VJEKOSLAV KRANJCIC and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 552

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 552

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6014

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VJEKOSLAV KRANJCIC

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member

Date23 July 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd]..............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Whether applicant is principal carer of his son – Degree of custody, care and control – Status quo to be maintained – Decision affirmed.

Social Security Act 1991 (Cth) s 5

Alan John Guyder v Secretary, Department of Social Security & Anor [1998] FCA 420

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Herbst and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 416

Vidler v Department of Social Security & Ashford (1995) 61 FLR 370

REASONS FOR DECISION

23 July 2010 Dr K S Levy RFD, Senior Member           

INTRODUCTION

1.      The applicant, Vjekoslav Kranjcic is a divorced man and the father of one child to his former wife.  Mr Kranjcic and his wife are the subject of an order of the Federal Magistrates Court dated 9 August 2004 ordering equal custody to both parents.  The applicant’s former wife has been in receipt of parenting payments since 26 January 2003 and has been regarded as the principal carer.  Mr Kranjcic moved to Toowoomba on 29 October 2004 in order to have access to his child and to comply with the court order.

2.      The background to this application is that on 25 January 2008, Mr Kranjcic applied for newstart allowance and claimed he was the principal carer of his son.  On 31 January 2008, he was granted newstart allowance with effect from 23 January 2008.  Since that date, he was paid on the basis of having a dependent child.  On 10 December 2008, Centrelink determined that the applicant is not the principal carer and therefore has no concession entitlements in relation to job search requirements.  That decision was reviewed on 16 February 2009 and was affirmed.  It was further reviewed by an authorised review officer (ARO) which again affirmed the original decision on 15 May 2009.  The applicant appealed to the Social Security Appeals Tribunal (SSAT) which affirmed the decision on 18 November 2009.

3.Mr Kranjcic now appeals to this Tribunal for further review.

ISSUE

4.      The issue to be determined by this Tribunal is whether Mr Kranjcic was the “principal carer” of his son at the time of the original decision on 10 December 2008?

EVIDENCE

5.      The applicant gave evidence at the Tribunal and had a detailed statement of his position and his claims to being principal carer, vis a vis that of his former wife.  The applicant argued that if he is made principal carer, he may be entitled to allowances and compensation which he is not presently eligible for.  He has a son who is now 14 years old and the applicant told of the expenses which he incurs on behalf of his son.  In addition, he pointed out that given his income from doing part-time work, he makes only a relatively small amount more than his wife annually, who gets parenting payment and other sundry allowances.

6.      Mr Kranjcic was self represented and had an interpreter provided. However, he chose to speak in English himself without the aid of the interpreter. 

7.      The applicant maintains that he has been a responsible parent and taken a larger share of the parenting responsibilities than his former wife.  He provided a reference from the Railway Kindergarten in support of himself.  He has a credit card debt although this is not from squandering money on “gambling” or like activities but rather, from basic living expenses for his son.

8.      The applicant stated that he had moved to Toowoomba from the Gold Coast in order to more easily comply with the order of the Federal Magistrates Court and to share in the equal custody of his son.  However, he is an electronics technician and has not had work in that occupation in the last three years in Toowoomba.  He suggested that his wife gets social security benefits as the principal carer and can find work more easily and also is able to study and obtain skills to make herself more marketable for future employment.  The applicant has also spoken to members of Parliament in an endeavour to change the legislation to make it fairer.

9.      Ms Lukenda, Mr Kranjcic’s former wife, had been invited to become a party to the proceeding but had not responded and did not give evidence at the hearing.

CONSIDERATION

10. The relevant law in deciding this matter is contained in s 5 of the Social Security Act 1991 (Cth) (the Act). Subsections 18 and 19 of that section are the relevant provisions. Section 5(18) specifies that there can only be one principal carer at a time for a child. Section 5(19) specifies that if two or more adults would be principal carers of the same child, then the Secretary must make a written determination specifying one of the adults is the principal carer and provide a copy of that determination to each of the relevant adults.

