Editors --- "Family tax benefit: running away from home, reasonable steps to return a child to a parent's care" [2013] SocSecRpr 25; (2013) 15(4) Social Security Reporter, Article 1

• LYPG and SECRETARY to DSS and RQHV
• Background
• The law
• The issues
• Discussion
• (1) Was John’s voluntary departure an event that prevented him being in his mother’s care?
• (2) Did John’s mother take reasonable steps to have John again in her care?
• Formal decision

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Family tax benefit: running away from home, reasonable steps to return a child to a parent's care

LYPG and SECRETARY to DSS and RQHV

(2013/719)

Decided: 8th October 2013 by B.J McCabe

Background

A boy referred to by the Tribunal as John effectively ran away from home in Easter 2012 to live as part of a friend’s household. John’s mother sought review of the decision of the Social Security Appeals Tribunal (SSAT) which found that the friend’s mother was entitled to family tax benefit (FTB) in respect of John for the period he lived in her care.

The law

The law applicable to this case was s.23 (1)(b) and (c) of the A New Tax System (Family Assistance) 1999 (‘the FTB Act’) which referred to a situation where:

(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.

The issues

The issues in this case were:

(1) Whether John’s voluntary departure was an event that prevented him being in his mother’s care pursuant to s.23 (1)

(b) of the FTB Act?

(2) Whether John’s mother took reasonable steps to have John again in her care pursuant to s.23 (1) (c) of the FTB Act?

Discussion

(1) Was John’s voluntary departure an event that prevented him being in his mother’s care?

Both John’s mother and the Department relied on the Family Assistance Guide to argue that John’s decision to run away from home was an ‘event’ that prevented John being in his mother’s care.

The Tribunal noted that whilst the Guide is not an authority that can be used to interpret legislation it is useful when considering how a statutory discretion should be exercised for the reasons explained in Drake No 2 – Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979) 2 ALD 634.

The Tribunal went on to consider the words ‘event’ and ‘prevents’ in s.23(1) (b) and found that it certainly covered a situation where a third party or external circumstances intervene to create an obstacle to the child remaining in the home. For example, if the child was taken into care, or into custody, or fell ill or if the child was stranded in a remote place.

However, the Tribunal noted that the only thing that had prevented John from being in his mother’s care in this case was his voluntary decision and concluded that this was not the sort of thing contemplated by the use of the expression “an event [that] occurs in relation to the child without the adult’s consent that prevents the child being in the adult’s care.” I think the sub-section refers to an external event – a happening or circumstance apart from the child’s voluntary decision – that operates to prevent the child from being in the care of the parent. (Reasons for decision, para. 9)

(2) Did John’s mother take reasonable steps to have John again in her care?

For the sake of completeness, the Tribunal went on to consider whether John’s mother had taken reasonable steps to have John again in her care.

Whilst the Tribunal was not satisfied John’s mother had done everything she could to secure the return of her son, it was inclined to accept she had taken reasonable steps. John’s mother had attempted to communicate with him orally and in writing and through friends and had spoken with police, John’s counsellor and a Centrelink officer who had all told her that there was nothing she could do to compel her son to return home. However, she had not approached the Department of Family Services or consulted a lawyer to discuss her options fearing that it would make the situation worse. The Tribunal appeared to accept that she had thought she had good reasons for not adopting that course given that John was not living on the streets, was not in any danger and was being provided with appropriate care and support in his friend’s family.

Formal decision

The decision under review was affirmed.

[G.B.]