Petrie and Secretary, Department of Social Services (Social services second review)
[2018] AATA 1641
•14 June 2018
Petrie and Secretary, Department of Social Services (Social services second review) [2018] AATA 1641 (14 June 2018)
Division:GENERAL DIVISION
File Number: 2017/1825
Re:Emerald Petrie
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndTroy Petrie
OTHER PARTY
DECISION
Tribunal:Member L M Gallagher
Date:14 June 2018
Place:Perth
The decision under review is affirmed.
.....[sgd]...................................................................
Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – parenting payment single – parents separated – equal care of children – 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 affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 5(15)-(24), s 500(1)(a), s 500D(2)
CASES
Clarke and Secretary, Department of Education, Employment and Workplace Relations and Harrington [2013] AATA 699
Irving and Secretary, Department of Social Services [2016] AATA 949
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461
Smedley and Secretary, Department of Education, Employment & Workplace Relations and Beveridge [2010] AATA 292
SECONDARY MATERIALS
The Social Security Guide – Part 1.1.P.416
REASONS FOR DECISION
Member L M Gallagher
14 June 2018
INTRODUCTION
On 27 July 2016, Ms Petrie lodged a claim for parenting payment single (“PPS”) with the Department of Human Services (“the Department”) in relation to her three children (“the children”) (T7, pages 43 to 49). All three children were under the age of eight years at the date of claim.
In her claim form, Ms Petrie indicated that she had separated from the children’s father, Mr Petrie on 19 November 2014 and that they have equal shared care of the children (T7, pages 43, 45 and 46).
The Tribunal understands that Mr Petrie was granted PPS in December 2014 and has been in continuous receipt since 18 March 2016 (with breaks due to his earnings exceeding the limit) (T6, page 41).
On 27 July 2016, the Department advised Ms Petrie that her claim for PPS was rejected because she did not have a dependent child under the age of eight years in her care (T8, page 50).
On 12 August 2016, Ms Petrie requested a review of the Department’s decision dated 27 July 2016 (T13, page 80).
On 18 October 2016, an Authorised Review Officer (“ARO”) of the Department affirmed the decision dated 27 July 2016 rejecting Ms Petrie’s claim for PPS (T5, page 30). The ARO decided that (T5, page 32):
I have examined the circumstances of both parties involved and have found there is no substantial difference. At the time [Ms Petrie] claimed PP on 27 July 2016 another party had already been determined as being the principal carer of [the children]. I have decided to maintain the status quo in this matter. This means that you are not considered to be the principal carer of a child under 8 and cannot be paid PP single.
On 24 October 2016, Ms Petrie applied to the Administrative Appeals Tribunal (“Tribunal”) for a first review of the ARO decision dated 18 October 2016. On 13 March 2017, the Tribunal’s Social Services & Child Support Division (“AAT1”) affirmed the ARO’s decision (T1). In doing so, the AAT1 found that (T1, page 4 at paragraph 9):
…at the time of application both parties were in receipt of income support payments. Both parents would be eligible for PP at the same rate. In this case the parents gave contrary evidence as to their own circumstances and the circumstances of the other parent. Much of their evidence is not corroborated by independent evidence or by documentation. Taking into account all of the factors described in the Guide which can be established by the reliable evidence before it the Tribunal finds that there are no substantial differences between the parents…
On 31 March 2017, Ms Petrie applied to the Tribunal’s General Division for a second review of the AAT1 decision dated 13 March 2017, claiming that the AAT1 decision was wrong because it failed to consider further evidence she provided four days after the AAT1 hearing.[1]
[1] The AAT1 decision states that Ms Petrie had indicated that she would provide further documentation on the afternoon of the AAT1 hearing on 13 March 2017. The decision states that the Tribunal agreed to defer its decision until the following day, however no further documentation was received (T1, page 2, paragraph 3).
RELEVANT LEGISLATION AND PRINCIPLES
The statutory provisions relevant to the present matter are contained in the Social Security Act 1991 (Cth) (“the Act”).
