Nabainivalu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 16 (12 January 2009)

Last Updated: 12 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 16

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3878

GENERAL ADMINISTRATIVE DIVISION		)
	Re		HELEN NABAINIVALU

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Ms Robin Hunt, Senior Member

Date 12 January 2009

Place Sydney

Decision

The decision under review is affirmed.

...................[Sgd]....................
Ms Robin Hunt
Senior Member

CATCHWORDS

SOCIAL SECURITY – baby bonus claim by grandmother – child born overseas – child registered as Australian citizen – child entrusted to grandmother’s care – claim made outside time – child not formally adopted – decision under review affirmed.

A New Tax System (Family Assistance) Act 1999 (Cth) ss 3, 24, 36

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 39

Family Assistance Guide

REASONS FOR DECISION

12 January 2009

Ms Robin Hunt, Senior Member

INTRODUCTION

1. Mrs Helen Nabainivalu and her husband are the grandparents of a child who has been entrusted to their care. Mrs Nabainivalu applied for the baby bonus payment on 2 August 2007, but her claim was rejected because of restrictions contained in the legislation covering the payment, namely, the child did not enter her care within 13 weeks of the birth. On 17 September 2007, a Centrelink Authorised Review Officer (‘ARO’) affirmed the decision and the Social Security Appeals Tribunal (‘the SSAT’), on 8 July 2008, affirmed the ARO’s decision refusing payment of the baby bonus.

ISSUE

2. The issue for determination is whether Mrs Nabainivalu qualifies for payment of the baby bonus.

CONSIDERATION AND FINDINGS

3. Mrs Nabainivalu has been entrusted with the care of her granddaughter who was born in Japan on 21 February 2006 to her daughter. Her daughter was married to the child’s Japanese father at that time but they have since separated. The child arrived in Australia on 26 February 2007 with both parents. On 2 March 2007, the father handed care of the child to Mrs Nabainivalu and her husband, who is the grandfather of the child.
4. The father furnished a letter to Centrelink on 2 May 2007 setting out that his daughter is an Australian citizen and explaining what had occurred. He said he had been intending to apply for a partner visa but his wife suddenly left him and the child. He came to Australia as the holder of a visitor’s visa and handed the child to Mr and Mrs Nabainivalu before returning to Japan. On the same day, 2 May 2007, Mrs Nabainivalu’s husband, Apenisa Nabainivalu, lodged with Centrelink a “Details of your child's care arrangements” form. Beside the heading “Other carer's statement”, the child’s father signed. His letter was attached, and stated his wish for the grandparents to have total care of the child.
5. On 3 May 2007, Mrs Nabainivalu lodged with Centrelink a “Claim for Family Assistance” form. On 10 May 2007, she lodged with Centrelink a “Newborn Child Claim for Family Assistance and Medicare” form. On 2 August 2007, she lodged with Centrelink a claim for the baby bonus.
6. There is no disagreement that Mrs Nabainivalu is caring for her granddaughter. Mrs Nabainivalu gave evidence that she has received other family assistance payments such as family tax benefit (‘FTB’) and maternity immunisation allowance, although she initially was refused these payments. Mrs Nabainivalu argued that the discretionary provisions enlivened to allow these payments should be used to allow payment of the baby bonus as well.
7. Mrs Nabainivalu argued that all the payments she requested are covered by the same Act and might be expected to have similar application. However, special provisions cover payment of baby bonus. Baby bonus is dealt with in section 36 of the A New Tax System (Family Assistance) Act 1999 (‘the Act’).
8. Section 36 reads, in part:

When an individual is eligible for baby bonus in normal circumstances
 
(1)  An individual is eligible for baby bonus in respect of a child in any of the 4 cases set out in this section.
 
Parent of child

(2) ...

(2A)  If the Secretary is satisfied that the claimant was unable to make a claim for payment of baby bonus in normal circumstances because of severe illness associated with the birth of the child ...

