"VAD"; Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 1045

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/939

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
  Applicant
           And    'VAD'
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date21 December 2001
PlaceMelbourne

Decision       The decision of the Social Security Appeals Tribunal made on 19 June 2001 is set aside, and in substitution IT IS DECIDED that the decision of the   Authorised Review Officer made on 3 May 2001 be reinstated.
  ......…Sgd. Mr J. Handley..........
  Senior Member
CATCHWORDS
Social Security - Family Tax Benefit - Respondent mother of two children - maintenance not sought from the father - whether reasonable - whether exemption from obtaining child support should be granted - decision of SSAT set aside - original decision reinstated.

REASONS FOR DECISION

21 December 2001 Mr J. Handley, Senior Member

Having completed the hearing and a draft of these reasons I have decided that the unique and confidential circumstances of this application dictate that an order be made pursuant to s.35 of the Administrative Appeals Tribunal Act 1975. The identity of the respondent shall hereafter be known as "VAD". The order pursuant to s.35 will extend to prohibition of publishing the name or divulging the identity of the respondent, her children, the identity of the father of the children and the respondent's domicile. The usual orders with respect to a prohibition upon publication of the evidence heard at the hearing and release of the transcript will also be made exempting of course the Tribunal staff in the course of their employment and members of Auscript.
The applicant applies to review a decision of the Social Security Appeals Tribunal ("SSAT") of 19 June 2001.
This application concerns the rate of Family Tax Benefit (FTB) to the children of the respondent namely M born on 8 June 1998 and B born on 27 October 2001. An authorised review officer of Centrelink decided on 3 May 2001 that FTB payable to the respondent should be reduced because she was "not pursuing reasonable action for Child Support…". (An officer of Centrelink had previously decided that the respondent was exempted from taking action for Child Support only with respect to the eldest child M). The SSAT in its decision decided to set aside the decision under review and found that it was not reasonable for the respondent to take action to obtain maintenance with respect to both children.
legislation
Section 58 of the A New Tax System (Family Assistance) Act 1999 (the Act) provides that the rate of FTB is to be determined by a rate calculator found within Schedule 1 of the Act.
Clause 10 of Part 4 of Schedule 1 of the Act provides that the FTB rate is the "base FTB child rate" if:
(a)The individual or the individual's partner is entitled to claim or apply for maintenance for the child; and
(b)The Secretary considers that it is reasonable for the individual or partner to take action to obtain maintenance; and
(c)The individual or partner does not take action that the Secretary considers reasonable to obtain maintenance

