Reece and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Parsons (Party Joined)

[2008] AATA 525

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 525

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0313

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SHARYN REECE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

And JEANNETTE CAROL PARSONS

Party Joined

DECISION

Tribunal Mr Egon Fice, Member

Date24 June 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in substitution decides that Ms Reece was entitled to the family tax benefit from the period 24 April 2006 to 26 June 2006.

(sgd) Egon Fice

Member

SOCIAL SECURITY – family tax benefit – adult legally responsible – in the adult’s care – making decisions concerning daily care and control of child – not in immediate and physical custody, care and control – without adult’s consent child prevents being in adult’s care

Secretary, Department of Social Security v Lowe (1999) 92 FCR 26

Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402

Secretary, Department of Social Security v Field (1989) 25 FCR 425

Administrative Appeals Tribunal Act 1975

A New Tax System (Family Assistance) Act 1999

Family Law Act 1975

Social Security Act 1991

REASONS FOR DECISION

24 June 2008 Mr Egon Fice, Member      

1.      Centrelink paid Ms Sharyn Reece family tax benefit (FTB) in respect of her daughter, Amanda.  Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs.  In July 2006, a Centrelink officer decided that Ms Reece had been overpaid FTB because Amanda had been out of her care between 20 February 2006 and 23 June 2006.  Centrelink raised a debt and Ms Reece was told she had to repay the sum of $3,309.92.

2.      Ms Reece sought a review of the Centrelink officer’s decision.  An authorised review officer (ARO) confirmed the initial decision on 15 August 2006.  Ms Reece sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  On 10 January 2007 the SSAT set aside the decision of the ARO and in substitution decided that:

(a)there was no debt due to overpayment of FTB for the period 20 February 2006 to 23 April 2006;

(b)there was a debt due to the Commonwealth in respect of FTB received for the period 24 April 2006 to 23 June 2006; and

(c)the debt owed to the Commonwealth by Ms Reece for the period between 24 April 2006 and 23 June 2006 was to be recalculated to exclude all rent assistance payments.

3.      Ms Reece was dissatisfied with the decision of the SSAT and sought review of that decision before this Tribunal.

4. On 22 August 2007 the Tribunal received an application from Ms Jeannette Carol Parsons, Ms Reece’s mother, to be made a party to this proceeding. In an order made on 26 September 2007, Senior Member Friedman ordered that Ms Parsons be made a party pursuant to s 30(1A) of the Administrative Appeals Tribunal Act1975.

5.      The issues which I have to decide are whether Ms Reece was legally responsible for the day-to-day care, welfare and development of Amanda and whether Amanda was in fact in Ms Reece’s care between 20 February 2006 and 26 June 2006.  Those questions are complicated by the fact that Ms Parsons claims Amanda was in her care during this period.

RELEVANT BACKGROUND

6.      Amanda was born on 21 May 1992 and, accordingly, was under 18 years of age between February 2006 and June 2006.

7.      According to Ms Reece, Amanda lived with her at Laverton in Victoria until 20 February 2006.  The lease on the property in which she was then residing was about to expire in April 2006.  At this time, Amanda was mixing with the wrong crowd and she had been suspended from school for fighting.  Ms Reece intended to relocate to the country at the expiry of her lease.  Therefore, she suggested that Amanda go to Tasmania where Amanda grew up as a child, in Launceston and Mathinna.  Ms Reece said she made arrangements for Amanda to go and stay with her brother, Mr Andrew Reece in Mathinna.  Ms Reece’s intention was for Amanda to stay for a holiday with her uncle for about three weeks.  However, Mr Reece was having some custody problems with their sister’s child.  Therefore, Mr Reece decided that Amanda should stay with her grandmother, Ms Parsons.  Apparently, Ms Parsons lived nearby, some 500 metres from Mr Reece’s residence. 

