Shehu and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 191

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 191

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4048

GENERAL ADMINISTRATIVE DIVISION		)
Re		TONY SHEHU

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

And          DONIKA KRASNIQI

Other Party

DECISION

Tribunal Deputy President D G Jarvis

Date23 March 2011

PlaceAdelaide

Decision

The tribunal:

(a) remits the decision under review to the respondent for reconsideration in accordance with these reasons pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth);

(b)      reserves liberty to apply within 28 days in relation to the period within which the decision under review is to be determined; and

(c)       directs that in the absence of any such application, the decision under review is to be reconsidered on or before 28 April 2011.

D G Jarvis
  ...[Signed]…
     Deputy President

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – parenting payment (single) – equal percentage of care of children – determination of which parent was principal carer – psychological conditions affecting father’s capacity for employment – decision under review remitted to respondent for further consideration.

Social Security Act 1999 (Cth), s 5(19)

R v Australian Broadcasting Tribunal and Others; Ex parte 2HD Pty Ltd (1979) 144 CLR 45

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

REASONS FOR DECISION

23 March 2011   Deputy President D G Jarvis

1.      The Applicant, Tony Shehu, and the Other Party, Donika Krasniqi, are the parents of two children aged 8 and 6.  Early in 2010 they were having difficulties with their relationship, and they separated.

2.      On 17 February 2010 Ms Krasniqi claimed and was granted Parenting Payment (Single) (PPS) on the basis that she was the principal carer of the two children.  She has continued to receive PPS since then.  On 20 May 2010, Mr Shehu claimed and was granted PPS until 10 June 2010, when his PPS payments were cancelled because on the basis of a recent court order, Centrelink decided that Mr Shehu had ceased to be the principal carer of the children and therefore was not qualified to receive PPS.

3.      The decision to cancel Mr Shehu’s PPS was affirmed by the primary decision-maker and by an authorised review officer, and later by the Social Security Appeals Tribunal (SSAT).  Mr Shehu has applied to this tribunal for review of the decision of the SSAT.

Issues before the Tribunal

4.      The issue before the tribunal is whether Mr Shehu was the principal carer of the children during the whole or any part of the period from 20 May 2010 to date.

Background

5.      The parties entered into a de facto relationship in the year 2000.  Mr Shehu had purchased a house at Findon, and some months later Ms Krasniqi moved in.  They continued living together until the year 2007, when they separated for a time.  There was an agreed property settlement, but after that the parties reconciled.

6.      Difficulties with their relationship again developed, and the police became involved.  On 9 March 2010 Ms Krasniqi was arrested for allegedly assaulting Mr Shehu.  She was released subject to bail conditions.

7.      On 10 April 2010 there was another altercation between the parties, and Ms Krasniqi was arrested for breach of bail.  She was subsequently released on bail to appear in the Port Adelaide Magistrates Court in June 2010.  Her conditions of bail included an agreement on her part that she would not attend at the address of the home at Findon except on one occasion in the presence of police for the purpose of obtaining clothing and personal property, that she would reside at another address that was stated, and that she would only be allowed to contact Mr Shehu by telephone and solely for the purpose of checking the welfare and visitation of their children.

8.      Mr Shehu gave evidence that the parties had effectively separated on 29 March 2010, when he began sleeping at the back of the house on a sun lounge, and took steps to lock the back door of the house so that Ms Krasniqi and the children could not go to the back area where he was sleeping.  Ms Krasniqi claimed that Mr Shehu had started sleeping outside the house, including in his car, before this, although she was not able to say precisely when this started.  It is, however, clear that from and after 10 April 2010 Ms Krasniqi was required by the bail conditions to live separately from Mr Shehu, and that she has done so ever since then.  I find that the parties separated no later than 10 April 2010.

9.      Ms Krasniqi instituted proceedings in the Federal Magistrates Court, and on 28 April 2010, an order was made by consent for the children to live and spend time with Ms Krasniqi on weekends and on Wednesdays commencing from 6 May 2010, but otherwise for the children to live with Mr Shehu (exhibit R1, T8, page 60).  This order was varied on 19 May 2010 when the proceedings were adjourned until 31 May 2010 on the basis that the children would spend time with Ms Krasniqi only for nominated hours on Saturdays (exhibit R1, T9, page 73).

