school holidays and with VRSN at all other times.

6.      On 25 September 2010 the child left the care of VRSN. She claims the child was taken from her care by PNZY. PNZY claims that the child was mistreated and ran away from VRSN to be with him.

7.      On 23 December 2010, the Federal Magistrates Court entered consent orders which provided that PNZY was to have total care of the child.

8.      An application made by VRSN for an apprehended domestic violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) against PNZY is currently before the NSW Local Court. PNZY advised the Tribunal that the child will be giving evidence in those proceedings about the circumstances of leaving his mother’s care in September 2010.

Relevant legislation  

9. The Family Assistance Act provides that a person will be eligible for FTB if, among other things, they have an “FTB child”: s 21(1). A child is an “FTB child” of “an adult” if, among other things, they are in the care of the adult. A child is taken to be an FTB child only if the relevant adult’s percentage of care in respect of them is at least 35 per cent: s 22(7) of the Family Assistance Act.

10. As a consequence of the June 2010 orders made by the Federal Magistrates Court, for FTB purposes, PNZY and VRSN’s “percentage of care” in respect of the child was assessed as being 22 per cent and 78 per cent, respectively. As PNZY’s percentage of care fell below the 35 per cent threshold prescribed by s 22(7) he was not entitled to FTB.

11. The issue to be determined in the substantive proceedings is whether PNZY remained ineligible for FTB after the child came to live with him on 25 September 2010. This turns on whether the child continued to be an FTB child of VRSN despite the fact that he lived with PNZY throughout the subject period. Relevant to his issue is whether s 23 of the Family Assistance Act applies. In summary, s 23 extends the period a child is deemed to be an FTB child of an adult, notwithstanding that they cease to be in that adult’s care. Section 23 provides in part:

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 [Emphasis added]

(c)  the adult takes reasonable steps to have the child again in the adult's care.

Relevance of evidence to be given by the child

12.     At a directions hearing held on 17 June 2011, the parties were invited to comment on whether leave should be granted to PNZY to call the child to give evidence.  VRSN contended that it would potentially be damaging to the child to give evidence in proceedings where his parents were in dispute. PNZY pointed out that the child would be giving evidence about the same matter before the Local Court. In addition, he argued that it was critical to his case that the Tribunal learn the truth of the circumstances about how the child came to leave the care of VRSN.

13.     Under the Evidence Act 1995 (Cth) (the Evidence Act), evidence that is not relevant in proceedings is inadmissible: s 56(2). Relevant evidence is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceedings: s 55 of the Evidence Act. While the Tribunal is not bound by the rules of evidence (s 33(1)(c) of the Tribunal Act) in my opinion, the rule that only relevant evidence be admitted should only be departed from where there is a good reason to do so.

14. I am not persuaded that the evidence proposed to be given by the child has any bearing on the issues that fall to be determined in this matter. Whether the decision under review is correct turns on, among other things, whether s 23 of the Family Assistance Act applies. It will only apply if, among other things:

(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

…

15. It seems to me that, if the child were to give evidence corroborative of PNZY’s claim, that is, that he voluntarily ran away from the care of his mother, it would be irrelevant to the determination of whether s 23 of the Family Assistance Act applies. Equally, if the child were to give evidence corroborative of VRSN’s claims, it would be irrelevant to that question. This is because under either scenario, the first element of s 23 is established, that is, an event has occurred in relation to the child that prevents the child being in VRSN's care. The child is not in a position to give relevant evidence about the second element of s 23, namely whether VRSN consented to “the event”, and nor has this been suggested.

16. I have been unable to identify any other part of s 23 or any other provision of the Family Assistance Act relevant to these proceedings that the child could give relevant evidence about.

17. I appreciate that PNZY believes that whether the child voluntarily left the care of VRSN is a matter of great significance. However I am not persuaded that it has any bearing on any fact in issue in these proceedings. Accordingly, any evidence the child might give would be irrelevant. For that reason I have decided to refuse to admit the evidence of the child. In reaching that decision I am mindful that s 39 of the Tribunal Act instructs the Tribunal to ensure that every party to a proceedings is given a reasonable opportunity to present his or her case. Self-evidently this does not mean that the Tribunal must permit a party to call any evidence irrespective of its relevance.

18.     Given this decision, it is not necessary to consider the issue of the capacity of the child to give evidence or the submission that it would not be in his interests to give evidence in these proceedings.

Participation in the hearing 

19. PNZY and VRSN live some distance from the Tribunal and each have sought leave to participate in these proceedings by telephone. My preliminary view was that if the child was to give evidence it was necessary that he do so in person. Given my decision not to allow PNZY to call the child as a witness, I have decided to make orders under s 35A of the Tribunal Act to allow all parties to participate in these proceedings by telephone, subject to the condition that they provide the Registrar with a land line number that they will use to participate in the hearing on or before noon 12 June 2011. In addition, any party seeking to rely in the hearing on any document not previously provided, must provide a copy to the Tribunal and all parties, on or before noon 12 June 2011.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ........................................[sgd]..................................
  Associate to Senior Member A K Britton

Date of Decision:  7 July 2011
Date of Telephone Directions Hearing:     17 June 2011
Applicant self-represented

Solicitor for the Respondent:  Biljana Salaji, Centrelink Program Litigation and Review Branch

Other Party self-represented