Secretary, Department of Family and Community Services v Holmes
[2000] FCA 513
•20 APRIL 2000
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Family & Community Services v Holmes
[2000] FCA 513SOCIAL WELFARE AND SERVICES – benefits – Sole Parent Pension and Parenting Pension Single – where Tribunal in reviewing a decision considers a different application and grant a different kind of benefit following change of benefit by repeal and further enactment – where Tribunal substituted a decision of eligibility for a Single Parent Pension with eligibility for the Parenting payment – whether the Tribunal made an error in law by finding the father with minority share of care and control of relevant children eligible for Sole Parent Pension – whether the Tribunal erred in taking into account the financial position of both parents
ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – where operation of s 8 of the Acts Interpretation Act 1901 kept the appeal to the Social Security Appeals Tribunal on foot as well as the right to review the result of any such appeal in the Administrative Appeals Tribunal – limits to power to act on substituted provisions after repeal
Administrative Appeals Tribunal Act 1975 ss 43, 44
Social Security Act 1991 ss 250, 251, 1253, 1255, 1293
Social Security Legislation Amendment (Parenting & Other Measures) Act 1997
Acts Interpretation Act 1901 (Cth) s 8Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 followed
Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 cited
Esber v Commonwealth (1992) 174 CLR 430 applied
Secretary, Department of Social Security v Lowe (1999) 56 ALD 609 referred to
Guyder v Secretary, Department of Social Security (1998) 49 ALD 13 referred to
Vidler v Department of Social Security (1995) 61 FCR 370 referred to
O’Sullivan v Farrer (1989) 168 CLR 210 cited
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 citedSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v GREGORY HOLMES
N 1377 OF 1999GYLES J
SYDNEY
20 APRIL 2000
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1377 OF 1999
BETWEEN:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
APPLICANTAND:
GREGORY HOLMES
RESPONDENTJUDGE:
GYLES J
DATE OF ORDER:
20 APRIL 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Administrative Appeals Tribunal of 19 October 1999 setting aside the decision of the Social Security Appeals Tribunal of 29 October 1998 be set aside.
3.The matter is remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
4.The operation of Orders 1, 2 and 3 to be stayed up to and including 19 May 2000.
5.A copy of this judgment be served upon Ms Robyn Passmore by the applicant on or before 10 May 2000.
6.Liberty to apply on three days’ notice as to any matter arising out of Orders 4 and 5.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1377 OF 1999
BETWEEN:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
APPLICANTAND:
GREGORY HOLMES
RESPONDENT
JUDGE:
GYLES J
DATE:
20 APRIL 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) from a decision of the Administrative Appeals Tribunal of 19 October 1999 setting aside a decision of the Social Security Appeals Tribunal made on 29 October 1998 whereby it affirmed a decision of a delegate of the Secretary to the Department of Social Security rejecting a claim by the respondent, Gregory Holmes, for Sole Parent Pension, and substituting a decision that Mr Holmes is eligible for Parenting Payment.
In December 1997, Mr Holmes made a claim for Sole Parent Pension pursuant to the Social Security Act 1991 (“the Act”). On 24 December 1997 the delegate of the Secretary, Department of Family and Community Services (“the Department”) rejected the claim, advising Mr Holmes by letter dated 30 December 1997. Mr Holmes sought a reconsideration of this decision, but it was affirmed on 9 January 1998. Mr Holmes then sought a review with an authorised review officer on 23 January 1998, but the decision to reject his claim was affirmed by letter dated 28 January 1998. On 4 February 1998 Mr Holmes lodged an appeal with the Social Security Appeals Tribunal. The appeal did not come on for hearing until 29 October 1998.
At the time the claim was made and rejected by the Department, Pt 2.6 of the Act governed Mr Holmes’ qualification for Sole Parent Pension. On 20 March 1998 Pt 2.6 was repealed by s 3 and Sch 1 item 79 of the Social Security Legislation Amendment (Parenting & Other Measures) Act 1997 (“the Amendment Act”). The Amendment Act inserted a new Pt 2.10 dealing with parenting payments and there were consequential amendments to various definitions and so on. Whilst the provisions of Pt 2.10 have substantial similarities with those of the repealed Pt 2.6, they are by no means identical. In the circumstances of this case, there is no relevant difference between the effect of s 250 and s 251 of Pt 2.6 on the one hand, and s 500D and s 500E of Pt 2.10 on the other.
