Thorpe and Secretary, Department of Family and Community Services and Anor
[2006] AATA 39
•19 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 39
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/981
GENERAL ADMINISTRATIVE DIVISION
) Re SCOTT THORPE Applicant
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
NAOMI HOCHKINS
Second Respondent
DECISION
Tribunal Ms N Isenberg, Member Date19 January 2006
PlaceSydney
Decision The decision of the Social Security Appeals Tribunal is set aside and the matter is remitted to Centrelink with directions that Mr Thorpe was eligible for family tax benefit from 13 October 2004 to 2 December 2004 and to re-calculate Mr Thorpe’s family tax benefit entitlement on that basis.
[Sgd] Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – whether children can be considered FTB children – whether children were removed without consent – whether reasonable steps were taken to return children to father’s custody – decision set aside.
LEGISLATION
A New Tax System (Family Assistance) Act 1999, sections 21, 22, 23, 25 and 59
CASE LAW
Secretary, Department of Social Security v Field (1989) 25 FCR 425
Hayward and Secretary to the Department of Family and Community Services (2002) 71 ALD 370
Lomas and Secretary to the Department of Family and Community Services and Anor (2004) 81 ALD 251
REASONS FOR DECISION
19 January 2006
Ms N Isenberg, Member
DECISION UNDER REVIEW
1. The decision under review by this Tribunal is the decision of the Social Security Appeals Tribunal (“SSAT”) dated 24 June 2005 which reviewed the decision of an Authorised Review Officer (“ARO”) to reject Ms Hochkin’s (the second respondent’s) claim for family tax benefit (“FTB”) on the basis that she was not the legal guardian of and was not legally responsible for the day to day care, welfare and development of the three children who are the subject of this claim. The SSAT set aside the ARO decision and remitted the matter back to Centrelink for reconsideration with directions that Ms Hochkins was eligible for FTB from 13 October 2004 – 2 December 2004 with the amount of her entitlement to be determined by Centrelink.
BACKGROUND
2. On or about 30 August 2004, the relationship between Ms Dawson and Mr Thorpe, the parents of Shania, James and Danny Thorpe (‘the children’) finally broke down after some years. At the time Mr Thorpe was being paid 100 per cent of FTB for his care of the children.
3. On 12 October 2004, Mr Thorpe consented to Shania staying with Ms Hochkins for the following day to play with Ms Hochkins's daughters. On that day James and Danny were collected from school by Mr Trevor Dawson, who is Ms Dawson’s brother and Ms Hochkins’s partner.
4. On 19 October 2004, Ms Dawson filed an affidavit in St James Local Court Family Matters (T3, 19-26) and on 25 October 2004, made a statutory declaration giving her permission for Ms Hochkins and Mr Dawson to take temporary care of the children. (T4, 27-28).
5. On 4 November 2004, Mr Thorpe contacted Centrelink to advise that the children had been taken out of his care without his consent. (T5, 29-33). The following day, Ms Hochkins lodged an FTB claim for the children (T7, 36-49) and on 9 November 2004, lodged a ‘Details of your child’s care arrangements’ form for the children. (T8, 50-57)
6. On 11 November 2004, Centrelink contacted Mr Thorpe regarding the care and control of his children. Mr Thorpe advised of a court hearing on 12 November 2004, and said that he would try to get his children back as they were taken from his care without his consent. (T5, 30). At that hearing an interim residency matter for the children was heard. (T12, 69-77) On the same day, Mr Thorpe contacted Centrelink and advised that the children were staying with Mr Dawson as an interim measure pending the Court outcome. Mr Thorpe advised that he had received legal advice that he could take the children but clarified that he did not wish to upset them further. (T5, 29).
7. On 18 November 2004, Centrelink wrote to Ms Hochkins advising of the rejection of her FTB claim for the children. (T14, 80-81).
8. On 2 December 2004, an interim residency matter for the children was heard by St James Local Court (T25, 115-121) and on 3 December 2004, the three children were returned to the care of Mr Thorpe.
ISSUE BEFORE THE TRIBUNAL
9. The main issues for me to decide are:
a)Whether Danny, James and Shania Thorpe were Mr Thorpe’s ‘FTB children’ during the period 13 October 2004 to 02 December 2004 or alternatively, were they ‘FTB children’ of Ms Hochkins during that period.
b)Whether the children left Mr Thorpe’s care with his consent and if not, whether Mr Thorpe took reasonable steps to regain their care.
