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." Mr Vidler applied to the Tribunal for a review of the decision of the SSAT; Ms Ashford later applied to be joined as a party to that application and an order of joinder was duly made by the Tribunal. Neither Mr Vidler nor Ms Ashford challenged the SSAT's decision regarding the equal division of family payment, nor was that decision challenged in this court; the only issue was their competing claims to the sole parent pension. The Tribunal having affirmed the decision of the SSAT, Mr Vidler has now appealed against that decision to this court. In his Notice of Appeal Mr Vidler named only the Department as a respondent to the proceedings. When this was drawn to the attention of the court, an order was made on 25 September 1995 joining Ms Ashford as a further respondent. Notice of the proceedings was forwarded to her by the Registrar but she did not appear when the matter was called on for hearing and the appeal proceeded in her absence. The entitlement to a sole parent pension is found in s249 of the Social Security Act 1991 (Cth) ("the Act") as qualified by ss250 and 251. So far as they are relevant to this appeal, the provisions of subs249(1) are as follows: "(1)Subject to subsection (1A), [which is not material] a person is qualified for a sole parent pension if; (a) the person: (i) is not a member of a couple; or (ii)... (iii)is a member of a couple who is living separately and apart from his or her partner; or ... (b) the person has at least one SPP child (see sections 250 and 251); and (c) at least one of the following conditions is satisfied: (i) if the person has only one SPP child - that child became an SPP child while the person was an Australian resident; ..." If, as a matter of fact, Mr Vidler and Ms Ashford retained their identity as "a couple", they were living separately or, as was more likely the case, neither of them was, at any relevant time, a member of a couple. In either case, in respect of each of them, the test contained in par249(1)(a) was met as was the residential qualification that is contained in par249(1)(c). That leaves for determination the question whether Jullie can be identified in terms of par249(1)(b) as an SPP child of either Mr Vidler or Ms Ashford. Section 250 of the Act defines an "SPP child". Putting to one side any detail that is not material to this appeal, a young person is an SPP child of another person (an adult) if: (a) the young person is "a dependent child of the adult"; and (b) the young person has not turned 16; and (c) the young person is a natural child of the adult. As Jullie is the natural child of Mr Vidler and Ms Ashford, and as she is under 16 years of age, she could be an SPP child of either one of them if, in respect of one or other of her parents, she could be classified as a "dependent child". That term is defined in subs5(2) of the Act. Subject to some qualifications which do not have any application to these proceedings a young person who has not turned 16 is a dependent child of another person (an adult) if 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; ..." In considering the definition of "dependent child" and its potential application to Jullie and her parents it is now necessary to mention s251 of the Act. Consistent with the concept of a sole parent, that section stipulates that "[a] young person can be an SPP child of only one person at a time". However, the legislation acknowledges that there may be de facto circumstances, with respect to a particular child, that point to the young person being an SPP child of two or more persons. Subsection 251(2) of the Act therefore provides: "(2)If the Secretary is satisfied that, but for this section, a young person would be an SPP child of 2 or more persons, the Secretary is to: (a) make a written determination that the Secretary is satisfied that that is the case; and (b) specify in the determination the person whose SPP child the young person is to be; and (c) give each person a copy of the determination." Both the SSAT and the Tribunal came to the conclusion that it was necessary, having regard to the particular facts in Jullie's case, to apply the provisions of subs251(2). They each did so in the course of concluding that Jullie was the SPP child of Ms Ashford: cf Secretary, Department of Social Security v Wetter (1993) 40 FCR 22 at 30 per Hill J where his Honour pointed out that where the circumstances of the case warrant it, the Tribunal, exercising the powers of the Secretary, must proceed to make a determination specifying which of the parents is to be taken as the person who, effectively, will receive the pension. So far as it applies to the facts of this case, the relevant legislation can therefore be summarised in these three propositions: first, either Mr Vidler or Ms Ashford will be entitled to a sole parent pension if he or she has, in Jullie, an SPP child; secondly, an SPP child is, by definition, a dependent child and thirdly, a dependent child is one who is embraced by the three tests that have been referred to above: that is, is there an adult who has the