PARRY FILIPPIDIS and and SHELLEY BLOOMFIELD Third Party
[2009] AATA 625
•21 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 625
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1132
GENERAL ADMINISTRATIVE DIVISION ) Re PARRY FILIPPIDIS Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
And
SHELLEY BLOOMFIELD
Third Party
DECISION
Tribunal Deputy President S D Hotop Date21 August 2009
PlacePerth
Decision The Tribunal affirms the decision under review. ..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
SOCIAL SECURITY – parenting payment (“PP”) – applicant and third party parents of child – applicant and third party separated in January 2007 – third party has received PP from January 2007 – applicant has received newstart allowance from May 2008 – applicant and third party have shared care of child equally from May 2008 – applicant claimed PP in August 2008 – consideration of financial and other relevant circumstances of applicant and third party – only one person at a time can be principal carer of a chid – determination made that third party is principal carer of child – child is not a PP child of applicant – applicant not qualified for PP – decision under review affirmed
Social Security Act 1991 (Cth), s 5(1), s 5(2), s 5(15), s 5(18), s 5(19) s 500(1) and s 500D(2)
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461
REASONS FOR DECISION
21 August 2009 Deputy President S D Hotop Introduction
1. Parry Filippidis (“Mr Filippidis”) and Shelley Bloomfield (“Ms Bloomfield”) have a daughter, Olivia, who was born in November 2006. Ms Bloomfield also has a son, who was born in 1997, from an earlier relationship. Neither Mr Filippidis nor Ms Bloomfield has any other child.
2. Mr Filippidis and Ms Bloomfield were in a de facto relationship but separated on 23 January 2007.
3. Ms Bloomfield was granted parenting payment (“PP”) (at the single rate) under the Social Security Act1991 (Cth) (“the Act”) with effect from 23 January 2007.
4. Mr Filippidis claimed newstart allowance under the Act on 5 May 2008 and he was granted newstart allowance with effect from 12 May 2008.
5. On 21 May 2008 the Magistrates Court of Western Australia made a Consent Order, for the purposes of the Family Law Act 1975 (Cth), whereby Mr Filippidis and Ms Bloomfield were given “equal shared parental responsibility” for Olivia.
6. On 22 August 2008 Mr Filippidis claimed PP in respect of Olivia but his claim was rejected by an officer of Centrelink on 11 September 2008. That decision was affirmed by an Authorised Review Officer (“ARO”) of Centrelink on 16 October 2008.
7. On 3 March 2009 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision of the ARO.
8. On 19 March 2009 Mr Filipiddis applied to this Tribunal for a review of the decision of the ARO as affirmed by the SSAT.
The Issue and the Tribunal’s Determination
9. The issue for the Tribunal’s determination is whether Mr Filippidis is qualified for PP under the Act.
10. For the reasons which follow, the Tribunal has determined that Mr Filippidis is not qualified for PP under the Act.
The Relevant Legislation
11. Part 2.10 of the Act contains the following relevant provisions regarding qualification for PP:
“ 500(1) A person is qualified for parenting payment if:
(a)the person has at least one PP child (see sections 500D and 500F to 500H); and
(b)the person is an Australian resident; and
(c)in a case where the person is not a member of a couple and does not have at least one PP child who has not turned 6 – the person meets any participation requirements that apply to the person under section 500A; 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.”
“500D(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.”
12. Section 5 of the Act relevantly provides:
“ (1) In this Act, unless the contrary intention appears:
…
dependent child has the meaning given by subsections (2) to (9);
…
principal carer, of a child, has the meaning given by subsections (15) to (24);
…
(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.
…
(15)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.
…
(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.
…”
The Relevant Centrelink Policy
13. The Guide to Social Security Law relevantly states:
“ 1.1.P.416 Principal carer - shared care
Summary
The provisions of subsection 5(18) of the SSAct mean that only one person at a time can be the principal carer (1.1.P.412) of a child. In all shared care situations (PP, NSA, YA (job seeker) and SpB), it is necessary to determine which of the carers is the principal carer.
…
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 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.
…”
The Evidence
14. The Tribunal had before it the “T Documents” (T1 – T21, pp 1 – 119) lodged by the Secretary, Department of Education, Employment and Workplace Relations (“the Secretary”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and various documents tendered in evidence by the Secretary (Exhibits R1 – R4).
