Rytir and Department of Family and Community Services

[2001] AATA 376

DECISION AND REASONS FOR DECISION [2001] AATA 376

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/7

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ALOIS RYTIR         
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  First Respondent

And         CHRISTINE RYTIR

Second Respondent

DECISION

Tribunal       Mr. I. R. Way, Member      

Date8 May 2001    

PlaceCanberra

Decision       The Tribunal affirms the decision under review.          

................(Signed).............................
  I. R. WAY
  MEMBER

CATCHWORDS
SOCIAL SECURITY – Family Allowance – dependent child – legal responsibility for day-to-day care – share of Family Allowance
Family Law Act 1975: s64B
Family Law Reform Act 1995
Social Security Act 1991: s 838(1), 869(1), 1290
Department of Social Security and Field (1989) 25 FCR 425
Re Elliott and Secretary, Department of Social Security and Anor (1995) 61 FCR 240
Secretary, Department of Social Security and Wetter (1993) 40 FCR 22

REASONS FOR DECISION

Mr. I. R. Way, Member                  

1. This is an application from Alois Rytir (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 December 2000.  The SSAT decision affirmed Centrelink's decision to reject the applicant's claim for Family Allowance in respect of his son Adrian, for the period 4 October 1999 to 28 November 1999.

2. The Centrelink decision was made on 18 January 2000, reconsidered and affirmed by Centrelink on 25 February 2000 and reviewed and affirmed by an Authorised Review Officer on 13 April 2000. 

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and other documents lodged during the hearing as follows:
   For the applicant:

• Statutory Declaration of Peter Mitchell, dated 29 January 2000 - Exhibit A1

• Time Sheets – Mr. Rytir – October/November 1999 – Exhibit A2

For the Secretary, Department of Family and Community Services (respondent):

• School terms for 1999 – Exhibit R1

1. Oral evidence was given to the Tribunal by the applicant, Mr. Carter and Ms. Rytir who had been joined as a party by the respondent under section 1290 of the Social Security Act 1991 (the Act).
   FACTUAL BACKGROUND

2. There was no dispute between the parties about the facts as set out in paragraphs 6 to 12 below and the Tribunal so finds.

3. Mr. and Ms. Rytir were married on 25 July 1985.  They separated in either 1989 or 1990 and a decree nisi was ordered on 13 November 1996.

4. There are two children of the marriage.  Nicole Rytir was born on 13 September 1985 and Adrian Rytir was born on 29 October 1987.

5. On 22 July 1994 the Family Court made several Orders regarding the distribution of property and care of the children (T7).  Specifically, at paragraph 11 the Court ordered that "The husband and wife shall retain joint guardianship of the two children of the marriage", but sole custody of the children was awarded to Ms. Rytir in paragraph 12, "the wife shall have sole custody of the said two children of the marriage".  Mr. Rytir was allowed "reasonable access to the children of the marriage as agreed by the parties and such access shall include a minimum of one half of all school holidays and each alternate weekend and such further time as the children request and to which the parties agree". 

6. Further Orders were made by the Family Court on 25 September 1995 (T8).  Those Orders limited Mr. Rytir's access to the children to between 9.00am and 6.00pm on alternate weekends,  to "the second half of every school holidays provided that contact does not include overnight access", alternate Christmas days and all trades and picnic days between the hours of 9.00am and 6.00pm.  Further, those Orders specified that "if the parties by agreement alter the arrangements for any of the childrens' contact with the husband, as set out in paragraph 1 of these Orders, such agreement shall be in writing."  There have been no further Orders made by the Family Court in respect of Mr. and Ms. Rytir.

