Holmes And Department of Family and Community Services & Ors - [2000] AATA 976

DECISION AND REASONS FOR DECISION [2000] AATA 976

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/735

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GREGORY BRYAN HOLMES
  Applicant
           And    DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  First Respondent
           And    ROBYN JULIE PASSMORE

Second Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date9 November 2000
PlaceCoffs Harbour

Decision The Tribunal affirms the decision of the Department of Family and Community Services of 30 December 1997 as affirmed by an Authorised Review Officer on 28 January 1998 and the Social Security Appeals Tribunal on 29 October 1998 to reject the Applicant's claim for a Sole Parent Pension pursuant to section 249 of the Social Security Act 1991.

..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Social Security – sole parent pension – parenting payment single - joint custody of four children – qualification and eligibility for SPP - financial circumstances factor to be considered - whether 40/60 shared care can be equal – decision affirmed

LEGISLATION

Social Security Act 1991 ss 5, 249, 250 and 251
Acts Interpretation Act 1901 s 8

CASES
Esber v Commonwealth (1992) 174 CLR 430
Guyder v Secretary, Department of Social Security (1998) 49 ALD 13
Holmes v Secretary, Department of Family and Community Servicesand Passmore (1999) AATA 844
Secretary, Department of Family and Community Services v Holmes (2000) 31 AAR 209
Secretary, Department of Social Security v Lowe (1999) 92 FCR 26
Vidler v Department of Social Security (1995) 61 FCR 370

REASONS FOR DECISION

9 November 2000 Ms G Ettinger Senior Member

The matter before the Administrative Appeals Tribunal ("the Tribunal") was by way of remittal from the Federal Court of Australia ("Federal Court") following an appeal by the First Respondent, the Department of Family and Community Services ("the Department") from a decision made on 19 October 1999 by Senior Member Allen of this Tribunal. The matter before Senior Member Allen had been an appeal by the Applicant, Mr Gregory Bryan Holmes with regard to Sole Parent Pension ("SPP") in a shared care situation with his former wife, Ms Robyn Passmore, the second Respondent in these proceedings.
The primary decision under review by the Tribunal was the decision of the Department made by a delegate of the Respondent on 30 December 1997 (T10) as affirmed by the Authorised Review Officer on 28 January 1998 (T16) and the Social Security Appeals Tribunal ("SSAT") (T3) on 29 October 1998 to reject the Applicant's claim for SPP pursuant to section 249 of the Social Security Act 1991.
Senior Member Allen of the Tribunal, who heard the appeal on 19 October 1999, set aside the decision under review and found that the Applicant was eligible for Parenting Payment Single ("PPS") based on his "necessitous financial circumstances". The formal decision was as follows:
"FOR the reasons given orally at the conclusion of the hearing in this matter the Tribunal SETS ASIDE the decision of the Social Security Appeals Tribunal made on the 29th of October 1999 (sic) and substitutes in lieu thereof its decision namely:
THAT the Applicant is eligible for Parenting Payment as and from the next payment day from today's date unless the Respondent is informed by either party that access has not been resumed."
The grounds of appeal as stated in the Notice of Appeal by the Department, dated 25 November 1999, were as follows:
"(i)The Tribunal erred in law in deciding that the Respondent was entitled to PP. The Respondent had never applied for, or been refused, PP. Rather he had applied for, and been refused SPP. The Tribunal had no jurisdiction to consider any issue other than the Respondent's entitlement to SPP.
(ii)The Tribunal erred in law in considering as relevant to its decision the mother's entitlement to PP by virtue of a child born after the Respondent's initial application for SPP in December 1997. The Tribunal did not attempt to relate the relevance of this evidence back to the original decision to refuse SPP, and it does not have any relevance to that decision.
(iii)The Tribunal erred in law in deciding that the Respondent could be eligible for PP when it had accepted evidence that he had a lesser degree of care and control of the children than the mother, and the Tribunal had not found that s 251(2) of the Act applied."
The decision of Gyles J, which was handed down on 20 April 2000, found that there was no error of law in taking into account the financial circumstances of the respective parents in the granting of SPP to a person with a minority share of the care and control of the children. However, Gyles J held that "if there is any relevant government policy guidance, then appropriate regard should be paid to it". His Honour's decision was as follows:
"1.The appeal be allowed.
2.The decision of the Administrative Appeals Tribunal of 19 October 1999 setting aside the decision of the Social Security Appeals Tribunal of 29 October 1998 be set aside.
3.The matter is remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
4.The operation of Orders 1, 2 and 3 to be stayed up to and including 19 May 2000.
5.A copy of this judgment be served upon Ms Robyn Passmore by the applicant on or before 10 May 2000.
6.Liberty to apply on three days' notice as to any matter arising out of Orders 4 and 5."
His Honour also said:
"In any event, I can see no escape from the Department's argument that the Administrative Appeals Tribunal's first (and perhaps only) task was to examine the question as to whether the rejection of the claim for benefit in December 1997 was the correct decision of the merits of the case. Unfortunately, it directed attention to quite a different issue on quite different material. Whilst there is some ability to look at subsequent events, this is only to see what light they throw on the actual question to be decided."