LEGISLATIVE FRAMEWORK
10. Section 22 of the A New Tax System (Family Assistance) Act 1999 (“the Act”) sets out the qualification criteria regarding payment of family tax benefit. To receive family tax benefit a child must be a FTB child of a person. Sub-section 22(4) of the Act provides that a child can still be a FTB child of an adult even when that adult does not have the legal responsibility for the day-today care, welfare and development of that child.
“(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.”
11. During the relevant period Ms Dawson and Mr Thorpe had the legal responsibility for the day to day care, welfare and development of the children. Between 13 October 2004 and 2 December 2004 all three children were cared for by Ms Hochkins and Mr Dawson. There was no family law order or registered parenting plan in force in relation to these children until an order was made by Magistrate Mitchell at St James Local Court on 2 December 2004. Accordingly throughout the period 13 October 2004 to 2 December 2004 the children were not in the care of anyone with legal responsibility for them.
12. Ms Hochkins claimed family tax benefit in respect of the three children on the basis that their parents had given consent for the children to be cared for by herself and her partner, Trevor. Ms Dawson gave both oral and written permission for the children to be cared for by Ms Hochkins and Mr Dawson, however Mr Thorpe disputes that he gave his consent to this arrangement.
13. Section 23 of the Act relevantly provides:
“(1) This section applies if:
(a)an individual is an FTB child of another individual (the adult ) under subsection 22(2) or (3) (including that subsection in its application by virtue of subsection 22(7)); 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 the child would have been an FTB child of the adult under subsection 22(2) or (3) (including that subsection in its application by virtue of subsection 22(7)) if the child had not ceased to be in the adult's care.
(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 qualifying period
(5) In this section:
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 or registered 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. “
THE HEARING
14. A hearing was held before me on 2 December 2005 at which Mr Thorpe was self represented. Ms Hochkins was assisted by her partner, Mr Dawson. Centrelink was represented by Ms P Sharma of the Legal Services Branch.
15. Mr Thorpe gave evidence, as did Ms Hochkins and Mr Dawson. Ms Dawson gave evidence by conference telephone.
16. I took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents").
CONSIDERATION OF THE EVIDENCE
17. This is a sad matter. Mr Thorpe and Ms Dawson’s three children were temporarily cared for by Ms Hochkins and Mr Dawson from 13 October 2004 to 2 December 2004. Ms Hochkins asserts that she, and not Mr Thorpe, should receive FTB for the care of the children during that time.
18. There was no dispute that Mr Thorpe and Ms Dawson had legal responsibility for the children during that period and that Mr Thorpe was receiving FTB in relation to them.
19. The matter turns, in accordance with s23 of the Act, on whether the children were taken from Mr Thorpe's care without his consent and of so, whether he took reasonable steps to have returned to his care.
Were the children out of Mr Thorpe’s care without his consent?
20. Mr Thorpe gave detailed evidence that he and Ms Dawson had been in dispute for some time. There were serious allegations by each of them about the other. Their relationship deteriorated badly from August 2004 and Ms Dawson stayed away from their home from late September or early October 2004. One day Mr Thorpe found a window smashed and some of Ms Dawson’s things taken. He was angry and telephoned her. She said she did not have her keys and needed to get in. He told her he did not want her around the kids or him until he had calmed down.
21. Shortly afterwards, on 12 October, Ms Hochkins telephoned Mr Thorpe and asked if Shania could come to her for the following day to play with her daughter. Ms Hochkins said that Ms Dawson had told her she was moving out of her house and that was why she had offered to take Shania for the day.
22. After Shania had been picked up, and before noon, Ms Dawson arrived at the house with a representative from the Department of Housing and four police officers. Ms Dawson said she had arranged this two days beforehand. Mr Thorpe was told that because the property was held in Ms Dawson’s name he had ‘no rights’ and she said he had to leave. He asked where he would go with the kids. She had replied he was not taking them and they were ‘already taken care of’.
23. Mr Thorpe rushed to the school to collect the elder children. When he arrived he was told that Mr Dawson had collected them already. He was particularly annoyed because only a month beforehand he had specifically told the Principal that only he would be collecting the children and if someone else was needed then he would telephone ahead or give written permission.
