INGLIS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 627

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 627

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2010/2791

GENERAL ADMINISTRATIVE DIVISION		)
Re		JASON INGLIS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

And SAMARA MABBOTT

Third Party

DECISION

Tribunal Mr G L McDonald, Deputy President

Date20 August 2010

PlaceMelbourne

Decision The tribunal declines the application for a stay but directs that the application be set down for an expedited hearing in Geelong on Monday, 6 September 2010 at 10.30am.

.......(sgd G L McDonald)....

Deputy President

CATCHWORDS

PRACTICE & PROCEDURE – Stay of proceedings - Effect of grant would allow applicant to receive the parenting payment- Qualifications for parenting payment- Who is principal carer- Changed circumstances of one parent- Necessary to hear both parents in person before stay can be granted

Social Security Act 1991 (Cth) ss 5(18), 5(19), 5001(1)(a), s 500D(1)(d), 2(d) and (3)(c);

REASONS FOR DECISION

20 August 2010   Mr G L McDonald, Deputy President

1.      The applicant, Mr Inglis, and the third party, Ms Mabbott, are the father and mother of a child, Jacob, who was born on 15 December 2006.  The Social Securities Appeals Tribunal (the SSAT) in its decision, dispatched to the parties on 25 June 2010, allowed an appeal by Ms Mabbott and decided that she is the principal carer for Jacob and she should receive the parenting payment single.  Mr Inglis seeks a review of that decision by this tribunal and, in the interim, seeks a stay of the SSAT decision.  The effect of granting a stay would be that he would instead be the recipient of the parenting payment single.  Ms Bramley, for the respondent, provided a very helpful submission opposing the stay.

2.      The Social Security Act 1991 (Cth) (the Act) specifies the qualifications necessary in order to receive a parenting payment. In particular, the applicant must have at least one “PP child”[1].  The Act defines a “PP child” by reference to the person who is the principal carer of the child[2].  Only one person can be considered the principal carer of a child[3]. In the circumstance when two or more persons would be the principal carer of the same child, the Secretary of the Department must determine who the principal carer is and give a copy of same to each person[4].  The Act does not specify any criteria by which this decision is to be made.  The criteria are set out in a departmental guide[5].  In view of the decision reached by this tribunal, it is not necessary to set out the relevant provisions of the guide.  

[1] Social Security Act 1991 (Cth), s 500(1)(a).

[2] Social Security Act 1991 (Cth), s 500D(1)(d), 2(d) and (3)(c); for example, s 500D(2) provides that the child is to be a child of the person, the person is not a member of a couple, the child has not turned 8 years and the person is the principal carer of the child.

[3] Social Security Act 1991 (Cth), s 5(18).

[4] Social Security Act 1991 (Cth), s 5(19).

[5] Guide to Social Secrity Law (Version 1.167- Released 2 August 2010).

3.      Mr Inglis and Ms Mabbott separated on 10 September 2007, and apparently they have as little contact with each other as possible.  The tribunal heard from each of them separately in a telephone directions hearing held on 12 August 2010.  Both of them confirmed that, under an interim order made by the Federal Magistrates’ Court, they each had been awarded 50% shared care of Jacob, pending a final decision to be made by the Family Court of Australia.  At the time the SSAT made its decision, both parties lived in, or in the vicinity of, Geelong.  Subsequently, Ms Mabbott moved to Wangaratta in the north of Victoria.  The interim order also provided that if Ms Mabbott was to participate in the care of Jacob, she had to live within 100 kilometres of Geelong.  Ms Mabbott told the tribunal, and the tribunal accepts that she will move to Geelong in the weekend of 14-15 August 2010.  The parties differed as to the time it would take for their case to come before the Family Court for determination, one saying it was anticipated in two months while the other said that it may take up to six months.

4.      It is evident from the reasons expressed by the SSAT that it gave detailed consideration to the circumstances of each party as they were at that time.  As the respondent pointed out, the decision was open on the evidence before the SSAT and there is nothing to suggest unreasonableness in the approach it took to considering the law or the facts.  In the circumstances it is not possible, or even desirable, for this tribunal to reconsider the detail in order to reach a decision on a stay, for to do so would amount to a rehearing.  What is desirable is for this application to be set down for an expedited hearing so that that reconsideration can be addressed as soon as possible.  It is desirable that the parties be given the opportunity of explaining what care each one is able to provide for Jacob and to hear directly from the parties, particularly in light of Ms Mabbott's changed circumstances.

5.      For the above reasons the tribunal declines to grant a stay now but directs that the application be set down for a hearing in Geelong at Deakin University, Waterfront Campus on Monday, 6 September 2010 commencing at 10.30am.  The tribunal has the documents filed by the respondent and these, along with the evidence of the parties and any witnesses they may wish to call, will determine the review.  Nothing is to be gained by directing the parties, including the respondent, to file statements or a statement of facts and contentions.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         ............(sgd. D De Andrade)............
  D De Andrade, Personal Assistant

Date of Telephone Stay Hearing           12 August 2010
Date of Decision  20 August 2010
For the Applicant  Self represented
Solicitor for the Respondent                   Ms A Bramley, departmental advocate
For the Third Party  Self represented