right to have the daily care and control of Jullie together with the right to make decisions about the daily care and control of Jullie and is Jullie in that adult's care and control? The first two tests refer to legal rights whilst the last test deals with the factual circumstances - does either Mr Vidler or Ms Ashford, as a matter of fact, have the actual care and control of Jullie? As the decision of the Tribunal was fundamentally based on the contents of the order of the Family Court of 11 December 1992, consideration must be given to those parts of the order that are relevant to this appeal. As has already been stated Mr Vidler and Ms Ashford were granted joint guardianship and joint custody of Jullie. Those two orders are important because they bring into operation, with respect to Jullie, the provisions of subss(1) and (2) of s63E of the Family Law Act 1975 (Cth); those subsections deal respectively with guardianship and custody in the following terms:- (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." The similarity in the language of subs63E(2) of the Family Law Act, dealing with the right to "daily care and control" and the right to make decisions on that subject, with the language in the definition of "dependent child" in subs5(2) of the Act is material. The only difference of importance is that the Act addresses the factual circumstances of the young person's actual care and control by its use of the words "and the young person is in the adult's care and control". The Tribunal correctly concluded (in the terms of the first two tests in the definition of "dependent child") that each of Mr Vidler and Ms Ashford was an adult having the right, jointly with the other, to have the daily care and control of Jullie and having the further joint right to make decisions about the daily care and control of Jullie. It remained for the Tribunal to address the issue of Jullie's actual care and control. The Tribunal came to the conclusion, based, no doubt, on the evidence that showed regular sharing of the child by the parents, that Jullie's "actual care and control is shared between them". The Tribunal found that there was, as between the parents, a "consistent pattern of care and control alternating every few days..." At this stage in its reasons it became necessary for the Tribunal to consider the application of s251 to the facts of this case. Unlike s869 of the Act which empowers the Secretary of the Department, in appropriate cases, to make a declaration stating that the Secretary is satisfied that two people are each qualified to specified shares of the family payment, no such apportionment of the sole parent pension is permitted. If there is competition between the parents of a young child for the pension and as a matter of law and fact, both parents met the several tests laid down in the legislation, the Secretary (or on review the Tribunal) must choose (upon the premise that both parents satisfy all tests) the one who will be awarded the pension. As Mr Vidler and Ms Ashford had met all tests I am of the opinion that the dissenting member of the SSAT fell into error in coming to the conclusion that neither parent should receive the pension. Difficult though it may be, there was a statutory obligation to make a choice in favour of one of the competing parties to the entire exclusion of the other. For the purpose of coming to a conclusion as to the operation of s251 with respect to Jullie, the Tribunal rested heavily on the order of the Family Court made on 11 December 1992. Included among the further orders made by that court were the following:- " ... 7. The Mother is to care for the child during those periods when the Father is engaged in employment. Should the Father not be in regular employment the period during which he shall have the care of the child shall not be increased without agreement, as a consequence of his unemployment. 8. The Father to have the care of the child during his rostered days off. 9. Should either party seek to alter the caring arrangements established that party shall give the other at least one day's notice. ... 11. Neither party shall remove the child from the Northern Territory of Australia without the prior written consent of the other party. Each party to advise the other as to specific travel details and the child to be returned to the other party for the equivalent continuous period thereafter. 12. The Father shall pay the sum of $50.00 per week to the Mother to assist her in caring for the child. 