BLACK v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 1273

BLACK v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 1273 [14 June 2016]ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF THE PARTIES AND THE CHILD(REN).IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCIV-2015-485-001005[2016] NZHC 1273BETWEEN N BLACKAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: 1 June 2016Appearances: Appellant in personL Kean and N Bailey for the RespondentJudgment: 14 June 2016JUDGMENT OF NATION J[1] Government policy, as reflected in the Social Security Act 1964 (the Act), is that a sole parent support benefit will be available for only one parent and child.1Thus, in situations where two parents are sharing equal responsibility for the care of a child, only one parent will be entitled to sole parent support in respect of that child. Situations can arise where one parent will, under the legislation, be entitled to a benefit such as Jobseeker Support but the other parent will be entitled to sole parent support which can be for a greater amount. Application of the legislation in this way has caused a sense of grievance which has led to appeals to the Social Security Appeal Authority (the Authority).1 Social Security Act 1964, x 20C(2).[2] The Authority recognised the difficulties created by such a situation in dealing with Mr Black's appeal and a related case.2 On each appeal it adjourned its decision on the appeal but directed the chief executive of the Ministry of Social Development to consider apportioning the benefit payable to the mother between both parents. At the request of the chief executive, the Authority stated a case for this Court to consider whether the Authority could lawfully direct the chief executive to consider apportioning the benefit payable to one parent between both parents.3 I have dealt with the questions arising on that appeal in a contemporaneous judgment.[3] Applying relevant provisions of the Act, the chief executive and the Authority decided that, at the time Mr Black applied for sole parent support, they could not be satisfied that either parent had greater responsibility for their child. Having made that decision, sole parent support had to be determined by deciding who the main caregiver was before the parents separated.4 The chief executive and the Authority decided this was the mother.[4] The question of law for my consideration on this appeal, as stated by the Authority, is:5As a matter of law, was there any evidence on which the Authority could conclude that, for the purposes of s 70B(2) of the Social Security Act 1964 neither parent had greater responsibility for [the child]?[5] With the way Mr Black presented his submissions, the question can be more refined so as to be:If, on the evidence, the Authority is satisfied that one parent has a child in his or her care for more than 50 per cent of the time, even by a small margin, must the Authority find that it is this parent in respect of whom the care of the child must be brought into account for the purposes of s 70B(2)?2 Because of the suppression order, the appellant's name has been anonymised. This is not his realname.3 An appeal by way of case stated from the determination of the Social Security Appeal AuthorityHC Wellington CIV-2015-485-1007, 30 November 2015.4 Section 70B(3).5 An appeal by way of case stated from the determination of the Social Security Appeal AuthorityHC Wellington CIV-2015-485-1005, 30 November 2015.Relevant background[6] Mr Black and the mother separated on 28 June 2010. They had a son who was born in early 2010.[7] In a decision of 21 May 2012, the Authority held the mother had greater responsibility for the child and was therefore entitled to have the child included in her benefit. That decision was based on a parenting order made on 11 March 2011. That order provided for the father to have care of the child as follows:Week One:(i) Monday 9.30 am to Tuesday 9.30 am(ii) Wednesday 9.30 am to Thursday 9.30 am(iii) Friday 9.30 am to Saturday 9.30 amWeek Two:(i) Monday 9.30 am to Tuesday 9.30 am(ii) Wednesday 9.30 am to Thursday 9.30 am(iii) Friday 9.30 am to Sunday 9.30 am[8] The order also provided for the mother to have the care of the child during each school holiday for five days during the first week, with the father to have care of the child for five days in the second week.6[9] The 11 March 2011 orders also specified that each parent was to have the care of the child for a five day period during the Christmas holiday period, at a time to be agreed by them. The orders provided for one parent to have the care of the child from 12.00 pm on 24 December to 2 pm on Christmas Day and the other to have care of the child from 2.00 pm on Christmas Day to 12.00 pm on 26 December with the parents' period of care alternating in subsequent years. Arrangements forthe child's birthday were to follow the same schedule.6 The order referred to the mother's university holidays but the order has continued to apply on thebasis it also dealt with school holidays.