ISSUE BEFORE THIS TRIBUNAL

The issue before this Tribunal was:
(a)Whether the Applicant in these proceedings, Mr Gregory Holmes, who shared care of their four dependent children with his former wife, Ms Robyn Passmore, was eligible for sole parent pension ("SPP") (as it then was), at the time of his claim on 10 December 1997, and for the period to June 1999 ("the relevant period").
There was no dispute, and I agreed that if Mr Holmes qualified for SPP on application on 10 December 1997, then by virtue of the transitional provisions, section 105A of the Social Security Act 1991, he would have been qualified for Parenting Payment Single ("PPS") from 20 March 1998.
LEGISLATION
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") as it applied on 10 December 1997, in particular sections 5, 249, 250, 251.
Section 5(1A) and (1B) of the Act provides a definition of "young person":
"5(1)    young person has the meaning given by subsection (1B)
5(1A)   A person is a student child at a particular time if:
(a) at the time, the person:
(i)has reached 16, but is under 22, years of age; and
(ii)is receiving full-time education at a school, college or university; and
(b)the person's income in the financial year in which that time occurs will not be more than $6,403.
5(1B)   A person is a young person at a particular time if at that time if the person:
(a)is under 16 years of age; or
(b)is a student child.
Sections 249, 250 and 251 outline the eligibility requirements for sole parent pension. As relevant, they follows:
"249     Qualification for sole parent pension
249(1) Subject to subsection (lA), a person is qualified for a sole parent pension if:
(a) the person:
(i)is not a member of a couple; or
(ii)is a member of a couple whose partner has been in gaol for a continuous period of at least 14 days; or
(iii) is a member of a couple who is living separately and apart from his or her partner; or
(iv) is a member of a couple who is unable to live together with his or her partner in a matrimonial home because of the illness or infirmity of the partner where the illness or infirmity:
(A) results in the partner being unable to care for a child; and
(B)is, in the opinion of the Secretary, likely to continue indefinitely; and
(b) the person has at least one SPP child (see sections 250 and 251); and
(c) at least one of the following conditions is satisfied:
(i) if the person has only one SPP child - that child became an SPP child while the person was an Australian resident;
(ii) if the person has 2 or more SPP children - one of those children became an SPP child while the person was an Australian resident;
(iii) if the person has ever been a member of a couple - the person was an Australian resident immediately before the person became a person to whom paragraph (a) applies;
(iv) the person had been an Australian resident for a continuous period of at least 5 years immediately before the day on which the person lodges the claim;
(v) the person has, at any time, been an Australian resident for a continuous period of at least 10 years;
(vi)the person has a qualifying residence exemption for a sole parent pension.
Note:For 'Australian Resident" and "qualifying residence exemption" see section 7
…
250     SPP (sole parent pension) child
250(1) A young person is an SPP child of another person (in this section called the "adult") if:
(a)the young person is:
(i)a dependent child of the adult; or
(ii)a maintained child of the adult; and
(b)     the young person:
(i) has not turned 16; or
(ii) is a child for whom the adult is qualified for child disability allowance; and

(c) any of the following subparagraphs applies:
(i)the young person is a natural or adopted child of the adult; or
(ia)the adult has a specific issues order, within the meaning of the Family Law Act 1975, in relation to the young person under which the adult is responsible for the day-to-day care, welfare and development of the young person; or
(ii)the young person is in the adult's legal custody; or
(iii) if the adult has ever been a member of a couple, the young person was being maintained by the adult immediately before the adult becomes a person to whom paragraph 249 (1) (a) applies; or
(iv) has been wholly or substantially in the care of the adult for a period of at least 12 months immediately before the day on which the adult claims sole parent pension and is, in the Secretary's opinion, likely to remain wholly or substantially in the adult's care permanently or indefinitely.

Note 1: for "young person" see section 5.
Note 2:If a parenting plan which includes provisions dealing with the day-to-day care, welfare and development of the young person is registered in a court under the Family Law Act 1975, the provisions have effect as if they were a specific issues order made by the court under that Act. (See in particular subsection 63E(3) of the Family Law Act 1975).

251Young person to be SPP child for only one person

251(1) A young person can be an SPP child of only one person at a time.

Note: for "young person" see section 5.

251(2)If the Secretary is satisfied that, but for this section, a young person would be an SPP child of 2 or more persons, the Secretary is to:
(a) make a written determination that the Secretary is satisfied that that is the case; and
(b) specify in the determination the person whose SPP child the young person is to be; and
(c) give each person a copy of the determination.

Note: for "young person" see section 5.

…"

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents, ("the T-documents"), lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as listed below:
ITEM DATE NAME
Applicant's Submissions on Remittal together with Attachments       29 August 2000       Exhibit A1
Red Folder Entitled "School Stuff" Containing Material Relating to the Care of the Children of the Marriage                   Exhibit A2
Red Folder Entitled "Receipts for Clothes"                    Exhibit A3
Family Law Property Settlement – Settlement Statement Prepared by Robson & Oliver for the Applicant together with Attachments      4 December 1998    Exhibit A4
T-Documents  Exhibit R1
Respondent's Submissions at Remittal    23 August 2000       Exhibit R2
Material provided by the Respondent regarding Financial Circumstances of the Parties subject to SECTION 35 ORDER        28 August 2000       Exhibit R3

