Leigh-Anne Clarke and Secretary, Department of Education, Employment and Workplace Relations Thomas Harrington Other Party
[2013] AATA 699
•27 September 2013
[2013] AATA 699
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3807
Re
Leigh-Anne Clarke
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
And
Thomas Harrington
OTHER PARTY
DECISION
Tribunal Mr S. Webb, Member
Date 27 September 2013 Place Kempsey, NSW
The decision under review is set aside. In place thereof the Tribunal decides that:
(a)from 22 March 2011 to 15 October 2012, Mr Harrington is principal carer of B;
(b)from 16 October 2012, Ms Clarke is principal carer of B; and
(c)from 22 March 2011, Ms Clarke is principal carer of G.
The matter is remitted to the Secretary to determine the amount of parenting payment that is payable to Ms Clarke and Mr Harrington in accordance with these reasons.
.................[sgd].......................................................
Mr S. Webb, Member
Social Security – parenting payment single – separated parents with shared care of two children - PP child – principal carer determination for each child – equal care – policy guidelines - relevant factors for the assessment of greater need – care arrangements for each child not the same - consideration of the status quo – decision set aside
Legislation
Social Security Act 1991 s 4, 5, 500, 500D
Cases
Re Inglis and Secretary, Department of Education, Employment and Workplace Relations & Mabbott [2010] AATA 711.
Re Smedley and Secretary, Department of Education, Employment and Workplace Relations & Beveridge [2010] AATA 292.
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Mr S. Webb, Member
27 September 2013
Leigh-Anne Clarke and Thomas Harrington are the parents of two children - a girl, G, born in 2004 and a younger boy, B, born in 2008. In March 2011, Centrelink decided that Mr Harrington was the principal carer for both children. Ms Clarke contested this decision and pursued her rights of review to the Social Security Appeals Tribunal, without success. She has applied for review.
Both parents gave evidence at the hearing. I directed the Secretary to undertake further investigations and to file additional information concerning determinations that were in force prior to March 2011. This was done. The resulting documents[1] were provided to Ms Clarke and to Mr Harrington in a manner that was consistent with non-disclosure orders issued under s 35 of the Administrative Appeals Tribunal Act 1975, which remain in force. Ms Clarke filed a response to the additional materials on 6 September 2013[2]. Mr Harrington declined the opportunity to do so.
[1] Exhibit 19.
[2] Exhibit 20.
At the hearing, the Secretary adopted a neutral stance, offering to assist the Tribunal, but otherwise declining to advocate for a particular outcome of the application.
The issue to be decided is whether Mr Harrington or Ms Clarke should be the principal carer for each of the children from 21 March 2011.
Brief facts
The oral evidence of Ms Clarke and Mr Harrington is that each of them has approximately equal care of each child, week and week about, during which each is legally responsible for the day‑to‑day care, welfare and development of each child. It appears that these care arrangements were established by Family Court Orders made by consent on 29 April 2008[3], and that these Orders were substantially adhered to by both parents despite episodic disputation. I note that the documents in Exhibits 1, 2 and 3 establish a history of conflict and alleged domestic violence prior to Ms Clarke and Mr Harrington separating and the Court Orders being made in April 2008.
[3] T4 folios 17-20.
Once the Orders were in place, it appears that a degree of stability in the shared care arrangements for each child followed.
On 2 July 2010 Ms Clarke lodged a Family Tax Benefit claim in respect of G, although she later withdrew the claim [4] -
“Customer advised 8/7/10 that she has 50% care of both children but was only being paid FTB for child [B] so that the other carer could also be paid PPS. This is not permitted as the care of both children are the same for both carers. Only one parent would qualify for PPS and the other carer would qualify for another ISP. Clt withdrew her add child claim once she realised that only one parent could continue to be paid PPS.”[5]
[4] ST12 folios 135-138.
[5] ST12 folio 138.
This notwithstanding, it appears that Ms Clarke and Mr Harrington continued to be paid parenting payments on the basis that there was no shared care for either child – Ms Clarke’s care percentage for B was 100 percent and for G was 0 percent, whereas Mr Harrington’s care percentage for B was 0 percent and for G was 100 percent until 21 March 2011[6].
[6] ST14 folios 140-148 and ST20 folios 164-172.
On this basis, having regard to Exhibit 19, it appears that principal carer determinations were in force immediately before the determination on 21 March 2011, whereby Ms Clarke was principal carer for B and Mr Harrington was principal carer for G. These determinations suggest each parent had a different level of care for each child. But that is not what the present evidence reveals and it is not consistent with the information Ms Clarke provided to Centrelink in July 2010. It appears to me that the determinations permitted a practical arrangement of convenience to Ms Clarke and Mr Harrington in respect of qualification for parenting payment, under which each parent would have one PP child for the purposes of s 500(1)(a). Both parents told me that they were satisfied with the arrangement and wanted it to continue, and that they did not understand why it had come to an end.
