Secretary, Department of Social Security v Field

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. NG497 of 1994 BETWEEN: MARK ELLIOTT Applicant AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY First Respondent CHRISTINE ELLIOTT Second Respondent CORAM: Lehane J PLACE: Sydney DATE: 14 December 1995 REASONS FOR JUDGMENT LEHANE J: Nature and history of proceedings This case concerns entitlements under the Social Security Act 1991 to a benefit which, as a result of amendments made to that Act by the Social Security (Family Payment) Amendment Act 1992, has since 1 January 1993 been known as the family payment and was previously known as the family allowance. Mr Mark Elliott and Ms Christine Elliott are divorced. They have three children, all of school age. Under an order made by the Family Court of Australia on 16 June 1992 Mr Elliott and Ms Elliott have joint guardianship of the children; Mr Elliott has custody of them; and Ms Elliott has "access to and possession of" them on terms which are set out in the order of the Family Court. Because the effect of the grant of access has assumed considerable importance in the case, it is desirable to set out that part of the order in full. It reads: (3) That the WIFE have access to and possession of the said children: (a) From immediately after school Friday until 6.00pm Sunday for the weekends commencing 19th June 1992, 26th June 1992 and 3rd July 1992; (b) From 6.00pm Sunday 12th July 1992 until Friday 17th July 1992; (c) From immediately after school on Friday 31st July, 1992 to Sunday 6.00pm Sunday 2nd August, 1992; (d) From immediately after school on Friday 7th August 1992 to 6.00pm Sunday 9th August, 1992; (e) From immediately after school on Friday 14th August, 1992 until 6.00pm Sunday the 16th August, 1992; (f) From 6.00pm Sunday 23rd August 1992 until 6.00pm Friday 28th August, 1992; and thereafter in the same manner as per (a) to (f) hereof; The order thus provides for access during successive periods of six weeks. During each such period, the children are with Ms Elliott for three successive weekends from "after school" Friday until 6.00pm Sunday and then, starting at 6.00pm on the Sunday following the last of those weekends, until the following Friday: i.e. for a period of five nights and five days. For the rest of each period of six weeks, including the whole of the two weeks at the end of each period, the children are with Mr Elliott. The overall effect of the order is that the children are with Mr Elliott for 74% of each six week period and with Ms Elliott for the remaining 26%. The terms of the order are observed in practice, in the sense that the children are with their parents at the times the order contemplates. The order made by the Family Court on 16 June 1992 superseded a previous order under which the parents had joint custody of the children. While the earlier order remained on foot, the family allowance (as it was then known) relating to the children was paid to the parents in equal shares. Following the June 1992 order, Mr Elliott applied to the Department of Social Security to have the family allowance paid in full to him, and on 21 July 1992, the delegate of the Secretary of the Department accepted Mr Elliott's application. Ms Elliott appealed to the Social Security Appeals Tribunal, which on 13 November 1992 set aside the delegate's decision and decided instead that the family allowance should be paid as to 74% to Mr Elliott and as to 26% to Ms Elliott. Mr Elliott appealed to the Administrative Appeals Tribunal, which on 15 June 1994 affirmed the decision of the Social Security Appeals Tribunal. Mr Elliott now appeals against the decision of the Administrative Appeals Tribunal.

Legislation The necessary starting point is the Social Security Act 1991, particularly the somewhat complex provisions dealing with the family payment. Although the provisions have been amended since the Social Security Appeals Tribunal made its decision, nothing turns on the amendments or on any difference between the form which the Act took in June 1992 and the form which it takes now. The starting point is s 838(1). It provides that: A person is qualified for family payment if: (a) the person has at least one FP child ... Section 831(1) then provides that, subject to qualifications which do not matter for present purposes, each dependent child of a person is also an FP child of that person. The expression "dependent child" is defined in s 5(2), which reads as follows: Dependent child - under 16 (2) Subject to subsections (3) and (6) to (8), 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 has the right (whether alone or jointly with another person):

(i) to have the daily care and control of the young person; and (ii) to make decisions about the daily care and control of the young person; and the young person is in the adult's care and control; or (b) the young person: (i) is not a dependent child of someone else under paragraph (a); and (ii) is wholly or substantially in the adult's care and control.

The children with whom this case is concerned are all under the age of 16; for present purposes subsections (3) and (6) to (8) may be disregarded. The other provision which is significant for present purposes is s 869(1), which provides: If the Secretary is satisfied that 2 people are each qualified for family payment for the same child, the Secretary is to make a declaration: (a) stating that the Secretary is satisfied that the 2 people are each qualified for family payment for the child; and (b) specifying the share of the family payment for the child that each of the 2 people is to receive.

