Sorry and Secretary, Department of Families, Community Services and Indigenous Affairs
[2008] AATA 217
•19 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 217
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0505
GENERAL ADMINISTRATIVE DIVISION )
Re MORY SORRY Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES and INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date19 March 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
......................[Sgd]........................
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances– maternity payment – mother an involuntary mental patient in hospital at time of birth - child housed in special baby nursery at hospital – mother housed in separate secure ward – mother accompanied by and supervised by nursing staff during feeding sessions – child not in care of mother during that time – child not an FTB child – mother not eligible for maternity payment – decision affirmed.
A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 25, 36
Family Law Act 1975 (Cth) ss 61B, 61C
Mental Health Act 2000 (Qld)
Child Protection Act 1999 (Qld) s 12Wade v Secretary, Department of Community Services [2004] FCA 1660
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82.REASONS FOR DECISION
19 March 2008 Mr RG Kenny, Member Background
1. Mory Sorry gave birth to her son, Dian, on 19 December 2005. On 3 January 2006, she claimed maternity payment (now known as baby bonus), a form of financial support payable under the New Tax System (Family Assistance) Act 1999 (the FA Act). Her claim was rejected by a Centrelink delegate on 30 January 2006. That decision was affirmed by an authorised review officer with Centrelink on 1 March 2006 and, in turn, by the Social Security Appeals Tribunal on 25 January 2007. Ms Sorry now seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Issues and Legislation
2. Pursuant to ss 36(1) and 36(2) of the FA Act, Ms Sorry will be eligible for maternity payment if she is eligible for family tax benefit (FTB) at any time within the period of 13 weeks starting from the day of Dian’s birth. She will meet that requirement if, under s 21(1) of the FA Act, she has an FTB child. Dian is an FTB child if the requirements of s 22 of the FA Act are met. In so far as potentially relevant, s 22 of the FA Act reads:
22.(2) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; and
(c) the individual is in the adult's care; and(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
22.(4) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b) the individual is in the adult's care; and
(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; and(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
3. The first matter for consideration is whether either of those provisions is satisfied. In particular, the issue is whether Dian was “in Ms Sorry’s care” at any time in the period of 13 weeks after Dian’s birth. If he was, consideration must then be given to s 25 of the FA Act which, in nominated circumstances, removes Dian’s FTB status. It reads:
25.(1) If:
(a) the Secretary is satisfied there has been, or will be, a pattern of care for an individual (the child) over a period such that, for the whole, or for parts (including different parts), of the period, the child was, or will be, an FTB child of more than one other individual in accordance with subsection 22(2), (3), (4), (5) or (6); and
(b) one of those other individuals makes, or has made, a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in that period; and
(c) the Secretary is satisfied that the child was, or will be, in the care of that last‑mentioned individual for less than 10% of that period;
the child is to be taken, despite that subsection, not to be an FTB child of that last‑mentioned individual for any part of that period.
Evidence
4. The material facts in this matter are not in dispute. Documents in evidence show that Ms Sorry has spent periods of time since 1992 in various hospitals in New South Wales and Queensland as an involuntary patient. She suffers from chronic schizophrenia and substance abuse. In accordance with the Mental Health Act 2000 (Qld), she was admitted to Nambour Hospital on 23 November 2005 and remained as an involuntary patient until 3 January 2006 where she was treated for a drug induced psychosis. During that time, successive treatment plans were completed requiring her hospitalisation in a secure ward and not permitting her to leave the hospital or visit Dian on her own. Dian was in the special baby nursery at the hospital until 29 December 2005. Ms Sorry, escorted by nursing staff, attended the nursery several times each day. There, she breast-fed Dian, bathed him, changed his clothing and remained with him for a period of approximately 90 minutes on each visit and then returned to the secure ward. Ms Sorry understood that nursing staff observed Dian and attended to his needs, such as changing his clothes, when she was not there.