13. IT IS NOTED THAT: Each party is to adopt a co-operative attitude to ensure that each has a generous amount of time with the child and that she is cared for to the best of their mutual abilities and to ensure that if there are casual periods available to either that each party gives the other the opportunity to share. ..." The Tribunal concluded, and I agree, that pars7 and 8 did not affect or qualify the order of the Family Court that had awarded joint custody to the parents. The decision of the Tribunal on that issue was expressed in these terms:- "In the context of the Act, I do not consider that paragraphs 7 and 8 are intended to alter the effect of the joint custody order but are merely intended to establish who will have her actual care at particular times." Mr Vidler had kept detailed records of the hours during which Jullie was in his actual care and control. His calculations showed that in 1993 Jullie was with him for 51.2% of the time and that this grew to 55.8% in 1994. It was not suggested that the documentary evidence was wholly accurate; there were some gaps which had been supplemented by Mr Vidler's oral evidence. But it would seem that the Tribunal regarded the information in the records as reasonably representative of the time spent by Jullie with her parents. The Tribunal did not however treat these figures as conclusive. It said: "These figures do not reflect anything other than a rough 50:50 showing [sic: sharing] of time between Jullie's parents. This is so particularly when regard is had to the figures on a week by week and month by month basis and also to the fact that the overall figures are distorted by the fact that Mr Vidler had one extended period of care and control for approximately four weeks in January 1994. Ms Ashford has not had a similar extended period despite paragraph 11 of the Family Court's order. The effect of paragraph 11 is that Ms Ashford should have had an equivalent continuous period of caring for Jullie after the four week period with Mr Vidler." In my opinion, this was the correct conclusion. Furthermore it was a finding of fact, not to be interfered with by this court: Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77-78 per Brennan J. The Tribunal also said that it was not sufficient to have regard merely to the actual hours during which a particular parent had the care and control of a child if those hours did not accord with the terms of the Family Court order; it said that to do otherwise would be "to countenance a breach of the Family Court's order". As to the terms of that order, the Tribunal concluded that the proper interpretation meant that Ms Ashford was "to have the greater care of Jullie". Both these findings were attacked by the applicant but, in my opinion, they were both correct. The latter finding was the natural and logical consequence of a reading of the words used in the first sentence of O 7: "The mother is to care for the child during those periods when the father is engaged in employment". This did not mean that Ms Ashford merely had the care of Jullie during Mr Vidler's hours of employment: it applied to the complete periods of 24 hours during which he was pursuing his employment; so much is made clear (if there is any residual doubt) by O 8 which stated that the father was "to have the care of the child during his rostered days off". It is also fortified, to some extent, by Mr Vidler's obligation under 0 12 to pay Ms Ashford $50 per week to assist her in caring for Jullie. That suggests that Ms Ashford had the greater measure of actual care and control and consequently the greater financial commitment. Without descending into detail occasioned by his shift work, it is obvious that the order contemplated Ms Ashford having the care of Jullie for the equivalent of five complete days in every seven or thereabouts. It is a fact, however, that Mr Vidler enjoyed much longer periods with Jullie both before and after he ceased working. His claim that this was occasioned as a result of agreement with Ms Ashford was disputed by Ms Ashford and rejected by the Tribunal which said: "On the balance of probabilities, I do not consider that there has been any agreement between Mr Vidler and Ms Ashford altering the broad framework of the care arrangements set by the Family Court's Order. At most, there have been ad hoc agreements relating to particular periods of Jullie's care. Those periods relate only to a day or to a few days at most. In view of Ms Ashford's denial that there has been an agreement and in light of the frequent disagreements highlighted in Mr Vidler's affidavit and relating to arrangements regarding Jullie, I am unable to find that there has been an agreement between the parents on many of the occasions on which Jullie has moved from the care of one to the care of the other parent." That finding, being a finding of fact, is not open to review in this court but it was the finding which, no doubt, led to the Tribunal concluding that it should not "countenance a breach of the Family Court's order". Mr Vidler further complained that an analysis of his documentary records showed that prior to the consent order of 11 December 1992, Jullie spent more time in his care and control than with the mother; he claims that the Tribunal fell into error by either ignoring that fact or failing to give it sufficient weight. In my opinion, the Tribunal made no such error. Even if it be accepted that, as a matter of fact, Jullie spent more time with her father than her mother prior to December 1992, it was the order of the Family Court that constituted an intrusion on the rights that he had previously enjoyed. The Tribunal's duty was to interpret correctly the effect of the Order and, as I have