The effect of the decision made by the authorised review officer is to reduce the rate of FTB below the "base FTB child rate".
The facts
At the hearing of the application the respondent gave evidence. The father of the children, Mr S, is not a party to these proceedings and did not give evidence. The respondent is the mother of both of the above children. Both the respondent and Mr S appear on each child's birth certificates as the parents. There is apparently no dispute between the respondent and Mr S as to paternity.
Mr S is married to another person. Both children were conceived during two brief sexual relationships between the respondent and Mr S during a period of time when he was separated from his wife. Mr S is employed as a policeman in suburban Melbourne. The respondent lives with her mother in rented accommodation in country Victoria. She does not earn an income an is solely dependant upon welfare benefits. She also has a child from a previous relationship, N, who is currently ten years of age having been born on 31 October 1991. The respondent does not receive maintenance from the father of N. The whereabouts of his father are unknown.
Mr S does not pay maintenance. His wife does not know that he is the father of M and B. Mr S has apparently indicated to the respondent that he is unable to pay maintenance without his wife learning of his paternity because she observes his payslip or controls the family income and would be aware of monies expended as maintenance. He is apparently not prepared to tell her of his paternity because it would end his marriage. He has also indicated that if he is compelled to pay maintenance he will sever all current ties he has with the children. The respondent has indicated that she does not wish to create tension between Mr S and his wife nor does she wish to see his marriage end. She is also of the belief that he could not afford the cost of maintenance because he is heavily committed to regular mortgage payments over his matrimonial home.
The respondent said that she is content with the current relationship between Mr S and the children. She said that he visits them every three or four weeks when he has a rostered day off or between shifts. He buys toys or birthday presents for the children and has also purchased a football for N. She says that the children are devoted to him, particularly M, who telephones him. The respondent is anxious to preserve the relationship between the children and their father, and is in fear that if Mr S is compelled to pay maintenance he will carry out his threat to have no contact with them. Conversely, if Mr S refuses to have contact with the children or to purchase the presents and toys that he currently provides she would bring maintenance proceedings against him. In those circumstances she said that she did not "care what would happen to his marriage".
The respondent impressed that she was anxious not to enforce maintenance collection against Mr S because when she attempted to obtain maintenance through a Magistrates' Court from the father of N, he disappeared and N was therefore left without any contact with his father.
Conclusion and reasons for decision
The respondent indicated on a number of occasions during the hearing that she was anxious to preserve the relationship between M and B and Mr S and did not wish to bring action which would precipitate him having no contact with the children. It was her belief that if she brought maintenance proceedings he would carry out his threat to sever all contact. Having had that experience previously with the father of N she was content to allow the relationship between the children and Mr S to continue at its present level and not bring proceedings against him for payment of maintenance.
The respondent said she did not wish to precipitate the ending of his marriage (which she believed would occur if he was obliged to pay maintenance by way of law) and was also prepared to encourage the apparent deception by Mr S by not divulging to his wife that he is the father of two children which were conceived during a relationship he had whilst he was married. In fairness, perhaps the stance taken by the respondent is explicable by her fear that preservation of a relationship with Mr S – and thereby him continuing to have a relationship with the children and provide gifts – will only continue if he is not pressed to pay maintenance and if his marriage is preserved.
Nonetheless I am of the view that the decision of the SSAT must be set aside.
It hardly needs reinforcement by law that parents of children have a moral and a financial responsibility for the children. The Child Support (Registration and Collection)Act 1988 provides at Section 3 that the principle objective of that Act is to ensure "that children receive from their parents the financial support that the parents are liable to provide" and "that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis".
The Child Support (Assessment) Act 1989 provides at Section 3 that parents of children have a duty to maintain the children. At subsection (2)(b) the duty "has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or another person that the parent has a duty to maintain". Subsection (2)(c) provides that the duty is not affected by "any entitlement of the child or another person to an income tested pension, allowance or benefit".
Section 4 of this Act provides as its objective that the level of financial support to be provided by a parent is to be determined "according to their capacity to provide financial support" and that the person who provides ongoing daily care "should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings".
The United Nations Convention on the Rights of the Child (to which Australia is a signatory) provides at Article 18 that member countries shall use their best efforts "to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child". Additionally the article provides "the best interest of the child will be their basic concern". Article 27 of the convention provides that member countries shall "recognise the right of every child to an adequate standard of physical, mental, spiritual, moral & social development, that parents have a responsibility within their financial capacity "the conditions of living necessary for the childs development and member countries shall also take "all appropriate measures to secure the recovery of maintenance for the child from the parents ……".
In calculating the "base FTB child rate" clause 10 of schedule 1 of the Act has three elements, all of which must be satisfied. There is little doubt that the respondent "is entitled to claim or apply for maintenance for the child". She of course can make such a claim by virtue of her status as the parent of the children. Additionally her only income is pension or benefit from the applicant.
In order to determine whether "it is reasonable" for the respondent to "take action to obtain maintenance" and in order also to determine whether she has not taken action that the Secretary "considers reasonable to obtain maintenance," the applicant has had recourse to Guidelines which it has published by way of policy. The "exemptions" from the "maintenance action test" (that is the basis upon which an officer of Centrelink might determine that it would be appropriate to grant an exemption from obtaining maintenance and thereby having a continuing entitlement to base FTB child rate) are as follows-

if they fear that if they take action for child support the non resident parent will react violently towards them or their family
where it would be unreasonable to expect them to seek child support because of the harmful or disruptive effect it would have on them or the non resident parent
if the identity of the father of the child or children is not known
if they have had legal advice that paternity could not be proven through a court or have unsuccessfully tried to prove paternity
where the child was conceived through artificial insemination procedures and the mother was neither married or in a marriage like relationship at the time
if there are cultural considerations that adversely impact on the customers capacity to take reasonable action and;
where there are other exceptional circumstances.

