Vidler, Nijel Lyle v Secretary Department of Social Security & Anor [1995] FCA 1047

IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY) ) GENERAL DIVISION ) No. DG2 of 1995

B E T W E E N: NIJEL LYLE VIDLER Applicant - and - SECRETARY, DEPARTMENT OF SOCIAL SECURITY AND SAMNIANG ASHFORD Respondents

REASONS FOR JUDGMENT

Coram: O'Loughlin J. Place: Adelaide (Heard in Darwin) Date : 21 December 1995

This matter comes before the court as an appeal, so called, from the General Administrative Division of the Administrative Appeals Tribunal ("the Tribunal"). The appeal which is in the original jurisdiction of the court, can only be "on a question of law": subs44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). It has arisen as a result of the competing claims of the applicant, Nijel Lyle Vidler, ("Mr Vidler") and the second named respondent, Samniang Ashford, ("Mrs Ashford") for the payment of a sole parent pension ("the pension") in respect of their daughter, Jullie Jarunee Vidler ("Jullie"). The Tribunal had affirmed the decision of the Social Security Appeals Tribunal ("the SSAT") that Mrs Ashford should, to the exclusion of Mr Vidler, receive the pension.

Jullie was born on 4 June 1991 and her parents ceased cohabitation some twelve months or so later. On 6 August 1992, shortly after their separation, Ms Ashford lodged claims with the first respondent, the Department of Social Security ("the Department") for both the family payment and the pension, naming Jullie as her only dependent child; those claims were successful. On 16 September 1992, a Special Magistrate, sitting as a Court of Summary Jurisdiction in Darwin, ordered that Mr Vidler have sole custody of Jullie but that Ms Ashford "have liberal access at times and places to be mutually agreed between the parties". Those orders were subsequently discharged, by consent, by a Judge of the Family Court on 11 December 1992; on that occasion specific orders were made that the parents have joint guardianship and joint custody of Jullie. Other orders were made that day by the Family Court and it will be necessary to refer to some of them in detail. Notwithstanding the orders of 16 September and 11 December 1992, Ms Ashford continued to receive the family payment and the pension. At the time of the orders of the Family Court, Mr Vidler was engaged in full-time employment. That employment ceased, however, on 2 June 1993, and, since then, he has only occasionally been able to find part-time work. He was unemployed and in receipt of social security benefits at the time of the hearing before the Tribunal. Upon the cessation of his employment, Mr Vidler lodged claims with the Department for the family payment and the sole parent pension, thereby competing for the benefits that Ms Ashford was then enjoying. After interviewing Mr Vidler and Ms Ashford, a decision was made on 5 July 1993 by a Departmental officer rejecting Mr Vidler's claim for the pension, but his application for family payment was partially successful; he was awarded 49% with the remaining 51% continuing to be paid to Ms Ashford. Mr Vidler, however, successfully sought a review of the Department's decision. On 3 August 1993, an authorised review officer determined that Mr Vidler should receive the pension instead of Ms Ashford; the sharing of the family payment was also varied in Mr Vidler's favour by increasing his share from 49% to 51%. Ms Ashford requested a review of these decisions but they were affirmed on 11 September 1993. On 21 September 1993 she lodged an appeal with the SSAT and Mr Vidler was joined as a party to that appeal. The SSAT published its decision on 24 December 1993; it concluded that the actual care of Jullie had, since Mr Vidler ceased working, been shared by the parents on an equal basis; all three members of the SSAT were of the opinion that such a finding warranted an equal division of family payment between Mr Vidler and Ms Ashford and amended the decision of the review officer accordingly. The SSAT was, however, divided on the pension. The majority view was that there had been no sufficient justification to cancel Ms Ashford's pension and grant it to Mr Vidler. The dissenting member was of the view that neither parent should receive the pension. He said: "The care and control of Jullie, at the time of this hearing, is being exercised equally by both parents; with neither apparently willing to make any concession either to or about the other. ... It is an artificial and impossible exercise to determine that either the father of mother should be awarded Sole Parent Pension when it would be manifestly at odds with the facts."