Social Security - Supporting Parent's Benefit - mother granted custody of child by Family Court - access to child granted to father - whether child in custody, care and control of father during periods of access - whether father entitled to Supporting Parent's Benefit

Decision of Administrative Appeals Tribunal set aside.

Matter referred to the Administrative Appeals Tribunal for re-determination in accordance with these reasons.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal by the Secretary, Department of Social Security ("the Secretary"), from a decision of the Administrative Appeals Tribunal ("the Tribunal") setting aside a decision to cancel a supporting parent's benefit (hereafter "SPB") received by the respondent, Leonard John Field, under the provisions of Part VI of the Social Security Act 1947 ("the Act").

2. The background to the appeal is as follows. The respondent received SPB from 26 July 1984 to 14 May 1987 in respect of his child, Jacob, who was accepted by the Secretary as then in the respondent's custody, care and control. In 1984, the Family Court of Australia granted the respondent custody of Jacob. But, on 9 February 1987, the Family Court discharged that order and granted custody to Jacob's mother, the respondent's former wife. It also granted the respondent access to Jacob from time to time. The extent of the access granted to the respondent is of central importance in determining the question of law upon which the appeal turns. The Tribunal summarized the access granted to the respondent as follows:

"The nature of the access granted to the

applicant (that is, the now respondent, Mr

Field) has been extensive. It is not necessary

to reproduce the various detailed orders made by

the Family Court from time to time. Their

effect may be summarized as follows:-

(1) During 1987 when Jacob attended

kindergarten between 9 am. and noon the

applicant was granted access on a total of 'no

less than 4 nights and 5 days per week'. In

one week it was from 9 am. Thursday to 9 am.

Sunday. In the alternate week it was from

9 am. Wednesday to 12 noon on Thursday from

9 am. until 5 or 7 pm. on Saturdays (according

to daylight saving).

(2) From 3 December 1987 the previous access

orders referred to Goulburn Street Primary

School instead of kindergarten as previously and

detailed arrangements for school holidays,

parents' birthdays, Easter, Fathers' Day and

Mothers' Day. Basically the intent of the

order was that Jacob should be equally shared

between his parents when he was not at school

and in any event on special occasions. When

Jacob began primary school he attended until

about 3 pm each day.

(3) On 1 September 1988 access on alternate

weekends was extended to operate from the close

of school on Fridays to its commencement on

Mondays. However, the discharge of that part of

the original order which related to midweek

access has reduced the number of nights per week

that Jacob sleeps at his father's house.

The applicant gave evidence that the effect of

the various access orders was to grant him the

right to have Jacob with him on 132 nights and

140 days in 1987; 134 nights and 146 days in

1988 and, so long as the current order remains

in force, 108 nights and 109 days during 1989.

It will thus be seen that an attempt has been

made by the Family Court to ensure that both

parents have the same opportunity to share the

company of the child. The mother has been

declared the custodial parent, but the father

basically enjoys the same time with Jacob as his

mother, subject to her right and obligation to

house and feed him when he is not at school from

Monday afternoon to Friday morning when school

is in term. Thus he always spends four nights

a week with his mother. The other three are spent

with his father but on a fortnightly basis only."

3. It is common ground that the reference in (1) above, to "4 nights and 5 days per week" should have read "4 nights and 5 days in each two week period."

4. The question for the Tribunal was whether Jacob was a "dependent child" of the respondent within the meaning of the Act at the time SPB was cancelled. It was, and is, common ground that the respondent had previously fulfilled the qualifications for the benefit provided for by s.54 of the Act.

"3. (1) In this Act, unless the contrary

intention appears - 'dependent child', in

relation to a person, means -

(a) a child under the age of 16 years who -

(i) is in the custody, care and

control of the person; or

(ii) where no other person has the

custody, care and control of the

child - is wholly or

substantially in the care and

control of the person; or

(b) a student child, not being the spouse of

the person, who is wholly or substantially

dependent upon the person."

Section 3(2) provides:

"(2) For the purposes of the definition of

'dependent child' in subsection (1), a person

shall not be taken to have the custody of a

child unless the person, whether alone or

jointly with another person, has the right to

have, and to make decisions concerning, the

daily care and control of the child."

6. The Tribunal held that the respondent was entitled to SPB for the following reasons: (1) The expression "custody, care and control" in the statutory definition of "dependent child" means "factual responsibility" rather than "legal entitlement"; (2) An order for access made under s.64 of the Family Law Act 1975 constitutes a variation of a "custodial" order under s.63E(2); and such variation is authorized by s.63E(2); (3) Custody may be enjoyed jointly with another person without the need for the "simultaneous physical presence" of custodian and child; (4) The factual concept of daily responsibility for a child may move from one parent to another regardless of the existence of a custody order; (5) The access ordered in the present case, which was regularly exercised by the respondent, was "sufficiently substantial to take on the quality of 'custody, care and control' . . . for the purposes of the (Act)".