15. Oral evidence was given by Mr Filippidis, who also tendered in evidence various documents (Exhibits A1 – A3), and by Ms Bloomfield.
The evidence of Mr Filippidis
16. Mr Filippidis affirmed the evidence which he gave to the SSAT, subject to some amendments to bring it up to date (see paragraph 17 below), which is recorded in the SSAT’s Reasons for Decision as follows:
“• He cares for his daughter, Olivia, for 50% of the time. He looks after her from 8.15 am Tuesday to 8.15 am Thursday each week and from 8.15 am Friday to 8.15 am Monday every fortnight. He wants Olivia to be living in a stable situation and he wants the best for her.
·He applied for parenting payment because he believes he can care for Olivia without her having to go to childcare.
·He was trying to have more access to Olivia and trying to have the pattern of care changed (he would like a one week on/one week off arrangement) through the Family Court however he was unsuccessful.
·Since January 2008 he has been stressed out with the Family Court proceedings and his relationship with Miss Bloomfield. His mother also passed away in May 2008.
·He has a mood disorder. He also has a gambling problem but he has not gambled since late last year.
·He first applied for newstart allowance (incapacitated) in May 2008. He has been assessed by Centrelink as being unfit for work until end of 2010.
·He will not be looking for work until 2011.
·He has seen a psychiatrist a few times. He is prescribed antidepressants and sleeping tablets by his GP.
·He does not always cope well and is planning to seek help from Ngala to help him cope with looking after Olivia.
·He does not have any work options at present.
·He lives in his own home and has a mortgage of $72,000. He purchased the home in February 2007 for $950,000.
·The mortgage is against his father’s property however it is in his name and he meets the repayments. He pays $136 a week for the mortgage. He is up to date with loan repayments.
·He owes a total of $17,000 on 2 credit cards. These debts have arisen from everyday living expenses over one year. He has an arrangement with the banks to pay $100 a month.
·His living expenses include expenses for food at about $100 to $150 per week, water, gas and electricity, petrol at $30 per week, clothing and for a hairdresser.
·He has meals at his father’s home once or twice each week.
·He accessed his superannuation under hardship provisions to pay outstanding bills.
·He also owes his father $14,000. He was loaned this money to pay the rates and other bills. He is not paying this money back at present but will be required to at some stage.
·He does not own or run a car but borrows a car owned by his father when he needs it and contributes to running costs when he is able to.
·He ‘chips in’ to pay the car registration and insurance when he is able to and pays for the petrol when he uses the car.
·He suggests that Miss Bloomfield could move into a three bedroom house in a cheaper area as he does not like his daughter having to share a bedroom with Miss Bloomfield’s son.
·He does not think he should move as he wants stability for Olivia and wants her to be able to attend school in the local area.
·He does not think Miss Bloomfield should be paid parenting payment as she puts Olivia in day care so that she can work.
·Miss Bloomfield is fit to work more hours and he wants to be a stay at home parent.
·He is appealing Centrelink’s decision because the difference between newstart allowance and parenting payment would give him ‘a little bit of extra money for me’ and he could buy clothes for Olivia.” (T2, pp 9 – 11)
17. In his oral evidence Mr Filippidis updated his abovementioned evidence to the SSAT as follows:
· the amount outstanding on his mortgage loan is now $71,500;
· his credit card debts now total about $16,400 which he is presently paying off at the rate of $200 per month;
· the Bank wants him to increase his monthly repayment of his credit card debts to $340 but he cannot afford to do so;
· he has not been having meals at his father’s house since March 2009;
· he now owes his father “a bit above $14,000”.
18. Mr Filippidis gave the following additional evidence:
· the Council rates, water rates and insurance for his house total about $2,500 per year and are paid by his father;
· his house was bought for him by his father;
· now would not be a good time to sell his house;
· his income is about $15,000 per year whereas Ms Bloomfield’s total annual income (comprising employment income, parenting payment, family tax benefit A and B and child support for her son) is about $58,000;
· he needs parenting payment more than Ms Bloomfield does.
