Brenton and Secretary, Department of Social Services (Social services second review)

Brenton and Secretary, Department of Social Services (Social services second review) [2023] AATA 662 (24 March 2023)
Division:GENERAL DIVISION
File Number: 2021/1952
Re:Darryl Francis Brenton
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndZoe Swan
OTHER PARTY

DECISION
Tribunal:Senior Member B Cullen
Date:24 March 2023
Place:Brisbane

The Tribunal varies the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 11 March 2021 so that, for the period 3 June 2016 to 27 May 2019, the Applicant’s percentage of care of the child is 57% and the Other Party’s percentage of care for the child is 43%.
................[SGD].....................
Senior Member B Cullen
CATCHWORDS
Family Tax Benefit – FTB – was there a change in the pattern and percentage of care of child – determination of percentage of care – decision under review varied
LEGISLATION
A New Tax System (Family Assistance) Act1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIAL
Family Assistance Guide, Department of Social Services
REASONS FOR DECISION
Senior Member B Cullen
24 March 2023
INTRODUCTION

This is an application to review a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 11 March 2021. The Social Services and Child Support Division varied a decision of an Authorised Review Officer (‘ARO’), dated 9 December 2020, to vary the care percentage to be attributed to each parent in respect of their daughter for Family Tax Benefit (‘FTB’) purposes.
The decision of the AAT1 was to find that the Other Party (Mother) had 58% care, and the Applicant (Father) had 42% care of the Child from 1 July 2017 to 27 May 2019. The AAT1 did not vary the care percentages as determined by the ARO for the period from

