D v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 1520

DRAFTD v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 1520 [21 June 2013]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCIV 2012-488-2527[2013] NZHC 1520BETWEEN DAppellantAND CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 1 May 2013Appearances: Appellant in personN Gray for respondentJudgment: 21 June 2013JUDGMENT OF ALLAN JIn accordance with r 11.5 I direct that the Registrar endorse this judgmentwith the delivery time of 5 pm on Friday 21 June 2013Solicitors:Appellant in personCrown Law, WellingtonIntroduction[1] Mr D appealed to the Social Security Appeal Authority (the Authority) in respect of a decision of the Chief Executive, upheld by a Benefits Review Committee, declining his applications for a Domestic Purposes Benefit at a sole parent rate.[2] Section 70B of the Social Security Act 1964 (the Act) provides that only one parent can have a child included in the assessment of their entitlement to benefit. At the time of his applications to have his daughter included in his benefit, she was already included in benefits paid to the child's mother.[3] The appellant had made two applications for benefits calculated at a sole parent rate, in November 2008 and December 2009 respectively. The Authority considered both applications. It conducted an oral hearing on 6 March 2012, adjourned part heard to 16 May 2012 when the hearing was concluded. Mr D and his former wife, Ms S, each gave oral evidence and was cross-examined. The Authority delivered a determination on 7 June 2012. It declined Mr D's appeal.[4] He now appeals to this Court by way of case stated. The Court's opinion issought in respect of the following matters:(a) Was there any evidence on which the Authority could conclude that between August 2008 and December 2009, Ms S had greater responsibility for their daughter A than the appellant for the purposes of s 70B of the Act?(b) Was there any evidence upon which the Authority could conclude thatimmediately prior to the appellant's separation from Ms S, she wasthe principal caregiver of A for the purposes of s 70B of the Act? and(c) As a matter of law did the Authority interpret s 70B of the Act correctly?Brief factual background[5] A was born in June 2005. At that time both parents were living in the family home on a full time basis. Between February 2006 and December 2007, Mr D undertook a variety of contract projects overseas, returning home from time to time during that period. He and Ms S separated in June 2008 when A was about to turn three years old. At the time of the separation, Ms S took A to Christchurch where she obtained temporary without notice parenting orders in respect of A. But between August 2008 and December 2009 the parties were again in Whangarei, where theyhad lived during the marriage. For that period, A was in her father's care from aftercrèche on a Thursday until 10 am on Sunday each week and in her mother's care forthe rest of the week, pursuant to a written parenting order made on 4 August 2008. In a judgment of the Family Court at Whangarei dated 5 October 2009, the Judge considered that A had been in effect in Mr D's care for three days a week and in Ms S's care for four days a week during this period.[6] That Family Court judgment ordered a new parenting arrangement to begin from the commencement of primary school term one in 2010. It provided for A to live in the day to day care of her respective parents on a seven day rotation, with the change over occurring after school. In addition, A was to spend Wednesday evening in the care of the parent with whom she was not living in that particular week. School holidays were to be divided equally. Each parent was responsible for A'sdaily activities when she was in the care of that parent. Likewise, each parent paidfor A's expenses when she was with that parent. Decisions about schooling, medicaltreatment and so forth were to be taken jointly.Third question of law: proper interpretation of s 70B[7] Because the proper application of s 70B of the Act was central to the outcome of Mr D's appeal to the Authority, it is convenient to consider this third question oflaw first.[8] Mr D's challenge to the Authority's application of s 70B was confined to an argument based on the definition of the expression "principal caregiver" in s 3 of theAct. I deal with it separately below. More generally it is sufficient to consider theprovisions of s 70B only briefly, because the effect of the section is in my view clear, and the Authority has correctly interpreted it.[9] Section 70B provides:Entitlement to benefits in cases of shared custody(1) If the parents of a dependent child—(a) Are living apart; and(b) Are both beneficiaries; and(c) Each has the primary responsibility for the care of that child for at least 40 percent of the time—only the parent whom the chief executive is satisfied has the greater responsibility for the child shall be entitled to have that child taken into account by the chief executive in assessing that parent's entitlement to a benefit and the rate of benefit payable at any one time.