Child entrusted to care of individual

(3) Second, an individual is eligible for baby bonus in respect of a child if:
(a) the individual is not a parent of the child; and
(b) the child is entrusted to the care of the individual or the individual's partner within the period of 13 weeks starting on the day of the child's birth; and
(c) the child continues, or is likely to continue, in that care for not less than 13 weeks; and
(ca) ...; and
(d) the individual either:
(i) is eligible for family tax benefit in respect of the FTB child at any time within the period of 13 weeks starting on the day of the child's birth; or
(ii) would be so eligible except that the individual's rate of family tax benefit, worked out under Division 1 of Part 4, is nil.
 
Stillborn child

(4) Third, ...

Adoption

(5)  Fourth, an individual is eligible for baby bonus in respect of a child if:
(a) as part of the process for the adoption of the child by the individual, the child is entrusted to the care of the individual by an authorised party; and
(b) the child is aged under 2 at the time the child is entrusted to the care of the individual; and
(ba) if the child arrives in Australia from overseas as part of the process for the adoption of the child -- the child is aged under 2 when the child arrives in Australia; and
(bb) ...; and
(c) the individual either:
(i) is eligible for family tax benefit in respect of the FTB child at any time within the period of 13 weeks starting on the day the child is entrusted to the care of the individual; or
(ii) would be so eligible ...

9. I have considered Mrs Nabainivalu’s circumstances under subsections 36(3) and 36(5) of the Act. Mrs Nabainivalu gave evidence that the child entered her care on or about 3 March 2007. As the child was born on 21 February 2006, the date she entered Mrs Nabainivalu’s care was not within 13 weeks of her birth. I find, therefore, that Mrs Nabainivalu does not meet the requirements of subsection 36(3) paragraph (c) because the child entered her care well outside the necessary period for the payment under this provision.
10. I have also considered whether Mrs Nabainivalu might be paid under the provisions relating to adoption. Mrs Nabainivalu gave evidence that she has investigated adoption but conceded she has not formally adopted the child. Mrs Nabainivalu explained that the father of the child went with her to Centrelink, on 2 May 2007, to inform them that he was entrusting the child to her and her husband, and that the question of adoption was not raised. Mrs Nabainivalu gave further evidence that the father had come with the child to Australia but had to return to Japan as he had no visa enabling him to stay in Australia. On the advice of a Centrelink officer, the father wrote a letter on the spot stating that he was entrusting the child to her grandparents because the child’s mother was incapable of taking care of her.
11. As to the mother of the child, Mrs Nabainivalu gave evidence that her daughter would not be able to care for the child because of problems associated with her lifestyle. The relationship between Mrs Nabainivalu and her daughter is fragile, but her daughter has agreed that the child should remain in her care. Mrs Nabainivalu wishes to adopt the child and has investigated how she might do this, but believes the child must be in her care for 5 years before she can apply for adoption. She is fearful of asking her daughter to agree to formal adoption at present in case it disrupts the relationship.
12. The Secretary takes the view that subsection 36(5) applies only in cases of formal adoption. In considering the effect of this provision, I have examined the meaning of the word “adoption”. The term, according to the Macquarie dictionary means, in general:

1. to choose for or take to oneself; make one’s own by selection or assent.

13. However, when it comes to the adoption of a child, the Macquarie dictionary gives a second meaning, reading:

2. to take as one’s own child, specifically by a formal legal act.

14. At this time, Mrs Nabainivalu has not attempted any formal legal act and is relying on the letter of the child’s father, which confirms her evidence that the mother is incapable of looking after the child and that he has entrusted the child to the care of the grandparents. I agree with the Secretary’s contention that the ordinary meaning of the word “adoption” involves a formal legal act as supported by the dictionary definition. In the absence of formal adoption or such process being underway, I consider that Mrs Nabainivalu cannot establish her eligibility for the baby bonus under subsection 36(5) of the Act. I find, therefore, that she does not meet the requirements of subsection 36(5) because she has not formally adopted the child.
15. On 22 May 2007, Mrs Nabainivalu was granted FTB. FTB was backdated to the date the child entered her care. Mrs Nabainivalu argued that her claim for baby bonus should be considered in a similar way under provisions of the Act.
16. Section 24 of the Act deals with the effect of absences from Australia of an Australian child. However, the section falls under Subdivision A of Division 1 of Part 3 about eligibility for FTB, and deals with an ’FTB child’ or ‘regular care child’ for FBT purposes. The term ‘regular care child’ as defined in section 3 of the Act has no bearing in this matter. The question for the present case is not the child’s status for FTB but for baby bonus. I find therefore that Mrs Nabainivalu does not qualify for baby bonus under this provision.
    