The Social Security Appeals Tribunal dealt with the matter on the basis of Pt 2.6 being the applicable legislation. The Administrative Appeals Tribunal proceeded upon the basis that it could assess the claim on the basis of circumstances as at the date of the decision by it, and grant a Parenting Pension Single pursuant to Pt 2.10. This gives rise to the first, and principal, issue in the case.
It is submitted for the Department that the only jurisdiction which the Administrative Appeals Tribunal had was to review the decision of the Social Security Appeals Tribunal which, in turn, was reviewing the refusal of the claim for benefit which occurred on 19 December 1997 pursuant to Pt 2.6 of the Act as it then stood.
The starting point is to consider the position as it was at the time of the institution of the appeal to the Social Security Appeals Tribunal. Section 259 required a proper claim to be made for the Sole Parent Pension, and it is that claim which is determined by the Secretary (or the delegate of the Secretary) in accordance with s 266. Chapter 6 of the Act dealt with review of decisions. It has not changed in any material respect. Pt 6.1 (ss 1238 to 1244) deals with internal review and Pt 6.2 and Pt 6.3 (ss 1245 to 1281) deal with review by the Social Security Appeals Tribunal and the procedures for such review. The power being exercised by the Social Security Appeals Tribunal is relevantly in s 1253 which provides that the Tribunal must affirm the decision, vary the decision or set the decision aside and either substitute a new decision or send the matter back for reconsideration. For the purposes of reviewing a decision under the Act the Tribunal may exercise all the powers and discretions that are conferred by the Act on the Secretary. In the ordinary course, where the Social Security Appeals Tribunal varies the decision under review or sets aside the decision under review and substitutes a new decision, the decision as varied or the new decision is taken to have had effect on and from the day on which the decision under review had effect (s 1255(3)), although if application to the Social Security Appeals Tribunal is made more than three months after notice of the original decision then the varied or new decision takes effect from the day on which application was made (s 1255(4)).
Part 6.4 deals with review by the Administrative Appeals Tribunal. A combination of s 1293 of the Act together with s 43 of the AAT Act has the result that any decision by the Administrative Appeals Tribunal is effectively backdated to the date of the original decision in cases such as the present, and (by s 43 of the AAT Act) the Tribunal has power to exercise all powers and discretions that are conferred on the person who made the decision, but, as with the Social Security Appeals Tribunal, only for the purpose of reviewing a decision.
I was referred by Mr Reilly of counsel, for the Department, to a series of decisions in which it has been held that tribunals exercising this kind of jurisdiction are not empowered, in reviewing a decision, to consider a different application and grant a different kind of benefit, particularly where there are statutory provisions as to the method of making a claim, as in the present case (eg, s 40 and s 41). I need not do more than refer to the last of the decisions: Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513. The same point is emphasised by the recent decision of the High Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 at pars 33 to 36. I shall return to consider one possible gloss upon this principle, having looked more closely at the legislative scheme.
How, then, are these principles affected by the repeal of Pt 2.6? Counsel for the Department said that there was no express provision of the Amendment Act which governed what would happen where an appeal was on foot at the time of the repeal. So far as I can see, this is so. The savings and transitional provisions are contained in Sch 1A of the Amendment Act. The relevant parts of cl 105A of Sch 1A appear to be as follows:
“105A Parenting payment (changes introduced 20 March 1998)
Continuing effect of determinations etc. in force or effective before 20 March 1998
(1)If a determination, notice, statement or other instrument relating to sole parent pension or to parenting allowance was in force or had effect immediately before 20 March 1998, it continues in force on and after that date as if it had been made or given under this Act in relation to parenting payment.
Pending claims for sole parent pension or parenting allowance
(2)If:
(a)a person lodged a claim for sole parent pension or parenting allowance under this Act before 20 March 1998; and
(b)the claim was not determined before that date;
the claim has effect on and after that date as if it were a claim for parenting payment.
Claims made on or after 20 March 1998 in respect of periods before 20 March 1998 – sole parent pension and parenting allowance
(3)If:
(a)a person lodges a claim for sole parent pension or parenting allowance on or after 20 March 1998; and
(b)the claim is made in respect of a period commencing before 20 March 1998;
the claim has effect as if it had been made immediately before 20 March 1998.
Claims made on or after 20 March 1998 in respect of periods before 20 March 1998 – parenting payment
(4)If:
(a)a person lodges a claim for parenting payment on or after 20 March 1998; and
(b)the claim is made in respect of a period commencing before 20 March 1998;
the claim has effect:
(c)as if it had been made immediately before 20 March 1998; and
(d)in the case of a person who was not a member of a couple at the beginning of the period in respect of which the claim is made – as if it were a claim for sole parent pension; and
(e)in the case of a person who was a member of a couple at the beginning of the period in respect of which the claim is made – as if it were a claim for parenting allowance.
