Elliott, Mark v Secretary Department of Social Security & Anor [1995] FCA 1102

CATCHWORDS Social Security - family payment - entitlement to - family allowance paid in full to custodial parent - whether family payment should be divided between both parents - whether access amounted to a legal right to have and to make decisions concerning the daily care and control of a child in the circumstances - whether a right to care and control has become a right to daily care and control - access must be for a substantial continuous period unless particular circumstances can be shown to exist. Social Security Act 1991 s 5(2), s 831(1), s 838(1), s 869(1) Family Law Act 1975 s 63E, s 64(2) Social Security Act 1947 s 3 Social Security (Family Payment) Amendment Act 1992 Secretary, Department of Social Security v Field (1989) 25 FCR 425 at 428 to 430, applied. Secretary, Department of Social Security v Wetter (1993) 40 FCR 22, referred. Re Juren and Secretary, Department of Social Security (1933) 30 ALD 613, referred. Re Vidler and Secretary, Department of Social Security (1994) 20 AAR 223, referred. MARK ELLIOTT v SECRETARY, DEPARTMENT OF SOCIAL SECURITY & ANOR No. NG497 of 1994 CORAM: Lehane J PLACE: Sydney DATE: 14 December 1995

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 MINUTE OF ORDERS THE COURT ORDERS 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. 3. The first respondent pay the applicant's costs of the appeal. 4. The operation of order 3 above be suspended until 5.00pm on Friday, 22 December 1995, with liberty to any party to apply on or before that date on one day's notice. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.