Quin and Secretary to the Department of Family and Community Services
[2000] AATA 1032
•22 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1032
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V00/262
GENERAL ADMINISTRATIVE DIVISION)
Re: PETER JAMES QUIN
Applicant
And: SYLVIA MARIA QUIN
And: SECRETARY TO THE
DEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date:22 November 2000
Place:Melbourne
Decision:The decision under review is set aside. A decision is substituted that, from the date he lodged his claim, 22 July 1998, Mr Quin is not qualified for family payment during other than the five weeks during school holidays when he has his children in his care. Being satisfied that, during those five weeks, two people, not members of the same couple, are each qualified for family payment for the same children, the share of the family payment payable to Mr Quin for his children during those five weeks is 100 per cent and Mrs Quin's share is 0 per cent. At all other times Mrs Quin's share of family payment is 100 per cent and Mr Quin's share is 0 per cent.
(sgd) H.E. Hallowes
Senior Member
SOCIAL SECURITY — family payment — parties to application — whether two people qualified for family payment — whether legal responsibility — whether for day-to-day care - consent Orders made by the Family Court of Australia — whether intermittency of access days — date from which family payment payable
Administrative Appeals Tribunal Act 1975 ss.35, 37
Social Security Act 1991 ss.5(2), 838, 863, 869(1), 1255(4), 1290
Social Security (Administrative) Act 1999 s.1085
Family Law Act 1975 ss.61C, 64B
Secretary, Department of Social Security v Field (1989) 18 ALD 5
Secretary, Department of Social Security vWetter (1993) 112 ALR 151
Elliott vSecretary of Department of Social Security and Another (1995) 134 ALR 439
Re Shorter and Secretary, Department of Social Security
(AAT 11076, decided 19 July 1996)
REASONS FOR DECISION
22 November 2000 Mrs H.E. Hallowes, Senior Member
After the hearing of this matter, the Tribunal noted that Mr Quin's taxation file number was disclosed in the documents (Tdocs p.21) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") ("the documents") and it made an Order under section 35 of the AAT Act that the number not be disclosed. The social security payment made to Mr Quin has changed its name but for convenience the Tribunal will refer to it as family payment in these reasons as it was named when Mr Quin lodged his claim which has led to these proceedings.
Mr Quin has reason to wonder why his entitlement to family payment has changed. On 17 April 1998 he lodged a claim for family payment in respect of his four young children born in 1989, 1990, 1993 and 1995. The claim was lodged shortly after he and his wife separated. On an application for child support he indicated that he would be sharing the care of the children more or less equally with his wife who would have the children in her care between 146 and 219 nights. He and his wife separated on 9 April 1998. They had agreed that Mr Quin have the children in his care for six days each fortnight.
On the day he lodged his claim for family payment on 17 April 1998, Mr Quin was advised by letter that he would be paid family payment The delegate's calculations with respect to the rate of family payment payable, a copy of which was amongst the documents (T4), suggest that the calculations were made on the basis of Mr Quin having the children in his care for 43 per cent of the time. Printouts of entries from the Department of Family and Community Services' ("the department") computer amongst the documents record with respect to Mrs Quin:
. . . 17 APR 1998 MBE update rate of fpa, cust has 57% care
and with respect to Mr Quin:
. . . grant fpa/ftp, cust has 43% care of children . . .
Following advice from Mrs Quin's solicitors that she had the children for 78 per cent of the time, a decision was made by a delegate of the Secretary on 7 May 1998 that Mr Quin had no entitlement to family payment because the children were in his care for less than 30 per cent of the year. Mr Quin was so advised by letter dated 8 May 1998 (T8). Ms C. McInnes, who appeared for the Secretary at the hearing, advised the Tribunal that departmental policy had, in the past, provided that family payment not be paid to a parent unless the parent had children in their care for more than 30 per cent of the time. She told the Tribunal that when the decision was made in May 1998 the 30 per cent rule was no longer departmental policy and the Secretary conceded that the decision made with respect to Mr Quin's entitlement was made for the wrong reasons.
It appears from the documents that consent Orders were made by the Family Court of Australia under the Family Law Act 1975 (the "Family Law Act") as amended on 16 July 1998 in part as follows:
. . .