Parenting payment child
Subsection 500(1)(a) of the Act provides that a person is qualified for parenting payment if (among other things):
the person has at least one PP child (see section 500D);…
[emphasis added]
Subsection 500D(2) of the Act relevantly provides that a child is a PP child 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.
Principal carer - definition
Subsections 5(15) to 5(24) of the Act define the term “principal carer.” Relevantly subsections 5(15) and 5(16) state:
(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.
(16) For the purpose of determining whether a person is the principal carer of a child, the person is taken to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the child if:
(a)the person is the step-parent of the child; and
(b)the person is living with the child and a parent of the child; and
(c)the person and the parent are members of the same couple.
This subsection does not, by implication, affect the determination of whether a person is taken to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of a child in cases to which this subsection does not apply.
Subsection 5(18) of the Act provides that only one person at a time can be the principal carer of a particular child.
If the Secretary is satisfied that, but for subsection 5(18) of the Act, two 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.
(subsection 5(19) of the Act).
The Secretary may make the determination (referred to in subsection 5(19) of the Act) 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 (subsection 5(20) of the Act).
Principal carer where equal care
The Act is silent as to how to determine who the principal carer of a child is in situations where, as in the present application, two parties share equally in the care of a child.
The Guide to Social Security Law (the Guide) is a policy which, among other things, provides assistance to those who administer the Act. With respect to whether the Tribunal should apply policy, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)), Brennan J stated at 642:
In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Later in his judgment, Brennan J (at 645) explained how the Tribunal should apply government policy when reviewing administrative decisions:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
Accordingly, the Tribunal considers it appropriate to apply the Guide in determining the principal carer of a child in circumstances where two parties share equally in the care of a child. The Tribunal notes that the Tribunal in Irving and Secretary, Department of Social Services [2016] AATA 949 took the equal care factors into account (set out at paragraph 20 below) in determining which carer should be deemed principal carer.
In this context, the Tribunal refers to Part 1.1.P.416 of the Guide, which states:
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:
·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.
(together, the “mandatory care factors”)
The following factors MAY be taken into consideration by the decision maker, if further information is required to make the determination:
·the expenses of each carer, …
·workforce experience, education levels and future employment prospects of each carer,
·the duration that each carer has been on income support and their principal carer status during this time. If there are no substantial differences between the parties, then generally the determination should be favoured which maintains the ‘status quo’, and
·any other factors considered relevant by the decision maker.
(together, the “discretionary care factors”)
Equal care - same decision applies to each child
If the care arrangements for 2 or more children are identical, it is NOT appropriate to ‘allocate’ each parent as the principal carer of a child, thus enabling both parents to qualify for income support as a principal carer. Different determinations about which parent is the principal carer of each child should only be made if the circumstances relating to the care of the children are not the same, and justify a different decision.
In order to make a determination about which parent is the principal carer of each child, each child must be assessed separately based on the care arrangements applying to them. If the care arrangements for each child are the same, then the determinations as to which parent is the principal carer must also be the same. That is, if parent A is determined as the principal carer of child 1, and the care arrangements for child 2 are the same, then parent A must also be determined as the principal carer for child 2. This is because the same factors leading to the first decision also apply to the second.
Example 1: Jenny and Scott are separated, and share the care of their 2 children 50/50. The children are kept together at all times, and spend one week living with their mother, and the other week living with their father. Because the care arrangements for the children are identical, one parent must be determined as the principal carer of both children.
Determining who is most in need of favourable determination
In determining whether Ms Petrie or Mr Petrie is most in need of a favourable determination, the Tribunal is guided by the following authorities:
(a)Smedley and Secretary, Department of Education, Employment & Workplace Relations and Beveridge [2010] AATA 292 (Smedley) where Deputy President Wright QC 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 the 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 that 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.
(b)Clarke and Secretary, Department of Education, Employment and Workplace Relations and Harrington [2013] AATA 699 (Clarke), where Member Webb observed at [22]:
…the assessment of parental ‘need’ is directed to placing the child in the best position in respect of quality of care, including the provision of food, clothing and shelter as well as mental, physical, social and cultural nourishment. This requires an assessment of all relevant circumstances, including the ability of each parent to cope with the costs of caring for the child.