On 21 March 2011, Ms Clarke and Mr Harrington signed a claim form indicating a change in the care arrangements for the children, whereby Ms Clarke had 51 percent care of B and 49 percent care of G, and Mr Harrington had 49 percent care of B and 51 percent care of G[7]. Ms Clarke says that she signed the form without reading it or understanding what it was as she was scared of Mr Harrington. She told me that she saw only two pages of this document – T6 folios 22 and 26 – and understood it to relate to childcare. She says that Mr Harrington completed the rest of the form, setting out the shared care information for each of the children at T6 folios 24 and 25 and ticking No to the question ‘Do you have a parenting plan or court order that shows where this child stays?’ when this was not correct. I accept Ms Clarke’s evidence on this point as it appears that the form was completed by two people with different handwriting and her account is largely supported by Mr Harrington’s account. Mr Harrington accepted that he had completed parts of the form and asked Ms Clarke to sign it. He told me that he wanted to claim child care subsidy payments in respect of B but he was unable to do so as, hitherto, he was not principal carer for B and his care percentage in respect of B was 0 percent.
[7] T6 and T15.
On 29 March 2011 Centrelink decided that Mr Harrington was the principal carer for both children, with effect from 22 March 2011. Ms Clarke says that this was done without consulting her and the first she knew about it was when her parenting payments were cut off. The contemporaneous Centrelink records at T7 folios 70 to 72 lend support to this account. On 29 March 2011, Ms Clarke contacted Centrelink and the original decision maker noted –
“Customer [Ms Clarke] contacted HUNTER FAO TEAM on 29 March 2011 regarding General Enquiry, Change in Child Details, Change in care arrangement/details for Family Tax Benefit…
…
Shared care details: Both cus and O/C [Mr Harrington] lodged co-signed FA012s stating cus has 51% care of [B] and 49% care of [G] effective 21/3/2011. Both cus and O/C PPS/CUR.
Principal carer name: Thomas Harrington
I have deemed the O/C principal carer after taking into consideration earnings, rent and assets. Customer no longer entitled to PPS…”[8].
[8] T7 folio 71.
Ms Clarke challenged this decision, but it was affirmed by an Authorised Review Officer and, later, by the Social Security Appeals Tribunal. She applied for review.
That notwithstanding, from 22 March 2011 to 29 October 2012, Mr Harrington was paid parenting payment at the single rate for both children[9]. Ms Clarke was granted Newstart Allowance. Both parents claimed and were paid an apportionment of Family Tax Benefit on the basis of the shared care arrangements in respect of each child.
[9] T16.
The child, G, turned 8 in July 2012.
Mr Harrington informed Centrelink of a change in his circumstances on 29 October 2012 in respect of a de facto relationship with Ms Eastham which is recorded as commencing on 27 October 2012[10]. There is strong evidence before me pointing to the existence of a partner relationship between Mr Harrington and Ms Eastham from 18 March 2011[11], at least. Mr Harrington’s evidence is that his relationship with Ms Eastham commenced in the latter part of 2010, but they did not live together until 29 October 2012. Ms Clarke cavils with this and asserts that Mr Harrington and Ms Eastham were living together from December 2010[12]. On the present materials, I am not able to determine whether or not this is correct, but there are serious questions, and doubts, about the reliability of Mr Harrington’s evidence on this point. This is a relevant factor to which I will return.
[10] T16 folio 89.
[11] Exhibit 5.
[12] Exhibit 20 pages 1-2.
Principal carer determination
The requirement to determine which of the parents is principal carer of each child arises in the context of s 500 and s 500D of the Social Security Act 1991 (the Act). Under s 500, a person is eligible for parenting payment if the person has at least one ‘PP child’. Section 500D, as in force at the relevant time, sets out the criteria for determining whether a child is a ‘PP child’ of a person –
500D PP child
(1) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is a member of a couple; and
(c) the child has not turned 6; and
(d) the person is the principal carer of the child.
(2) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the person is not a member of a couple; and
(c) the child has not turned 8; and
(d) the person is the principal carer of the child.
(3) A child is a PP child of a person if:
(a) the child is a child of the person; and
(b) the child has not turned 16; and
(c) the person is the principal carer of the child; and
(ca) the person was the principal carer of the child immediately before 1 July 2011; and
(d) the person is covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F); and
(e) since 1 July 2006, there has not been any continuous period of more than 12 weeks during which the person has not at any time been covered by the parenting payment transitional arrangement in relation to that child or any other child (see section 500F).