said, I am of the opinion that it was correct in its interpretation. The applicant complained that the Tribunal had erroneously held that Mr Vidler's care and control of Jullie had increased after he became unemployed; it was said that there was no evidence or other material before the Tribunal that would justify such a finding. Should that be correct, it would be an error of law and this court would be able to embark on a review: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221 per Black CJ. That error was then compounded, so it was said, by the Tribunal unnecessarily investigating whether the parties had reached any agreement about changing their hours of care and control of Jullie. The correct position, according to the submissions that were advanced on behalf of the applicant was that Mr Vidler's care and control of Jullie had always been slightly more than that of Ms Ashford and the position had not materially changed after he lost his employment; because there had been no material change in circumstances it was inappropriate for the Tribunal to allude to any breach of the Family Court order and by doing so the Tribunal had fallen into reviewable error. The applicant further complained that the Tribunal had made a finding that Ms Ashford either had greater care of Jullie or had cared for her at least fifty per cent of the time while Mr Vidler was employed and that there was no evidence of sufficiently cogent, logical or probative value to support such a finding. Findings of fact that are made by a Tribunal must be supported "by some probative material which was properly before the Tribunal. If a finding of fact was not so supported, a 'decision' which was based upon it was invalid": Australian Broadcasting Tribunal v Bond (supra) at 367-368. As Deane J said in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 690 "findings of material fact of a statutory tribunal must ordinarily be based on logically probative material" and "the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation". The Privy Council express views in terms consistent with those of Mason CJ and Deane J in its advice in Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821. The complaints that have been raised on behalf of the applicant with respect to the findings of the Tribunal have overlooked, in my opinion, that the Tribunal had engaged in a dual exercise. In the first instance, the Tribunal had to make findings of fact with respect to the actual sharing of care and control of Jullie; that was necessary because of the third of the three tests that dealt with a "dependent child". Contrary to the complaints of the applicant, those findings were to the effect, as I have already stated, that Jullie's actual care and control was shared between Mr Vidler and Ms Ashford and that there was "a consistent pattern of care and control alternating every few days..." The need to investigate whether there had been any agreement between the parties to change the hours of care and control in favour of Mr Vidler was occasioned because he had asserted the existence of such an agreement and Ms Ashford had denied it. Secondly, and as a separate exercise, the Tribunal had to address the meaning and effect of the Family Court Order for the purpose of determining the rights of the parties (as expressed in the order) to have the care and control of Jullie. Upon a consideration of the reasons of the Tribunal in their entirety, I have come to the conclusion that the complaints of the applicant that there was no evidence of a sufficiently cogent, logical or probative value to sustain the challenged findings has not been made out. It was within the ability of the Tribunal to find, as a fact, on the evidence before it, that the parents had a pattern of sharing the care and control of Jullie but the Tribunal was correct in holding that the terms of the Family Court Order meant that Ms Ashford had an entitlement to a greater share of the care and control of Jullie. The researches of counsel did not provide any decisions of this court dealing with the entitlement to a sole parent pension under s249 of the Act. There are several authorities, however, dealing with the like subject in the Social Security Act 1947 (Cth) ("the 1947 Act"). In the 1947 Act, the entitlement was called a supporting parent's benefit and the term "dependent child" was defined in subs3(1) as meaning "a child under the age of 16 years who - (i) is in the custody, care and control of the person..." Subsection 3(2) of the 1947 Act then went on to provide that "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." In Secretary, Department of Social Security v Field (1989) 25 FCR 425, a Full Court of this court held 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 it also held that 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. But the court also said that a right of access for a parent to a child may be so framed in a court order as to give that parent the right to have and to make decisions concerning a child's daily care and control. As to this the court said at 428: "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." However, the Full Court went on to hold in Field's case that the intermittency of the access days in favour of the father (the mother having been awarded custody by order of the Family Court in place of a like order previously enjoyed by the father) meant that his rights of access could not properly be characterised as the right to have the daily care and control of his child. The court reached this conclusion notwithstanding that the father, in one year, had access to the child on 132 nights and 140 days and access on 134 nights and 146 days in the following year. Although there are differences in the language of the 1947 Act I am of the opinion that the decision in Field's case is still relevant for the purposes of determining this appeal. For example, I see no reason to interpret the concept of custody, care and control differently. Because of the Family Court's order the parents in this case have, as a matter of law, joint custody of Jullie and that gives them, as a matter of law, as distinct from a matter of fact, the two rights that are referred to in the definition of "dependent child", that is the right jointly, one with the other, to have daily care and control of Jullie and the further right, jointly one with the other, to make decisions about the daily care and control of Jullie. On those occasions when Jullie might, as a matter of fact, be in the care and control of one or other of her parents, she could, subject to the temporal restrictions that were imposed in Field's case, be the dependent child of that parent. That parent, assuming that he or she had met all other tests would then qualify for the pension because he or she has "at least one SPP child", such a child being by definition, a "dependent child". In Field's case the Full Court nominate a period of not less than 14 consecutive days, saying of the father that if, pursuant to an order of the Family Court, he had the right of access to his child in his own house for at least that period, he "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". Neither Mr Vidler nor Ms Ashford had such an entitlement to access. In Secretary, Department of Social Security v Wetter (1993) 40 FCR 22, Hill J applied the decision of the Full Court in Field's case, adding that the variation by agreement between the parties of the court order with respect to access did not suffice to distinguish the factual situation in Wetter's case. In Wetter's case, the father of a child had, by virtue of an order of the Family Court, sole guardianship and custody; the mother had access on week-ends and for half of the school holidays. The parents had thereafter agreed between themselves to vary the terms of the Family Court Order so that the mother had access on alternate weeks during which she had the day to day care and control of the child and met all expenses relating to the child. In those circumstances the Administrative Appeals Tribunal had determined that the mother should be entitled to the sole parent's pension during the periods of her access. The court allowed the appeal by the Department on the ground that where a Court Order is in existence, that order determines, in accordance with its terms, the legal right to the daily care and control of the child unless varied by subsequent order or a registered agreement. As the mother did not have the legal rights that flowed from an order for custody or an order for access of sufficient duration she was unable to establish dependency. A more extreme example of non-compliance with an order of the Family Court is to be found in the decision of the Administrative Appeals Tribunal in Re Juren and Secretary, Department of Social Security (1993) 30 ALD 613. In that case, the Family Court made a consent order that the child's father have sole custody. The father and child lived in Queensland whilst the mother lived in Melbourne. By agreement between the parents the child visited the mother in December 1991 but, against the wishes of the father, the mother kept the child until late July 1992. In January 1992 the mother claimed the sole parent pension but her claim was rejected for the reason that the daily care and control of the child remained with the father. The Tribunal was of the opinion that the mother, having acted in contempt of the custody order of the Family Court and inconsistently with her dealings with her former husband, it would be contrary to the public interest to consider her claim for the pension. Re Minassian and Secretary Department of Social Security and Beales (1990) 20 ALD 528 was also a case that dealt with the competing rights of parents to receive the equivalent of a sole parent pension (then called a supporting parent's benefit) under the 1947 Act. The father of a child had applied to the Tribunal for review of a decision by a delegate of the Department. The delegate had rejected his claim for the pension on the ground that the child was not the father's dependent child. Although both parents had applied for an order for custody of the child, the issue of custody had not been resolved in the Family Court by the