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

[2011] AATA 754

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 754

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2011/1665

GENERAL ADMINISTRATIVE DIVISION		)
Re		Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Applicant

And   Lorraine Abbott

Respondent

DECISION

Tribunal  Senior Member A K Britton

Date 26 October 2011

Place Sydney

Decision  The decision under review is affirmed.

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

Senior Member A K Britton  

CATCHWORDS

SOCIAL SECURITY – Baby Bonus – eligibility – eligibility dependent upon date of entrustment to care as part of adoption process of child – decision under review affirmed

A New Tax System (Family Assistance) Act 1999 (Cth) – ss 36(5), 36(5)(a), 36(5)(b),

Adoption Act 2000 (NSW) – ss 42, 43, 45, chs 3 and 4

Adoption Regulation 2003 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW) – s 135, ch 8

REASONS FOR DECISION

26 October 2011  Senior Member A K Britton

1.      In this matter, the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs applies for review of a decision of the Social Security Appeals Tribunal that the respondent, Mrs Lorraine Abbott, is eligible to be paid Baby Bonus in respect of two children.

2. The single issue raised by the SSAT’s decision is whether the children were entrusted to the care of Mrs Abbott as part of the adoption process in 2007 or 2010. If they were entrusted in 2010, as the SSAT found, Mrs Abbott is eligible to be paid Baby Bonus pursuant to s 36(5)(a) of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act). The Secretary contends that this was incorrect and the children were entrusted to Mrs Abbott as part of the adoption process in 2007, which would make her ineligible.

3.      The single issue raises two questions: when did the adoption process begin?  And when were the children entrusted to Mrs Abbott as part of that process?  The two dates are not necessarily the same.

4.      The facts in this matter are uncontentious. The resolution of the issue turns on the legal interpretation of those facts.

Background

5.      The two children were born in 2003 and 2004 respectively.  In November of 2004 the Children’s Court of NSW made orders allocating parental responsibility for them to the Minister for Community Services.  Through the normal processes, a child welfare agency, Barnardos Australia, then managed the process by which the children were placed in foster care.

6.      Through Barnardos, the children were placed in long-term foster care with Mrs Abbott and her husband in January 2007.  At that time Mrs Abbott hoped and believed that the foster care arrangement would proceed to adoption but this was not guaranteed. According to Mrs Abbott’s uncontested statement made in these proceedings, “Barnardos’ policy requires children to live for two years in the care of a family before the process of adoption can start”.

7.      The two-year waiting period enables Barnardos to assess the foster parents’ suitability as adoptive parents in general terms and to assess the compatibility of the particular parents and children.  Mrs Abbott stated that “We were ready to go with adoption after 2 years but Barnardos was not”, although the children had settled into the family well. It is not clear on the evidence available to the Tribunal what caused Barnardos to delay or hesitate in proceeding to adoption. Mrs Abbott surmised in her statement that the fact that she had suffered an illness in 2007 for which she received treatment throughout 2008 may have had something to do with the delay.  (She appears to have made a full recovery.)

8.      It was not until February 2010 that Barnardos commenced the formal legal process of adoption.  On the advice of Barnardos, Mrs Abbott made claims for Baby Bonus in respect of the children on 26 August 2010.  Adoption orders were made by the Supreme Court of New South Wales in October 2010. 

9.      The claims for Baby Bonus were rejected in November 2010 on the ground that the children did not enter Mrs Abbott’s care before turning two years of age.  On review by an Authorised Review Officer, Mrs Abbott’s claims were again rejected, this time on the basis that the children had not been placed in the care of Mrs Abbott and her husband as part of the adoption process. 

When did the adoption process begin?

10.     The Secretary contends that the children were entrusted to the care of Mrs Abbott as part of the adoption process on 6 January 2007, when they were first placed with her and her husband. In short, the Secretary’s position is that the adoption process commenced with that placement.

11. If the Secretary’s argument is correct, the relevant legislation is that which applied on 6 January 2007. An application of that legislation would render Mrs Abbott ineligible for Baby Bonus because she did not apply with 26 weeks of the children being placed in her care as part of the adoption process: s 36(5)(b). In addition, until amended in January 2009, the Family Assistance Act provided that Baby Bonus was only payable in respect of children who were under two years of age and when placed with the Abbotts in January 2007, the subject children were over two years of age. If, on the other hand, the adoption process did not start until February 2010, as is contended by Mrs Abbott, she is eligible for Baby Bonus.

12.     In NSW, the process of adoption is governed by the Adoption Act 2000 (NSW) (the Adoption Act). Chapter 4 of that Act, entitled “The Adoption Process”, deals with various aspects of the process.

13. Section 42 of the Adoption Act provides that a person or persons who wish to adopt a child may submit an expression of interest in doing so to the Director-General of the Department of Community Services or to the principal officer of an “adoption service provider” accredited to accept applications to adopt. Barnardos is an accredited adoption service provider, that is, an organisation accredited to provide adoption services under Chapter 3. Section 43 provides that the principal officer may then invite a person or a couple who have submitted an expression of interest to submit an application to adopt a child. Any application that follows is then assessed by the the adoption service provider pursuant to s 45 of the Adoption Act and the regulations.