The Applicant was self represented and had various documents prepared with the assistance of the Welfare Rights Centre. Ms Passmore, the Second Respondent also represented herself before the Tribunal. Both Mr Holmes and Ms Passmore gave oral evidence before the Tribunal. The Respondent Department was represented by its advocate, Mr B Slattery.
The Respondent had prepared certain financial statements of the parties relating to Mr Holmes and Ms Passmore from its records. Each party received only those statements pertaining to him or herself, whereas the Tribunal had both sets and, at the request of the Respondent, agreed that that distribution be maintained. I therefore agreed that the documents marked as Exhibit R3 be afforded confidentiality pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, and be available only as specified.
EVIDENCE OF THE APPLICANT, GREGORY BRYAN HOLMES
Mr Holmes, whose date of birth was 6 March 1958, gave oral evidence before the Tribunal. There were several handwritten statements he had made to the Respondent, which formed part of the T-documents. Mr Holmes said that following the breakdown of his marriage and his departure from the matrimonial home, he was required to "start again". He said that while divorce was hard on both parties, he had agreed to a "property settlement that gave the lion share to his wife".
I noted that the shared care agreement for the children was one Mr Holmes and Ms Passmore had come to without assistance of the courts. There was no dispute and I accepted it consisted of a 40/60 arrangement in that Mr Holmes had the children for eight nights out of 21 plus one further day. There were variations to this arrangement by agreement and these are discussed below.
Mr Holmes gave evidence of his impecuniosity, and said that during the relevant period the Second Respondent owned a part-share of a business as well as the matrimonial home. He said that in spite of low earnings declared, she was able to pay $1,200. per month with regard to the mortgage. He gave evidence that at the time of the previous Tribunal's decision, the financial statements of the Second Respondent had not been available. I noted that the Respondent had prepared financial statements since that time, which were before me as Exhibit R3.
Mr Holmes said that due to his financial circumstances during the relevant period, he lived in a house with no running water or electricity and was required to provide a complete "infrastructure of the home for four children" including beds, linen, cutlery and the like. Of the 40/60 residency arrangement, he said: "you don't do 40% of a home".
Mr Holmes, who is a qualified dentist, gave evidence that he accepted whatever work was available to him, including restumping houses as the "unemployment rate was not easy". He said that at the time of the current proceedings, he was a banana grower. I noted his concern regarding fitting in the child care responsibilities and work.
Mr Holmes commented on paragraph 59 of Exhibit R2, (the Respondent's Submissions at Remittal) where it was reported that Ms Passmore had told the SSAT that she made all the arrangements for school and such things as excursions. He said that Ms Passmore did not make all the arrangements regarding the children's school life. He said that their shared residency arrangement meant that when the children were with him, he purchased the children's school uniforms and would pay for any items as they arose during that time such as book club and school photos. He said that he did not, however, receive any assistance in the form of the back to school allowance provided to care-givers. Mr Holmes went on to say that he would attend the children's athletics carnivals, presentation days, parent teacher interviews and life education sessions even when such events occurred outside of his residency weeks.
Mr Holmes said that in non-residency weeks he would drop off and pick up his children where necessary and gave an example of taking his son to his soccer round robin, saying also that he purchased his son's soccer boots. He also said that he took his children on a holiday to Peppermint Park during a non-residency period, a journey of 221 kilometres. Mr Holmes also said that he accompanied his son, Nathan, on all 18 orthodontic treatments, which involved a 120 kilometre round trip each time.
When cross-examined by the Second Respondent, the Applicant said that he did not deny that the Second Respondent spent additional time with the children outside of her residency weeks, but that he was trying to show that he looked after the children in excess of the 40% of the time allocated to him.
The Applicant further contended that details of the Second Respondent's financial circumstances as obtained from the Department of Family and Community Services files were not correct. Mr Holmes alleged that they only documented what was actually declared, adding that his own records were inaccurate because it was difficult to get proper records from his employers. He said: "farmers aren't particularly good record keepers".
When questioned about child support payments, the Applicant said that he paid child support during the relevant period. He said that at a maximum, he would pay $58. per month, and at a minimum, $13.80 per month, and that these contributions would provide for the direct needs of the children. Mr Holmes also said that in December 1998 an amount of $1,100. was deducted from his family law settlement by the Child Support Office and was paid to the Second Respondent for child support. The Tribunal noted that Exhibit A4 recorded the settlement monies received by Mr Holmes as part of the Family Law Property Settlement as $28,829.10 of which $918.09. was the amount deducted for child support.
Mr Holmes, in reply to Ms Passmore's comments about being the primary caregiver as far as the school was concerned, said that the children's school was aware of the family's circumstances and shared care arrangements. He said that if it was his day and a parent was needed, the school would contact him, and only if he was not able to be contacted, would the school would call Ms Passmore.
EVIDENCE OF THE SECOND RESPONDENT, ROBYN JULIE PASSMORE
Ms Passmore whose date of birth was 29 July 1959, said that following the breakdown of their marriage, at the relevant time in December 1997, she and the Applicant had a shared residency arrangement in which the children resided with the Applicant for eight days and then with her for the following thirteen days. She did not disagree that this was on a 40/60 basis.
Referring to the Applicant's evidence of his living and financial circumstances, Ms Passmore contended that the Applicant did not need to live in a house without running water and electricity as he had received a total family law property settlement in the vicinity of $35,000. by December 1998. I noted the figure on Exhibit A4 was close to $29,000. Ms Passmore said that the Applicant had told her that he planned to live in the house without electricity and running water as "it was what he wanted to do and it was what he was going to do". Ms Passmore also said that when the Applicant won a $1,000. gift voucher at Retravision, he used it to purchase a 28 disc CD player even though he was living without electricity at the time. I noted Mr Holmes assertion that the "stereo" was purchased with the best interests of the children in mind.

