Tadros and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor
[2011] AATA 756
•27 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 756
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1555
GENERAL ADMINISTRATIVE DIVISION ) Re VIOLA TADROS Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
JOSEPH TADROS
Other Party
DECISION
Tribunal Ms G Ettinger, Senior Member Date27 October 2011
PlaceSydney
Decision The Tribunal affirms the decision under review. ...................[sgd]...........................
Ms G Ettinger
Senior Member
CATCHWORDS
SOCIAL SECURITY – benefits – family tax benefit – whether FTB child ceased to be in individual’s care without consent – whether adult took reasonable action to have the child again in the adult’s care – decision under review affirmed
A New Tax System (Family Assistance) Act 1999 (Cth)ss 21, 22, 23, 59
Waters and Ors v Public Transport Corporation (1991) 173 CLR 349
REASONS FOR DECISION
27 October 2011 Ms G Ettinger, Senior Member SUMMARY
1. Mrs Viola Tadros has appealed the decision of the Social Security Appeals Tribunal (the SSAT) made on 14 March 2011 in which Mr Joseph Tadros was the Applicant, and she, the Added Party. The SSAT set aside the decision of the Authorised Review Officer of Centrelink, and held that Ms S, the child subject of the dispute concerning Family Tax Benefit (FTB), was the FTB child of Mr Tadros from 13 January 2010.
2. Mr and Mrs Tadros represented themselves at the Tribunal, and as access to certain documents had been restricted pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, Mr and Mrs Tadros had access to a common set of documents which the Tribunal identified as Exhibit R1, and some additional T-documents. The documents restricted to Mrs Tadros were identified as Exhibit R2, and the documents restricted to Mr Tadros were identified as Exhibit R3. Other documents which I have taken into account in coming to a decision were tendered by the parties during the hearing.
3. I am satisfied that the decision the SSAT made is in fact the correct decision, and after taking into account all the evidence and submissions, I have affirmed it. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
4. The issues before the Tribunal were:
·whether Ms S was a FTB child of Mr Tadros from 13 January 2010;
·whether Ms S left the care of Mrs Tadros without her consent;
·whether the Applicant took reasonable action in order to secure Ms S’s return to her care.
RELEVANT LEGISLATION
5. The relevant law is contained in the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act).
6. Qualification for FTB is determined by reference to the Family Assistance Act, and relevantly for purposes of this matter, in sections 21, 22 and 23. There is no dispute that Ms S is a FTB child.
7. Section 21 of the Family Assistance Act, prescribes what is required to be eligible for FTB:
21 When an individual is eligible for family tax benefit in normal circumstances
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i) has at least one FTB child; or
(ii) is not an absent overseas recipient and has at least one regular care child who is also a rent assistance child; and
(b) the individual:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); and
(c) the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.
...
8. Section 22(5) describes the circumstances in which the adult is legally responsible for the care of a child, and includes where an adult is legally responsible (whether alone or jointly with someone else) for the day to day care, welfare and development of the individual.
9. Section 23 concerns the effect of an FTB child ceasing to be in an individual’s care, and provides for a child to remain an FTB child of an individual for a qualifying period despite the child ceasing to be in the adult’s care if an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and the adult takes reasonable steps to have the child again in the adult’s care.
23 Effect of FTB child ceasing to be in individual’s care without consent
(1) This section applies if:
(a) an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3); and
(aa) the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph 22(5)(a) or (b); and
(b) an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and
(c) the adult takes reasonable steps to have the child again in the adult’s care.
When the child remains an FTB child of the adult
(2) The child is an FTB child of the adult for that part of the qualifying period (see subsection (5)) for which:
(a) the child would have been an FTB child of the adult under subsection 22(2) or (3) if the child had not ceased to be in the adult’s care; and
(b) the circumstances surrounding legal responsibility for the care of the child are those mentioned in paragraph 22(5)(a) or (b).
(3) The reference, in paragraphs (1)(a) and (2)(a), to an FTB child of an individual or adult under subsection 22(2) or (3) includes a reference to:
(a) a child who is an FTB child under subsection 22(2) or (3) in its application by virtue of subsection 22(7); and
(b) a child who is an FTB child under subsection 22(2) or (3), but who is taken not to be an FTB child under section 25.