10.     On 31 May 2010, an order was made by consent for the children to live with Ms Krasniqi from Wednesday, 2 June 2010 until the following Wednesday, and each alternate week thereafter, and the children were to live with Mr Shehu at all other times (exhibit R4).  Each party accordingly had 50% of the care of the children from 2 June 2010 onwards.  However, the situation changed again in November 2010.  This change was the result of a further order made on 17 November 2010 whereby during school term time, the children were to spend time with Mr Shehu from the conclusion of school on Thursday to the commencement of school on Monday in each alternate week commencing on 11 November 2010, and from the conclusion of school on Friday to 10:00 am on Saturday morning in the intervening week commencing on 19 November 2010.  It was further ordered that during each school holiday period the children would spend an equal amount of time with each parent (exhibit A7).

11.     Mr Shehu gave evidence that he is a fitter and turner by trade, and had previously worked for about five years for Gilbarco Veeder-Root, a company that manufactures and services petrol bowsers.  He had previously worked for Sheridan Australia, and before that again, for General Motors Holden, where he had completed his apprenticeship.  He said that from about February 2010 onwards, he used up accrued holiday leave, and arranged with his employer to work reduced hours of three to four hours a day, to enable him to take the children to school, and because there were legal appointments and quite a few things happening related to Family Court matters.  He continued working on this basis until about June or July, when his employment was terminated.  He has not worked since, and has been receiving Newstart allowance.

12.     Mr Shehu also gave evidence that from the beginning of the 2010 breakdown in his relationship with Ms Krasniqi, he started to go “downhill” with depression and that affected his whole outlook, and led to the termination of his employment.  He said that his depression became progressively worse.  He was referred by his general practitioner to a psychologist, a Mr Paul Cafarella, and he has been seeing him every month to six weeks.  He said that he was not coping towards the end of the period of his employment, and took time off work for depression and anxiety.

13.     Mr Cafarella gave evidence by telephone.  He said that he had been treating Mr Shehu since 27 February 2010, and had diagnosed him as suffering from an adjustment disorder with a depressed and anxious mood.  Mr Cafarella said that at times Mr Shehu was diagnosed as suffering from a major depressive order and generalised anxiety disorder, and that anxiety was the most overwhelming aspect of his presentation.  He thought that Mr Shehu had been struggling to keep up with his employment, and was aware that Mr Shehu had later stopped working, although he was not sure when.  He said that although there had been some improvement, for example with the ability to cope with some social requirements, his symptoms were quite severe and it was unlikely that he would be able to maintain a job.  In a written report dated 25 January 2011, Mr Cafarella had expressed the opinion that anxiety and depression remained at clinically significant levels, and that Mr Shehu’s capacity to work had “clearly been very limited as a consequence” (exhibit A2).

14.     Mr Shehu has nominal assets, comprising financial investments estimated to be worth $200 and other assets worth $1,000 (exhibit R10).  He has accrued debts and has given authority for deductions to be made of $80.00 per fortnight from his Newstart allowance payments, in order to pay the amount he owes to utilities.  During the period from the fortnight ended 9 July 2010 until 12 November 2010 he received Newstart allowance, and family tax benefit, and the total income support he was receiving was approximately $700 per fortnight gross (exhibit R1, T15 page 99).

15.      Mr Shehu said that he also owes substantial amounts to Harris Scarfe and in respect of a personal loan that he took out to cover some credit card debts.  He has produced records indicating that his total indebtedness in respect of these matters is a further $25,000 in round figures (exhibit A9).

16.     The Findon home where the parties cohabited remained in Mr Shehu’s name, but it was refinanced on three occasions, firstly so that the property settlement could be paid to Ms Krasniqi following the parties’ separation in 2007, and later to enable the parties to obtain further advances.  While the title of the property remained in Mr Shehu’s name, Ms Krasniqi became jointly responsible for the mortgage following subsequent refinancing.  Following the breakdown in the parties’ relationship in 2010, the mortgage fell into arrears and the property was sold, with settlement occurring in December 2010.  The net proceeds of sale of $151,488.26 are held in trust, pending a property settlement between the parties (see exhibit A6).