7. On 29 June 1999 Mr. Rytir claimed Family Allowance in respect of Adrian and Nicole.  In that claim he stated that Adrian will be living with him for "40% of the time".  Mr. Rytir's Family Allowance claim was rejected on 1 September 1999, that decision was reconsidered by the original decision-maker on 17 September 1999, who affirmed the decision to reject Mr. Rytir's claim on the basis that he did not have "the legal responsibility of a dependant child".  Mr. Rytir appealed to an Authorised Review Officer, who affirmed the decision on 26 October 1999.  Mr. Rytir appealed that decision to the SSAT on 8 November 1999.  His application was heard by the Tribunal on 13 April 2000, and a decision was made that, "at the time of his claim for Family Allowance Mr. Rytir had one FA child and that a declaration should be made under section 869 of the Act stating that Mr. Rytir and Mrs. Rytir were at that time each qualified for Family Allowance for their son Adrian, and specifying shares of 6% for Mr. Rytir and 94% for Mrs. Rytir". 

8. Mr. Rytir lodged another claim for Family Allowance on 27 October 1999 (T5).  On 18 January 2000 Mr. Rytir was sent a letter advising him that his claim for Family Payment and Family Tax Payment for Adrian was rejected "because he is not considered to be your dependent" (T19).

9. Mr. Rytir, during the relevant period, resided at 28 Callabonna Street, Kaleen, ACT, 2617 and Ms. Rytir resided at 35 Lance Hill Avenue, Dunlop, ACT, 2615. 
   ISSUES

10. The principle issue to be determined in this matter is whether or not the applicant's son, Adrian, was, pursuant to the Act, a dependent child of the applicant during September, October and November 1999, and if so what rate of Family Allowance should be paid to him.

LEGISLATIVE FRAMEWORK

1. Section 838(1) of the Act as enforced in September, October and November 1999 outlines the qualification criteria for Family Allowance. That subsection provides:

   "a person is qualified for family allowance if:
   (a)       the person has at least one FA child; and
   (b)       the person is an inhabitant of Australia;  and

   (c)the person's income for the relevant family allowance period does not exceed the person's income ceiling;

   (d)the value of the person's assets does not exceed $414,500."

Section 6 (1) of the Act provides that the term "FA child" has the meaning given by sections 831 to 836.  Section 831(1) provides that, subject to sections 832 to 836, "each dependent child of a person is also an FA child of that person".  A note to the subsection refers the reader to sections 5 (2) to 5 (9) for a definition of "dependent child".

1. Section 5(2) states:

   "Subject to subsections (3) and (6) to (8) a young person who has not turned 16 is a dependant 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."

Consequently, qualification for family allowance is contingent upon the adult claimant having either legal responsibility for the day to day care, welfare and development of the young person in their care, or having the child in their care where there is no adult without legal responsibility. 

1. In the event that two people are qualified, section 869(1) allows the Secretary to make a declaration "dividing"  the amount of family allowance payable between those people:

   "If the Secretary is satisfied that 2 people who are not members of the same couple are each qualified for 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."

1. In 1994 and 1995 various Orders were made in respect of Mr. and Ms. Rytir's children under the Family Law Act 1975.  These Orders are as set out in paragraphs 8 and 9.  On 11 June 1996, that Act underwent significant amendment as a result of the commencement of the Family Law Reform Act 1995 (the Reform Act). As a result of these amendments on or after 11 June 1996, the custody and guardianship Orders in respect of Nicole and Adrian became Residence Orders, Specific Issues Orders and Contact Orders subject to the new legislative regime. These Orders are known as Parenting Orders; section 64B Family Law Act 1975. The respondent contends and the Tribunal is satisfied that after 11 June 1996 (and therefore, at the time Mr. Rytir lodged his claim for family allowance) Ms. Rytir no longer had a custody Order but a Residence Order in her favour.  Similarly, Mr. Rytir had a Contact Order after that date.
   EVIDENCE

2. Mr. Rytir told the Tribunal his son Adrian came to stay with him at his residence in Kaleen from mid September 1999 to the end of October and that during this period Adrian returned to his mother's residence in Dunlop on two or three weekends for a day or so.  The applicant claimed that he took full responsibility for his son during this period, that Adrian went to school on the day after he came to stay and thereafter Mr. Rytir would pick up his son from school on most days.  He said he also took his son to sporting activities, the doctor and the optometrist as necessary.  The applicant referred the Tribunal to T3, 15 to 23 and Exhibit A2, which he described as "hard copy" in support of his claim that his son lived with him from mid September to the end of October.

