Willocks and Department of Family and Community Services - [2001] AATA 885

DECISION AND REASONS FOR DECISION [2001] AATA 885

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/195

GENERAL ADMINISTRATIVE DIVISION         )
           Re      GREGORY WILLOCKS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

1st Respondent

And HELEN DEAN
2nd Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date24 October 2001
PlaceBrisbane

Decision The decision of the Social Security Appeals Tribunal dated 5 February 2001 is affirmed.

(Signed)
J Cowdroy
Member
CATCHWORDS
SOCIAL SECURITY – parenting payment – PP child – competing applicants

Social Security Act 1991 s 500

Secretary, Department of Social Security v Lowe (1999) 56 ALD 609
Guyder v Secretary, Department of Social Security (1998) 49 ALD 13
Secretary, Department of Family and Community Services v Holmes (2000) 59 ALD 77
Vidler v Secretary, Department of Social Security (1995) 41 ALD 261

REASONS FOR DECISION

24 October 2001 J Cowdroy, Member

By decision dated 5 February 2001, the Social Security Appeals Tribunal (SSAT) set aside a decision of Centrelink dated 17 July 2000 (as affirmed by an authorised review officer on 12 October 2000), to reject the applicant's claim for parenting payment.
An application for review of that decision by the Administrative Appeals Tribunal was received on 9 March 2001.
The Tribunal heard the matter on 11 September 2001. At issue was whether the applicant qualifies for parenting payment.
Mr L Hall of Noel Woodall and Associates Lawyers represented the applicant, Mr S Letch appeared on behalf of the 1st respondent and the 2nd respondent appeared in person.
Both the applicant and the 2nd respondent gave evidence to the Tribunal.