17.     Ms Krasniqi gave evidence that she is employed by Bendigo Bank and has a permanent part-time position for 15 hours a week, working on Thursdays and Fridays and every second Saturday.  On occasions she works longer hours, depending on whether extra hours are available.  Ms Krasniqi said that she took three months unpaid leave from April 2010, and did not go back to work until about August 2010.  It appears from Centrelink records that she in fact returned to work in the fortnight ending 13 July 2010, and her earnings in succeeding fortnights are recorded in exhibit R12.  In addition to those earnings, Ms Krasniqi received income support payments from Centrelink, and particulars of these payments are shown in exhibit R1, T16, pages 127-131.  Following the events of 10 April 2010, Ms Krasniqi went to live with her sister for two months, but since then she has been renting a property at a cost of $290 per week.  In April 2010, she purchased a Nissan X-Trail vehicle at a cost of $25,000 less a trade-in of $12,000 for her Holden Astra motor vehicle.  She is paying off the difference at the rate of $320 per month.

18.     Ms Krasniqi said that it was necessary for her to buy equipment for her rental property, including furniture in the form of a couch, a dining table, a small TV, a fridge, and beds for her children and herself.  In addition, she said that she had to buy towels and dishes, and medication for her children.

19.     According to Centrelink’s records, Ms Krasniqi’s assets comprise financial investments, including shares, of $4,323 as at 15 February 2011, and an interest in real estate, being the Findon home.  This interest now comprises her claim to a share of the net proceeds of sale of the home (see paragraph 16 above).

20.     Both parties claim that they have further debts.  They gave evidence that money was paid to them by a mutual friend referred to as Susie.  She paid the children’s school fees for the 2010 year and these amounted to $2,600.  They said that Susie also paid further amounts to them, and she did this because she had received a substantial inheritance and she was assisting them, in common with other friends of hers.  Mr Shehu produced a bank statement (exhibit A12) which indicates that cheques totalling $10,500 were received from Susie in January 2010.  Ms Krasniqi said that the school fees were a loan, which she is repaying, and said that other amounts that they had received from Susie were also a loan, and had to be repaid.  After Ms Krasniqi was shown the figures appearing in the bank statement, she said (for the first time) that the amounts paid by Susie were paid in return for work done by Mr Shehu at properties owned by Susie or her parents.  Mr Shehu admitted that he had done some minor work for Susie, but maintained that the payments that she had made were gifts, and that Ms Krasniqi had received the benefit of these, as well as the benefit of other gifts in kind from Susie.

21.     Mr Shehu also claims that he is indebted to his parents in the sum of $50,000, which they had lent him at the time when he purchased the Findon home.  He claims that the amount owing is $50,000, and produced two letters from a legal firm referring to this loan.  The first letter refers to a figure of $20,000.  The second letter says that that figure was a typographical error, and the figure should have been $50,000 (see exhibit A10).  Ms Krasniqi disputes the figure of $50,000 and that Mr Shehu is liable to repay any loan from his parents.

22.     As a general comment, I have reservations about the reliability of Ms Krasniqi’s evidence.  For example, her account of the events that occurred after she was released from custody on 10 April 2010 was confused and contradictory.  By contrast, Mr Shehu gave his evidence carefully and unemotionally.  The parties’ evidence varied in many respects, but most of the differences between their evidence are not relevant to the issues that have arisen in the present proceedings.

Legislative Framework

23. Section 500 of the Social Security Act 1991 (Cth) (the SS Act) provides that a person is eligible for parenting payment if the person has at least one PP child.

24. Under s 500D(2) of the SS Act, a child is a PP child of a person if certain criteria are met. This section provides as follows:

“500D(2)  A child is a PP child of a person 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.”

25.     Section 5(15) provides that a person is the principal carer of a child if the child is a dependent child of a person, and the child has not turned 16.  Section 5(2) provides for the circumstances where a child is a dependent child; this subsection applies where a child has not turned 16 and where an adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the child, and the child is in the adult’s care.

26. Section 5(18) of the SS Act provides that only one person at a time can be the principal carer of a particular child, and s 5(19) provides that a determination must be made of which of two or more persons is the principal carer of the child. Section 5(19) provides as follows:

“(19)  If the Secretary is satisfied that, but for subsection (18), 2 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.”