5. On 22 December 2005, the Maroochydore Children’s Court made an assessment order under the Child Protection Act 1999 (Qld) (the CP Act). This granted temporary custody of Dian to the Chief Executive of the Department of Child Safety (the department) and ordered that Ms Sorry was not to have contact with Dian other than with a person nominated by the department. Dian was discharged from hospital on 29 December 2005 and placed in the care of foster parents. He remains in that situation. Since Dian’s discharge, further Children’s Court orders have directed that Ms Sorry have supervised contact with him no less often than 3 times per week. Ms Sorry’s evidence was that she has continued to maintain those contact arrangements.
Submissions
For the applicant
6. Mr Cranitch submitted that Ms Sorry met the requirements of s 22(4) of the FA Act in the 10 days between Dian’s birth and his discharge from the hospital on 29 December 2005. He acknowledged that legal responsibility for Dian had vested in the Chief Executive of the department from 22 December 2005 but submitted that the measures taken by Ms Sorry in feeding and attending to Dian during the 10 days were sufficient for him to have been “in her care” during that time. Mr Cranitch submitted that, in accordance with Wade v Secretary, Department of Community Services[1], the test was whether Ms Sorry had actual care of Dian and not whether she had a right to care for him. He acknowledged that there were restrictions imposed by the need for Ms Sorry to return to the secure ward after each occasion she attended to Dian’s needs, but submitted that this did not prevent her from meeting most of his basic needs during those 10 days. He referred to her giving consent to Dian being immunised by injection and to her monitoring of visitors to him. He also referred to the willingness of nursing staff to allow Ms Sorry to continue the arrangement throughout the 10 days and submitted that this supported his contention that there was no threat to Dian or any shortfall in Ms Sorry’s capacity to provide care for him.
[1] [2004] FCA 1660, [30].
7. Mr Cranitch submitted that there is a distinction between a maternity payment claim for a past period and one for a payment by instalments. He submitted that Ms Sorry’s claim, lodged on 3 January 2006, was for both past and instalment payments. The former was for the 10 day period in hospital when Ms Sorry had the care of Dian and he submitted that Dian was an FTB child of Ms Sorry during that period. He conceded that she had no entitlement for the latter form of maternity payment as he was an FTB child of the foster parents from 29 December 2005.
8. Mr Cranitch submitted that the care given by Ms Sorry to Dian in the period from his birth on 19 December 2005 until the date of her claim for maternity payment on 3 January 2006 amounted to a fraction greater than 10% and that, therefore, her claim was not defeated by the terms of s 25 of the FA Act.
For the respondent
9. Mr Black submitted that, while Ms Sorry provided some care for Dian, it could not be said that he was “in her care” during the 10 days before he left the hospital. He conceded that there was a difference between the arrangements in the first three days and those of the remaining 7 days of the period before he left the hospital. However, he submitted that such a short period of three days was not sufficient to amount to Dian being in Ms Sorry’s care and that a longer period, demonstrating a pattern of care was required. Further, he submitted that Ms Sorry’s mental state was such that she was not capable of providing full care for her son and, as she was on an involuntary treatment order, she was subject to the directions of hospital staff which included directions in relation to the manner in which she dealt with him.
10. In any event, Mr Black submitted that s 25 of the FA Act operated to defeat Ms Sorry’s claim. He submitted that the relevant “period”, as that term is used in the provision, is the period of a financial year and that the 10% calculation would be based on that annual time-frame.
Consideration
11. In evidence were documents completed by a general medical practitioner and a psychiatrist at the time of Ms Sorry’s admission to Nambour hospital. One of the reasons nominated for the detention was the risk to herself and her then unborn child. Progress notes were completed by nursing staff during her hospitalisation. These provided detailed commentary on each of the occasions that Ms Sorry attended the baby unit. In the main, they comment favourably on her interaction with her baby. The significant level of detail in these reports confirms the presence of and scrutiny by nursing staff at all times when she was with him. That is consistent with the entry, on 20 December 2005, that the baby was “at very high risk” and for the need for “continuous supervision” when she was with him. There is also reference to bottle-feeding by nursing staff and to expressing procedures completed by Ms Sorry for that purpose.
12. The order made by the Maroochydore Magistrates Court on 22 December 2005, under the CP Act was also in evidence. It granted temporary custody of Dian to the Chief Executive of the Department of Child Safety. Pursuant to s 12 of the CP Act, this gave the Chief Executive the right and responsibility to make decisions about Dian’s daily care. The order also declared that Ms Sorry was not to have contact with the child other than in the presence of a person nominated by the department.
13. In the absence of any orders to the contrary, Ms Sorry was legally responsible for the day to day care of Dian from 19 December 2005 until 22 December 2005 when the court order was made. This is the effect of ss 61B and 61C of the Family Law Act 1975 (Cth). Under s 22(2) of the FA Act, Dian will be an FTB child of Ms Sorry if he was in Ms Sorry’s care during that time.
14. After 22 December 2005, the Chief Executive officer of the department was legally responsible for the day to day care of Dian and meets part of the description of the person referred to in s 22(4)(c) of the FA Act. However, apart from precluding unsupervised contact between Ms Sorry and Dian, actual care of Dian was not assumed by the Chief Executive until the fostering arrangement was in place on 29 December 2005. Again, Dian will be an FTB child of Ms Sorry if he was in Ms Sorry’s care during the period from 22 until 29 December 2005.
15. Although the authority cited by Mr Cranitch relates to a statutory scheme different from that which pertains in this matter, I accept his contention that consideration should be given to actual care of Dian rather than the right to care[2]. However, I am reasonably satisfied that, throughout the period from 19 to 29 December 2005, Dian was not in Ms Sorry’s care. In evidence were extracts from the Family Assistance Guide published by the respondent. It provides guidance to those who administer the FA Act. It is well established that the Tribunal, whilst not bound to apply policy guidelines of the kind in the Guide, may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so[3]. In this case, there is no material before the Tribunal to indicate that the Guide should not be applied. It includes, at paragraph 1.1.C.90, the following reference to “care”:
[2] Wade v Secretary, Department of Community Services [2004] FCA 1660, [30].
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
For the purposes of being considered an FTB child, FA legislation refers to being in the care of an adult. Reference is also made to legal responsibility for the day-to-day care, welfare and development of the individual.
Day-to-day care generally includes physical care. Means of support and attention to health are essential to physical well-being. Some examples of day-to-day 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/rens' daily care,
looking after the child/rens' 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.
'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.
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.
16. While that definition extends to children significantly older than Dian, I am reasonably satisfied that it also is relevant to a child of Dian’s age. Ms Sorry provided important elements of care for him in feeding and bathing him and tending to his clothing arrangements. Yet, she did not deal exclusively with these matters as some aspects of them were undertaken by hospital nursing staff. Clearly, Dian was not of an age where major decisions needed to be made for him concerning such matters as schooling although Ms Sorry did give consent to his being immunised. Nevertheless, the only time during which Ms Sorry had access to her son during the 10 days was when she was given access to him by nursing staff. On each of those occasions, her contact with him was closely monitored because of the perceived risk to him if this were not done. At other times, each of them remained in a separate secure section of the hospital. I am reasonably satisfied that, in those circumstances, Dian was in the care of the nursing staff at the Nambour hospital during that time and not in the care of Ms Sorry.
17. Accordingly, Ms Sorry does not meet the requirements of either s 22(2) or 22(4) of the FA Act and Dian was not her FTB child, for the purposes of the FA Act, at any time within the period of 13 weeks starting from the day of Dian’s birth. This means that she was not eligible for FTB at any time and not eligible for maternity payment pursuant to s 36 of the FA Act.
18. Because s 22 of the FA Act is not satisfied, it is not necessary to give consideration to matters raised by the parties in relation to s 25 of the FA Act.
Decision
19.The Tribunal affirms the decision under review.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .....................................................................................
E. Young Research AssociateDate of Hearing: 26 February 2008
Date of Decision: 19 March 2008
Solicitor for the Applicant: Mr P Cranitch from Welfare Rights Centre Inc
Respondent: Mr M Black, Departmental Advocate
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