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

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

Ms Elliott, as a parent with access but not custody, does not possess the legal right to daily care and control of the children for periods sufficient to qualify jointly for family payment under section 5(2) of the Social Security Act 1991. Intermittent and brief access (including five-day periods) does not establish the necessary rights under the statutory test as interpreted by Field. Therefore, the family payment should be paid in full to Mr Elliott, the custodial parent.

Jurisdiction
Australia
Judgment Date
14 December 1995
Procedural Posture
Appeal / Federal Court Decision on Appeal From Administrative Appeals Tribunal
Outcome
Appeal allowed
Legal Topics
['family Payment' 'dependent Child Definition' 'custody and Access' 'administrative Review']
['social Security Law' 'family Law'] ['family Payment' 'dependent Child Definition' 'custody and Access' 'administrative Review']

Case Brief

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Procedural Posture

Appeal / Federal Court Decision on Appeal From Administrative Appeals Tribunal

Legal Issues

  1. 1 ['Whether the family payment under the Social Security Act 1991 should be divided between both parents or paid in full to the custodial parent' 'Whether the access arrangement conferred legal rights of daily care and control on the parent with access' 'Whether a right to care and control in an access order amounts to a right to daily care and control under the Act']

Ratio Decidendi

Ms Elliott, as a parent with access but not custody, does not possess the legal right to daily care and control of the children for periods sufficient to qualify jointly for family payment under section 5(2) of the Social Security Act 1991. Intermittent and brief access (including five-day periods) does not establish the necessary rights under the statutory test as interpreted by Field. Therefore, the family payment should be paid in full to Mr Elliott, the custodial parent.

Court Disposition

Appeal allowed

Orders

  • ['The decision of the Administrative Appeals Tribunal is set aside.' 'The decision of the Social Security Appeals Tribunal dated 13 November 1992 is set aside.' 'The decision of the delegate of the Secretary of 21 July 1992 is confirmed (i.e., family payment in full to the applicant).' "The first respondent is to...