Frangos and Secretary, Department of Family and Community Service S and Anor

[2003] AATA 261

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2003] AATA 261

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/247

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BASILIOUS FRANGOS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

And          NICOLE BIRT

Joined Party

DECISION

Tribunal Senior Member WJF Purcell

Date7 March 2003

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal  affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances – Parenting Payment Single -  whether the applicant or the mother should be paid Parenting Payment in respect of their 2 children

Social Security Act 1991 sections 500, 500D, 500E

ORAL REASONS FOR DECISION

7 March 2003   Senior Member WJF Purcell                    

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 6 June 2002, which affirmed the decision of an Authorised Review Officer to reject the applicant’s claim for Parenting Payment Single. 

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the respondent (the Department), and the joined party (the mother). The applicant appeared on his own behalf and gave oral evidence. Mr Kilderry represented the Department, and the mother appeared on her own behalf and gave oral evidence.

3.      The applicant and the mother were in a de facto relationship from around 1990 until about November 2000.  There are two children of the relationship, Samantha, 10½, and Jack, nearly 9.  They lived in Port Pirie, except for the last 11 months of the relationship, when they lived on a 100-acre farm property, owned by the applicant, 20 minutes drive from Port Pirie.  When they separated, the mother moved to rental accommodation in Port Pirie.  Her residence is about 20 minutes drive from the farm residence, and also about 20 minutes drive from the children’s school, Napperby Primary School, which both the children have attended since February 2000.

4.      From the time of the separation until about 26 November 2001, the applicant continued to undertake shift work on earth moving equipment at Roxby Downs, with 4 days “on” and the following 4 days “off”.  He ceased work on 26 November 2001, and has not worked since that date.  He says that he does not intend to return to full-time work because he wishes to make himself available to care for the children.  During the day he is busy on the farm with sheep, chickens and a small crop of wheat, intended as feed for the sheep.  He plans to also purchase cattle.  He is planning a longer-term olive grove as a future source of income, and is currently involved in planning the financial set up with his immediate family in planting a commercial market garden.  In the meantime, he has a small vegetable garden for home use.

5.      The applicant and the mother share equally the care of their 2 children, week about, pursuant to an interim Family Court Order dated 5 July 2001, and a more recent final order of the Court in 2002.  The mother works on a casual part-time basis, and is currently being paid Parenting Payment in respect of the children.  The applicant is paying a mortgage, and therefore has an interest in property.  The applicant and the mother receive 50% each of the Family Tax Benefit with respect to the children.

6.      The applicant applied for Parenting Payment Single on 14 November 2001.  On 20 November 2001, the Department advised him that his application had been refused, because only one parent of the children can receive Parenting Payment, and the wife had had extended reliance on the payment.  He requested a review of the decision, but it was affirmed on 20 December 2001.  On 14 January 2002 an Authorised Review Officer set aside the previous decision, and granted Parenting Payment to the applicant.  This decision was based on the financial circumstances of both parties, and the applicant was found to be the parent who, at that time, had the greater reliance on the payment.

7.      On 18 January 2002 the mother requested a further review of the decision of the Authorised Review Officer, and on 4 February 2002 another Authorised Review Officer decided to set aside the decision, and determined that the mother was the parent entitled to receive Parenting Payment.  In the course of his Reasons for Decision he stated:

“… as neither party is disputing the degree of care offered by the other party, and there is now no discernible difference in the rate of PP each party would receive I consider Nicole Birt’s time in receipt of payment, i.e. since 1998, to be the determining factor.”

8. Section 500 of the Social Security Act 1991 (the Act) provides:

“(1)     A person is qualified for parenting payment if:

(a)       the person has at least one PP child (see sections 500D to 500H); and

(b)       the person is an Australian resident; and

(c)       *   *   *   *   *

(d)       at least one of the following conditions is satisfied:

(i)the person is not a member of a couple and the person was not a lone parent at the start of the person’s current period as an Australian resident (see subsections (2) and (3));

(ii)the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;

(iii)the person has a qualifying residence exemption for parenting payment.

