MQDF and Secretary, Department of Social Services (Social services second review) - [2022] AATA 1497

MQDF and Secretary, Department of Social Services (Social services second review) [2022] AATA 1497 (27 May 2022)
Click here to enter decision.
Division: GENERAL DIVISION
File Number(s): 2021/3985
Re:MQDF
APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndBSPT
JOINED PARTY

DECISION
Tribunal:Ms Anna E Burke AO, Member
Date: 27 May 2022
Place:Melbourne

The Tribunal sets aside the determination of the Child Support and Social Services Division of the Administrative Appeals Tribunal dated 20 May 2021 and in substitution determines the 'status quo' should be maintained and so finds MQDF was the principal carer of T at the date of qualification.
.......................[sgd].................................................
Ms Anna E Burke AO, Member
Catchwords
SOCIAL SECURITY - parenting payment – parents separated – equal care of child – which parent principal carer – which parent in greater need of favourable determination – factors for consideration – mandatory factors – discretionary factors – parents’ employment prospects – father in greater need of favourable determination – father the principal carer – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Cases
Clarke and Secretary, Department of Education, Employment and Workplace relationship and Harrington [2013] AATA 699
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving and Secretary, Department of Social Services [2016] AATA 949
Petrie and Secretary, Department of Social Services [2018] AATA 1641
Smedley and Secretary, Department of Education, Employment & Workplace Relations & Beveridge [2010] AATA 292
Secondary Materials
Guides to Social Policy Law, Social Security Guide
REASONS FOR DECISION
Ms A E Burke AO Member
27 May 2022

The Applicant, MQDF, is seeking a second-tier review by the General Division of the Administrative Appeals Tribunal (AAT2) of a decision by the Social Security and Child Support Division of the Tribunal (AAT1) dated 20 May 2021 which set aside Centrelink’s determination of 15 July 2021 that he was the principal carer of child T.
The application was heard via telephone on 25 March 2022. The Applicant, MQDF, was self-represented. The Other Party, BSPT, was represented by Mr Bryn Overend of Counsel. Ms Aarabi Raveendiran, Government Lawyer at Services Australia, appeared for the Respondent, the Secretary of the Department of Social Services.
BACKGROUND
The Applicant, MQDF, and the Other Party, BSPT, are the separated parents of a child born in April 2014, who the Tribunal will refer to as ‘T’. The following is a timeline of the background relevant to the decision under review:
(a)In May 2014 MQDF and BSPT married overseas.
(b)On 20 November 2014 BSPT and baby T arrived in Australia on a temporary partner subclass 309 visa.
(c)On 7 In March 2015 MQDF commenced receiving parenting payment for T.
(d)In May 2017 MQDF and BSPT separated.
(e)On 26 June 2017 BSPT was granted a subclass 100 permanent partner (migrant) Visa.
(f)In 2018 MQDF and BSPT entered consent orders in the family court to share 50/50 care of T.
On 15 July 2019 BSPT applied for Parenting Payment Single (PP). She had previously been in receipt of Special Benefit Payment. On 5 August 2019 Centrelink rejected BSPT’s claim for PP as she was not considered to be the principal carer of T.
On 25 September 2020 a departmental Authorised Review officer (ARO) affirmed the Centrelink finding on internal review. The ARO reasons state:
A person is only qualified for Parenting Payment (PP) if they are the principal carer of a child.
According to the most recent parenting order, you share parental responsibility with T's father and she is in your care 50% of the time.
Meeting the definition of principal carer is a necessary condition in order for a child to be a PP child of a person, and for the person to be qualified for PP. A child is a PP child of the person if the person is the principal carer of the child, the person is not a member of a couple and the youngest child has not turned 8.
The provisions mean that only one person at a time can be the principal carer of a child. Since being the principal carer of a child is one of the criteria for having a PP child, it follows that a child can only be a PP child of one person at a time. In all shared carer situations, to determine who has the PP child, it is necessary to determine which of the carers is the principal carer. Factors taken into account include:
·whether one carer already qualifies as principal carer of another child
·whether only one carer would be eligible for Parenting Payment,
·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 expenses of each carer, for example, the amount of rent paid, child care paid.
·workforce experience, education levels and future employment prospects
·any other factors considered relevant by the decision maker.
In most shared care cases, the person with the greater degree of care and control of the child is the principal carer of that child. A person may be considered a principal carer of a child where the level of care being provided is at least 10% more than the other carer(s). Care is considered equal where there is less than 10% difference between the level of care provided by the carer(s). Consideration should be given to who is most in need of a favourable determination.
When deciding who is most in need of a favourable outcome, the relative situation of each carer should be considered, along with the impacts of altering the current determination. There should be good reasons to do so.
After reviewing the available evidence and your relative circumstances, I have found the current determination should remain in place. I can find no reasons to justify altering it given the similar circumstances of the two carers.
I have therefore decided the decision to reject your claim for Parenting Payment (and not consider you to be the principal carer) is correct.
On 22 July 2020, BSPT requested a review of the ARO’s decision by the Social Security and Child Support Division of this Tribunal (AAT1).