27. Section 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that the Secretary must cancel or suspend a payment if satisfied that a social security payment is being, or has been, paid to a person who is not, or was not, qualified for the payment, or to whom the pay is not, or was not, payable.

Consideration

28.     It is clear that Mr Shehu was the principal carer of the children during the period from 20 May 2010 to 2 June 2010.  This follows from the court orders to which I have referred above as to the percentage care which the parties were to have of the children.  However, in the period from 2 June 2010 to 8 November 2010, the percentage of care of each party was 50%, by virtue of the order of the Federal Magistrates Court made on 31 May 2010.

29.     As mentioned above, this position was changed by the order dated 17 November 2010.  Mr Shehu tendered a letter from the Child Support Agency advising that as from 8 November 2010, Mr Shehu’s percentage care had reduced to 38% (exhibit A8), and it follows that Ms Krasniqi’s percentage care from that date became 62%.  The parties accepted this position.

30.     It remains necessary to determine which person was the principal carer of the children during the period from 2 June to 11 November 2010.  It is common ground that Mr Shehu and Ms Krasniqi are the children’s parents, that they separated prior to the above period, and that they were not members of a couple during that period.

31. While the SS Act provides that only one person at a time can be the principal carer of a particular child, the Act does not provide guidance as to how to determine which of two carers is the principal carer. The High Court of Australia considered the proper approach to interpretation where a statutory discretion was conferred in unlimited terms in R v Australian Broadcasting Tribunal and Others; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50. The court said that the general rule is that a discretion expressed without any qualification is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the statute. However, while that principle is frequently helpful in arriving at the correct or preferable decision, it does not assist in the present case, where each party meets the requirements of eligibility to receive social security benefits.

32.     In Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461 Gyles J considered predecessor provisions of the SS Act relating to sole parent pension, in a case where the tribunal had to determine which of two parents was qualified for that pension. His Honour said, 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.”

33.     In the present matter, departmental guidelines are contained in the Guide to Social Security Law (the Guide), and I refer to the well-known discussion by Brennan J (as he then was) as to the use of Ministerial policy in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645. After referring to the advantages of decision-makers using policy documents, his Honour also said in effect that the tribunal would not apply the general policy if its application tended to produce an unjust decision in the circumstances of the particular case, but that cogent reasons would have to be shown before the policy would not be applied.

34.     Paragraph 1.1.P.416 Principal carer – shared care of the Guide provides as follows:

“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.

Example: Where care is shared 54/46% or 50/50%.

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 the 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 (see below for further detail on determinations involving more than one 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,

o    Note: 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.

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,

o    Example: Rent, child care,

·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.”

I will now consider such of the above criteria as are relevant to the present matter in relation to the period in dispute, that is, from 2 June to 7 November 2010.

35.     Who would receive the higher rate of payment  The first consideration relevant to the present matter is to determine which carer would receive the higher rate of payment.  The rates of payment are affected by the income of the carers, and are shown in exhibit R6.  During the period from the fortnight ending 27 July 2010 to the fortnight ending 16 November 2010, Ms Krasniqi’s income exceeded Mr Shehu’s income, and so Mr Shehu would receive the higher rate of PPS.

36.     Asset levels  The main asset of each carer is his or her potential interest in the net proceeds of sale of the home at Findon.  I am unable to determine the respective asset levels of each carer on the evidence before me, in the absence of a resolution of the competing claims to that asset.  However, I note that apart from that potential asset, Ms Krasniqi presumably has an equity in the X-Trail motor vehicle of at least $12,000, being the amount she received for the trade-in of her Astra motor car, and she has shares in her employer worth just over $4,000.

37.     Expenses of each carer  Ms Krasniqi had greater expenses than Mr Shehu during the relevant period, because she has been paying rent of $290 per week.  She is also paying off her X-Trail motor car, and has been making child support payments to Mr Shehu.  I have taken into account that Mr Shehu also has significant debts, but I think it likely that Ms Krasniqi’s expenses were greater than those of Mr Shehu, particularly in the early part of the above period, when she had to establish herself in new rental accommodation.  Ms Krasniqi claims that she was also repaying money lent to her by Susie, and that she had entered into a written agreement to do so.  However, she did not in her evidence quantify the amount allegedly owing, and I found her evidence as to this matter to be unreliable.  I prefer Mr Shehu’s evidence that the amounts paid by Susie were a gift, and that neither party is liable to repay the amounts that Susie paid to them. 