APPLICANT'S EVIDENCE

The applicant was married to the 2nd respondent on 10 August 1991. The marriage was dissolved in June of 1999. There are two children of the marriage, Stephen Leigh Willocks, born on 11 January 1992 and Shaun Douglas Willocks, born on 30 October 1995. Both boys currently attend Bokarina School. Stephen is in grade 4, and Shaun attends pre-school three days per week. The parties separated in March of 1998 when the applicant moved to Beerwah. The 2nd respondent and the two children continued to reside in the matrimonial home at Wurtulla.
When the applicant moved to Beerwah, he spent most weekends with the children and saw them after work. Some time later, he moved back to the matrimonial home and he continued to see the children on weekends and after school.
During this time, there was a verbal agreement in place that the children reside with their mother and the applicant could see the children as often as he desired. Between March and August 1998, the applicant was working as a farm hand, mostly on a part-time basis, however, he continued to see the children every weekend, and on some weekdays.
The applicant sustained a motor vehicle injury on 28 June 1994, as a result of which he injured his back. Medical reports from Dr G Anderson dated 8 May 1996 and Dr J Pentis dated 13 December 1995 (exhibit A2), were provided to the Tribunal in relation to the applicant's back condition which, it was said, made full- time work difficult to sustain.
The applicant met the mortgage payments on the former matrimonial home and met half the costs of expenses, such as school excursions. He said if the 2nd respondent asked him to make a contribution towards the children's expenses, he complied. Whilst the children were with him, he fed them and met any additional costs, such as medication, if required.
In July of 1998, the 2nd respondent commenced to live with a partner. Between July of 1998 and February of 1999, the applicant's contact with the children was reduced gradually to every second weekend, at the 2nd respondent's instigation.
Consent Orders were filed in the Family Court on 23 March 1999 for property settlement, residency and contact of the children. The terms of settlement (T5) apportion residency of the children in approximately equal shares to each parent.
In June of 1999, the applicant applied for parenting payment, which was granted. At that time, the arrangements set out in the Consent Orders were strictly adhered to. The applicant understood that the decision to pay parenting payment to him was made on the basis of the information contained in the Consent Orders.
In February of 2000, the applicant was informed that his parenting payment had been cancelled. This followed an application for parenting payment by the 2nd respondent, who was no longer partnered. He was informed that the decision was taken to pay parenting payment to the 2nd respondent on the basis that the percentage of care he provided (estimated at 43.6 per cent), was less than that provided by her. He applied for review of that decision unsuccessfully to the SSAT and he applied for review of the SSAT's decision to the Administrative Appeals Tribunal which was lodged out of time.
The applicant's evidence was to the effect that when the children resided with him, he accepted responsibility for parenting activities such as preparing and supervising their meals, overseeing their personal hygiene, as well as involvement in school activities, including contact with teachers, assistance with homework, etc. On a social level, he took the children to visit friends and to the park.
He re-applied for parenting payment in June of 2000 and his application was refused. Between the cancellation in February of 2000 and his application in June of 2000, he had discussions with Centrelink in an effort to have the percentage of care re-calculated. In particular, he contended that if the time the children spent at school was not taken into account, the percentage of time the children spent with each parent would produce different results.
The applicant contended that by calculating the time that the children were in his care, taking into account variations for school holidays, special days such as birthdays, Fathers day, Mothers day, Christmas and Easter periods, that the children were in his care for 45.58 per cent of the time.
He stated that although there were minor variations from time to time to the arrangements set out in the Consent Orders, their substance was substantially complied with, on the basis that the objective was to ensure that the children divided their time equally between each parent.
Earlier this year, both boys commenced playing rugby league. The applicant paid the sign on fees for both children, as well as other compulsory fees. He also purchased mouth guards and shorts, as well as being involved in fund raising activities for the football club, which involved sausage sizzles and selling raffle tickets.
The applicant attended every match for both children, except one day when they were playing at the same time. He attended their matches even when it was the 2nd respondent's weekend with the children. Additionally, he would attend training sessions on Tuesday and Thursday afternoons, if his work commitments permitted. The football season finished two weeks prior to the hearing.
The applicant stated that generally the 2nd respondent only attended football training when the children were residing with her, however she attended most of the matches.
He is currently unfit for work due to his back, in respect to which a medical certificate had been provided to Centrelink. He is keen to resume working, however his back condition is of such a nature that it would only permit him to undertake work on a part-time basis, in that he is only skilled in farm work, which is physically demanding.
He was paying child support of $50 per week up until February 2000, but his income reduced due to lack of work, and in February 2000, he received a nil assessment from the Child Support Agency. He has not paid child support since that time.
The applicant acknowledged that the 2nd respondent provided a standard of care commensurate with his own efforts. However, he contended that he expended considerably more time and energy in relation to the children's football activities and that if the time spent at football was taken into account, the applicant's percentage of care would be more than 45.58 per cent.
The applicant earns between $400-$450 per fortnight before tax on the basis of work 2 ½ days a week. This fluctuates according to the availability of work. He acknowledged that for the fortnight ended 19 December 2000 he earned $627. He acknowledged that he did not contribute to the children's expenses until this year.
2ND RESPONDENT'S EVIDENCE
The 2nd respondent applied for parenting payment in February of 2000. She had not lodged a claim earlier, as she was living with a partner. When she lodged her application, she was told Centrelink had been provided with a copy of the Family Court Consent Orders. She was aware that between June 1999 and February 2000, the applicant was receiving parenting payment. The 2nd respondent did not know whether the calculations of the time that each party spent with the children were correct. She did not agree that it was a 50/50 split. She believed that the proportion of time the children spent with her was 56 per cent, but acknowledged that that was a figure given to her by a Centrelink officer. In providing that calculation, the Centrelink officer had utilised the information set out in the Consent Orders.
The 2nd respondent believed that overall she spent more time with the children. Her evidence was that they enjoy fishing, going to the beach, riding pushbikes and visiting relatives. They also play Sony games and cards. Her fortnightly income is $390 parenting payment and $260 family payment. She does not receive any other form of financial support. She does not have a partner.
The 2nd respondent has not been employed at least since January 2000, when she worked part-time at Coles. On some occasions when she worked, she relied on friends to care for the children. Currently, she is not seeking work but may consider doing so when Shaun is older.
With respect to the financial responsibility for the children, the 2nd respondent paid the school levy, as well as the costs of schoolbooks, clothes, shoes, school excursions, haircuts, etc. The applicant had never paid for the children's haircuts, nor had he purchased any school items, shoes or clothes. She made the comment that the children went to the applicant's residence with what she provided and they returned with the same articles.
The 2nd respondent acknowledged that the applicant takes an active interest in the children and that he met the costs associated with their football activities. Her evidence was that the time spent at football was not relevant as both parents mostly attended. She acknowledged that the applicant attended training more frequently than she did.
APPLICANT'S SUBMISSIONS
Mr Hall for the applicant submitted that the Social Security Act 1991 (the Act) provided little guidance as to which parent should receive parenting payment. He pointed to the figure of 45.5 per cent found by the SSAT but argued that certain adjustments had not been taken into account. Mr Hall contended that whilst the 2nd respondent had suggested that she bore the major responsibility in terms of the costs associated with maintaining the children, she had no knowledge of what the applicant spent whilst the children were in his care.
Mr Hall submitted that there was a shared parenting arrangement. He pointed out that the applicant had been in receipt of parenting payment for some eight months. He drew the Tribunal's attention to the fact that the department had made a determination pursuant to section 500E of the Act that the applicant be granted parenting payment, and it had subsequently altered its determination without a valid basis.
Mr Hall argued that the applicant's capacity for work is limited by his back injury, whereas the 2nd respondent is in a position to find and retain work, if she chose to do so. He submitted that the applicant had the greater financial need in terms of the expenses related to the children. Mr Hall referred to the principles enunciated in the cases of Secretary, Department of Social Security v Lowe (1999) 56 ALD 609 and Guyder v Secretary, Department of Social Security (1998) 49 ALD 13. In particular, Guyder was authority for the proposition that it was appropriate to have regard to the respective financial needs of each parent in determining which should be the recipient of parenting payment. In the present case, it was argued that the applicant had the greater financial need.