On 20 May 2021, AAT1 set aside the decision under review and in substitution decided that BSPT was the principal carer of child T as at 15 July 2019. The presiding Member at AAT1 stated:
After considering the evidence the tribunal found the following:
·[MQDF]:
ohas around $50,000 in superannuation and a van.
oruns a business and the net income he earns is more than likely to be substantially more than $5,200 per year.
ohas experience in the construction industry and given the current health of this industry it is more than likely that he could obtain work in this area again although he would most likely need assistance with child care from family. The tribunal notes that he has family support to assist with caring for T if he needs to work.
ohas rental costs of $425 per week
·[BSPT]:
ois currently unemployed.
ohas had virtually no employment however she does have qualifications in allied health support and there appears to be no impediment to her working in this field other than obtaining childcare. Whilst she may not be able to afford it now, with employment and the relevant government subsidies she should be able to afford child care.
ohas no family in Australia.
ohas access to highly subsidised rent; a relatively low $348 per fortnight.
Conclusion
Having regard to the legislation, policy and circumstances of this particular case, the tribunal finds that BSPT was the principal carer of T from 15 July 2019 within the meaning set out in section 5 of the Act. The main reason for this decision is the fact that MQDF is currently working and has a substantial asset (superannuation) which he can access in financial hardship.
On 13 June 2021 MQDF requested a review of the AAT1 decision by AAT2, stating:
I believe that this decision is unfair and does not reflect the facts. In addition, this decision will impact the child, T, for the most basic reason that we will lose the ability to afford housing and to be able to maintain a basic standard of living.
Further to this, a lengthy document was dumped on me some hours before the hearing which did not give me an opportunity to respond. Also, by what the application states, it is clear that BSPT is better off financially than myself, at this current time.
It is completely unclear to me, how or why you could come to this decision.
There is evidence on a previous Family Court affidavit that BSPT is supported by her wealthy family
ISSUE
The issue before the Tribunal is which carer of child T was most in need of a favourable determination during the qualification period of 15 July 2019 to 14 October 2019.
LEGISLATIVE FRAMEWORK
The Tribunal is assisted by the Social Security Guide (the Guide). The Guide provides assistance to those who administer the Social Security Act 1999 (Cth) (the Act). While the Tribunal is not bound to apply policy guidelines, it will usually do so unless there are cogent reasons in a particular case not to (See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guide describes PP at 1.2.4.10:
PP is an income support payment that provides financial assistance to principal carers with parenting responsibilities for a young child and provides them with incentives to increase workforce participation and reduce dependency on income support.
It is a payment for both single and partnered parents and it is payable to one member of a couple. An alternative income support payment such as JSP may be payable to the other member of the couple, depending upon their individual circumstances.
The history of the payment has resulted in certain features that are not common to other income support payments. There are effectively 2 different categories within PP. These are:
PPS for single parents with a youngest child aged less than 8 years old, and
PPP for partnered parents with a youngest child aged less than 6 years old.
Part 2.10 of the Act outlines qualification and payability for PP. Relevant for this matter are the following sections:
Section 500 qualification for parenting payment:
(1) A person is qualified for parenting payment if:
(a) the person has at least one PP child (see section 500D); and
(b) the person is an Australian resident; and
……
(d) at least one of the following conditions is satisfied:
(i) the person is not a member of a couple and the person was not a lone parent at the start of the person’s current period as an Australian resident;
(ii) the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;
(iii) the person has a qualifying residence exemption for parenting payment;
…
Section 500D(2) PP 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.
Section 5(15) defines ‘principal carer’ of a child:
A person is the principal carer of a child if:
(a) the child is a dependent child of the person; and
(b) the child has not turned 16.
Sections 5(18)-(20) of the Act provides that only one person at a time can be the principal carer of a child:
(18) Only one person at a time can be the principal carer of a particular child.
(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.
(20) The Secretary may make the determination even if all the adults have not claimed a social security payment that is based on, or would be affected by, the adult being the principal carer of the child.
The Act does not specify who will be considered the principal carer of a child where two people share equal care of the child. However, the Guide sets out the following principles at 1.1.P.416:
Summary
The provisions of SSAct subsection 5(18) mean that only 1 person at a time can be the principal carer of a child. In all shared care situations (PP, JSP, YA (job seeker) and SpB), it is necessary to determine which of the carers is the principal carer.
Example: A couple have separated and have joint legal responsibility) for, and share the care of, their child who is under 6. One of the parents previously received PPP under SSAct subsection 500D(1). SSAct subsection 5(19) requires that a determination be made stating which person is the principal carer of the child, and therefore has the PP child.
In all cases where care is shared a written determination must be made which:
·specifies 1 of the adults as the principal carer of the child
·is provided to each adult, and
·is made EVEN if only 1 person has 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.
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 (the mandatory care factors):
·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,
oNote: 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 discretionary care factors):
· 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 should be noted that the Guide foreshadows that situations analogous to this matter will arise:
Change in existing shared care - different principal carer
To avoid a debt being created for payments received before the determination is made, if a person is already receiving income support as a principal carer after the commencement of shared care (or a decrease in the degree of shared care) and before a determination has been made under SSAct subsection 5(19), consideration should be given to making different determinations for the period before and after the date of determination. This would only be necessary if the application of subsection 5(19) will result in a change of the determination as to who is the principal carer. In this situation, different determinations should be made if:
·the degree of shared care is approximately equal, or
·the current recipient has the lesser degree of care, and
·the recipient has not made a false statement and has complied with the notification requirements relating to shared care, and
·the other carer is not reliant on a favourable determination to be the principal carer for the period before the date of determination.
Explanation: This is intended to avoid a debt being created for payments received before the determination is made, PROVIDED that:
·the current principal carer has equal care of the child, or has complied with the notification requirements, and
·the person with the greater degree of care of the child will not be deprived of arrears.