Note:As a result of subsection (2) of this section, a child who is taken not to be an FTB child under section 25, but who is a regular care child, will remain a regular care child for the part of the qualifying period referred to in subsection (2) of this section.
(4) Except as provided in subsection (2), the child cannot (in spite of section 22) be an FTB child of any individual during the qualifying period.
Definition of parent and qualifying period
(5) In this section:
parent includes a relationship parent.
qualifying period means the period beginning when the child ceases to be in the adult’s care and ending at the earliest of the following times:
(a) if the child again comes into the adult’s care at a later time—that later time;
(b) after 14 weeks pass since the child ceased to be in the adult’s care;
(c) if:
(i) the adult is a parent of the child; and
(ii) no family law order, registered parenting plan or parenting plan is in force in relation to the child; and
(iii) the child comes into the care of the other parent at a later time;
that later time.
…
10. Section 59 of the FamilyAssistance Act allows for the payment of FTB to be shared where more than one adult has care of an FTB child in a pattern of care for at least 35% of the time. That does not apply in this case because I am satisfied that there was no shared care in the relevant period.
BACKGROUND
11. Mrs Tadros and Mr Tadros are the parents of Ms S, who was approximately 12 years old at the relevant date, 13 January 2010. She is one of three siblings, and the subject of the present FTB dispute. Master G was approximately 15 years old, and Master M, was 11 years old at the relevant date in 2010. Only Ms S is the subject of this dispute. It appears that after several separations and reunions, Mr and Mrs Tadros who had been married since 1992, divorced in 2006. It seems that the relationship between the parents of those children was very fraught.
12. On 5 December 2008, the Federal Magistrates Court ordered that Master G, the oldest child live with his father, and that Ms S and Master M live with Mrs Tadros, and spend time with their father as agreed by the parties or pending further orders. The matter was adjourned for further hearings the following year.
13. Mr Tadros said in evidence that Mrs Tadros was a very nice person, and had tried to help the children as much as she could. His interpretation of her actions was that her personal problems had affected her judgment, although he hastened to say that she would never intentionally hurt the children. Mrs Tadros on the other hand, thinks Mr Tadros is manipulative of the children, and has influenced them because he has more financial resources with which he can attract them.
EVIDENCE AND CONSIDERATIONS
Whether Ms S left the care of Mrs Tadros without her consent
14. The event which has triggered the present FTB dispute is that after spending time with their father during the 2009 end of year school holidays, Ms S and Master M returned home to Mrs Tadros on 11 January 2010. Her evidence was that she had been moving house, and things were hectic. She said that that night Ms S told her that she wanted to live with her father (Exhibit A4).
15. Mrs Tadros’ evidence was that the following day, 12 January 2010, she had returned from the place from which she was moving, and found Ms S and Master M talking about moving in with their father. At Exhibit A4, she recounts the conversation which took place:
I said: S … , I need to know now, where do you want to be.
She said: I want to go live with dad.
I said: Fine, call dad and get him to pick you up right now.
16. In her oral evidence Mrs Tadros said that she was very worried about Ms S going to her father’s, because she felt that he had put pressure on the children to live with him when they went to visit him. She said that was what happened with Master G, and that he did not return to her. Mrs Tadros said at the Tribunal in regard to the conversation I have reproduced above, that she had a fit – lost it – I said if you want to go, go – I didn’t mean it. She said that she was in a state of shock, and did not agree to Ms S leaving at all.
17. Mrs Tadros said that after Ms S left, she cried her eyes out, and also called her solicitor for advice. She says that his advice was to await the court date on 15 January 2010 because nothing could be done before that date. Mrs Tadros said that her solicitor advised her to contact Ms S, but that she was afraid to do so, because she did not want to cause trouble. She said that things later happened at court which were not in her control.
18. On 15 January 2010, Mr and Mrs Tadros attended a further Court proceeding where neither was legally represented. Mrs Tadros’ solicitor was on annual leave. The hearing was adjourned to May 2010. The Applicant did not request a recovery order for Ms S on 15 January 2010. She said she had been advised by her solicitor not to on this occasion in order not to appear to be a problem. She said that in any case she did not know about such orders.
19. Then on 4 February 2010, both parties attended a Family Court proceeding. The Applicant was legally represented. However again no recovery order was requested, and Ms S continued to reside with her father. On 12 August 2010, the Federal Magistrates Court ordered that Ms S live with her father.
