Clayton and Secretary, Department of Employment and Workplace Relations and Anor

[2007] AATA 1154

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1154

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/1165

GENERAL ADMINISTRATIVE DIVISION		)
Re		SALLY ANNE CLAYTON

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

First Respondent

MICHAEL HARTNETT

Second Respondent

DECISION

Tribunal Ms N. Isenberg, Senior Member

Date21 March 2007

PlaceSydney

Decision The decision under review is affirmed.

……..…….....[sgd]......................

N. Isenberg,
  Senior Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – calculation of shared care percentages – apportionment of family tax benefit payments between carers – common sense approach to determining pattern of actual care – consideration of all available evidence – hostile relationships between parents – assessment of care time – consideration of the evidence, legislation and case law – the decision under review is affirmed

Social Security Act 1991 – ss 500, 500D, 500E

Guide to Social Security Law – 3.5.1.50

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

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

Holmes and Secretary, Department of Family and Community Services [1999] AATA 844

Secretary, Department of Social Security v Lowe (1996) 56 ALD 609

REASONS FOR DECISION

21 March 2007 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1. The decision under review is the decision of the Social Security Appeals Tribunal (“SSAT”), dated 28 July 2006, that Mr Hartnett’s parenting payment claim lodged on 5 October 2005 be reassessed on the basis that his child, Shae, is his parenting payment child pursuant to section 500E of the Social Security Act 1991 (“the Act”) as it stood at the time of claim.

BACKGROUND

2.      Ms Clayton and Mr Hartnett were married in 1998.  They have a daughter, Shae, who was born in 2000.  Ms Clayton and Mr Hartnett separated in 2002 and, on 29 August 2002, the Family Court made consent orders with respect to care arrangements for Shae. Ms Clayton continued to receive the parenting payment for Shae.

3.      In September 2005, the Family Court made further consent orders by which Ms Clayton and Mr Hartnett started sharing the care of Shae equally.

4.      On 5 October 2005, Mr Hartnett made a claim for the parenting payment in respect of care provided to Shae, but his claim was rejected.  That decision was affirmed on review.  However, on 28 July 2006, the SSAT set aside the decision and decided that Mr Hartnett was eligible for the parenting payment for Shae with effect from 15 May 2006.

5.      On 8 September 2006, Ms Clayton filed the present application for review with this Tribunal.

LEGISLATIVE FRAMEWORK

6. A parenting payment is not payable to more than one person at a time in respect of the same child: Section 500E. That section, however, is silent as to how the determination of which parent should be qualified for parenting payment should be made.

7.        To assist in such determinations the Department has published a policy approach in the Guide to Social Security Law (“the Guide”).  It is appropriate for the Tribunal to apply departmental policy unless there are cogent reasons not to (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

8.        At the time of Mr Hartnett’s claim, the relevant policy was contained in Part 3.5.1.50 of the Guide.  The Guide provided that, as a first consideration, parenting payment should to be paid to the parent providing the greater degree of care.  The Guide then provided that, where care is equally shared and both carers are ‘reliant upon a favourable determination to qualify’, then parenting payment should be granted to the carer who would receive the higher rate of parenting payment.  The explanation given is that the ‘relative financial circumstances of both carers’ becomes ‘the basis for the decision.’

9.        The Guide suggests that financial need be assessed by comparing the rate of parenting payment that would be payable to each parent. As parenting payment is an asset and an income-tested income support payment, this use of a comparison of the rates provides an objective and measured assessment of the financial need of each carer. It provides consistent application of section 500E, both generally and specifically in this case.

ISSUE BEFORE THE TRIBUNAL

10.      There is no dispute between the parties that Shae is a child in respect of whom parenting payment is payable: sections 500 and 500D. The issues before the Tribunal are:

·Whether Shae’s care was in accordance with the Family Court orders, that is, equally?; and

·If so, which parent would receive the higher rate of parenting payment because of the ‘relative financial circumstances of both carers’?

EVIDENCE

11. I took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents").

12.     Ms Clayton and Mr Hartnett both gave evidence and were cross-examined.

CONSIDERATION OF THE EVIDENCE

Was Shae’s care in accordance with the Family Court orders?

13.     There was no dispute that Shae is cared for in accordance with the Family Court orders; that is, she spends equal time residing with each of her parents.

14.     There was some evidence that both Mr Hartnett and Ms Clayton provided clothes and other items for their daughter.  There was some evidence about school fees and expenses.  In summary, the evidence was to the effect that some expenses were shared but mostly each parent made purchases separately for Shae.

15.     Although there appears to be little communication between the parents, each appeared to have equal care of Shae, in accordance with the Family Court orders.

As the care was equally shared, which parent would receive the higher rate of parenting payment because of the ‘relative financial circumstances of both carers’?

16.     In Guyder v Secretary, Department of Social Security (1998) 49 ALD 13, to which I was referred, Foster J held that it was open to the Tribunal to compare and assess each party’s financial position in circumstances where care of the children was shared equally. In Secretary, Department of Social Security v Lowe (1996) 56 ALD 609 the Full Court of the Federal Court determined that it was the parent who was in greater financial distress who should be the recipient of the parenting payment.

17.     In Holmes and Secretary, Department of Family and Community Services [1999] AATA 844 the Tribunal analysed each parent’s financial circumstances, including their employment and business prospects.

18.     Centrelink contended that a comparison of the rates of parenting payment that would be payable to each parent, as suggested by Departmental policy, provides a fair and consistent measure of financial need.  In essence Centrelink had already undertaken the calculations, and these showed that Mr Hartnett would receive over $10 more parenting payment than Ms Clayton, based on their relative assets. 

19.     While this provides some guidance I do not presume to come to the same view without investigation, for myself, of their relative financial circumstances.

20.     Ms Clayton‘s evidence was that she owns a block of land in Bellingen.  It is valued at about $130,000.  She hopes one day to build a house for her and Shae on it but has made no plans in that direction.  She has no idea how she might finance the construction of the house.  Her only other asset in addition to furniture and personal effects is an old car, valued at about $3,000.  By contrast Mr Hartnett owns neither property nor a motor vehicle.  Ms Clayton is relatively debt free, whereas Mr Hartnett gave evidence of debts in excess of $40,000.  Ms Clayton pays rent of less than $100 per week in community housing whereas Mr Hartnett’s rent is $220 per week.  Mr Hartnett has been informed that there is a long wait before community housing might be available for him and Shae.

21.     There was also some evidence about their respective ability to work.  Ms Clayton has worked as a cleaner, a baker, in retail, done kitchen work, and some waitressing.  Her training is as a nurses’ aide and she last worked in that area in 1997.  She was asked about applying for a job in that field at a local nursing home but apparently had not done so.  She did not want to work away from Bellingen because she wanted to be available for Shae whenever it was her week to have her.  She also gave evidence about her skills as a basket weaver.  While she said she had not felt like doing that work, she conceded that at least once last year she had sold baskets at a stall.  She also agreed she had run a basket-making workshop at the end of last year.

22. Mr Hartnett works an average of 10 hours per week as a hospital assistant. He relies on friends, who he pays, when his shifts coincide with his having Shae. He was said to have no formal qualifications, although from the T-documents he appears to have held a heavy vehicle drivers licence with an O.H.S certificate for a ‘fork lift truck’, as well as a certificate for the satisfactory completion of an O.H.S course in construction work.  He said he has enquired of every builder in Bellingen and in shops about jobs.  He has done some work as a night-filler in the supermarket.  As he has no car he would have to rely on hitch-hiking or lifts if he were to work further afield.

23.     On the available evidence I find Mr Hartnett to be in greater financial need than Ms Clayton.  I find that Ms Clayton has far greater assets than Mr Hartnett, especially as she owns a property valued at $130,000.  Mr Hartnett and Ms Clayton probably have similar job prospects, given that each has undertaken a variety of skilled and semi-skilled jobs in the past.  Mr Hartnett’s job prospects, however, are limited by his inability to look beyond Bellingen as he does not have a vehicle.  Mr Hartnett gave evidence of seeking to expand his work whereas Ms Clayton’s evidence suggested she was less willing to seek employment.  Ms Clayton legitimately explained this as wanting to be with her daughter as much as possible in ‘her’ weeks.  Mr Hartnett, however, has additional financial imperatives, especially his ongoing higher rent (to say nothing of his high level of debt).  To address this he is engaged in some employment and actively seeking more and paying for childcare for Shae in order to do so, like many working parents.

DECISION

24.     The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER

Signed:   [sgd] Jun Lee
                   Associate

Date of Hearing  7 February 2007
Date of Decision  21 March 2007
Representative for the Applicant      Self-represented

Representative for the First Respondent             Pankaj Sharma – Centrelink Legal Services Branch

Solicitor for the Second Respondent  Vivien Carty – Filewood Carty Lawyers