PNZY and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Anor
[2011] AATA 525
•18 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 525
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 Date28 July 2011
PlaceSydney
Decision The decision under review is affirmed.
......................[sgd]..........................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – eligibility – qualifying period – whether reasonable steps taken to have child returned to care of adult legal responsible – decision under review affirmed
PRACTICE AND PROCEDURE – confidentiality – allocation of pseudonym – open and public administration of justice – best interests of subject child
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35, 35(1), 35(2)(b), 35(3)
A New Tax System (Family Assistance) Act 1999 (Cth) – ss 21(1), 22(2)(b), 22(5)(a), 22(5)(b), 22(5)(c), 22(7), 23, 58, 59, Sch 1
Family Law Act 1975 (Cth) – s 67Q
Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130; [2009] FCAFC 185
REASONS FOR DECISION
Senior Member A K Britton 1. The applicant challenges a decision made by the respondent Secretary and affirmed by the Social Security Appeals Tribunal, that he not receive Family Tax Benefit (FTB) throughout the period 25 September 2010 to 23 December 2010 (the subject period), in respect of his 11 year old son. The issue to be determined in this review is whether the applicant was eligible for FTB throughout the subject period.
Should a confidentiality order be made?
2. At the commencement of this hearing, I raised with the parties my preliminary view that it may be appropriate to make orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) so as not to disclose in the published reasons for this decision the identity of the subject child. The Secretary and the other party — the applicant’s former wife — argued that such orders should be made to protect the identity of the child. The applicant disagreed.
3. The Administrative Appeals Tribunal’s practice is to publish all decisions in electronic form, other than those relating to proceedings before the Security Appeals Division or unless directed by the Tribunal. Section 35(2)(b) of the AAT Act confers upon the Tribunal the power to make directions to restrict the publication of the names of the parties to the proceedings and to allocate a pseudonym to one or more parties to the proceeding: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 149.
4. As the Full Court emphasised, the norm established by s 35(1) and reinforced by s 35(3) that proceedings be conducted in public requires that the power to restrict the disclosure of evidence is exercised sparingly. As a consequence, the Tribunal commonly publishes decisions that contain facts the parties may not wish to be published and which may disadvantage them because of “the overriding importance of justice being administered openly and in public”: Australian Securities and Investments Commission v Administrative Appeals Tribunal and Another (2009) 181 FCR 130 at 148.
5. I have decided that despite the presumption in favour of openness enshrined in s 35, the power to restrict the publication of the names of the parties should be exercised in the circumstances of this case. This is because, in my opinion, it is probable that publication of the names of the parties would disclose the identity of the child and it would not be in his interests to have the details of the long running acrimonious dispute between his parents about his custody, published. I have also decided to order that the names of the parties be suppressed in an earlier decision made relating to an interlocutory matter in these proceedings: Re PNZY and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and VRSN, Other Party [2011] AATA 476.
6. Accordingly, in all reasons published in relation to these proceedings application, the applicant will be referred to be the pseudonym “PNZY”, and his former wife, the other party as “VRSN”.
Background
7. The facts in this matter are largely not in dispute.
8. The applicant and his former wife separated in July 2009.
9. In June 2010, by consent, the Federal Magistrates Court ordered that from 18 June 2010 the 11-year-old son of the marriage would live with the applicant on weekends and part of the school holidays and with the other party at all other times.
10. On 25 September 2010, the child left the care of the other party. She claims the child was taken from her care by the applicant. The applicant on the other hand claims that the child ran away from his mother to be with him.
11. On 23 December 2010, the Federal Magistrates Court entered consent orders, which provided that the applicant was to have total care of the child.
Relevant legislation
12. Under A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act) a person is eligible for FTB if, among other things, they have an “FTB child”: s 21(1). A child who is under 16 years of age will be an “FTB child” of an “adult” if the following criteria, among others, are met:
·The child is in the adult's care (s 22(2)(b)); and
·The adult’s “percentage of care” for the child during a care period is taken to be at least 35% (s 22(7)); and
·The adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the child (s 22(5)(a)); or
·Under a family law order, registered parenting plan or parenting plan in force in relation to the child, the adult is someone with whom the child is supposed to live or spend time (s 22(5)(b)); or
·The child is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the child (s 22(5)(c)).
