Logue and Secretary, Department of Family and Community Services and Anor

DECISION AND REASONS FOR DECISION [2002] AATA 803

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1778

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ROBERT JAMES LOGUE
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

And SUSAN MARGARET LOGUE

Second Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date13 September 2002
PlaceSydney

Decision      The tribunal varies the decision under review such that Mr Logue is to receive 5% and Mrs Logue 95% of the Family Allowance payable in respect of the three Logue children between 2 December 1999 and 30 June 2000.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
SOCIAL SECURITY – Family Allowance – shared care of children – dependent child – FA child.

Social Security Act 1991 ss 5(2) ("dependent child"), 6(1) ("FA child"), 831(1), 838(1), 869(1), (4), 1069-G1, 1069-G2
Family Law Act 1975 ss 61B, 61C, 63E(1), (2)

Elliott v Secretary, Department of Social Security and Another (1995) 40 ALD 594
Field, Secretary, Department of Social Security v (1989) 18 ALD 5

REASONS FOR DECISION

13 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by Mr Robert James Logue ("the applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 5 September 2000 (T2) which set aside the decision of a Centrelink authorised review officer ("ARO") who, as a sub-delegate of the Secretary, Department of Family and Community Services ("the respondent") had decided on 28 March 2000 (T25) that Mr Logue was entitled to 26% of the Family Allowance rate. The SSAT held that Mr Logue qualified for 6% of the Family Allowance rate.
THE HEARING
The tribunal convened a hearing in this matter in Newcastle on 20 May 2002. Mr and Mrs Logue each represented themselves at the hearing and gave evidence under oath. Ms H Schuster of the Centrelink Advocacy and Administrative Law Team represented the respondent. The tribunal took into evidence the following documentary material:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T89) provided by the respondent.
Exhibit A1 – Applicant's statements of facts (9 May 2002) and contentions (15 May 2002).
Exhibit A2 – Letter dated 21 February 2000 from Centrelink to Mr Logue.
Exhibit A3 – Letter dated 25 June 1999 from Ms C Argall, Deputy Child Support Registrar, to Mr Logue.
Exhibit R1 – Respondent's statement of facts and contentions, 30 March 2001.
Exhibit R2 – Summary of care of children by Mr Logue, provided by Mrs Logue.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

Mr and Mrs Logue are parents of three children ("the children"), Alison (born on 6 March 1987), Gregory (born on 21 December 1988) and Matthew (born on 30 May 1991) (T51).
On 24 December 1993 the Family Court of Australia issued orders pursuant to Order 31 rule 8 of the Family Law Rules (T51). These were consent orders. Amongst other things the orders provided that:

Mrs Logue was to have the day to day care and control of the children of the marriage.
Mr Logue was to have access on different bases by reference to times of the week or year involved. During school holidays he was to have them for one-half of the school holidays. On weekends outside school holidays he was to have the children every second weekend from after school on Friday until 5.00 pm Sunday, or 5.00 pm Monday on long weekends. On not less than two afternoons every week after school he was to have access when any or all of the children were involved in sport activities, and from after school to 7.30 pm on those days. Mr Logue was to have access on other occasions as agreed between Mr and Mrs Logue.
Mr and Mrs Logue retained "joint guardianship" of the three children.

