Editors --- "Family tax benefit: were reasonable steps taken to have the child returned to care?" [2008] SocSecRpr 47; (2008) 10(4) Social Security Reporter, Article 13

• EMMERSON and SECRETARY TO THE DFHCSIA and LEWIS (third party)
• Background
• The Issues
• Discussion and the law
• Formal decision

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Family tax benefit: were reasonable steps taken to have the child returned to care?

EMMERSON and SECRETARY TO THE DFHCSIA and LEWIS (third party)

Decided: 14th October 2008 by K. S. Levy

Background

Emmerson sought review of the decision that he was not entitled to family tax benefit (FTB) from 17 April 2007.Emmersonchallenged this decision on the basis that s.23 of the A New Tax System (Family Assistance) Act1999 (the Act) applied so that he was entitled to be paid FTB in respect of his daughter for a further 14 weeks after she was removed from his care without his consent.

Emmerson provided evidence that Lewis, whom Centrelink recognised as his daughters current carer, had prevented him from having contact with his daughter following his proposal that his son live with him and his daughter live with Lewis, subject to other contact arrangements. Emmerson’s case was that following this proposal Lewis had intimidated and prevented his daughter from having contact with him and that his daughter was not well cared for. Emmerson gave evidence that he had tried on numerous occasions to contact his daughter and as well had gone to police and other authorities in an endeavour to find lawful means of regaining control. There was also evidence of numerous emails between himself and his daughter which supported his position. Also in evidence was a letter from the Queensland Department of Child Safety dated 10 April 2008 which verified Emmerson’s assertions and confirmed that a recent assessment had found that his children’s interests were best served if his children were placed under his care.

The Issues

The relevant issues considered by the Tribunal were:

Was Emmerson’s daughter prevented from being in his care from17 April 2007?

If so, did Emmerson take ‘reasonable steps’ to have his daughter returned to his care?

Discussion and the law

Section 23 of the Act enables eligibility for FTB to be extended for up to 14 weeks if an event occurs in relation to the FTB 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. Whilst the Tribunal noted that the term ‘reasonable steps’ was not defined by the statute, the Tribunal held that in accordance with s.23(5)(c) of the Act it must be interpreted in the context of the lawful arrangement providing access to the parties in dispute.

In applying this section, the Tribunal found that an event had occurred in terms of s.23 of the Act. The Tribunal accepted Emmerson’s evidence that following the proposal that he had put regarding the care of his son, Lewis had intimidated and prevented his daughter from maintaining contact with him and being in his care. The Tribunal found that this was clear from the email evidence from Emmerson’s daughter.

In deciding the question of whether Emmerson had taken ‘reasonable steps’, the Tribunal referred to the Family Assistance Guide and the precedents provided by the Department. The Tribunal noted that the precedents showed that the AAT had previously found ‘reasonable steps’ had been taken where the parent had contacted state authorities and school authorities, sought assistance from community members such as the school bus driver, made numerous telephone contacts with their children and consulted a solicitor or followed up with police and the Department of Family Services to regain care of their children.

The Tribunal found that there was more than adequate evidence that Emmerson had taken ‘reasonable steps’ to have his daughter returned to his care which had included writing to Lewis on numerous occasions in an attempt to regain control and going to the police. The Tribunal also found that the independent evidence from the Department of Child Safety provided increased weight to Emmerson’s assertions in light of the fact that his evidence was uncontested by Lewis.

Formal decision

The AAT set aside the decision under review and substituted it with a decision that Emmerson was entitled to 14weeks FTB from 17 April 2007.

[G.B.]