time the Tribunal was called upon to determine the competing claims of the parents to the supporting parent's benefit. The Tribunal therefore concluded that the parents retained their rights at common law to joint custody and guardianship. In addition, the Tribunal found that the periods during which the child is with each parent was very short and occurred frequently. The Tribunal found that it was necessary to resort to the legislative equivalent of s251, noting (as is the case with s251) that the legislation did not specify any particular matter that was or might be taken into account in determining which parent was to be the person of whom the child was the dependent child. In that case, the Tribunal came down in favour of the father because it found that the only relevant factor which pointed favourably to one parent or the other was that the child spent 14 hours more per week with the father. The apparent arbitrariness of this decision was not brought about by the reasoning of the Tribunal but by the structure of the legislation that prohibited a sharing of the benefit. So understood, the decision of the Tribunal was quite proper and understandable. Re Edwards and Secretary Department of Social Security (1994) 32 ALD 711 was a decision of the Tribunal that dealt with (inter alia) rights to a sole parent pension under the current legislation. In that case the father, Mr Edwards applied for the pension in January 1992; at that time it was being paid to the mother of the child. Earlier in May 1991, an order under the Family Law Act gave the parents joint guardianship of the child but gave the mother sole custody. In December 1991 that order was varied to give Mr Edwards access to the child each alternative week. In November 1992 the orders made in December 1991 were discharged and Mr Edwards was granted custody of the child each alternate week. The Tribunal found, without difficulty, that the claim made by Mr Edwards in January 1992 could not succeed because at that time the mother of the child had custody and Mr Edwards lacked those rights of care and control which were needed before he could rightfully call his daughter his "dependent child". The situation changed in November 1992 because of the change in the custodial circumstances in the new order of the court. The parents did not then have joint custody of the child but they had alternating custody week and week about. The Tribunal was therefore required to consider whether these changed circumstances affected the entitlement to the sole parent pension. The Tribunal concluded that Mr Edwards still did not qualify to receive the pension. It found that Mr Edwards' weeks of access did not coincide with pension pay days and, hence, he was not qualified for a Social Security benefit (i.e. the pension). Counsel for the applicant claimed that an examination of Mr Vidler's records (that recorded the days and hours during which Jullie was in his actual care and control) showed that on a preponderance of occasions Jullie was in her father's actual care and control on pension pay days; he claimed that the decisions in Field, Wetter and Edwards supported a proposition that this meant that the Tribunal erred in overlooking those facts. I do not consider that such a proposition is valid nor do I consider that the cases cited afford assistance to the applicant. In Field's case, the Full Court was explaining that access of an extended duration pursuant to an order of a competent court of jurisdiction could justify a change in entitlement to the sole parent pension. It used the 14 day period of pension pay days only for the purpose of identifying a minimum period before there might be such a change; Wetter's case merely followed Field's case in this area and for the reasons that are set out hereunder I do not consider that Edward's case should be followed. I do not consider that the identity of the parent who had actual care and control of a child on a particular pension day was the correct approach. The better position would have been to recognise that the parents now had like legal rights and, if as a matter of fact, (as seems to be the case because of the Tribunal's reference to s251 of the Act) the Tribunal was of the opinion that the parents now shared equally the actual care and control of the child to call in aid s251. The utilisation of that section and the recognition that Field's case, requiring a change in actual care and control of a minimum period of 14 days, would have brought about a determination contrary to Mr Edward's interests. Mr Vidler further complained that he was denied procedural fairness because, first, certain documents that were tendered by him to the SSAT were not put before the Tribunal or accepted in evidence by the Tribunal and, secondly, he was not given the opportunity to cross-examine Ms Ashford. In order to assess these complaints I have read the transcript of proceedings before the Tribunal. The proceedings were conducted in an informal fashion - somewhat in the nature of a "round-table conference". Hence, neither Mr Vidler nor Ms Ashford was sworn in as a witness. It is