Re Munn and Secretary, Department of Family and Community Services - [2000] AATA 141

DECISION AND REASONS FOR DECISION [2000] AATA 141

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/376

General Administrative DIVISION )

Re GEOFFREY MUNN
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

And MILAGROS MUNN
Third Party

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date25 February 2000
PlaceAdelaide

Decision Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS MBE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Family Allowance – meaning of dependent child 'in the adult's care' considered – Family Allowance paid on basis of 'what is' rather than 'what should be'
Social Security Act 1991 ss.5, 869
Department of Social Security v Field (1989) 18 ALD 5
Re Katsimalis and Secretary, Department of Social Security (1994) 36 ALD 759
Re Schneider and Secretary, Department of Social Security (1986) 9 ALD 1
Re Le and Secretary, Department of Social Security (1986) 11 ALN N6
Re Secretary, Department of Family and Community Services and Barrett (1999) 29 AAR 131
Secretary, Department of Social Security v Van Luc Ho (1987) 14 ALD 1

REASONS FOR DECISION

25 February 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Geoffrey Munn (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 3 September 1999 (T2) which had affirmed an authorised review officer's (ARO) decision of 20 July 1999 (T16) to affirm the delegate's decision of 16 April 1999 (T14) to cancel payment of Family Allowance in respect of the applicant's child, Amelia.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T20), together with 2 exhibits, 1 lodged by the applicant (Exhibit A1) and 1 lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Ms Adele Pugsley, a departmental advocate.
The issue before the Tribunal is whether the delegate was correct to cancel Family Allowance in respect of Amelia.
The applicant was granted Family Allowance in respect of his two daughters at 32% of the maximum rate on 23 July 1998 (T4) on the basis that his two daughters were spending each weekend and the first half of all school holidays with him pursuant to a Family Court Order dated 15 July 1998 (T20). On 29 October 1998, the applicant's estranged partner notified the Department that the daughter Amelia had ceased to spend time with the applicant from 4 October 1998 (T7). On 23 December 1998 the delegate decided to stop paying Family Allowance to the applicant as she was no longer in his care (T8). On 12 January 1999 the Department decided that the applicant was entitled to a further 14 weeks of Family Allowance pending a further Family Court Order, but cancelled payment on 16 April 1999 when no order was forthcoming (T13), a decision affirmed by the ARO and SSAT, the latter of whom stated in their reasons for decision (inter alia at T2/7):
"…
The Tribunal notes that under section 5(2)(a) the young person must be in the adult's care in order to be classified as a dependent child.
To the Tribunal's mind Amelia ceased to be in Mr Munn's care in November 1998 in that Amelia ceased to visit or spend time with him from that date.
…"

legislation

Sub-section 869(1) of the Social Security Act 1991 (the Act) allows the Secretary to share Family Allowance between two people who are not members of a couple if each qualifies for Family Allowance in respect of the same child.
In order to qualify for Family Allowance, the definition of a dependent child which is set out in sub-s.5(2) of the Act must be satisfied. That sub-section provides as follows:
"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."