[10] In its decision of 21 May 2012, the Authority stated it was in no doubt that Mr Black did not have greater responsibility for the child in the period to 17 March 2011. It decided that his degree of responsibility was the same as or less than that of the mother. The Authority decided that, by a small margin, the mother had greater responsibility for the child as a result of her responsibility for his health and provision for his material or financial support.7 For the sake of completeness, the Authority considered who it would have decided had greater responsibility if there had been no such difference. As required by the legislation, it considered who the principal caregiver was prior to the parents beginning to live apart. They decided that this was the mother.[11] On 18 April 2013, the parenting order changed. The father was to have care of the child as follows:Week One:(i) Sunday 9.00 am to Tuesday 9.00 am(ii) Wednesday 9.00 am to Thursday 9.00 amWeek Two:(i) Saturday 9.00 am to Tuesday 9.00 am(ii) Wednesday 9.00 am to Thursday 9.00 am[12] There was no change in the arrangements for care over the holidays or for Christmas and birthdays.[13] The Ministry calculated that each parent was responsible for the child's carefor 168 hours over a fortnight. Mr Black did not take issue with that calculation.[14] Although the Court order, in providing for holiday care, does not state that the five days each parent is to have with the child are to be weekdays, that is how the parents have applied it. Because the child is with the mother for less weekend time than the child is with the father, the arrangements for holiday contact cut slightly into7 The authority did not base this decision on any difference in the time the child was in eachparent's care. Mr Black said, with the mother having the child on weekends under the earlier orders, she would have had the child in her care for 51 per cent of the year.the total time which the child is with his mother on an annual basis, and the time which the child is with his father is slightly more than it was previously. As a result, implementing the orders in this way results in the mother losing two days of time she would normally have with her son in every holiday break.[15] Mr Black's evidence, as accepted by the Authority, was that, as a result, he cared for his son for ten days more than the mother in 2014 and seven days more in 2015.[16] The mother said she had never appreciated or intended that, with the change in the weekly arrangements, the child would be spending more time in his father'scare.The Authority's decision[17] Mr Black had argued that, when the child was in his care, he was more directly responsible for the care of his son whereas the mother is often at work and the child is cared for by another caregiver. The Authority did not attach any significance to this given the mother retained responsibility for the child during the periods when he was in her care. She was responsible for decisions about his daily activities and financial expenses remained the same.[18] The Authority also said there was no significance in Mr Black now having more time with his son during weekends than the mother does.[19] The Authority noted that s 70B(2)(a) required it to have regard to how responsibility for decisions about the child's daily activities were shared. TheAuthority said that, on the evidence, each parent was responsible for the child's dailyactivities when he was in the care of that parent.[20] The Authority considered who was responsible for taking the child to and from pre-school and supervising his leisure activities.8 The Authority was unable to say that, because of Mr Black's more hands-on involvement in the child's leisureactivities, this was evidence of his taking greater responsibility for the child.8 Social Security Act 1964, s 70B(2)(b).[21] The Authority was required to consider how decisions about the child'seducation and healthcare were made.9 The Authority was not satisfied it could be said either parent had taken greater responsibility than the other in this regard.[22] Finally, s 70B(2)(d) and (e) required the Authority to have regard to thechild's material support and which parent paid for which expenses of the child. TheAuthority held there was very little to differentiate between the parents in this regard.[23] Mr Black did not take any issue with the conclusions which the Authority had come to in the above regard.[24] Consistent with s 70B(2), the first matter which the Authority considered was the time the child was in the care of each parent. The Authority noted the holiday arrangement, as provided for in the orders of 11 March 2011, did not stipulate that the five day holiday care had to be on weekdays. It considered, with the mother having indicated she wanted the care to be shared equally, the schedule for holiday contact might have to work differently in the future. The Authority said it had reservations as to whether, with the way holiday care had been working, the difference in time the child spent with each parent was more than minimal. The Authority had reservations as to whether the fact the mother had lost two days with the child in one week of a two week holiday period was such as to lead to the conclusion the other parent now had greater responsibility for the care of the child, particularly so when the Court orders regarding holidays were capable of being implemented in a way that did not require her to lose time with her son.