Dunn, A.D. v Department of Social Security
[1990] FCA 291
•09 APRIL 1990
Re: ALLAN DAVID DUNN
And: SECRETARY, DEPARTMENT OF SOCIAL SECURITY and PAUL HOBBS
No. S G107 of 1989
FED No. 291
Social Security Act 1947
12 AAR 33
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)
CATCHWORDS
Social Security Act 1947 - S.118(11)(b) - maintenance of a child by providing food, clothing and accommodation for the child can amount to regular periodic payments of maintenance "at a fixed rate". However, it is necessary to supply evidence of the value of such food, clothing and accommodation so that an assessment, in monetary terms can be made of the value of the maintenance. There being insufficient evidence the appeal should be dismissed.
HEARING
ADELAIDE
#DATE 9:4:1990
Counsel for the appellant: Mr M. Blumberg
Solicitors for the appellant: P.R. Dixon and Associates
Counsel for the first respondent: Ms R. Colton
Solicitors for the first respondent: Australian Government Solicitor
Counsel for the second respondent: Mr P. Gallasch
Solicitors for the second respondent: Dixon Gallasch Pty. Ltd.
ORDER
The Appeal be dismissed.
The decision of the Administrative Appeals Tribunal be affirmed.
No order as to costs of this Appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This matter came before the Court as an appeal from the decision of the Administrative Appeals Tribunal. The Tribunal confirmed, upon its review, a decision of a delegate of the Secretary of the Department of Social Security. That decision had denied the applicant, Allan David Dunn, the appellant in these proceedings, an additional benefit to his sickness benefit.
Mr Dunn's claim was centred upon a little boy, James Lee Hobbs, who was born on 20 December 1984. His parents are Sharon and Paul Hobbs who are now divorced. It was common ground that, with effect as from 25 September 1986, they were sharing the custody of James on a "turn around" basis of three days.
The next event of relevance to these proceedings was the marriage of Sharon Hobbs to the appellant Mr Dunn. That marriage took place on 8 August 1987.
Three months later two significant events occurred. The first was that the appellant applied for and obtained unemployment benefits. The second event was the change in the arrangements between Sharon and her former husband Paul Hobbs about the custody of or access to James. By consent, an order was made in the Family Court on 30 November 1987, the relevant provisions being:-
"2. That the husband and the wife do have the joint guardianship of the said child.
3. That the husband do have the custody of the said child from 6.00 p.m. on Thursday the 3rd day of December 1987 to 6.00 p.m. on Thursday the 10th day of December 1987 and each alternate week thereafter.
4. That the wife do have custody of the said child from 6.00 p.m. on Thursday the 10th day of December 1987 to 6.00 p.m. on Thursday the 17th day of December 1987 and each alternate week thereafter.
The scene for this litigation was firmly set in the month of December 1987 in this fashion. Mr Hobbs was then, and had for some time been, in receipt of an invalid pension. Mr Dunn, who in the preceding month of November, had applied for and obtained unemployment benefits, became entitled in December 1987 to sickness benefits because of an injury to his shoulder. In circumstances which were not made clear, both men received and enjoyed an additional benefit to their respective sickness benefits by virtue of their "relationship" (to use a neutral expression) to the child, James. The relationship between Mr Hobbs and James was, of course, that of father and son. The relationship of Mr Dunn to James could be classified as that of a step-father, based upon the premise that James was a regular visitor to the household of Mr Dunn and his new wife (James' mother) at bi-weekly intervals.
In February 1988 the Department terminated Mr Dunn's additional benefit. From February 1988 until December 1988 the factual situation can be described as one of constancy. However on 13 December 1988 Mr Hobbs was given sole custody of James. Hence any claim of right by Mr Dunn (or indeed by his wife) for any additional benefit in respect of James would have ceased as from that date.
That is the factual background which gave rise to the question which falls to be determined on this appeal. That question may be expressed in the broadest terms by asking whether in those circumstances Mr Dunn was entitled to any, and if so what, additional benefit in the period 4 February 1988 to 13 December 1988? In answering that question, it can be accepted that he was, during the whole of that period, in receipt of sickness benefits and it can also be accepted that in the whole of that period of time, James was a regular visitor to the Dunn household in the circumstances that I have described.
Numerous arguments were advanced before the Tribunal and were encompassed in the notice of appeal, but in the ultimate Mr Blumberg, cousel for the appellant, concentrated the whole of his argument on ground number 3 in the grounds of appeal which was in these terms:
"Whether s.118(11)(b) of the said Act (being the Social Security Act 1947) requires regular periodic payments of maintenance at a fixed rate for the benefit of the children as opposed to maintenance of a child by providing food, clothing and accommodation for that child whilst the child is in that person's care and control."
That ground of appeal is better understood if regard is had to the provisions of sub.ss 11 and 12 of s.118 of the Act as they existed in the period February-December 1988. The thrust of sub.s 11 was to acknowledge that a person such as Mr Dunn, who was qualified to receive an unemployment benefit or a sickness benefit and who had the necessary relationship to a child, was entitled, in respect of the child, to an increase of benefit. The relationship of the child to Mr Dunn may have been that the child was a dependant child: (para 118(11)(a)); or the child may have been one in respect of whom the person in Mr Dunn's position was "making regular contributions towards the maintenance of (the) child": (para 118(11)(b)). These were two separate and entirely independent exercises or tests. But if the person in Mr Dunn's position could properly relate himself to a child either because of dependancy or because of regular contributions towards maintenance, then depending on various factors, principally the age of the child, there were five different sums of money - in those days as little as $5 per week and as much as $28 per week - by which the unemployment or sickness benefit could have been increased.
Mr Hobbs (who was joined as a party to these proceedings) being in receipt of an invalid pension at the relevant time was likewise in a situation where his pension was entitled to be increased by virtue of the Department's recognition that James was his dependant child.