24. Mr Thorpe went to his parent’s home and he telephoned his lawyer to get an appointment. He described his feelings as being ‘enraged’. Mr Thorpe said that at some stage Ms Dawson told him the plan to take the children from him, with the assistance of her brother and Ms Hochkins had been arranged ‘weeks beforehand’. Ms Dawson however told me there had been no plan for the children to go to her brother’s until Mr Thorpe ‘got hostile’.
25. Mr Dawson came to the parent’s home to see Mr Thorpe. Mr Thorpe said he told Mr Dawson he could not believe he had become involved and that what he had done in taking the kids was ’not right’ and ‘not fair’. He said he had previously respected Mr Dawson. He said Mr Dawson told him he did not agree with what his sister had done and that there was no real answer. He asked why he had not been told what was going on and why he had not given him a ‘heads up’. He said Mr Dawson had not wanted to give him an advantage over his sister. Mr Thorpe said he was ‘playing favourites’, preferring his sister.
26. Mr Thorpe said Mr Dawson gave him an ‘option’ or an ‘ultimatum’; either the kids were going to stay with him and Ms Hochkins or they were going to their mother. Mr Thorpe had especially strong views about the children being with their mother as they did not know her new boyfriend, who, he understood had a drug history and had moved into the house the day he was evicted. Mr Thorpe said he did not consider Mr Dawson to have given him any choice at all. He said he kept saying that he only wanted his kids, and that if he didn’t get them, there would be trouble. He said that Mr Dawson said it was out of his hands.
27. Mr Dawson said that when he told Mr Thorpe the children were either going to be with him and Ms Hochkins or with Ms Dawson, Mr Thorpe had stormed off and said ‘whatever’. Mr Dawson told his sister that Mr Thorpe had agreed to his having the children. Mr Dawson conceded that Mr Thorpe was under extreme stress at the time and that he, Mr Dawson, could probably have managed the whole thing better.
28. Mr Dawson wanted to be ‘a mediator’ until he, Mr Thorpe and Ms Dawson sorted things out, which he and Ms Hochkins thought might be a couple of weeks. As it transpired, Mr Dawson said he had overestimated Mr Thorpe and his sister’s negotiation skills.
29. Mr Dawson said it had been his idea to take the children and had suggested that course to his sister because he knew she did not want ‘a ruckus’ in front of the kids. Ms Dawson said she only wanted her brother to take the children if Mr Thorpe agreed. This is somewhat inconsistent with her direction to Mr Dawson to collect the elder children from school, apparently arranged in advance of Mr Thorpe’s eviction.
30. Ms Hochkins said that she only found out all the kids were coming ‘for the weekend’ when Mr Dawson delivered the elder children to her after he collected them from their school. This was somewhat inconsistent with her evidence in cross-examination that she knew of Ms Dawson’s plan to remove Mr Thorpe from the home two days beforehand. She agreed she did not think it was the right way to have gone about things but was concerned that the children might see their father evicted by the police. This is also inconsistent in that the two elder children were at school at the time of the eviction.
31. I find that the children were taken from Mr Thorpe without his consent. Ms Hochkins, by her own evidence, knew of her part in Ms Dawson’s attempt to get control of the children and agreed to deceive Mr Thorpe by asking his permission for Shania to play with her daughter for the day. At the request of his sister Mr Dawson collected the two older children, anticipating, correctly, that Mr Thorpe would immediately try to collect them from school after he was evicted from the family home.
32. On 10 November 2004, Mr Thorpe’s solicitor filed an affidavit in the St James Local Court (T10, 59-67). The account given by Mr Thorpe there is broadly in accordance with his evidence before me. A further affidavit dated 24 February 2005 is also in accord with his account.
33. I do not consider that Mr Thorpe’s conversation with Mr Dawson overcomes the fact that the children were taken from him without his consent. He was tricked into releasing Shania into Ms Hochkins’ care. The elder children were taken out of school without his consent. At no time did Mr Dawson offer to return the children to their father, despite Mr Thorpe’s insistence and obvious distress. His offer only was that he and Ms Hochkins retain them, or they would be returned to their mother.
34. I therefore find that the children were out of Mr Thorpe’s care without his consent.
Did Mr Thorpe take reasonable steps to have the children returned to his care?
35. Mr Thorpe’s evidence was that on the same day the children were taken from him he made an appointment with his solicitor.