Ms Passmore said that she was unable to meet the $1,200. per month mortgage repayments and was assisted in paying them by her mother and her sister. Ms Passmore advised the Tribunal that her mortgage repayments could have been significantly reduced much sooner had the Applicant agreed to accompany her to the Credit Union to re-finance the loan. She also said that after the family law property settlement she managed to renegotiate the loan herself.
When giving evidence about care for the children outside their strict shared care arrangements, Ms Passmore said that while the Applicant took the children to soccer round robins in winter, in summer she would take them to Nippers outside her residency weeks. She also said that she took her daughter to netball.
Ms Passmore said that she also paid for a majority of the children's expenses, including discos, all major excursions and the public school fees, and provided all the school uniforms for the children. Ms Passmore added that after 1998 she stopped providing school uniforms for the children to take with them during their access time with their father because he did not care for the garments properly.
Ms Passmore said that Mr Holmes only paid for one lesson in three for Ellen's flute lessons, and that she was required to pay for music examination fees and a share of the flute hiring fees.
As for Nathan's orthodontic treatment; Ms Passmore said that while the Applicant did take him to the surgery, he did so because it was his old firm and afforded him an opportunity of meeting with his colleagues. She also said that although Mr Holmes had agreed to share the cost, all bills were forwarded to her. Ms Passmore said that at that time she had bought out the Applicant and the two other partners in the business, and could not afford the dental bills. She said that her mother paid the dental bills.
Ms Passmore said that medical bills were not a big problem because the children were relatively healthy. There were occasions, however, when she had to assume responsibility, such as when Daniel cut himself on the changeover day and when Nathan broke his arm and Mr Holmes could not be contacted.
Ms Passmore said that she provided all of the children's clothes and paid for other things including haircuts and deodorants. Ms Passmore said all of her decisions and choices were made for the children and that she would always support and care for them as necessary. She stated that she was always there for the children if Mr Holmes wanted to change the shared care arrangements or it was a week when he could not take the children. She emphasised that she always took care of the major expenses, while Mr Holmes took care of more minor expenses.
When questioned about whether she was the first point of contact at the children's school, Ms Passmore said that as the school's records were all on computer and only one name could be recorded in the relevant field, her name was recorded as the primary care-giver.
SUBMISSIONS AND CONCLUSIONS
To come to the correct and preferable conclusion I must take into account the evidence and submissions of the parties as well as the case law and legislation which applied at the time of Mr Holmes' application in order to determine whether he was eligible for Sole Parent Pension ("SPP") at the time of his application, and during the relevant period between 10 December 1997 and June 1999. In this respect, I was greatly assisted by the written submissions prepared on behalf of Mr Holmes by Ms S Koller, principal solicitor of the Welfare Rights Centre (Exhibit A1), and Mr Slattery, advocate of the Department, who appeared at the hearing (Exhibit R2). I have been careful to also consider the oral submissions of Mr Holmes and Ms Passmore who appeared at the hearing unrepresented, as well as considering the written submissions of Ms Koller and Mr Slattery, and Mr Slattery's oral presentation. I am of course mindful that the Social Security Act 1991 is beneficial in nature.
I noted Ms Koller's submission that the reason for remittal to the Tribunal was:
"… not due to an error in the exercise of the discretion or the factors relevant to the exercise of the discretion, but because the Tribunal applied these factors to the situation and payment type that existed at the time the matter came before him. Instead the Tribunal should have looked at the facts at the time of the claim and considered whether to grant the pension claimed."
Ms Koller maintained that the Federal Court, in dismissing the Respondent's appeal on the ground that the Tribunal erred in law in granting PPS to the Applicant who had less than equal share of the custody and control of the relevant children, upheld the validity of the decision of the Tribunal, where Senior Member Allen had considered the relative financial circumstances of the parties as the "basis for exercise of the discretion in this case".
Mr Slattery submitted, however, that while the Department accepted the decision of Gyles J that there had been no error of law in Senior Member Allen considering the financial circumstances of the parties in exercising his discretion, the facts did not support his (SM Allen's) finding that section 251 of the Act should be applied in favour of Mr Holmes.
I was mindful of his Honour's statements regarding this Tribunal's powers of review in the first eleven paragraphs of the decision Secretary, Department of Family & Community Services v Holmes (2000) 31 AAR 209. I adopt the submission made on behalf of the Department and accepted also by his Honour that:
"the appeal which was on foot to the Social Security Appeals Tribunal was preserved by the operation of s 8 of the Acts Interpretation Act 1901 (Cth) as was the right to review the result of any such appeal in the Administrative Appeals Tribunal. If the appeal ultimately succeeded, then any decision would operate as and from December 1997. A Sole Parent Pension would be payable up until 20 March 1998 and from that date cl 105A of Sch 1A would operate and continue in force the Sole Parent Pension as a Parenting Payment.
His Honour noted, and I respectfully agree that the authority for the above proposition was Esber v Commonwealth (1992) 174 CLR 430. I noted that section 8 of the Acts Interpretation Act 1901 acts to preserve accrued rights and states as relevant:
"8.     Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)       ...
(b)       ...
(c)affect any right privilege obligation or liability acquired                 accrued or incurred under any Act so repealed; or
(d)...
(e)affect any investigation legal proceeding or remedy in                    respect of any such right privilege obligation liability                penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced ... as if the repealing Act had not been passed."