(2) In deciding which parent has the greater responsibility for the child, the chief executive shall have regard primarily to the periods the child is in the care of each parent and then to the following factors:(a) How the responsibility for decisions about the daily activities of the child is shared; and(b) Who is responsible for taking the child to and from school and supervising that child's leisure activities; and(c) How decisions about the education or health care of the child are made; and(d) The financial arrangements for the child's material support; and(e) Which parent pays for which expenses of the child.(3) If the chief executive is unable to ascertain that one parent has the greater responsibility for the child than the other, only the parent whom the chief executive ascertains was the principal caregiver in respect of the child immediately before the parents began living apart shall be entitled to have that child taken into account by the chief executive in assessing that parent's entitlement to a benefit and the rate of benefit payable.(4) If the chief executive is unable to ascertain which of the parents has the greater responsibility for the child or which of them was the principal caregiver before the parents began living apart, the parents shall agree between themselves as to which of them shall be entitled to have that child taken into account by the chief executive inassessing entitlement to a benefit and the rate of benefit payable; and until the parents reach agreement the child shall not be taken into account in assessing the entitlement to a benefit of, or the rate of benefit payable to, either parent.[10] Section 70B applies where the parents of a dependent child are living apart, are both beneficiaries and each has the primary responsibility for the care of that child for at least 40% of the time. The section is designed to ensure an appropriate outcome where parents are making roughly comparable contributions to the care of the child concerned. It does not apply where the contributions are more uneven because in such cases the entitlement of the parent making the greater contribution will be beyond challenge.[11] Where each parent has the primary responsibility for the care of the child for at least 40% of the time, then the Chief Executive must determine which parent has the greater responsibility for the child, and only that parent is entitled to have the child taken into account in assessing benefit entitlements.1[12] In deciding which parent has the greater responsibility for the child, the Chief Executive is required to have primary regard to the periods the child is in the care of each parent. So that factor is entitled to particular weight. Then the Chief Executive must have regard to the remaining five factors set out in s 70B(2). Section 70B(3) applies only where the Chief Executive is unable to ascertain that one parent has the greater responsibility for the child than the other. If a decision can be reached in the light of the factors set out in s 70B(2), then there is no need to consider s 70B(3) at all. But if the Chief Executive cannot make a determination under s 70B(2), then he must ascertain which parent was the principal caregiver in respect of the child immediately before the parents began living apart. That is the parent who is entitled to have the child taken into account in an assessment of benefit entitlements and rates, to the exclusion of the other parent.[13] Section 70B(4) is in effect a provision of last resort. If the Chief Executive cannot determine who the principal caregiver was prior to separation, then the parents must reach an agreement between themselves. Unless and until they do,1 Section 70B(1).neither parent is entitled to have the child taken into account in respect of the assessment of benefit entitlements and rates of benefit.[14] All of that is relatively self-evident. The Authority is a specialist body accustomed to considering and applying the section. There is nothing in theAuthority's decision of 7 June 2012 to suggest that it misunderstood therequirements of the section. On the contrary, various questions posed by Ms Wallace, chair of the Authority, are consistent with a thorough understanding of the legislation.[15] I turn now to Mr D's point about the definition of the term "principal caregiver". Section 3 defines the expression "principal caregiver" (as used in s 70B)in relation to a dependent child, as meaning:the person who, in the opinion of the Chief Executive, has the primary responsibility for the day to day care of the child, other than on a temporarybasis [16] Mr D points out that between August 2008 and October 2009, the parenting arrangements between the parties were governed by an interim parenting order made in the Family Court on 4 August 2008. He argues that because the interim parentingorder was by its very nature a "temporary" order, pending a full hearing and themaking of permanent parenting orders, the principal caregiver during that period hadprimary responsibility for day to day care only on a "temporary" basis. So theprincipal caregiver (assumed for present purposes to be Ms S) was not a principal caregiver for the purposes of s 3, nor therefore for the purposes of s 70B. Mr D'sargument is that the Chief Executive could not in those circumstances have had jurisdiction to determine who the principal caregiver was under s 70B.