13. Where a person is eligible to receive FTB, their annual rate is calculated in accordance with the Rate Calculator in Schedule 1 of the Family Assistance Act: s 58. Where an FTB child is in the care of more than one person and these are not members of the same couple, the rate of FTB payable to each adult is calculated according to their respective “shared care percentage”: s 59 of the Family Assistance Act.
Was the son an “ftb child” of the applicant?
14. As a consequence of the orders made by the Federal Magistrates Court in June 2010, for FTB purposes the applicant’s “percentage of care” was assessed as being 22 per cent, falling below the 35 per cent eligibility threshold for FTB. There is no argument that as a result, from 10 June 2010 to 24 September 2010, the child was not an FTB child of the applicant and as a consequence the applicant was not entitled to receive FTB for that period.
15. The issue in dispute is whether the child continued to be a FTB child of the other party throughout the subject period, that is the period commencing on the day the child came into the care of the applicant (25 September 2010) and concluding on the day the Federal Magistrates Court gave effect to the agreement reached by the parties that the applicant would have 100 per cent of the child (23 December 2010).
16. Section 23 of the Family Assistance Act is relevant to the determination of that question. Under that provision if the following requirements are met, the child is treated as an FTB child of the relevant adult for the “qualifying period”, notwithstanding that the child ceases to be in the adult’s care:
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.
17. It is agreed that three of the four requirements listed in s 23(1) are met, namely:
·The child was an FTB child of the other party by the operation of s 22(2): s 23(1)(a)
·The circumstances surrounding legal responsibility for the care of the child were those mentioned in s 22(5)(b) — under the orders made by the Federal Magistrates Court, the child was required to live with the other party: s 23(1)(aa)
·An event occurred in relation to the child without the other party’s consent that prevented the child being in the party’s care: s 23(1)(b).
18. The parties dispute whether paragraph (c) of s 23(1) is satisfied — that is, whether the other party took reasonable steps to have the child again in her care.
Did the other party take reasonable steps to have the child again in her care?
19. As noted, the child had been living with the other party prior to 25 September 2010. The other party claims that she awoke on the morning of 25 September 2010 to find the child was not in his bed and, being unable to contact the applicant, rang the police. She claims that about half an hour later, the police advised that they had contacted the applicant who advised that the child was with him. The applicant claims that when interviewed by police later that day, the child stated that he did not wish to return to live with his mother. The other party claims that the police informed her that they were without power to return the child to her care.
20. Four days later, the other party’s solicitor wrote to the applicant alleging that the applicant had entered the other party’s house in the early hours of 25 September 2010 and taken the child. The solicitor demanded that the child be returned to the other party “forthwith” and foreshadowed that if this did not occur by 30 September 2010, an action for recovery orders would be commenced (see s 67Q of the Family Law Act 1975 (Cth)).
21. The application for recovery orders was not made until early December 2010 — the other party claims it was lodged on 3 December 2010; the applicant claims it was lodged on the morning of 6 December 2010. Sometime before that application was lodged a hearing had been listed before the Federal Magistrates Court for 6 December 2010 to determine various issues concerning the custody of the child and his sister. That hearing was adjourned until 23 December 2010 when the Court entered consent orders which provided, among other things, that from that date the child would live with the applicant.
22. The applicant contends that the other party did not take all reasonable steps to have the child returned to her care. He points out that not only was the threat to apply for a recovery order if the child was not returned by 30 September 2010 not acted upon, the application itself was not made until the eve of the hearing listed for 6 December 2010. He claims that in adjourning that hearing, the magistrate commented that even if the hearing had proceeded, the application for the recovery order would not have been determined on that day, given the late application. The applicant contends that the steps taken by the other party to have the child returned were motivated by her interest in retaining FTB rather than any genuine interest in having the child returned to her care. He contends that she failed to avail herself of the many avenues available to have the child returned to her care. For example, he contends that it was open to her to demand that the school not release the child into his care by producing the June 2010 orders.