8.      Ms Reece paid for Amanda’s air fare to Tasmania and she left on 20 February 2006.  She was collected at the airport by Mr Reece’s wife, Dawn Reece, who took Amanda to Ms Parsons’ residence.  Ms Reece gave Amanda some money which was deposited into a key card account and provided her with the pin number. 

9.      After Amanda had spent a week in Tasmania, Ms Reece spoke with her regarding the possibility of enrolling in St Mary’s District High School nearby, as Amanda had a friend in Mathinna who was also enrolled there.  Ms Reece decided if Amanda could make a go of it at school in Tasmania, she could stay there.  If not, she would bring Amanda home.  Ms Reece said this was the first time Amanda sounded happy about going to school.  She had been good in school until grade six and then her results fell away.

10.     Ms Reece said she could not leave Melbourne until April 2006 because of the expiry of her lease and she did not want Amanda to go to school in Melbourne because of the company she had been keeping.  Ms Reece thought it was best Amanda go to school away from the company which she had been keeping.

11.     Ms Reece discussed the matter with Dawn Reece and arranged for Amanda to be enrolled at St Mary’s.

12.     According to Ms Parsons, she and Dawn Reece took Amanda to St Mary’s for enrolment on 28 February 2006.  Ms Reece had provided her health card details to enable Amanda to get on the free list for enrolment at school.  According to Ms Reece, she telephoned Ms Parsons’ home most evenings but there were some difficulties in establishing contact with Amanda because she was using a mobile telephone and reception was poor in that area.  Ms Reece’s Optus telephone records support her account of frequent telephone contact.  According to Ms Reece, she had many difficulties making contact and she never actually spoke with Amanda at Ms Parsons’ home.  Apparently, Ms Parsons would tell her that Amanda was either down the road at Samantha’s or on the bus on her way home from school.

13.     In March 2006 St Mary’s School rang Ms Reece asking if she knew Amanda’s whereabouts as she was not at school.  According to Ms Reece, Amanda was in hospital with tonsillitis.  Ms Reece had called Launceston General Hospital and spoken with the hospital staff.  Apparently Amanda was in hospital for three or four days and Ms Reece spoke to her at that time.  She understood Ms Parsons picked Amanda up from the hospital on discharge and took her home.  Nevertheless, she had difficulty in contacting Amanda until Amanda came back to Melbourne on 10 April 2006.  Ms Reece believed Amanda was staying with Ms Reece’s sister Susan and her husband Donald Wheldon at that time, despite the fact that she had forbidden Amanda to have any contact with that family.  According to Ms Reece, Amanda told her that Ms Parsons had transferred care of Amanda to Susan.

14.     Ms Reece arranged for Ms Parsons and Amanda to travel back to Melbourne over Easter because Amanda had missed her brother’s birthday.  Ms Parsons is also Amanda’s brother’s Godmother.  Ms Reece purchased one way tickets.

15.     By the time Ms Parsons and Amanda came to Melbourne on 10 April 2006, Ms Reece had spoken with a social worker at St Mary’s and she had been advised that Amanda had been suspended from school between 5 and 7 April for smoking on school grounds.  She had not been aware of Amanda’s fairly frequent absences from school.  Ms Parsons did not tell her about that.

16.     Because Ms Reece could not relocate from Melbourne to country Victoria before 26 April 2006, she discussed the possibility of Amanda returning to Tasmania with Ms Parsons.  She also discussed with Ms Parsons Amanda’s absences from school and her smoking, but thought these were not serious issues.  She decided that Amanda could go back to Tasmania but under the terms of a contract which she drafted and which was signed by Amanda, Ms Parsons and Ms Reece.  That contract is dated 20 April 2006.  In essence, the contract provided Amanda was to reside with Ms Parsons on a day-to-day basis for a trial period.  Although Ms Parsons was required to discuss day-to-day living arrangements with Amanda, Ms Reece’s brother and his wife were to have the final say in those day-to-day matters.  Amanda was not to have contact with Donald, Susan, Josh or Nicole Wheldon and was not allowed to stay at their house.  She had to attend school on a regular basis and the day-to-day living expenses were the responsibility of Ms Reece.  The consequences of a breach of the contract were that Amanda must return home to Ms Reece.  On this basis, Ms Reece then bought two airline tickets to enable Amanda and Ms Parsons to return to Tasmania.