true that the Tribunal did not extend an invitation to Mr Vidler in specific terms to cross-examine or question Ms Ashford, but the Tribunal did give him ample opportunity to make his submissions, present his documents and argue his case. In particular the Tribunal, towards the end of the hearing, specifically asked Mr Vidler if there was any other issue that he would like to raise. Mr Vidler responded with a statement asserting his cause but made no mention of a desire to question Ms Ashford even though he had, at various stages of the hearing, freely criticised some of her statements. The Tribunal did reject some documents that Mr Vidler sought to place before the Tribunal. It is not clear from the transcript what they were and as the issue was not further addressed in this hearing it is not possible for me to express any opinion other than to say that the applicant has not made out either of these complaints. In my opinion the Tribunal correctly interpreted the relevant provisions of the Act and the terms of the order of the Family Court; I am also of the opinion that the findings of fact that were the subject of challenge in this court were available to the Tribunal on the material that was before it. There remains for consideration one final matter. In the proceedings before the Tribunal Mr Vidler and Ms Ashford appeared in person whilst the Department was represented by one of its officers. The Departmental officer explained to the Tribunal that the Department took the view that it should adopt a neutral position; it recognised that it had an obligation to pay a sole parent pension to one or other of Jullie's parents and the only issue, so it said, was the identity of the recipient. That statement was presumably correct with respect to the facts of this case but it is not a statement of universal application; there could be occasions when an applicant does not qualify for the pension. In such a case the Department would undoubtedly take an active role in the proceedings in order to protect the revenue. In any event, the Tribunal accepted the stand adopted by the Department and proceeded with its inquiry into the matter. When the matter was called on for hearing in this court, Mr Silvester announced his appearance as counsel for the Department; Mr Hardy, counsel for Mr Vidler, immediately complained that the Department should not be heard save in respect of "submissions going to the powers and procedures of the Tribunal", an expression that is found in the judgment of the High Court in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 36 (Hardiman's case). It was Mr Hardy's submission that the real protagonists in this litigation were Mr Vidler and Ms Ashford; he submitted therefore that the role of the Department as a litigant should be reduced in accordance with the views of the High Court. In my opinion, there is no substance in this proposition. The role of the litigants in Hardiman's case was quite different. In that case the High Court had to consider an application to make absolute an order nisi for mandamus and prohibition directed to the Australian Broadcasting Tribunal, its members and certain companies who had applied to the Tribunal for approval of certain complex commercial transactions. The prosecutors were members of the executive of a political party who were considered by the Tribunal to be persons having an interest in its inquiry. The prosecutors sought relief in the High Court because, so it was claimed, the Tribunal had failed to conduct appropriate investigations and had failed (inter alia) to allow the prosecutors a reasonable opportunity to present their case and to cross-examine witnesses called by the other parties. The Tribunal appeared by counsel before the High Court and sought to engage actively in the proceedings. As to this, the court said at 35-36: "Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal." I reject the submission that, in these proceedings the Department, and the role that it had to play, is to be equated with the Australian Broadcasting Tribunal in Hardiman's case. The true comparison is between the Administrative Appeals Tribunal and the Australian Broadcasting Tribunal. There are numerous cases where the Department has appeared as an active, participating litigant in this court to defend its decisions to grant or withhold social security benefits. Field's case and Wetter's case are examples of the Department taking an active role as an appellant and an applicant in this court. Mr Hardy referred to several other cases in support of his argument that the role of the Department in these proceedings was a limited one, but I am satisfied that none of them is applicable. For example, Kelly v Coats (1981) 35 ALR 93 dealt with an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review a decision of a Repatriation Board; the Board had refused the applicant a pension and the members of the Board, having been named as respondents, were concerned that by participating in the hearing they might endanger their impartiality in any proceedings that might result from it. That, clearly, is not the