7. The Secretary now challenges the Tribunal's decision, based on this reasoning, that the respondent has the custody, care and control of Jacob and is entitled to SPB.

8. Apart from s.3(2), the Act does not make explicit what is meant by the expression "custody, care and control". However, it should be noted that s.63E(2) of the Family Law Act provides that:

"A person who has or is granted custody of a

child under this Act has:

(a) the right to have the daily care and

control of the child; and

(b) the right and responsibility to make

decisions concerning the daily care and

control of the child."

9. Sections 63E(3), 64(1) and (2) empower the Family Court to vary the operation of a custody order by an order granting rights of access if it is satisfied that it is desirable to do so. The nature and extent of the right of a person, who is granted custody of a child, to have, and to make decisions concerning, the child's daily care and control will thus depend upon the terms of any order granting rights of access to the child.

10. The Act contemplates the possibility that a child may be a dependent child of two persons: s.58. That is to say, the Act contemplates that the child may be in the custody, care and control of more than one person and that more than one person may have the right to have, and to make decisions concerning, the child's daily care and control.

11. Counsel for the appellant submitted that the Tribunal was in error in construing the expression "custody, care and control" in the statutory definition of "dependent child" as referring to factual responsibility for the care and control of the child rather than legal entitlement to the child's custody. He submitted that the question whether the respondent had the custody, care and control of Jacob was conclusively decided against him by reference to the Family Court's order granting custody to Jacob's mother. He submitted that the rights of a non-custodial parent under an access order made under s.64(1)(b) of the Family Law Act do not include "the right to have, and to make decisions concerning, the daily care and control of the child" within the meaning of s.3(2) of the Act. He conceded that, prior to the commencement of the Social Security and Repatriation Legislation (Amendment) Act 1985 (which introduced into s.3(2) of the Act the abovementioned definition of "dependent child") a reference to a person having the custody, care and control of a child was a reference to a person who, in a factual sense, had such custody, care and control, irrespective of whether he also had a legal right to custody of the child. This concession was made in recognition of many decisions of the Tribunal which the appellant did not seek to challenge. The decisions (and certain English decisions - admittedly given in a different context - on the meaning of "custody" in relation to children) are referred to in Secretary to Department of Social Security v Van Luc Ho (1987) 17 FCR 582. But, so it was submitted, the 1985 amendments to the Act sufficiently evidenced Parliament's intention that the reference to "custody" in s.3(1) is a reference to technical legal custody; and it was further submitted that in the case of a child whose custody was the subject of an order of the Family Court, the person having his legal custody was the person into whose custody the Family Court had committed the child.

12. In support of this submission counsel relied upon the Minister's second reading speech and the Explanatory Memorandum accompanying the Bill. However, we do not find in the speech or the Explanatory Memorandum any indication, one way or the other, whether rights of access given to the father of a child under an order of the Family Court might qualify him as a person having the right to have, and to make decisions concerning, the daily care and control of his child.

13. In our opinion, counsel for the appellant is correct in his submission that the introduction into the Act in 1985 of the new definition of "dependent child" meant that, thereafter, a child cannot be regarded as a dependent child of a person merely because that person has factual custody, care and control of the child. We agree that for the purposes of the definition of "dependent child" in s.3(1), a person cannot be taken to have the custody of a child unless that person has a legal right to have, and to make decisions concerning, the daily care and control of the child. That this is so is, we think, made reasonably plain by s.3(2) which speaks of a person's "right" to have, and to make decisions concerning, the daily care and control of the child. Absent the order of a competent court depriving a parent of his common law right to custody of his child, the parent will have the right referred to in s.3(2). But when a court makes an order limiting a parent's common law right, whether the parent thereafter retains a right of the kind referred to in the sub-section will depend upon the terms of the court's order. We do not think that a person can be said to have "the right to have . . . the daily care and control of (a) child" merely because he has for some brief period or periods the de facto custody of the child, albeit with the consent and approval of the person to whom the court has committed the child's custody.

14. However, the respondent's case does not rest upon the mere fact that he enjoys periods of de facto custody of Jacob with the consent of the child's custodian. His case depends upon the firmer foundation of the terms of the Family Court order. The real question in the present case is whether the rights of access enjoyed by the respondent under the Family Court's order are such as to give him a right of the kind described in s.3(2).