17.     Some four or five days later, on about the 26 April 2006, Ms Reece moved to the country.  However, she again encountered problems contacting Ms Parsons, who changed her telephone number three times between February and June 2006.  She then discovered Amanda was staying with a friend, Shae Morey, at a place called Cornwall, which is just outside of St Mary’s.  She became aware Amanda had been apparently staying at Morey’s house quite often since March 2006.  Ms Reece did not know Shae’s mother, D’Nell Morey, but Ms Parsons told Ms Reece that Shae was in Amanda’s class at school and lived at Cornwall.  The fact that Amanda was staying with Shae Morey did not concern Ms Reece.

18.     Ms Reece continued to have difficulty trying to locate Amanda.  Ms Parsons would not tell her where she was.  She would merely tell Ms Reece that Amanda was either down the street or not at home.  Ms Reece nevertheless deposited 50 dollars per week into the key card account to which Amanda had access.  She also provided her with a telephone voucher valued at 20 dollars every week.  Amanda was told if she needed clothes or anything else, she was to contact her mother.  Ms Reece thought Amanda would come back to Victoria in May for her birthday, but she did not.

19.     There were further problems with Amanda’s whereabouts and an argument took place at Susan Wheldon’s house where Donald Wheldon hit Amanda in front of a number of other people.  Ms Reece also discovered Amanda had been at the Morey house for most of the time she was back in Tasmania and that there were ongoing issues at school.

20.     Ms Reece then purchased an airline ticket for Amanda to return to Victoria, which she did on 27 June 2006.

LEGISLATIVE SCHEME

21.     The relevant statutory provisions are to be found in A New Tax System (Family Assistance) Act 1999 (Family Assistance Act).  Eligibility for family assistance under the Family Assistance Act is set out in s 21(1) which provides:

(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.     Section 22(1) of the Family Assistance Act provides that an individual is an FTB child of another individual (the adult) in any of the cases set out under s 22.  As Amanda was under the age of 18 at the relevant time, the subsection which is relevant in her case is s 22(2) which provides:

(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.

23.     There was no question before me about the fact that Ms Reece satisfied the provisions of s 21 of the Family Assistance Act regarding eligibility.  The only issue which arises is whether Amanda can be classified as an FTB child as that term is defined in s 22(2).  There is no question that Amanda’s situation satisfies s 22(2)(a) and (d) of the Family Assistance Act.  However, the Secretary does not accept that  s 22(2)(b) or (c) have been met.

Was Ms Reece the Legally Responsible Adult?

24.     As I understood the submissions made by Mr Andrew Carson, the Centrelink advocate who appeared on behalf of the Secretary, the Secretary does not accept that Ms Reece was the adult legally responsible for Amanda’s day-to-day care, welfare and development.  However, and with respect to Mr Carson, whether Ms Reece satisfies s 22(2)(b) of the Family Assistance Act is strictly a question of law.  It is not based on any factual findings as to whether day-to-day care, welfare or development has been provided by Ms Reece.  The question is: who is legally responsible for those matters.

25.     The Family Law Act 1975 (the FLA) sets out the meaning of parental responsibility at s 61B.  It provides that parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.  In addition, s 61C of the FLA provides that each of the parents of a child who is not 18 has parental responsibility for the child as long as that responsibility has not been displaced by a parenting order made by the court.  Similarly, if a guardian were appointed to a child under a State or Commonwealth Act, legal responsibility would be removed.