(c)Irving and Secretary, Department of Social Services [2016] AATA 949 (“the Irving decision”), where Senior Member J Sosso 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. He had, and has a broad skill base and is determined to advance his future prospects by enrolling in a law degree. Whilst he was receiving less income than the Other Party, his overall situation was superior to hers. Conversely, while the Other Party was receiving more income than the Applicant, her overall situation was precarious and unstable. I find that, on balance, in December 2015 she was in greater need of a favourable determination.
ISSUES FOR DETERMINATION
The overall issue in the present application is whether Ms Petrie is entitled to receive PPS. This issue requires consideration of whether:
(a)Ms Petrie is the principal carer of the children; and
(b)whether Ms Petrie has at least one PP child.
EVIDENCE
The matter was heard in Perth on 27 March 2018 and adjourned to give the parties an opportunity to consider whether they wished to file amended written submissions in light of the decision of Member Hoffman dated 21 February 2018 in another application before the Tribunal, which was discussed at the hearing. The relevance of Member Hoffman’s decision is addressed at paragraphs 32 to 35 below. The matter was concluded on the basis that neither party wished to provide any further written submissions and hence rendering a resumed hearing unnecessary.
At the hearing on 27 March 2018, Ms Petrie and Mr Petrie appeared in person and both were self-represented. The Secretary was represented by Ms Daphne Jones-Bolla from Sparke Helmore Lawyers.
The Tribunal received the following evidence:
·Applicant’s email dated 21 February 2018 with attached statement regarding decision of Fair Work Commission (“Exhibit A1”);
·Applicant’s submissions dated 22 October 2017 (“Exhibit A2”);
·Applicant’s email dated 22 October 2017 containing submissions and attaching decision of Fair Work Commission (“Exhibit A3”);
·Applicant’s email dated 6 July 2017 attaching 1) decision of child support agency dated 8 March 2017 regarding change of assessment, 2) notification to Applicant dated 5 May 2017 regarding Other Party lodging an objection to the change of assessment decision dated 8 March 2017 and 3) objection decision of child support agency dated 6 June 2017 (“Exhibit A4”);
·Applicant’s email dated 6 July 2017 attaching submissions and further evidence (“Exhibit A5”);
·Applicant’s email dated 17 May 2017 attaching submissions and further evidence (“Exhibit A6”);
·Additional child support assessments (of various dates and six in number) issued on 20 March 2018 (“Exhibit A7”);
·Other Party’s response to Ms Petrie’s submissions, dated 11 August 2017, with attachments (“Exhibit OP1”);
·a 128 page set of T-Documents (T1 – T19) (“Exhibit R1”);
·a 130 page set of Supplementary T-Documents (ST1 – ST2) (“Exhibit R2”); and
·Respondent’s Statement of Facts, Issues and Contentions dated 30 August 2017 including additional un-redacted Supplementary T documents (ST3 – ST9) (“Exhibit R3”).
The Tribunal has considered all of the evidence before it, as well as the oral submissions of the parties at hearing. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.
Ms Petrie gave the following oral evidence at hearing:
(a)As to the difference in living standards between herself and Mr Petrie, Ms Petrie said that:
(i)Mr Petrie owns his property, whereas “she rents”;
(ii)Mr Petrie has $100,000.00 in superannuation, whereas she has $18,000.00;
(iii)Mr Petrie owns five motor vehicles (two of which having been purchased in the last two years), whereas she owns one 2005-model motor vehicle;
(iv)Mr Petrie also owns various assets, including a “camper trailer,” which is “under his sister’s name”;
(v)Mr Petrie owns a business, whereas she does not;
(vi)Ms Petrie said that she had worked in a supermarket, then lost this job, which she feels was “not correctly addressed” (by the AAT1);
(vii)Ms Petrie said that she has never had a credit card; and
(viii)Ms Petrie said that she feels that Mr Petrie “has not been in that situation for a long time” (“that situation” being his circumstances at the time of the initial grant of PPS in December 2014).
