Editors --- "Baby bonus: whether child 'living with' claimant" [2014] SocSecRpr 13; (2014) 16(2) Social Security Reporter, Article 5

• SECRETARY TO THE DSS and LWIN
• Background
• Issue
• Discussion
• Formal decision

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Baby bonus: whether child 'living with' claimant

SECRETARY TO THE DSS and LWIN

(2014/332)

Decided: 29th May 2014 by A.K Britton

Background

The Secretary sought review of a decision of the SSAT, which found that Lwin was entitled to baby bonus in respect of his daughter ‘H’, during the period 3 February 2012 to 7 March 2012.

In May 2011, Lwin, married Wai, a resident of Myanmar. Lwin travelled to Myanmar for H’s birth and remained in Myanmar between 28 January 2012 and 7 March 2012. During the time he spent in Myanmar, Lwin devoted his time to caring for and supporting his wife and daughter.

On 7 March 2012, Lwin returned to Australia. His wife and daughter were not able to return to Australia with him, as the wife did not have a valid visa. She and H eventually joined Lwin in Australia in March 2013, and have remained in Australia ever since. Lwin contended that H was ‘living with’ him in the 33 days he spent in Myanmar immediately after her birth. The Secretary disagreed.

Issue

The issue for determination by the AAT was the meaning of the phrase ‘living with’ in s.22 (2) (c) of the A New Tax System (Family Assistance) Act 1999 (the Act).

Discussion

The AAT observed that the SSAT, in its reasons for decision, had noted the inconsistent approaches taken by the AAT to the interpretation of the words ‘living with’ in the context of s.22 (2) (c) of the Act. The SSAT in the present matter had adopted the approach taken in Saqa and Secretary, Department of Family and Community Services and Anor [2006] AATA 439, where the words ‘living with’ were construed to mean (at [22]) ‘staying with even for a brief period’. The SSAT reasoned that this approach should be preferred, as it was consistent with the beneficial nature of the Act.

The AAT noted that the SSAT’s decision was made before the decision in McGee; Secretary, Department of Social Services [2014] AATA 53, where the meaning of the term ‘living with’ was considered. In that case, Deputy President Handley concluded that the words ‘living with’ in s.22 (2) (c) indicates that the living arrangement must have a degree of permanency or, at least, been ongoing at the relevant time.

The AAT in the present matter agreed with the reasoning in McGee. Adopting that approach, the AAT found that it was apparent that, in this case, the living arrangement lacked the necessary degree of permanence. While Lwin’s plan had always been to live with H on a permanent basis in Australia, he had no intention of living with her on an ongoing basis while she was in Myanmar. The AAT found that he travelled to Myanmar on the understanding that he would return to Australia once his annual leave was exhausted and Wai and H would join him once Wai’s visa was granted. The AAT concluded that the 33 days Lwin had spent with H in Myanmar lacked the necessary degree of permanence, and therefore found that H was not ‘living with’ Lwin in that period.

Formal decision

The AAT set aside the decision under review and substituted a decision that Lwin was not eligible for baby bonus in respect of his daughter H. [S.O.]