Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Abbott
[2012] FCAFC 172
•29 November 2012
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Abbott [2012] FCAFC 172
Citation: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Abbott [2012] FCAFC 172 Appeal from: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Abbott [2012] FCA 481 Parties: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS v LORRAINE ABBOTT File number: NSD 758 of 2012 Judges: GREENWOOD, BUCHANAN AND BROMBERG JJ Date of judgment: 29 November 2012 Date of hearing: 27 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: Mr J D Smith Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr M A Robinson SC with Ms K Sant Solicitor for the Respondent: Legal Aid NSW
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 758 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
AppellantAND: LORRAINE ABBOTT
Respondent
JUDGES:
GREENWOOD, BUCHANAN AND BROMBERG JJ
DATE OF ORDER:
29 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 758 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
AppellantAND: LORRAINE ABBOTT
Respondent
JUDGES:
GREENWOOD, BUCHANAN AND BROMBERG JJ
DATE:
29 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
Under s 36(5) of the A New Tax System (Family Assistance) Act 1999 (Cth), as it applied with effect from 1 January 2009, an adoptive parent was entitled to payment of “baby bonus” in respect of adopted children 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; and
(b)the child is aged under 16 at the time the child is entrusted to the care of the individual; …
and provided a claim for payment was made no later than 52 weeks after “the time the child is entrusted to the care of the claimant” (s 39(2) of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)).
Two children, born in 2003 and 2004 respectively, were adopted by the respondent and her husband pursuant to orders made in October 2010 by the Supreme Court of New South Wales. Were they entrusted to the care of the respondent by an authorised party as part of the process for their adoption, either before or after 1 January 2009?
The relevant authorised party was Barnardos Australia (“Barnardos”), a child welfare agency. In January 2007 Barnardos placed the children with Mrs Abbott and her husband in long term foster care. The primary judge recorded (based on the findings of the AAT):
6Mrs Abbott hoped and believed that this would ultimately lead to adoption, but Barnardos’ policy required children to live for two years in the care of a family before the process of adoption could start.
7In February 2010 Barnardos decided to allow Mrs Abbott and her husband to adopt the children. In October 2010 adoption orders in respect of the children were made in favour of Mr and Mrs Abbott by the Supreme Court of New South Wales.
8Mrs Abbott applied for baby bonus in respect of the children in August 2010. It appears that she did so on the advice of Barnardos. Her claim was refused by Centrelink, but later allowed by the SSAT. The decision of the SSAT was affirmed by the Tribunal.
The appellant accepted that the AAT found as a fact that the adoption process commenced on 23 February 2010, and that the finding should be accepted for the purpose of the present appeal. It follows that, if the children were entrusted to the care of the respondent and her husband “as part of the process for the adoption”, that necessarily occurred after 1 January 2009.
The central question agitated on the appeal was whether the children could be said to have been entrusted at all to the care of the respondent as part of the adoption process, or whether they were entrusted to her care at an earlier stage for some other reason, thereafter remaining in the care of the respondent, but without the necessary connection to the adoption process even though that process had commenced. In some respects, this treats entrusting a child to care as a one-off placement, or a physical process, not necessarily connected with the reason for care, or ongoing care, at any particular time thereafter.
The finding made by the AAT about this suggestion (at [25]) was:
25True it is that the children had already been physically placed in the care of the Abbotts for more than three years at that stage [i.e. 2010]. 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.
The primary judge dealt with this issue in the following way:
45A child will usually be regarded as having been entrusted to the care of an individual when the child is placed in the physical care of the individual. In the present case, though the children were placed in the care of Mrs Abbott in January 2007 pursuant to a foster care arrangement, this was not part of the adoption process. This leads one to ask whether the children were ever entrusted to the care of Mrs Abbott as part of the adoption process.
46I think they were. In particular, I agree with the Tribunal that the children were entrusted to Mrs Abbott’s care as part of the adoption process when Barnardos decided to allow Mr and Mrs Abbott to adopt the children. That is when, on the Tribunal’s findings, the process of adoption began. And it represents the first point in time at which it could be said that the children were entrusted to Mrs Abbott and her husband as part of the process of adoption. From that point on, the children were entrusted to Mrs Abbott and her husband as part of the adoption process.
47I do not accept the Secretary’s argument that Mrs Abbott could never have been entrusted with the care of the children as part of the adoption process because the children were only ever entrusted to her care in January 2007. I think the Secretary’s case takes too narrow a view of the language of the section. Mrs Abbott was entrusted with the care of the children in February 2010 as much as she was in January 2007, though it was not until February 2010 that it could be said that the children were entrusted to her care as part of the adoption process.
We see no error in those conclusions. The fact that the children were entrusted to the care of the respondent in 2007 as part of a long term foster care arrangement does not exclude a finding that, from 23 February 2010, the children were entrusted to the respondent’s care as part of the process of their adoption. There is no basis to disturb the findings of the AAT, or of the primary judge, on this issue.
The construction agitated by the appellant that an individual's eligibility for baby bonus under s 36(5)(a) should be understood as arising only when the child is “first physically” entrusted to the care of the individual, by an authorised party as part of the process for the adoption of the child by the individual, seeks to, first, insert words qualifying the word “entrusted” not chosen by the Parliament, and, second, deny the true scope of the section which recognises that once Barnardos commenced the adoption process on or about 23 February 2010 (as found by the Tribunal) and entrusted the children to Mrs Abbott and her husband as part of that process, in their new capacity as prospective adoptive parents, they became eligible for the baby bonus under the section.
We dismiss the appeal with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Greenwood, Buchanan and Bromberg. Associate:
Dated: 29 November 2012
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