(b)Ms Petrie said that Mr Petrie (in addition to their three children) has a 17 year old child who “works with him” and a 14 year old child who does not live with him;
(c)Ms Petrie said that she believes that the “2004 ute” that Mr Petrie bought last year was for his son (who works with him);
(d)Ms Petrie said that Mr Petrie was fired from the roof restoration business that he was working for. Ms Petrie said that Mr Petrie was awarded a $13,000.00 “dismissal payment” after winning an unfair dismissal case against that roof restoration business; and
(e)Ms Petrie said that Mr Petrie is “not just (working) FIFO,” he also works in the mining industry in Perth.
Ms Petrie said that Mr Petrie’s bank statements demonstrate that he spends his money on takeaway food, cigarettes and alcohol.
Ms Petrie said that Mr Petrie “debits out” or “funnels” out money he received “from his business,” (which is paid into his personal account) into “…an unknown Commonwealth account that Mr Petrie does not own” (A1, page 1 of the statement), with the purpose of concealing that income so that Mr Petrie is able to claim PPS. Ms Petrie then took the Tribunal to Mr Petrie’s bank records dated 6 May 2016 demonstrating a credit of $1,923.08 from “Platinum wages” (ST2, page 212) and then to another bank account record in Mr Petrie’s name demonstrating periodic credits in July and August 2016 in the amount of $1,403.85 (for example, ST2, pages 224 and 225). When asked by the Tribunal to direct it to contemporaneous, evidence to corroborate her view regarding the purported purpose of these transfers, Ms Petrie was unable to do so.
Mr Petrie gave the following oral evidence at hearing:
(a)Mr Petrie said that it was not the first time that these “allegations” against him have “been before a court”;
(b)Mr Petrie said that a lot of what Ms Petrie has said (about him) is hearsay and that (the Tribunal) needs “corroborative evidence”;
(c)Mr Petrie said that from May 2016, he no longer worked in the roof restoration business. Mr Petrie said that in the time that he did work for the roof restoration business, he “should have been an employee.” Mr Petrie said, however, that rather, he was “forced into [working as a] sole proprietor” as a means of goodwill;
(d)Mr Petrie said that he did have a “shell company” for physical work performed when he worked as a sole proprietor for the roof restoration business. Mr Petrie said, however, the company or business he “apparently owns” (as referred to by Ms Petrie in sub-paragraph 27(a)(v)) does not exist;
(e)As to Ms Petrie’s evidence regarding his FIFO work (refer to subparagraph 27(e) above), Mr Petrie said that FIFO work would be “impossible with this many kids;”
(f)Mr Petrie said that his 14 year old child has not lived with him since 28 July 2017;
(g)Mr Petrie said that his 17 year old child is enrolled in high school and does not work with him;
(h)Mr Petrie said that in November 2014 (one month before his initial grant of PPS), he was at home with five kids. Mr Petrie said that Ms Petrie is of the view that “it is not fair that he got it (PPS).” Mr Petrie said that “he paid for everything” (in relation to their children);
(i)Mr Petrie said that while he owns a house, he has no equity in it;
(j)Mr Petrie said that Ms Petrie being able to only “do night fill” when she worked at the supermarket was a lie as she had a live-in babysitter (namely, Ms Petrie’s mother);
(k)Mr Petrie said that Ms Petrie does not have a credit card because she does not work. Mr Petrie said that Ms Petrie previously left full time employment in order to study and that it had been her plan to study;
(l)Mr Petrie said that he has a work van, being a 1999 model vehicle, with “380 kilometres on the clock” that he uses to “do school runs for four kids” (twice daily). Mr Petrie said that these school runs take an hour for each run and restrict his ability to work;
(m)Mr Petrie said that he does not receive child support payments in relation to his two teenage children;
(n)Mr Petrie said that Ms Petrie has an income that she has not declared and that Ms Petrie’s bank accounts “show a different figure”;
(o)Mr Petrie said that Ms Petrie travelled overseas with their three children without notifying Centrelink, a trip that Ms Petrie had paid for herself but “said that her Mum had paid for it.” Mr Petrie said that Ms Petrie had the time to travel overseas “even though she says she can’t work” (because she doesn’t have the time to work); and
(p)As to Ms Petrie’s views regarding the purported purpose of the bank transfers referred to in paragraph 29 above, Mr Petrie said that he had performed those transfers as at that time he had to provide information to his bank that he was receiving income in order to prevent foreclosure (on his mortgage).