Note 1:     For Australian resident and qualifying residence exemption see section 7.

Note 2:If a person is claiming parenting payment under a scheduled international social security agreement, the requirements of this subsection could be modified by section 1208A.

(2)For the purposes of subparagraph (1)(d)(i), a person’s current period as an Australian resident is a period that satisfies both the following conditions:

(a)       the person has been an Australian resident for the entire period;

(b)       the person lodged the claim for parenting payment during the period.

(3)For the purposes of subparagraph (1)(d)(i), a person was a lone parent on a particular day if, on that day:

(a)       the person was not a member of a couple; and

(b)       the person had a dependent child.”

9. Section 500D defines a Parenting Payment child as:

“A PP child of a person is a child who:

a) is a dependent child of the person; and

b) has not turned 16.”

10. Section 500E provides:

“(1)     A child can be a PP child of only one person at a time.

(2)If the Secretary is satisfied that, but for this section, a child would be a PP child of 2 or more persons (adults), the Secretary must:

(a)make a written determination specifying one of them as the person in relation to whom the child is to be a PP child; and

(b)give each adult who has claimed parenting payment a copy of the determination.

(3)The Secretary may make the determination even if all the adults have not claimed parenting payment.”

11.     The applicant applied for review of the decision, and on 6 June 2002, the SSAT affirmed the decision.  In the course of its Reasons for Decision, the SSAT said:

“…

The Tribunal notes that the legislation is silent as to how section 500E(1) should be interpreted.  Therefore, the Tribunal turned to case law for assistance in this regard.

The relevant case law serves to emphasis [sic] the advice in the Guide that the entirety of the circumstances of each case should be considered.

In the Federal Court decision of Gyles J in Secretary, Department of Family & Community Services v Holmes [2000] FCA 513 (20 April 2000) rejected the Department’s submissions that sole parent pension could not be paid to a parent who has a lesser share of care than the other parent.  In particular it was noted that each parties’ [sic] financial circumstances should be taken into account only where the share of care is completely equal.  His Honour said at 17 and 18:

“Section 251(2) only comes into play in circumstances where, having regard to the criteria in s 250, the Secretary is satisfied that the young person would be an SPP child of two or more persons.  That is the agreed situation here. In those circumstances, the Secretary, and the Tribunals on appeal, have the invidious task of choosing between those persons in circumstances where the legislation does not provide a criterion or criteria.

This is a discretion constrained only by the purposes of the Act and the provisions of it relating to Sole Parent Pensions (O’Sullivan v Farrer (1989) 168 CLR 210 at 216). The section does not oblige the decision-maker to take any particular matter into account, and only prohibits taking into account those matters which are not relevant to the purposes of the Act.  Within those very broad limits, it is a matter for the exercise of discretion by the decision-maker which cannot be controlled by a court dealing with errors of law (Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39-42). Thus it is that one decision-maker might prefer the apparent objectivity of deciding on the basis of hours of custody, another might also take into account qualitative factors and yet another might also take into account the financial circumstances of the parties. If there is any relevant government policy guidance, then appropriate regard should be paid to it.. (emphasis added).

In the current case, it is noted that the first authorised review officer’s decision, which found that the children were the parenting payment children of their father, was based on the fact that he would have been entitled to a higher amount of parenting payment (greater than $10.00 per fortnight) than the children’s mother.  As noted above, this is a relevant factor for consideration.

However, following Holmes, it is equally clear that this requirement need be taken as neither a necessary nor a sufficient consideration.

Having said that, the weight of the case law stands for the proposition that where there is no other basis for distinguishing between the parties, parenting payment should be awarded to the partner who has the greater “financial need”; see the decision of the AAT in Holmes and Secretary, Department of Family and Community Services [1999] AATA 844 (19 October 1999) and the Federal Court’s decision in Guyder v Secretary, Department of Social Security [1998] 420 FCA (25 March 1998).

In Guyder, the AAT found that since all of the “usual criteria” were equal, the choice should be made on the basis of financial need and this approach was confirmed on appeal to the Federal Court (see also the decision of the Full Federal Court in Secretary, Department of Social Security v Lowe [1999] FCA 705 (28 May 1999)).