EVIDENCE
Both parties applied, and were granted, a confidentiality order for these proceedings. Given the case for each party was to demonstrate they were in greater need for the PP at the date of qualification, and to ensure procedural fairness was afforded to all parties, the Tribunal determined that the Applicant and Other Party would not have access to the materials which they each provided for these proceedings.
A Centrelink file note dated 21 September 2020 records:
Findings from triage: …. due to 50/50 care of child, other carer claiming PPS. Triage outcome: Other carer claiming PPS since 7.03.2015 under S24 provision whilst still partnered with customer. No significant difference in assets or income. Therefore unable to change decision. Guide 1.1.P.416, 1.1.P.412.
BSPT made the following statement on 9 January 2021 in support of her application for review of the ARO determination of 25 September 2020:
11. He worked doing gardening, landscaping, woodwork and home maintenance. He had his own business. It was called […]. He would also do construction work, including work that his aunty’s husband would offer him from time to time.
12. When we lived together, he would work, and I would look after [the child] and all the domestic matters, from cooking and cleaning to making the home a nice liveable space.
13. He worked most days, and at least 3 days per week out on a site. He would work weekends as well. He would arrange work for whenever he could. I remember that I was alone most of the time. Although sometimes he would do administrative work on his computer from home. Sometimes he would work with his brother, who also worked in a trade.
…..
20. He liked to save money in gold and silver. He kept it in a red box, and I think he used to bury it next to the house. That’s what he mentioned. Sometimes he would get the box out and he would show the gold and silver to us. Some were in coins, and some were in bars.
21. I remember him saying ’38 kilograms’ when it came to how much gold and silver he had. But I don’t really know how much he had.
22. He also had superannuation, but he never shared amounts with me. I would clean the house and would find letters from I think CBUS who would send documentation about his superannuation.
23. I remember that he mentioned he had superannuation because he had worked from when he was very young. He spoke about how he had managed to buy his own home, and then he sold it before we met.
24. I believe [the Applicant] invested in Bitcoin as well. I remember he claimed he was not great with computers and he asked me for information to help him set up a virtual wallet. This was probably around 2015 to 2016. I can’t remember what happened exactly, but he did tell me that he successfully bought some. I think I remember something about 0.8 of a Bitcoin.
…
28. He had a number of different He owned the furniture in the house, like the couches, the bed and mattress, the white goods like the refrigerator, the washing machine, and many power tools.
29. He had a Nissan X-Trail as well. But he has since sold that and now has a white van.
30. He also had many things stored at his mother’s house, although I never saw this. I remember him talking about the outside shed at their house and how everything in it was his. He was a bit of a hoarder and would like to keep things.
31. I also remember he mentioned to me that he had money that his father had given him. He would make some vague references to it. He would say something about it being in a savings account so they can give the interest to him to help him out.
40. I know after we split up, [The Applicant] was living at his parents’ home in Heidelberg Heights for a while. I don’t know whether he was paying any rent.
41. I believe his mother, his sister and his grandmother would help him out with the care of [the child]. I don’t know exactly. I remember in the family court proceedings in 2018, his mother made an affidavit saying that she was there to help support the care for [the child].
42. [The Applicant] has since moved out to another place in Heidelberg Heights, around the corner from his mother’s house.
…
44. Last year I saw that I could enrol in a free TAFE program - a Certificate IV in Allied Health. I remember thinking that was a good opportunity, so I enrolled. Most of the course has been free, although I did have to pay $90 in fees. The course was full time, and I finished it at the end of the year.
45. I am not doing any further study now.
46. I have put applications forward for jobs, but I am in a Catch 22 situation. They don't want to hire you because you don't have experience, but you can't get experience without being hired. It has become very difficult.
47. My dream would be to do a Bachelors in Biomedical Science or something because I have a real interest in the human body and helping people with disabilities. But this feels very far away, almost like a fantasy.
48. I am not a citizen, I am only a permanent resident. It means that I still have to pay very high fees to do study, and I don't have that money.
49. Another thing that makes it hard is that I have no car, and I have to rely on public transport.
50. Also, over the last year, I have to spend so much of my time in legal appointments, studying, counselling, and generally coping with the whole situation. The impact of living in a family violence situation has left me with a lot of instability and feeling on edge.
59. In the last years, when [the child] is under the care of her dad, they have moved to a new house, got a new puppy dog, she has been enrolled in piano singing lessons and travel interstate. The father seems to have a good financial position to be able to afford all these extra comforts

MQDF lodged the following statement with the Tribunal on 13 January 2022:
Background
1) I was born in Melbourne, Australia on 27/03/1984. My parents were Greek immigrants. I left secondary school in year 10 and worked doing odd jobs, mainly in the construction industry.
2) I met and had a child with BSPT unexpectedly while I was backpacking in South America in 2013. BSPT was spending a lot of time in the communal areas of the hostel I was staying at in xxx. I stayed at this hostel a lot longer than I had planned, due to a serious case of food poisoning which I took quite a long time to recover from. This is where we met. BSPT had advised me that she was taking a monthly contraceptive injection. This proved to be untrue as she fell pregnant at that time. I did what I thought at the time to be the right thing and I married BSPT. From that point I dedicated myself to being the best husband and father I could be.
3) I spent my savings coming back to Australia to set up a home for us, flying back to xxx for the birth of our daughter. I paid all the expenses for our daughter and all amounts due for BSPT’s visas to come to Australia. In Peru we stayed in one of the houses owned by BSPT father and he paid for her flight to Australia.