20. Mrs Tadros told me that she had a lot of pressures over Christmas 2009, and in early 2010. She said that there were logistic problems, problems of coping with Ms S, moving house, her health, her studies, knowing that Mr Tadros wanted the children, and financial problems. However, she said that the children were always her main concern, that she did not have a new partner so that she was not distracted in that sense, that she did her study, and that she underwent counselling. She spoke about the financial advantage Mr Tadros has (how he stopped paying child support to her), and the effect on the children. She acknowledged they could attend private school if they lived with Mr Tadros, could each have his or her own room, and they could have mobile phones. She said that she was quite prepared to get a job in order to pay for the private schooling.
21. Mr Tadros told me that the bigger accommodation and private schools were by no means by way of bribes to entice the children to him, but to assist with Master G’s problems at school.
22. Ultimately Mrs Tadros agreed, and I am satisfied from the evidence that Ms S left the care of the Applicant and went to live with Mr Tadros on 12 January 2010 after an argument, and a challenge made by the Applicant, that she do so.
23. I am satisfied that Ms S ultimately left her mother with the mother’s consent, (albeit disappointment), and, for purposes of this application, and the relevant legislation, was not in her care for at least the period 13 January 2010 to 21 April 2010.
Whether the Applicant took reasonable action in order to secure Ms S’s return to her care
24. I accept Mrs Tadros’ evidence that after Ms S left to live with her father, she was very upset. Section 23 of the Family Assistance Act addresses the effect of an FTB child ceasing to be in an individual’s care without consent.
25. Accordingly I needed to consider whether Mrs Tadros took reasonable steps to secure Ms S’s return to her. I have noted that reasonable is not defined in the legislation, and has been held to mean reasonable in all the circumstances of the case (Waters and Ors v Public Transport Corporation (1991) 173 CLR 349).
26. I noted also that that there was an amount of conflict of evidence regarding how many telephone calls, emails or SMS messages were left for Ms S, and how many times there were responses. Mrs Tadros has produced her recollections regarding these for the period 11 January 2010 to 26 March 2010 at Exhibit A4.
27. I am also mindful of Mr Tadros’ evidence that on 13 January 2010 Mrs Tadros rang Ms S’s school where Ms S was commencing high school, and cancelled her uniforms and asked for the fees which had been paid to be refunded to her. I have heard both sides on the school fees, and there appears to have been confusion about which parent was paying the fees. In that regard, I also noted at paragraph 35 of T24/102, the Family Report of the Federal Magistrates Court dated 10 May 2010, that Ms S told the author of the report that her mother had cancelled her books and uniforms for year 7.
28. On 1 February 2010, the first day of school, Mrs Tadros went to Ms S’s school to see her in the morning. She gave evidence that the child told her she was having a hard time, and that the mother’s presence at the school was embarrassing. Mrs Tadros said Ms S told her that she wanted to be with her friends. In the afternoon of the same day, Mrs Tadros again attended at the school, and wanted Ms S to talk to her, and to get into the car with her, whereupon the child pulled away. Mr Tadros gave evidence that Ms S suffered bruising on her forearm as a result.
29. I am satisfied that Mrs Tadros attempted to contact Ms S on several occasions after she left her home on 12 January 2010. I note also that Mrs Tadros was involved in court action over a period of time, and can be taken to have been aware of her rights and responsibilities. She appears to have relied on legal advice at least once, for the 15 January 2010 hearing, (which her solicitor did not attend because he was on annual leave), (Exhibit A4), not to lodge a recovery order at that time. I am satisfied that she did not appear to have further pursued that avenue, as she did not apply for a recovery order on the next Court occasion, 4 February 2010, or at any other time. I note by way of completeness that Mrs Tadros has a first tertiary degree, and was undertaking a law degree at the time. I am satisfied that she could have sought further information and/or legal advice regarding recovery orders or other suitable action towards the return of Ms S to her.