[17] The result, Mr D argues, is that s 70B(4) applies by default, so that neither he nor Ms S would be entitled to have their daughter taken into account for benefit purposes, except by agreement.[18] I reject Mr D's argument. There is no proper basis for concluding that,because an interim parenting order was in existence for a period of more than a year,the caregiving arrangements were "temporary" for the purposes of the s 3 definition.In a sense, all parenting orders are interim in that they inure only until varied orcancelled. Moreover, the term "interim" is not necessarily synonymous with"temporary". In my view the latter term was intended in the legislation to coverperiods of relatively short duration which, at a practical level, ought not to be taken into account in determining who the principal caregiver is.[19] I reject the argument for a second reason also. It could not possibly havebeen Parliament's intention that the mere existence of an interim parenting orderwould, by reason of the s 3 definition, deprive s 70B(1)-(3) of any effect. Experience suggests that a great many cases which the Chief Executive must determine, will be cases in which interim parenting orders would be in effect. If Mr D is right, then in all of those cases the Chief Executive will be unable to make a decision and no person would be entitled to have any child taken into account unless there was agreement between the parents. In other words, there would be a legislative lacuna of considerable size and significance. I regard the existence of the interim parenting order (but not its terms) to be a matter of only contextual significance.[20] In my view, question three must be answered "Yes".Questions one and two[21] Questions one or two raise precisely the same issue, albeit for different time periods. It is therefore convenient to deal with them together. This is not a general appeal. Parties to a proceeding before the Authority who are dissatisfied with any determination of the Authority have a right of appeal to this Court, but only in relation to questions of law.2 It is not open to this Court to review the merits and to reach a different conclusion on the facts.[22] The Authority's determination may be set aside in this case only where:3(a) there is no evidence to support the determination; or2 Social Security Act 1964 s 12Q.3 Edwards v Bairstow [1956] AC 14 at 36 (HL), cited inBryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].(b) the evidence is inconsistent with and contradictory of the determination; or(c) the true and only reasonable conclusion contradicts the determination.[23] Ms Gray helpfully referred the Court to the judgment of Gendall J inScrimgeour v Chief Executive Department Work and Income New Zealand,4 where Gendall J usefully summarised the jurisdictional position.5[7] As I have said I am limited by the facts determined by the Authority contained in the case stated, but because the first question posed relates to sufficiency of evidence I have had regard to all the evidence. Whilst there is some force in the submission made on behalf of the Authority that the first question is a question of fact and not law, it must always be a question of law whether the factual findings of a judicial body has any evidential foundation. What are questions of law and questions of fact are not always able to be clearly defined and it is often a matter of degree. If there is no evidence at all upon which a factual finding can be made then there is an error of law. If there is some evidence, whether or not it is sufficient to justify a positive finding may raise a question of law (Harrison v Ministry of Transport(CA424/92. 29 March 1993), but often will not. This is an issue that has been extensively canvassed in cases such as Auckland City Council v Wotherspoon [1990] 1 NZLR 76, Police v Walsh (1989) 5 CRNZ 221; arising out of the essential principles found in Edwards v Bairstow [1956] AC 14.[8] If there is no evidence at all upon which to base a factual finding then there will be error of law. Likewise if the evidence is such that it cannot reasonably have led to a certain factual finding being reached then that would be a reviewable error. Weight to be given to evidence is, however, a matter of fact. It is not a reviewable error as a matter of law that a reviewing Judge may have come to a different factual conclusion on the evidence fromthat of a deciding Authority. To some extent the question of "sufficiency" of evidence and whether there is "any evidence at all" may be a matter ofsemantics. That is because if there is no evidence to justify a factual finding then there is insufficient evidence and error of law arising. If, however, there is some evidence and it is capable of supporting the factual finding made (even if an appellate authority may not have reached the factual conclusion) then there is no error of law.