Moving to Australia
4) When we arrived in Australia, we lived in the house I had rented in xxx. I started a small gardening business so that I could have flexible working hours so I could spend time with my daughter. It was very slow going and very competitive, but I wanted to make it work.
5) BSPT joined a parkour group shortly after arriving in Australia and started developing her friendship network which she has to this day. She progressed in a short time to going to parkour 4 days a week and would also go out with her parkour friends during the night a few times a week while I took care of our daughter.
6) BSPT handled everything money related from my bank account, which she had access to. We used her bank account as a savings account.
7) Her dad has large holdings in silver mines, property, farming and retail and he was pressuring us to buy property. Because we could not afford to do this, he told BSPT that he would organise a portion of her inheritance to purchase a property when he was planning to visit in 2017. He suggested we buy silver or crypto currency in the meantime, for the future, which BSPT did buy small amounts randomly. BSPT also discussed crypto currency a lot with her brother X, who lives in Germany.
8) BSPT also went for an all-expenses paid holiday in 2016 to visit her sister in America and the rest of the family in xxx for 3 and ½ months. This was financed solely by her family. This is the time her father advised her about her inheritance.
Separation
9) We separated in May 2017. Soon after the separation, I became aware that this was pre organised by BSPT to occur in the same week that she received her permanent residency. She moved in with her new partner, and left our daughter with me for close to four months.
10) During this time, my business fell apart and my mental and physical health suffered. In or around September 2017 she broke up with her then partner. Early in 2018, a year after we broke up and having had no face to face contact, she took out an intervention order against me as she realised that this would assist her in obtaining public housing quickly, and gave her access to many support services and also she would have something to show in the family court. Her dishonesty regarding the IVO worked as planned as she skipped the normal waiting periods and secured public housing and many other support services. In the meantime, I have an IVO hanging over my head which she uses to manipulate absolutely everything, as she did with this tribunal and the confidentiality order. This has been detrimental to me and taken a further toll on my mental health even further.
12) Throughout all of this, she had the support of her family, including her mother who visited Australia and provided her with financial support in 2017 which contradicts what BSPT stated, that her mother disowned her.
13) When BSPT left our family home, BSPT took all our savings which were in her account and all the silver she had purchased. Later on, when I was moving house, I realised that she had also taken the USB drive with the bitcoin information. As it was a highly stressful time for me, I had no will to fight about those things and just wanted to concentrate on my daughter and her wellbeing and keeping her in my life. I also did not want to rock the boat or get BSPT angry which happens quite easily.
14) In 2018 I could not afford the rent or the bills anymore, so I was forced to move into my mother’s shed, with my daughter. My mother lives in a two-bedroom sub divided house with my 90 year old grandmother. This was one of the hardest and most demoralising times of my life and extremely difficult for my daughter. In addition to this, we were going through the family court for custody arrangements. The stress and constant fear of losing my daughter had further negative impacts on my health.
15) In the meantime, BSPT, through all the support services available to her, gained a comfortable, new, public housing apartment overlooking the city, and was enjoying a full social life as can be found on her social media accounts. She states she is paying roughly half of what I pay in rent. Similar apartments in her building range between $380 to $450 per week to rent in the private sector, so BSPT quality of home has always been at a higher standard to my own and has been far more stable and comfortable than what I have being going through, even with the family payment. According to her statement, BSPT is paying $172 per week for rent.
16) As a single mother BSPT current income and public housing means she is always covered for the necessities of life which are food and shelter. BSPT housing is guaranteed whereas I am in a situation of living day by day.
17) In 2019 I moved with my daughter into a unit on top of a pizza shop in xxx, as it was the only place I could afford, however, I was extremely grateful for this new start. Throughout 2019 I tried to build up my business, but it was slow going, very competitive and sometimes I was going backwards when people refused to pay, and I could do nothing about it. I was driven by the hope that I would be able to earn enough so that I would not have to rely on Centrelink anymore, and so I could create a better life for my daughter. This is something I was working towards, but it hasn’t happened.
18) 2020 was a disastrous year due to Covid and all the restrictions. The second half of the year was marked by another horrible event when BSPT randomly kidnapped our daughter and withheld her from me for 2 months on false allegations. When we went to court, BSPT’s focus quickly changed from her original allegations to asking the court permission to have full parental responsibility and to go to Peru on a holiday with our daughter. Due to her threatening in the past to remove our daughter from Australia and not return her, the court denied her request and ordered a flight ban. The court also denied her request for full parental responsibility. Both requests were rejected as they were baseless. The judge restored the original orders and the week on, week off arrangement resumed as per the original court orders.
19) During this time, my health deteriorated which manifested in the eczema on my hands worsening to the stage where my hands were cracking and bleeding. They would take weeks to temporarily heal which made it impossible to work with my hands at that time. What was far worse than that was the extreme insomnia I experienced, following BSPT ‘s kidnapping of our daughter. This would include periods of up to a week at a time without any sleep and this repeated for many months. I received different medication and therapy from various doctors to help my situation but none of it helped. This led to the current treatment I am receiving from Re Med clinic which has helped a great deal, but I am still struggling to recover fully as the insomnia returns periodically and at times of stress. My eczema has to be managed full time with medication, diet and I have to have UV light therapy 3 times a week, to try and control it. Thankfully the UV light treatment is covered my Medicare otherwise I would not be able to afford it.