The term ‘principal carer’ is explicated in s 5(15) to (24). Essentially, a person is the principal carer of a child if the child is under the age of 16 and is a dependent child of the person. Importantly, under s 5(18) and (19) only one person can be determined as the principal carer for a child at any time –
Principal carer—a child can only have one principal carer
5(18) Only one person at a time can be the principal carer of a particular child.
5(19) If the Secretary is satisfied that, but for subsection (18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must:
(a) make a written determination specifying one of the adults as the principal carer of the child; and
(b) give a copy of the determination to each adult.
In a case such as this, involving more than one child of separated parents, it is necessary to make a principal carer determination in respect of each child.
The Act does not offer guidance as to how such a determination should be made, in terms of the principles and criteria that should be applied, or the factors that should be considered. Nonetheless, the discretion should be exercised in a manner that is consistent with the context and purposes of the legislation, having regard to all the relevant circumstances.
The only guidance as to government policy is set out in the Principal Carer – Shared Care section of the Guide to Social Security Law (the Guide). In the particular circumstances of this case, in order to properly construe the guidelines, and for abundant clarity, it is desirable to set out the relevant parts of this section even though they are long -
“Summary
The provisions of SSAct subsection 5(18) mean that only one person at a time can be the principal carer (1.1.P.412) of a child…
…
One person provides greater degree of care
As subsection 5(19) does not list any specific criteria that should or should not be taken into account in making a determination, all of the circumstances of each case need to be considered. However, given that the principal carer determination is based upon majority care of a child, it will generally be appropriate to decide that the person providing the greater degree of care is the principal carer, EVEN if that person has not claimed income support.
Example: Sally has the care of her 9 year old child 55% of the time over a period, and her ex-partner Dan has the care of their child for the remaining 45% of the time. Sally is working full-time and has not claimed NSA. Dan is not working and is in receipt of NSA and is seeking to be made principal carer. In this case, Sally would be determined as the principal carer, as she has the greater degree of care. This determination is made despite the fact that Sally has not claimed income support.
Equal care
If the difference in the level of care provided by the 2 carers is less than 10%, care is considered to be shared equally.
Example: Where care is shared 54/46% or 50/50%.
In situations of equal care where only 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 the 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 (see below for further detail on determinations involving more than one 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,
Note: If either carer has income that fluctuates, the assessment officer may need to look at average income levels over an extended period of time, such as 12 weeks, and
- the asset levels of each carer.
The following factors MAY be taken into consideration by the decision maker, if further information is required to make the determination:
- the expenses of each carer,
Example: Rent, child care,
-workforce experience, education levels and future employment prospects of each carer,
-the duration that each carer has been on income support and their principal carer status during this time. If there are no substantial differences between the parties, then generally the determination should be favoured which maintains the ‘status quo’, and
- any other factors considered relevant by the decision maker.
Example: Mary and John are separated and equally share the care of their daughter Cathy. Mary has been receiving NSA with principal carer status since August 2006 and John lodges a claim for NSA in October 2007. The rate that would be payable to John is approximately the same as that being paid to Mary. Neither John nor Mary owns any substantial assets such as a house or a car. John has recent workforce experience, which increases his employment prospects in the area. It is fair to argue that a decision that cancelled Mary’s status as principal carer would have a more significant impact that a decision to reject John’s claim to be deemed principal carer, especially as John has greater employment prospects than Mary. Therefore Mary should continue to be specified as the principal carer of Cathy while John should have generic NSA requirements/concessions.
Equal care – same decision applies to each child
If the care arrangements for 2 or more children are identical, it is NOT appropriate to ‘allocate’ each parent as the principal carer of a child, thus enabling both parents to qualify for income support as a principal carer. Different determinations about which parent is the principal carer of each child should only be made if the circumstances relating to the care of the children are not the same, and justify a different decision.
In order to make a determination about which parent is the principal carer of each child, each child must be assessed separately based on the care arrangements applying to them. If the care arrangements for each child are the same, then the determinations as to which parent is the principal carer must also be the same. That is, if parent A is determined as the principal carer of child 1, and the care arrangements for child 2 are the same, then parent A must also be determined as the principal carer for child 2. This is because the same factors leading to the first decision also apply to the second.
Example 1: Jenny and Scott are separated, and share the care of their 2 children 50/50. The children are kept together at all times, and spend one week living with their mother, and the other week living with their father. Because the care arrangements for the children are identical, one parent must be determined as the principal carer of both children.