For a number of years Mrs Logue received the entire Family Allowance (by its various titles) in respect of the children. However, on 2 December 1999 Mr Logue lodged with Centrelink a claim for Family Allowance for the three children (T9). Mr Logue told the tribunal that he saw the 26% measure as reflective of the court order. The court order, in other words, contemplated that he will have the children for 26% of the time.
Mr Logue submitted that it was intended in the consent orders that he be granted joint custody of the children with Mrs Logue. The reference to joint guardianship inferred joint custody, he said. He referred also to the history of the negotiations preceding the consent orders. In an earlier draft dated approximately 27 May 1993 an order 14 had provided that "the Husband and Wife have joint custody and guardianship of the children" (T20/132). In response, Mrs Logue's solicitors filed a draft on 21 July 1993 giving the husband and wife joint guardianship of the children and the wife sole custody (T20/134). Mr Logue had filed an answer and cross application (T20/136) seeking to retain joint custody and guardianship with Mrs Logue having and exercising daily care and control of the children (T20/137). This led then to the final version discussed in paragraph 4 above. Mr Logue's counsel had advised him that the final form of the consent orders was watertight in protecting his joint custody. The draft had omitted explicit reference to joint custody to ensure goodwill and in pursuance of a "minimalist approach".
Mr Logue expressed a number of criticisms of the handling of his matters by Centrelink between December 1999 and April 2000 when Ministerial intervention resulted in remedial action by Centrelink (ex A1/6). However, Mrs Logue had then appealed against action taken by Centrelink to Mr Logue's benefit and Mrs Logue's detriment. That led eventually to the present proceedings. Mr Logue was rightly aggrieved by Centrelink's failure at certain stages to explain how his entitlements had been calculated and its failure to apologise for or explain erroneous letters sent to him.
Mrs Logue told the tribunal that the actual times and periods in which the children were with her were set out in T72-T75. Exhibit R2 was a tabular representation prepared by Ms Schuster based on the material at T72/304. It suggested that Mr Logue had care of the children from 10 July 1999 to 16 May 2000 for 10% of the total time. This was a sophisticated presentation based on the total number of days available multiplied by three to take account of there being three children. On some days the children were distributed between Mr and Mrs Logue such that one parent had one child and the other parent had the other two children. The calculations allowed for this. 936 days were available. Mr Logue was able to claim 89 child days of the 936 and Mrs Logue 847 child days.
Mr Logue challenged this and stated that he had a calendar at home where he had recorded when the children were with him. The tribunal invited him to submit this material but he did not take up the offer. Mrs Logue explained that she had based the material at pages 304 and 307 in ex TD1 on contemporaneous calendar records. She said she had made such entries for some time. She said that the consent orders were not followed but that, if they were, Mr Logue would have care of the children for about 26% of the available time.
This application involves entitlement to Family Allowance for the period from 2 December 1999 to 30 June 2000. On 1 July 2000 Family Tax Benefit was introduced. The new payment superseded Family Allowance and involves different legislation. The legislation in force for the period in issue before the tribunal appeared in the Social Security Act 1991 ("the Act"). Section 838 of the Act set out the qualification criteria for "individual" Family Allowance.
838(1) A person is qualified for family allowance if:
(a)       the person has at least one FA child; and
(b)       the person is an inhabitant of Australia; and
(c)       the person's income for the relevant family allowance period does not exceed the person's income ceiling; and
(d)       the value of the person's assets does not exceed $376,750.
Section 6(1) of the Act defined an "FA Child" as having the meaning given by ss 831 to 836 of the Act.
Section 831 of the Act defined an "FA child" as a "dependent child". Section 831(1) stated that, subject to ss 832-836, "each dependent child of a person is also an FA child of that person".
Section 5(2) of the Act defined a "dependent child" who was under 16 as:
Dependent child—under 16
5(2) Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if:
(a)       the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care; or
(b)       the young person:
(i)        is not a dependent child of someone else under paragraph (a); and
(ii)       is wholly or substantially in the adult's care. (Tribunal's emphasis)
Section 869 of the Act provided that Secretary (in fact a Centrelink sub-delegate) could make a declaration in cases where two people are each qualified to receive Family Allowance to specify the respective share of each party.