2.That the Husband and the Wife have the joint responsibility for the long term care, welfare and development of the children of the marriage Kevin Peter Quin born 31st January, 1989, Andrew Raymond Quin born 12th August 1993, Nicole Alida Quin born 2nd March 1995 and Emma De-ane Quin born 18th October, 1990.
2.That the said children reside with the Wife and she shall be solely responsible for their day to day care, welfare and development.
. . .
It was ordered that Mr Quin have contact with his children on each alternate weekend, an additional weekend each school term and for half of all school holidays, save for the Christmas holidays, in which the children are with Mr Quin for two weeks.
On 22 July 1998 Mr Quin lodged a further claim for family payment in respect of his four children (T10). A rate calculation sheet with respect to Mr Quin's claim (T11) records that he had the children in his care for 25 per cent of the time. The documents include a rate calculation sheet for Mrs Quin who was advised on 24 July 1998 that she would be paid family payment of $116.03 per fortnight, starting 30 July 1998 (T12). On 31 July 1998 Mr Quin was advised that he would be paid family payment of $140.80 per fortnight, starting 13 August 1998. Although he had the children in his care for less than half the time, these letters point to Mr Quin being paid more than Mrs Quin each fortnight. Mrs Quin sought review of the decision with respect to her family payment. She was advised by an authorised review officer ("ARO"), by letter dated 21 August 1998 (T15), that:
I am writing to you about a decision made by the Bairnsdale office on 10/8/98 to reduce your Family Payment entitlement to 75% of the maximum rate and pay your former husband 25% of the Family Payment maximum rate for your children.
. . .
The ARO decided not to change the decision. The ARO referred to subsection 869(1) of the Social Security Act 1991 ("the Act") as follows:
869.(1) If the Secretary is satisfied that 2 people who are not members of the same couple are each qualified for a family allowance for the same child, the Secretary is to make a declaration:
(a)stating that the Secretary is satisfied that the 2 people are each qualified for family allowance for the child; and
(b)specifying the share of the family allowance for the child that each of the 2 people is to receive.
. . .
The Tribunal has noted the payment was "family payment" when Mr Quin lodged his claim.
Other relevant provisions of the Act are section 838 which provides that a person must have at least one dependent child in order to qualify for family payment. A dependent child is defined in subsection 5(2) of the Act, which provides:
5.(2) Subject to subsections (3) and (6) to (8), a young person who has not turned 16 is a dependent child of another person (in this subsection called the "adult") if:
(a)the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care; or
(b)the young person:
(i)is not a dependent child of someone else under paragraph (a); and
(ii)is wholly or substantially in the adult's care.
A file note indicates that Mrs Quin telephoned and asked for the decision conveyed to her by letter dated 24 July 1998 to be reviewed (T13). A further undated file note records that she was to be advised of the outcome of the review on 10 August 1998. No copy of any decision made on that day is amongst the documents, although, from the letter of the ARO dated 21 August 1998, a decision was apparently made. Mrs Quin sought review of the ARO's decision by the Social Security Appeals Tribunal ("the SSAT") on 28 August 1998 but the SSAT advised that she withdrew that appeal. She lodged a new appeal on 21 October 1999. The SSAT decided to set aside the decision of the ARO on 9 February 2000 and to remit the matter to the Secretary for reconsideration in accordance with the direction that family payment "is payable in its entirety to Mrs Quin from 21 October 1999". Mr Quin was joined as a party to that proceeding. As Mrs Quin sought review by the SSAT of the ARO decision more than three months after she had written notice of the decision, subsection 1255(4) of the Act provides that the SSAT decision only has effect from the date Mrs Quin lodged her appeal with the SSAT, 21 October 1999. Mr Quin did not apply for review out of time and he does not fall within subsection 1255(4).
On 1 March 2000 Mr Quin sought review of the decision of the SSAT by this Tribunal. The documents provided to the Tribunal pursuant to section 37 of the AAT Act are labelled Sylvia Quin. Mrs Quin became a party to this application under section 1290 of the Act, which provides that each person who is a party to the review by the SSAT is a party to an application before this Tribunal.