23. The other party asserts that she took reasonable steps to have the child returned to her care. She points to her actions in notifying the police of the child’s disappearance and instructing solicitors when it became apparent that they would not act to return the child to her care. She contends that her solicitors advised that an application for a recovery order was unlikely to be listed before the hearing listed for 6 December 2010. She claims that this advice was consistent with her previous experience, when it took two months to have an application for recovery listed before the Federal Magistrates Court. She said her decision to ultimately agree that the child could live with the applicant was made because she had formed the view that it was in the child’s best interests that the protracted dispute over his custody not continue.
24. She contends that the delay in the filing of the application for a recovery order was the result of the time taken to prepare a detailed and lengthy affidavit, which was made especially difficult as her solicitor’s offices are some considerable distance from where she lives.
25. I agree with the argument put by the applicant that the other party did not take all reasonable steps to have the child returned to her care. While I accept that she was advised that it was unlikely that the Federal Magistrates Court would list any application for a recovery order earlier than 6 December 2010, nonetheless the delay in making that application excluded any possibility of it being determined at an earlier date.
26. While I agree that it could not be said that the other party “left no stone unturned” in her efforts to have the child returned that is not the test imposed by s 23(1)(c) of the Family Assistance Act. The test is not whether all reasonable steps were taken to have the child returned, but whether reasonable steps were taken. In deciding that question, all relevant circumstances must be taken into account. These include the background to the child leaving the care of the other party; the options available to the other party to have the child returned to her care and the reasons for the delay in lodging the application for recovery orders.
27. When the child left the home of his mother in September 2010, the parties had been in dispute for some time over custody arrangements. After interim orders were made in June 2010, they continued to make allegations and counter allegations about each other’s conduct towards the children. It is uncontroversial that the other party acted promptly by reporting the child’s disappearance to police and requesting that they act to return the child to her care. When advised that the police would not intervene, she instructed solicitors. The lawful options available to the other party, when it became apparent that the applicant was unwilling (or unable) to comply with her solicitor’s demand to return the child to her care, appear to be limited to making an application for a recovery order. After some considerable delay, a recovery application was lodged.
28. The other party’s delayed application for a recovery order and ultimate acquiescence in the child’s stated wish to remain with his father, while relevant, is not determinative. Her reluctance to escalate matters in a fraught and highly emotive environment is understandable, especially after receiving legal advice that an application for recovery would probably not be listed before the hearing listed for early December to determine custody arrangements in relation to the children.
29. Having regard to all of these factors, I am satisfied that throughout the subject period the other party took reasonable steps to have the child again in her care.
Common sense Approach
30. The applicant urges me to take a common sense rather than a legal approach to his application. He submits that it defies common sense that he did not FTB for the subject period, a period in which he had the care of his son and was responsible for the costs of his care. He points out that these costs were not inconsiderable and in support refers to expenses incurred to feed, clothe and educate the child.
31. He also contends that the payment of FTB to his former wife throughout the subject period offends the stated objective of FTB ofn assisting families “with the cost of raising children”: ‘Family Assistance Office Guide to Payments’, p 2. He argues that it would be understandable if s 23 were used to maintain the status quo where a child had been taken unlawfully from a parent, but here the child had simply decided to reside with one parent over another. He argues that he had little option but to refuse to agree to the other party’s demand for return of the child, because there was a strong possibility that if the child returned to her care he would run away again and may have been placed at risk.
32. There is some force in the applicant’s argument that there is an apparent unjustness in a situation where a person has total care of a child but is ineligible to receive FTB, even if for a short period. However, I am unable, as the applicant urges, to ignore the provisions of the Family Assistance Act and apply what he would characterise as a “common-sense approach”. I have been unable to identify any provision in the Family Assistance Act which gives me a discretionary power to not apply s 23 in circumstances where, as in this case, the relevant requirements are met. Nor has the applicant been able to refer me to any such provision.
33. In the absence of such power, I have no option but to decide that the applicant was ineligible for FTB throughout the subject period and affirm the reviewable decision.
I certify that the 33 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 BrittonDate of Decision: 18 July 2011
Date of Hearing: 14 July 2011
Applicant self-representedSolicitor for the Respondent: B Salaji, Centrelink Program Litigation and Review Branch
Other Party self-represented
1
2
0