I was mindful that pursuant to Gyles J's decision, and section 249 of the Act that the relevant payment applied for by Mr Holmes in December 1997 was SPP. I had therefore, to look at all the circumstances of the shared care and surrounding factual matters to decide whether Mr Holmes was qualified for SPP at the time of his application in December 1997. In doing so, I also considered the Guide to the Administration of the Social Security Law ("the Guidelines").
For the sake of completeness, I noted that at the relevant time, the Holmes/ Passmore children each satisfied the definition of young person pursuant to section 5(1B) of the Act in that each of the four was under 16 years of age. Each of the children was an SPP child pursuant to section 250(1) of the Act in that each was a dependent child, had not turned 16 years and was the natural child of Ms Passmore and Mr Holmes.
I had then to consider whose SPP child each child was pursuant to section 251(1) of the Act, or whether, pursuant to section 251(2) of the Act, each or any of the children could be the SPP child of more than one person. I had to consider whether Mr Holmes qualified for SPP pursuant to section 249 of the Act. In doing so, I took into account Chapter 3.5.1.50 of the Guide to the Social Security Law ("the Guidelines").
GUIDELINES AND POLICY
I turned to first consider section 251(1) of the Act, which restricted a young person to being an SPP child of only one person at a time, noting that there was, however, a discretion pursuant to section 251(2) of the Act as follows:
"251(2)If the Secretary is satisfied that, but for this section, a young person would be an SPP child of 2 or more persons, the Secretary is to:
(a) make a written determination that the Secretary is satisfied that that is the case; and
(b) specify in the determination the person whose SPP child the young person is to be; and
(c) give each person a copy of the determination."
Mr Slattery drew my attention to Gyles J's comments that while the discretion of the decision-makers was broad, they must be guided in making their decision by any applicable government policy. Specifically, I noted that Gyles J stated at paragraph 18 that:
"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 … 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." [Tribunal's emphasis].
According to Mr Slattery, in the exercise of the discretion due regard had to be given to departmental policy and the Guidelines, specifically Chapter 3.5.1.50 of the Guide to the Social Security Law. Mr Slattery submitted that the policy provided that where SPP was being claimed by two people in respect of one child, in order to reach a decision the decision-maker had to take all the circumstances into account. Mr Slattery accepted that the person who had the child(ren) in question in their care for less than 50% of the time might still qualify for the payment where the circumstances were such as to warrant that person's qualification. He also said in cases where the ratio of care was 45:55, the Department was able to accept each person's level of care to be equal.
Mr Slattery, noting that the Guidelines referred specifically to PPS (that is to the later benefit), said that the policy, which also applied to SPP, directed that:
"… given that qualification for PPS (parenting payment single) is based upon having the care of a child, it will generally be appropriate to decide that the child is a PPS child of the person who is providing the greater degree of care, even if that person has not claimed PPS."
I noted both Mr Slattery and Ms Koller's submissions, the latter submitting that reference to policy guidelines in exercising discretion afforded by the Act, was only lawful in circumstances where it guided the decision-maker's use of the discretion rather than curtailed or narrowed its application. She submitted that:
"Guidelines which urge that a factor found to be relevant by the Federal Court cannot be taken into consideration, would unduly restrict the exercise of the discretion. It is the nature of a discretion that all of the circumstances, except those which are irrelevant in the legal sense should be considered. In
our view it would not be in the public interest to read the discretion so narrowly as to require parents, for financial reasons, to elect to avoid true shared care situations, while the recent amendments to the Family Law Act have sought to encourage such an approach."
Mr Slattery submitted that in accordance with the Guidelines, the Department had taken into account all of the circumstances of the case and reached the correct and preferable decision. He said that the Department had considered the time spent in each parent's care, the parties' financial circumstances and other matters in reaching its decision to grant SPP to Ms Passmore.
I was mindful of Gyles J's comment that the Tribunal should take into account departmental Guidelines and noted the submissions of both Ms Koller and Mr Slattery. I recognised the emphasis both Mr Slattery and Ms Koller expressed and was mindful that Guidelines are relevant particularly in a case such as this where the legislation does not specify indicia to be taken into account. I was mindful that I was bound by the legislation and moved then to consider the evidence regarding the care and control of the children.
CARE AND CONTROL OF THE HOLMES/PASSMORE CHILDREN
I noted the undisputed evidence that during the relevant period, Mr Holmes and Ms Passmore shared the care of their four dependent children on a 40/60 time basis. I was mindful of the Applicant's submission that he agreed to move out of the matrimonial home in the best interests of the children, and to set up a home to which they could come. I was satisfied from their evidence and submissions that both parents had acted in the best interests of their children, and that both spent time and money in excess of their exact time allocations under their 40/60 shared care agreement. There were, of course, further issues of care and control, and the consideration of the financial position of each as discussed below.
Ms Koller maintained that even though the Applicant spent nine days out of 21 with the children, the mathematical approach adopted by the Department to determine which party exercised more care and control of the children was unduly restrictive and did not provide a true representation of the circumstances in the instant case. She said that the Department:
"… still considers the pure quantum of hours a child spends with a particular parent to be determinative. This is a narrow view of the Vidler approach which restricts even that approach from "custody, care and control" to mere physical custody. Consequently the Department devotes much of its submission to revisiting the facts of the matter and arguing that the difference between the amount of time each child spent with each parent was so great as to be determinative of the issue. However, even when children are physically with one parent, it does not mean that the other is not still exerting care and control. For example, one might telephone the other to discuss immunisation or other issues; or they might be purchasing items or making plans."
Ms Koller submitted that where a parent continued to exert care and control of children outside of residency periods, as in Mr Holmes' case, a strict calculation of the number of days spent in each parent's care was of limited importance or assistance in determining which parent was eligible for SPP. She said:
"The use of precise percentages and ratios in the Department's submission tends to make the numerical differences disproportionate to their practical effect. Each parent had all four of the children with them so frequently and for such periods that they were both required to have child friendly work hours and they were both required to have suitable accommodation and food for the children."

I accepted Ms Koller's submission that while day-to-day decisions were made by the parent who had the care of the child(ren) at the relevant time, major decisions as to their long-term care and control were reached jointly. She further submitted that the Applicant spent additional time with his children outside of his normal residency time to do such things as take the boys to soccer and organise Nathan's orthodontic treatment. I was mindful of Ms Passmore's evidence that she in turn attended to events outside her strict times such as netball and Nippers.
Mr Slattery argued that that the division of care in this case could not be viewed as equal after considering the Guidelines. He said that the broader concern underlying this policy was that:
"… people generally qualify for sole parent pension and parenting payment single where they have the predominant caring responsibilities of the child(ren). Where a person does not have predominant caring responsibilities, the department considers that they are able, other things being equal, to participate in the paid workforce and thereby qualify for newstart allowance."
In that regard, I noted the evidence of Mr Holmes regarding the difficulty of finding work, and was mindful he was in receipt of Newstart Allowance at the time he lodged his claim for SPP on 10 December 1997, and for various periods after that time during the relevant period. There was no evidence that he was seeking dental work and his evidence centred around banana growing and labouring. I was also mindful that Newstart Allowance is a payment made for persons seeking work.
Mr Slattery submitted that had the Department considered the care and control to be equal between the parents, even with the 10%, margin, then the Department would also have considered the financial and other circumstances of the parties.
I noted Mr Slattery's further submission directing my attention to the comments made by the Applicant at paragraph 10 of the SSAT decision (T2/9). He said that Mr Holmes did not dispute the fact that he made decisions regarding the children when they were in his care and Ms Passmore made the decisions when the children were in her care, which reinforced the 40:60 division.
I was mindful from the evidence that it was not disputed Mr Holmes cared for the children on a shared care basis, 40% of the time, and that for good reason, this was varied from time to time. I noted he accompanied the children to soccer even when it was not his turn to have them, and that similarly, Ms Passmore carried out the netball and Nippers duties. I noted other activities with regard to the children in which Mr Holmes was involved as included in Exhibits A2 and A3. They were amongst others, expenses related to a second set of school clothes, book clubs, school shows, a sponsorship for a school runathon, accompanying Nathan on a 120 kilometre round trip to 18 orthodontic appointments over a 20 month period and various others. I accepted Ms Passmore's submission that anything the Applicant did with the children outside of his residency weeks would be balanced by things she did outside hers and thus, during the relevant time, the 60/40 shared custody arrangement was accurate.
I also accepted Ms Passmore's submission that she was always available as the primary carer if Mr Holmes wanted to change arrangements regarding the children's care, and that the formal arrangement was that she cared for the children 60% of the time during the relevant period. I accepted that major decisions regarding schooling for example, were taken jointly. Ms Passmore's evidence which I accepted, was that she paid for the major expenses including major excursions, public school fees, school uniforms and haircuts, while Mr Holmes generally took care of the more minor expenses. I noted that at one time, due to the fact Ms Passmore was dissatisfied with Mr Holmes standard of laundering, he was required to provide school uniforms for the time the children spent with him. I found from the evidence that Ms Passmore had the predominant caring responsibilities, both physically and financially.
I was mindful that pursuant to the Guidelines, where the difference in the level of care was less than 10%, for example if it was found to be 45/55, then the care could be accepted as equal. I was mindful further that where a person had the child(ren) for less than 50% of the time, the person might still, depending on all the circumstances of the case, qualify for SPP/PPS. I was also mindful that I was able to consider the financial situation of Mr Holmes and Ms Passmore in relation to the relevant period, and have done so in the paragraphs which follow.
FINANCIAL CONSIDERATIONS