28 May 2019 onwards.
On review, the Applicant contends that the AAT1 did not consider the number of hours that the Child was in his care, and that the Tribunal should find that:
·The Applicant had 66% care of the Child from 3 June 2016 and the Other Party had 34% care.
BACKGROUND
The Applicant (Father) and the Other Party (Mother) are the separated parents of one daughter (Child).
Until 2 June 2016, the Other Party was the parent in receipt of FTB. On 22 June 2016, Centrelink cancelled the Other Party’s FTB, after it had been provided with a care arrangement form signed by the Applicant and the Other Party, which led Centrelink to determine that the Applicant had 66% care and the Other Party had 34% care from
[1] Exhibit 1, T Documents, T5, page 52, ‘Decision to accept registration for child support’.
3 June 2016[1] (referred to in the Secretary’s Statement of Facts, Issues and Contentions as the ‘First Original Decision’).
On 26 June 2019, the Other Party reclaimed FTB for the Child, claiming that she had 100% care of the Child from 28 May 2019.[2] The Applicant and the Other Party both submitted evidence about care patterns to Centrelink. On 30 October 2019, Centrelink determined that the percentages of care for FTB were as follows (referred to in the Secretary’s Statement of Facts, Issues and Contentions as the ‘Second Original Decision’):
·28 May 2019 to 27 June 2019: Other Party 100%; Applicant 0%;
·28 June 2019 to 28 July 2019: Other Party 0%; Applicant 100%; and
·29 July 2019 onwards: Other Party 50%; Applicant 50%.
[2] Exhibit 1, T Documents, T7, pages 59 – 68, ‘Child’s care arrangement form with attachment’.
Then, on 5 September 2020, the Other Party lodged a change of care form claiming that she had 57% care of the Child, and the Applicant 43% care in the interval from
[3] Exhibit 1, T Documents, T12, pages 96 – 118, ‘Child’s care arrangement form with attachments’.
16 June 2013 to 29 July 2019.[3]
The Other Party requested a review of both the First Original Decision and Second Original Decision on 17 October 2020.[4] On 9 December 2020, an ARO affirmed both decisions.[5] The Other Party then applied to the AAT1 for review of the ARO’s 9 December 2020 decision.
[4] Exhibit 1, T Documents, T30, pages 361 – 377, ‘Unredacted Other Party file notes from 6 June 2016 to 9
December 2020’.
[5] Exhibit 1, T Documents, T15, pages 138-141, ‘Authorised review officer decision to applicant’.
On 11 March 2021, following a telephone hearing, the AAT1 varied the care percentage to be attributed to each parent in respect of the Child for FTB purposes as follows:[6]
·1 July 2017 to 27 May 2019: Other Party 58%; Applicant 42%.
·28 May 2019 onwards: No change by the AAT1 to what had been determined by Centrelink.
[6] Exhibit 1, T Documents, T2, pages 6-13, ‘Decision of the Social Services & Child Support Division’.
The AAT1 decision states that the basis for commencing the decision from 1 July 2017 rather than 3 June 2016 was that the Other Party did not seek review of the 2016 cancellation of her FTB until 2019. The A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘Administration Act’), does not allow payment of FTB prior to 1 July 2017 if the cancellation of the Other Party’s FTB was set aside.
The Tribunal agrees that the impact of the Administration Act is that any payment of FTB would be constrained to the period commencing from 1 July 2017. The Other Party, at the AAT1 hearing, confirmed that she was seeking payment of FTB for the Child with effect from 1 July 2017.
The Decision of the AAT1 confirms that there is no dispute in relation to percentages of care from 28 May 2019 onwards.[7]
[7] Exhibit 1, T Documents, T2, pages 6-13, [7], ‘Decision of the Social Services & Child Support Division’.
On 29 March 2021, the Applicant applied to the General Division of the Tribunal for review of the AAT1 Decision as it applied to the determination regarding the percentage of care for the Child.[8] In his application (AAT2 Application), the Applicant claims the AAT1 decision is wrong for the following reasons:
The decision is wrong as it is based on incorrect assumptions and misrepresented evidence that has been taken out of context, leading to false inference’s [sic] that do not represent the actual care arrangement.
In paragraph 17 of the decision the Member incorrectly determined that:
“irrespective of which parties’ assertions about care are accepted, the percentage determined by Centre link [sic] for the relevant period cannot be correct.
The member then continued “Three nights care equates to a care percentage of 42% whereas Centrelink has used a lower care percentage of 34% for [Other Party] during the relevant period.”
The Family Assistance Guide Section 2.1.1.45 Establishing a pattern of care asserts that:
“There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days of care.”
When the Member was assessing the care percentage, the number of hours the child was in my care was not taken into consideration. Rather the Member relied on where the child spent each evening which did not reflect the true pattern. The child was in my care 116 hours a week which equates to 66 percent care and the 52 hours the child was in the [Other Party’s] care equated to 34% care, which are percentages that Centrelink had determined.[9]
[8] Exhibit 1, T Documents, T1, pages 1-5, ‘Application for review’.
[9] Exhibit 1, T Documents, T1, pages 2-5, ‘Application for review’.
HEARING
A hearing of the AAT2 Application was conducted by telephone on 5 April 2022. The Applicant and the Other Party were self-represented. The Respondent was represented by Ms Donna Smith, from Services Australia. Ms Smith’s appearance was confined to assisting the Tribunal to identify and apply the relevant legislative provisions to the evidence.
In conducting the review of the AAT2 Application, the Tribunal has had regard to the documents produced by the Respondent pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T Documents),[10] the Respondent’s Statements of Facts, Issues and Contentions; [11] the Applicant’s Reply to the Respondent’s Statements of Facts, Issues and Contentions;[12] correspondence from the Applicant; the Respondent’s Amended Statement of Facts, Issues and Contentions;[13] Documents submitted to the Tribunal by the Other Party;[14] and the oral submissions of the Applicant and the Other Party.
[10] Exhibit 1, T Documents.
[11] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions.
[12] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions.
[13] Exhibit 4, Respondent’s Amended Statement of Facts, Issues and Contentions, including correspondence and attached documents.
[14] Exhibit 6, Other Party’s documents, including tuckshop purchase history.
RELEVANT LEGISLATION
The relevant law is contained within the A New Tax System (Family Assistance) Act 1999 (Cth) (‘the FA Act’).
The relevant policy is contained within the Family Assistance Guide (‘the FA guide’).
The Tribunal will normally apply the guidelines unless there are cogent reasons in a particular case for not doing so.[15]
[15] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 639-645.
To qualify for FTB a person must relevantly have at least one FTB child, pursuant to
section 21(1) of the FA Act.
The annual rate of FTB payable to a person is calculated in accordance with the rate calculator in schedule one of the FA Act.[16]
[16] Section 58(1).
A child under 16 years of age will be the FTB child of a person in the circumstances set out in ss 22(2), (5), and (7) of the FA Act, as set out below:
Individual aged under 16
2An individual is an FTB child of the adult if:
(a)the individual is aged under 16; and
(b)the individual is in the adult’s care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
Legal responsibility for the individual
5The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b)under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
…
Percentage of care at least 35%
7If an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual’s care on that day.
Note: If an individual’s percentage of care for a child during a care

