Irving and Secretary, Department of Social Services (Social services second review)
[2016] AATA 949
•28 November 2016
Irving and Secretary, Department of Social Services (Social services second review) [2016] AATA 949 (28 November 2016)
Division
GENERAL DIVISION
File Number
2016/2990
Re
Shaune Irving
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
And
Melissa Irving
OTHER PARTY
DECISION
Tribunal Senior Member J Sosso
Date 28 November 2016 Place Brisbane The Tribunal affirms the decision under review.
............................[Sgd]............................................
Senior Member J Sosso
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances - parent payment single – percentage care - separated parents with shared care – PP child – financial considerations – comparison of assets – comparison of earning potential – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 5, 500
CASES
Clarke and Secretary, Department of Education, Employment and Workplace Relations & Harrington [2013] AATA 699
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461Smedley and Secretary, Department of Education, Employment & Workplace Relations & Beveridge [2010] AATA 292
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Senior Member J Sosso
28 November 2016
INTRODUCTION
This is an application by Shaune Irving (the Applicant) for a review of a decision of the Child Services and Child Support Division of this Tribunal (AAT1) dated 18 May 2016 affirming a decision of the Department of Human Services (the Department) to reject a claim by the Applicant for parenting payment in respect of his daughter Elsie.
The initial decision to reject the Applicant’s claim for parenting payment was made by the Department on 7 December 2015 – Exhibit 1 T6 p.43. The Applicant had previously received parenting payment for Elsie’s sibling Chloe who turned eight in December 2015. After turning eight she is no longer an eligible child for parenting payment purposes.
The care of Elsie is shared between the Applicant and Elsie’s mother, Melissa Irving (the Other Party). The Other Party had previously been assessed as the principal carer of Elsie and the Department determined that this should continue.
The sole issue to be determined by the Tribunal is whether the Applicant or the Other Party was the principal carer of Elsie as at 9 December 2015.
BACKGROUND
The Applicant is the father of two daughters, Chloe who was born in 2007 and Elsie who was born in 2012. The Other Party is not the mother of Chloe. The Applicant and the Other Party separated on 28 January 2015 - Exhibit 1 T7 p.45.
The Other Party was granted parenting payment single from 28 January 2015 - Exhibit 1 T23 p.126. The Applicant’s percentage of care of Elsie was calculated as 49% and that of the Other Party as 51% - Exhibit 1 T24 p.131.
The Applicant lodged claims for parenting payment on 27 April and 27 May 2015: both claims were rejected - Exhibit 1 T15 p.82.
On 12 June 2015 a Change of Care decision was made by the Department which increased the Applicant’s percentage of care for Elsie from 49% to 56% effective from 14 February 2015. The reasons for the decision were as follows (Exhibit 1 T15 p.81):
“The decision will be to update care for Elsie as SHAUNE having care 202 nights as from 14/02/2015.
The reason for this decision is SHAUNE provided diary dates showing care as-
February – 08th – 14th – 11 nights
March – 1st – 8th, 13th – 21st, 27th – 31st = 22 nights
April – 1st – 4th, 10th – 17th, 24th – 30th = 19 nights
May – 8th- 14th = 7 nights overall = 59 nights over 3.5 months
average over 12 months = 202 nights 56%
No evidence was produced by OC to support care remaining at 50/50 for Elsie”.Following this decision, the Applicant lodged another claim for parenting payment single, which was granted from 15 June 2015 - Exhibit 1 T16 p.79.
The Other Party lodged an objection with the Child Support Program, and on 14 August 2015 the care decision was reviewed and a decision made that the Other Party continued to have 51% care of Elsie - Exhibit 1 T23 pp.118-119. Consequently the decision to cancel the Other Party’s parenting payment was reviewed by an Authorised Review Officer (ARO) who found that she was to be considered the Principal Carer for Elsie for parenting payment purposes – Exhibit 1 T17 p.95.
On 8 December 2015 the Applicant requested a review. This was treated as a new claim for parenting payment as the Applicant’s parenting payment for Chloe was due to be cancelled on 17 December 2015 due to her turning eight years old. On 9 December 2015 the Applicant’s claim was rejected. On 29 January 2016 an ARO affirmed this decision. I set out below the reasons given for this decision (Exhibit 1 T11 pp. 56-57):
You are the father of Chloe and Elsie, and the children live with you 50% of the time. This is not in dispute. You were granted Parenting Payment from 27 April 2015 and in September 2015 the department determined that you were the principal carer of Chloe.