I noted that the parties before me had made submissions with regard to their respective financial situations, and that Senior Member Allen had taken these into account in making his decision in Holmes v Secretary, Department of Family and Community Services (1999) AATA 844. Further, Gyles J had not found the taking of financial considerations into account to be an error of law. I also had before me Exhibit R3 which was a summary of the financial situation of Mr Holmes and Ms Passmore for the relevant time. I therefore gave consideration to the evidence regarding the financial situation of the parties, noting the restricted distribution of the documents.
I was mindful of the main decided cases in relation to this area, and noted Guyder (1998) 49 ALD 13, where the care and control was judged to be equal, the relative financial needs of the parties were to be taken into account. I was not restricted in considering the financial situations of the parties simply because I found Ms Passmore to have exercised the greater degree of care and control during the relevant period. I also considered Lowe (1999) 92 FCR 26 where the Full Federal Court held that the Tribunal had not erred in law in awarding SPP to the mother on the basis that even though the parenting rights, duties and care were shared equally, her financial need was greater.
I was mindful that as part of the family law settlement (Exhibit A4), Mr Holmes received approximately $35,000. by 1998, which he said represented 30% of the assets, and although that occurred later than the application date in December 1997, it was during the relevant period to be considered. Mr Holmes' evidence was that from this settlement he paid off his car and put $4,200. towards his Bankcard. The Applicant submitted that by the time he had paid the Child Support Agency and his solicitors, he was impecunious and had no choice but to live in a house without running water and electricity. The financial statements of Mr Holmes and Ms Passmore were at Exhibit R3 (subject to a section 35 of the Administrative Appeals Tribunal Act 1975 order).
Mr Holmes said that he did not like arguing with Ms Passmore, and was critical of the process whereby they "were pitted against each other". However, he said that in December 1997, he was in dire financial straits in trying to look after his children and wanted his care of the children recognised by the Department.
Mr Holmes submitted that if he should succeed before this Tribunal, his wish was that Ms Passmore not be burdened with a debt, or have a situation arise where she would be required to repay monies to Centrelink. I appreciated Mr Holmes' concern but was mindful that the above mentioned concerns were not considerations relevant to my decision making.
Ms Koller submitted that the Tribunal should, rather than approach the question whether Mr Holmes was eligible for SPP narrowly, consider all of the circumstances before it. These circumstances, according to Ms Koller necessarily involved an examination of each parties' financial positions and:
"… how their positions impact upon their capacity to undertake the duties involved in the shared care of four children. This includes the impact of labour force restrictions due to childcare needs, the setting up and maintaining of adequate accommodation and other matters. It is relevant in this case that there is additional financial strain due to the number of children affected."