The decision to apportion the family payment between Mr Elliott and Ms Elliott was based on that provision. Its necessary foundation is the Secretary's satisfaction that 2 people are each qualified for family payment for the children: that is to say, satisfaction that each child is a dependent child, and thus an FP child, of each parent. In turn, each child can be a dependent child of each parent only if each parent has the right, whether alone or jointly with the other, both to have the daily care and control of each child and to make decisions about the daily care and control of each child. The order of the Family Court operates under the Family Law Act 1975 to vary the common law rights and obligations of the parents. It will be recalled that the order gave the parents joint guardianship, conferred custody on Mr Elliott and gave Ms Elliott access. The first three subsections of s 63E of the Family Law Act provide: Division 5 - Custody and guardianship of children Custody and guardianship 63E. (1) A person who is the guardian of a child under this Act has responsibility for the long‑term welfare of the child and has, in relation to the child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than: (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. (2) 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.

(3) The operation of subsection (1) or (2) in relation to a child may be varied by an order made in relation to the child by a court exercising jurisdiction under this Part.

Pausing there, Mr Elliott clearly is, and Ms Elliott equally clearly is not, a "person who has or is granted custody of a child under this Act"; and the similarity between the terminology of s 63E(2) of the Family Law Act and s 5(2) of the Social Security Act is obvious. That, however, is not the end of the matter, because s 63E(3) provides that the operation of subsection (2) may be varied by an order made under Part VII, and an order granting access (made under s 64(2)) is such an order. The authorities The leading authority on this undoubtedly, and unfortunately, complex area of the law is the decision of the Full Court of this Court in Secretary, Department of Social Security v Field (1989) 25 FCR 425. Although that case had to do not with family payment but with a supporting parent's benefit, the reasoning is plainly applicable to the family payment. In order to decide whether the respondent was entitled to a supporting parent's benefit in respect of his child, the Court had to ascertain whether the child was a "dependent child" as defined in s 3 of the predecessor of the Social Security Act 1991, the Social Security Act 1947. The definition in s 3 of that Act was somewhat different from the definition in s 5(2) of the present Act, but for present purposes the differences are insignificant. What matters is that the child concerned was a dependent child of the respondent only if the respondent had, among other things, custody of the child and that s 3(2) of the 1947 Act provided: 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.

Field had to do with circumstances where an order of the Family Court had granted custody to the child's mother and access to the father on alternate weekends (from the close of school on Friday to its commencement on Monday) and (apparently) for four consecutive weeks during the summer school holidays. It was calculated that the effect of the order was that the child would be with his father for 108 nights and 109 days during the relevant year: that is, in total for between 29% and 30% of the year. The Court concluded that the father did not have a right of the relevant kind during the weekend access but might have such a right during the period of four weeks of the summer holidays. It may be helpful, I think, to refer to a number of passages in the Full Court's reasons. First, at 428, 429, the Court drew a distinction between factual custody and the relevant legal right: In our opinion, ... 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 rights 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 subsection 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.

The Court proceeded to consider whether, under the order of the Family Court which granted him access, the respondent had rights of the relevant kind. The judgment continues (at 429): 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 continuous period of two months each year, he being authorised 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.

The Court next considered the similarities between the rights of a parent granted custody and those of a parent denied custody but granted access. The reasoning proceeds (at 430): However, the problem for the respondent in the present case is that to qualify for [supporting parent's benefit] 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 characterised as the right to have the daily care and control of his child. 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 characterised 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 [supporting parent's benefit] is payable on a fortnightly basis, we think that a practicable and sensible rule is that a person who, pursuant of 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 14 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 [supporting parent's benefit] during that period.

