ANGELO DARRIGO and and DE-ANNE MOORE

[2009] AATA 921

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 921

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2685

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANGELO DARRIGO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

And DE-ANNE MOORE

Joined Party

DECISION

Tribunal Dr M Denovan, Member

Date27 November 2009

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes its decision that parenting payment be paid to the applicant from 30 January 2009.

...................[Sgd]….........

Member

CATCHWORDS – Social security – parenting payments – principal carer – consideration of assets, income, workforce experience, education levels, future employment prospects – applicant is principal carer – decision under review set aside

Social Security Act 1991 (Cth), s 500

Secretary, Department of Family and Community Services v Holmes (2000) 59 ALD 77

Guyder v Secretary Department of Social Security (1998) 49 ALD 13

REASONS FOR DECISION

27 November 2009 Dr M Denovan, Member    

INTRODUCTION

1.      Angelo Darrigo (the applicant) and his former partner Ms De-Anne Moore have a son, Anthony.  The applicant was in receipt of parenting payment when, on 23 and 24 December 2008, Centrelink decided not to pay Ms Moore parenting payment as the applicant was the child’s principal carer.  Ms Moore sought a review of that decision, which was affirmed by an Authorised Review Officer (“ARO”) on 3 Februrary 2009 but then set aside by the Social Security Appeals Tribunal (“SSAT”) on 11 May 2009.  The SSAT decided that Ms Moore has been Anthony’s primary carer from 11 December 2008.

2.      On 23 and 24 December 2008, Centrelink also decided Ms Moore is to be paid 50% of the family tax benefit entitlement for Anthony from 11 December 2008 and not to pay Ms Moore the family tax benefit Economic Security Strategy payment.  The SSAT affirmed those decisions, however the parties have agreed that the only matter contested is the SSAT’s decision to set aside the decision not to pay Ms Moore parenting payment.

3.      In order to resolve the dispute in this case, I must determine whether the applicant is the principal carer.

4.       After having careful regard to the evidence, I have decided the applicant is Anthony’s principal carer, and that he is to be paid parenting payment from 11 December 2008.  I have therefore decided to set aside the decision under review.  I explain my reasons below.

THE FACTUAL BACKGROUND

5.      The applicant relocated from Caboolture to Rockhampton with Anthony on 26 March 2008.

6.      On 11 December 2008, the Federal Magistrates Court made final orders that if the applicant returns to the Caboolture area to reside prior to the commencement of the second term of the 2009 school year, Anthony is to live with Ms Moore and the applicant in a weekabout shared parenting arrangement.

7.      The applicant returned to Caboolture and commenced leasing a house from 30 January 2009, which is before the commencement of the second term of the 2009 school year.

APPLICANT’S EVIDENCE

8.      The applicant told me that since providing financial information on 23 July 2009[1] his financial situation has worsened.  He now owes $8000 on his credit card, his car was valued one month ago at $3,200, and his boat, previously valued at $1200, is no longer operational.

[1] Exhibit 4.

9.      He told me that he lives in a house at Caboolture; his name is the only one on the lease.  He shares the property with Emily, Ms Moore’s daughter from a previous relationship.  He pays for his own food and half of the utilities.

10.     The applicant has worked for most of his life as an interstate truck driver.  He has not worked full-time since Easter 2008.  Having the care of Anthony every weekabout makes it difficult for the applicant to get work.  Most employers do not want to see the truck parked up every second week.  The applicant has had a right shoulder reconstruction and his capacity to work is restricted because of this.  Since Easter 2008, the applicant has worked occasionally driving a truck.  This sort of casual work is not readily available.  He was given the work by a friend.  The applicant has attempted without success to find groundsman work and farm work.

11.     The applicant drives Anthony to and from school each day when he is in his care.  He is unable to rely on his housemate to care for Anthony or collect him from school in his absence.  He has no friends or relatives that can provide him with financial support.

12.     The applicant owns a computer, which he rarely uses except to assist Anthony with schoolwork.

EVIDENCE OF MS MOORE

13.     Ms Moore told me that up to one month ago she was living with her mother and sister.  She paid no rent but was responsible for buying food for the entire household.