15. We see no sound reason why, on the facts of a particular case, a person's rights of access to a child under a Family Court order should not be considered as giving that person a right of the kind referred to in s.3(2). That is to say, we think that a right of access may be so framed in a court order as to give a person the right to have, and to make decisions concerning, a child's daily care and control. Take the following illustration. Suppose an order for custody is made in favour of a child's mother and that the child lives at the mother's home in Sydney. Further suppose that because the father lives in Perth, he is granted access to the child for a continous period of two months each year, he being authorized under the terms of the court's order to take the child to his home at Perth during the period of access. In our opinion, a finding may be open in such a case that, during every two months period the father would have the right to have, and to make decisions concerning, the daily care and control of his child. He would have that right pursuant to the order of the court granting him access. It would, in a real sense, be a legal right. The mere fact that his wife had been awarded custody of the child would not, of itself, negative his right to have the daily care and control of his child whilst the child was with him.

16. The similarity of the right enjoyed by a person who has custody of a child and the right of a person who is given access to the child was recognized in the Law Commission (U.K.) Working Paper No. 96 on Family Law - Review of Child Law and Custody 1986. It was there said:

"4.51. It may be a mistake to see custody, care

and control and access as differently-sized

bundles of power and responsibilities in a

descending hierarchy of importance. A parent

who is exercising access, for whatever period of

time, must have all the responsibilities of some

one with actual custody. If, for example, a

child spends the weekend with his father on an

access visit the father (and also the father's

new wife if he has one) will have full responsibility

for and power to decide what the child

eats, when he goes to bed, whether and where he

goes to church, what he does with his time, to

summon medical attention in the event of an

accident or illness, and so on. The legal

effect of the mother's disapproval of any of

these things is uncertain and could only be

resolved by returning to court. Obviously the

range of powers and responsibilities will vary

according to the period of time involved, but

for so long as the child is with the parent that

parent will have all the day-to-day care and

control status that the parent with 'custody' or

'care and control' has when the child is with

her. Perhaps, therefore, the division of

responsibility between parents with custody and

care and control or access, respectively, is

temporal rather than qualitative."

17. We agree with the view expressed in the Working Paper. See also Long v Long (1968) 12 FLR 456 at p 461 where Begg J observed, correctly in our opinion, that where a person has extended access to a child, of necessity the access includes the duty to care for the child and, of course, the control of the child.

18. However, the problem for the respondent in the present case is that to qualify for SPB it is not sufficient for him to show that there are occasions when he has the right to have the care and control of Jacob. He must show that he has the right to have the child's daily care and control. Leaving aside any continuous periods of access extending over a period of weeks, we do not think it can be said that the respondent's ordinary rights of access to Jacob give him the right to have, and to make decisions concerning, Jacob's daily care and control. If he fully exercises his rights under the Family Court's order, the respondent will have access to Jacob on only 108 nights and 109 days during 1989. Since Jacob lives at his father's home on access days, we think it is correct to say that on those days the respondent has the right to have, and to make decisions concerning, his care and control. But the intermittency of the access days is such as to lead us to conclude that the respondent's right cannot properly be characterized as the right to have the daily care and control of his child.

19. Rights granted under access orders will, of course, vary from case to case. We would not wish to lay down any hard and fast rule as to the number of consecutive days during which a person must have the right to have the care and control of a child before that right can be characterized as a right to have the child's daily care and control in terms of s.3(2). There is a band of situations within which a determination either way may be open. But having regard to the circumstance that SPB is payable on a fortnightly basis, we think that a practicable and sensible rule is that a person who, pursuant to an order of the Family Court, has the right of access to his child in his own home for a period of not less than fourteen consecutive days should be regarded, ordinarily, as having the right to have, and to make decisions concerning, the daily care and control of the child during that period. A lesser period may, in particular circumstances, suffice to render a finding open in favour of the parent enjoying access, but the ordinary periods here are so brief that the only conclusion possible is in the negative. As we understand the facts of the present case, the current order of the Family Court gives the respondent the right to access to Jacob for a period of about four consecutive weeks in the summer school holidays. If that is the case, we think the respondent would be entitled, on the facts found by the Administrative Appeals Tribunal, to SPB during that period.

20. In the result, the appeal should be allowed, the decision of the Administrative Appeals Tribunal set aside and the matter remitted to the Tribunal to be further dealt with in accordance with these reasons. Having regard to the general importance for the appellant of the clarification of the law involved, which it is the appellant's duty to administer, and the relatively small amounts the respondent had at stake, and since the appeal has been only partially successful, there will be no order as to costs.