20) I am actively trying to improve my situation and have not given up. I am doing my best to improve my mental and physical health to the point where I can look for and secure constant work. During the contested period, this has not been possible due to my health issues, the constant Covid lockdowns and restrictions in the last two years, and all the ongoing court appearances which have prevented me from replacing the Centrelink payments with enough paid work to cover the necessary living costs I have.
21) Even with my superannuation hardship payments, I am struggling to survive and make ends meet. The only recreation spending is my daughter’s piano/singing lessons which cost$82 per fortnight. I pay for extra costs for my daughter, like all our daughter’s dental costs and anything that comes up like the stationary at school. BSPT pays half the school fees but has never contributed to any extra costs like stationary or school bags etc. Referring to social media and also what my daughter tells me, BSPT ‘s recreation activities include, DJ’ing in clubs, skateboarding, bike riding, travelling with her parkour group all over Victoria and in 2019, a trip to Tasmania. This all costs money that she can afford.
22) Also, in 2020, when she kidnapped our daughter, she stated on court documents that she feared for her safety so she stayed in an inner-city hotel for a week, which could also be afforded. Further from this, she has admitted in family court documents that her father is willing to pay a surety to the court of $5000 if she can travel to Peru with our daughter. Her father has also offered to cover all costs including air fares, accommodation etc. This, as well as her mother visiting in 2017 shows that she is supported by her family, and that she is not disowned as she mentioned in her statement. Although her parents are themselves divorced and live-in different cities to each other in Peru, she has the full support of both of them.
23) The situation she mentioned referring to transport, is by her own choice. She received her driver learners permit while we were still together but did not take it further as she was not interested in driving. She has no need for a car as her apartment is in the inner city. She is positioned exactly between two train stations and has access to multiple bus stops. She can get anywhere she needs to very efficiently. On the other hand, I need my car to be able to work. Also, as I am renting privately, I could be asked to move at any time like I was asked to move last year, as the owners wanted to move in. Where I rent is governed by price, not by my preference of area.
24) As for BSPT not being able to work. She has received a certificate IV in allied health. I am sure that during an ongoing pandemic, there would be plenty of opportunity in this area. Also, whilst she was doing her course, she had multiple friends baby sit and pick up and drop off our daughter from school. There is also heavily subsidised before and after school care at our daughter’s school. So, saying she has no access to childcare is untrue.
CONTENTIONS
Respondent
Given the nature of the current proceedings, essentially a dispute between the father and mother as to who was the principal carer during the relevant period, the Respondent helpfully contended that the Respondent’s role should be confined to assisting the Tribunal in applying the relevant provisions to the evidence. Accordingly, the Respondent did not advance a position as to the findings of fact which the Tribunal is called upon to make.
The Respondent submitted that given T was a PP child during the qualification period and MQDF and BSPT shared equal care of T, the issues for the Tribunal’s consideration in this review are the mandatory and discretionary care factors, as outlined by the Guide. That is, the Tribunal is required to determine whether MQDF or BSPT is the carer who was most in need of a favourable decision during the qualification period.
The Respondent accepted that but for the application of section 5(18) of the Act, both MQDF and BSPT were eligible for parenting payment in the qualification period.
The Respondent considered that the overall evidence is somewhat mixed as to which party was in greater need of a favourable determination during the qualification period. This is largely due to the lack of adequate corroborating evidence for both parties’ oral and written statements and submissions.
With respect to the mandatory care factors, the Respondent considered MQDF appears to have employment income, superannuation, and some assets, whereas BSPT appears to have no employment income, superannuation, or any other assets, though it is unclear whether her business is still trading or making any income.
With respect to the discretionary care factors, the Respondent considered MQDF has a business in Australia, appears to have reasonable future employment prospects and limited personal expenses, however he has higher costs for caring for T. On the other hand, BSPT has little to no employment experience in Australia, except for teaching parkour and is, or has been in the past, a sole trader. She also has limited personal expenses and lower costs for caring for T.
The Respondent considers that the difficulties in childcare, assistance from family or friends and health issues are suffered by both parties to some extent.
The Respondent submitted that based on the evidence, self-reported statements and submissions, it would be open for the Tribunal to find that BSPT was in greater need of a favourable determination during the qualification period. However, given the lack of sufficient corroborating evidence, the Respondent notes that this determination will in large part depend on the weight assigned to both parties’ evidence, which is a matter for the Tribunal and its assessment of their credibility.
As such, the Respondent ultimately submitted that whether MQDF or BSPT was in greater need of a favourable determination is a matter for the Tribunal to determine having regard to the available evidence.
Applicant
MQDF submitted in his statement to the Tribunal that he was in greater need of the PP as:
Considering the above information and my expenses which are verified with my bank statement, shows that my necessary living costs amount to much more than BSPT’s. This clearly demonstrates that I have a greater need of the parenting payment. I do not have public housing and have consistently made an effort to better mine and my daughters’ situation, and I should not be punished for this. I have also used my retirement superannuation hardship payment for a third year in a row to pay for everyday living costs. Both BSPT and myself have a potential to gain meaningful employment, however I am acting on it and trying my best to work. People in actual need of finances, try to remedy their situation by making an effort to work. I am struggling with constant health issues and still trying to work whereas BSPT who claims to be in need, does not seem to be in need enough to attempt to work even though she is qualified to work. Instead, she spends her time and energy on recreational activities.
