Sheehan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 611
•2 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 611
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/2042
GENERAL ADMINISTRATIVE DIVISION ) Re PHILIP SHEEHAN Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date2 September 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Family assistance – Baby bonus – Child born in Philippines – Applicant father of child – Citizen and resident of Australia at time of child’s birth – Child not in applicant’s care – Child not FTB child of applicant – Applicant ineligible for baby bonus – Decision under review affirmed
A New Tax System (Family Assistance) Act 1999 (Cth) ss 3, 22, 36
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 39
Social Security Act 1991 (Cth) s 7
REASONS FOR DECISION
2 September 2011 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. I have to decide whether Mr Philip Sheehan (“the applicant”) is entitled to payment of baby bonus in respect of his son.[1]
[1] As the reasons for my decision are a matter of public record I have decided to protect the privacy of the applicant’s son by not revealing his name.
BACKGROUND
2. On 16 December 2009 the applicant’s son (“the child”) was born in the Philippines. Ms Catolico, the mother of his son, is a citizen of the Philippines. The child resides in the Philippines with his mother. There is no issue that the child is the son of the applicant, who is named in the birth certificate as being the father of the child. The applicant resided in Australia at the time of the birth of his son.
3. The case of the applicant is that he is a member of a couple with Ms Catolico and that he is living in a de facto relationship with her. When he has been able, the applicant has made a number of visits to see his son. For instance, on 25 March 2010 the applicant departed Australia and returned on 26 April 2010 (a period of 33 days).[2] The applicant advised Centrelink that during this time he visited his son and Ms Catolico.
[2] T-Document 6, Folio 59; T-Document 24, Folio 111.
4. The applicant stated that he has paid for the construction of a concrete dwelling on the property of a relative of Ms Catolico, which will be acquired by Ms Catolico on the death of that relative. However, the applicant does not have any registered interest over that land. The applicant also makes regular payments to Ms Catolico for the support of his family.
5. The applicant does not have the right to live in the Philippines. He requires a tourist visa to visit the Philippines, which can be extended on a monthly basis.
6. On 1 September 2010 his son was issued with an Australian passport. On 9 November 2010 the child and Ms Catolico visited Australia. On 3 February 2011 they departed Australia and returned to the Philippines.
PRIOR DECISIONS
7. On 15 November 2010 the applicant lodged a claim for baby bonus and family tax benefit with Centrelink.
8. On 18 February 2011 the claim for baby bonus was rejected as the child did not come into the applicant’s care within six months from the date of his birth. On 14 March 2011 the decision to reject the claim was affirmed as the child could not be considered to be an FTB child of the applicant until his arrival in Australia in November 2010. On 12 April 2011 an Authorised Review Officer affirmed the decision.
9. On 10 May 2011 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision.
10. On 27 May 2011 the applicant applied to this Tribunal for review of the decision.
RELEVANT LEGISLATION
11. The legislation that I must have regard to in determining this application is A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“the Administration Act”).
12. Subsection 39(2) of the Administration Act requires that a claim for the payment of baby bonus be lodged within 52 weeks of the child’s birth. During the hearing I remarked that I was satisfied that the applicant lodged the claim for baby bonus within the time prescribed pursuant to this section.
13. The eligibility of an individual for baby bonus is generally determined under s 36 of the Act. The Act, as it read at the time of the applicant’s claim[3], provides:
[3] The subparagraph (ab) which is reproduced at T-Document 2, Folios 22 – 27 was not in force at the time the applicant made his claim for baby bonus.
36 When an individual is eligible for baby bonus in normal circumstances
(1)An individual is eligible for baby bonus in respect of a child in any of the 4 cases set out in this section.
Parent of child
(2) First, an individual is eligible for baby bonus in respect of a child if:
(a) the individual is a parent of the child; and
(aa) the child is an FTB child of the individual; and
(b) the individual either:
(i)is eligible for family tax benefit in respect of the FTB child at any time within the period of 26 weeks starting on the day of the child’s birth; or
(ii)would be so eligible except that the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is nil; and
(c)if the individual is, under a law of a State or Territory, responsible (whether alone or jointly) for registering the birth of the child in accordance with the law:
(i)at the time the claim for payment of baby bonus is made, the birth of the child has been registered in accordance with the law; or
(ii)at the time the claim for payment of baby bonus is made, the individual has applied to have the birth of the child registered in accordance with the law; or
(iii)the Secretary is notified, or becomes aware, within 52 weeks after the birth of the child, that the individual applied to have the birth of the child registered in accordance with the law; and
(d)the claim for payment of baby bonus contains an estimate of the sum of:
(i)the individual’s adjusted taxable income; and
(ii)if the individual is a member of a couple on the day the claim is made—the adjusted taxable income of the individual’s partner;
for the period of 6 months beginning on the day of the child’s birth; and
(e)that estimate is less than or equal to $75,000 and the Secretary considers that estimate to be reasonable.
14. Subsection 36(2)(b)(i) of the Act requires that to be eligible for baby bonus, an applicant needs to be eligible for family tax benefit in respect of the FTB child at any time within the period of 26 weeks starting on the day of the child’s birth.