14.     One month ago, her mother and sister moved and Ms Moore commenced renting a caravan in the backyard of a friend’s home.  That friend and her husband are both long distance truck drivers.  They have two children whom they home school.  Ms Moore cares for those children every second weekend, when she does not have the care of Anthony.  Ms Moore also cares for the children at other times when required.  She receives no cash payment for babysitting, however she is given free use of her friend’s car to drive Anthony to and from school.  Ms Moore puts petrol into that car.  Ms Moore claims to get along well with these children, however she said that she would not be able to apply for other work babysitting, as she does not tolerate other people’s children.

15.     Ms Moore owned her own car detailing business for two years.  She has 25 years experience in the car detailing industry and last worked in March 2008 for Avis Car Rentals.  She left that job because Anthony moved to Rockhampton with the applicant without her consent.  Ms Moore claims that her health prevents her from obtaining similar work.  Ms Moore told me she has had two heart attacks, and as a result she is unable to lift heavy items.

16.     Ms Moore provides her own food and occasionally eats with her friends.  She told me that she has recently purchased a laptop, which is used to help Anthony with his education.

17.     Ms Moore has been engaged since May 2009.  Her fiancé lives in Sydney.  He is a silent partner of a business and cannot relocate to Queensland.  She visits him three to four times a year, and he has visited her in Caboolture once this year.  Ms Moore said that she pays for her own flights to Sydney and receives no financial assistance from her fiancé.  A wedding date has not been set.

CONSIDERATION

18. The relevant legislative framework is found in s 500 of the Social Security Act 1991 (“the Act”).  To qualify for parenting payment a person must be the principal carer of the child.  Only one person can be a principal carer of a child.

19.     If, as is the case here, two or more adults would be principal carers of the same child, the Tribunal must determine one of the adults as the principal carer of the child.

20. The Act is silent on what matters should be taken into account when deciding which person should be regarded as the principal carer of a child. It is appropriate for the Tribunal to have regard to Departmental guidelines[2].  The Guide to Social Security Law (“the Guide”) indicates that the general starting point in determining who is the principal carer is the level of legal responsibility and level of care provided by each parent[3].

[2] Secretary, Department of Family and Community Services v Holmes (2000) 59 ALD 77.

[3] 1.1.P.412 of the Guide.

21.     Both the applicant and Ms Moore have been granted equal care and control of Anthony in accordance with the Federal Magistrates Court order.  In cases such as this where the legal responsibility held and level of care provided by each parent is equal, it is usual to consider which parent is in the most financial need[4].  Ms Brazier, Counsel for the Respondent, contended that Ms Moore is the party with the greater financial need on the basis of a comparison of the parties’ future and current capacity to work and the parties’ financial resources.  Mr Darrigo believes he is the party with the greater financial need because he has more expenses than Ms Moore.

[4] Guyder v Secretary Department of Social Security (1998) 49 ALD 13 at 16-17.

22.     The Guide lists factors that must and those that may be taken into account when determining which party has the greater financial need[5].

[5] The Guide to the Social Security Law at 1.1.P.416 provides for a number of factors to be taken into account. In a situation such as this case, where both providers are receiving income support, the Guide provides that a decision maker must take into account:

·Whether one carer already qualifies as principal carer of another child,

·Whether only one carer would be eligible for parenting payment,

·Which carer would receive the higher rate of payment,

·Any other sources of income the carers may have, whether actual or potential, including both employment and investment income,

·The asset levels of each carer.

The Guide provides that the following factors may be taken into account by a decision maker

·The expenses of each carer, e.g. rent, child care

·Workforce experience, education levels and future employment prospects of each carer,

·The duration that each carer has been on income support and their principal carer status during that time, if there is no substantial differences between the parties, then generally the determination should be favoured which maintains the status quo, and

·Any other factors considered relevant by the decision maker.

Factors which must be taken into account

23.     I first considered the factors that must be taken into account.  Neither party qualifies as principal carer of another child, and both parties are eligible for parenting payment and would receive the maximum basic rate of parenting payment.

24.     I found both parties to be unreliable witnesses.  A decision about comparable assets and sources of income relies heavily on the information provided by both parties and thus is likely to be inaccurate if the evidence before the Tribunal is adhered to literally.  I accept that Mr Darrigo’s assets may be marginally higher than those of Ms Moore, however his credit card debt is higher than hers, and I consider that each party has similar net assets.

25.     As to other sources of income, I consider Ms Moore is better placed than the applicant.  Ms Moore is effectively working on a part-time casual basis, receiving the benefit of the use of a car in lieu of cash for babysitting her friend’s children.  Whilst she pays for her petrol, she pays no other costs for transport, such as car registration, insurance and loan repayments.