14.     Chapter 4 also governs the provision of information about prospective adopting parents to the natural parents; the obtaining of the consent of the natural parents to the adoption of children; the dispensing of consent by natural parents; the formulation of “adoption plans” which make arrangements for the exchange of information between adopting and natural parents; and, of course, the proceedings in the Supreme Court of New South Wales towards the making of adoption orders, all of which constitute parts of the adoption process.

15. The Adoption Act does not define “adoption” or “adoption process”. Nor does the Family Assistance Act. Neither Act expressly defines when the adoption process commences. The Australian Institute of Health and Welfare has defined “adoption” to mean “the legal process by which a person legally becomes a child of adoptive parents and legally ceases to be the child of his/her existing parent(s)”: Adoption Australia 2008-2009 (Canberra, 2010). I adopt that definition. A “legal process”, however, is not necessarily to be regarded as a synonym for “proceedings in a court of law”. Rather, it means a process conducted according to law by which a legal issue is resolved. In NSW, the formal legal process of adoption is begun by a written expression of interest pursuant to s 42 of the Adoption Act in a form prescribed by the Adoption Regulation 2003 (NSW).

16.     Unfortunately, the documentation provided to the Tribunal does not include the adoption papers or the Barnardos file. The best evidence available is the unchallenged evidence that on 23 February 2010, the Barnardos Adoption Panel met and approved the commencement of adoption proceedings in respect of the two children in favour of Mrs Abbott and her husband.

17. A letter from the Barnardos Manager of Adoptions to Mr and Mrs Abbott dated 8 March 2010 stated that “all those present felt that adoption was in [the children’s] best interests” and that approval had been given to “commence proceedings” for the adoption. That was apparently a reference to an application to the Supreme Court. The letter also referred to completion of the applications and other documentation. It did not expressly refer to an expression of interest or the need for an application to adopt to be produced by Mr and Mrs Abbott. It is possible that the documents required under ss 42 and 43 of the Adoption Act were completed earlier than 2010 but, if so, the Secretary has not produced them.

18. It is thus difficult to identify with precision when the adoption process began. On the evidence available, the Barnardo’s letter (T 10) suggests on balance that it began at about the time of the meeting on 23 February 2010, although it is conceivable that it began even before the children were placed with Mrs and Mr Abbott if an expression of interest pursuant to s 42 was made before the children were placed with them. In my view, however, determining when the adoption process began is not decisive of the problem this case presents. For that I must turn to the next issue.

When were the children entrusted as part of the adoption process?

19.     Although it is possible that the adoption process began even before the children were placed in the care of the Abbotts, and although it was hoped that adoption would ultimately follow the foster placement, it does not follow that the placement in January 2007 was part of the adoption process.

20. The relevant provision in s 36(5) of the Family Assistance Act reads as follows:

Fourth, an individual is eligible for baby bonus in respect of a child if:

(a)  as part of the process for the adoption of the child by the individual, the child is entrusted to the care of the individual by an authorised party …

21. Initially the children were “fostered” to the Abbotts. In NSW “foster care” is governed by Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Act). Under that Act “foster care” is now called “out-of-home care” and “foster parents” “authorised carers”. “Out-of-home care” or “foster care” is defined to mean residential care and control of a child provided by a person other than a parent of the child where, as in this case, the Minister has parental responsibility for the child by virtue of an order of the Children’s Court: s 135 of the Care and Protection Act. It may be on a short or long-term basis. A foster child does not legally become the child of his or her foster parents no matter how long the foster relationship lasts.

22.     The adoptive process can be started unilaterally by a person submitting an expression of interest.  It does not follow from this, however, that any placement that coincided with or followed the commencement of the adoption process constituted a part of the process.  To draw that conclusion, as the Secretary apparently has, is the logical fallacy known the “post hoc ergo propter hoc” (later than that, therefore because of that) fallacy.

23.     Until Barnardos decided to approve the adoption of the children by the Abbotts, it cannot be said that it, the adoption service provider, as the “authorised party” had “entrusted” the children to them as part of the adoption process.  The word “entrusted” in this context implies the establishment of a relationship of trust between the adoption agency and the prospective adoptive parents as an integral part of the adoption process.  That is, it implies a decision on the part of the authorised party to proceed to adoption because the prospective parents may be trusted to care for the child or children who are entrusted to them.

24.     The whole point of the two-year probationary period, however, was to assess whether or not the Abbotts could be trusted to care properly for the children and whether the children should be entrusted to the Abbotts for the purpose of adoption.  Only once that decision was made could it be said that the children were “entrusted to the care” of the Abbotts as part of the adoption process because it was at that point that the relationship of trust had crystallised for the purposes of the adoption process.

25.     True it is that the children had already been physically placed in the care of the Abbotts for more than three years at that stage.  Once the decision was made to move to formal adoption, however, the children remained in the physical care of the Abbotts pending the Supreme Court’s orders as children who had been “entrusted to the care of” the Abbotts as part of the adoption process.  It would have been entirely artificial and legally unnecessary for the children to have been taken from the Abbotts for a very short time to break the chain of physical custody only for them to have been returned physically, this time for the specific purpose of advancing the adoption process.

26.     For these reasons the decision of the SSAT is affirmed.

I certify that the 26 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/s of Hearing  4 October 2011
Date of Decision  26 October 2011
Solicitor for the Applicant          P Sharma, DHS Legal Division
Counsel for the Respondent     Ms K Sant
Solicitor for the Respondent     Ms J Conaty, Legal Aid NSW