Editors --- "Parenting payment: qualification where care of child is shared" [2006] SocSecRpr 33; (2006) 8(3) Social Security Reporter, Article 10

• CHAMBERS and SECRETARY TO THE DEWR
• The facts
• The issue
• The law
• Discussion
• The decision

---

Parenting payment: qualification where care of child is shared

CHAMBERS and SECRETARY TO THE DEWR

Decided: 10th July 2006 by S.D. Hotop

The facts

Mr and Mrs Chambers separated in October 2004. They have one son, Samuel Chambers, who was born on 5 August 2003. At the time of separation, Mr and Mrs Chambers were both working 3 days a week and they agreed to share the care of Samuel on a 50/50 basis.

In April 2005, Mrs Chambers took leave without pay from her position as a registered nurse. Mrs Chambers applied for, and was granted, parenting payment at the single rate from 1 April 2005.

In July 2005, Mr Chambers ceased employment and applied for newstart allowance and parenting payment. He was granted newstart allowance but his application for a parenting payment was rejected.

In January 2006, Mr Chambers decided not to continue looking for employment as he wanted to spend more time with Samuel. Mr Chambers ceased claiming newstart allowance and appealed Centrelink’s decision not to grant him a parenting payment.

The issue

The issue was whether Mr Chambers was qualified to receive parenting payment under part 2.10 of the Social Security Act1991 (the Act).

The law

Section 500(1)(a) of the Act states that a person is qualified for parenting payment if the person has at least one parenting payment child (PP child). The definition of a ‘PP child’ is set out in s. 500D(1).

Section 500E(1) states that a child can be a PP child of only one person of a time.

Section 500E(2) states that, but for s.500E(1), if the Secretary is satisfied that a child would be a PP child of 2 or more persons, then the Secretary must make a written determination that one of them is the person in relation to whom the child is to be a PP child.

Discussion

The AAT accepted that, but for s. 500E(1), Samuel would be a PP child of both Mr and Mrs Chambers.

In attempting to make an appropriate determination pursuant to s.500E(2), which contains no guidance or criteria as could assist a determinative body, the AAT cited authorities suggesting it should consider the financial circumstances of the parties (Guyder v Secretary, Department of Social Security (1998) 49 ALD 13), and any relevant government policy (Secretary, Department of Family and Community Services v Holmes (2000) 98 FCR 461 at 467).

In relation to the financial circumstances of the parties, the AAT accepted that Mrs Chambers’ earning capacity and asset net worth was significantly greater than Mr Chambers, but that her financial position since April 2005 had not been comfortable.

On the other hand, the AAT considered that Mr Chambers had not at any time been unable to fulfil his responsibilities in relation to Samuel because of his financial circumstances and that he was eligible to claim newstart and FTB or earn a living from teaching.

The AAT was not satisfied that Mr Chambers’ financial circumstances when compared with Mrs Chambers were such to make it appropriate to now determine that Mr Chambers was ‘the person in relation to whom Samuel is a PP child’. Further, the AAT considered that cancelling Mrs Chambers’ parenting payment would have an immediate and substantial adverse financial impact on her that would be significantly greater than the financial impact a contrary determination would have on Mr Chambers.

The AAT also considered the relevant government policy, set out in paragraph 3.5.1.50 of the Centrelink Policy Guidelines.

These guidelines state that where the difference in the rate of parenting payment that would be paid to the carers is less than $10.00 per fortnight and where one of them has been receiving parenting payment in relation to the child for a reasonable period of time, the maintenance of the status quo is preferable.

The AAT accepted that the circumstances of this case satisfied these preconditions and, as the application of the guideline would not result in unfairness or injustice, it was applied.

The decision

The AAT affirmed the decision under review and found that pursuant to s.500E(2), Mrs Chambers was ‘the person in relation to whom Samuel was to be a PP child’. Therefore Mr Chambers was not qualified to receive a parenting payment.

[J.C.]