38.     Workforce experience, education levels and future employment prospects  There is no evidence before me of any significant difference between the parties as to their work force experience or education levels.  However, Ms Krasniqi was gainfully employed during the above period, and during parts of the period was able to work for significant extra hours, so that her fortnightly earnings were significantly higher than those of Mr Shehu.  The evidence before me as to the date of termination of Mr Shehu’s employment is unclear, but it appears that he did not work for most of the period.  I accept Mr Cafarella’s evidence as to the effect of Mr Shehu’s anxiety and depression on his working capacity, and find that his working capacity was significantly limited by his condition.

39.     Duration and status quo  I also take into account the duration during which each carer has been on income support, and that during the above period they were sharing care on an equal basis.  There appears to have been no substantial difference between the parties in relation to this criterion.  I am also mindful that any variation to the parties’ PPS would have retrospective effect, and any entitlement in favour of Mr Shehu would result in a debt being raised against Ms Krasniqi for overpayment of PPS.  This criterion would point to maintaining the status quo.

40.     Other factors  Early in the above period Ms Krasniqi had to furnish and equip her rented house.  Some of this expense could, perhaps, have been avoided if Mr Shehu had provided her with some furniture or other equipment from the Findon home.  As matters eventuated, he apparently discarded various items in December 2010 during a hard rubbish collection by the local council, notwithstanding that Ms Krasniqi might have been able to use some of the items concerned.  I also note that to an extent, Ms Krasniqi has been responsible for her own financial difficulties because I think it was imprudent for her to have incurred additional ongoing expenses by purchasing a dearer motor vehicle.

Conclusion

41.     My above analysis indicates that some of the matters referred to in the Guide indicate that Mr Shehu should be regarded as the principal carer of the children, but other considerations indicate that Ms Krasniqi should continue to be regarded as the principal carer, at least during some parts of the period under consideration.  By the commencement of the fortnight ended 7 September 2010, Ms Krasniqi would have been well established in her new rental accommodation, and due to the extra hours of work that she obtained from then until the fortnight ended 19 October 2010, her financial position was significantly better than Mr Shehu’s, having regard to the effects of his psychological condition on his ability to work.  After weighing up and carefully balancing the considerations referred to in the Guide, I conclude that Mr Shehu should be regarded as the principal carer of the children during the four fortnightly periods ended 7 September 2010 to 19 October 2010 inclusive.  However, I also consider that Ms Krasniqi should continue to be regarded as the principal carer of the children during the remainder of the period from 2 June 2010 onwards (that is, with the exception of the above four fortnightly periods).

42. As mentioned above, Mr Shehu accepted that the effect of the order made by the Federal Magistrates Court in November 2010 was that Ms Krasniqi became the principal carer of the children as from 11 November 2010. I find that that situation was not affected by the fact that during school holidays, each party was entitled to equal care of the children. The periods of equal care during school holidays should properly be regarded as temporary variations to the basis of the sharing of care that would not affect Ms Krasniqi’s position as the principal carer of the children. Indeed, under s 5(17) of the SS Act, a child is taken to remain in the care of the principal carer, notwithstanding that the child leaves that person’s care and becomes the dependent of another person for a period not exceeding eight weeks. Paragraph 1.1.P.412 Principal carer of the Guide refers to a child going to stay with the parent who is not his or her normal carer during school holidays as an example of a situation where the first person is deemed to continue to be the principal carer, notwithstanding the child’s absence for up to eight weeks.

Decision

43.     The tribunal:

(a)remits the decision under review to the respondent for reconsideration in accordance with these reasons pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth);

(b)reserves liberty to apply within 28 days in relation to the period within which the decision under review is to be determined; and

(c)directs that in the absence of any such application, the decision under review is to be reconsidered on or before 28 April 2011.

I certify that the 43 preceding paragraphs are a true copy
of the reasons for the decision herein
of Deputy President D G Jarvis

…[Signed]…
Associate

Date/s of Hearing  16 February and 9 March 2011 
Date of Decision  23 March 2011
Applicant  Appeared in person
Other Party  Appeared in person 
Advocate for the Respondent   Ms L Giaretto
Solicitor for the Respondent     Centrelink Advocacy Branch