26.     There was no evidence before me indicating Ms Reece had lost legal responsibility for Amanda as a consequence of a FLA Order or an Order made under any other State or Commonwealth Act.  Therefore, my view is both of Amanda’s parents retained parental responsibility for Amanda in 2006.  There can be no doubt that Ms Reece was the adult legally responsible for the day-to-day care, welfare and development of Amanda.

Was Amanda in Ms Reece’s Care?

27.     A guide to understanding the interpretation of s 22(2)(b) and (c) OF THE Family Assistance Act can be found in Secretary, Department of Social Security v Lowe (1999) 92 FCR 26. There, the Full Court of the Federal Court was required to construe the meaning of dependant child which was defined in s 5(2) of the Social Security Act 1991 (the Social Security Act) in terms which are identical to those set out in s 22(b) and (c) of the Family Assistance Act.  In Lowe’s case, the problem was that the parents had separated and they had agreed to share equally all parenting rights.  Therefore, the child in that case was in one adult’s care for one week and in another adult’s care for the following week.

28.     The Full Court was concerned to clarify the meaning of the phrase and the young person is in the adult’s care which are the concluding words in s 5(2)(a) of the Social Security Act. The Full Court said at page 30:

… It is wrong to regard these words as requiring the adult's immediate physical presence at all times over a period of a fortnight, or any other period.  After all, most children will be at school for a large part of each year, and a few may board for weeks or months at some institution, such as a hospital, or a boarding school.  Children stay at times with relatives.  The delegation of daily care involved in such arrangements need not be regarded as denying the enduring role of a caring parent.  While a child is at school, or in hospital, or staying with a relative, the child may remain, in a perfectly intelligible sense, "in the ...care" of a parent or parents…

In support of the broad understanding of the meaning of care, the Full Court also referred to Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402. In that case, a father had fled Vietnam by boat leaving behind a wife and three young children because they were unable to bear the rigours of the voyage. After establishing himself in Australia, the father maintained care of his children by sending his wife material assistance as well as advice and counsel about the education needs of the children. The Full Court (Sheppard, Morling and Burchett JJ) unanimously held that the Administrative Appeals Tribunal was entitled to find that the father had the factual custody, care and control of the children, exercised through his wife.  The Full Court also referred to the case of Secretary, Department of Social Security v Field (1989) 25 FCR 425 where a differently constituted Full Court of the Federal Court had to consider the definition of dependant child in s 3 of the Social Security Act 1947.  That section referred to a child in the custody, care and control of the person but it also provided that:

…a person shall not be taken to have custody of a child unless the person, whether alone or jointly with another person, has the right to have, and to make decisions concerning, the daily care and control of the child.

29.     As the Full Court said in Field, this provision was concerned with both the factual position in respect of custody, care and control and also the legal right to exercise care and control.  That is similar to the effect of the provisions in s 22(2)(b) and (c) of the Family Assistance Act.  In Field, there was a Family Court Order awarding the mother custody but granting the father access for four nights and five days in each period of two weeks.  While the Full Court recognised that a right to access may involve the right to have a say in and to make decisions concerning the child’s care and control, the right to access on the days provided for in the Order caused the Court to conclude that the respondent’s right in that case could not properly be characterised as a [legal] right to have the daily care and control of this child.  The Court then considered the general position with respect to access for periods up to 14 consecutive days.  The Full Court in Lowe said there was no hint given by the Full Court in Field’s case that periods of access for a significant part of the fortnight might deprive the custodial parent of any right to a supporting parent’s benefit on the basis that the child was not in the immediate and physical custody care and control of the custodial parent for a large part of the period to which a pension payment would relate.

30.     In concluding, the Full Court in Lowe said the authorities which it had explored suggested that the whole of the arrangements for the care of the child should be considered when a determination is made as to whether the child is in a particular parent’s care.  The Court said it was clear that the care of the child was shared by her parents and it was not appropriate to regard either of them as having that care in an exclusive sense each alternate week.  Rather, their agreement necessarily involved and was found to involve, joint participation in major decisions regarding the care of the child, although minor decisions required to be made immediately might be made by the parent with whom the child happened to be. 