Chloe turned 8 in December 2015 and your Parenting Payment was cancelled from 16 December 2015. You reapplied for Parenting Payment in December 2015 but this claim was rejected as it was considered that you were not the principal carer of Elsie. Only one person can be considered to be a principal carer of a child and qualified for Parenting Payment. The person most in need of a favourable determination should be deemed the principal carer.
I have considered the following factors:
· Whether one carer already qualifies as principal carer;
· Which carer would receive the higher rate of payment;
· Other sources of income, both actual and
· Assets of each carer;
· Expenses of each carer;
· Workforce experience;
· Duration each carer has been on income support.
I accept that you and the other carer both have rent or mortgage expenses and I am also satisfied that the asset level of each of you is comparable.
You have been in receipt of income support entitlements since April 2015. The other carer is presently employed however I am satisfied that you have the potential to find casual employment, if you are not already undertaking work. Your studies will increase your future earning capacity and also enable you to receive an alternative income support entitlement, such as Austudy.
When taking all the relevant factors into account, I am satisfied that while you provide 50% care to Elsie, you are not considered to be a principal carer, and therefore you are not qualified for Parenting Payment.”
On 24 February 2016 the Applicant sought review by AAT1, and on 18 May AAT1 affirmed the decision rejecting the Applicant’s claim for parenting payment.
Member Letch in a well-reasoned decision outlined the relevant facts before him pertaining to the Applicant as follows (Exhibit 1 T2 p.16):
(a)The Applicant was employed by a law firm and earned $223 gross per fortnight;
(b)He is studying law and was aiming to graduate by mid 2017;
(c)He was hoping for a permanent part-time arrangement with the law firm which would pay $400-$500 per fortnight;
(d)He is paying $1233 a month on his mortgage;
(e)He has a HECs debt;
(f)He incurred legal costs from Family Court proceedings and received an early release of superannuation on hardship grounds;
(g)He receives financial assistance from his parents, but only just manages to meet his financial commitments.
Member Letch summarised the Other Party’s circumstances as follows (Exhibit 1 T2 pp.16-17):
(a)The Other Party pays rent of $275 per week;
(b)She works 30 hours a week earning approximately $1700 per fortnight;
(c)She receives $40 per fortnight parenting payment and $500 in family tax benefit;
(d)She has a credit which, at that time, has “maxed out” at $4000;
(e)She had no social life and no family assistance;
(f)She claimed that if she lost the parenting payment she would lose her rent assistance, health care card and her maximum rate of child care benefit.
Member Letch, after considering the facts and law, made the following decision (Exhibit 1 T2 pp.15-16):
“13. At the time of the claim, Ms Irving was earning more income from employment than Mr Irving. Mr Irving has access to an income support payment (austudy); there is no readily apparent income support payment Ms Irving could access. However, Mr Irving would be entitled to significantly more support if he were to receive parenting payment rather than austudy given a more generous income test applies.
14. The Tribunal accepted the evidence of Mr Irving that he has very limited flexibility in his budget. Similarly Ms Irving is in a very tight financial position. There appears to be no significant difference in their respective asset positions.
15. Ms Irving has a claim for incumbency (for want of a better way to put that), being Elsie’s favoured carer in the original Centrelink assessments. The Tribunal did not consider the ‘status quo’ urged by the policy guidelines as a compelling factor which ought to work in Ms Irving’s favour.
16. The Centrelink position was that, more globally, Ms Irving would be financially disadvantaged by no alternative income support payment, the loss of her heath card, and increased child care costs. It was observed Mr Irving would continue to receive austudy (observed to have a more generous income test than newstart allowance) and hold a health care card and be eligible for childcare concessions. It was also observed that in the medium to long term, Mr Irving, who will be a qualified lawyer, will be likely to have a greater earning capacity, a factor he acknowledged during the hearing.