36. Mr Thorpe received advice that he was entitled to the children. That night or the next, he went with his parents to Mr Dawson and Ms Hochkins’s home and told them he had come for the children, on the basis of his lawyer’s advice. The police attended (although it is unclear who called them) but, in any event, they were not asked to intervene. Mr Thorpe said the children were crying and calling out to him and holding out their hands to him and said they wanted to go home. At that point he decided not to drag the children into the argument and he did not want a tug-of-war in front of them. He said he told them he loved them and was not going to quit on them and would do anything to get them back.
37. Mr Dawson said that at first the children had been happily playing computer and other games, and there was much cuddling and laughing with their father. He agreed though, that when Mr Thorpe was leaving the situation ‘escalated’ and the children did not want their father to go. The boys got ‘frisky’ and Shania was ‘whimpering’ in the background.
38. Mr Thorpe conceded that Mr Dawson told him he could visit the children at any time but said that that night he was too angry to know what was said.
39. Mr Thorpe went to see his lawyer again. He decided to await the court order rather than distress the children again.
40. It was for that reason that he did not visit the children frequently. He also learned that Ms Dawson and her new boyfriend sometimes stayed with Mr Dawson and Ms Hochkins and he did not want to see them. His way of dealing with that situation would be likely to be hard on the children.
41. Because Shania was not yet of school age she had previously spent all day with her father, so he believed she was the most affected. He phoned the children daily, just to hear their voices.
42. Mr Thorpe has steadfastly maintained that the children were taken from him without his consent. More importantly though, for the present consideration of whether he took reasonable steps to have the children returned to his care, is his oft-stated position that he did not wish to upset the children further.
43. In his affidavit of 10 November 2004 (T10, 59-67) Mr Thorpe stated:
“49 … I didn’t want to upset the children, so I left the children at Trevor’s home and waited for my legal aid application to bring the matter to court.
50 … I wanted to do things the right and legal way. I didn’t want to go against my word or involve the children in the dispute. “
44. On 13 October 2004 he went to Penrith Court house and obtained a referral to a solicitor. He saw a solicitor the following day who made a legal aid application on his behalf on-line that day. After initial rejection his legal aid application was granted on 2 November 2004. Before his solicitor could commence proceedings Ms Dawson had already done so.
45. Mr Thorpe had contact with the children on the weekend of 16 and 17 October 2004, but only after Mr Dawson had made him promise to return the children. He saw them again on the weekend 29 - 31 October.
46. He said in the affidavit:
“61. On each of these weekend visits, I wanted the children to stay with me, but I kept my word and returned the children.
62. I telephoned the children every night at Trevor’s home. I speak to each of the children.”
47. On 9 November 2004 Danny told him he had run away from school. In the affidavit he also said:
“68. I am concerned at why the children are living with Trevor. “
48. On 11 November 2004, when Centrelink contacted him Mr Thorpe advised of a court hearing on 12 November 2004, at which he said he would try to get his children back as they were ‘taken from his care without his consent’. (T5, 30).
49. At that hearing (T12, 69-77), counsel for Mr Thorpe told the presiding magistrate that the children were not living with Mr Dawson and Ms Hochkins with Mr Thorpe’s consent. The presiding magistrate described the ‘stopgap’ arrangement whereby the children live with their aunt and uncle as ‘ridiculous’. He considered the arrangement was ‘really contrary to the interests of the children ...’. Mr Thorpe’s counsel said that the reason his client did not forcibly remove the children was ‘purely because he did not want to distress’ them.
50. Ms Dawson and Mr Thorpe had each sought a residency order but there was insufficient time for the matter to be heard that day. Interim orders were made until the hearing date two weeks hence that the children were to remain with Mr Dawson and Ms Hochkins and that Ms Dawson could see them at her brother’s house during the week and Mr Thorpe could have them on the weekends.
51. On the same day, Mr Thorpe contacted Centrelink and advised them that the children were staying with Mr Dawson as an interim measure pending the court outcome. Mr Thorpe advised that he had received legal advice that he could take the children but again stated that he did not wish to upset them further. (T5, 29).