Mr Quin told the Tribunal that he considers that he is entitled to be paid 25 per cent of family payment with respect to his children. He outlined the care he provides for them and the costs associated with their care. It is difficult for the children as Mr and Mrs Quin now reside in different towns. It was apparent from the evidence before the Tribunal that Mr and Mrs Quin have problems communicating about the children and Mr Quin does not always know when activities involving the children are taking place, which would enable him to participate in them. He feels that his time with the children is being whittled away. He said that he does his best to be involved in their care but he and Mrs Quin do not always share the same view with respect to such things as the children's medical treatment.
Mrs Quin gave evidence that she makes all the decisions with respect to the children's day-to-day care. She has not involved Mr Quin in Nicole's speech therapy nor in Andrew's reading recovery. She outlined the expenses she has in providing for the children. The Tribunal is satisfied that it is not because Mr Quin is not prepared to provide these things, for example, hair cuts for the children, but rather, it is because Mrs Quin prefers to make those decisions herself and not to involve Mr Quin.
Ms McInnis referred the Tribunal to relevant decisions of the Federal Court and the decision of the Tribunal in Re Shorter and Secretary, Department of Social Security (AAT 11076, 19 July 1996). She put to the Tribunal that it should affirm the decision of the SSAT.
The Family Law Act was amended by the Family Law Reform Act 1995 which came into effect on 11 June 1996, and consequential amendments were made to the Act under the Family Law Reform (Consequential Amendments) Act 1995, Schedule 1 Part 10, to make it consistent with the concepts which were introduced into the Family Law Act in 1996. The thrust of the new legislation was parental responsibility for a child's day-to-day care, welfare and development. Provision was made for new parenting orders under the Family Law and prior references to "rights" and "control" were replaced. It was noted in the Explanatory Memorandum that there was no intention through the consequential amendments that there be any changes to the qualification or entitlement to any social security payment.
Section 64B of the Family Law Act provides:
64B(1) A "parenting order" is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2) A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)contact between a child and another person or other persons;
(c)maintenance of a child;
(d)any other aspect of parental responsibility for a child.
Ms McInnis put to the Tribunal that the Order of the Family Court dated 16 July 1998, which was before the Tribunal, was a specific issues order, subsection 64B(6) and subsection 64B(7) providing:
64B(6) To the extent (if at all) that a parenting order deals with any other aspect of parental responsibility for a child, the order is a "specific issues order". A specific issues order may, for example, confer on a person (whether alone or jointly with another person) responsibility for the long-term care, welfare and development of the child or for the day-to-day care, welfare and development of the child.
(7) For the purposes of this Act:
(a). . .
(b). . .
(c)a specific issues order is "made in favour" of a person, or the person, on whom the order confers duties, powers, responsibilities or authority in relation to the child concerned.
The Federal Court decisions to which Ms McInnis referred the Tribunal, were decisions made with respect to the meaning of "dependent child" before the above amendments. Before the amendment to the meaning of "dependent child", the Act referred to the right of a person to make decisions concerning the daily care and control of a child. In Secretary, Department of Social Security v Field (1989) 18 ALD 5, at page 8, the Full Federal Court said:
. . . We agree for the purposes of the definition of "dependent child" in s 3(1), a person cannot be taken to have the custody of a child unless that person has a legal right to have, and to make decisions concerning, the daily care and control of the child. That this is so is, we think, made reasonably plain by s 3(2), which speaks of the person's "right" to have, and to make decisions concerning, daily care and control of the child. Absent the order of a competent court depriving a parent of his common law right to custody of his child, the parent will have the right referred to in s 3(2). But when a court makes an order limiting a parent's common law right, whether the parent thereafter obtains a right of a kind referred to in the subsection would depend upon the terms of the Court order. We do not think that a person can be said to have "the right to have . . . the daily care and control of (a) child" merely because he has for some brief period or periods the de factor custody of the child, albeit with the consent and approval of the person to whom the court has committed the child's custody. . . .
And further:
We see no sound reason why, on the facts of a particular case, a person's rights of access to a child under a Family Court order should not be considered as giving that person a right of the kind referred to in s 3(2). . . .