The evidence of Ms Bloomfield
19. Ms Bloomfield affirmed the evidence which she gave to the SSAT, which is recorded in the SSAT’s Reasons for Decision as follows:
“• She thinks she should continue to be paid parenting payment as her financial situation is not as good as Mr Filippidis’.
·She agrees that the care of Olivia is shared 50/50. They are currently trying to make an arrangement that is more workable.
·She works from 10.00 am – 5.00 pm three days a week. She would like to work more. She has been offered more work and then these offers have been withdrawn. Olivia spends one day a week in day care. Her out of pocket expenses for day care are $30 a week.
·She rents her home. She pays $310 per week. She lives there with Olivia and her 12 year old son from a previous relationship for whom she has sole care.
·She has no investments or other income. She owes $3,000 on a credit card. She also owes her parents money but is not required to pay this at present but will in the future.
·Mr Filippidis receives a lot of financial support from his father. His father owns the car he drives and pays the day to day running costs, he supplies food for Mr Filippidis 2 – 3 days a week, and pays for any renovations, rates and insurance.
·Mr Filippidis has a gambling problem which has given rise to the credit card debt that he has.
·The house purchased by Mr Filippidis in 2007 cost $950,000. He has a mortgage on his father’s property of $73,000.
·She agrees that Mr Filippidis is not mentally stable to work at present as he is suffering from anxiety and depression. She questions his ability to care for a child as his behaviour is sometimes erratic, unreasonable and irrational.
·She does not agree with Mr Filippidis’ idea that she should live elsewhere as she has mostly lived in the Como area during the 8 years she has been in Australia. Her work is 2 minutes walk away, her son attends the local school and she has a lot of social supports in the area.” (T2, pp 11 – 12)
20. In her oral evidence Ms Bloomfield added to her abovementioned evidence to the SSAT as follows:
· Olivia spends up to 2 days per week in day care at a cost of $30 per day;
· she owes her parents about $8,500;
· her total average annual income is about $42,000 per year;
· she receives $9,200 per year by way of parenting payment and the loss of her parenting payment would have a “great financial impact” on her.
Analysis
21. In Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461 Gyles J (referring to former comparable provisions of the Act regarding sole parent pension) commented on the function of the decision-maker in determining which of 2 parents is qualified for sole parent pension, where the relevant child is a dependent child of each parent, as follows (at 467):
“... In those circumstances, the Secretary, and the Tribunals on appeal, have the invidious task of choosing between those persons in circumstances where the legislation does not provide a criterion or criteria.
This is a discretion constrained only by the purposes of the Act and the provisions of it relating to Sole Parent Pensions: O'Sullivan v Farrer (1989) 168 CLR 210 at 216. The section does not oblige the decision-maker to take any particular matter into account, and only prohibits taking into account those matters which are not relevant to the purposes of the Act. Within those very broad limits, it is a matter for the exercise of discretion by the decision-maker which cannot be controlled by a court dealing with errors of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 per Mason J. Thus it is that one decision-maker might prefer the apparent objectivity of deciding on the basis of hours of custody, another might also take into account qualitative factors and yet another might also take into account the financial circumstances of the parties. If there is any relevant government policy guidance, then appropriate regard should be paid to it. It is, in circumstances such as the present, a matter for decision by the Administrative Appeals Tribunal, as it has the ultimate say on the merits of the decision…”
22. It is common ground that, at all material times, the care of Olivia has been shared equally between Mr Filippidis and Ms Bloomfield. It is also common ground that, at all material times, both Mr Filippidis and Ms Bloomfield have been receiving income support. In those circumstances, according to the Guide to Social Security Law (“Guide”) (para 1.1.P.416):
“ the carer who is most in need of a favourable determination should be deemed principal carer.”
The Guide then lists factors which “must” be taken into account in making that assessment. As regards the circumstances of Mr Filippidis and Ms Bloomfield, the Tribunal comments on those factors as follows:
· Ms Bloomfield has sole care of her son but she is not qualified for PP under the Act in respect of her son;
· either Mr Filippidis or Ms Bloomfield would be eligible for PP in respect of Olivia;
· Mr Filippidis may (depending on Centrelink’s assessment of his total income) receive a higher rate of PP than Ms Bloomfield;
· Mr Filippidis’ annual income from social security payments is, according to his evidence, about $15,000, whereas Ms Bloomfield’s annual income (comprising employment income, social security payments and child support payments) is, according to her evidence (which the Tribunal accepts), about $42,000;
· Mr Filippidis has a very substantial asset, namely, a house which was purchased in February 2007 for $950,000, whereas Ms Bloomfield does not own any real estate although she does own a car (whose value is not in evidence).