Example 2: Nicholas and Thomasina are divorced and share the care of their children, Jack and Jill, equally, but the children live separately, one with each parent and swapping houses each week. In this case also, because the share of care is equal, other factors need to be taken into account to determine who is the principal carer. If these other factors are common to both children, the same parent would be considered the principal carer of both, despite the fact that the children do not live with their principal carer at the same time.
In general it would only be appropriate to allocate a principal carer to each child where the children’s care arrangements are sufficiently different to warrant this.
Example: One parent has the greater degree of care of one child (or more children), and the other parent has the greater degree of care of the other child(ren).”[13]
[13] T3 folios 13-14.
Even though, strictly, these guidelines are not binding, it is appropriate to apply them unless there is a compelling reason not to do so.
Nonetheless, as Deputy President McDonald observed in Re Inglis and Secretary, Department of Education, Employment and Workplace Relations & Mabbott[14] at [5], the Guidelines are not entirely helpful. I fully concur with Deputy President Wright’s remarks in Re Smedley and Secretary, Department of Education, Employment and Workplace Relations & Beveridge[15] at [6] to [9] in respect of the difficult burden of determining which of two parents, equally sharing the care of a child and each otherwise qualifying for parenting payment, has the greatest ‘need of a favourable determination’ as principal carer of the child for the purpose of obtaining parenting payment to the exclusion of the other. That notwithstanding, 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.
[14] [2010] AATA 711.
[15] [2010] AATA 292.
At this point, it is important to emphasise that the particular care arrangements of each child must be considered. It should not be assumed that the care arrangements for each child are the same, and it should not be assumed that one parent will be the principal carer of both children. The particular care arrangements for each child and the needs of each carer in respect of each child must be carefully considered. Under the guidelines, as can be seen, in a case such as this involving two children, a determination that each parent is the principal carer of one child should only be made if the circumstances relating to the care of the children are not the same, and a different decision is justified – if the care arrangements for both children are identical, only one parent should be determined as principal carer. The policy should not be construed narrowly. ‘Circumstances relating to the care of the children’ and ‘care arrangements’ do not simply refer to proportional living arrangements or temporal considerations. All the circumstances of care of a child, in respect of the child’s day-to-day care, welfare and development, must be considered. If this assessment reveals differences in the arrangement of care of the children, then judgement must be exercised to determine whether different principal carer determinations are justified for each parent.
Considering the legislation and the guidelines, to my mind, there are a number of steps to making a principal carer determination in respect of a child during a particular period –
(a)is the care of the child shared by two or more people; and if so
(b)is the child a dependent of each person and in that person’s care; and if so
(c)are both carers claiming or receiving income support; and if so
(d)are both carers providing equal care; and if so
(e)which person is most in need of a favourable determination?
If there is more than one child, these questions must be answered for each child and two further questions then arise -
(a)are the circumstances of care of each child the same; and if not
(b)do the circumstances justify a different principal carer determination for each carer?
Is the care of the child shared by two or more people?
In respect of B and G, the answer is Yes.
From 22 March 2011, Ms Clarke and Mr Harrington have shared the care of both children, week and week about, dividing significant days between them in accordance with the Orders issued by the Family Court in 2008. I note that Ms Clarke asserts that Mr Harrington has not always been compliant with the Court orders.
Is the child a dependent of each person and in that person’s care?
The answer is Yes.
Each child is a dependent of Ms Clarke and of Mr Harrington, and is in their respective care. Ms Clarke and Mr Harrington are both legally responsible for the day-to-day care, welfare and development of each child, and from 22 March 2011 each child has been in their respective care, week and week about.
Are both carers claiming or receiving income support?
The answer is Yes.
Ms Clarke and Mr Harrington both claimed and received income support payments before and after 22 March 2011. Mr Harrington’s circumstances, and his qualification for income support payments, changed on 29 October 2012, when it was determined that he was a member of a couple and he was granted parenting payment partnered.
Are both carers providing equal care?
The answer is Yes.
The information Ms Clarke and Mr Harrington provided on 21 March 2011, setting out the respective percentages of care for each child, indicates that the difference in care percentages for each child is 2 percent. I accept that from 22 March 2011 Ms Clarke had 51 percent care of B and 49 percent care of G, and Mr Harrington had 49 percent care of B and 51 percent care of G.
Applying the guidelines, a variation in care percentages of this magnitude, being less than 10 percent, is to be taken as equal care.
The evidence given by Ms Clarke and Mr Harrington establishes that the children were always together under the week and week about arrangement of care.
If each person provides equal care, which person is most in need of a favourable determination?
In order to answer this question in respect of each child, all of the relevant factors must be considered. The Guide refers to factors that must be considered, and other factors that may be considered.
