He v Secretary, Department of Social Services

Jian He appealed to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal, which affirmed a decision rejecting his claim for parenting payment. The dispute concerned the percentage of care of his child, Alex, as between Mr. He and the child's mother, for the purposes of determining eligibility for parenting payment. Mr. He and the child's mother had separated and agreed to a parenting plan that resulted in Alex living with each parent for equal amounts of time from January 2018. Mr. He lodged his claim for parenting payment in August 2018, at which time both parents were recorded as having 50% care of Alex, with the mother recorded as the principal carer and in receipt of parenting payment.

The legal issues before the court were whether the Administrative Appeals Tribunal erred in law in its determination of Mr. He's eligibility for parenting payment. Specifically, the court was required to consider how the principal carer of a child is determined under the *Social Security Act 1991* (Cth) when both parents share care equally, and whether the Tribunal correctly applied the relevant provisions and policy guidance in reaching its decision. The Tribunal's decision hinged on the interpretation of sections 5(15), 5(18), and 5(19) of the Act, which define a principal carer and stipulate that a child can only have one principal carer at a time, requiring the Secretary to make a determination if two or more persons would otherwise be principal carers.

The Tribunal, in its reasoning, acknowledged that the *Social Security Act* does not prescribe a specific method for determining the principal carer in cases of equal care. Consequently, it referred to the Guide to Social Security Law, a policy document used by decision-makers. The Tribunal noted that while not bound by the Guide, it is generally followed for consistency. The Guide provides that in situations of equal care, if only one carer is claiming or receiving income support, that person should be determined as the principal carer. If both are claiming or receiving support, the carer most in need of a favourable determination should be designated as the principal carer, taking into account factors such as eligibility for parenting payment, the rate of payment, income, assets, and other relevant circumstances. The Tribunal applied this policy, finding that the mother was the principal carer, which meant Mr. He was not qualified for parenting payment at the time of his claim.