23. The Guide then lists further factors which “may” be taken into account “if further information is required to make the determination”. The Tribunal comments on those factors, having regard to the circumstances of Mr Filippidis and Ms Bloomfield, as follows:
· Mr Filippidis’ expenses, in addition to his day-to-day living expenses, include:
-$136 per week for mortgage loan repayments;
-$200 per month for credit card debt repayments;
· Ms Bloomfield’s expenses, in addition to her day-to-day living expenses, include:
-$310 per week for rent;
-at least $30 per week for child care;
-at least $200 per month for credit card debt repayments (see Exhibit R4);
[The Tribunal notes that Mr Filippidis and Ms Bloomfield have each been lent a substantial sum of money by their respective parents but that there has, as yet, been no requirement for either of them to make any repayments in respect of those loans.]
· Mr Filippidis and Ms Bloomfield have attained comparable education levels and they have both previously had substantial workforce experience but, whereas Ms Bloomfield has at all material times continued to be employed, Mr Filippidis has been medically unfit for work since May 2008 and will continue to be unfit for work until at least the end of 2010;
· Ms Bloomfield has received PP in respect of Olivia, and has had “principal carer” status for the purposes of the Act, from 23 January 2007, whereas Mr Filippidis has received newstart allowance from 12 May 2008 but has at no time received PP or been granted “principal carer” status for the purposes of the Act.
Conclusion
24. Having considered the whole of the evidence and having had regard to all of the considerations referred to in paragraphs 22 and 23 above, the Tribunal concludes that Ms Bloomfield has, at all material times, been more in need of a favourable determination in this matter than Mr Filippidis. Although Ms Bloomfield, at all material times, has had a substantially greater income than Mr Filippidis, she has also had substantially higher regular expenses (chief amongst which is her weekly rental payment of $310) than Mr Filippidis, and she has no substantial assets on which to rely in case of need, whereas Mr Filippidis has a very valuable asset, namely, his house (which was purchased in February 2007 for $950,000 and is unencumbered) which he is able to sell or lease in the event of financial need. Ms Bloomfield, furthermore, has been receiving PP from 23 January 2007 and has organised her affairs on that basis and were she now to lose her PP (the amount of which is approximately $9,200 per year in a total income of approximately $42,000 per year) she would thereby suffer substantial financial disadvantage. In that respect a determination whose effect is to cancel Ms Bloomfield’s PP would have a more severe impact on her than a determination whose effect is not to grant PP to Mr Filippidis would have on him.
25. Having regard to the circumstances of the present case the Tribunal concludes that it would be appropriate to apply the abovementioned Centrelink policy as set out in para 1.1.P.416 of the Guide (see paragraph 13 above). The Tribunal is not satisfied that the application of that policy would result in unfairness or injustice, or that there is any other cogent reason for not applying that policy, in the present case. On the contrary, in the Tribunal’s opinion the application of that policy in this case would lead to a fair and just result. Accordingly, because the Tribunal is satisfied, for the reasons mentioned in paragraph 24 above, that Ms Bloomfield has, at all material times, been more in need of a favourable determination in this matter than Mr Filippidis, the Tribunal determines that Ms Bloomfield has, at all material times, been, and continues to be, the “principal carer” of Olivia for the purposes of Pt 2.10 of the Act. It necessarily follows, pursuant to s 500D(2) of the Act, that Olivia is not a “PP child” of Mr Filippidis and that Mr Filippidis is, therefore, not qualified for PP under s 500(1) of the Act.
Decision
26. For the above reasons the Tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ...............[sgd D Brodie]........................
Associate
Dates of Hearing 20, 31 July 2009
Date of Decision 21 August 2009
Representative of the Applicant Self-representedRepresentative of the Respondent Ms M Conlon
Legal Services Branch, Centrelink
Representative of the Third Party Self-represented
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