17. The Tribunal has carefully considered the policy guidelines. No one factor is determinative. Both parties have very tight budgets, and discretionary spending is very limited. A weighty factor in support of Centrelink’s determination is that Ms Irving will not have access to any alternative support and lose her health care card and related concessions. On the other hand, she earns more, and Mr Irving would receive a higher level of parenting payment.
18. In the Tribunal’s assessment, of significance is that Mr Irving has chosen to study and reduce his present earning capacity and increase his reliance on Centrelink assistance. However, he expects a good return on his investment in his education, and will likely be in a significantly superior financial position to Ms Irving commencing from as early as next year. In balancing the relevant factors, the Tribunal considers this a weighty aspect in support of a conclusion that Ms Irving should continue to be recorded as Elsie’s principal carer.”
The Applicant in his Statement of Issues, Facts and Contentions (ASIFC) outlined in summary form his contentions as follows (Exhibit 1 T1 p.10):
“1. The Tribunal has made an error in judgment, by conceding that the respondent is currently in a greater position than that of the applicant and should remain the principal carer.
2. The judgment contains inaccurate reporting of actual entitlements that the respondent can receive which reduces the capacity of the tribunal to make a favourable decision on the applicant’s behalf.
3. It is not contested by the Tribunal through the acceptance of judgment that the applicant is in more in need of a favourable decision which aligns with the applied policy.
4. That assessing the applicant on the basis of successful completion in over a 12 month period would be detrimental and unjust to the applicant.
5. That the applicant is the carer ‘in most need of a favourable outcome and should be deemed the principal carer for the purpose of the application.”
The reference to inaccurate reporting of actual entitlements is elaborated on in paragraph 16 of the ASIFC. The Applicant contends that AAT1 did not acknowledge that the Other Party would still be entitled to receive comparable family tax benefits and rent assistance if the Applicant was Elsie’s principal carer. Further, the Applicant contends that even if he were successful the Other Party will still be in a favourable position as she would be entitled to receive the same comparable child care rebates. The Applicant therefore contends that the AAT1 decision was inaccurate and does not provide a full substantiation of all levels of assistance.
It is appropriate to note that it is not the role of this Tribunal to critique the reasons of the ARO or the first tier of this Tribunal. The task required of the Tribunal is to consider and weigh the material and evidence before it and make the decision afresh. Nonetheless, it is helpful to set out the history of this matter and where the parties perceive errors may have been made, in order that the decision reached on review comprehensively deals with all potential issues that are of relevance.
The Applicant and the Other Party were each self-represented. The Respondent was represented by Government lawyer, Ms Smith. Both the Applicant and the Other Party gave evidence
The Applicant said that he and Ms Irving were married on 11 November 2011, but that the marriage started to break down in 2014 before the final breakup in January 2015. At the time of the hearing there was no finalisation of custody of Elsie by the Family Court.
The Applicant and the Other Party purchased a home in joint names in 2013. The dwelling house has a mortgage balance of approximately $312,000 and is said to be valued at $338,000. Mortgage payments are approximately $1100 - $1400 per month, and the Applicant had to access his superannuation in order to meet the mortgage commitments. His family also provide him with ongoing financial support.
As at 9 December 2015 the Applicant was not employed - Exhibit 1 T7 p.45, although he subsequently worked part-time with Bosscher Lawyers until approximately 1 July 2016. Since 1 July 2016 the Applicant has been involved with the Defence Force Reserve. This involves, usually, one Tuesday per week plus one weekend per month. The Applicant earns approximately $800 per month from this activity.
The Applicant was employed by the Australian Defence Force for 11 years. He was an Airfield Defence Guard and estimated he earned a base salary of approximately $52,000 per year. He resigned from the ADF in January 2011 and commenced working for Queensland Ambulance as a paramedic. The Applicant ceased working full time as of 1 July 2015. His employer at that time was Skills Alliance - Exhibit 1 T7 p.47.
The Applicant is currently studying law for 30 hours per week at the University of Southern Queensland – Exhibit 1 T7 p.47.
The Other Party was employed throughout the marriage as a coordinator with Ipswich Family Daycare and has had a permanent part time position since 2008.
In December 2015 she was renting a house by herself however on 1 July 2016 she moved into a home with her new partner. Her new partner has two children: 18 and 9 years of age. The combined income of the Other Party and her new partner is $124,000 per annum.