1ST RESPONDENT'S SUBMISSIONS

Mr Letch for the 1st respondent submitted that both parents provided an admirable level of care and support for the children. He had calculated the level of care provided by the applicant as 45.17 per cent, consequently the children spent more time with the 2nd respondent.
Mr Letch pointed to the fact that the involvement of the applicant in football activities has only commenced this year. It was not appropriate in any event to designate the time the applicant spent at football as time spent in his care. He referred to the departmental guidelines (T29) which regard both parents as having an equal level of care provided the difference is not more than 10 per cent. In such circumstances, it was appropriate, having regard to the principles outlined in the cases of Lowe and Guyder, to have regard to the financial expenses borne by each parent.
The Tribunal was also referred to Secretary, Department of Family & Community Services v Holmes (2000) 59 ALD 77, where Gyles J, discussing section 251 of the Act, which has subsequently been repealed and effectively replaced by section 500E, stated that "(t)he section does not oblige the decision-maker to take any particular matter into account…"(at 83).
It was submitted that the 2nd respondent met all the school costs and the majority of other expenses for the children. This is attributable to the fact that the children reside with the 2nd respondent for a greater percentage of time than they reside with the applicant. Consequently, the children should be regarded as parenting payment children of the 2nd respondent.
CONCLUSION AND REASONS FOR DECISION
The qualification for parenting payment is set out in section 500 of the Act. Amongst other things, the person must have at least one PP child. According to section 500D(2), which relates to a person who is not a member of a couple:
"A 'PP' child in relation to a person who is not a member of a couple, is a child who:
(a)is a dependent child of the person (the 'adult') and
(b)either:
(i) has not turned 16; or
(ii)is a child for whom the adult is qualified for child disability allowance; and
(c)any of the following paragraphs apply:
(i) the child is a natural or adopted child of the adult; or ……"

The evidence is that, at the time of lodgment of claim for parenting payment, neither the applicant nor the 2nd respondent was a member of a couple.
The issue for consideration is whether the children, Stephen and Shaun Willocks, can be described as a "PP child" of either or both the applicant and the 2nd respondent.
Clearly, (b)(i) and (c)(i) are met, in that both children are under the age of 16 years, and they are the natural children of the applicant and the 2nd respondent. That leaves consideration of (a), namely, whether the children are dependent children of either the applicant or the 2nd respondent.
The term "dependent child" is defined in section 5(2) of the Act. It states:
"A young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if:
(a)the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care ….."
In terms of legal responsibility, the Consent Orders state that residency and contact of the children "is to be as agreed between the parties, but in the absence of agreement residence and contact is to be determined by the following provisions of these Consent Orders" (T5-23). Therein follows a timetable, which sets out the residency of the children and telephone contact by each parent with the children, together with specific provisions for school holidays, Christmas holidays, birthdays, Mothers Day, Fathers Day and Easter.
Having perused the Consent Orders, it appears that their essence is to give each parent the legal right (jointly with each other), to care and control of the children. The words "care and control" are, to all intents and purposes, synonymous with the terms "day to day care, welfare and development of the children".
That being the case, the first test, which refers to legal responsibilities, is met by both the applicant and the 2nd respondent. With respect to whether the "young person is in the adult's care", which has been described by O'Loughlin J in Vidler v Secretary, Department of Social Security (1995) 41 ALD 261 at 264 as "the factual circumstances", the evidence of the applicant and the 2nd respondent is that the terms of the Consent Orders are adhered to, with some minor variations from time to time.
The arguments of Mr Hall embraced the concept that regard should be had to the time that the applicant spent with the children at football, irrespective of who the children were residing with at any particular time. The applicant's evidence was that the children are under his care and control for 45.58 per cent of the time, to which should be added the time spent at football training. I am not persuaded that it is appropriate to have regard to the time spent by the applicant in attending football activities on those weeks when the children are in the care of the mother. I find such an argument unattractive and an unrealistic approach to deciding whether children are in the particular parent's control.
I am also mindful of the comments of Burchett, Kiefel and Hely JJ in Lowe at 613, wherein it was said:
"It is wrong to regard these words ('the young person is in the adult's care'), as requiring the adult's immediate physical presence at all times over a period of a fortnight, or any other period. …. While a child is at school, or in hospital, or staying with a relative, the child may remain, in a perfectly intelligible sense, 'in the …. Care' of a parent or parents."

