Smith; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 839

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 839

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1482

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And KATHERINE SMITH

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date of Decision  5 September 2008

Date of Written Reasons       19 September 2008

Place  Wollongong

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal sets aside the decision of the Social Security Appeals Tribunal and decides instead that Mrs Smith is not eligible for the maternity payment in respect of her son Callum.

.................[SGD]...................

Mr S E Frost
  Member

CATCHWORDS

SOCIAL SECURITY – maternity payment (baby bonus) – eligibility for family tax benefit – absence from Australia – absence greater than 3 years – respondent not eligible for family tax benefit – respondent not eligible for maternity payment although child an FTB child – decision set aside

A New Tax System (Family Assistance) Act 1999 – s 21, 22, 24, 36

REASONS FOR DECISION

19 September 2008 Mr S E Frost, Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and my reasons were stated orally.  The parties, pursuant to subsection 43(2A) of the Administrative Appeals Act 1975, have requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision were transcribed by Auscript, the Commonwealth Reporting Service.  What follow are the reasons as transcribed, corrected where necessary for obvious errors.

3.      The Tribunal’s formal decision is to set aside the decision of the Social Security Appeals Tribunal and to substitute a decision that Mrs Smith is not eligible for the maternity payment in respect of her son Callum. 

4.      Mrs Smith applied for maternity payment in respect of her son, Callum, shortly after her return to Australia in November 2006.  Callum had been born in Switzerland on 12 May 2006.  Mrs Smith had been in Switzerland since June 2001 when she first went there to join her husband who was working there at the time and continued to work there over the intervening five and a half years.

5. Mrs Smith returned to Australia several times, but on each occasion she was in Australia for less than 26 weeks. Her eligibility for maternity payment depends on whether she was eligible for Family Tax Benefit in respect of Callum at any time within the period of 13 weeks after Callum’s birth. That is set out in section 36(2) of the A New Tax System (Family Assistance) Act 1999.  That provision itself leads to an examination of the question of her eligibility for Family Tax Benefit. 

6.      The rules for eligibility for Family Tax Benefit are set out in section 21 of the Act.  Section 21(1) says that an individual is eligible for Family Tax Benefit if the individual has at least…