Factors that must be considered
Whether one carer already qualifies as principal carer of another child
This question must be considered at the time of the contested determination, stepping into the shoes of the original decision-maker. Prior to 21 March 2011 Ms Clarke and Mr Harrington each qualified as principal carer of one of their children. Thus, both of them were already qualified as principal carer of another child.
Present evidence and the information Ms Clarke provided to Centrelink in July 2010 notwithstanding, it appears that determinations of principal care prior to 21 March 2011 were made on the basis that each parent had 100 percent care for only one of the children. It is not for me to determine whether those determinations were correct or preferable in the circumstances.
Whether only one carer would be eligible for PP
As of 22 March 2011 and subsequently, both Ms Clarke and Mr Harrington would be eligible for parenting payment.
Ms Clarke alleges that Mr Harrington was partnered to Crystal Eastham from December 2010. Mr Harrington accepts that he commenced a relationship with Ms Eastham in the latter part of 2010. He contends that he and Ms Eastham did not move in together and cohabit until October 2012. There is compelling evidence that Ms Eastham was in a partner relationship with Mr Harrington from 18 March 2011 and thereafter[16].
[16] See Exhibit 5, Exhibit 10 and Exhibit 17 for example.
It is not for me to determine whether or not Mr Harrington was a ‘member of a couple’ with Ms Eastham from March 2011 for the purposes of the Act, having regard to the matters set out in s 4(2) and (3), although that possibility lies open on the present evidence. On 29 October 2012 a determination to that effect was made and Mr Harrington was found to be eligible for parenting payment at the partnered rate.
Which carer would receive the higher rate of payment
The present evidence does not establish that either Ms Clarke or Mr Harrington would receive a significantly higher rate of payment from 22 March 2011. On the present materials, both parents would have qualified for parenting payment and the rate of payment would not have been substantially different for either of them.
I note that if Mr Harrington was found to be a member of a couple with Ms Eastham from March 2011, he would have been entitled to a lower rate of parenting payment than Ms Clarke. But whether Mr Harrington was a member of a couple from March 2011 has not presently been determined and the present evidence does not establish that he would receive a lower rate of income support than Ms Clarke.
Any other sources of income the carers may have
Ms Clarke asserts that from March 2011, Mr Harrington was employed in a family business, from time to time, and that he conducted a cleaning business. These assertions are not supported by corroborating evidence. Mr Harrington explained that he attended the business premises of a relative from time to time in order to work on his motor vehicle, but he did not work for and he was not employed by the business. He told me that he registered the name of a cleaning business while undertaking a course of training, but he did not proceed with the business and it did not come into operation. Mr Harrington’s assertions are not supported by corroborating evidence. On the materials before me, I can go no further on this point – I am unable to determine whether Ms Clarke or Mr Harrington is correct.
There are real questions about the reliability of the evidence given by Ms Clarke and Mr Harrington – there are inconsistencies within and between their accounts that have not adequately been explained. Furthermore, Mr Harrington had difficulties with his memory on key issues. It appears to me that his evidence concerning his relationship with Ms Eastham was less than frank and it smacked of convenience. Even though the evidence Mr Harrington gave on controversial points will carry little weight without reliable corroboration, this does not assist where Ms Clarke’s evidence is also unsupported and there is no other probative material. These concerns notwithstanding, I must proceed and do the best with the available materials.
The present evidence does not establish that Mr Harrington or Ms Clarke derived any income from any source other than the income support payments each was paid from March 2011.
The asset levels of each carer
On the evidence before me, Ms Clarke and Mr Harrington each own a motor vehicle, but, otherwise, they do not own any assets of significance.
Ownership of assets is not a point of difference between them.
Factors that may be considered
The expenses of each carer
Insofar as expenses are concerned, Ms Clarke and Mr Harrington each lived in rented premises and covered the costs of weekly household expenses for themselves and the children, including operating a motor vehicle. It appears probable that each of them covered education and health costs for the children, in respect of treatment for head lice for example.
Mr Harrington gave evidence, which Ms Clarke corroborated, that he placed B in child care for two days of each week that B was in his care. He did so as B has a speech difficulty which may benefit from increased exposure to other children and child care workers who may assist him to learn skills. I have seen no medical evidence to corroborate this assertion. Nonetheless, Ms Clarke confirmed Mr Harrington’s account. She told me that she obtained medical advice in respect of B’s condition and she was supportive of this arrangement. Thus, even though Mr Harrington was not employed or otherwise engaged in training activities at the time, and he would have been available to care for B, I accept that he placed B in childcare for the reasons he has stated. In order to cover the costs of the child care - $170 every second week – Mr Harrington applied for the child care rebate. It was in this context that he asked Ms Clarke to sign the form at T6 and T15, whereby she agreed, albeit in controversial circumstances and perhaps unwittingly, to change the percentages of care for each child. Ms Clarke says that she was scared of Mr Harrington, who had previously assaulted her[17], and signed the form without reading it or knowing what it was about in order to avoid conflict. Subsequently, a determination was made that Mr Harrington was the principal carer for both children and he was granted the child care rebate in respect of B. In consequence, the net cost of B’s child care to Mr Harrington was $40 every second week.