[25] The Authority thus said it was not satisfied that, in terms of the matters referred to in s 70B(2), either parent had greater responsibility for the child at the time the chief executive's decision was made in February 2014. The Authority thenheld that its decision had to be determined applying s 70B(3) through deciding who the principal caregiver of the child had been immediately before the parents began living apart. The Authority had determined in its decision of February 2014 that this was the mother. The Authority said it did not need to revisit that decision. Mr Black9 Section 70B(2)(c).did not challenge the correctness of that aspect of its decision. The Authority thus held that the mother was the person entitled to have the child included in her benefit.[26] Mr Black submitted that s 70B(2) stated the division of time was the primary consideration and the Authority had no discretion to depart from this. He submitted that, for the Authority to find the parent who had more time with the child was not the parent with greater responsibility for the child, the Authority would have to have found that s 70B(2)(a) to (e) factors overwhelmingly favoured the other parent. He pointed out that, in this case, the Authority had found that, having regard to thoseother factors, each parent's situation was evenly balanced. Mr Black argued theAuthority's approach could have been lawful only if the Act had expressly given the chief executive and the Authority a discretion to base their determination as to which parent had greater responsibility for the child on s 70B(2)(a) to (e) factors rather thanaccording to the time the child was in each parent's care.[27] Mr Black submitted that, given the wording of the legislation, "a minimaldifferential in legal time and care is all that is required when determining the first part of the statutory test under s 70B(2)".[28] Mr Black submitted that s 70B is going to apply only in situations where each parent has primary responsibility for the care of the child for at least 40 per cent of the time so the differences in the time allocation are always going to be modest. Parliament nevertheless stipulated that, in such circumstances, the chief executiveshould "have regard primarily to the periods the child is in the care of each parent".10[29] Mr Black submitted the relevant parenting order set out the period the child was legally in his care. That period was greater than the period the child was not in his care. He said that had to be determinative of which parent had greater responsibility for the care of the child.The legislative provision[30] Section 70B states:10 Section 70B(2).70B 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% 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 inassessing that parent's entitlement to a benefit and the rate ofbenefit 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 schooland 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 accountby the chief executive in assessing that parent's entitlement to abenefit 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 in assessing 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.Decision[31] I do not accept the wording of s 70B is such that the apportionment of time that each child has with each parent must be determinative of which parent has the greater responsibility for the child, in situations where the difference in time is slight.[32] In applying s 70B(2), the focus for the Ministry is on deciding "which parent has the greater responsibility for the child". In determining this, the first factorwhich the chief executive is directed to consider is the periods the child is in the care of each parent. Importantly however, s 70B(2) does not state that the issue will be determined through deciding which parent has the child in his or her care for a majority of the time. The legislation simply directs the chief executive to "have regard primarily to the periods the child is in the care of each parent". As Allan J stated in D v Chief Executive of the Ministry of Social Development, "that factor isentitled to particular weight" but "then the Chief Executive must have regard to the remaining five factors set out in s 70B(2)".11 A determination of which parent has the care of the child for a greater proportion of time is thus not necessarily going to determine which parent has the greater responsibility for the child although in many circumstances it will because it is the primary consideration.[33] In its actual decision, the Authority stated:12[14] It is Government policy that it should not pay twice for the same child when it comes to the provision of benefits. Section 70B of the Social Security Act 1964 reflects this policy and provides that where both parents of a dependent child are beneficiaries, only the parent with greater responsibility for the child is entitled to have the child taken into account inassessing that parent's entitlement to benefit and the rate of benefit payable.Section 70B(2) sets out how a determination as to which parent has greater responsibility for the child should be made in circumstances where each parent has responsibility for the care of the child for at least 40% of the time.[15] The Authority must consider this issue at the time the ChiefExecutive's decision was made on 27 February 2014.