The facts, said Ms Koller, demonstrated the Applicant's greater financial need for assistance in looking after the children. She argued that the Tribunal should consider and give appropriate weight to his circumstances. At paragraphs 6-8 of her submissions, Ms Koller summarised the financial positions of the parties, and said:
"Financially, Mr Holmes has been in a difficult position. Not only did he provide accommodation and pay for the children when they were with him, but he also paid child support for the remainder of the time. His childcare arrangements made it difficult for him to seek work. Although Mr Holmes had previously undertaken locum dentistry work, the hours involved made this impractical. Consequently Mr Holmes undertook a range of positions including labouring work in banana plantations between commitments.
Ms Passmore had also claimed the Sole Parent Pension and received a part payment throughout the relevant period. The payment was reduced due to business income. At the end of their relationship Ms Passmore bought out Mr Holmes' share of the family business and the home. Ms Passmore now has a fifth child born 30.11.98 (sic) for whom she is able to claim a payment …
Based on the evidence available to Mr Holmes, he considered himself to be in the more difficult financial circumstances. This is based upon the fact that during the year prior to the property settlement, the business had made a profit and the apparent fact that Ms Passmore has met the home mortgage repayments. Meanwhile Mr Holmes was required to set up new accommodation and has had intermittent employment."
Mr Slattery submitted on behalf of the First Respondent, that if Ms Passmore was receiving more money than the Applicant at the relevant time, it reflected the fact that she cared for the children for a larger proportion of the time and accordingly, had "greater financial responsibilities". He said that:
"While Ms Passmore was in receipt of income from her business and was receiving a reduced rate of sole parent pension and later parenting payment single, the respondent considers that this fact, of itself, should not serve to disentitle her simply on the basis that Mr Holmes had obtained the care and responsibility of the four children for 40% of the time."
I noted that the previous Tribunal also took into account that Ms Passmore's circumstances had been further altered by the birth of another child, Willow, for which she was eligible for SPP (or PPS as it is now). I was mindful that neither the financial circumstances of the parties at the time of the previous hearing nor the circumstances surrounding the birth of Ms Passmore's daughter Willow were of relevance to Mr Holmes' application for SPP in December 1997 and therefore, the question before me.
I was mindful in coming to a conclusion regarding whether the financial situation of the parties should be taken into account in deciding whether Mr Holmes was qualified for SPP at the relevant time, that no separated parents seeking to care for four children in circumstances of living separate lives and being partially dependent on social security, finds it easy. I was mindful, however, that I was bound by the legislation and the case law, and required to take into account the relevant Guidelines which I have done. I noted that the Guidelines document before me actually related to later legislation but accepted Mr Slattery's assurance that it applied equally to SPP.
The policy essentially provided that where two people claimed payment with respect to a child, the circumstances of each case were to be taken into account. I was mindful that the legislation does not specify exactly what indicia had to be taken into account. However, given that the qualification for SPP was based upon the care given to a child, and given a child can only the SPP child of one person (section 251(1) of the Act) (except in exceptional circumstances as contemplated by section 251(2) of the Act ), it would seem that the person providing the greater degree of care was the more appropriate person to receive SPP. I noted that the policy also guided decision-makers to consider the level of care equal where it was accepted to be 45:55.
Mr Slattery submitted in paragraphs 49 and 50 of his written closing submissions, that:
"As explained above, the department's policy is to accept as "equal care" arrangements where the difference is not more than 10%, i.e. 45:55. Once the care is "equal" then the policy is to further inquire into the respective financial and other circumstances of the claimants. The respondent maintains that the department's policy on this point is a fair attempt to protect both parties' interests and reinforces the purpose of sole parent pension and parenting payment single, which is to provide support to parents with the predominant child care responsibilities. To award sole parent pension or parenting payment single to a person with 40% share of their SPP children, (where the parent with the 60% care also wishes to qualify) frustrates the policy intent that the parent with predominant care should normally attract the entitlement."
Having reviewed the case law, in particular Guyder v Secretary, Department of Social Security (supra), Secretary, Department of Social Security v Lowe (supra) and Vidler v Department of Social Security (1995) 61 FCR 37 I was mindful that the relative financial circumstances of Mr Holmes and Ms Passmore should be taken into account. In Guyder (supra), the Tribunal held that because the care and control of the parents towards the children could be held to be equal, and because Mrs Guyder had a greater need for financial assistance, she was to receive SPP. On appeal, Foster J upheld that criterion for making the determination in favour of Mrs Guyder. I noted that in Lowe (supra), it was held that all parenting duties and care were shared equally. The financial needs of the mother were held to be greater than those of the father, and accordingly SPP was granted to her. Even though the matter went on appeal before a single judge who held that neither parent had an entitlement to SPP, the Full Court in Lowe (supra) held that the Tribunal had not erred in law in granting SPP to the mother. I also considered Vidler (supra), but considered that it could be distinguished for the fact that the parents had joint custody and the care in that case was equal and alternated between the parents by week.
I have noted that in contrast with cases such as Lowe (supra) and Vidler (supra), where the care was found to be shared equally, in the present case, it was agreed that the care of the children between Mr Holmes and Ms Passmore was shared on a 40/60 basis. I was satisfied that this was so even when extra time spent with various children by each for specific activities outside of the formal contact time was taken into account. Therefore, as I have already stated, I find that Ms Passmore spent more time and expense in connection with the care of the children than Mr Holmes. Mr Slattery submitted that I should, therefore, not consider the financial situation of the parties when determining whether Mr Holmes was qualified for SPP at the relevant time.
However, I decided for the sake of completeness to consider the financial situation of the parties. I took into account their evidence and the documents before me as Exhibit R3 which disclosed the financial circumstances of the parties at the relevant time in 1997/8.I was mindful the financial statements of the parties at Exhibit R3 were subject to an order for confidentiality pursuant to section 35 of the AAT Act, so that I shall refer to them in general terms only. I noted that at the time of the claim for SPP by Mr Holmes on 10 December 1997, (and this was freely available information from the T-documents), he had reported some casual earnings and was in receipt of Newstart Allowance, an allowance paid to persons who are considered by the Department, to be seeking work. He had not yet had the proceeds of the property settlement which took place in 1998. Ms Passmore had bought Mr Holmes' share of the business and house at the time of the separation, and had some income from the business during the relevant period. Her evidence was that her mother was paying the mortgage on the house until she finally had the payment schedule reduced by her Credit Union, and that her mother also paid the orthodontic bills for Nathan.
Having considered the financial situation of both parents, and even if Ms Passmore appears to have had a greater income than Mr Holmes at the relevant time in December 1997, I accepted her evidence that she met the greater part of the children's expenses including hair cuts, school uniforms, major excursions, dental and music bills and school costs. I acknowledged, of course, that Mr Holmes paid child support which varied in amounts from $58. to $13.80 per month. However, as the 60% carer, and the one who was both physically and financially more responsible for the care of the children, Ms Passmore undoubtedly had more expenses for the children including food and other bills.
WHETHER ONE OR MORE CHILDREN SHOULD BE CONSIDERED AN SPP CHILD OF MR HOLMES
Ms Koller submitted that in the alternative, given that Mr Holmes had extensive care and control of his eldest son, that child should be considered an SPP child of Mr Holmes. I noted that this reference was to Mr Holmes accompanying his son to the orthodontist and soccer outside the strict shared care arrangements.
I noted also the submission of Mr Holmes himself, who submitted that if one of his children lived with him 100% of the time, that child would be his SPP child. He also submitted that the wording of section 251 of the Act specified "a child" and not "children" in that it stated that "a young person can be a SPP child of only one person at a time". On that basis, he submitted that the SSAT decision was wrong because it referred to the four children as an entity, acknowledging that they were dependent children of Mr Holmes, but not considering the situation of each young person separately. He also calculated some quite artificial combination of percentages of time spent with the children in support of his argument that at least one or even two of the children were separately his "SPP child". He submitted that aggregating and taking into account the whole of the arrangements regarding the children over a period of time, it could be demonstrated that he had at least one SPP child.
Ms Koller, on behalf of the Applicant, submitted that the matter could be resolved by determining that one or more of the children were an SPP child of the Applicant. She submitted that there was "no legal impediment" to the Department, or the Tribunal standing in the shoes of the Department, making a decision along these lines to qualify the Applicant for SPP. Ms Koller argued that:
"Under the Department's own test if Mr Holmes had only one of the children physically with him for a few hours longer than the child is with Ms Passmore, this is exactly the result which would ensue. We cannot see any difference in applying the same result in consequence of the application of criteria other than the comparison of simpler numerical hours. We note that Mr Holmes has a high degree of involvement during the relevant periods in the needs of his eldest son due to the need for dental work and soccer arrangements."