BSPT has not worked one day since arriving in Australia by choice, except for $90 which she advised she was paid for parkour instruction, by her then boyfriend and parkour organiser. This is the only indication of any effort she has made to do any paid work. In addition, she has admitted that her parents are well off and it has been documented on court documents that her parents offered her financial support in the form of surety to the court and all costs associated with travelling to Peru and North America for herself and our daughter. In light of this, it is highly unlikely to believe that her parents support would stop there, especially if she was in need. It is highly unfair and unjust that the Australian taxpayer has to pay for someone that has access to a multimillion-dollar inheritance locked in another country by choice, as she can access it at any time she wishes, if she hasn’t already.
I would please ask and am hoping that you take all I have said into consideration when making your decision. Losing the parenting payment and having to pay back a debt would be devastating to mine and my daughter’s life. It would be highly probable that I will lose my ability to pay for housing, which could easily have a domino effect to losing custody of my daughter which has always been my main focus.
MQDF submitted at the hearing that he and BSPT were in extremely similar situations, except for the fact that she had a guaranteed roof over her head and money to buy food whereas, he contended, he did not.
MQDF took exception to BSPT’s counsel’s suggestion that it was a luxury to be able to pay for a private rental and he stated that he thought it was a luxury to live in community housing.
MQDF conceded that he owned and ran a car but argued it was a necessary investment and associated cost of running his gardening business. MQDF submitted he had to pay private rent and incurred more costs for himself and T, such as T’s dental and extra-curricular activities. MQDF did not deny that he had been able to travel in the past but stated he had not travelled recently. MQDF contended that the bottom line was BSPT had access to subsidised rent, and he did not.
MQDF argued that if the decision stood in BSPT’s favour it would mean he would incur a substantial debt to Centrelink, and even if he only had to repay as little as $15 a week, this would be a lifelong debt for him. MQDF argued that BSPT had survived up until now without receiving PP, whereas he had only managed previously because of the payment. He argued that this demonstrated he had a greater need for PP, and he feared he may not survive if the determination stood in BSPT’s favour.
Other Party
Counsel for BSPT, provided by Social Security Rights Victoria, submitted that in determining whether MQDF or BSPT were 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.
In Clarke and Secretary, Department of Education, Employment and Workplace Relations and Harrington [2013] AATA 699, the Tribunal at [22] stated:
…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 feed, 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.
Counsel for BSPT also directed the Tribunal to the matter of Irving and Secretary, Department of Social Services [2016] AATA 949, in which the Tribunal stated at [66]:
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… 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 the balance, in December 2015 she was in greater need of a favourable determination.

Counsel for BSPT contended that in accordance with the legislation and the Guide, BSPT was the carer most in need of a favourable determination and should be deemed the principal carer of T. Counsel argued that:
(a)BSPT was in greater need of a favourable determination, noting in particular her financial position, earning capacity and lack of supports when contrasted against the position of MQDF at the qualification period.
(b)She was receiving Special Benefit, lived in community housing, had little to no work prospects, and had negligible savings and negligible assets at the qualification period.
(c)She arrived in Australia with very little money; her father had given her around $1000AUD when she came to Australia.
(d)BSPT worked as a stay-at-home mother and managed all domestic matters when she was partnered with MQDF. She relied entirely on him for financial support, for example she stated that when she went grocery shopping, she had to ask for money as she did not have access to the MQDF’s bank accounts.
(e)At the time of the separation BSPT “had a little over $200” in her bank account, having no financial support from family and not having many friends in Australia as she had been looking after T at home.
(f)According to the Statement of Financial Position undertaken by a financial counsellor, during the period 15 July 2019 to 14 August 2019 (during the qualification period), BSPT had a total income of $1220.60 (made up entirely of Special Benefit). Her total expenses, including food and groceries, lunches, take away and dining, personal, expenses for looking after T, and transport totalled $1,166.47.6 This left a surplus of $54.13 for that period
(g)She was sometimes in rental arrears, including during the qualification period.
(h)She has no superannuation.
(i)Due to falling pregnant with T, she did not finish her communication and journalism degree and has negligible work experience in Australia. On rare occasions, she has been able to undertake some work in Parkour training sessions.
(j)BSPT has attempted to improve her work prospects so that she can support herself and her child, including undertaking a Certificate IV in Allied Health and applying for jobs. However, she has faced numerous challenges in her efforts.
(k)She has not had any family support to take care of their child or herself.
(l)Her friend describes that during the qualification period she had trouble paying rent on time, paying for childcare to work casual shifts, relied on public transport, and has had to forego opportunities countless times.
(m)She did not receive any financial settlement from MQDF when they separated
(n)Her financial position has only deteriorated since the qualification period. It is submitted that is largely reflective of the challenges she faces in obtaining regular employment.
Counsel for BSPT contended that in contrast, MQDF had numerous assets, including a car, allegedly savings in silver, and superannuation. Further they submitted that MQDF also had a substantial work history, having owned and operated his own business and access to family supports to assist in the care of T. Counsel for BSPT therefore contended that MQDF had a relatively better financial earning capacity.
Counsel for BSPT submitted there was no substantive evidence put forth as to why MQDF could not return to full time paid work, noting his work history, and that he was ten years older than BSPT and his previous significant earning capacity.
Counsel for BSPT submitted that MQDF had received a net gain of $45k from the sale of his home prior to meeting BSPT and was able to travel extensively abroad on his savings. Counsel argued that when MQDF and BSPT were first living as a couple in Australia he worked full time and was able to earn enough to support a family of three and put enough aside to purchase $4,000 in silver and a considerable amount of crypto currency.