The Department conceded that the applicant has legal responsibility for the child pursuant to a Family Court Order (T20). The question before the Tribunal is whether the applicant satisfies sub-s.5(2)(a) of the Act in its entirety.
applicant's evidence and submissions
The applicant submitted that the imposition of a restraining order (Exhibit A1/13) on 12 February 1999 made contact with his daughter difficult, especially since his daughter's attendance at school was also sporadic. The restraining order was subsequently revoked in July 1999 (Exhibit A1/14).
He told the Tribunal that he had provided the Department with the relevant Family Court orders and it was their fault that they did not have access to all the relevant information. He submitted that the SSAT erred in not being able to fully consider the history of the Family Court matters, and stated to this Tribunal that the original order (T20) dated 15 July 1998 was in place until 15 July 1999 at which time it was ordered that separate representatives be appointed for the children. He submitted that after this time, all decisions relating to the children went through the separate representatives, although he conceded in cross-examination that whilst the separate representatives are involved in issues such as schooling, his estranged wife has responsibility for the day to day care issues, and that he had continued to be "kept in the dark" about day to day issues after the restraining order was lifted.
He submitted that it was not his fault that the children's mother withheld the child from contact and noted his ongoing Family Court application in this respect. In evidence however, he stated that the child Amelia (now aged twelve) had made the decision not to have contact with him from the end of October 1998. He stated that it was his belief that Amelia did so because he required her to attend school on Monday mornings following contact visits, whereas he believes that the mother does not similarly insist upon the child attending school. Under cross-examination he stated that since October 1998 there have been a couple of occasions upon which Amelia has been left in his care for 6-7 hours during the day.
He stated that he does not provide financial support for the children because he is unemployed, and has bought them presents for birthdays and Christmas which he has not yet given to them.
In respect of the departmental policy guidelines, he submitted that it was inconsistent that a person in his position should be ineligible when parents with children overseas continue to be eligible. He referred the Tribunal to Secretary, Department of Social Security v Field (1989) 18 ALD 5 in respect of rights flowing from Family Court Orders in respect of sub-s.5(2)(a), Re Katsimalis and Secretary, Department of Social Security (1994) 36 ALD 759 in respect of children being overseas, Re Schneider and Secretary, Department of Social Security (1986) 9 ALD 1 and Re Le and Secretary, Department of Social Security (1986) 11 ALN N6 in respect of delegated responsibility.
respondent's submissions
Ms Pugsley submitted, on behalf of the respondent, that there has to be demonstrable actual care to satisfying the sub-s.5(2)(a) definition. She submitted that the applicant does not provide financial support, is not involved in day to day issues of care, and has not had Amelia physically in his care since October 1998 except on two occasions of some 6-7 hours each. She submitted that the restraining order that was in place during February to July 1999 notwithstanding, he has had no input in Amelia's life since October 1998.
She submitted that the applicant cannot be said to have delegated responsibility to his estranged wife as he continued to contest her claim to residence in the Family Court, and that the period of absence from his care means that it cannot be considered to be a temporary absence from his care any longer.
discussion and findings
Sub-section 5(2)(a) has two limbs, the first being legal responsibility (which is not contested) and the second being "in the adult's care". It is that question of "in the adult's care" that is before the Tribunal.
In Re Secretary, Department of Family and Community Services and Barrett (1999) 29 AAR 131, Deputy President Forgie provided an exhaustive discussion of the relevant authorities in relation to this question, and this Tribunal finds the approach taken in that case to be compelling. In that case, following a lengthy discussion of the case law which this Tribunal would adopt for the purposes of this matter, the application of the said case law lead the Deputy President to the following conclusion in respect of "adult's care" (at paragraphs 54-56):
"54. The next question to consider is whether Breanne is in Mrs Barrett's care or that of Mr Barrett. This must be considered on the basis of what is rather than on the basis of what should be. The latter is for the Family Court to determine. [this Tribunal's emphasis]
55. For the purposes of this case, I am satisfied that Mrs Barrett would very much like to care for Breanne. She does not understand why Breanne left home in the first place. She has not agreed that Breanne should live with Mr Barrett. She has wanted to continue to be involved in Breanne's life and in making decisions about her current and future care. She has not contributed financially to Breanne's support. She has not been permitted to do so for reasons which it is not my role to explore. Mr Barrett, on the other hand, has been involved in such decisions, has provided for her financially and has been involved in Breanne's life. Again the reasons as to why that should be so and whether or not it is in Breanne's interests at this stage is not within my role to explore. They are matters for the Family Court.
56. These matters do, however, persuade me that Breanne is in the care of Mr Barrett rather than Mrs Barrett. This is not a case in which a young person is temporarily in the care of another so that it can be said that he or she continues to be in that care despite a period of absence from it. Breanne has been away from her mother's home and from her direct care for a substantial period of approximately 16 months since 31 October 1997. Although Mrs Barrett continues to be deeply concerned about her daughter's well-being, circumstances are not such that I can find that her attempts to stay in touch with Breanne and with her continuing concern for her welfare mean that Breanne is in her care. Breanne is wholly in the care of Mr Barrett."
Thus, in looking at "in the adult's care" in the present matter, the Tribunal is mindful that it must consider this question on the basis of what is, rather than what should be. "What should be" is as the court orders have stipulated. The court order of 15 July 1998 (T20) provided for contact with the applicant on most weekends. It is apparent, however, and the Tribunal so finds that, as a matter of fact, the applicant ceased having contact with Amelia as of late October 1998. The reasons for this occurrence are not something for this Tribunal to delve into, they are rightly for the Family Court. The facts of what the circumstances of the child's care were must be considered by this Tribunal without regard to the reasons for such circumstances.
From November 1999, a new Family Court order has been in place (Exhibit A1/19), which leaves contact to the discretion of a clinical psychologist to whom the child has been referred. From the applicant's evidence it appears that things have not yet developed in this regard, in that no contact has occurred to date.
The applicant has not provided financial support and he has not been involved in day to day care activities. He has in fact had minimal physical contact with Amelia since October 1998. He has pursued Family Court action to attempt to enforce the July 1998 court order, however this alone is not enough to establish that Amelia continues to be in his care. The involvement of the separate representatives is also something which does not establish Amelia as continuing to be in the applicant's care.
It cannot be said that he delegated his responsibility. As Davies J concluded in Secretary, Department of Social Security v Van Luc Ho (1987) 14 ALD 1, a person continues to have custody, care and control if they delegate aspects of it "for a limited time and for limited purposes" (at p5). The applicant has not "delegated" in the true sense of that word in that he opposes his estranged partner's full residence of the child. Even if any such delegation could be said to have occurred, it is not comparable to putting a child in boarding school or having a child overseas for a limited period of time, because since October 1998 the applicant has not had custody, care or control for any purposes or time. The length of time and nature of any such delegation (if it existed at all) in this case flies contrary to the "limited" nature of such delegation in a temporal sense as contemplated by Davies J.
It is right that a person only receive Family Allowance where they are responsible for the day to day needs of a child and are exercising care, custody and control. Family Allowance is intended to help with all those things a child needs, such as clothing and food. Where a person for whatever reason, (whether it be contempt of a Family Court order or as a result of the child's desire), does not in fact fall within a person's day to day responsibility in terms of the provision of such basics as food and clothing or in other ways and means of exercising custody and control, it is not appropriate that they receive Family Allowance. If they are unhappy about the circumstances of the child's care, then they pursue that through the Family Court.
In this case, the applicant has not had day to day responsibility in anything other than a legal sense since late October 1998. As a matter of fact, he has had no actual care of the child, and the Tribunal must concern itself with the facts of the care, not simply legal responsibility for the care. In these circumstances, the applicant cannot satisfy sub-s.5(2)(a) of the Act, and neither, for the sake of completeness could sub-s. 5(2)(b) said to be satisfied and the Tribunal so finds.
As noted in Re Barrett, Parliament has extended the notion of a dependent child beyond mere legal responsibility to take into account those persons who, as a matter of fact, either in the absence of, or in contempt for, Family Court orders, actually care for such children. The actual care givers are those who should receive Family Allowance.
decision
For the reasons given, and pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  15 February 2000
Date of Decision  25 February 2000
Counsel for the Applicant        In person
Solicitor for Applicant               -
Counsel for the Respondent    Ms A. Pugsley
Solicitor for the Respondent    Centrelink