15. Section 22 of the Act defines whether a child is an FTB child of another individual. The section provides:
22 When an individual is an FTB child of another individual
(1)An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
Individual aged under 16
(2) An individual is an FTB child of the adult if:
(a) the individual is aged under 16; and
(b) the individual is in the adult’s care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
Legal responsibility for the individual
(5)The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; or
(b)under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)the individual is not in the care of anyone with the legal responsibility for the day‑to‑day care, welfare and development of the individual.
...
Percentage of care at least 35%
(7)If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
Note: If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).
CONSIDERATION
16. I accept the evidence of the applicant that he is concerned for, and contributes to, the welfare of his family and that when he is with his child he personally attends to the needs of his child. In making a decision upon this application, I have to determine whether the son of the applicant can be regarded as the FTB child of the applicant under s 36(2)(aa) of the Act. The SSAT proceeded to consider the case of the applicant on the basis that he did not dispute that his son was the FTB child of the mother, Ms Catolico.[4] However, during the hearing of this application the applicant did advance the submission that his son was the FTB child of himself. I note that the applicant is not confined to any concession that may have been made before the SSAT. In any event this Tribunal is certainly not bound by any concession that has been made by any party: the Tribunal must endeavour to make the correct and preferable decision upon this application.
[4] T-Document 2, Folio 8.
17. The Secretary contends that the child is not an FTB child of the applicant because he was not in the applicant’s care, as required by subsection 22(2)(b) of the Act. On behalf of the Secretary it was contended that Instruction 1.1.C.90 of the Family Assistance Guide (“the Guide”) provides some guidance in respect of FTB care. Relevantly, it provides:
Day-to-day care generally includes physical care. However, the importance of physical care decreases as the child becomes older. For example, a baby or toddler's care needs are largely immediate and physical (feeding, nappy changing, bathing, supervision). As the child grows older, they will gradually start to meet many of their physical care needs themselves.
Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child's mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child/ren.
Some examples of care include:
·having major daily responsibility for caring for the child/ren and making the major decisions (i.e. decisions relating to immediate health issues, school attendance, transport, etc.),
·bearing the costs of the child/ren's daily care,
·looking after the child/ren's daily needs (i.e. food, accommodation, clothing, hygiene, medical expenses, etc.),
·making arrangements for the daily needs and appointments for the child/ren (i.e. appointments at school or with doctors or dentists and accompanying them on those appointments), and/or
·being the main person for the day care, school, or college to contact in emergencies.
When assessing levels of 'care' consideration of the full circumstances of each case must be taken into account to decide whether care remains with a parent, is shared with others, or is not present.
18. There are provisions in the Guide that offer assistance in determining whether a child is an FTB child where care for a child is shared. In these cases the pattern of care and the level of care are relevant. However, the applicant takes the position that these provisions are not relevant in his case where he is a member of a couple.
19. After reviewing the evidence before me I have concluded that the son of the applicant cannot be said to be “in the adult’s care” in the sense contemplated by s 22(2)(b) of the Act. The son resides in the Philippines, where he is cared for by his mother. The applicant has no legal entitlement to reside in that country and can only visit that country under a tourist visa. In the particular circumstances of the case the applicant is unable to marry the mother of his son and, for that reason, may be unable to obtain a permanent visa. When the applicant has the opportunity to live with his son on a temporary basis I have no doubt that he attends to the needs of his son. However, I do not think that these transitory arrangements are what is contemplated by s 22(2)(b) of the Act.
20. Another matter that the applicant is required to show is that he is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual, as required by s 22(5)(a) of the Act. I am required to have regard to s 22(5)(a) by s 22(2)(d) of the Act. On the evidence before me I am not satisfied that the applicant has legal responsibility for the day-to-care care, welfare and development of the child as required by s 22(5)(a) of the Act. Although the child has an Australian passport, the child lives in another country. There is no evidence before me that under the laws of the Philippines the applicant, who is not married to the mother, has a legal responsibility for the day-to-day care, welfare and development of the child.
21. The Secretary also contends that the case of the applicant cannot succeed in this application because of the operation of s 22(2)(c) of the Act. This provision will enable the son of the applicant to be an FTB child of the applicant if the child is an Australian resident, is a special category visa holder residing in Australia or is living with the applicant. An Australian resident is a person who “resides in Australia”.[5] Although the applicant’s son has an Australian passport, the child is not an Australian resident as he lives in the Philippines. The applicant’s son is also not a special category visa holder residing in Australia. Therefore, what remains to be considered is whether the son of the applicant “is living” with the applicant.
[5] Social Security Act 1991 (Cth), s 7(2)(a) (as applied under s 3(1) of the Act).
22. The respondent takes the position that the applicant was not “living” with his son. The applicant submitted that the legislation does not prevent an adult living with a child overseas. However, I do not consider that these temporary arrangements are what is contemplated by s 22(2)(c) of the Act.
23. It is for these reasons that I am unable to find that the child is an FTB child of the applicant under s 22(2)(b) of the Act.
CONCLUSION
24. As I am not satisfied that the child is an FTB child of the applicant, he is unable to satisfy s 36(2)(aa) of the Act. Section 36 imposes the requirement that the child must be an FTB child of the applicant in order to be eligible for baby bonus. As s 36(2)(aa) is not satisfied, the applicant is not eligible for baby bonus.
DECISION
25. I affirm the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: .......................[Sgd]....................................
Research AssociateDate/s of Hearing 10 August 2011
Date of Decision 2 September 2011
Applicant was self-represented
Solicitor for the Respondent Chris Klis, departmental advocate
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