[17] Exhibits 1, 2 and 3.
Ms Clarke did not make a commensurate child care arrangement for B while he was in her care, and she did not bear any related costs.
That being so, even though the amount is not great, I am satisfied that Mr Harrington had a greater need for financial support in respect of B than Ms Clarke. While the significance of this differential point should not be overstated, when matters are so finely balanced between two carers, as here, it is a point of difference that cannot be overlooked.
In respect of rental costs, Ms Clarke paid $200 per week in rent. Prior to 1 June 2001, Mr Harrington lived in a single bedroom house, in which the children either slept in the lounge room behind a blanket, or they shared the bedroom and Mr Harrington slept in the lounge (he gave contradictory accounts on this point). The rent was $170 per week. On 1 June 2011 he moved into a three bedroom house at Bestic Street Kempsey[18], in which the children each had a bedroom. In consequence of this move, his rent increased to $260 per week. Mr Harrington said that he afforded the increase in rent following the grant of parenting payment at the single rate for both children.
[18] Exhibit 15.
Thus, on this evidence, from 22 March 2011 to 1 June 2011 and previously, Ms Clarke had higher expenses than Mr Harrington in respect of rent, but Mr Harrington’s accommodation was barely adequate for both children. After 1 June 2001, Mr Harrington paid a higher rent than Ms Clarke, but he was being paid a greater amount of income support. Ms Clarke asserts that Ms Eastham lived with Mr Harrington at all relevant times. This is not presently established, although there are open questions about where Ms Eastham resided from 1 June 2011.
Ms Clarke asserts that Ms Eastham and Mr Harrington were living together in 2011[19]. Mr Harrington denied this. Ms Eastham was not called to give evidence. While there is no independent evidence that Ms Eastham moved into Mr Harrington’s residence at Bestic Street on 1 June 2011, or that she paid any amount in rent or living costs in respect of this property, I note that her tenancy of the house in which she resided ended on 1 June 2011. The only evidence of any subsequent tenancy is an undated letter of Kerry Hemmy that was filed on 24 January 2013, asserting that Ms Eastham was a tenant at a caravan park from 1 June 2001 to 29 October 2012[20]. Ms Hemmy was not called to give evidence and I am unable to test the veracity of the contents of her letter.
[19] Exhibit 18; Exhibit 4, page 1 refers.
[20] Exhibit 12.
Ms Clarke challenges the reliability of the information set out in the letter and asserts that Ms Hemmy is a friend of Ms Eastham. This is supported by information set out in an application for an Apprehended Violence Order against Ms Clarke that was completed by Ms Eastham in or about November 2012[21]. In this document, Ms Eastham refers to Mr Harrington as her partner and to the Bestic Street house as “my house” in reference to alleged events involving Ms Clarke on 16 October 2012. I note that in an application for an Apprehended Violence Order against Ms Eastham on 11 December 2011, Ms Clarke recorded the Bestic Street house as Ms Eastham’s address[22]. As I have said, there is compelling evidence that Mr Harrington and Ms Eastham were in a partner relationship from at least 18 March 2011. While much of this appears to support Ms Clarke’s contention, it is not sufficient to establish that Ms Eastham lived with Mr Harrington at the Bestic Street house prior to October 2012, or that she contributed to cover expenses for which, otherwise, he would be solely responsible, such as rent.
[21] Exhibit 7, page 3.
[22] Exhibit 4
Thus, on the present evidence I am not able to be satisfied about Ms Eastham’s place of residence prior to 15 October 2012 – on the basis of Exhibit 7 it may be inferred that Ms Eastham was residing at the Bestic Street house on and after 16 October 2012, but when she moved into that accommodation is not established. Furthermore, it is not presently established that Mr Harrington’s expenses were reduced as a result of his partner relationship with Ms Eastham from March 2011.
From 22 March 2011, Ms Clarke was forced to rely on charity, obtaining food parcels and financial assistance with utility costs, as she struggled to make ends meet on reduced income support payments.
Ms Clarke told me that her expenses include medical treatment costs for an injury to her lower back from 2008 that causes pain and stiffness from time to time, and in relation to depression. These conditions require periodic treatment, which she can ill-afford. Mr Harrington does not bear similar costs as he told me that he was well and he does not have any health complaints.