This Tribunal is not bound to apply the above policy Guidelines. It is obliged in the exercise of the discretion inherent by clause 10 to complete a review on the merits and by application of the applicable statute. Yet the policy if consistent with the object and purpose of the act will be a useful guide to the Tribunal Member/s in completing the review (refer Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) 1980 2 ALD 634). The policy as recorded above is in my view sound and consistent with the Act. Adopting it as a guide will not delegate or fetter the responsibility of merits review nor will it be a predeterminant of outcome.
With respect to the above Guidelines there is nothing to indicate that Mr S will react violently towards the children or the respondent; his identity is known and his paternity is beyond doubt; neither child was conceived through artificial insemination there are no cultural considerations relevant.
It was put by the respondent that pursuing maintenance against Mr S would be unreasonable because it would have a harmful or destructive effect upon the children because she believed he would carry out his threat not to have contact with them. Additionally she said that there were other exceptional circumstances where it should be considered reasonable for her not to bring maintenance action against Mr S namely that it would be disruptive of his marriage and he would be unable to maintain mortgage payments over his house.
With respect I am not persuaded by these submissions.
There is little doubt that the community - as indeed the law - expects that parents of children have a financial responsibility to ensure that the children are adequately maintained and that the cost of that maintenance is to be determined by the needs of the child and the capacity of the parent to pay. Mr S does have the capacity to pay maintenance on a regular basis. He earns a regular income from his full time occupation. He and his wife both earn and they apparently have a mortgage with respect of a home in which they live. I can conceive no reason why Mr S should be permitted to acquire an asset that he jointly holds with his wife yet not be prepared to pay maintenance on a regular basis reasonably calculated to meet the needs of his children.
It is not hard to imagine that if his wife were to learn that he was the parent of two children that it might be harmful or disruptive to his marriage. But that surely is a matter for Mr S and his wife. He has apparently chosen to promote a deception upon his wife and whilst maintenance should not be payable by him by way of "punishment," his responsibility to two infant children of which he is the father cannot be ignored.
The respondent said that she wanted to preserve the current relationship with Mr S and the children because she wanted Mr S to be a role model for the children. She was also encouraged by the relationship apparently emerging between Mr S and M where she apparently looks forward to his visits and enjoys the telephone conversations that they have. As against that however, Mr S chooses to visit the children when he is able or when it suits and without the knowledge of his wife. He purchases toys and birthday presents but refuses to pay regular maintenance. The laudable preference of the respondent for Mr S to be a role model for the children must in the circumstances be tempered by his relationship with the children being entirely on his terms and at his convenience and apparently without regular financial responsibility.
I am satisfied that it is reasonable for the respondent to take action to obtain maintenance. I am also of the view that the respondent having failed to take "action" to obtain maintenance is not reasonable (refer clause 10). Lest there be any doubt or confusion about what is intended by this review it is not whether Mr S is liable to pay maintenance. That is a matter for another forum. This review concerns the reasonableness of taking of failing to take action to secure payment of maintenance from the non-resident parent. Actually obtaining a payment of maintenance is not relevant. Taking action to obtain it or not taking action to obtain it, which is reasonable in the circumstances, is critical.
The responsibility for payment of maintenance lies principally with the parents. The Australian taxpayer is not responsible to pay the base FTB child rate where a parent does have the financial capacity to make regular maintenance payments. An exemption against claiming child support is not appropriate in the circumstances of this application. If Mr S has no liability he is entitled to make such a submission in another place. It is on this basis that I have also decided not to join Mr S as a party to these proceedings pursuant to s.31 of the Administrative Appeals Tribunal Act. His interests are not affected by this decision. In all of the circumstances I am satisfied that the decision of the SSAT under review should be set aside and the decision of the Authorised Review Officer of Centrelink made on 3 May 2001 should be reinstated.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ......C. Irons ..................................
  Secretary
Date/s of Hearing  5 November 2001
Date of Decision  21 December 2001
Counsel for the Applicant        Ms Rhonda Bradley
Solicitor for the Applicant
Counsel for the Respondent    unrepresented
Solicitor for the Respondent

[2001] AATA 1045

21 December 2001

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Maintenance

Parental Responsibility

Child Support (Registration and Collection) Act 1988

Child Support (Assessment) Act 1989