Secretary may make declaration where 2 people who are not members of the same couple are qualified for family allowance for the same child
869(1) If the Secretary is satisfied that 2 people who are not members of the same couple are each qualified for family allowance for the same child, the Secretary is to make a declaration:
(a) stating that the Secretary is satisfied that the 2 people are each qualified for family allowance for the child; and
(b) specifying the share of the family allowance for the child that each of the 2 people is to receive.
…
869(4) If the Secretary makes a declaration under subsection (1), the Secretary is to give each of the 2 people involved notice of the declaration.
Note 1: until the declaration under this section is made only one of the 2 people involved can receive family allowance for the child (see section 848).
Note 2: for the effect of a determination under this section on the calculation of family allowance rates see Module E of the Family Allowance Rate Calculator.
Section 1069 of the Act provided for the calculation of the rate of Family Allowance in shared care cases such as this.
Module G—Shared daily care and legal responsibility
Sharing family allowance (determination under subsection 869(1))
1069-G1 If:
(a)       2 people who are not members of the same couple are each qualified for family allowance for the same child; and
(b)       the Secretary has made a declaration under subsection 869(1) in respect of family allowance payable in respect of the child; and
(c)       the declaration states the percentage of family allowance in respect of the child that a person is to receive;
the FA child rate for the child, in working out the rate of family allowance payable to the person, is the stated percentage of the FA child rate that would otherwise apply to the child.
Note: For FA child rate see Module B.
2 people who are not members of the same couple qualify for family allowance for same child (no determination under subsection 869(1))
1069-G2 If:
(a)       2 people who are not members of the same couple are each qualified for family allowance for the same child; and
(b)       the Secretary has not made a declaration under subsection 869(1) in respect of family allowance payable in respect of the child; and
(c)       the family allowance rate of one of the people includes an FA child rate for the child;
the FA child rate for the child is not to be included in the family allowance rate of the other person.
The tribunal pauses to observe that Mr Logue was highly critical of Centrelink for not producing written declarations identifying that he was entitled to a percentage of the Family Allowance in respect of the children. He was critical too of the SSAT for making such a declaration in writing but only after a period following the publication of its decision. The irony is, of course, that Mr Logue may actually have been entitled to no allowance for so long as no declaration had issued. The tribunal notes, however, that s 869 does not explicitly require that the declaration or the notice to the parties must be in writing. It may suffice that the declaration can be discerned in a written decision and/or that the declaration and notice be provided orally.
The basic element in all of this statutory survey was in s 5(2)(a) of the Act where it was clear that legal custody or guardianship rights, separately or combined, were apparently insufficient of themselves to attract entitlement to Family Allowance on any day on which the adult claiming payment did not have the young person in his or her care (see paragraph 13 above).
Ms Schuster, for the Secretary, went further and cited the Federal Court decisions in Secretary, Department of Social Security v Field (1989) 18 ALD 5 and Elliott v Secretary, Department of Social Security and Another (1995) 40 ALD 594 to argue that a declaration recognising any entitlement of Mr Logue to a proportion of Family Allowance payments should apply only to any period in which Mr Logue had actual care of any child for a period of at least 14 consecutive days. Ms Schuster's assessment was that Mr Logue had care of the children for 14 or more consecutive days only during the Christmas holidays. This equated to a 4.6% share of the year's Family Allowance. She would round that up to 5%.
The tribunal has considered the decision in Elliott (above) because that case related to Family Payment (essentially Family Allowance under its previous title) whereas Field (above) related to Supporting Parents Benefit (essentially Parenting Payment (Single) under its previous title). Different policy considerations can apply to these two payments which are for quite different purposes. Family Allowance is essentially paid a parent who should use it for the benefit of children. Parenting Payment (Single) is a payment made for the income support of the person and family of the person who, because of child-related responsibilities, is unable to participate fully in the work force. However, as the Federal Court has applied the same principles to care and custody issues arising under both payments, there is binding authority in relation to Family Allowance. As Lehane J said at page 597-599 of the judgement:
"The leading authority on this undoubtedly, and unfortunately, complex area of the law is the decision of the full court of this court in Secretary, Department of Social Security v Field (1989) 18 ALD 5; 25 FCR 425. Although that case had to do not with family payment but with a supporting parent's benefit, the reasoning is plainly applicable to the family payment. In order to decide whether the respondent was entitled to a supporting parent's benefit in respect of his child, the court had to ascertain whether the child was a 'dependent child' as defined in s 3 of the predecessor of the Social Security Act 1991, the Social Security Act 1947 (Cth). The definition in s 3 of that Act was somewhat different from the definition in s 5 (2) of the present Act, but for present purposes the differences are insignificant.
…
"Field is, I think, clearly authority for the following propositions which are directly applicable to the present case:
(1)     A child is a dependent child of an adult only if the adult has the legal right to have, and to make decisions concerning, the daily care and control of the child. Care and control in fact, without the legal right, is irrelevant (Juren is a good example of the way in which that proposition may apply in practice).
(2) An order under the Family Law Act granting custody of a child confers legal rights of that kind; an order granting access may do so.
(3)     Where a child, on 'access days', lives at the home of a parent with access (but not custody) it is at least likely that that parent will have the right to have, and to make decisions concerning, the care and control of the child. But that right is not necessarily sufficient, because what is required is that the parent have rights relating to daily care and control.
(4)     A right of access for only a few days at a time (in Field, from Friday afternoon to Monday morning (ie three nights)), intermittently, while conferring the right to have, and to make decisions concerning, care and control during those periods does not confer a right of daily care and control.
(5)     If access extends over a period of two weeks or more, then the right of the parent having access is likely to be properly characterised as the right to have daily care and control during that period; it is possible in some circumstances that access for a shorter continuous period will carry that right with it; 'there is a band of situations within which a determination either way may be open'.
"The crucial and by no means straightforward question is, when does a right concerning care and control become a right concerning daily care and control? Perhaps the key to the guidance which Field gives on that question lies first in its agreement with the proposition that the distinction between custody on the one hand and access on the other is 'temporal rather than qualitative' and secondly in its insistence that 'daily' care and control requires a relatively long continuous period of living with the person (usually, of course, parent) concerned. Short, discontinuous periods, while they may involve a right of care and control during those periods, do not involve a right of daily care and control. The other matter which seems to me to emerge clearly from Field, and also for that matter from Wetter, is that it is not particularly helpful to ask, for this purpose, what decisions a parent with access actually makes for the child concerned during the period of access or what that parent actually spends on looking after the child during periods of access. The whole tenor of Field, particularly, is that it is to be expected that the parent with access will make decisions about 'what the child eats, when he goes to bed, whether and where he goes to church, what he does with his time, to summon medical attention in the event of accident or illness, and so on'. The fact that a parent who has access but not custody makes those decisions (and has the right to make them) during periods of access does not, by itself, confer a right of daily care and control where the periods of access are short."
The Act at the time of the decision under question in Elliott (above) was differently constructed. The definition of "dependent child – under 16" read at the time:
Dependent child - under 16
5. (2) Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the "adult") if:
(a) the adult has the right (whether alone or jointly with another person):
(i) to have the daily care and control of the young person; and
(ii) to make decisions about the daily care and control of the young
person;
and the young person is in the adult's care and control; or
…
The tribunal does not consider that the alterations (see paragraph 13 above) are significant in relation to the application of Elliott (above).
In considering the terms of the consent orders at paragraph 4 above, several matters are clear:

Mrs Logue was to have the day to day care and control of the children.
During school holidays Mr Logue would have the children for half of the time. School holidays, other than at the end of the year, run for two weeks. The maximum period of consecutive days that Mr Logue could have the actual care of the children during a school holiday period, allowing for weekends, would appear to be nine days, or perhaps 10 days if the period ended on a long weekend. Other access periods are shorter except for Christmas when the school holidays run for some six weeks and he has access for half of that time.

It might be said that consent orders, in view of the Elliott decision (above), could scarcely have been more disadvantageous to Mr Logue. The tribunal is, however, bound by Federal Court authority. The tribunal is therefore bound to apply the principles in the Elliott case (above). While it is true that the Federal Court said that it was possible in some circumstances that access for a shorter continuous period than two weeks will carry with it the right to have daily care and control during that period, there is no clear reason to so hold in this case, especially where the periods in question fall so far short of the preferred two weeks.
Mr Logue placed great weight on an alleged intention that he and Mrs Logue were to have joint custody of the children (see paragraph 6 above). However, even if he were taken to have joint custody of the children with Mrs Logue, in the absence of actual care of a child, joint custody will not necessarily suffice in the absence of actual care. Ms Schuster helpfully addressed the scheme of the Family Law Act 1975 ("the FLA") as it was in 1993 and how that defined the implications of the arrangements reflected in the Logues' court orders.
Prior to amendments made in 1995 the FLA in s 63E described the difference between custody and guardianship. The guardian of a child had "responsibility for the long-term welfare of the child" and had all the powers, rights and duties traditionally vested in a guardian vested in him or her (s 63E(1) of the FLA). However, a guardian did not have "the right to the daily care and control of the child" (s 63E(1)(a) of the FLA) and did not have "the right and responsibility to make decisions concerning the daily care and control of the child" (s 63E(1)(b) of the FLA).
A person granted custody had the right to have the daily care and control of the child and the right to make decisions concerning the daily care and control of the child (s 63E(2) of the FLA).
The orders made in 1993 in the Logues' case conferred on both Mr and Mrs Logue the decision-making power in respect of the long term welfare of the children but granted to Mrs Logue the right to make decisions about the daily care and control of the children.
Amendments to the FLA in 1995 changed these principles by introducing the notion of "parental responsibility" (s 61B of the FLA). Subject to court orders, each parent has parental responsibility (s 61C of the FLA). Parental responsibility does not incorporate any distinction between responsibility for a child's long term welfare and responsibility for the daily care and control of a child. Each parent has the full range of duties, powers, responsibilities and authority which, by law, a parent has in relation to children. The court order exception in s 61C has the effect of preserving, unless a fresh application to a court is made, any court orders, such the Logues' orders, that were in force when s 61C came into operation.
In view of the above the tribunal makes the following findings. First, as at 2 December 1999 when Mr Logue claimed Family Allowance, the children were aged 12 (Alison), 10 (Gregory) and eight (Matthew). Each child was therefore potentially a "dependent child – under 16" of Mr Logue and, therefore, potentially an "FA child" under s 831 of the Act.
The tribunal finds that Mrs Logue is, in accordance with the court orders in T51, the adult who was legally and solely responsible for the day-to-day care, welfare and development of the three children. So long as any of the children was in her care the child was a dependent child, and therefore an FA child, of Mrs Logue.
The tribunal finds that when a child was not in Mrs Logue's care, and when it was in Mr Logue's care, subject to the Federal Court decision in Elliott (above), the child was not a dependent child of Mrs Logue But was the dependent child of Mr Logue being a child who was wholly or substantially in Mr Logue's care.
The tribunal finds that the finding in paragraph 31 must be modified as a result of the Federal Court decision in Elliott (above) such that the children were Mr Logue's dependent children for only 4.6% of the period from 2 December 1999 to 30 June 2000. This was explained above in paragraphs 18-23. For ease of administration the tribunal finds, in accordance with s 869(1) of the Act, that two people, namely Mr and Mrs Logue, were each qualified for Family Allowance for the children. The tribunal further finds that Mr Logue qualified for a 5% share of the Family Allowance payable in respect of the children with Mrs Logue qualifying for a 95% share. This paragraph is to serve as a declaration and notice for the purposes of s 869 of the Act.
CONCLUSION
The tribunal has found that both Mr and Mrs Logue qualified for Family Allowance in respect of their three children in the period between 2 December 1999 and 30 June 2000. The tribunal has further found that the total Family Allowance is payable to Mr and Mrs such that Mr Logue receives 5% of the total and Mrs Logue 95% of the total.
DECISION
The tribunal varies the decision under review such that Mr Logue is to receive 5% and Mrs Logue 95% of the Family Allowance payable in respect of the three Logue children between 2 December 1999 and 30 June 2000.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  20 May 2002
Date of Decision  13 September 2002
Advocate for the applicant       Self
Advocate for the respondent    Ms H Schuster, Centrelink Advocacy and Administrative Law Team
Advocate for the second          Self
respondent

[2002] AATA 803

13 September 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Contract Formation

Family Allowance

Declaration

Shared Care