Editors --- "Separated parents with shared care or two children: equal care; assessment of greater need" [2014] SocSecRpr 2; (2014) 16(1) Social Security Reporter, Article 2

• CLARKE and SECRETARY to the DSS and HARRINGTON
• Background
• Issues
• Legislation and case law
• Discussion
• Decision

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Separated parents with shared care or two children: equal care; assessment of greater need

CLARKE and SECRETARY to the DSS and HARRINGTON

(2013/699)

Decided: 27th September 2013 by S Webb

Background

Clarke and Harrington were the parents of G, born 2004 and B, born 2008. The couple separated in 2008. There was a history of conflict and the Family Court Orders, made by consent on 29 April 2008, allocated approximately equal shared care of the children on a week about basis. The parents were satisfied with the arrangement, the orders were substantially adhered to and were made to give a degree of stability for the children. Clarke and Harrington were paid parenting payment single (PPS) on the basis of no shared care: Clarke was paid as 100 per cent carer of B and Harrington was paid as 100 per cent carer of G.

Neither party worked, each party lived in rental accommodation and expenses for each child were similar except that B had a speech difficulty and Harrington placed him in child care for 2 days each week, when in his care, in order to access skilled help for the difficulty. Clarke was aware of the placement and did not object. The cost of the care was $170 every second week and Harrington applied for the child care rebate to assist with this expense.

Harrington filled out the claim form for parenting payment setting out care arrangements, which Clarke also signed. The form indicated a change in care arrangements: namely that Clarke had 51% care of B and Harrington had 51% care of G. Clarke claimed she did not understand the form and signed the parts indicated by Harrington because she was scared of Harrington. Centrelink made the decision that Harrington was the principal carer of each child from 22 March 2011, and C’s PPS was cancelled. The SSAT affirmed the cancellation.

Issues

The AAT was required to determine which of the parents was the principle carer of the children, or if the circumstances justified a different principal carer determination for each carer.

Legislation and case law

Under s.500 and s.500D of the Social Security Act 1991 (the Act), a person is eligible for parenting payment if the person has at least one ‘PP child’. Section 500D, in force at the relevant time, sets out the criteria for determining whether a child is a ‘PP child’ of a person. Under ss.5(18) and (19) a child can have only one principal carer at any time:

Principal carer—a child can only have one principal carer

5(18) Only one person at a time can be the principal carer of a particular child.

5(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.

In a case involving more than one child of separated parents, it is necessary to make a principal carer determination in respect of each child. The Act does not offer guidance as to how such a determination should be made, the only guidance as to government policy is set out in the Principal Carer – Shared Care section of the Guide to Social Security Law (the Guide). The guidelines are not binding but it is appropriate to apply them unless there is a compelling reason not to do so.

In Smedley and Secretary, Department of Education, Employment and Workplace Relations & Beveridge [2010] AATA 292

it was observed that it was a difficult burden to determine which of two parents, equally sharing the care of a child and each otherwise qualifying for parenting payment, has the greatest ‘need of a favourable determination’ as principal carer of the child for the purpose of obtaining parenting payment to the exclusion of the other. The AAT stated that although the assessment of parental ‘need’ is directed to placing the child in the best position in respect of quality of care, it also requires an assessment of the ability of each parent to cope with the costs of caring for the child. All the circumstances of care of a child, in respect of the child’s day-to-day care, welfare and development, must be considered.

The AAT in Smedley found that these were the steps to assist the determination:

(a) is the care of the child shared by two or more people; and if so

(b) is the child a dependent of each person and in that person’s care; and if so

(c) are both carers claiming or receiving income support; and if so

(d) are both carers providing equal care; and if so

(e) which person is most in need of a favourable determination?

If there is more than one child, these questions must be answered for each child and two further questions then arise -

(f) are the circumstances of care of each child the same; and if not

(g) do the circumstances justify a different principal carer determination for each carer?

Discussion

In this case the AAT found that the care of the dependent children was shared equally.

The difference in care percentages for each child was 2 percent. From 22 March 2011 Clarke had 51 percent care of B and 49 percent care of G, and Harrington had 49 percent care of B and 51 percent care of G. The guidelines indicate a variation in care percentages of less than 10 percent, is to be taken as equal care.

The Tribunal referred to the factors in the Guide to determine who was in most need of parenting payment single.

The Guide refers to factors that must be considered, and other factors that may be considered.

For the factors that must be considered:

Whether one carer already qualifies as principal carer of another child.

Clarke and Harrington were already qualified as principal carer of another child.

Whether only one carer would be eligible for PP.

From 22 March 2011 both Clarke and Harrington would be eligible for PP. Clarke alleged that Harrington was partnered from December 2010, Centrelink determined Harrington was partnered from 29 October 2012.

Which carer would receive the higher rate of payment?

On the evidence each would have received a similar rate of payment.

Any other sources of income the carer may have.

Clarke asserted that from March 2011 Harrington was sometimes employed in a family business, and that he conducted a cleaning business. Harrington explained that he did attend the business of a relative from time to time but that he was not employed by the business. The AAT found that there were questions about the reliability of the evidence of both Clarke and Harrington and, in the absence of corroboration, the AAT found there was no evidence to show either party had income from any other source from March 2011.

The asset levels of each carer.

Clarke and Harrington each owned a motor vehicle but there were no other assets of significance.

For the factors that may be considered:

The expenses for each carer.

The AAT examined the rent payments for each party and gave weight to the child care expense for B.

The workforce experience, education levels and future employment prospects of each carer.

Clarke had more recent experience in the workforce, and was certified to legally serve alcohol. Harrington had left school earlier than C, but had practical skills relating to working on cars.

The duration that each carer has been on income support and their principal carer status during this time.

Up to 21 March 2011 Clarke and Harrington were each receiving payment as principal carer, and for an extended period.

Any other relevant factors.

The AAT considered the history of domestic conflict and also considered the extra family support available to Harrington and the fact that C’s family support was more remote.

Principal carer assessment

The AAT found little to differentiate between the needs of each parent. The cost of child care was seen as a difference adding to the expenses of Harrington. When Harrington became partnered, the emotional needs of Clarke were determined to be less met than those of Harrington. The AAT found that the needs of each were finely balanced and that the guidelines favour a decision to maintain the status quo.

Are the circumstances of care of each child the same?

The AAT found that the care arrangements for B and G were not the same because of the development issues of B necessitating the child care placement. The AAT found that in those circumstances there was justification for a principal carer determination for each carer.

Decision

The AAT set aside the SSAT decision and decided that:

• from 22 March 2011 to 15 October 2012, Harrington was the principal carer of B;

• from 16 October 2012, Clarke was principal carer of B; and

• from 22 March 2011, Clarke was principal carer of G.

The matter was remitted to the Secretary to determine the amount of parenting payment that was payable to Clarke and Harrington in accordance with these reasons.

[M.R.]