Mr Slattery submitted that the alternative suggestion raised by Ms Koller was not supported by the legislation, policy or the case law regarding SPP children. Mr Slattery said that while section 251 of the Act required the Department to consider the circumstances for each child before assigning SPP to a parent:
" … the factual care situation of all four children was the same … To the Respondent's knowledge, all four children stayed with each parent at the same time and for the same period. Therefore, there is nothing in any of the children's individual circumstances that would enable them to be "separated" for the purposes of determining which parent should be recognised as having each SPP child in their care."
I noted also the submissions of Mr Slattery regarding the classification of one or more children as an SPP child of Mr Holmes. He submitted that the care situation for the four children was the same for the purposes of these proceedings. He emphasised the evidence was that all four children stayed with each parent at the same time and for the same period. He submitted that there was nothing in any of the children's individual circumstances which enabled them to be separated for purposes of determining which parent should be recognised as having each SPP child in his or her care. Mr Slattery submitted that separating the children in these circumstances was an artificial and arbitrary solution, which would undermine the intent of the legislation.
Mr Slattery submitted that if such an approach was adopted by the Tribunal, there would be no impediment to a parent with care of child for 35% of the time receiving SPP. He said further:
"This proposal would create an artificial and arbitrary solution which undermines the intent of the provision. It is not the intent of section 251 that people with shared care arrangements involving more than one child should be placed in a more advantageous position when compared to people with shared care of one child."
Ms Passmore also submitted that if Mr Holmes was deemed to qualify for SPP on the basis of this alternative solution posited by Ms Koller, that the Applicant had the care of one or more of the children for more time than she did, it would be like "living a lie" and was "not a true reflection of how everything was". Ms Passmore submitted that it "was far simpler to live by the truth".
I noted the submissions of the parties regarding the possibility of one or more children being deemed to be an SPP child of Mr Holmes at the relevant time. I found from the evidence that the parents had made a deliberate decision to keep the children together and that there was nothing in any of the children's individual circumstances that would enable them to be "separated" for the purposes of determining which parent should be recognised as having each SPP child in their care. I decided that it would be an artificial and inappropriate way of applying the legislation to decide that one or more children were the SPP children of Mr Holmes. I decided that based on the 40/60 arrangement for the care of the children, and the fact that they were an entity which moved from one parent to another as agreed unless it was soccer or orthodontic appointment time, or some other activity in which all did not participate, then isolating one child to be an SPP child of Mr Holmes was not appropriate.
MR HOLMES COMMENTING ON THE OMBUDSMAN REPORT AND SECRETARY, DEPARTMENT OF SOCIAL SECURITY V LOWE (1999) 92 FCR 26
In his written submission, Mr Holmes drew my attention to a report of the Commonwealth Ombudsman released on 8 October 1999 in which he quote the Ombudsman as saying: "Government agencies have an obligation to take reasonable measures to ensure those… eligible for income support should receive it." He stated further that the Ombudsman had referred to the compensation system as "difficult to understand and applied inconsistently…. in some cases agencies are reluctant to pay even when it would obviously be unfair not to." He also referred to the decision of Lowe (supra).
I have noted Mr Holmes reliance on statements made by the Ombudsman and make no further comment except to note that in considering his case I must taken into account the relevant legislation, case law, evidence and submissions before me.
In coming to my decision that the correct decision was the decision taken by the Department and the SSAT that Ms Passmore should be the recipient of SPP (and from 20 March 1998, PPS), for the Holmes/Passmore children during the relevant period, I have taken into account my finding that Ms Passmore was not only the agreed 60% care giver of the children but that she exerted more financial and physical control during the relevant period. I have taken the Guidelines and the financial situation of the parties into account in my decision making and have found that although Ms Passmore may have been earning a little more than Mr Holmes, she had the greater need in that she clothed and fed the children and was responsible for their major expenses at least 60% of the time.
DECISION

The Tribunal affirms the decision of the decision of the Department of Family and Community Services of 30 December 1997 as affirmed by an Authorised Review Officer on 28 January 1998 and the Social Security Appeals Tribunal on 29 October 1998 to reject the Applicant's claim for a Sole Parent Pension pursuant to section 249 of the Social Security Act 1991.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  31 August 2000
Date of Decision  9 November 2000
Counsel for the Applicant  N/A
Solicitor for the Applicant  Self-represented
Counsel for the First Respondent        N/A
Solicitor for the First Respondent        Mr B Slattery
Counsel for the Second Respondent   N/A
Solicitor for the Second Respondent    Self-represented