30. The Family Assistance Guide (the Guide) is relevant to this review. Policy in the Guide at 2.1.1.70 provides examples of what may constitute reasonable action in a case such as the present:
2.1.1.70 Disputed Care Arrangements
…
Taking reasonable action to ensure compliance with care arrangement
To be paid FTB during an interim period of up to 14 weeks, the person must take reasonable action to ensure compliance with the care arrangement. Reasonable action could include:
·negotiating with the other party in a genuine attempt to ensure compliance with a written agreement, or
·making and/or attending an appointment at a Family Relationships Centre (FRC) or similar dispute resolution service with the aim of ensuring the care arrangement is adhered to, or
·obtaining or seeking legal advice regarding the making of a court order, or
·filing an application to a Court to have an order made or enforced, or
·attending a hearing at Court to seek an order to be made or enforced, or
·notifying the police that the child has been taken without consent.
31. As to the above guide, Mrs Tadros agreed when asked that she did not agree to mediation with Unifam. Her reason is that she does not trust Mr Tadros, whom she felt had been manipulating the children. She felt that following a mediation, her interests had been compromised. I had no evidence before me that Mrs Tadros attempted to arrange mediation or other discussions with another organisation or directly with Mr Tadros regarding the return of Ms S. I accept that Mrs Tadros made limited attempts to speak to or email Ms S, but that these attempts were of short duration, and unsuccessful.
32. I am mindful Mrs Tadros refused to engage in mediation with Unifam, did not approach any Court to make a recovery order for Ms S, and made errors of judgment such as cancelling Ms S’s school arrangements which escalated the conflict rather than being conciliatory. On considering the above reproduced policy, paragraph 2.1.1.70, I find that I do not have evidence of Mrs Tadros engaging positively in any of the activity commented upon in the dot points.
33. I am not satisfied that Mrs Tadros can be found to have taken reasonable steps during the relevant period to try and facilitate the return of Ms S to her.
Whether Ms S was a family tax benefit child of Mr Tadros from 13 January 2010
34. In considering whether Ms S was an FTB child of Mr Tadros from 13 January 2010, I have already found in the paragraphs above that Mrs Tadros allowed, and indeed invited Ms S to go and live with her father after a disagreement they had on 11 and 12 January 2010. Accordingly I am satisfied that Ms S did not leave the care of Mrs Tadros without her consent.
35. I have also found that Mrs Tadros cannot be held to have taken reasonable steps during the relevant period to try and facilitate the return of Ms S to her.
36. For purposes of this application, and in consideration of section 22 of the Family Assistance Act, I am satisfied that Mrs Tadros had no care of Ms S from 13 January 2010 to 21 April 2010.
37. There is no suggestion that the caring responsibilities were shared between the Applicant and the Added Party after 13 January 2010. As such, section 59 of the Family Assistance Act does not apply.
38. Section 21 of the Family Assistance Act, prescribes what is required to be eligible for FTB.
39. Section 22(2) defines who is an FTB child for an individual under the age of 16 years. Relevantly, section 22(2)(d) states, the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
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.
…
40. Section 22(5) describes the circumstances in which the adult is legally responsible (whether alone or jointly with someone else) for the day to day care, welfare and development of the individual. Pursuant to sections 23(1)(b) and (c) the remainder of section 23 applies if (b) an event occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care; and (c) the adult takes reasonable steps to have the child again in the adult’s care. I have already found above, that Mrs Tadros cannot be held to have taken reasonable steps to have Ms S return to her.
41. There is no dispute that Mrs Tadros and Mr Tadros were both legally responsible for Ms S. However, I am satisfied that on 13 January 2010 there was a change in care for Ms S, in that the full care for her passed to Mr Tadros on that date.
42. Accordingly I am satisfied that pursuant to section 22 of the Family Assistance Act, Ms S was the FTB child of Mr Tadros from 13 January 2010.
CONCLUSIONS
43. I am satisfied that Ms S left the Applicant’s care with her consent, and continued to live in the care of her father for 100 percent of the time from 13 January 2010.
44. I am not satisfied that Mrs Tadros can be found to have taken reasonable steps to try and facilitate the return of Ms S to her during the relevant period.
45. I am satisfied that the change of care for Ms S occurred on 13 January 2010 and that she remained in the care of Mr Tadros, and was his FTB child from that date.
DECISION
46. The Tribunal affirms the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ..............[sgd].................................................................
AssociateDate of Hearing 10 October 2011
Date of Decision 27 October 2011
The Applicant Mrs Viola Tadros, self-representedAdvocate for the Respondent Ms Biljana Salaji
The Other Party Mr Joseph Tadros, self-represented
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