…”
It was submitted that the correct analysis was that the appeal which was on foot to the Social Security Appeals Tribunal was preserved by the operation of s 8 of the Acts Interpretation Act 1901 (Cth) as was the right to review the result of any such appeal in the Administrative Appeals Tribunal. If the appeal ultimately succeeded, then any decision would operate as and from December 1997. A Sole Parent Pension would be payable up until 20 March 1998 and from that date cl 105A of Sch 1A would operate and continue in force the Sole Parent Pension as a Parenting Payment. The first step in the argument appears to be sound (Esber v Commonwealth (1992) 174 CLR 430). The remaining steps in the argument accord with commonsense and are consistent with the language of the statute. I have relied heavily upon counsel for the Department in relation to these submissions. Mr Holmes is not represented, although he has had assistance in preparation of written submissions. In those submissions, the technical nature of the argument of the Department is highlighted, and it is said that in reality the two types of pension and the procedures for obtaining them are, in substance, identical. His submissions did not grapple with the detail of the matter. The Act is complex, and I do not pretend to comprehend all its niceties without the guidance of counsel. Not all of those niceties were, or realistically could be, discussed during submissions. The argument for the Department is, in one sense, or may be, helpful to Mr Holmes as, if he were successful, he would presumably obtain back payments from December 1997.
In any event, I can see no escape from the Department’s argument that the Administrative Appeals Tribunal’s first (and perhaps only) task was to examine the question as to whether the rejection of the claim for benefit in December 1997 was the correct decision on the merits of the case. Unfortunately, it directed attention to a quite different issue on quite different material. Whilst there is some ability to look at subsequent events, this is only to see what light they throw upon the actual question to be decided. The gloss that I mentioned earlier is reflected in the cases referred to by Weinberg J in Sharma (supra) in par 24 and par 31. The rather elusive notion referred to in these cases does not arise at the present stage of these proceedings, and may never arise. The matter must be returned to the Administrative Appeals Tribunal to be dealt with according to law.
It is necessary to deal with the other ground taken by the Department. It was submitted that the Administrative Appeals Tribunal erred in law in allowing a person with a minority share of the care and control of the relevant children to be granted a Sole Parent Pension. In order to deal with this argument, it is necessary to say something more about the facts of the case.
The relevant findings of the Social Security Appeals Tribunal were as follows:
“20.It is not in dispute that Mr Holmes has four dependant children who are also dependant on Mr Holmes’ ex-wife, Ms Robyn Passmore.
21.The tribunal finds that all four of the children are dependant on both adults, and that both Mr Holmes and Ms Passmore have equal right to make decisions about the children’s welfare. Ms Passmore however, has all four of the children in her care for more than 50% of the time. The tribunal reached this finding on the basis of the evidence of both Mr Holmes and Ms Passmore which was for the most part consistent on this point. This has been accepted by Centrelink who has made the decision to split the payment of family payment to Ms Passmore and Mr Holmes on a 60/40% basis respectively.
…
27.Having regard to this Federal Court Decision (Secretary, Department of Social Security v Wetter (1993) 40 FCR 22), the tribunal then considered whether Mr Holmes is wholly or substantially maintaining his children. Given that Ms Passmore has shared access with the children, and they are in her care more than 50% of the time, Mr Holmes cannot be said to be wholly maintaining his children. He does have the care of his children, however for approximately 40% of the time, and pays maintenance to his children through the Child Support Agency. Whilst it could therefore, be said that Mr Holmes is substantially maintaining his children, the tribunal concluded that Ms Passmore has a greater share in maintaining the children both physically and financially. This because she has them in her day-to-day care for a greater period of time.
28.It was the tribunal’s conclusion therefore that Mr Holmes’ four children are not SPP children of Mr Holmes. Even if the tribunal were satisfied that on certain pension paydays when the children are in Mr Holmes’ care, they are SPP children of Mr Holmes, subsection 251(2) comes into operation. This states that if the Secretary is satisfied that, but for this section (251), a young person would be a SPP child of two or more persons, the Secretary is to make a written determination of this and specify in the determination ‘the person whose SPP child the young person is to be’. Given the greater period of time that Ms Passmore has the children in her care, the tribunal is not satisfied that Mr Holmes and Ms Passmore’s children are SPP children of Mr Holmes.”