The marriage breakup appears to have been particularly acrimonious, with police intervention and domestic violence orders being made. The Other Party moved out of the family home.
THE LEGISLATION
Section 500 of the Social Security Act 1991 outlines the qualifications for receiving a parenting payment. A person is qualified for parenting payment if, inter alia, the person has one PP child. When a person is not a member of a couple, section 500D(2) provides that a PP child is a child of the person, has not turned 8 and the person is the principal carer of the child.
Subsections 5(15) – (24) of the Act define and prescribe who is the principal carer of a child.
Subsection 5(15) provides that a person is the principal carer of a child if the child is a dependent child of the person and has not turned 16. Only one person at a time can be the principal carer of a child – s5(18), and where two persons would, apart from subsection 5(18), would be principal carers of the same child, the Secretary must take a determination specifying one of the adults as the principal carer – s5(19).
Instruction 1.1.P.416 of the Guide to Social Security Law provides guidance on the factors to be taken into account when making a subsection 5(19) determination:
“If the difference in the level of care provided by the 2 carers is less than 10%, care is considered to be share equally.
Example: Where care is shared 54/46% or 50/50%.”
In situations of equal care where only one 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 one carer already qualifies as principal carer of another child…
·whether only one 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…
·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…
·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.”
It is open to, and appropriate that, the Tribunal have appropriate regard to these departmental guidelines when undertaking the review – Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461 at 467 per Gyles J.
CONSIDERATION
When considering the earlier provisions of the Act dealing with parenting payments and relevant considerations for deciding between carers, Gyles J in Holmes made the following observations (at 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 might also take into account the 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. 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 broad discretion reposed in a decision-maker is appropriately exercised if due consideration is given to the factors outlined in Paragraph 1.1.P.416 of the Guide to Social Security Law – Exhibit 1 T4 p.31. In reaching my decision I have had regard to the Equal Care factors and taken them into account in determining which carer was, at December 2015, in most need of a favourable determination.
One matter requires emphasis before embarking on the review. The task required of the Tribunal is to ascertain whether the Applicant or the Other Party was the principal carer as at 9 December 2015. In short, the task is not who may be now, having taken into account the relevant factors, the principal carer, but which party as at that particular date best fulfilled the requirements of the Act to be characterised as the principal carer.
Subsequent to the hearing leave was given for each of the parties to provide further material to the Tribunal. Each of the parties availed themselves of this opportunity. The Applicant provided details of his financial affairs, including a loan from St George Finance Limited and his reservist duties. The Other Party provides details of emails between her and the Applicant. The content of these emails was not of assistance to the Tribunal and illustrated the acrimonious nature of the relationship between the Applicant and the Other Party.
Status Quo
At 9 December 2015 the Applicant was still the principal carer of Chloe, and the Other Party the principal carer of Elsie. The Respondent contends, relying on the Guide, that if there is no substantial difference between the parties, a determination should favour the status quo.
I have come to the same conclusion as Member Letch, namely that the status quo factor as outlined in the Guideline and as propounded by the Respondent, is not a compelling factor and I have given it little weight.
Financial Circumstances
At the time the claim was made the Applicant was not engaged in full-time employment. He ceased working for Skills Alliance on 1 July 2015 and in December 2015, according to his evidence, was not engaged in duties for the Army Reserve. His parenting payment for Chloe ceased on 17 December 2015, but he was granted a Newstart Allowance, and, subsequently, Austudy from 22 February 2016 - Exhibit 2. The Newstart Allowance was $261.10 gross per fortnight and the Austudy allowance was $526.80 gross per fortnight - Exhibit 3.
The Applicant provided these details of his personal financial circumstances as at 9 December 2015 (Exhibit 1 T7 pp.45-48): cash on hand, $520, $1 balance in Commonwealth Bank, a Holden Barina motor vehicle and household and personal effects of $70,000.
At the date of the claim the required monthly mortgage repayments on the family home was $1495.23 per month - Exhibit 1 T10 p.53.
The Commonwealth Bank issued a default notice against Mr and Mrs Irving on 4 January 2016. As at 16 December 2015 the amount to pay out the loan contract was $314,187.69, with arrears and enforcement costs at that date of $3291.46. The Applicant informed Centrelink that he had withdrawn $10,000 from his superannuation account to ensure that he could comply with the default notice – Exhibit 1 T11 p.59.