The workforce experience, education levels and future employment prospects of each carer
Ms Clarke left school having completed year 12. She worked in a kitchen from October 2010 to January 2011, and she is certified to legally serve alcohol.
Mr Harrington left school after year 10. He has not been in employment for a number of years. By his own account he tinkers with cars using the facilities of a business operated by a close family member. In or about 2011 - Mr Harrington did not have a memory for dates - he planned to commence a cleaning business, having undertaken a course. But he did not complete the course, and he did not commence the business.
No evidence was produced about the state of the labour market in Kempsey, or about the respective employment prospects of Ms Clarke or Mr Harrington.
On balance, Ms Clarke has more recent experience in the labour market than Mr Harrington. She holds a relevant certificate, whereas Mr Harrington did not complete the business course he started. Ms Clarke completed year 12, whereas Mr Harrington left school after year 10. But Mr Harrington has practical interests relating to cars and it may be inferred that he has related skills, albeit without formal qualifications. It is possible that he may be well-placed to obtain employment or further training in a family business, but this is not presently established.
The duration that each carer has been on income support and their principal carer status during this time
As I have said, up to 21 March 2011, and for an extended period, Ms Clarke and Mr Harrington were each determined to be a principal carer for one of their children. Both of them have been receiving income support payments over a long period of years.
Any other relevant factors
There has been a history of conflict and disputation between Ms Clarke and Mr Harrington. It appears that, from time to time, this may have affected the care of the children. Ms Clarke asserts that Mr Harrington has been violent to her in the past and that he has been remiss in not fully adhering to his care obligations under the Family Court Orders. Mr Harrington is dismissive of these issues, asserting that Ms Clarke has behaved badly and that she has not cared properly for the children from time to time. Both assert that the other has said inappropriate things in front of the children.
There is some evidence to support Ms Clarke’s assertions about a history of violence, counter to Mr Harrington’s evidence. Mr Harrington’s evidence that Ms Clarke failed to adequately care for the children lacks corroboration.
Finally, it appears that Mr Harrington draws support from Ms Eastham and members of his family in Kempsey, including his mother who assists with transporting the children, collecting them from and dropping them off to Ms Clarke. While Ms Clarke obtains occasional assistance from family members, it appears that this is less frequent and less accessible to her, or more remote, than in Mr Harrington’s case.
Ms Clarke told me that she has not been in a partner relationship and, other than her children, she lives alone. This is consistent with the present evidence and I so find.
I am satisfied on the evidence before me that Mr Harrington was in a partner relationship with Ms Eastham from 18 March 2011, at least. The evidence suggests that Ms Eastham provided emotional and physical support to Mr Harrington from December 2010, and I am reasonably satisfied that she assisted him with the care of G, at least to the extent that she signed off G’s reading homework sheet on a number of occasions in May 2011 and she assisted him to collect and drop off the children. Exhibit 7 establishes that she and Ms Hemmy collected G from school on 23 October 2012, for example. This notwithstanding, Mr Harrington’s partner relationship with Ms Eastham was recorded for Centrelink’s purposes as a ‘de facto’ relationship commencing on 27 October 2012, and Mr Harrington was moved onto parenting payment at the partnered rate from 29 October 2012. As I have said, even though there are serious doubts about Mr Harrington’s evidence on this point, it is not for me to decide whether or not Mr Harrington and Ms Eastham were members of a couple for the purposes of the Act from 18 March 2011 – Mr Harrington was paid parenting payment from 22 March 2011 on the basis that he was single and principal carer of both children. These proceedings relate only to the latter point in respect of the principal carer determination.
Mr Harrington has extensive family connections in Kempsey and family members provide him with support in the care of the children as well as in relation to access to business facilities and, Ms Clarke alleges, in respect to employment. Without the same level of support and assistance, to my mind Ms Clarke had a greater need for a favourable determination.
I am satisfied that Mr Harrington’s circumstances changed when he and Ms Eastham commenced cohabiting and, thereafter, his need for a favourable determination in respect of both children was less than Ms Clarke’s. Even though there is no direct evidence of Ms Eastham making any financial contribution to the household expenses, including rent, it may be inferred that she did so on taking up residence with Mr Harrington. There is evidence that this occurred on or before 16 October 2012 as Ms Eastham was residing at the house in Bestic Street at that time.
Principal carer assessment
Considering all of these matters and weighing the particular circumstances of each parent, it appears to me that there is little to differentiate which of the parents is in ‘greater need of a favourable determination’. The greater need is that of the parent or carer who most requires financial support to meet the costs of caring for the child - providing for the child’s welfare and development, and placing the child in the best position of care. This includes the costs of providing the basic necessities of life, such as food, clothing and shelter, as well as costs relating to the physical and mental health and wellbeing of the child, and his or her social, educational and cultural development. To my mind, the conception of greater need in this context is not simply analogous to greater impecuniosity, although impecuniosity may well be a significant factor in the assessment of relative need.
