Secretary, Department of Social Security v Lowe [1999] FCA 705

Secretary, Department of Social Security v Lowe [1999] FCA 705

The child was, on the Tribunal's findings, in the care of both parents under an enduring shared-care arrangement, even though each parent had immediate physical care on alternate weeks. Sections 5(2) and 251 of the Social Security Act 1991 (Cth) had to be construed in light of their beneficial purpose and historical context, so that s 251 applied and required the Secretary to specify one person whose SPP child the young person was to be. The Administrative Appeals Tribunal therefore did not err in law in awarding the sole parent pension to Maria Theresa Schembri rather than Mr Lowe.

Jurisdiction
Australia
Judgment Date
28 May 1999
Procedural Posture
Appeal and Cross Appeal From a Judge of the Federal Court of Australia Concerning an Administrative Appeals Tribunal Decision on Sole Parent Pension / Full Court of the Federal Court of Australia; Judgment on Appeal and Cross Appeal
Outcome
Appeal allowed; order below varied by adding a declaration; cross-appeal dismissed; no order as to costs.
Legal Topics
['sole Parent Pension' 'spp Child' 'dependent Child' 'shared Care of Child Between Separated Parents' 'statutory Construction of Beneficial Legislation' 'appeals Against Orders Rather Than Reasons']
['administrative Law' 'social Security Law'] ['sole Parent Pension' 'spp Child' 'dependent Child' 'shared Care of Child Between Separated Parents' 'statutory Construction of Beneficial Legislation' 'appeals Against Orders Rather Than Reasons']

Case Brief

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Procedural Posture

Appeal and Cross Appeal From a Judge of the Federal Court of Australia Concerning an Administrative Appeals Tribunal Decision on Sole Parent Pension / Full Court of the Federal Court of Australia; Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether, where separated parents cared for their child week and week about by agreement, the child was an SPP child of both parents so that s 251 of the Social Security Act 1991 (Cth) required the Secretary to choose one recipient of the sole parent pension.' 'Whether the expression "in the adult\'s care" in s 5(2) of the Social Security Act 1991 (Cth) required immediate physical care by the adult for the whole pension period.' 'Whether the words "at a time" in s 251 of the Social Security Act 1991 (Cth) required the care arrangements to be dissected week by week.' 'Whether an appeal court could vary an order by adding a declaration where the order below was correct but the reasons left open erroneous conclusions.']

Ratio Decidendi

The child was, on the Tribunal's findings, in the care of both parents under an enduring shared-care arrangement, even though each parent had immediate physical care on alternate weeks. Sections 5(2) and 251 of the Social Security Act 1991 (Cth) had to be construed in light of their beneficial purpose and historical context, so that s 251 applied and required the Secretary to specify one person whose SPP child the young person was to be. The Administrative Appeals Tribunal therefore did not err in law in awarding the sole parent pension to Maria Theresa Schembri rather than Mr Lowe.

Court Disposition

Appeal allowed; order below varied by adding a declaration; cross-appeal dismissed; no order as to costs.

Orders

  • ['The appeal be allowed.' 'The order made below be varied by the addition of a declaration that the Administrative Appeals Tribunal did not, upon its findings of fact, err in law in awarding the sole parent pension to Maria Theresa Schembri.' 'The cross-appeal be dismissed.' 'There be no order as to the costs of the...