31.     In my view, this analysis of the meaning of the phrase is in the adult’s care is extremely helpful.  It is a construction which is broader than that relied on by the Secretary in this case.

32.     There can be no question, and there is no evidence to the contrary, that Amanda was, between February 2006 and June 2006, under the legal responsibility of Ms Reece for her day-to-day care, welfare and development.  The question that remains is whether she was also in Ms Reece’s care during that period of time.  Ms Reece’s evidence was she was seriously concerned about Amanda’s welfare, particularly regarding the school which she was attending in Melbourne; and for that reason, she did not want Amanda to continue attending that school.  Amanda had previously lived in Tasmania and had relatives who lived there.  Therefore, although Ms Reece wanted to move from Melbourne to country Victoria, because she was tied to her residence by a lease for the time being, she considered it to be in Amanda’s best interests to have her stay with her brother Andrew Reece’s family in Mathinna.  It was not her intention at the outset for Amanda to stay with her grandmother, Ms Parsons.  She made provision for Amanda’s care while in Tasmania by ensuring that Amanda had access to a key card account and she also paid 20 dollars into Amanda’s mobile telephone account each month.  However, because her brother was having problems in a custody battle over another child, her brother sent Amanda to stay with Ms Parsons.  That was intended to be for a brief holiday.  However, after speaking with Amanda by telephone, it was agreed she could go to school there.  Ms Reece spoke with her brother’s wife, Dawn, who arranged with Ms Parsons to have Amanda enrolled at St Mary’s.  Ms Reece was required to provide health card information to support that enrolment.

33.     There is no doubt that Ms Reece tried to maintain telephone contact with her daughter whenever she could.  Her Optus telephone accounts are evidence of that.  When Amanda was hospitalised in March, Ms Reece contacted the hospital to discuss her condition.  I accept Ms Reece had difficulty at times in finding out whether her daughter was at school on a regular basis.  It seems to me that while Ms Reece certainly contacted Ms Parsons on numerous occasions, Ms Parsons did not give an accurate account of Amanda’s whereabouts.  In fact, Ms Parsons’ evidence was, on the whole, quite extraordinary.  Ms Parsons claimed to have taken care of Amanda while she was at Mathinna.  She said she bought her clothes and at times, gave Amanda money.  She did not pay for Amanda’s school uniform which was given to her.  She seemed to be aware Amanda was smoking and that may have been the reason why she was asking for more money.  Ms Parsons said she had received a few calls from the school in March 2006 saying Amanda was not present.  She was later told she was in the company of Shae Morey.  Amanda did not tell Ms Parsons where she was.  Ms Parsons did not tell Ms Reece that Amanda was absent from school on several days.  Ms Parsons said she did not consider herself to be responsible for reporting about Amanda.  Even when Amanda was taken to hospital, she did not advise Ms Reece of that but rather Amanda did.

34.     After Amanda went back to Tasmania following her stay in Melbourne over the Easter holidays, Ms Parsons said Amanda would spend every night with her at her house but on weekends she might stay at Cornwall with Shae Morey.

35.     I was provided with three statements which Ms Parsons sent to Centrelink, I believe in late 2007.  Those letters are said to be from a Gloria Barnes, Dawn Reece and a June Turner.  All of those letters state Amanda spent no more than four nights away from Ms Parsons’ residence, which is at 16 Bent Street, Mathinna.  The problem is that the following identical expression appears in each of those letters; I know Amanda only spent me more than 4 night away from her address in 16 Bent Street Mathinna.  This grammatically incorrect sentence appears in exactly the same form in each of those letters which purport to have been signed by the respective writers.  Furthermore, the hand printing in each those letters appears identical to the hand writing of Ms Parsons in a hand-written cover letter sent to the Tribunal which was received on 12 February 2008.  In addition, Ms Jill Myers, an advocate for the Regional Information and Advocacy Council at Shepparton, provided to the Tribunal a copy of a statutory declaration made by Ms Turner on 30 November 2007.  In that statutory declaration, Ms Turner said that she had been asked about, and was later provided with, a copy of a letter purportedly written by her saying that Amanda Phillips had been at Mathinna and in the care of Ms Parsons at 16 Bent Street.  Ms Turner categorically denied she had written the letter.  She indicated her writing is in the form of script and not printing (which was the form of the letter) and, judging by her hand-written statutory declaration, there is little room for doubt she was not the author of the letter provided by Ms Parsons.  Although I cannot be absolutely certain, it is apparent that the three letters which Ms Parsons presented were more likely than not written by her.  The hand writing is very similar to her hand writing and the ungrammatical expression used is most certainly not that of Ms Turner’s.  For that reason, I have serious doubts about the accuracy of the evidence given by Ms Parsons and her motives for seeking to be joined as a party to this proceeding.

36.     I was also provided with statutory declarations made by Ms D’Nell Morey, Shae Morey and Christopher James Morey.  Ms D’Nell Morey said that Amanda resided at her home on a regular basis between March and June 2006.  She said that the friendship between her daughter Shae and Amanda has continued and that Amanda had moved back to live with the Morey’s on a permanent basis.  Shae Morey’s statutory declaration is to the same effect.  Mr Christopher Morey, who is the grandfather of Shae, said he was staying in a caravan on his daughter’s property.  He said between March and June 2006 Amanda had been residing with his daughter and her children.

37.     In my opinion, the evidence of the Morey family should be preferred over Ms Parsons’ evidence.

38.     I have already mentioned the agreement Ms Reece drafted which set out the conditions under which Amanda could return to Tasmania after the Easter holidays.  It seems to me the agreement makes it quite clear that Ms Reece was concerned with Amanda’s welfare.  She intended Amanda to reside with Ms Parsons on a day‑to‑day basis.  Ms Parsons was to make decisions about day‑to‑day matters together with Mr Andrew Reece.  Ms Reece required Amanda to attend school on a regular basis and agreed she would pay Amada’s living expenses.  Ms Reece made it clear that if the terms of the agreement were breached, Amanda must return home.  While the agreement is in a form which lawyers might describe as crude, it clearly conveys Ms Reece’s intention when she sent her daughter back to Tasmania.  Although Amanda clearly did not stay with Ms Parsons on a day-to-day basis after returning to Tasmania, but rather stayed with the Morey’s, this information was never conveyed to Ms Reece.  It seems it was only after there was a confrontation at the Wheldon’s’ house, where Donald Wheldon struck Amanda, that matters came to a head and Ms Reece made sure Amanda returned to Victoria.

39.     Mr Carson submitted only a small portion of the FTB provided to Ms Reece was spent directly on Amanda.  In fact, Mr Carson submitted that only $700 over approximately 18 weeks was provided for her care.  Of course, in addition to that, Ms Reece also paid for Amanda’s air fares to and from Tasmania as well as, on one occasion, the air fares of Ms Parsons.  Nevertheless, the Secretary contended the level of payment was insufficient to meet Amanda’s basic living needs.  Despite that contention, there was no evidence before me that the monies were insufficient, other than the fact that Ms Parsons said from time to time, she provided Amanda with money.  Given Amanda was only away from Ms Reece for a period of 16 weeks and her accommodation and essential evening meals were supposedly provided by Ms Parsons, in my view, it cannot be said that the level of payment was insufficient to meet Amanda’s basic living needs.  In addition to those monies, Ms Reece also provided Amanda with $20 per month on her telephone card to enable her to keep in contact with her mother.