In response to Mr Petrie’s oral evidence at hearing, Ms Petrie gave the following further oral evidence:
(a)As to Mr Petrie’s suggestion that her mother lived with her (refer to sub-paragraph 30(j) above), Ms Petrie said that when she first left Mr Petrie, she had “slept on the floor in her mum’s rental (property).” Ms Petrie said that her mum’s name is on the rental agreement for her rental property as it was “hard to get a lease without it.” Mr Petrie said that Ms Petrie’s mother returned in February 2018 for Ms Petrie’s son’s birthday;
(b)As to the overseas travel (refer to subparagraph 30(o) above), Ms Petrie said she had travelled to Italy to be a bridesmaid for a family wedding and that her uncle had paid for her to go. Ms Petrie also said that she had also travelled to New Zealand to visit her sick grandmother, a trip funded by her mother by money she had received as part of a family court settlement;
(c)Ms Petrie said that she had also previously worked in a debt collection business however she was “fired from this”; and
(d)As to Mr Petrie’s statement in subparagraph 30(g) above that his son does not work with him, Ms Petrie said that Mr Petrie has said that his son “goes to work with him occasionally.”
EARLIER TRIBUNAL DECISION REGARDING MR PETRIE’S TAXABLE INCOME
On 21 February 2018, prior to Ms Petrie’s application for review to this Tribunal, Member Hoffman decided that, for the period from 1 January 2017 to 29 February 2020, Mr Petrie’s adjusted taxable income is varied to $38,896.00. This decision set aside and substituted an earlier decision of the Department which had the effect of varying Mr Petrie’s taxable income to $70,000 (from 1 January 2017 to 30 November 2017) and $71,740.00 (from 1 December 2017 to 28 February 2019).
At the hearing, Ms Petrie indicated to the Tribunal that she was aware of Member Hoffman’s decision and intended to appeal it. However, no appeal was lodged.
At the hearing, the Tribunal drew the parties’ attention to this decision and, not yet having heard submissions from the parties on its relevance (if any) given the mandatory care factors in the Guide (referred to at paragraph 20 above), adjourned the hearing for one week to give the parties an opportunity to decide whether they wished to do so.
On 4 April 2018, the parties indicated they would not be seeking to file any further submissions regarding Member Hoffman’s decision (and hence a resumed hearing following further written submissions was not required). The Tribunal concluded the matter and reserved its decision on that basis.
CONSIDERATION
The issue before the Tribunal is whether Ms Petrie is entitled to receive PPS. In determining whether this entitlement arises, the Tribunal must consider whether Ms Petrie is the principal carer of the children, one of which must be a PP child.
To be deemed the principal carer where there is equal care, as are the present circumstances, the Tribunal must determine which carer is most in need of a favourable determination. The mandatory and discretionary factors must and may, respectively, be taken into account in making this determination.
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
Mandatory care factors
The Tribunal notes that Mr Petrie already qualifies as principal carer of the children and understand that he has done so since December 2014 (refer to paragraph 3 above).
But for the application of subsection 5(18) of the Act, both Ms Petrie and Mr Petrie would be eligible for PPS (refer to paragraphs 13 and 14 above).
As to which carer would receive the higher rate of payment, Ms Petrie and Mr Petrie would be eligible for PPS at the same rate.
With regard to any other sources of actual or potential income Ms Petrie and Mr Petrie may have, including both employment and investment income, the Tribunal considers the following:
Ms Petrie
(a)Ms Petrie was employed by a debt collection agency until 20 July 2016 (T7, page 47 and ST3);
(b)In the 2015/2016 financial year, Ms Petrie earned $44,920.00 (T13, page 72);
(c)At the date of claim, Ms Petrie had $2,386.00 in savings, 100% of which was allocated to her (T7, page 47);
(d)Ms Petrie receives Newstart Allowance and Austudy;[2]
[2] Ms Petrie gave oral evidence before the AAT1 that she has been receiving Newstart Allowance since August 2016 (T1, page 3, paragraph 8). On the available evidence it is unclear to the Tribunal the payment amounts and the periods during which these payments were made.