The Applicant also informed Centrelink that he had, as at 27 January 2016, an $8000 credit card debt and car lease payments of $370 per month that his parents were assisting with. He also claimed that he had a further car lease debt of $7500 as after he and his wife separated he had to return the Other Party’s car to the lease company – Exhibit 1 T11 p.59.
After the hearing the Applicant provided details of a residual debt of $34,756.22 as at 13 September 2016 with St George Finance Limited for the lease of a 2012 Holden Captiva. There is no evidence what the debt situation was at December 2015; or, if indeed, the lease existed at that time. However, for the purposes of this determination I have proceeded on the basis that as at 9 December 2015 the Applicant had significant car lease obligations.
Further details were also provided of the Applicant’s Reserve Service Allowance and Attendance Pay which engaging in Defence Reserve duties. He was allocated 50 days of reservist service, and as at 3 August 2006 had only been engaged for five days. The hourly attendance pay rate was $23.82 and the reserve service hourly allowance was $27.63. In the period 1 July 2006 until 3 August 2006 the Applicant was paid $908 gross by the Department of Defence.
At the time the claim was made the Other Party was working 30 hours a week and earning approximately $1700 per fortnight. From 11 September 2015 she rented premises at $275 per week. A copy of the lease and rent certificate were provided to Centrelink – Exhibit 1 T17 p.97. She also informed AAT1 that she had a credit card debt of $4000, had no family support, no social life and needed to re-establish herself with new furniture and appliances – Exhibit 1 T2 p.12. She was also paying half of Elsie’s child care fees – Exhibit 1 T17 p.97.
In December 2015 both Mr and Mrs Irving were in very straitened conditions. The Applicant was not receiving money from the Department of Defence, and had a range of debts looming. In particular, he faced the prospect of losing the family home, and needed to rely on family support and emergency withdrawals from his superannuation account. Likewise, the Other Party was earning a relatively small amount of money, had a large credit card debt, was living in rental accommodation and had few personal belongings. Further, she apparently had no family support or backup.
I accept that both Mr and Mrs Irving were in dire financial circumstances in December 2015 and this factor does not support one party over the other.
Which carer would receive the higher rate of payment
Prior to 17 December 2015, the Applicant’s parenting payment was $743.20 gross per fortnight (Exhibit 3) compared with the Other Party’s parenting payment of $171.07 – Exhibit 1 T24 p.142.
Further, when the Applicant’s parenting payment was cancelled, he was granted Newstart and then Austudy. His Austudy rate was $576.80 per fortnight.
Accordingly, if the Applicant had been found to be the principal carer his social security payment would have increased by $166 per fortnight and the Other Party’s payment would have decreased $171. In short, this factor favours the Applicant.
Asset Levels of each carer
As noted earlier, the Other Party moved out of the family home and was living in rented accommodation having left most of the joint belongings with the Applicant. She no longer had a motor vehicle, furniture or appliances.
In comparison the Applicant remained in the furnished family home and was still paying for his leased Holden Captiva.
Whilst all of the Applicant’s major assets were the subject of various loan agreements, he nonetheless was at December 2015 in a more favourable position than the Other Party.
I find that this factor favours the Other Party when considering which carer is in most need of a favourable determination.
Other Sources of Income Actual and Potential
The Applicant is enrolled in a Bachelor of Laws course and worked for a time with a well-known law firm. He presented at the hearing as a relatively young man who was both articulate and intelligent. He has served in the armed forces, is a reservist and was a paramedic with Queensland Ambulance. He has a diverse skills base and the potential, if he continues his studies, to become a legal professional with reasonable prospects of earning a good income.
In comparison, the Other Party while in December 2015 earning more income than the Applicant, does not have the same skill base or future prospects. She has, apparently, worked in the same position for a decade and there is no information before the Tribunal that she has good prospects to improve her income potential in the future.
The Applicant has voluntarily undertaken studies at University which, accordingly, has resulted in him requiring government financial assistance and being in a position of financial weakness. This voluntary decision, however, is designed to build a more prosperous future for him and his children. If he continues down this path, then this is a realistic goal. He was decided on a path of short-term financial pain for long term financial gain. In these circumstances, the Applicant’s long term greater earning capacity is a factor which favours the Other Party as being the one who is in most need of a favourable determination.