3. The applicant also referred the Tribunal to the Statutory Declarations of Barry Williams and James Carter, both of which stated that Adrian lived with his father from 4 October to 28 November (T3, 13 and T3, 14).  The Tribunal notes that a further Statutory Declaration of Peter Mitchell provided by the applicant (Exhibit A1) refers to the joint activities of the applicant and his children during the period of October 1995 to April 1999. 

4. With respect to the court Orders of 25 September 1995 which do not allow the applicant access overnight, the applicant said that almost immediately after this Order was made he had Ms. Rytir's agreement to a flexible arrangement whereby this restriction on access would not apply.  He said he had prepared and signed a written statement to this effect which he gave to his daughter to give to Ms. Rytir for her agreement and signature.  Mr. Rytir stated that he had not seen the written statement since giving it to his daughter and he did not have a copy of the statement.

5. Mr. Rytir was cross-examined at some length about the discrepancy between the evidence he gave the Tribunal about the period Adrian stayed with him and the many other conflicting statements made previously about the extent of this period (T3, 13 – Statutory Declaration of B. Williams; T3, 14 – Statutory Declaration of J. Carter; T5, 43 – Claim Form; T17, 94 – Letter from applicant to respondent;  T20, 97 – Respondent's file note).  When asked to explain each of these discrepancies Mr. Rytir said he could not do so and that he had no answer.

6. Mr Carter, manager of the mens' accommodation centre (MAACS) where the applicant is the live-in caretaker, told the Tribunal that he can recall Adrian staying with his father in October and November 1999.  He did not have a precise record of Adrian's stay but he could remember the applicant on various occasions taking Adrian to school and collecting him after school.  He also recalled that on occasions when he visited the applicant at home he would see Adrian and that he was aware that while Adrian went back to his mother's place on some days, he was under the impression that Adrian was at his father's place most the time.

7. On cross-examination about the Statutory Declaration he had signed and which was in exactly the same terms as the Statutory Declaration signed by B. Williams, who was chairman of the board of management of MAACS, Mr. Carter said that he, Mr. Williams and Mr. Rytir had discussed the wording of the declaration within the context of Mr. Rytir's claim for family allowance, but that the words in the declaration were his own and that he had arrived at dates given from his memory and from looking at Mr. Rytir's time sheets (Exhibit A2) which recorded afternoon absences of the applicant while he was picking up his son from school.

8. Mr. Carter could not offer the Tribunal an explanation of why the applicant in his evidence before the Tribunal claimed that his son lived with him for different periods to those given in his Statutory Declaration. 

9. At this stage of the proceedings Mr. Rytir forcefully told the Tribunal that he had been wrong in giving the dates he had, and that he now claimed his son stayed with him from mid September to the end of November 1999.  He said that as a new Australian he had difficulty in distinguishing the names of various months but he had no difficulty with distinguishing numbered months.  The Tribunal notes that Mr.  Rytir was born in Czechoslovakia, that he is a resident of Australia who first arrived in Australia in 1972 (T5) and that before the Tribunal he displayed a very good understanding of the English language.

10. With respect to the time sheets (Exhibit A2) the applicant told the Tribunal that the margin notes about activities with Adrian had been added subsequent to the time sheets being filled in.  The Tribunal notes that the margin notes only cover the period from late September to the end of October.

11. Ms. Rytir told the Tribunal that she accepted that an informal arrangement between herself and Mr. Rytir was in place whereby the children could stay overnight with Mr. Rytir and that this arrangement had been in place for some time.  She said there was no written agreement to this effect and that she had never seen any statement about this matter signed by Mr. Rytir. 

12. Ms. Rytir said that during the period in question Adrian had had a problem with attendance at school and that, as a result of her insistence that he attend school, he had decided to go and live with his father who he said would not make him go to school.  She connected this event to the start of the school term on 11 October and her discussion of the problem with the headmistress of Adrian's school on 12 October.  The Tribunal notes that the relevant school term commenced on 11 October (Exhibit R1) and that during the initial period Mr. Rytir claimed he was taking his son to school, the school was in recess.