(e)Ms Petrie receives Family Tax Benefit (“FTB”) consisting of FTB Part A, FTB Part B and rent assistance, totalling $513.66 per fortnight (ST8); and
(f)Ms Petrie’s Austudy and FTB payments total $929.73 per fortnight.
Mr Petrie
(a)Mr Petrie was employed until 15 May 2014 (ST4);
(b)Mr Petrie said he worked in roof restoration until May/June 2016 (T4, page 20);
(c)Mr Petrie’s taxable income from 1 July 2014 to 30 June 2015 was $16,510.00 (ST5);
(d)Mr Petrie’s taxable income from 1 July 2015 to 30 June 2016 was $57,983.00 which includes a PPS amount of $10,841.00 (ST6);
(e)In accordance with Member Hoffman’s decision dated 21 February 2018 (refer to paragraph 32 above), Mr Petrie’s adjusted taxable income for child support purposes for the period from 1 January 2017 to 29 February 2020 is $38,896.00;
(f)Mr Petrie receives PPS in the amount of $766.30 gross per fortnight of which $48.30 per fortnight is withheld as child support deductions (ST9);
(g)Mr Petrie receives FTB (presumably at the same rate as Ms Petrie given the equal arrangement);
(h)Mr Petrie was paid an FTB lump sum of $10,222.14 for the period from 1 July 2015 to 11 November 2016 (Exhibit R3, page 8)[3]; and
(i)Mr Petrie has continued to do some casual labour work (Exhibit OP1, para 15).
[3] The Tribunal notes that it has not been provided with the primary source relied on by the Secretary in its submissions.
Ms Petrie is of the view that “…the difference in income between Mr Petrie and I is significant enough to warrant [the] ‘status quo’ no longer be [sic] taken into account. Mr Petrie has always earnt a significantly higher income than me and most likely always will” (A1, page 2 of statement).
Ms Petrie says that on 20 July 2016, her employment was “terminated due to unsatisfactory work” and that she has not worked since “due to not being able to find work so then deciding to study full time” since February 2017 (A5, page 3 of letter).
Ms Petrie also believes that “[w]hilst Mr Petrie has been working full time since 2015 he has also been receiving full parenting payments from Centerlink [sic] along with family assistance earning an average year [sic] income of over $100,000 which is shown in his bank statements” (A2, page 2 of statement).
Mr Petrie however, says that Ms Petrie commenced full-time study on 11 July 2016 (OP1). Mr Petrie contends that this supports his claim that Ms Petrie had no intention to continue with her employment and that she left that employment voluntarily.
The Tribunal notes the following available evidence in relation to the assets of each carer:
Ms Petrie
(a)Ms Petrie does not own her own home (T7, page 45);
(b)Ms Petrie pays $360.00 per week in rent for accommodation she shares with an “immediate family member” (T7, page 45);
(c)The net value of Ms Petrie’s assets and personal effects is $500.00 (T7, page 48);
(d)At the date of claim, Ms Petrie owned a Ford Focus motor vehicle valued at $2,500.00 (T7, page 48);[4]
Mr Petrie
(a)Mr Petrie said in his statement dated 8 August 2017 that the mortgage owing on the former marital home was $394,687.08 (ST7, page 5 of statement).
(b)Mr Petrie advised the ARO on 18 October 2016 that he “is living in the former marital home - he advised that there has been a recent settlement of the marital home – he will now seek to buy the other carer out but has 6 months to organise the financial arrangements.” Mr Petrie also advised that his mortgage liability was “…$2,345 per month although he has not always been able to cover the whole cost” (T16, page 104) and that he was in more than $10,000.00 of arrears (OP1, page 2 of the statement).
[4] At hearing, Ms Petrie gave evidence that she currently owns one 2005-model motor vehicle (refer to subparagraph 27(a)(iii) above).
