Guyder, Alan John v Secretary, Department of Social Security & Anor [1998] FCA 420

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - appeal from a decision of the Administrative Appeals Tribunal. SOCIAL SECURITY LAW - eligibility for the sole parent pension under s 251 of the Social Security Act 1991 (Cth) - only one eligible parent permitted - criteria for determination by delegate as between eligible parents with an equal degree of care, custody and control in law and in fact - whether financial situation of each parent is a relevant criterion. Administrative Appeals Tribunal Act 1975 (Cth) - s 44 Social Security Act 1991 (Cth) -ss 5, 5(2), 249, 250, 251(1), 251(2) Vidler v Department of Social Security (1995) 61 FCR 370 - considered ALAN JOHN GUYDER v SECRETARY, DEPARTMENT OF SOCIAL SECURITY AND MARGARET GUYDER QG 91 of 1996 FOSTER J 25 MARCH 1998 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 91 of 1996

on appeal from the Social Security Appeals Tribunal

BETWEEN: alan john guyder

Appellant

AND: secretary, department of social security

First Respondent

MARGARET guyder

Second Respondent

JUDGE: FOSTER J

DATE OF ORDER: 25 MARCH 1998

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the second respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 91 of 1996

on appeal from the Social Security Appeals Tribunal

BETWEEN: alan john guyder

Appellant

AND: secretary, department of social security

First Respondent

MARGARET guyder

Second Respondent

JUDGE: FOSTER J

DATE: 25 MARCH 1998

PLACE: BRISBANE

REASONS FOR JUDGMENT (Extempore) This is an appeal from a decision of a Senior Member of the Administrative Appeals Tribunal given on 29 May 1996. By his decision, the learned Senior Member affirmed a decision of the Social Security Appeals Tribunal, given on 1 September 1995, which, in turn, had affirmed a previous decision of a delegate of the Department of Social Security. The decision so affirmed was one rejecting a claim by the appellant in these proceedings, Alan John Guyder, for a claim for a sole parent pension under the provisions of the Social Security Act 1991 (Cth) ("the Act"). The appeal from the Administrative Appeals Tribunal to this Court, by virtue of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), is restricted to a question of law. The appeal from the Social Security Appeals Tribunal to the Senior Member was, of course, an appeal on the merits of the decision. This required that the Senior Member enter into a consideration of all the relevant facts of the case and the inferences that could be drawn from those facts. This Court is expressly excluded from entering into any such inquiry. It appears that the appellant and his wife Margaret Guyder separated on about 5 January 1993 and subsequently were divorced in November of the following year. There were three children of their union, Andrew John, Mark Kenneth, and Richard Alan, all of whom are under the age of 16 years. The day after the separation occurred, it appears that Mrs Guyder made an application for a supporting parents pension, which was granted to her. It was granted, apparently, in circumstances where there had been no input by the appellant into considerations relating to the grant. This occurred, apparently, because he was unaware that the decision was being made. Thereafter, there have been a number of applications and decisions which it is unnecessary to make reference to, except to say they have culminated in the decision under appeal. Sections 5, 249, 250 and 251 of the Act provide the legislative framework bearing upon the decision of the Senior Member, and within which I must consider the question of whether an error of law has been demonstrated. I will not set the sections out in full in these short reasons but will simply refer to their relevant features. By s 249(1), a person is qualified for a sole parent pension ("SPP") if that person is not a member of a couple and has at least one "SPP child" as defined in the Act. An SPP child is defined in s 250 of the Act. It requires that the relevant young person is a dependent child of the adult and has not turned 16. "Dependent child" is again defined in subs 5(2) of the Act. A young person is a dependent child of an adult person 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; ..." The source of the difficulty in the case before the learned Senior Member and in this case on appeal is to be found in subs 251(1), which provides that "a young person can be an SPP child of only one person at a time". Subsection 251(2) provides that if the Secretary is satisfied that but for this requirement a young person would be an SPP person of two or more persons, then the Secretary is to make a written determination of this satisfaction and is to specify in the determination the person whose SPP child the young person is to be. However, no provision is made in the section for the bases upon which the Secretary is to make such a determination. Not surprisingly in these circumstances, tribunals and courts have had to arrive at some tests, which I do not understand to be exhaustive, to assist the Secretary in the making of the decision which subs 251(2) requires. In written submissions, I have been referred to a number of cases. The last in the series is the decision of O'Loughlin J in Vidler v Department of Social Security (1995) 61 FLR 370. I do not propose to set out at length passages from his Honour's judgment. I consider that the gravamen of it has, in fact, been correctly set out in the reasons of the senior member in the decision under review. He said of that case:- "O'Loughlin J reviewed a number of cases in which this vexed question of choosing between two parents arose. In the end it is a question of fact and degree as to which parent has the greater degree of legal rights of custody, care and control or which party has the greater factual custody, care and control." I do not understand that it has been contested that this is an accurate summation of the principles considered and expounded by O'Loughlin J in Vidler. If I might say so, with respect, when one considers the absence of any guidance in s 251(2), it would be a reasonable approach to have regard to the relative degrees of factual custody, care and control exercised by each of the separated partners, in determining which partner should be selected for the purpose of receiving the pension, in circumstances where the legislation does not allow each to receive it, and does not provide for any determination to be made that it is to be shared equally or in some appropriate proportion. The attack which has been made upon the decision of the learned Senior Member and which has been put most cogently and lucidly by Mr Stephens, who has said everything that could possibly be said on behalf of his client in this matter, is twofold. First, it is said that a reading of the reasons for decision of the learned Senior Member necessarily discloses that, although he posed for himself the correct test from Vidler, he expressly refrained from applying it. Secondly, it is said that the criterion used by the Tribunal was not permitted under the legislation. Turning now to the first criticism, it has frequently been held in decisions of this Court that in approaching the decisions of administrative tribunals the Court should, as I think it has been put, not examine them with an eye finely attuned to the detection of error. Decisions must be read reasonably without an over-cautious approach to the question of whether some error of law