He v Secretary, Department of Social Services
[2021] FCCA 2036
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
He v Secretary, Department of Social Services [2021] FCCA 2036
File number(s): BRG 559 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 27 August 2021 Catchwords: ADMINISTRATIVE LAW – Social Security – Appeal from decision of the Administrative Appeals Tribunal – decision of Administrative Appeals Tribunal affirmed decision of Social Services and Child Support Division of the Tribunal – Social Services and Child Support Division affirmed decision of Department of Human Services. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Federal Circuit Court Rules 2001 (Cth), Sch. 1
Social Security Act 1991 (Cth), ss 5, 5(15), 5(18), 5(19), 5(24), 500, 500D
Cases cited: He and Secretary, Department of Social Services (Social services second review) [2020] AATA 1491
He v Secretary, Department of Social Services [2021] FCCA 2035
Number of paragraphs: 37 Date of last submission/s: 17 March 2021 Date of hearing: 17 March 2021 Place: Brisbane The Applicant appeared in person Solicitors for the Respondent: Mills Oakley The Second Respondent appeared in person ORDERS
BRG 558 of 2020 BETWEEN: JIAN HE
Applicant
AND: SECRETARY OF THE DEPARTMENT OF SOCIAL SERVICES
First Respondent
MIN ZHOU
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The amended notice of appeal filed on 9 October, 2020 is dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the amended notice of appeal fixed in the sum of $7,200.
REASONS FOR JUDGMENT
JUDGE JARRETT:
In this application, Jian He challenges a decision of the Administrative Appeals Tribunal made on 19 June, 2020: He and Secretary, Department of Social Services (Social Services Second Review) [2020] AATA 1848. The decision concerned the percentage of care of a child born to the applicant and the second respondent as between them for parenting payment purposes.
BACKGROUND
The applicant and second respondent are the parents of one child Alex who is now about 11 years of age. Alex’s parents separated on 26 May, 2016. Initially, there was some litigation between them in the Federal Circuit Court of Australia about the parenting arrangements for Alex. However that conflict ended and the parties agreed on a parenting plan which, over time changed, for Alex’s welfare. The plan progressed such that when Alex commenced at school at the beginning of 2018, he was living for equal amounts of time in each of his parents’ households from about 22 January, 2018.
On 6 August, 2018 the applicant lodged a claim for parenting payment in respect of Alex with the Department of Human Services. At the time of the application, the applicant and the second respondent were recorded as each having 50% care of Alex. Further, the second respondent was recorded as Alex’s principal carer and was in receipt of parenting payment.
On 30 August, 2018, the first respondent (by his delegate) made a decision to reject the applicant’s claim for parenting payment. The applicant sought internal review of the original decision. On 29 November, 2018, an authorised review officer affirmed the original decision.
The applicant lodged an application for review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal. On 14 May, 2019 the Tribunal affirmed the internal review decision.
The applicant lodged an application for second review of the first review decision by the General Division of the Administrative Appeals Tribunal.
On 19 June, 2020 the Tribunal affirmed the first Tribunal decision.
On 16 July, 2020 the applicant filed this appeal in the Federal Court of Australia. On 9 October, 2020 he filed an amended notice of appeal. The appeal was transferred to this court on 14 October, 2020.
THE CONTEXT OF THE PRESENT APPLICATION
I recently considered the nature of an appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) in relation to another appeal brought by the applicant against the first respondent in this case: see He v Secretary, Department of Social Services [2021] FCCA 2035. I will not repeat those observations here.
PARENTING PAYMENTS
Section 500 of the Social Security Act 1991 (Cth) sets out the qualifications for parenting payment. It provides:
500 Qualification for parenting payment
(1) A person is qualified for parenting payment if:
(a) the person has at least one PP child (see section 500D); and
(b) the person is an Australian resident; and
(c) in a case where the person is not a member of a couple and does not have at least one PP child who has not turned 6—the person meets any participation requirements that apply to the person under section 500A; and
(ca) in a case where the person is in a class of persons specified by legislative instrument under subsection (2)—the person meets any participation requirements that apply to the person under section 500A; and
(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;
(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;
(iv) the person satisfies subsection (3).