13. It was Ms. Rytir's evidence that Adrian took some clothes and belongings over to his father's residence on or about 7 October 1999, that he then moved into his father's residence on 11 October and returned to her home on 7 November.  She said that she had a diary note to support her recollection of 7 November.  During this period she said that Adrian returned home on many occasions, that he never stayed in his father's home for more than four continuous nights.  She said that she had diary notes which showed that during the period 11 October to 7 November Adrian had stayed overnight at her home on the nights 15, 16, 17, 22, 23, 29, 30 October and 1, 5, 6,7 November.
    CONSIDERATION

14. With respect to the qualification criteria for family allowance, the respondent concedes and the Tribunal accepts that the applicant satisfies sections 838(1)(b), (c) and (d) of the Act.

15. With respect to the question as to whether the applicant, at the relevant time, had at least one FA child (section 838(1)(a)), consideration must be given as to whether or not Adrian was at that time a dependent child of the applicant and this in turn, pursuant to sections 5(2) of the Act, requires consideration of whether:

    (a)The applicant was legally responsible for the day-to-day care, welfare and development of Adrian and Adrian was in the applicant's care; 

    (b)Or whether Adrian was wholly or substantially in the applicant's care where there is no adult with that legal responsibility.

16. Neither party in these proceedings contended that the criteria in paragraph (b) were relevant and the Tribunal is satisfied that this is correct.

17. Turning then to the relevant criteria in section 5(2) to be considered, the Tribunal was referred to Re Secretary, Department of Social Security and Field (1989) 25 FCR 425 and Re Elliott and Secretary, Department of Social Security and Anor (1995) 61 FCR 240.

18. The Tribunal notes that despite changes in the terminology of the relevant Acts over recent years the authorities listed in paragraph 33 continue to be relevant to the issues being considered in this matter.

19. In Elliott,  the Court said at 246:

    "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".

    The crucial and by no means straightforward question is, when does a right concerning care and control become a right concerning daily care and control?  Perhaps the key to the guidance which Field gives on that question lies first in its agreement with the proposition that the distinction between custody on the one hand and access on the other is "temporal rather than qualitative" and secondly in its insistence that "daily" care and control requires a relatively long continuous period of living with the person (usually, of course, parent) concerned.  Short, discontinuous periods, while they may involve a right of care and control during those periods, do not involve a right of daily care and control.  The other matter which seems to me to emerge clearly from Field, and also for that matter from Wetter, is that it is not particularly helpful to ask, for this purpose, what decisions a parent with access actually makes for the child concerned during the period of access or what that parent actually spends on looking after the child during periods of access.  The whole tenor of Field, particularly, is that it is to be expected that the parent with access will make decisions about "what the child eats, when he goes to bed, whether and where he goes to church, what he does with his time, to summon medical attention in the event of accident or illness, and so on".  The fact that a parent who has access but not custody makes those decisions (and has the right to make them) during periods of access does not, by itself, confer a right of daily care and control where the periods of access are short."

and further with respect to the link between the terms of a court Order and legal responsibility the Court in Field at 428/429 said:

"… a child cannot be regarded as a dependent child of a person merely because that person has factual custody, care and control of the child.  We agree that 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 a person's "right" to have, and to make decisions concerning, the 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 retains a right of the kind referred to in the subsection will depend upon the terms of the court's 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 facto custody of the child, albeit with the consent and approval of the person to whom the court has committed the child's custody."

The Court in Field went on to say (429) however:

"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).  That is to say, we think that a right of access may be so framed in a court order as to give a person the right to have, and to make decisions concerning, a child's daily care and control."

1. It was contended for the respondent that the existing Parenting Orders give Ms. Rytir the legal responsibility for the day to day care, welfare and development of Adrian and that Adrian was, at the relevant time, and in the context of legal responsibility, the dependent child of Ms. Rytir.  After consideration of all of the material before it the Tribunal accepts this contention and so finds.