[24] In considering whether there is a sufficient evidential basis for the determination, this Court must have regard to the specialist character of the4 Scrimgeour v Chief Executive, Department Work and Income New Zealand HC Wellington AP206/01 17 March 2003.5 At [7] and [8].Authority and its expertise in determining matters within its jurisdiction.6[25] Accordingly, this Court should not, and indeed cannot, intervene unless satisfied that the Authority has misapplied the appropriate legal tests or made findings that could not properly be made on the basis of the material before it. Against that background, I turn to the evidence before the Authority in order todetermine whether the appellant's case falls within any of the limited grounds whichmight justify intervention.[26] The Authority found that the Chief Executive was correct to determine that Ms S had greater responsibility for caring for A than did Mr D in the period from August 2008 until 20 December 2009. The Authority further found that it was unable to determine which parent had greater responsibility for A under the subsequent regime established by the parenting order made by the Family Court on 5 October 2009. In consequence, it considered, as it was required to do under s 70B(3), the situation prior to the separation of the parties. It concluded that Ms S was a principal caregiver and accordingly she was entitled to have A included in the assessment of her benefit to the exclusion of Mr D.[27] I consider first the existence of relevant evidence in respect of the period from August 2008 to December 2009. There is ample evidence that during this period, A was in Mr D's care for three days a week and in Ms S's care for four days.That had been the finding of the Family Court in its judgment of 5 October 2009. Moreover, Mr D himself informed the Whangarei Work and Income Service Centre in an interview regarding his November 2008 application for a Domestic Purposes Benefit at the solo parent rate, that he had day to day care of A for 40% of the time while Ms S had day to day care for 60% of the time. Further, during the hearing of 6 March 2012, he noted that he had a 40% share of the day to day care of A during the relevant period, and during evidence given on 16 May 2012, he confirmed that Ahad been in Ms S's care for four days a week and in his care for three days.[28] The Authority was entitled to take that evidence into account under s 70B(2).6 Butler v Removal Review Authority [1998] NZAR 409 at 421; D v Chief Executive of the Department of Work and Income New Zealand [2005] NZAR 472 at 477.[29] Ms S confirmed at the 16 May 2012 hearing that on the days A was in her care, she made decisions about what A was doing, and that Mr D did so on the days when A was with him.7 In evidence she said that she tended to be the parent who was principally involved in organising and attending formal activities for and with A, although she accepted that Mr D played some role.8 There was evidence from both Ms S and Mr D that by and large they reached agreement on such matters as schooling and medical treatment.9 Ms S gave evidence that during the periods whenA was with her, she paid all of A's expenses including those associated with formalrecreational and educational activities.10[30] The Authority had regard to the provisions of s 70B(2) as it was required to do, and plainly had before it evidence sufficient to justify the finding to which it came in respect of this earlier period.[31] In argument in this Court, Mr D accepted that there was evidence from Ms S upon which the Authority could act if it chose, but he argued strongly that theAuthority ought not to have preferred Ms S's evidence to his own, both because thevolume and strength of his evidence was greater than hers, and because Ms S'sveracity was suspect. Some of Mr D's evidence was directed at establishing thatMs S was not to be trusted on oath.[32] With respect to the period prior to separation, Ms S gave evidence at the 16 May 2012 hearing that:(a) For the period between Mr D's return from overseas contract workand the date of separation six months later she had primary responsibility for A;(b) During those six months she simply continued doing what she had always done when looking after A, the appellant not having got back into the necessary routines;7 Section 70B(2).8 Section 70B(2)(b).9 Section 70B(2)(c).10 Section 70B(2)(d)(e).(c) Although she worked for about one month during this six month period, she still undertook most of the household tasks, especially those related to A during the early morning and evening;(d) During this period she took A to a gymnastics, crèche and play centre, and Mr D was not interested in those activities;(e) Even during the period when she was working, she did not work on Wednesdays. The appellant was responsible for A only on Mondays, Tuesdays and Thursdays because A went to crèche on Friday;(f) When Ms S stopped working there was little change in the spread of responsibilities for A.