52. On 2 December 2004, by consent, a further interim residency order for the children was made (T25, 115-121) whereby they were returned to the care of Mr Thorpe the following day. The parents were to have the children on alternate weeks, pending the final hearing in April 2005. At that hearing, again, counsel for Mr Thorpe told the presiding magistrate that the children were not living with Mr Dawson and Ms Hochkins with his client’s consent.
53. I was referred to some relevant cases. In Secretary, Department of Social Security v Field (1989) 25 FCR 425, where it was held that to determine whether a person has a legal responsibility for the day-to-day care, welfare and development of the child is not determined by who has the actual physical care and control but by consideration of those who, as a matter of law, has the responsibility. Such responsibility may flow from a person’s entitlement to custody of a child or, in certain circumstances, from his or her having access.
54. Centrelink’s Guidelines, “The Guide to Family Assistance Law” (2.1.1.20) provides examples of what can be regarded as “reasonable steps” to regain the care of a child and includes legal action. (T35, 154-168) These include applying for a hearing in the ‘Family court’, which for present purposes would include St James Local Court. In Lomas and Secretary to the Department of Family and Community Services and Anor (2004) 81 ALD 251; the Tribunal referred with approval to the Centrelink's Guide in relation to “reasonable steps”:
55. In Hayward and Secretary to the Department of Family and Community Services (2002) 71 ALD 370, the applicant had a court order for some fortnightly contact with his children. The mother, alleging inappropriate behaviour towards the children, terminated contact three weeks before Christmas. The applicant’s solicitor advised against an application to the Court as it would not come on for hearing before the next scheduled court appearance in January. The father continued to attempt to contact the children by telephone. The Tribunal held that this constituted 'reasonable steps'.
56. I have come to the view that in this matter Mr Thorpe took reasonable steps to have his children returned to his care.
57. In coming to this view I accept Mr Thorpe’s evidence that his main concern was to avoid subjecting the children to any further distress. He had seen their reaction, which, ultimately was not disputed, when he visited them on the night of 13 October.
58. Nonetheless, immediately upon their removal from him he had sought legal advice. He said he was given advice that he could retrieve the children but chose not to do so because of the likely effect upon them. I agree with the SSAT’s view (paragraph 49) that Ms Dawson could equally have taken the children into her exclusive care. In those circumstances a fracas in the presence of the children would, in my view, have been highly likely.
59. Mr Dawson only permitted Mr Thorpe to have contact with the children on the weekend of 16 and 17 October 2004 if he promised to return the children. While it may have been his right to seize the opportunity and simply not return them, I accept that to have done so would have most likely provoked a further confrontation with Ms Dawson and her brother and Ms Hochkins which, in all likelihood, would have taken place in the presence of the children. Having regard to his concern about not wanting to distress the children, his decision not to make off with the children is entirely understandable. He had already had one recent confrontation with Ms Dawson which the police had attended and, it appears, the police were called on the night of 13 October 2004. Another visit by the police may have ensued should a further altercation have occurred.
60. On 11 November 2004, he told Centrelink that at the court hearing the following day he would be trying to get his children back. At that hearing his counsel told the presiding magistrate that the children were not living with Mr Dawson and Ms Hochkins with Mr Thorpe’s consent. Further, his counsel said that the only reason Mr Thorpe did not forcibly remove the children was to avoid distressing them. On the same day he repeated that view to Centrelink.
61. On 2 December 2004, his counsel again told the presiding magistrate that the children were not living with Mr Dawson and Ms Hochkins with his client’s consent
62. As I have said, I accept that Mr Thorpe’s concerns for his children limited his options in retrieving his children. In that context, I accept that the steps taken by him for their return were reasonable.
63. As to the position of Mr Dawson and Ms Hochkins, I accept that they had the best interests of the children at heart in offering what they saw as a short term solution to the issue of the disputed care of the children. Unfortunately they did so without Mr Thorpe’s consent. Inevitably too, they ‘sided’ with Ms Dawson. Nevertheless they acted with good intentions in caring for the children and at some expense to themselves. Their kind-heartedness unfortunately has been misplaced.
DECISION
64. The decision of the Social Security Appeals Tribunal is set aside and the matter is remitted to Centrelink with directions that Mr Thorpe was eligible for FTB from 13 October 2004 to 2 December 2004 and to re-calculate Mr Thorpe’s FTB entitlement on that basis.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, MEMBER
Signed:
Niamh Kinchin, AssociateDate/s of Hearing 2 December 2005
Date of Decision 19 January 2006
Representative for the Applicant Self
Representative for the First Respondent Ms. P. Sharma
attachment a
A Family Tax Benefit (Family Assistance) Act 1999
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 has at least 1 FTB child (see section 22 and later provisions); 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.