As to the “camper trailer” that Ms Petrie says Mr Petrie owns (refer to subparagraph 27(a)(iv) above), Mr Petrie said ownership papers subpoenaed by Ms Petrie clearly show he does not own the “Jayco caravan” (OP1). The Tribunal is not in receipt of a copy of these ownership papers.
While the Tribunal notes the totality of the claims regarding assets and income made orally by Ms Petrie and Mr Petrie at hearing and in their written statements, the Tribunal finds that most of these claims are essentially unsupported by corroborative documentary evidence.
For example, the Tribunal has not been provided with any evidence to support Ms Petrie’s claims regarding Mr Petrie’s purported dismissal payment or his yearly income being over $100,000.00, or any evidence regarding the parties’ claims regarding the Jayco caravan. In making this point, the Tribunal casts no doubt on the parties’ truthfulness or the accuracy of their believed recollections, however the Tribunal’s present task is not to engage in a comparative credibility exercise. Rather, the Tribunal reiterates its comment at paragraph 38 above and in considering Ms Petrie’s and Mr Petrie’s actual or potential income and assets relies on the objective evidence set out at paragraphs 42 and (to the extent possible) paragraphs 47 and 48.
Discretionary care factors
The expenses of each carer
As to the expenses of Ms Petrie and Mr Petrie, the Tribunal has considered that:
(a)As at 4 May 2016, Ms Petrie pays $360.00 per week in rent;
(b)In October 2016, Mr Petrie’s mortgage liability was $2,345.00 per month (T16, page 104);
(c)Each party essentially claims to meet the expenses relating to their children (schooling, books, recreational activities, medical expenses etc) (A5, page 3 and refer to subparagraph 30(h) above);
(d)The Tribunal notes that Ms Petrie stated in writing that “myself and the other party equally share similar children’s schooling and medical expenses combined” (A5, page 4); and
(e)Mr Petrie’s view, however, is that Ms Petrie has refused to pay for most expenses relating to the children, including schooling and medical expenses, despite his best efforts to have her contribute. In this regard, the Tribunal notes the matters addressed by Mr Petrie on page 4 of his response to Ms Petrie’s submissions and the related email evidence that in November 2016 Ms Petrie was of the view that she did not think she should pay for the children’s school book order as she could not afford it (OP1).
Workforce experience, education levels and future employment prospects of each carer
The Tribunal has considered that Mr Petrie has completed high school and Mr Petrie’s claim regarding his being the sole director of a roof restoration business (refer to subparagraph 30(c) above). The Tribunal accepts Mr Petrie’s evidence that his obligations in transporting the children to and from school limit his potential work hours. In doing so, the Tribunal notes that paragraph 45 of the relevant Fair Work Commission’s decision[5] records that Mr Petrie had indicated that the only occasion on which he resisted performing remote work was when doing so would have prevented him from collecting his children on time.
[5] Mr Troy Petrie v Grant Johnson Pty Ltd ATF The Grant Johnson Trust T/A Platinum Roof Coating (U2016/7864) [2016] FWC 6407.
The Tribunal has taken into account that Ms Petrie does not work at present. Ms Petrie says that she has “no spare time to work part time” (A2, page 1). However she is in full time study and once complete, has capacity to engage in paid employment if she chooses. Based on paragraph 66 of the Irving decision (referred to in subparagraph 21(c) above), the Tribunal is of the view that undertaking this study advances Ms Petrie’s future employment prospects, whether she chooses to work following its completion or not.
As to the matters raised by the parties in:
(a)subparagraphs 27(e) and 30(e) above, the Tribunal accepts that work of a “fly-in fly-out” nature would pose difficulties for Mr Petrie given the equal care arrangement; and
(b)subparagraphs 30(j) and 31(c) above, the Tribunal extends its views and findings in paragraphs 38, 49 and 50 above (that the Tribunal will consider factors only to the extent there exists relevant corroborative evidence) to the present discretionary factors regarding the parties’ workforce experience, education levels and future employment prospects.
The duration that each carer has been on income support and their principal carer status since this time
The Tribunal notes that Mr Petrie has been deemed the principal carer for PPS purposes since December 2014 (refer to paragraph 3 above) and the Tribunal understands that both parties have been on income support payments during that time.