It will be observed that the first requirement is that the person has at least one PP child. Section 500D defines the term as follows:
500D PP child
(1) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is a member of a couple; and
(c) the child has not turned 6; and
(d) the person is the principal carer of the child.
(2) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is not a member of a couple; and
(c) the child has not turned 8; and
(d) the person is the principal carer of the child.
Note: For principal carer see subsections 5(15) to (24).
Section 5 of the Act sets out family relationship definitions as they relate to children. Relevantly ss.5(15) to 5(24) of the Act define who is the principal carer of a child.
Section 5(15) of the Act provides that a person is the principal carer of a child who has not turned 16 years of age and is a dependent child of the person. Significantly for present purposes s.5(18) of the Act provides that a child can only have one principal carer at a time. Subsection 5(19) provides:
(19) If the Secretary is satisfied that, but for subsection (18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must:
(a) make a written determination specifying one of the adults as the principal carer of the child; and
(b) give a copy of the determination to each adult.
THE TRIBUNAL’S DECISION
In its reasons for decision, the Tribunal identified the issue for its consideration as whether the applicant was qualified to receive the parenting payment at the date of his claim on 6 August, 2018.
The Tribunal set out the statutory framework against which it needed to make its decision. It observed that the Social Security Act does not prescribe how a principal carer of a child should be determined in situations where two parties share equally in the care of the child. Accordingly, the Tribunal referred to the Guide to Social Security Law, a policy document used by officers who administer the Social Security Act to assist them in interpreting and applying the Act. The Tribunal noted that it was not bound by policy or the Guide, but to aid consistency, policy will usually be taken into account and followed unless there are cogent reasons not to. The Tribunal’s approach in that regard was unremarkable.
The Tribunal recorded that the Guide at 1.1.P.416 provides:
Equal Care
If the difference in the level of care provided by the 2 carers is less than 10%, care is considered to be shared equally.
Example: Where care is shared 54/46% or 50/50%.
In situations of equal care where only 1 of the carers is claiming or receiving income support, that person should be determined as the principal carer. If both carers are claiming or receiving income support, the carer who is most in need of a favourable determination should be deemed principal carer.
A decision maker MUST take into account the following factors when deciding which carer is in most need of a favourable determination:
·whether 1 carer already qualifies as principal carer of another child (see below for further detail on determinations involving more than 1 child)
· whether only 1 carer would be eligible for PP
· 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
Note: If either carer has income that fluctuates, the assessment officer may need to look at average income levels over an extended period of time, such as 12 weeks, and
· the asset levels of each carer.
The following factors MAY be taken into consideration by the decision maker, if further information is required to make the determination:
· the expenses of each carer
Example: 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 this time. If there are 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.
Example: Mary and John are separated and equally share the care of their daughter Cathy. Mary has been receiving JSP with principal carer status since April 2020, and John lodges a claim for JSP in June 2020. The rate that would be payable to John is approximately the same as that being paid to Mary. Neither John nor Mary owns any substantial assets such as a house or car. John has recent workforce experience, which increases his employment prospects in the area. It is fair to argue that a decision that cancelled Mary's status as principal carer would have a more significant impact than a decision to reject John's claim to be deemed principal carer, especially as John has greater employment prospects than Mary. Therefore, Mary should continue to be specified as the principal carer of Cathy while John should have generic JSP requirements/concessions.
The Tribunal noted the evidence provided to it by the parents. The Tribunal considered that the evidence was limited and consisted mainly of invoices in relation to activities or costs that were attributed to Alex’s care for the time spent by Alex in each parent’s care. The applicant provided documents relating to the care he provided to Alex, the proceedings in the Federal Circuit Court of Australia, parenting arrangements, and Centrelink notices in proceedings in the Magistrates Court of Queensland.
