Hayward and Secretary to the Department of Family and Community Services

[2002] AATA 1241

DECISION AND REASONS FOR DECISION [2002] AATA 1241

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/811
GENERAL ADMINISTRATIVE DIVISION
  Re:         COLIN EDWARD HAYWARD

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent
  And:        MANDY JOY TAYLOR
  Joined Party

DECISION

Tribunal:       G.D. Friedman, Member
Date:             29 November 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to receive 22 per cent of the family tax benefit payments in respect of his four children, at a rate of 22 per cent from 5 December 2001 until the expiry of the qualifying period, 14 weeks, after that date.

(sgd) G.D. Friedman
  Member

1. SOCIAL SECURITY - family tax benefit - suspension of compliance with Family Court Order - whether consent given - whether reasonable steps taken to resume care
   A New Tax System (Family Assistance) Act 1999 ss22(1), (2), (3), (7), 23(1), (2), (4), (5)

REASONS FOR DECISION

29 November 2002  G.D. Friedman, Member

1. This is an application by Colin Edward Hayward (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 June 2002.  In the original decision dated 19 December 2001, Centrelink had decided that Ms Taylor, the mother of the children, would receive 100 per cent of family tax benefit (FTB) and the applicant nil.  On 11 February 2002 an authorised review officer varied the decision and decided that Ms Taylor would receive 78 per cent of the FTB and the applicant 22 per cent, until the expiry of the 14-week qualifying period.  The SSAT decision set aside the decision of the authorised review officer and substituted a decision that Ms Taylor (the applicant to the SSAT) was entitled to be paid 100 per cent of family tax benefit (FTB) and the applicant nil in relation to their four children, from 5 December 2001 to 13 March 2002.

2. At the hearing of this matter on 22 November 2002 the applicant represented himself and Mr M. Todd, a Centrelink advocate, represented the Department of Family and Community Services (the respondent).  Ms Taylor represented herself.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T24), together with one exhibit (Exhibit A1) tendered by the applicant. 
   BACKGROUND

4. Ms Taylor was receiving 78 per cent FTB in respect of the children Brenton Leigh Hayward (born on 1 October 1986), Jacqualine Maree Hayward (born on 8 March 1988), Tara Jade Hayward (born on 5 December 1989) and Becka Emily Hayward (born on 16 June 1993) on the basis of an Order of the Family Court of Australia dated 2 December 1999 (the Family Court Order).  Under that Order the children resided with Ms Taylor, and the applicant exercised contact with the children for 22 per cent of the time.

5. On 5 December 2001, at the Magistrates' Court of Victoria at Bendigo, Ms Taylor suspended the applicant's contact with the children after making allegations of inappropriate behaviour by him towards each of the children.  Following the decision of the authorised review officer, of payment at the rate of 78 per cent for Ms Taylor and 22 per cent for the applicant for a period of 14 weeks, on 10 April 2002 Ms Taylor sought review by the SSAT.  On 25 July 2002 the applicant sought review by the Tribunal.
   EVIDENCE

6. The applicant gave oral evidence by telephone that his solicitor advised him not to attend the Magistrates' Court at Bendigo on 5 December 2001 because, on that day, Ms Taylor's application for amended residence and contact orders would be adjourned to the Family Court in Mildura on 29 January 2002.  This was to be heard with an outstanding application by the applicant for alleged contempt by Ms Taylor of previous court orders.

7. The applicant said that, on 5 December 2001, without his knowledge or consent, Ms Taylor suspended her compliance with the Family Court Order on the basis that the children had genuine and real fears about their safety and welfare if they were in contact with the applicant.  She refused to allow him to have further face-to-face contact with the children.  He said that at no time did he give instructions to his solicitor's agent to consent to such action, and he only became aware of the matter when his solicitor received a letter, dated 6 December 2001, outlining allegations of abuse towards the children.  He noted that the letter contained no reference to any consent by the applicant's representative.

8. In response to the action by Ms Taylor, the applicant said he informed his solicitor who contacted Ms Taylor's solicitor several times and wrote to her on 13 December 2001 (Exhibit A1).  He said that he accepted his solicitor's advice not to make an urgent application to the Family Court, because there was little likelihood that the matter would be heard before the next scheduled Court appearance in January 2002.  He produced telephone records to support his claim that he had made 13 attempts to contact the children between December 2001 and March 2002, and managed to speak to them once or twice, with the remaining calls diverted to an answering service.  The applicant told the Tribunal that the police investigated the allegations made by Ms Taylor, but did not lay any charges against him.  He said that the child protection section of the Department of Human Services did not become involved or contact him at any time, and he had no knowledge of any relevant medical report.  

9. The applicant said that, as a result of the adjournment of Ms Taylor's application on 5 December 2001, the Family Court Order remained in force.  He said that an application by Ms Taylor to change the Order was withdrawn by her at Mildura in April 2002.  He stated that she did not attend the Family Court, when new orders were made, on 12 April 2002, which granted the applicant contact each alternate weekend and during school holidays for the remainder of 2002.  The applicant explained that, after more than four years of attempts to reach agreement with Ms Taylor, on 27 September 2002, he decided to withdraw from all proceedings, and he now exercises contact through negotiation with the children.