17. Mrs Nabainivalu also referred to section 39 of the A New Tax System (Family Assistance) (Administration) Act 1999 (‘the Administration Act’). This section upon which Mrs Nabainivalu relied deals with restrictions on claiming baby bonus and another payment, maternity immunisation allowance, which she has received.
18. Mrs Nabainivalu argued that under section 39 of the Administration Act, the same discretion should apply for payment of both allowances. I note, however, that the section makes different criteria for these two payments. Under subsection 39(2), a baby bonus claim is not effective if made later than 26 weeks after the birth of the child. This period may be extended under subsection 39(3) where the claim was not made within 26 weeks because of severe illness associated with the birth of the child. The period cannot be extended otherwise under section 39, so Mrs Nabainivalu cannot succeed in obtaining payment of baby bonus under this ground. As to maternity immunisation allowance, a claim is regulated by another subsection which is more generous, that is, subsection 39(4).
19. As well, Mrs Nabainivalu drew attention to policy guidelines about baby bonus which are available on the Centrelink website. These guidelines provide that a person may be eligible for baby bonus if they have a newborn baby or care of a newborn within 13 weeks of the birth, adopted child, stillborn child or one who dies shortly after birth, and was eligible for FTB within 13 weeks of the birth or of the child being entrusted to their care, and notified the Family Assistance Office of registration within 26 weeks of the birth if a natural parent. None of these apply to Mrs Nabainivalu.
20. A further part of the guidelines deals with when a claim must be made if eligible for baby bonus. Mrs Nabainivalu noted that the guidelines indicate that a claim may be made in some circumstances within 26 weeks of the child coming into the care of the claimant where the child does not enter Australia as part of the adoption process. I am inclined to agree with Mrs Nabainivalu’s reading of this guideline as covering her situation. However, I must make my decision based on the words of the legislative provision, that is, subsections 36(3) and 36(5) and neither of these provisions allows payment to Mrs Nabainivalu. Although the guidelines say a claim may be made within 26 weeks of the child coming into a person’s care, this cannot override the legislative provisions which Mrs Nabainivalu has failed to satisfy. It follows that Mrs Nabainivalu cannot succeed on the basis of the guidelines.
21. I further note that section 4.5.1 of the Family Assistance Guide summarises the circumstances where a claim for baby bonus can be made either as a:
    • normal circumstances claim, or
    • bereavement claim.
22. The ‘normal circumstances’ claim seems to me to be a misnomer but is the description used in section 36 which I have already discussed. The bereavement claim appears to be that for a stillborn or early death claim. Neither situation raises any new ground for consideration of Mrs Nabainivalu’s circumstances.
23. Having considered all the above provisions, I find that Mrs Nabainivalu is not entitled to be paid baby bonus.
24. At the hearing, several letters about a possible ex gratia payment, which were not before me, were discussed by Mrs Nabainivalu and the Secretary’s representative. Mr and Mrs Nabainivalu have been able to access other entitlements because they have taken on the care of the child and are bearing all the costs of raising a baby from an early age. Mrs Nabainivalu told me they have nursed the child since she was released from an Australian hospital after a severe illness which she contracted on the journey to Australia from Japan. It may be that excluding Mrs Nabainivalu from the baby bonus payment is an unintended consequence of the legislation. In view of the unusual circumstances and the limited resources of the grandparents it may be that an ex gratia payment should be favourably viewed. I understand that Centrelink have taken this view but are not responsible for the making of such a payment. As it is not part of the jurisdiction of the tribunal, I must leave this decision to others.

DECISION

25. The decision under review is affirmed.
    

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: ...........................[Sgd]..........................

Jennifer Wong, Associate

Date/s of Hearing 23 December 2008

Date of Decision 12 January 2009

Representative for the Applicant Self-represented

Representative for the Respondent Ms S Mantaring, Centrelink Legal Services and Procurement Branch