Factors which may be taken into account

26.     Turning to factors that according to the Guide may be taken into account when determining which party has the greater financial need, I consider the workforce experience, education levels, and future employment prospects of each party to be on par.  Both parties have limitations and difficulties that will make finding employment difficult, however, both parties are equally capable of working.

27.     Both the applicant and Ms Moore were working in 2008; the applicant as a long distance truck driver and Ms Moore as a car detailer.  Ms Moore has 28 years experience in the car detailing industry and previously owned her own business.  Mr Moore has a long and good history as a long distance truck driver.

28.     A Job Capacity Report dated 13 May 2009 indicates that Ms Moore has a temporary incapacity to look for or obtain work due to severe depressive symptoms until January 2010.

29.     Ms Moore has been in the workforce subsequent to suffering a heart attack.  She is on antidepressants and is counselled by her general practitioner for depression, however there is no evidence before me that persuades me her depression prohibits her from working.  On the contrary, Ms Moore babysits at least three days a fortnight. 

30.     I accept the applicant has undergone reconstructive surgery to his right shoulder, however he has worked since this surgery.  The carer arrangements he has in relation to Anthony would understandably prevent him from continuing to accept work as a long distance truck driver, the only type of work he has performed.  I am not persuaded on the evidence that the applicant would be prevented from part-time work, such as local delivery work.  I accept that the casual driving work the applicant performed in October 2009 was a one-off opportunity and there is no potential for similar work in the future from that employer.

31.     Ms Moore has been on income support for a considerably longer period than the applicant.  Whilst that is a consideration that may be taken into account when determining which carer is most in need, in this case I do not believe it is appropriate to do so.  Part of the time Ms Moore was receiving benefit at a single rate she was living with the applicant.  There is a dispute between the parties as to the nature of their relationship during that time.  Whilst I make no determination in relation to that matter, the fact that it is a contentious issue persuades me that it would be inappropriate to give Ms Moore an advantage on the basis that she has previously been in receipt of social security benefits.

32.     Expenses of each party are another issue that may be taken into account.  The applicant has considerably more expenses than Ms Moore.  The applicant has a lease and is the only named lessee.  He is responsible for the entire lease repayments.  Ms Moore has, until one month ago, paid for her mother and sister’s food in lieu of rent.  She did not and does not have the legal responsibilities that are created by being a lessee.  She was not legally liable for the utilities, such as electricity and gas.  Ms Moore currently lives in a friend’s caravan and she is uncertain about the future longevity of that situation.  At the moment, Ms Moore still does not have the ongoing legal obligations of a lessee for a fixed period of time.  Ms Moore is paying off less debt than the applicant and does not have the ongoing expenses of car registration and car maintenance.  As mentioned above, she receives these benefits in return for babysitting her friend’s children.  Both parties pay similar education and clothing expenses for Anthony.  In addition, the applicant pays for guitar lessons for Anthony, a cost of $15 per fortnight.  I consider that each party has similar expenses for food.  Ms Moore has additional expenses associated with visiting her fiancé who lives in Sydney.

33.     I do not accept Ms Moore’s evidence that her fiancé, a silent partner in a business located in Sydney, provides no current or future financial support to her.  The fact that he is her fiancé indicates that Ms Moore and he have intentions to formalise their relationship in marriage.  I consider that if Ms Moore found herself in hardship she is likely to be able to find some support from her fiancé.  Ms Moore has been indirectly assisted until presently by her mother and sister and is currently assisted by her friend who provides accommodation and car usage for Ms Moore for less than the average member of the community would need to pay.  The applicant by comparison has no friends or family that offer him financial support, either directly or indirectly.

34.     On balance, I consider that the applicant has more expenses and less community and social support than Ms Moore.  His financial needs are therefore greater than Ms Moore and it is in Anthony’s best interests that the applicant be regarded as the principal carer and is paid parenting payment.

35.     I find that the applicant should be paid parenting payment from 30 January 2009, the date he commenced leasing a property in Caboolture.

DECISION

36.     The Tribunal sets aside the decision under review and substitutes its decision that the applicant be paid parenting payment from 30 January 2009.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ....................[Sgd].........................................
  Research Associate

Date of Hearing  4 November 2009
Date of Decision  27 November 2009
The Applicant was self-represented
The Joined Party was self-represented      
Advocate for the Respondent  Ms Michelle Brazier