It would be wrong to conclude that on the occasions when the children attended football training while they were resident with the 2nd respondent, that the presence of the applicant and the non-presence of the 2nd respondent meant that the children were not in the care of the 2nd respondent.

Mr Hall also contended that due to the applicant's involvement in football activities, he expended more time and energy with the children. I do not see how I can meaningfully differentiate between the input into the children's development and welfare by the 2nd respondent in riding pushbikes to the beach with the children, as against the applicant's football activities.
Further, whilst Mr Hall urged the Tribunal to take into account the financial circumstances of both parties and find that the applicant is in the greater need, I do not believe I am able to have regard to such considerations, unless a determination has first been made that the children are PP children of both parents.

50.In other words, section 500E(2) of the Act only falls for consideration in circumstances where a finding has been made that the dependent children are PP children of both parties.
51.The wording of the Consent Orders and the practical implementation of them results in the children spending a marginally greater period of time with the 2nd respondent than they do with the applicant. However, the disparity is not of such a nature that it would disentitle the children from fitting the definition of a 'dependent child' of the applicant, within the meaning of that term in section 5(2). Indeed, neither the 1st or 2nd respondents contended that the children would not be PP children of the applicant.

52.I find that both the children are PP children of the applicant and the 2nd respondent in that they both meet the criteria set out in the Act. In so finding, I have had regard to the fact that there is an established pattern of care and control by both parents, alternating every few days.
53.The Tribunal then must consider section 500(E)(1) of the Act, which states that a child can be a PP child of only one person at a time. Regard must also be had to section 500(E)(2) which states:
"If the Secretary is satisfied that, but for this section, a child would be a PP child of 2 or more persons, (adults), the Secretary must:
(a)make a written determination specifying one of them as the person in relation to whom the child is to be a PP child; and
(b)give each adult who has claimed parenting payment a copy of the determination."

When both parents fulfil the definition of having a PP child, as I have found, then I am faced with the unenviable duty of making a choice in favour of one of them. It was submitted by Mr Hall that the children should be designated PP children of the applicant on the basis that his financial need is greatest. Of course, consideration of each parent's financial circumstances is not the only factor to which I can have regard, but it seems to me to be the only manner, in the present circumstances, in which I can make some differentiation between the rival claims of the applicant and the 2nd respondent for parenting payment. It was contended that the applicant's back condition makes it difficult for him to sustain full-time work of a physical nature, and in any event the type of work in which he is skilled is not always easy to obtain.
On the other hand, it was contended that the 2nd respondent is capable of obtaining and maintaining employment and that she is not limited by health problems in her ability to work. I do not believe it is appropriate to have regard to that aspect, bearing in mind that the children are very young and the 2nd respondent has chosen to engage in full-time parenting activities until they are older.
The 1st respondent suggested that a determination be made in favour of the 2nd respondent on the basis that she bears a larger proportion of responsibility in respect to the children's expenses, including their clothes. In this respect, the evidence before the Tribunal was to the effect that the 2nd respondent meets all the children's school costs, provides stationery items for school and replenishes them as needed. She also meets the costs of the children's haircuts. If, as has not been contested, the 2nd respondent's actual period of care and control is marginally more than that of the applicant, this is to be expected. Whilst much was made by Mr Hall of the applicant's expenditure for football activities, I am not persuaded that that of itself is of such magnitude that it overshadows the 2nd respondent's contribution. I find that the 2nd respondent bears more of the financial responsibility for the care of the children.
Accordingly, I make a determination pursuant to section 500E of the Act specifying the 2nd respondent as the person in relation to whom the children, Stephen and Shaun Willocks, are to be PP children.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of J Cowdroy, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  11 September 2001
Date of Decision  24 October 2001
Solicitor for the Applicant         Mr L Hall, Noel Woodall & Associates Lawyers
For the 1st Respondent            Mr S Letch, Departmental Advocate
For the 2nd Respondent           In person