Counsel for BSPT submitted that around the time of the qualification period, MQDF was able to withdraw $10,000 from his superannuation account which was significantly more assets than BSPT had access to.
Counsel for BSPT submitted that MQDF had not provided any evidence of his actual financial position despite having ample opportunity to do so. Counsel for BSPT submitted that MQDF’s access to his superannuation, earning capacity, family support and ability to afford private rental all point to far greater financial position and less of a need at the qualification period. Counsel argued that access to a private rental was an obvious luxury which BSPT was not able to rely on whilst dealing with their separation.
In contrast, counsel for BSPT submitted that at the qualification period her client had limited income, assets and earning capacity. Further she had provided corroborating evidence in the form of bank statements and statements of financial position to demonstrate her limited means, as well as receipts from public housing and support letters from case workers. BSPT’s counsel contended that the fact she had gained access to public housing demonstrated that BSPT was in a vulnerable position.
Counsel for BSPT submitted that BSPT had negligible income, with limited financial support and emotional support from her family who all live in a in foreign country. In summary, counsel for BSPT submitted that there was a stark difference between MQDF and BPST’s financial position at the time of qualification such that BPST was in the greatest need of PP and therefore the decision of AAT1 should be upheld.
Counsel for BSPT stressed that the Tribunal would be straying into jurisdictional error if it considered the practical effect of the determination and not the ultimate question of which parent was in greater need at the qualification period. Counsel for BSPT submitted that in making its decision the Tribunal should not consider the debt which the Applicant could incur because there is no way of accurately quantifying the debt, and if a debt was incurred, MQDF would have the option to appeal the determination, seek a waiver of any or all the debt, and any potential debt could be paid off over time for as little as $15 per fortnight depending on his financial circumstances. Therefore, counsel for BSPT submitted, the Tribunal should reject the notion that the effect of a determination in BSPT’s favour could place MQDF in crippling debt.
Further on the issue of potential debt to MQDF, counsel for BSPT argued that MQDF had increased his debt exposure by seeking, and being granted, a stay of the AAT1 determination, and failing to test his eligibility for JobSeeker.
CONSIDERATION
There is no dispute that during the qualification period T was a PP child, nor is there any dispute that MQDF and BSPT shared equal care of T. The only issue in dispute is which parent was in greater need of the PP at the time of BSPT’s application for PP payment.
By way of background, MQDF was granted PP in 2015 when the parties were still a couple, as BSPT was not eligible for the benefit as she did not meet the residency requirements. MQDF continued to receive PP when the couple separated. BSPT applied for PP when she was eligible and was refused, however on review the AAT1 found she was in greater need and awarded her PP. MQDF sought and was granted a stay of the AAT1 determination, accepting that a potential consequence of this was he may incur a debt if the AAT2 review was not in his favour.
If the Tribunal affirms the decision of the AAT1, BSPT will receive back payment of the difference between her Job Seeker payment and the PP payment to the date she was eligible to apply for PP.
If the Tribunal affirms the determination of the AAT1, MQDF will incur a significant debt as he may be required to repay the entirety of his PP since July 2019 as he has never tested his eligibility for Job Seeker.
The Respondent and counsel for BSPT are correct that the potential debt to MQDF should not influence the Tribunal’s determination, nevertheless the Guide contemplates that such decisions can and do result in adverse outcomes for parties. The Guide clearly states:
Explanation: This is intended to avoid a debt being created for payments received before the determination is made, PROVIDED that:
·the current principal carer has equal care of the child, or has complied with the notification requirements, and
·the person with the greater degree of care of the child will not be deprived of arrears.
The Tribunal is in complete agreement with Deputy President Wright QC in Smedley where he stated at [7]-[8]:
Also highlighted in each case was the difficulty, and in many ways unsatisfactory, burden placed upon the determining authority in deciding which of the two claimants, otherwise entitled by their individual circumstances to a PPS payment, should receive the sole payment provided for in the legislation.
In Vickers at paragraphs 49 and 50 Senior Member Hastwell has this to say:
"It is unfortunate that despite the frequency with which shared care arrangements are now put in place and the amendments to the Family Law Act 1975 that effectively promote shared care of children, only one of the two parents can be entitled to Parenting Payment Single. It is surprising that there is not a provision for this payment to be split equally between the parents when they provide equal care. This is a matter for legislative amendment and the Tribunal is left to make a choice between two parents who both clearly have a commitment to do the best for their son.

It is also regrettable that this legislation can have the effect of putting parents into conflict which can only be detrimental to the wellbeing of the child whose care they are sharing".
In this matter, the Tribunal is in the difficult position of having to determine which parent was the principal carer of T where they shared equal care and where it appears there is no substantial difference between the parties’ financial circumstances. The Tribunal must determine on very slim evidentiary proof which carer is most in need of a favourable determination, taking into consideration the mandatory and discretionary factors.
The Tribunal finds itself in very similar circumstances to Member L M Gallagher in Petrie and Secretary, Department of Social Services [2018] AATA 1641 in which he asserted at [38]:
Ms Petrie and Mr Petrie have each, in numerous instances, given contrary oral evidence as to their own circumstances and the circumstances of the other carer. In considering the mandatory and discretionary care factors, the Tribunal has taken into account those factors only to the extent there exists relevant corroborative evidence. Where the parties’ oral evidence is not supported by independent contemporaneous documentary evidence, it cannot and has not formed part of the Tribunal’s deliberation of the factors.