I am reasonably satisfied that from 22 March 2011 to 15 October 2012, Mr Harrington had a slightly greater need of a favourable determination in respect of B than Ms Clarke. The principal reason for this is that his expenses were greater than Ms Clarke’s as a result of him placing B in childcare, with Ms Clarke’s concurrence, in order to address B’s speech difficulty. From 16 October 2012, I am reasonably satisfied that Mr Harrington and Ms Eastham were cohabiting as a couple and that that Mr Harrington’s level of need for a favourable determination was lesser than that of Ms Clarke. Thus, on and from 16 October 2012, I find that Ms Clarke had the greater need of a favourable determination in respect of B.
The relative needs of Ms Clarke and Mr Harrington in respect of the care of G are finely balanced, but I am satisfied that Ms Clarke had the greater need of a favourable determination. This is principally because she did not have the same level of emotional and physical support as Mr Harrington at all relevant times and she faced greater difficulty coping with the costs of providing care to G.
In circumstances such as these, where matters are finely balanced, the guidelines provide that “generally the determination should be favoured which maintains the ‘status quo’”. Presently, there are two ways to look at the ‘status quo’, prior to 22 March 2011. One the one hand, in respect of G, alone, Mr Harrington was her principal carer, whereas, on the other hand, when both children and both parents are considered, each of the parents was principal carer of one of the children. It is necessary to consider the circumstances of care in respect of each child.
Are the circumstances of care of each child the same?
While Ms Clarke and Mr Harrington share the care of their children equally, the care arrangements for B and G are not the same.
Mr Harrington placed B in childcare for reasons relating to B’s development and health, even though, at the time, he was not employed and would have been available to care for B himself. The other child, G, being older, was attending primary school. Thus, in weeks when the children were in Mr Harrington’s care, G attended school and B attended childcare for two days, whereas in the weeks when the children were in Ms Clarke’s care, G attended school and B did not attend childcare. To that extent, the circumstances of B’s care from 21 March 2011 are different than the care arrangements in respect of G. To my mind, childcare is a feature of the care of B, and it is a relevant factor to take into account when assessing the relative care arrangements for each child.
In those circumstances the Act and the guidelines do not require the same person to be determined as principal carer of both children.
Do the circumstances justify a different principal carer determination for each carer?
I am satisfied that the answer is Yes.
Despite having greater emotional and physical support than Ms Clarke, Mr Harrington incurred additional childcare costs in respect of B that did not apply to G, and that Ms Clarke did not incur. This supports a principal carer finding in his favour in respect of B. But the evidence supports a different conclusion in respect of G, where Ms Clarke had the greater need for a favourable determination. To my mind, the circumstances of each child’s care by Mr Harrington and Ms Clarke are sufficiently different to justify a different principal carer determination. This will address the differences of need between Mr Harrington and Ms Clarke in respect of B, and it will address Ms Clarke’s greater needs, albeit finely balanced with those of Mr Harrington, in respect of G.
Finally, on this point, this conclusion effectively preserves the status quo, where prior to 22 March 2011 each parent was principal carer of one child, albeit that thereafter to 15 October 2012 the principal carer determinations in respect of each child are reversed.
I am mindful that a determination of this kind may result in an over-payment to Mr Harrington. The desirability of avoiding such an overpayment must be weighed against the proper application of the law to the found facts. In all such cases the degree of difficulty arriving at the preferable decision is in equal measure to the need for sensitivity to the likely effect of the decision of the affected parties. In this case, I am not persuaded that the prospect of an overpayment to Mr Harrington is such that a different conclusion should be reached in respect of Ms Clarke as principal carer of G from 22 March 2011.
Decision
On balance, having carefully weighed all of the relevant factors and applying the guidelines, I am satisfied that it is appropriate to set aside the decision under review and determine that, for the purposes of s 500D(2):
(a)on and from 22 March 2011 to 15 October 2012, Mr Harrington is principal carer of B;
(b)on and from 16 October 2012, Ms Clarke is principal carer of B; and
(c)on and from 22 March 2011, Ms Clarke is principal carer of G.
The matter is remitted to the Secretary to determine the amounts that are payable to Ms Clarke and to Mr Harrington under the terms of this determination.
I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .................[sgd].......................................................
Associate
Dated 27 September 2013
Dates of hearing 15 and 16 August 2013 Date final submissions received 6 September 2013 Applicant In person Solicitors for the Respondent Jennifer Maclean, Department of Human Services Other Party In person
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