[16] Section 70B(2) of the Act requires that in the first instance, in determining who has greater responsibility for the care of the child, the Authority must have regard primarily to the periods the child is in the care of each parent. As previously outlined the calendars produced by the appellant indicate that in 2014 he had [the child] with him 10 days longer than [the11 D v Chief Executive of the Ministry of Social Development [2013] NZHC 1520.12 An appeal against a decision of a Benefits Review Committee [2015] NZSSAA 34.mother] and in 2015 seven days longer. In some months in the appellant'sanalysis he and [the mother] have [the child] for the same number of days each month, in some months the appellant has [the child] for more days and in other months [the mother] has [the child] for more days than the appellant. The differences arise primarily because of the school holiday arrangements previously outlined. The holiday arrangement has been interpreted to mean that the five consecutive days should occur on weekdays. This is in fact not indicated in the Parenting Order. There is nothing in the order which would not permit [the mother's] five consecutive days to start on the first Saturday of the school holidays and for the appellant's five consecutive days to starton the second Saturday of the holidays.[17] Given [the mother's] reaction to the finding that as a result of the way the holiday arrangement has worked she has less time than the appellant with [the child], a question arises as to whether the holiday arrangements will work in the way described by the appellant in the future.[18] In any event, taken over a year the differences in time spent with each parent are minimal. We have reservations as to whether the fact that [the mother] lost two days with [the child] in one week of a two week holiday period has any significant bearing on whether or not either party has greater responsibility for the care of [the child] but we note in any event that the arrangements regarding holidays in the original Parenting Order is [sic] capable of being implemented in such a way that she does not lose this time.[33] There is very little to separate the appellant and [the mother] in terms of the matters referred to in s 70B(2). The only real difference between the appellant and [the mother] is in the number of days actually spent with each parent over the school holiday period, although this difference is not sanctioned by the terms of the Parenting Order. Two days extra over a school holiday period four times a year is not the same as one parent having care of a child for more time on a weekly basis. We are not satisfied that the very small amount of extra time the appellant has had in the holidays in this case translates into taking greater responsibility for [the child's] care. We arenot satisfied that either parent had greater responsibility for [the child] at thetime the Chief Executive's decision was made in February 2014.[34] It was reasonable for the Authority to determine that the care arrangements provided for in the amended orders of 18 April 2013, coupled with the holiday, Christmas and birthday care arrangements provided for in the earlier order of 11 March 2011, essentially provided for these parents to share equally responsibility for the child. In applying s 70B(2), it was also reasonable and permissible for the Authority to decide that, in the particular circumstances of this case, the arrangements made over sharing of time in holidays were not the same as one parent having care of a child for more time on a weekly basis. The Authority was entitledto take the view that "the very small amount of extra time the appellant has had inthe holidays did not translate into taking greater responsibility for the child's care".Conclusion[35] I reject Mr Black's contention that s 70B required the Authority to determinehe had greater responsibility for the child because, with the way care was arranged over weekends, he ended up having the child in his care for a few days more than the mother in each school holiday. Mr Black did not argue that, on any other basis, it was wrong for the Authority to have concluded that neither parent had greater responsibility for the child.[36] On this appeal, I can be concerned only whether there has been an error of law. There can be no error of law where the Authority has correctly understood the law and applied it to the facts of the particular case.13 Given the Authority had not overlooked any relevant matter or taken account of an irrelevant matter, theAuthority's decision cannot be disturbed on appeal.14[37] I thus answer the question of law on the appeal by way of case stated as follows:As a matter of law, was there any evidence on which the Authority could conclude that, for the purposes of s 70B(2) of the Social Security Act 1964, neither parent had greater responsibility for [the child]?Answer: Yes.Disposition of appeal[38] The Authority adjourned the appeal to it pending the chief executive considering a direction from the Authority as to the apportionment of the benefit between both parents. In a separate judgment, I have held that direction to be unlawful. The Authority will now need to finally make a decision on its appeal in light of both opinions obtained from this Court. This matter is remitted back to the Tribunal for that to happen.13 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24].14 At [25].Costs[39] I reserve all issues as to costs but assume that there will be no need for me to make any particular order, given the taxpayer-funded nature of these proceedings.Solicitors:Crown Law, WellingtonGrant Pearson, Wellington.