The Tribunal set out in its reasons the evidence, both oral and written and the lengthy submissions of the applicant and the not so lengthy submissions of the second respondent.
The Tribunal found that the expenses of both parties exceeded their disclosed income in the period around August, 2018 and the evidence showed both engaged in businesses during and after the marriage that “operated on at least a semi cash basis”. It thought that both the applicant and the second respondent gave evidence that conflicted with the documentary evidence before the Tribunal, their own evidence and the evidence given by each other. The Tribunal thought that the applicant did not provide a “clear view of his true financial situation”. It thought the same about the second respondent.
The Tribunal thought that the second respondent evaded answering questions put to her, particularly in respect of her financial circumstances and that she was unable to explain or provide evidence in support of assertions made by her about the applicant and his income.
The Tribunal recorded that both parties had equal care of Alex and either could be considered to be his principal carer. To assist it to resolve the dilemma, the Tribunal considered the “Equal Care factors” set out in the Guide I have extracted earlier in these reasons.
The Tribunal considered that there was no evidence before it that either party was unable to meet their financial commitments or provide support for Alex at any time. It considered that the workforce experience and education level of the parties was similar and so were their future employment prospects.
Ultimately, the Tribunal:
45. … considers that based on the information before it the circumstances of the Applicant and Other Party at the relevant time being August 2018 were not all that different. This finding is not inconsistent with the evidence of the Applicant.
46. Section 5(18) of the Act clearly provides that a child can only have one principal carer at a time. In situations where there are no substantial differences between the parties, the Guide provides that generally the determination which should be favoured is that which maintains the ‘status quo’.
47. For the reasons set out above, given the paucity of the evidence before the Tribunal there is no clear picture or clear evidence that leads the Tribunal to being able to clearly distinguish between which parent is more in need of a favourable determination. Both Parents despite the disclosed discrepancies in the shortfall between their income and expenses always appear to have been able to meet their financial commitments while also providing for the needs of the Child when in their care. Consequently, the Tribunal considers there is no basis to make a determination that does not maintain the status quo.
The Tribunal affirmed the decision under review.
THE APPEAL
The applicant’s questions of law said to arise out of the Tribunal’s decision are set out in his amended application filed on 9 October, 2020 in the following terms (faithfully reproduced):
1. If the Tribunal has failed to give which previously determination need be following on the Decisions? Or failed to check if there is one previous determination exist?
2. If there are any evidence or any legal base support the Tribunal’s claim that “The expenses outlined by both the Applicant and Other Party far exceed what they say their income was”? if so, where is the calculation and comparison on the Decisons?
3. If the Tribunal has intended to ignore the information that the Mother of the child has just Mortgaged her property and bough a brand-new luxury SUV at end of 2017, as it were strong evidence the mother herself was very confident “higher and more dependable sources of income or assets of the great value”, if the ANZ Bank believe it, why the tribunal ignored?
4. If there are a written determination of “principle carer” was made by Centrelink on 27th May 2016 or nearby date as no document has indicated it exist?
5. if the applicant has been denied his legal right to be treated fairly when 4 same decisions with 4 different reasons by Department and AAT?
As the first respondent submits, the applicant’s case is somewhat difficult to discern. He has represented himself in these proceedings and English is not his first language. That has presented some difficulty in understanding the written grounds of the appeal and the written submissions belatedly delivered by him. His oral submissions did not really advance the matter.
When read together with his written submissions and taking into account his oral submissions, each of the five purported questions of law set out above are nothing more than arguments with the merits of the Tribunal’s decision. The Tribunal reasoned that the financial needs of each of the parties were effectively the same. The Tribunal went to great lengths to make it clear that it considered neither the applicant nor the respondent reliable reporters of their income and expenses. It recorded that it considered that the applicant and the respondent underreported their earnings both to the income tax department and for the purposes of social security. It concluded that it could not reach a clear view about the financial circumstances of either party. In those circumstances it determined to follow policy guidance to the effect that the status quo should be maintained.
That was an approach that was open to the Tribunal. The Tribunal considered the authorities that bore on the legitimacy of following published policy that was not otherwise mandated by the legislation pursuant to which the relevant decisions being made. The Tribunal said:
14. It is noted that with respect to whether the Tribunal should apply policy, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J stated at page 645:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to product an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
15. In Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461, Gyles J in considering an earlier provision of the Act regarding parenting payments and determining between carers, relevantly provided at page 467:
… 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 at 39-42 per Mason J. Thus, it is that one decision-maker might prefer the apparent objectivity of deciding on the basis of hours of custody, another night also take into account the qualitative factors and yet another right 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. It is, in circumstances such as the present, a matter for decision by the Administrative Appeals Tribunal, as it has the ultimate say on the merits of the decision.
The status quo was that the second respondent was receiving the parenting payment and had been doing so since 27 May, 2016. The applicant observed that because the second respondent had been receiving parenting payments since that time there must have been a written determination pursuant to s.5(19) of the Social Security Act. However, because the Tribunal did not identify that written determination in its reasons, the applicant argues that without any written determination about who was the principal carer at that point the decision to pay a parenting payment to the second respondent was not “legal”. He then argues that the Tribunal has realised that the payment of the parenting payment to the second respondent since May, 2016 was wrong and so, rather than identify the “legal requirement of “written decision””, the Tribunal fixed on using the fact of payment to the second respondent to justify its decision.
I cannot accept this argument. The requirement for there to be a written determination specifying one of two adults as the principal carer of a child is only necessary if the first respondent is satisfied that, but for s.5(18) (which provides that only one person over time can be the principal carer of a particular child) two or more persons would be principal carers of the same child. When the second respondent commenced receiving parenting payment on 27 May, 2016 she was Alex’s principal carer by reason of the fact that she was providing Alex’s physical care for all of the time. A written determination was not required because Alex did not have two carers.
To the extent that the applicant might now seek to argue that by reason of the order for equal shared parental responsibility made by the Federal Circuit Court of Australia he should be seen as a principal carer of Alex, for the reasons I have given I reject that argument. The order for equal shared parental responsibility does not equate to equal care of Alex, especially when the orders in place provide for Alex to live with the second respondent and spend time with the applicant.
Moreover, whether or not there was a written determination is beside the point. The Tribunal’s reasons demonstrate that it was more concerned with maintaining the status quo, namely that the second respondent continued to receive the parenting payment.
The applicant’s submissions in so far as they concern questions two and three remonstrate with the reasoning process of the Tribunal. It is not suggested that the findings made by the Tribunal were not open to it on the material before it. Rather, the complaint seems to be that the Tribunal has used that material in a way and characterised some of that evidence and those findings in a way, with which the applicant does not agree. These arguments do not reveal any question of law or error of law on the part of the Tribunal.
The applicant’s written submissions with respect to question five also reveal a concern with the findings made by the Tribunal and the merits of its decision generally, rather than the identification of any question of law or error of law on the Tribunal’s part.
CONCLUSION
The amended notice of appeal filed on 9 October, 2020 does not demonstrate any error on the part of the Tribunal and must be dismissed.
The first respondent seeks his costs of the application. Costs should follow the event. There are no circumstances brought to my attention that would suggest that such an order is not appropriate. The amount sought by the first respondent is $7,200 in accordance with Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). That amount is, in my view appropriate and consistent with the schedule of costs contained within the Rules. I have taken into account that this matter was heard at the same time as the applicant’s other application in BRG558/2020. But the two applications dealt with different decisions of the first respondent and different decisions of the Tribunal that required separate consideration and separate preparation.
There will be orders accordingly.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrettt delivered on 27 August, 2021. Associate:
Dated: 27 August 2021
0
6
0