Who is most in need of a favourable determination?
As in the matter of Petrie, the Tribunal only took into account factors to the extent there exists relevant corroborative evidence to support them. Where the parties’ oral evidence is not supported by independent contemporaneous documentary evidence, it has not formed part of the Tribunal’s deliberation. A prime example of this is the claims of both parties with respect to the silver and cryptocurrency. As there was no evidence of these funds, and indeed if there were, both parties would be in breach of their reporting obligations to Centrelink, the Tribunal considers that neither party had access to such funds. Likewise, the Tribunal placed no weight on the claim that BPST had access to financial support from her family or MQDF had access to family support.
The Tribunal finds that BPST’s claims that she had no access to income when in a relationship with MQDF were not borne out by the evidence of the amounts of money in her bank account, however the Tribunal places no weight on this as it was outside of the qualification period. The Tribunal also places no weight on the fact of MQDF’s ability to access his superannuation because whilst this gave him access to funds, it also demonstrates that he was in financial distress.
The Tribunal was sceptical of both MQDF’s and BPST’s claims about their earning capacities during the qualification period.
Mandatory care factors
According to the Guide at 1.1.P.416, in deciding which carer is most in need of a favourable determination, a decision maker must take into account:
·any other sources of income the carer may have, whether actual or potential, including both employment and investment income
·the asset levels of each carer.
MQDF’s tax returns provide evidence of his income and assets:
(a)MQDF’s Tax return for the 2018/2019 financial year declares he is running a gardening business where he earnt $9262.00 gross, had $8176 worth of expenses, and received $1,086 net income.
(b)MQDF’s Tax return for the 2019/2020 financial year declares he is running a gardening business where he earnt $10,536 gross, had $8260 worth of expenses, and received $2,276 net income.
BPST’s bank statements provide evidence of her income and assets:
(a)Black Account
10 July 2019 Newstart payment of $610.47 taking balance to $765.99
24 July 2019 Newstart payment of $610.47 taking balance to $869.91
7 August 2019 Newstart payment of $610.13 taking balance to $727.30
21 August 2019 Newstart payment of $610.13 taking balance to $931.48
4 September 2019 Newstart payment of $611.34 taking balance to $680.11
17 September 2019 Newstart payment of $217.98 taking balance to $366.35
(b)Pink Account
September 2019 Family Allowance $216.58 taking balance to $639.19
September 2019 Family Allowance $216.58 taking balance to $8.44
(c)Savings Account
31 July 2019: $100.06
11 September 2019: $0.07
Discretionary care factors
The Tribunal considered each of the discretionary care factors, as set out by the Guide at 1.1.P.416:
(a)The expenses of each carer:
(i)MQDF rent payments as at 30 August 2019 were $1,304 per month.
(ii)BSPT’s rent payments were $166.99 per week as at 2 April 2019, and $171.91 per week as at 5 December 2019.
(b)Workforce experience, education levels and future employment prospects of each carer
(i)MQDF has qualifications in carpentry, work experience in construction, and currently owns and runs a gardening business.
(ii)BSPT has a Certificate IV in Allied Health but has no relevant work experience in Australia.
(c)Duration that each carer has been on income support and their principal carer status
(i)MQDF received parenting payment single and FTB during the qualification period. He has had principal carer status over T since 2015.
(ii)BSPT received JobSeeker payment and the Family Tax Benefit during the qualification period.
DECISION
The Tribunal was placed in the insidious position of determining who had the great need of PP where, on balance, both carers were in financial stress and in need of the support. On the corroborated evidence before the Tribunal both BSPT and MQDF had limited funds available to them during the qualification period. BSPT had no ability at the qualification period to increase her earning capacity, whereas MQDF had the means, skills, and ability to earn additional income. However, as BPST received community housing, her expenses where half that of MQDF’s at the qualification period.
The Tribunal did not concur with BSPT’s counsel that the ability to pay market rent was a luxury and instead viewed it as the largest drag on MQDF’s outgoings. Based on the corroborated evidence, the Tribunal finds this factor placed MQDF in the greatest need at the qualification period.
The Tribunal did not consider MQDF’s employment capacity was a factor during the qualification period as his tax returns indicate he had not been able to generate additional income.
The Tribunal considered that:
(a)Both MQDF and BSPT were on some form of income support at the qualification period, and had been for many years;
(b)MQDF had the status of principal carer at the qualification period and over many years;
(c)there were no substantial differences between the parties; and
(d)in line with the Guide and the original determination of the ARO the 'status quo' should be maintained.
Given all these factors, the Tribunal is therefore satisfied that MQDF was the carer most in need of favourable determination during the qualification period.
The Tribunal sets aside the determination of the AAT1 and, in substitution, determines the 'status quo' should be maintained and finds that MQDF was the principal carer of T at the date of qualification.
I certify that the preceding
68 (sixty-eight) paragraphs
are a true copy of the reasons
for the decision herein of
Ms A E Burke AO
............................[sgd]............................................
Associate
Dated:   27 May 2022
Date of hearing:  25 March 2022
Applicant:  Self-Represented
Counsel for the Other Party:              Mr Bryn Overend
Solicitors for the Other Party:            Social Security Rights Victoria
Advocate for the Respondent:           Ms Aarabi Raveendiran
Solicitors for the Respondent:           Services Australia