11.     In order to make a written determination in accordance with the legislative provisions, a wider explanation of the application of the law is contained in the Guide to Social Security Law.  While that is not binding on the Tribunal in a strict sense, it has been held by the Full Court of the Federal Court that such policy should be followed unless there are ample reasons for not doing so (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

12.     The policy guidelines are contained at 1.1.P.416 which provides for situations of equal care by two carers.  Relevantly, it states as follows:

…

If both carers are claiming or receiving income support, the carer who is most in need of a favourable determination should be deemed 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 …

·      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.

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

Example:  rent, childcare,

·      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.

findings of fact

13.     I make the following findings of fact:

(1)The applicant and his wife share equally the custody and care of their son.

(2)The former wife, Ms Lukenda has received parenting payment since 26 January 2003.

(3)Mr Kranjcic has not claimed parenting payment.  He has claimed newstart allowance and various other concession cards and benefits.

(4)The applicant has since been granted a pensioner concession card.

(5)The applicant is entitled to newstart allowance (including pharmaceutical allowance) but this is discounted by the amount of income he receives from work.  Ms Lukenda receives parenting payment (including pharmaceutical allowance).

14.     Of the mandatory factors above:

(1)      Ms Lukenda has been qualified as principal carer since 2003.

(2)Ms Lukenda is the only party eligible for parenting payment.  Mr Kranjcic is not eligible and has not applied for parenting payment.

(3)As Mr Kranjcic has had business income, he is entitled to a lesser rate of social security payment in the form of newstart allowance.

(4)Ms Lukenda did not give evidence and it is therefore not known what other income she has.  The applicant suggested she has some additional income.

(5)Mr Kranjcic and Ms Lukenda would seem to only have a basic level of assets and on the basis of the evidence, neither party could be seen to be in an advantaged position.

15.     In relation to the discretionary factors provided for in the policy guide, evidence of the applicant’s expenses were provided in some detail.  As Ms Lukenda was not called and did not give evidence, it is not possible to make any assessment of her position in comparison to that of the applicant.  Consequently, I do not rely on any of the discretionary factors but rather place weight on a consideration of the mandatory factors (see also Senior Member Carstairs in Re Herbst and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 416).

how should these factors be assessed?

16.     It was submitted on behalf of the Secretary that Courts and Tribunals have traditionally decided cases such as this on the basis of financial need (Alan John Guyder v Secretary Department of Social Security & Anor [1998] FCA 420). That decision was based on the earlier judgment of O’Loughlin J in Vidler v Department of Social Security (1995) 61 FLR 370, where His Honour said such difficult decisions are really a question of fact and degree about which party should have greater rights of custody, care and control.

17.     The Guide has set out the criteria for decision-making.  Ms Lukenda has been on social security benefits for a much longer period of time than the applicant.  He also has a larger income, because he also has had some work in his business, in addition to some newstart allowance.  No other factor differentiates the parties.  The evidence of the applicant in relation to his wife cannot be given very much weight as she was not subpoenaed or called to give evidence and consequently it would be unfair to place very much weight on adverse evidence to Ms Lukenda without her having been heard.  In those circumstances, the Guide specifies that the ‘status quo’ should be maintained.

18.     Therefore, in this case, the law must be decided in favour of Ms Lukenda, or in other words, the status quo should remain.  There can always be some apparent inequities in social security matters as alluded to by the applicant.  However, unless Parliament changes the law, the Tribunal cannot provide relief to Mr Kranjcic on the basis of the evidence presented.

19.     The decision under review is therefore affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed:.................[Sgd].............................................................
              Kate Slack, Research Associate

Date/s of Hearing  6 July 2010
Date of Decision  23 July 2010
Applicant was self-represented
Solicitor for the Respondent     Joe Guthrie, departmental advocate