I have set out at length what seem to me to be the important passages in the judgment in Field because it is clearly the leading authority in this area of the law; it is binding on me and, as the Administrative Appeals Tribunal recognised, was binding on the Tribunal. Later decisions recognise the authority of Field and apply it: Secretary, Department of Social Security v Wetter (1993) 40 FCR 22; Re Juren and Secretary, Department of Social Security (1933) 30 ALD 613; Re Vidler and Secretary, Department of Social Security (1994) 20 AAR 223. Field is, I think, clearly authority for the following propositions which are directly applicable to the present case: 1. A child is a dependent child of an adult only if the adult has the legal right to have, and to make decisions concerning, the daily care and control of the child. Care and control in fact, without the legal right, is irrelevant (Juren is a good example of the way in which that proposition may apply in practice). 2. An order under the Family Law Act granting custody of a child confers legal rights of that kind; an order granting access may do so. 3. Where a child, on "access days", lives at the home of a parent with access (but not custody) it is at least likely that that parent will have the right to have, and to make decisions concerning, the care and control of the child. But that right is not necessarily sufficient, because what is required is that the parent have rights relating to daily care and control. 4. A right of access for only a few days at a time (in Field, from Friday afternoon to Monday morning (i.e. three nights)), intermittently, while conferring the right to have, and to make decisions concerning, care and control during those periods does not confer a right of daily care and control. 5. If access extends over a period of two weeks or more, then the right of the parent having access is likely to be properly characterised as the right to have daily care and control during that period; it is possible in some circumstances that access for a shorter continuous period will carry that right with it; "there is a band of situations within which a determination either way may be open". The crucial and by no means straightforward question is, when does a right concerning care and control become a right concerning daily care and control? Perhaps the key to the guidance which Field gives on that question lies first in its agreement with the proposition that the distinction between custody on the one hand and access on the other is "temporal rather than qualitative" and secondly in its insistence that "daily" care and control requires a relatively long continuous period of living with the person (usually, of course, parent) concerned. Short, discontinuous periods, while they may involve a right of care and control during those periods, do not involve a right of daily care and control. The other matter which seems to me to emerge clearly from Field, and also for that matter from Wetter, is that it is not particularly helpful to ask, for this purpose, what decisions a parent with access actually makes for the child concerned during the period of access or what that parent actually spends on looking after the child during periods of access. The whole tenor of Field, particularly, is that it is to be expected that the parent with access will make decisions about "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 accident or illness, and so on". The fact that a parent who has access but not custody makes those decisions (and has the right to make them) during periods of access does not, by itself, confer a right of daily care and control where the periods of access are short. The Tribunal's Decision As I mentioned, the Administrative Appeals Tribunal upheld the decision of the Social Security Appeals Tribunal to the effect that the family payment should be made as to 74% to Mr Elliott and as to 26% to Ms Elliott. In reaching that decision the Tribunal considered a great deal of evidence, including oral evidence given by both parties, about the decisions concerning the children which each parent actually makes and the expenditure actually incurred by each parent in caring for the children. Thus, consideration was given, for example, to evidence as to the clothes for the children provided by each party; as to payment for school excursions; as to the signing of authorisations for the children to participate in school activities, particularly excursions; and as to decisions made, and actions taken, about the provision of medical and dental care. There was also evidence, which the Tribunal took into account, that (at para 19) "there has been a total breakdown in communication between the Applicant and his ex‑wife". It is not, I think, an unfair summary to say that a large part of the reasons of the Tribunal, particularly in paras 9 to 19, involves a detailed consideration of what decisions Ms Elliott makes, in relation to the care of the children, during the periods of access and what payments she makes, during those periods, for their care. In that context, the relevance of the breakdown in communication between the parents was seen to be that, because without communication there could be no consultation about decisions, all day-to-day decisions concerning the children during access periods were made by Ms Elliott without consultation with her former husband. The Tribunal recognised (paras 22 to 25) the authority of Field and Wetter. The question is whether the Tribunal has correctly applied those decisions. Crucial to the Tribunal's reasoning are the following passages from paras 27 and 28. Subsection 5(2) of the Act does not refer to the concept of "custody". The legal issue of "custody" is not something about which we are concerned in this matter. The Act now refers only to the "daily care and control" of the children. ... Whether or not Ms Elliott has the right to make decisions regarding school excursions and medical treatment is not the issue before us. It is necessary for us to consider whether she has "the daily care and control" of the children, albeit for 26% of each six week period.

The Tribunal finds, on the evidence, that the children are in the care and control of Ms Elliott for three consecutive weekends and then for a five day period of the fourth week, followed by a two week break. ... We find that, while at one level this can be interpreted as "intermittent", as was the case Re Field (sic), it can be distinguished from Re Field because the nature of the intermittency was different and in this case it was not such that Ms Elliott could not properly be characterised as having the daily care and control of the children during access visits. We accept the evidence of Ms Elliott that while the children are in her care she does all things for the children which are consistent with the role of a mother, that is, with someone who has the daily care and control of the children ... Ms Elliott has legal access to the children for 26% of each six week period, and we find that on these access visits she makes all the day‑to‑day decisions about their care and control. Given the nature of the decisions to be made and the total breakdown in communication between the Applicant and Ms Elliott the Tribunal finds that Ms Elliott's performance of her decision‑making role is functional.