It is important to note however, that there is no requirement in the case law that the “usual criteria” (such as which parent has the greater degree of legal rights of custody, care and control or the greater factual custody, care and control) should first be exhausted before turning to a consideration of “financial need”, as is clear from the comments of Gyles J in Holmes, cited above.  [T1/9-10]

…

The Tribunal therefore considers that Ms Birt has a greater financial need.  This decision is based on the following:

·     Mr Frangos has an interest in property.

·     Mr Frangos has been employed in more substantial positions and for a longer period of time that he is ultimately more employable.

·     Mr Frangos may be currently unemployed and may continue to remain unemployed whilst the parties are finalising their family law matters but ultimately he has much better employment prospects that [sic] Ms Birt.

The Tribunal is mindful that it is highly unlikely in the current circumstances that either parent is going to or have the capacity to return to full time work in the short term.  If Mr Frangos remains on newstart allowance then he is required to look for work, yet he is required to care for the children 50% of the time.

However for all the reasons mentioned above the Tribunal consider[s] that as Ms Birt has a greater financial need than Mr Frangos she is entitled to the parenting payment and Mr Frangos’ appeal is unsuccessful.”  [T1/13]

12.     The applicant maintains that it costs him more to look after the children.  He has to drive them from the farm to Port Pirie for doctor's appointments, ballet and netball classes, and he takes them also to the Greek school, which they were anxious to join.  He maintains also that since the separation he has been forced to purchase furniture and other household goods, and he has paid the daughter's ballet and netball fees for the last two years.

13.     The applicant argues that the mother works more than 4 hours per week, and leaves the children in the care of friends and relatives.  He has been under the intensive training scheme with Centrelink, but because of the level of care the children require he wants to be there for them.  The mother can work and have the children looked after by others.

14.     The mother said in evidence that she has been forced to rent a house in Port Pirie and her only asset is a car that she is paying off.  Her father is jointly responsible for the car loan.  She has to drive the children to and from Napperby Primary School, 20 kilometres from Port Pirie, twice daily, because the applicant will not allow the children to be at school in Port Pirie.  The applicant, she says, has chosen to pay the ballet and netball fees, but she is willing, if asked, to pay the fees if Samantha wishes to continue.  She said that for the last 10 months she has worked only 4 hours per day, 1 day per week, for a salary of between $60 and $65.  She is able to give full-time attention to the children who visit her father, sister and close family to play with their cousins, not to be "baby-sat" as alleged by the applicant.

15.     It became clear in the course of the Hearing that there is a long-standing high level of animus between the applicant and the mother, which will not abate in the short-term.  The applicant stated his intention to pursue sole care of the children, who he maintains wish to live with him.  He was earning $52,000 per annum at Roxby Downs, but because of his frequent absences from work to pursue his various applications in the Family Court his employment was terminated.

16.     The applicant has the proven ability to earn an income.  He owns the farm with a mortgage of $120,000.  In January 2003 he sold a block of land (stables) in Port Pirie for $30,000 with a mortgage, he says, of $15,000; and on 22 December 2001 he sold a house in Port Pirie for $47,000.  He says that the proceeds of these sales offset his mortgage on the farm, which as at May 2002 stood at $123,000.  He says that it is now $120,000, because of the expenses of lawyer's fees relating to the Family Court proceedings, and the expense of the children.  In the light of the applicant's stated intentions regarding the children, future legal costs will be inevitable.

17.     The SSAT reached a conclusion, open to it on the evidence, and on the whole of the evidence available to me, I see no reason to form a different view.  I am satisfied on the evidence that the wife has the greater financial need, and taking into account all the circumstances of the matter, it is appropriate that she be entitled to the payment of Parenting Payment Single.

18.     For these reasons the Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .......................................................................................
  Associate

Date of Hearing  7 March 2003
Date of Decision  7 March 2003
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr R Kilderry
Solicitor for the Respondent     Advocacy and Administrative Law Team
Counsel for the Joined Party     In person
Solicitor for the Joined Party     -