Sections 250 and 251 were as follows:
“SPP (sole parent pension) child
250.(1)A young person is an SPP child of another person (in this section called the “adult”) if:
(a)the young person is:
(i)a dependent child of the adult; or
(ii)a maintained child of the adult; and
(b)the young person:
(i)has not turned 16; or
(ii)is a child for whom the adult is qualified for child disability allowance; and
(c)the young person:
(i)is a natural or adopted child of the adult; or
(ii)is in the adult’s legal custody; or
(iii)if the adult has ever been a member of a couple – was being maintained by the adult immediately before the adult becomes a person to whom paragraph 249(1)(a) applies; or
(iv)has been wholly or substantially in the care and control of the adult for a period of at least 12 months immediately before the day on which the adult claims sole parent pension and is, in the Secretary’s opinion, likely to remain wholly or substantially in the adult’s care and control permanently or indefinitely.
Young person to be SPP child for only one person
251.(1)A young person can be an SPP child of only one person at a time.
251.(2)If the Secretary is satisfied that, but for this section, a young person would be an SPP child of 2 or more persons, the Secretary is to:
(a)make a written determination that the Secretary is satisfied that that is the case; and
(b)specify in the determination the person whose SPP child the young person is to be; and
(c)give each person a copy of the determination.”
It is clear that the Department’s position was that it would only take into account the degree of care and control exercised by Mr Holmes compared to his ex-wife, and that unless the degree of care that he gives to one or more of the children is more than that exercised by his ex-wife he could not qualify for Sole Parent Pension. That view is, in effect, repeated in the submissions for the Department on this issue. In particular, it was submitted that the Administrative Appeals Tribunal erred in law in taking into account the financial position of the respective parents.
The Administrative Appeals Tribunal held that such an approach was inconsistent with the decision of the Full Court in Secretary, Department of Social Security v Lowe (1999) 19 ALD 609, and with the decision of Foster J in Guyder v Secretary, Department of Social Security (1998) 49 ALD 13. These decisions expressly find no error of law in having regard to the respective financial situations of the competing claimants in a situation where s 251(2) is to be applied. Mr Reilly submitted that, when properly understood, these cases only authorise taking the financial circumstances of the parents into account when all other factors are completely equal. It appears that that was the factual situation in both Lowe and Guyder. Furthermore, Foster J in Guyder (at 13) accepted a summary of the decision of O’Loughlin J in Vidler v Department of Social Security (1995) 61 FCR 370 as:
“…in the end it is a question of fact and degree as to which parent has the greater degree of legal rights of custody, care and control or which party has the greater factual custody, care and control.”
Foster J certainly agreed that there had been no legal error in applying that test to the decision under s 251(2). That is a very different thing to elevating what was said in Vidler to a direction of law as to the meaning of the statute.
None of these decisions establish that there is legal error in not following the so-called Vidler test of deciding the question arising under s 251(2) solely on the basis of degree of care and control. In my opinion, to do so would not be justified as it would be to read into s 251(2) a criterion which is absent. Section 251(2) only comes into play in circumstances where, having regard to the criteria in s 250, the Secretary is satisfied that the young person would be an SPP child of two or more persons. That is the agreed situation here. 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 per Mason J at 39-42). 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. No error of law occurred in the present case. This ground of appeal fails.
The appeal will be allowed. The decision of the Administrative Appeals Tribunal setting aside the decision of the Social Security Appeals Tribunal will itself be set aside and the matter remitted to it to hear and determine according to law. As the applicant does not seek costs, no order for costs will be made.
I should advert to a matter not raised during argument. I note that the ex-wife of Mr Holmes was not a party to these proceedings although she was very properly a party below. This would normally have been a serious irregularity. However, as the result does no immediate harm to her situation, and as she will be a party below when the matter resumes there, the effect is perhaps not significant. However, I propose to suspend operation of the orders I propose to make up to and including 19 May 2000. I direct that in the meantime the applicant serve a copy of these proceedings and this judgment upon Ms Robyn Passmore on or before 10 May 2000, and that any application she may wish to make to be joined be made by motion before me before the expiration of the stay. In the absence of any such motion the suspension will simply expire. I grant liberty to apply as to this aspect of the matter on three days’ notice.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate:
Dated: 20 April 2000
Counsel for the Applicant: Mr T Reilly Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: The respondent represented himself Date of Hearing: 10 April 2000 Date of Judgment: 20 April 2000
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