Reasoning and conclusion Unfortunately, it seems to me inescapable that the Tribunal has misapplied Field. If there is one proposition which is crucial to Field, it is that "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" and that what is necessary is that the person concerned "has a legal right to have, and to make decisions concerning, the daily care and control of the child" (see at 428, 429). Exactly the same propositions are reinforced by Hill J in Wetter. The Tribunal, on the other hand, has I think almost ignored questions of legal rights and concentrated instead on what actually happens. That being so, I do not think that the decision of the Tribunal can stand. There can be no doubt, following Field, that an order under the Family Law Act granting access can confer legal rights of the relevant sort. The question is whether in this case it would be open, consistently with Field, to conclude that the access order in favour of Ms Elliott conferred those rights. Certainly, as the Tribunal pointed out (at para 24), there is a significant difference between the supporting parent's benefit, with which Field had to do, and the family payment: whereas the Secretary has power to apportion family payment, only one parent can be entitled at any time to a supporting parent's benefit. Thus, in relation to the supporting parent's benefit, it is necessary to consider, for each period, which parent qualifies for the benefit during that period. The same definition of "dependent child" governs eligibility for each benefit; but in a case where it is possible to say that each parent has the relevant rights jointly with the other, it is possible to "split" the family payment, whereas the supporting parent's benefit can, as I understand it, be paid to one parent only. I doubt, however, that in the end the distinction makes much difference. What is necessary, if Ms Elliott is to qualify for any part of the benefit, is that she have the relevant right, whether alone or jointly, with Mr Elliott. In a case where an order of the Family Court gives parents joint custody, it is easy enough to see how, while the order remains in force, it may be said that each has the relevant rights jointly with the other although the children are for certain periods with one parent and at other times with the other. In a case such as the present, where custody is granted to one parent alone, and access only granted to the other, it is more difficult. In such a case I find it difficult to see how, throughout the period while the order remains in force, the parents can be said to have the relevant rights jointly: thus, in the present case, I do not think it can sensibly be said that while the children are with Mr Elliott, the custodial parent, Ms Elliott has the rights "jointly" with him. What has to be decided, therefore, consistently with Field, is whether during the access periods she has the rights jointly with Mr Elliott or alone. Perhaps the first thing to be said about that is that Field supports the proposition that access will carry with it the relevant rights only if the access is for a substantial continuous period. Field gives no encouragement to the notion that one may add together short discontinuous periods for the purpose of ascertaining whether the rights exist. Thus, in this case I do not think that Ms Elliott can be said to have the rights during the periods from Friday to Sunday, three weekends in six, any more than the applicant in Field could be said to have them during the period from Friday to Monday every alternate weekend. Are then the five‑day periods from Sunday to Friday to be regarded differently; that is, as falling within the "band of situations within which a determination either way may be open" (Field, at 430)? The view to which I have come is that they are not. It is true that Field recognises not merely that there is a band of situations within which a decision either way may be open, but also that "in particular circumstances" a period of less than 14 days, which it suggests should be regarded as the normal minimum, may suffice. Clearly, if within a band a decision either way may be open, it must be necessary to consider the circumstances in order to decide what the appropriate decision is, and the decision maker is explicitly encouraged to consider the "particular circumstances". But what Field directs the decision‑maker to, in my opinion, is what rights the order conferring access necessarily carries with it, not what actually happens after the order is made, or, for example, whether the parties do or do not communicate with each other. What seems to be clear is that those decisions which a parent makes and those things which a parent does, in the ordinary course of looking after his or her children, are not, unless extending over a significant continuous period, to be regarded as indicating rights relating to "daily" care and control. The decisions and acts of Ms Elliott were exactly, I think, of that kind. They were also, I think, exactly the sort of decisions and acts which an order granting access for several days at a time would ordinarily be taken to contemplate. In other words, I do not think it could be said that there is anything in the particular circumstances in this case which enables the decision‑maker to conclude that a period of access significantly less than half the normal minimum suggested in Field may be regarded as conferring rights of the kind which are required. No doubt views may differ as to whether, as a policy matter, it is appropriate that the entitlement to this benefit should be decided in this way. It is worth pointing out, however, that Parliament has plainly chosen, as the appropriate criterion, the existence of rights of the kind described and not, for example, the level of expense incurred by a custodial parent, a parent with access or, for that matter, anyone else in looking after children. That, I think, is the clear parliamentary intention to which the Court, and makers of decisions under the legislation, must give effect. In the circumstances, I think I should make orders similar to those made by Hill J in relation to the family allowance in Wetter, that is, that: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal be set aside and instead it be ordered that: (a) the decision of the Social Security Appeals Tribunal dated 13 November 1992 be set aside; and (b) the decision of the delegate of the Secretary of 21 July 1992 be confirmed. As for costs, my preliminary view is that the first respondent should pay the applicant's costs of the appeal. I am, however, willing to hear the parties on this and I propose to make an order that the first respondent pay the applicant's costs of the

appeal, the operation of which is to be suspended until 5.00 pm on Friday, 22 December 1995, with liberty to any party to apply on or before that date on one day's notice. I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane. Associate: Dated: 14 December 1995 Heard: 20 November 1995 Place: Sydney Decision: 14 December 1995 Appearances: Ms G M Preston of counsel instructed by Ralph James & Associates appeared for the applicant. Mr B J Skinner of counsel instructed by the Australian Government Solicitor appeared for the first respondent. Mr R T Beech‑Jones of counsel instructed by Craddock Murray Neumann appeared for the second respondent.