When individual satisfies this subsection
(1A)An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991, and either of the following applies:
(a) the individual is in Australia; or
(b) the individual:
(i)is temporarily absent from Australia for a period not exceeding 13 weeks; and
(ii)the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.
(2)However, the individual is not eligible for family tax benefit if another provision of this Subdivision so 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 18
(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.
(3) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b)a family law order or registered parenting plan is in force in relation to the individual; and
(c)under the order or plan, the adult is someone with whom the individual is supposed to live or someone with whom the individual is supposed to have contact; and
(d) the individual is in the adult’s care; and
(e)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
(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.
Individual aged 18‑20
(5) The individual is an FTB child of the adult if:
(a) the individual has turned 18 but is aged under 21; 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.
Individual aged 21‑24 undertaking full‑time study
(6) The individual is an FTB child of the adult if:
(a) the individual has turned 21 but is aged under 25; 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 individual is undertaking full‑time study.
(7) 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 under subsection (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)subsection 25(1), (1A) or (1B) does not require that the child be taken not to be an FTB child of that individual for any part of that period;
the child is to be 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.
25 Effect of FTB child being in individual’s care for less then 30% of a period
(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
(bone 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.
(1A) If:
(a)the Secretary is satisfied that 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 not less than 10%, but less than 30%, of that period; and
(d)that last‑mentioned individual, by written declaration given to the Secretary, waives the individual’s eligibility for family tax benefit in respect of the child for some or all of the days in that period;
the child is to be taken, despite that subsection, not to be an FTB child of the last‑mentioned individual on any day covered by the declaration.
(1B) If:
(a)the Secretary is satisfied that 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)the Secretary is satisfied that, if one of those other individuals was to make 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, the Secretary would be satisfied that the child would have been, or would be, in the care of that individual for not less than 10%, but less than 30%, of that period; and
(c)that last‑mentioned individual, by written declaration given to the Secretary, waives the individual’s eligibility for family tax benefit in respect of the child for some or all of the days in that period;
the child is to be taken, despite that subsection, not to be an FTB child of the last‑mentioned individual on any day covered by the declaration.
(1C)If an individual has given the Secretary a written declaration under subsection (1A) or (1B), the individual may, by further notice in writing given to the Secretary, revoke the declaration with effect from a specified day, not being a day earlier than the date of the revocation.
(1D)A written declaration referred to in subsection (1A) or (1B), or a revocation of such a declaration, must be made in a form and manner required by the Secretary.
(2)For the purposes of this section, a child cannot be in the care of more than one of the other individuals referred to in subsection (1), (1A) or (1B) on any particular day.
(3)For the purposes of this section, the Secretary must determine which of the other individuals referred to in subsection (1), (1A) or (1B) has the care of the child on any given day having regard to the living arrangements of the child.
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29Eligibility for family tax benefit of separated members of a couple for period before separation
If the Secretary is satisfied that:
(a) 2 individuals are not members of the same couple (person A and person B); and
(b)during a period in the past when person A and person B were members of the same couple, they had an FTB child or children; and
(c)but for subsection 26(1), person A and person B would both be eligible for family tax benefit for the FTB child or children for that period;
the Secretary may:
(d)determine that person A and person B are both eligible for family tax benefit for the child or children for that period; and
(e)determine person A’s and person B’s percentage of the family tax benefit for the child or children for that period.
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59Secretary may make determination where individual is FTB child of 2 people who are not members of the same couple
(1) If the Secretary is satisfied that:
(a) an individual is an FTB child of an individual (person A); and
(b) the FTB child is also an FTB child of another individual who is not person A’s partner;
the Secretary may determine the percentage that is to be person A’s percentage of family tax benefit for the child.
(2)If the FTB child is one of 3 or more FTB children who were born during the same multiple birth, the Secretary may specify in the determination under subsection (1) the manner in which multiple birth allowance under Division 2 of Part 5 of Schedule 1 is to be dealt with.
(3)Without limiting subsection (2), the Secretary may specify that the whole of the multiple birth allowance is to be paid to one of the 2 individuals involved.
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