10. Ms Taylor gave oral evidence by telephone that her application for new residence and contact orders was listed in the Magistrates' Court at Swan Hill in November 2001 but the applicant did not appear.  She said that the application was adjourned until 5 December 2001 at Bendigo because she and the children were living at Marong.  Ms Taylor explained that, on that date, the applicant did not appear, and she raised the allegations of abuse towards the children.  Ms Taylor stated that the legal representatives for both parties agreed that, due to the circumstances surrounding the safety and welfare of the children, Ms Taylor's compliance with the existing contact orders would be suspended.  The application for new residence and contact orders was then adjourned to the Family Court at Mildura.  She agreed that the applicant's representative made an unsuccessful attempt to seek instructions from the applicant.

11. Ms Taylor agreed that the applicant had made 13 telephone calls to the children after 5 December 2001 and had left messages for them to return his calls. She said that on most occasions she and the children were not at home, but she gave the children the opportunity to contact the applicant by telephone if they wished. Ms Taylor told the Tribunal that the applicant made no other attempt to enforce her compliance with the Family Court Order because he knew that she had reasonable grounds for taking action under the relevant provisions of the Family Law Act. According to Ms Taylor, at no time, between 5 December 2001 and 12 April 2002, did the applicant pursue any action to have contact with the children, and she has never breached any contact orders
    CONSIDERATION OF THE ISSUES

12. Section 22 of the A New Tax System (Family Assistance) Act 1999 (the Act) provides:

    22.(1)      An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.
    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.(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.

    …

    22.(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.

    23.(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.

    23.(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.
    23.(3)      * * * * *…
    23.(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.
    23.(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.

13. Mr Todd submitted that, because of the operation of s23(2) of the Act, s22(7) has no relevance to s23, and that s23 applies in situations where a pattern of care has been broken without the consent of one of the parties. The applicant supported this view, and submitted that he had not consented to the action by Ms Taylor to suspend compliance with the Family Court Order. He submitted further that, in the circumstances, he had taken appropriate steps to have contact with the children. Ms Taylor submitted that, by not issuing proceedings as soon as he became aware of her actions on 5 December 2001, the applicant had not taken reasonable steps to resume contact.

14. In reaching its decision, the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

15. There was no dispute, and the Tribunal finds, that at the relevant time each of the children was an FTB child of the applicant, so the applicant satisfies s23(1)(a) of the Act.  The Tribunal accepts the applicant's evidence that he did not attend the Magistrates' Court at Bendigo on 5 December 2001, because he was informed that the existing applications would be adjourned to the Family Court at Mildura in January 2002.  The Tribunal also accepts his evidence that, at no time on 5 December 2001 or on any other date, did he give instructions to his legal representative to consent to the action by Ms Taylor, to suspend her compliance with the Family Court Order. 

16. The applicant's evidence is supported by Ms Taylor's evidence, that the legal representative had been unable to obtain instructions from the applicant on that day, and the absence of any reference to consent in the letter to the applicant, dated 6 December 2001, sent by Ms Taylor's solicitor.  For these reasons, the Tribunal finds, for each child, that an event occurred in relation to the child without the adult's consent that prevented the child being in the adult's care.  Therefore, the applicant satisfies s23(1)(b) of the Act.

17. The Tribunal accepts the applicant's evidence that, as soon as he became aware of the action by Ms Taylor to suspend her compliance with the Family Court Order, he held urgent discussions with his solicitor, who made contact with Ms Taylor's solicitor by telephone and by letter.  The Tribunal accepts as plausible, the advice given to the applicant that, as there was an outstanding application alleging that Ms Taylor had been in contempt of an earlier Court Order, and as the application initiated by Ms Taylor in the Magistrates' Court had been adjourned to the Family Court in January 2002, there was no benefit to be gained by issuing an urgent application in the Family Court, to challenge the action by Ms Taylor, two weeks before Christmas.

18. In relation to the applicant's actions in trying to resume contact with the children, the Tribunal accepts his evidence, which was confirmed by Ms Taylor, that he had made 13 telephone calls to the children after Ms Taylor suspended contact.  In all the circumstances, and taking into account the considerable distance between the applicant's home and the children's place of residence, the Tribunal finds that the applicant took reasonable steps after 5 December 2001 to have the children in his care for contact visits.  Therefore, the applicant satisfies s23(1)(c) and meets the requirements of s23(1) of the Act.

19. The Tribunal accepts the submission by Mr Todd and the applicant that, in view of its findings with respect to s23(1) of the Act, the provisions of s22(7) of the Act do not apply. Therefore, s23 entitles the applicant to 22 per cent of the FTB payments for each child, on the basis of the Family Court Order, for the qualifying period of up to 14 weeks, from the date on which that child ceased to be in his care for the purposes of contact under the Order.
    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision that the applicant is entitled to receive 22 per cent of the family tax benefit payments in respect of his four children from 5 December 2001 until the expiry of the qualifying period, 14 weeks, after that date.

    I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:
    G.D.Friedman, Member

    (sgd)       Catherine Thomas
                  Clerk

    Date of hearing:  22 November 2002

    Date of decision:  29 November 2002
    Advocate for applicant:               Self-represented

    Advocate for respondent:            Mr M. Todd, Centrelink

    Advocate for joined party:           Self-represented