40.     In my view, Amanda continued to be in Ms Reece’s care during the two periods she was residing in Tasmania.  Although Ms Reece had delegated daily care arrangements to relatives, as is evidenced by the contract, she fully intended to maintain the enduring role of a caring parent subject to appropriate information being given to her by Ms Parsons.  The fact that it was not does not reflect adversely on Ms Reece.

41.     Even if I am wrong about whether Amanda remained in Ms Reece’s care while she was in Tasmania because Amanda was not staying with Ms Parsons but rather with the Morey family, it seems to me that s 23 of the Family Assistance Act would apply.  This section of the Act was not considered by the Secretary.  Section 23(1) provides that if an individual is an FTB child of another individual (the adult) under s 22(2) or (3); and an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and the adult takes reasonable steps to have the child again in the adult’s care, then s 23 applies.

42.     Therefore, if it were argued that Amanda’s absence from Ms Parson’s residence and her frequent absences from school prevented Ms Reece from establishing that Amanda was in her care, it seems to me that s 23 should be applied in this case.  The result, in accordance with s 23(2), would be that Amanda would remain the FTB child of Ms Reece for that part of the qualifying period (described in s 23(5)) for which she would have been an FTB child of Ms Reece under s 22(2) or (3) if she had not ceased to be in Ms Reece’s care.  The term qualifying period is defined in s 23(5) to mean, amongst other things, the period beginning when the child ceases to be in the adult’s care and ending, if the child again comes into the adult’s care at a later time, that later time.  In this case, when Ms Reece discovered what had been happening in Tasmania following Amanda’s return after Easter, she immediately took steps to have Amanda relocate to Victoria, which happened on 27 June 2006.  It therefore seems to me to be appropriate to apply s 23 of the Family Assistance Act to this case.  If there was a period of time between April 2006 and June 2006 when it could be said Amanda had ceased to be in Ms Reece’s care, Amanda nevertheless remained an FTB child of Ms Reece for that period of time, until she returned to her mother.

CONCLUSION

43.     Ms Reece remained the adult who was legally responsible for the day‑to‑day care, welfare and development of Amanda.  She was (and of course remains) Amanda’s mother and there was no court order transferring legal responsibility to any other adult.

44.     I am satisfied Amanda was in Ms Reece’s care between 20 February 2006 and 10 April 2006 and again between 24 April 2006 and 26 June 2006 while living in Tasmania.  She did not at any time abandon Amanda or cease to have care of her.  She provided for her financially and remained, as often as possible, in telephone contact with her.  She trusted her own mother, Ms Parsons, particularly during the second period Amanda was in Tasmania.  However, that trust was misplaced.  This is evidenced by the fact that Ms Parsons, although aware Amanda was missing school and not coming home to stay with her, did not inform Ms Reece.  Ms Reece therefore had no reason to believe Amanda was having any problems with her schooling or with her staying with Ms Parsons.  When she discovered that things were not the way she thought they were, she made immediate arrangements to have Amanda returned to Victoria and into her physical care.  In any event, it seems to me that s 23 of the Family Assistance Act should be applied if it could be said Amanda ceased to be the FTB child of Ms Reece at any time during the second period she spent in Tasmania.

45.      It is therefore apparent I do not agree with the decision made by the SSAT on 10 January 2007.  Accordingly, the decision of the SSAT should be set aside.  In substitution for the SSAT decision, I decide that Ms Reece was entitled to the family tax benefit from the period 24 April 2006 to 26 June 2006.  Therefore, any moneys recovered from Ms Reece by the Secretary in respect of family tax benefit payments made to her for this period must be repaid to Ms Reece.

I certify that the forty‑five [45] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

Signed:          Olympia Sarrinikolaou

Clerk

Date of Hearing  21 February 2008
Date of Decision  24 June 2008

Advocate for the applicant           Jill Myers, Regional Information and Advocacy Council

Advocate for the respondent        Andrew Carson, Centrelink Legal Services Branch
Advocate for party joined             Nil – self‑represented