is hidden in the reasons that are given. In paragraph 11 of the Tribunal's reasons, it is stated:- "Mr and Mrs Guyder have made numerous statements to DSS officers over the last few years. Those statements appear in the T documents and in the supplementary T documents. Mr and Mrs Guyder both gave evidence to the Tribunal." In the course of argument, by way of example, I have been taken to some of this evidence that was given. It is plain that matters of care and control were heavily debated before the Tribunal and have been the subject of considerable contest and exposition in the documentary material that has accumulated throughout the course of this dispute. The Tribunal said that:- "Taking all of the statements and oral evidence into account I find as follows: (a) Mr. and Mrs. Guyder have equal custody and guardianship of the three children. (b) Mr. and Mrs. Guyder have equal care and control over the lives of the three children. (c) Mr. and Mrs. Guyder have equal physical possession of the three children. (d) Mr. and Mrs. Guyder are equal in their love and concern for the three children. (e) Mr. and Mrs. Guyder both give much of their spare time to school and extra-curricular activities of the three children. (f) The parental sharing of custody, possession and attendance at sporting functions seems to have been worked out equally between them by a method based on mathematical precision. (g) In particular, and by way of example of above matters, Mr. and Mrs. Guyder have been involved in the following activities." The Member then set out, in the form of a list, a number of activities engaged in by each of the parents. He subsequently considered questions of the selection of educational institutions for the boys. After this he considered the financial situation of the parties in terms which I am satisfied indicate that he was making findings of fact in those regards. He then included a paragraph in his reasons which has been the subject of debate before me. Mr Stephens has submitted that this paragraph sufficiently indicates that although the Tribunal was purporting to apply the test to be found in Vidler, it in fact was failing to apply it, and in a sense, was backing away from it and refusing to apply it. I think it important, having regard to the earnest submissions that were made in this regard, that I set out this paragraph. It reads as follows:- "There was a suggestion in the way in which the parties' cases were initially presented that the Tribunal should give points to the various activities engaged in by the parents and then decide the issue on the basis of the winner being the parent accumulating the higher number of aggregate points. To get involved in such a process would inevitably lead to an attempt to put a value on, for example, the duties of the President of the P & C Association as against the value of secretary of the scout group, and so on. I do not believe that such an exercise would be helpful in this case." As I have already indicated, after reading the Tribunal's reasons fairly, in the manner that I am required to do, I am unable to accept a submission that, by including this passage, the Tribunal was indicating that the Vidler test was not being applied or was refusing to apply it. The reference to a points system clearly indicates to me that the Senior Member was refusing to enter into what - to his way of thinking - would have been a most arid and sterile way of approaching the matter, which must largely be decided as a question of fact and degree based upon impressions gained from the whole of the material before him. The concluding part of the paragraph in question indicates to me quite sufficiently that he was not committing any error of law of the kind submitted. He said:- "I find that both parents love their boys equally; they have equal legal rights of custody, care, and control; they have equal periods in fact of custody, care, control and access; their contributions to the curricular and extra-curricular activities of the boys are equal; there is equality in their commitment to the emotional well-being of the boys; no one boy is treated differently to the other two." I am quite satisfied that those were findings of fact made by the Tribunal with due regard to the Vidler test and after consideration as to whether, on the facts presented to it, it could make a meaningful differentiation between the two parents as to whether one had a greater degree of custody, care, and control, both in law and in fact, than had the other. This case is therefore a different one from Vidler and other cases that have been referred to in written submissions placed before me. This is a case where the learned member, having applied the test, reached a situation where he could not, on the basis of that test, make any relevant differentiation between the parties who were rival claimants for this pension. However, subs 251(2) required that, notwithstanding this balance as between the parents, he must make a determination as to which parent should be the recipient of the pension. Although there is nothing in the section which would indicate precisely that an arbitrary approach would be inappropriate in situations where the matter was totally in balance, it would appear the Senior Member sought to avoid making a decision in that way. He considered whether there was some other distinguishing factor which would enable him to decide the case and, in effect, award the pension to one or the other. He said that in circumstances where "all of the usual criteria are equal", he would select a method of choosing based upon a comparison of financial needs. This method has been the subject of the second submission as to the vitiation of the member's decision by error of law. It is put, again most cogently, by Mr Stephens that there is no warrant in the legislation for the criterion of financial need which was selected by the Tribunal. I have come to the conclusion that it was open to the Tribunal to have regard to this criterion. It is true, as the member says in his reasons, that Social Security benefits are paid to people as income support because they are in a disadvantaged state. Although one can readily see the sections of the Act under consideration in this case as being sections directed towards the welfare of the children, the financial situation of the parents who are attending to the welfare of the children and making necessary expenditures on their behalf, produces a situation, in my view, where it is relevant to consider the financial situations of each of the parents, and accordingly, the needs which may be met by the award to one or the other of the pension under consideration. There is, in my view, a sufficient connection between the needs of the children and the financial needs of the parents to make it relevant to consider, as the Tribunal did, the relative financial needs of each. In those circumstances, I can find no error of law in the Tribunal selecting that particular criterion and applying it. The application of it, of course, involved only questions of fact which are outside the purview of this appeal. In these circumstances, I have come to the conclusion that no relevant error of law has been demonstrated. The result is that this appeal must be dismissed with costs. I should indicate that no costs are sought by the first respondent, the Secretary of the Department, who appeared merely in order to assist the Court in arriving at its decision on questions of law. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster