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 one FTB child and the individual is an Australian resident.  There are some other requirements, but they are not relevant in this case.  There is a further provision in subsection (1A) of section 21 but that is also not relevant here.  Section 21(2) then says:

However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.

7.      The relevant Subdivision is Subdivision A of Division 1 in Part 3 of the Act.  The next question is whether Callum is an FTB child.  I have concluded that he is, because of section 22(2) of the Act which provides that an individual is an FTB child of the adult if the individual is aged under 18; the adult is legally responsible for the day-to-day care of the individual; the individual is in the adult’s care; and the individual is an Australian resident. 

8.      All of those provisions are satisfied and therefore Callum is an FTB child.  I then turned to section 24 of the Act which is in Subdivision A to see whether there is any provision which removes Mrs Smith’s eligibility for Family Tax Benefit.  Section 24(4) says:

If an individual leaves Australia, the maximum period for which the individual can be eligible for family tax benefit during that absence from Australia is the period of 3 years beginning on the first day of that absence.

9.      At the relevant time, prior to July 2004 amendments which do not apply in Mrs Smith’s case, two further provisions of section 24, namely, subsections (5) and (6), need to be taken into account.  They provided as follows – in subsection (5):

If:

(a)an individual who has been absent from Australia for more than 26 weeks, but less than 3 years, returns to Australia; and

(b)the individual leaves Australia again less than 26 weeks later;

the individual is taken not to have returned to Australia for the purposes of subsection (4).

10.     Subsection (6) provided:

If:

(a)an individual is eligible for family tax benefit while the individual is absent from Australia; and

(b)the individual then ceases to be eligible for family tax benefit because of the application of subsection (4) or a previous application of this subsection; and

(c)the individual returns to Australia; and

(d)the individual leaves Australia again less than 26 weeks after returning to Australia;

the individual is not eligible for family tax benefit at any time during the absence from Australia referred to in paragraph (d).

11.     This means that when Mrs Smith came back to Australia in May 2002 and then again in December 2002 and December 2003, she is taken not to have returned to Australia because of subsection (5).  Also, when she came back in November 2004 (and left again in January 2005), and then when she came back again in December 2005 (and left in February 2006), because of subsection (6) she continued to be ineligible for Family Tax Benefit because in each case, she was here for less than 26 weeks.

12.     That means that from 22 June 2004, which is three years after her first departure, she was not eligible for the Family Tax Benefit and that means that even though Callum was an FTB child from the time of his birth, Mrs Smith was not eligible for Family Tax Benefit for him. 

13. She did not become eligible for Family Tax Benefit in respect of Callum until she returned permanently to Australia on 8 November 2006, but because that was not within the period of 13 weeks immediately after his birth, Mrs Smith does not satisfy the essential requirement in section 36(2) of the Act.

14.     For these reasons, I conclude that Mrs Smith is not eligible for maternity payment in respect of Callum, and I therefore set aside the decision of the Social Security Appeals Tribunal. 

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member.

Signed:         ....................[SGD].........................................................
  Associate

Date of Hearing  5 September 2008
Date of Decision  5 September 2008
Date of Written Reasons          19 September 2008
Solicitor for the Applicant          Ms J Maclean, Centrelink Legal Services
Respondent represented by her husband, Mr C Smith