[33] Mr D gave his evidence on 6 March 2012. He said that:(a) He was at home and principally looking after A during the whole of the six month period leading up to separation;(b) He described a number of outdoor activities he undertook with A. By way of example he took A to gymnastics on Wednesday, to day-care on Thursday and play centre on Friday;(c) A got herself up in the morning and there was no routine in preparation of meals or bedtime activities. Either he or Ms S would attend to those as appropriate;(d) He had no problems upon his return from international contract work in adjusting to established household routines. He had made regular home visits to New Zealand at times during his period working out of the country.[34] Of course the summary provided above is fairly rough and ready and does not purport to cover the whole of the ground covered by the parties in their evidence. That is because this Court's function is not to hear the merits de novo, or indeed toreach any conclusion on them. My present purpose is simply to outline the nature of the issues before the Authority and the type of evidence given to it.[35] Again, the Authority reached the conclusion that Ms S was the principal caregiver over the period immediately preceding the separation. Mr D complainsthat the Authority failed to appreciate the problems with Ms S's veracity as awitness, or to have sufficient regard to the weight and cogency of the evidence he presented. But these are simply matters for the fact-finder's determination. TheAuthority plainly had sufficient evidence to make a determination adverse to Mr D in respect of each of these two time periods, and that is really the end of this Court'sinquiry.[36] Mr D complains that the hearings before the Authority and its written decision were each too superficial to enable the Authority properly to undertake itstask. He submits that the Authority did not accordingly "ascertain" the position for the purposes of s 70B.[37] The hearing in the Family Court leading to the judgment of that Court of 5 October 2009 occupied five hearing days. Mr D says that the Family Court "got to the bottom of her shenanigans" whereas the Authority did not. He says that Ms S improperly diminished Mr D's involvement in the family and in particular with A, and that the Authority ought to have seen through Ms S's evidence. If it was to reacha conclusion adverse to Mr D, then he would expect its reasons to be laid out at much greater length. In essence, he feels that his case has not been sufficiently or fairly considered.[38] These are submissions that would be appropriate where this Court was sitting on a general appeal with the facts to be considered de novo, but it is not. It is confined to considering and answering the three questions of law posed in the casestated. I am satisfied that questions one and two must each be answered "Yes".[39] It is perhaps appropriate to make one further observation. Mr D feels very strongly about the outcome of these protracted proceedings. He says that theAuthority's decision has contravened his statutory right to freedom fromdiscrimination on the basis of family status as affirmed by s 19(1) of the New Zealand Bill of Rights Act 1990, and s 21(1)(l) of the Human Rights Act 1993. He also invokes Article 18(1) of the 1989 United Nations Convention on the Rights of the Child.[40] He considers that he and Ms S, have from the outset, broadly shared their child-rearing responsibilities to the extent that they are equal caregivers. It is not difficult to understand the very real concerns which give rise to that submission. The difficulty is that Parliament has seen fit to enact legislation that places certainty above other considerations. Section 70B enacts a step down legislative scheme that produces outcomes based upon a consideration of certain defined factors. It does not permit an outcome under which both parents are to be regarded as equal caregivers. If that is the position, and the Chief Executive is unable to conclude otherwise, then the parties must reach agreement as to which of them is entitled to have the child taken into account for benefit purposes. If no such agreement can be reached, then neither caregiver is entitled to that advantage. That is simply the way in which Parliament has elected to deal with a difficult problem. On analysis, Mr D's veryreal concerns arise from the statutory scheme and not, in my view, from the conclusion to which the Authority came. It simply applied s 70B correctly to facts it was entitled to find proved.Result[41] For the foregoing reasons each of the questions in the case stated is answered"Yes". The respondent does not seek costs, which accordingly must lie where theyfall.C J Allan J