My view is that the entitlement of a particular person (such as Mr Hobbs) to an additional benefit under either s.33 (which deals with increased pensions) or s.118, as the case may be, did not thereby preclude another person such as Mr Dunn, from being entitled to a benefit under the same or another section of the Act if that second person had met the qualifications required of him or her under the relevant provision. Whether or not entitlement and eligibility would have had any practical consequence in monetary terms might, of course, be another question and need not be addressed by me at this stage.
I revert back to the provisions of sub.s 118(11) and to the two independent exercises of dependency and regular contributions towards maintenance. Mr Blumberg disavowed any suggestion that his client was seeking to identify himself in circumstances that would have made James a dependent child. Rather, the appellant cast his lot by arguing that he was a person who, in terms of para 118(11)(b), had been making regular contributions towards the maintenance of James. That, of course, was the threshold question and only a favourable answer to that question would enable a further consideration of the quantum of benefits to be considered. In my opinion, the evidence that was before the Tribunal was wholly deficient on the subject.
Mr Dunn, whose evidence on this subject appears at pages 3 and 4 of the appeal book, had this to say:
"Q. Do you have any idea at all how much you would be spending on say a fortnightly basis either buying clothes for the child or buying footwear? Mr Dunn:
Well, it is very hard to put a price on it because every time you go there and say, "That'll fit him. That is a good price for us to afford. We can afford that we'll get it". I know his shoes are about $16 to $17 a pair and his jeans would be about $9 or $10 a piece, plus singlets and underpants and socks. The price is never any set time. They are up and down like a yo-yo."
An answer in similarly vague and uninformative terms appears at page 12. Mrs Dunn, when asked whether she bought any clothing for James, replied:
"Sometimes I bought him some clothes when he needed it."
I draw attention to her use of the singular pronoun. She said that she could not really give any idea how often she made purchases, but later added that she (again using the singular pronoun) bought him a pair of shoes and that he had them only two weeks when they were lost. She thought she had bought him three pairs of shoes in all. That type of evidence is, in my opinion, inadequate having regard to the contents of the legislation as it stood at the time that this matter was to be resolved.
I have no doubt that in a sense, Mr and Mrs Dunn were contributing towards the maintenance of James in the weeks in which he was with them. By that I mean, I have no doubt that they were supplying him with food for his meals and with his sleeping accommodation. And I am even prepared to accept that they, or one of them, were purchasing items of clothing and footwear on an "ad hoc" basis. But the gravamen of the legislation required far more detail than the casual observations made by both Mr and Mrs Dunn in the course of their evidence as to their financial involvement with James.
I cannot accept, nor did Mrs Colton of counsel for the Department seek to support, the view of the Tribunal on this subject. At paragraph 16 the Tribunal had this to say:
"As to the applicant's eligibility under section 118
(11)(b) of the Act, it is my view that this section contemplates regular periodic payments of maintenance at a fixed rate for the benefit of a child, and not maintenance of a child by providing food, clothing, accommodation for that child whilst the child is in that person's care and control."
In support of that finding, the Tribunal said that such an interpretation accorded with the intent of para 118(12)(c) of the Act. The Tribunal correctly pointed out that this particular paragraph provided that where a person's eligibility for an increased benefit was "by virtue of that person making regular contributions towards the maintenance of a child at a rate less than the rate per week of the increase (if any) that would be applicable in respect of the child under sub.s 11" then the Secretary was entitled to direct that the increase be either "limited to such amounts as the Secretary thinks fit" or not payable at all. One can see that para 118(12)(c) did identify the maintenance in terms of a rate per week and it is inviting to take the view adopted by the Tribunal. But having reflected on the matter, and having considered the decision of the Tribunal in Re Nguyen v Secretary, Department of Social Security 10 ALN N145, I have concluded that it is an overly restricted and restrictive interpretation.
In Nguyen's case a Vietnamese refugee sent home to Vietnam parcels of goods at quite irregular intervals of time. Yet the Tribunal in that case had little difficulty, by having regard to the special facts of the case, in saying that the applicant was making regular contributions towards the maintenance of those infant members of his family who were still stranded in Vietnam. The Tribunal adopted a very humane interpretation of the legislation which, as is well known, is legislation designed to benefit those who are in need.
But the appellant has failed in this particular case, not because he only supplied or contributed towards the supply of food, clothing and accommodation on an irregular basis, but because he failed to do that which the applicant did in Nguyen's case - that is, he failed to convert his contributions into dollar terms - the quality of his evidence was wholly deficient.
Evidence from Mr Dunn as to what it was that he did for James during the period that James was with him, expressed both by description and by conversion into money terms, would have made Mr Dunn eligible to be considered for an additional benefit to his sickness benefit. He failed to adduce that evidence. I was told from the bar table that his wife, the natural mother of James, was not an applicant for an additional benefit in respect of James for the reason that she was not in receipt of any social security benefits which would have given her the base for making such an application. That is a matter that cannot concern me, save to say that it does muddy the waters somewhat and probably makes it the more difficult, in reviewing the evidence, to find any assistance for Mr Dunn. The few casual references to the purchase of items of clothing and toys cannot convert into maintenance expressed, even approximately, in an amount of dollars per week.
Therefore, even though I have perceived error on the part of the Tribunal in the restrictive interpretation given to the expression: "making regular contributions towards the maintenance of a child", I have also concluded that this is one of those cases where it would be an exercise in futility to refer the matter back to the Tribunal to make its decision in accordance with the law. As I have assessed the matter, the remission of the proceedings to the Tribunal would result in the Tribunal concluding that there are no facts before it upon which it could make the required finding. The practicalities of the matter call for the dismissal of the appeal, and that is the order of the Court.
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