CONCLUSION
In answering the question which of the Applicant and the Other Party is most in need of a favourable determination, guidance is provided by Deputy President Wright QC in Smedley and Secretary, Department of Education, Employment & Workplace Relations & Beveridge [2010] AATA 292 where he observed (at [6]):
“Within the statutory scheme and the present policy the relevant ‘need’ relates to the financial capacity of the relevant parent to cope with costs, both direct and indirect of providing food, clothing and shelter and the mental, physical, social and cultural nourishment of the relevant child within the family environment in which the child finds itself during its period(s) of care by that parent. Accordingly, it is plain that a determination in this case must depend upon factors and considerations over and above a simple assessment of which of the competing parties has the higher and more dependable source of income or assets of the greater value.”
Reference can also be made the following observations of Member Webb in Clarke and Secretary, Department of Education, Employment and Workplace Relations & Harrington [2013] AATA 699 where he observed (at [22]):
“the assessment of parental ‘need’ is directed to placing the child in the best position in respect of quality of care, including the provision of food, clothing and shelter as well as mental, physical, social and cultural nourishment. This requires an assessment of all relevant circumstances, including the ability of each parent to cope with the costs of caring for the child.”
The parenting payment, as its name suggests, is a payment to a parent to ensure that a young child or children are given the care required and expected by society. The parent most in need of a favourable determination is the parent whose parenting needs most require that cash payment. The term “need” is broad and the discretion vested in the decision-maker in such circumstances allows for a consideration of a range of circumstances and factors. Nonetheless when engaging in this evaluative process the focus of the decision-maker is not the relative needs of each parent vis-à-vis each other, but the relative needs of the parents in fulfilling their parenting duties.
Having considered all of the matters outlined previously and having weighed the particular circumstances of each parent, I find that as at 9 December 2015 the parent in greater need was the Other Party.
At that time the Other Party, though engaged in paid employment, was living in difficult circumstances in rental accommodation. Clearly the receipt of the parenting payment was critical to maintaining a proper standard of support for Elsie.
The reality is that at December 2015 there was little to differentiate between the Applicant and the Other Party in terms of need. Both were in need, both were in difficult financial circumstances and both, from the material before the Tribunal, were good parents attempting in a time of personal turmoil to provide the love and care their children needed. Unfortunately the nature of the marital breakup was such that the interpersonal relations between the Applicant and the Other Party deteriorated, and this unhappy state of affairs persists to the present time.
Determinations in these circumstances require the decision-maker to exercise the Wisdom of Solomon. Unfortunately, the manner in which the legislation operates has the unintended by-product of pitting impecunious and estranged parents against each other, thereby further damaging the family unit and potentially undermining the overall best interests of the child. Nonetheless, the Tribunal must apply the law as it stands and make a fine decision about which party has the greater need.
In December 2015 the Applicant was residing in the family home, had a motor vehicle, furniture, household appliances, a superannuation account, a supportive family and the capacity, if he chose, to engage in employment. He had, and has, a broad skill base and is determined to advance his future prospects by enrolling in a law degree. Whilst he was receiving less income than the Other Party, his overall situation was superior to hers. Conversely, while the Other Party was receiving more income than the Applicant, her overall situation was precarious and unstable. I find that, on balance, in December 2015 she was in greater need of a favourable determination.
The material before the Tribunal discloses that since December 2015 the situation of both the Applicant and Other Party have materially altered. The Applicant has worked with a law firm and performs reservist duties. The Other Party is now with a new partner, is in a considerably better position and her parenting payment was suspended from 1 July 2006 – Exhibit 1 T24 p.130. The Tribunal received considerable evidence about the current situation of both parties, but the task required of the Tribunal is to make a determination on the relative needs of the parties in December 2015 and not November 2016.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 68 (sixty - eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso ...........................[Sgd].............................................
Associate
Dated 28 November 2016
Date of hearing 21 October 2016 Applicant In person Respondent In person Advocate for the Respondent Donna Smith Solicitors for the Respondent Department of Human Services Other Party By phone
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