The decision in Field was approved by Hill J in Secretary, Department of Social Security vWetter (1993) 112 ALR 151, at page 157, and Elliott vSecretary of Department of Social Security and Another (1995) 134 ALR 439 Lehane J stated that Field was clearly the leading authority in the area of law, going on to say, at page 444:
Field is, I think, clearly authority for the following propositions which are directly applicable to the present case:
1) A child is a dependent child of an adult only if the adult has the legal right to have, and to make decisions concerning, the daily care and control of the child. Care and control in fact, without the legal right, is irrelevant (Juren is a good example of the way in which that proposition may apply in practice).
2) An order under the Family Law Act granting custody of a child confers legal rights of that kind; an order granting access may do so.
3) Where a child, on "access days", lives at the home of a parent with access (but not custody) it is at least likely that that parent will have the right to have, and to make decisions concerning, the care and control of the child. But that right is not necessarily sufficient, because what is required is that the parent have rights relating to daily care and control.
4) A right of access for only a few days at a time (in Field, from Friday afternoon to Monday morning (ie three nights)), intermittently, while conferring the right to have, and to make decisions concerning, care and control during those periods does not confer a right of daily care and control.
5) If access extends over a period of two weeks or more, then the right of the parent having access is likely to be properly characterised as the right to have daily care and control during that period; it is possible in some circumstances that access for a shorter continuous period will carry that right with it; "there is a band of situations within which a determination either way may be open.
In Re Shorter the Tribunal said that it was ". . . mindful that the proportion of entitlement [to family allowance] is not relative to the proportion of the costs of maintenance sustained by each parent. . . .". The Tribunal in Re Shorter noted that the legislation had been amended since the decision of the Federal Court in Field. In paragraph 25 of its reasons for decision the Tribunal said that:
The Federal Court [in Field] stated that although a person has a right to have and make decisions concerning the child's "care and control", the intermittency of access days, as described, can be such that the right to have the "daily care and control" of a child is abrogated. The Court was not minded to fix a standard that would measure a period of time when the right to "care and control" would come into operation. Yet the Court considered that, due to practicalities, a time period of 14 consecutive access days or more accrues a right that properly characterises the statutory right to have the "daily care and control" of the child. In Field (supra), the Court considered that the periods of access were so brief that the only conclusion it could reach was that the Respondent did not have the right.
The Tribunal found that Mr Shorter provided accommodation, clothing and meals for 25 per cent of the time, but the mother of the child was the decision-maker, having daily care and control. The circumstances in Re Shorter are not dissimilar to the matter before this Tribunal, but they are sufficiently dissimilar for this Tribunal to reach a different conclusion.
Mr and Mrs Quin have joint responsibility for their children's long term care. Mrs Quin has sole responsibility for the children's day-to-day care and the Tribunal finds that the intermittency of Mr Quin's access during term time does not confer legal responsibility for daily care and control of the children on Mr Quin. However, the Tribunal finds, that the weeks when Mr Quin has his children during school holidays, five weeks in all, fall within the "band of situations" referred to by Leehan J in Elliott. During the school holiday weeks Mr Quin has the children, both he and Mrs Quin are qualified for family payment under subsection 869(1) of the Act. Mr Quin has joint legal responsibility for the children with Mrs Quin. When the children are residing with Mrs Quin and during term time, she is solely responsible for their care and Mr Quin is not qualified for family payment. The thrust of the Family Law Act and the Act is now parental responsibility for the day-to-day care of children and both parents must meet the expenditure in carrying out their responsibilities when the children are in their respective care. The Tribunal is satisfied that, during the five weeks Mr Quin has the children living with him during school holidays, two people, Mr Quin and Mrs Quin are each qualified for family payment. The Tribunal specifies that, during those weeks, Mr Quin should be paid 100 per cent of family payment, Mrs Quin being paid 0 per cent. Section 863 of the Act provides for the payment of family payment by instalments.
It is for these reasons that the decision under review will be set aside and a decision reflecting these findings substituted.
I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member(sgd) Catherine Thomas
Personal Assistant
Date of Hearing: 07.08.00
Date of Decision: 22.11.00
Solicitor for the Applicant: Nil — IN PERSON
Solicitor for Sylvia Quin: Nil — IN PERSON
Solicitor for the Respondent: Ms C. McInnis, Departmental Advocate
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