position here. The next case to which he referred was Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166. In that case, the applicants were unsuccessful in making submissions to the Forestry Commission; they therefore sought judicial review naming the Commission and its members as respondents to their application. However, as Burchett J pointed out in his judgment (p168), because of the comments of the High Court in Hardiman's case, the application was amended to add the Commonwealth of Australia as an additional respondent. Burchett J addressed the same issue in Minister for Community Services and Health v Thoo (1987-1988) 8 AAR 245. In that case a medical practitioner had successfully sought review in the Administrative Appeals Tribunal of a decision of the Medicare Participation Review Committee. Following the Tribunal's decision, both the Minister for Community Services and Health and the Medical Participation Review Committee appealed to this court, seeking the restoration of the decision of the committee. His Honour said, referring to Hardiman's case, that it was not clear to him "why the committee, assuming it has the capacity to be a party in its own name, should be an applicant in this court for relief of that kind". (255) There will, of course, be cases where there are no traditional adversary parties appearing before an Administrative body or the court. Northrop J noted such a possibility in Sordini v Wilcox (1982) 42 ALR 245 at 255 saying: "... it is important that the court receive assistance of counsel appearing for the administrative body making the decision which is being challenged under the Judicial Review Act." Finally, mention should be made of the comments of Spender J in Aldridge v Booth (1988) 80 ALR 1 as an example of the limited right of audience for the body whose decision is under challenge: "Senior counsel for the Commission indicated that it was not sought by the intervention to become a protagonist in the matter, but to enable submissions to be put concerning the practice and procedures to be adopted and on any questions of law raised in the application. It was indicated that, subject to a reservation to resist any attacks made on the integrity of the former Commission and its procedures, it did not seek to be in any way involved in the merits of the matter." (9) None of these five additional cases upon which counsel relied can properly be applied to the facts and circumstances of this case. Whilst it is, in a sense, true to say that Mr Vidler and Ms Ashford were the main protagonists, the decision of the Tribunal had an affect upon the Department - specifically with respect to this case and generally with respect to the future administration of the Act. The Department was entitled therefore to appear and to address such issues in the case as it deemed appropriate. I have come to the conclusion that this appeal must be dismissed with costs. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice O'Loughlin. Associate Dated: Counsel for the Applicant : Mr M A Hardie Solicitors for the Applicant: Ward Keller Counsel for the First Respondent Department of Social Security : Mr A H Silvester Solicitors for the First Respondent : Australian Government Solicitor No Appearance by the Second Respondent Hearing Date : 6, 7 and 8 November 1995 CATCHWORDS SOCIAL SECURITY - Sole parent pension - tests for determining entitlement - Tribunal's obligation to choose between competing applicants when both have equal entitlements. PROCEDURE - Right of Department of Social Security to be represented and to participate in hearing. Administrative Appeals Tribunal Act 1975 (Cth) Social Security Act 1991 (Cth) Social Security Act 1947 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Family Law Act 1975 (Cth) Secretary, Department of Social Security v Wetter (1993) 40 FCR 22 Waterford v Commonwealth of Australia (1987) 163 CLR 54 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 Mahon v Air New Zealand Ltd [1984] AC 808 Secretary, Department of Social Security v Field (1989) 25 FCR 425 Secretary, Department of Social Security v Wetter (1993) 40 FCR 22 Re Juren and Secretary, Department of Social Security (1993) 30 ALD 613 Re Minassian and Secretary Department of Social Security and Beales (1990) 20 ALD 528 Re Edwards and Secretary Department of Social Security (1994) 32 ALD 711 The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Kelly v Coats (1981) 35 ALR 93 Australian Conservation Foundation v Forestry Commission(1988) 81 ALR 166 Minister for Community Services and Health v Thoo (1987-1988) 8 AAR 245 Sordini v Wilcox (1982) 42 ALR 245 Aldridge v Booth (1988) 80 ALR 1 No: DG2 of 1995 NIJEL LYLE VIDLER Applicant - and - SECRETARY, DEPARTMENT OF SOCIAL SECURITY AND SAMNIANG ASHFORD Respondents O'LOUGHLIN J. ADELAIDE (Heard in Darwin) 21 DECEMBER 1995 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 MINUTES OF ORDER JUDGE MAKING ORDER : O'LOUGHLIN J. WHERE MADE : ADELAIDE (Heard in Darwin) DATE OF ORDER : 21 DECEMBER 1995 THE COURT ORDERS THAT: The appeal be dismiised with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.