Any other factors considered relevant
The Tribunal is of the view that the evidence before it does not raise any additional relevant matters for consideration.
For completeness, the Tribunal acknowledges that Mr Petrie is the carer for two school aged children in addition to the children that are the subject of the present application.
CONCLUSION
A person qualifies for PPS if they are the principal carer of at least one PP child (subsections 500(1)(a) and 500D(2) of the Act). Mr Petrie has been deemed the principal carer of the children since December 2014. Mr Petrie and Ms Petrie are both in receipt of income support and share the care of the children equally. In order to decide that Ms Petrie is the principal carer of the children, the Tribunal must in turn decide that Ms Petrie is the carer “most in need of a favourable determination.”
In reaching its decision, the Tribunal must consider the mandatory care factors and (if further information is required to make the determination, as the Tribunal finds to be the case in the present application) may consider the discretionary care factors. Certainly, this task is an unenviable one for any decision-maker and the Tribunal has found it beneficial to first reflect on the comments of Gyles J in Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461 on former comparable provisions of the Act, namely (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 …
The Tribunal has had regard to the various factors at paragraphs 39 to 57 above and the treatment of the word “need” in the context of the relevant assessment[6], distinguishing between matters supported by objective evidence and claims which are largely unsubstantiated. The Tribunal takes the view that it is not within the scope of the present application to investigate the accuracy of all the assertions and statements made by Ms Petrie and Mr Petrie. The Tribunal must and has proceeded to form its conclusion on the best evidence available to it.
[6] The Tribunal refers to the authorities at paragraph 21 in this regard.
Ms Petrie lives in a rental property. Mr Petrie lives in the former marital home, which although it is an asset, has a significant amount still owing on it and a monthly mortgage liability of $2,345.00. Ms Petrie appears to be supported by her mother to some extent (if her evidence is accepted regarding her mother’s name being on the rental property) and by her uncle (if her evidence is accepted regarding her travel to Italy). Neither Mr Petrie (other than his home) nor Ms Petrie hold assets of any significance.
Ms Petrie is reliant on Newstart, Austudy and FTB for her income and has no income at present from employment. The Tribunal considers Ms Petrie’s study will advance her future employment prospects, irrespective of whether her present unemployment is by choice (given her full time study) or from lack of finding employment (there being no evidence regarding those claimed efforts ever having been made). Mr Petrie is reliant on FTB and PPS for his income and submits that he performs some casual work.
Ms Petrie is of the view that the children’s expenses are shared, however Mr Petrie is of the view his efforts to have Ms Petrie contribute have failed. The objective evidence regarding expenses for the children is limited however the Tribunal notes the email evidence referred to in subparagraph 51(e) above and is of the view that Mr Petrie takes greater responsibility than Ms Petrie for the children’s various expenses. The Tribunal is also of the view that at hearing Mr Petrie presented as having a greater awareness of the specific nature of the various expenses, what they equate to in monetary terms, concerns over how those expenses would be met and over aspects of the children’s general wellbeing (school attendance for example). The Tribunal considers that these matters go toward the quality of care of the children generally in the sense described in the Clarke and Smedley decisions and in turn its consideration of the relevant “need.”
Taking all of these matters into account, the Tribunal is satisfied that Mr Petrie is in greater need of a favourable determination than Ms Petrie.
As the Tribunal has concluded that Mr Petrie is in greater need of a favourable determination than Ms Petrie, Ms Petrie cannot be the principal carer of the children, does not have at least one PP child and therefore does not qualify for PPS under the Act.
DECISION
The decision of the AAT1 dated 13 March 2017, which affirmed a decision of an ARO of the Department dated 18 October 2016, rejecting Ms Petrie’s claim for PPS, is affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
....[sgd]....................................................................
Associate
Dated: 14 June 2018
Date of hearing: 27 March 2018 Applicant: In person: self-represented Representative for the Respondent: Ms Jones-Bolla Solicitors for the Respondent: Sparke Helmore Lawyers Other Party: In person: self-represented
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