2. This raises the question of the applicant's right of access as set out in the "contact order" (paragraph 9 above) and whether this right of access creates a legal "right" or responsibility.  Clearly as quoted above, the Court determined that a right of access could give the adult a legal right to make decisions concerning the child's daily care and control.  However, that legal right does not accrue where the access is intermittent.  In Field at 430, the Court said:

   "Rights granted under access orders will, of course, vary from case to case.  We would not wish to lay down any hard and fast rule as to the number of consecutive days during which a person must have the right to have the care and control of a child before that right can be characterised as a right to have the child's daily care and control in terms of s 3(2).  There is a band of situations within which a determination either way may be open.  But having regard to the circumstance that SPB is payable on a fortnightly basis, we think that a practicable and sensible rule is that a person who, pursuant of an order of the Family Court, has the right of access to his child in his own home for a period of not less than 14 consecutive days should be regarded, ordinarily, as having the right to have, and to make decisions concerning, the daily care and control of the child during that period.  A lesser period may, in particular circumstances, suffice to render a finding open in favour of the parent enjoying access, but the ordinary periods here are so brief that the only conclusion possible is in the negative."

1. The contact Order in favour of Mr. Rytir allows him to spend time with his children every alternate Saturday and Sunday, alternate Christmas Days and every trades and picnic day between the hours of 9.00am and 6.00pm as well as the second half of every school holidays.  The Order does not allow overnight access.  With regard to the question of whether there was a written agreement within the terms of the Order allowing Mr. Rytir access, overnight, the Tribunal is satisfied that while there was an informal agreement between Mr. Rytir and Ms. Rytir to this effect, no written agreement exists.

2. The respondent submitted that the Order does not allow the applicant to care for Adrian for consecutive days, let alone fourteen consecutive days and hence, in the absence of any written agreement within the terms of the Order, no legal right for daily care of Adrian can accrue to the applicant in the absence of an Order to that effect.  The Tribunal accepts this submission and so finds.  In so doing the Tribunal notes that Hill J in Secretary, Department of Social Security and Wetter (1993) 40 FCR 22 made the point that informal, unregistered agreement between the parties does not vary a court Order and that "where a court order is in existence, that order will determine in accordance with its terms the legal right to the daily care and control of the child unless varied by a subsequent order for a registered agreement". 

3. The remaining issue to be considered is whether, regardless of any formal arrangements, the applicant has had, as he contends, practical access to Adrian extending over a continuous period of at least 14 days, such that the access can be characterised as the right to have daily care and control during that period.

4. Clearly the evidence of Ms. Rytir and Mr. Rytir is conflicting.  The Tribunal was impressed by the consistency of Ms. Rytir's evidence seen across two SSAT hearings and the hearing before the Tribunal.  On the other hand, the Tribunal found Mr. Rytir's evidence (and the documentary evidence he produced) so inconsistent that the Tribunal could give it little weight.  The Tribunal also had difficulty in accepting Mr. Carter's evidence about the duration and extent of Adrian's stay with his father during the relevant period.  Mr. Carter's interaction with Mr. Rytir and his son during this period was spasmodic and the annotated time sheets are inconclusive and of no assistance in considering the question of Adrian's overnight stays with his father.  The Tribunal notes that the Statutory Declaration of Peter Mitchell (Exhibit A1) does not cover the period under consideration in this matter and as such is of little relevance.  After considering the material put to the Tribunal with respect to the time Adrian spent with his father, the Tribunal is satisfied that Adrian spent time at his father's residence from 11 October to 7 November 1999 and that at no time during this period was he in the applicant's care for more than four consecutive days.  The Tribunal is satisfied that the intermittent nature and extent of Adrian's stay with his father does not confer to Mr. Rytir a right of daily care and control of Adrian.

5. After careful consideration of all the material before it and the submissions of the parties involved, the Tribunal is satisfied, pursuant to the Act, that during the period in question, Adrian was not a dependent child of the applicant.

6. The Tribunal therefore affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. I. R. Way, Member.

Signed:         .....................................................................................
  Associate

Date/s of Hearing  30 March 2001
Date of Decision  8 May 2001
Applicant  Mr. Rytir, himself          
Counsel for First Respondent  Ms. E. Hampton
Second Respondent                Ms. Rytir, herself