period is less than 35%, the child is taken not to be an FTB child (see

section 25).
Section 25 of the FA Act states that where a person’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child of that person for any part of the care period.
A child under 16 years of age will be an FTB child of a person during a care period if:
(a)The child is in that person’s care;[17]
(b)The person meets the residency requirements in section 22(2)(c) of the FA Act;
(c)The circumstances surrounding legal responsibility for the care of the child are pursuant to section 22(5)(a)-(c) of the FA Act; and
(d)The person’s percentage of care for the child is at least 35% during the care period.[18]
[17] FA Act, section 22(2)(b).
[18] FA Act, section 22(7).
If the Tribunal finds that the Child was an FTB child of both the Applicant and the Other Party during the care period, it is necessary then to make a determination as to each party’s shared care percentage in respect of the Child.
Where there is more than one person, who are not partners and who have care of an FTB child, the rate of FTB payable to each person is calculated based on that person’s shared care percentage of the FTB child rate that would otherwise apply to the child.[19]
[19] FA Act, Schedule 1, section 11.
The shared care percentage for a person in respect of an FTB child is then determined based on the percentage of care that person has in respect of that child.
Percentage of Care Determination
The Tribunal is firstly required to determine the Applicant and Other Party’s percentage of care.
A determination of a percentage of care is made under section 35A or section 35B of the FA Act. Subdivision D of Part 3, Division 1 of the FA Act sets out the legislation in relation to a percentage of care determination. Section 35B relevantly provides as follows:
Initial determination
1If:
(a)the Secretary is satisfied that there has been, or will be, a pattern of care for a child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of more than one individual; and
(b)one of those individuals (the adult), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and
(c)the adult is not a partner of at least one of the other individuals referred to in paragraph (a);
the Secretary must determine the adult’s percentage of care for the child during the care period.
Determination after revocation
2If:
(a)the Secretary revokes or suspends, under Subdivision E of this Division (except under paragraph 35PA(3)(b) or 35QA(3)(b)), a determination of an individual’s (the adult) percentage of care for a child that was made under section 35A or this section; and
(b)the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and
(c)the adult is not a partner of at least one of those other individuals;
the Secretary must determine the adult’s percentage of care for the child during the care period.
Percentage of care
3The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period. (Original emphasis.)
Section 35J of the FA Act is relevant to working out actual care and extent of care of a child and provides:
1The actual care of a child that an individual has had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.
2The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.
3For the purposes of this section, a child cannot be in the care of more than one individual at the same time.
4This section does not limit section 35B, 35C, 35D or 35H.
Once the percentage of care is determined, it is then used to calculate the shared care according to the table contained in section 59 of the FA Act.
Where there is no agreement between carers as to the percentage of care or the pattern of care each gives in respect of a child, percentage of care is determined with reference to the available evidence of the actual pattern of care. Once the percentage of care is determined, this is then used to calculate the shared care percentage according to the table in
section 59 of the FA act, and FTB payable in respect of the child is apportioned according to the shared care percentage.
ISSUES
The issue for determination in this matter is:
·what percentage of care should be determined for the Applicant and the Other Party in response to the 2 June 2016 Claim for FTB made by the Other Party.
EVIDENCE
The issues for determination essentially turn on a factual assessment of the pattern of care.
To make a determination of a percentage of care in accordance with section 35B of the Act, it is necessary for the Tribunal to decide whether there is a ‘pattern of care.’
When the Applicant lodged a FTB claim with the Agency on 3 June 2016, the Secretary was required to make a percentage of care determination.
The Applicant told the ARO that he started to care for the Child from 3 June 2016 as the Other Party started fulltime work.[20] The Other Party states in her change of care form lodged on 5 September 2020, that she had 57% care of the Child from 16 June 2013 to

29 July 2019.[21] The Applicant claims that he had primary care of the Child since at least 2015.[22]
[20] Exhibit 1, T Documents, T27, page 259, ‘Authorised Review Officer decision to Other Party unredacted’.
[21] Exhibit 1, T Documents, T12, page 103, ‘Child’s care arrangement form with attachments’.
[22] Exhibit 1, T Documents, T2, page 7, ‘Decision of the Social Services & Child Support Division’.
On 28 May 2019, the Other Party withheld the Child,[23] meaning that the Child was in her care exclusively until 27 June 2019. Between 28 June 2019 to 28 July 2019, the Child was in the care of the Applicant only. Then, on 29 July 2019, the Federal Circuit Court made an Order which attributed the care of the Child from 29 July 2019 onwards: Other Party 50%; Applicant 50%. The percentage of care of the Child from 28 May 2019 onwards is not before the Tribunal in the AAT2 Application.
[23] Exhibit 1, T Documents, T7, page 66, ‘Child’s care arrangement form with attachment’.
The ARO, and the AAT1, all commented that they found it difficult to assess the conflicting evidence on offer from the parties in relation to care. The challenge for this Tribunal is no different.
There is prolix information before the Tribunal, which contains photographs purported to be taken at various locations with the Child, tuckshop purchase receipts, calendars, statements from friends and supporters, and the evidence from the parties themselves. The information is riddled with hostility and descends into micro-analysis such that the Tribunal is not capable of placing into meaningful context, some six to seven years after the events transpired. The Tribunal cannot attach any significant weight to this pool of evidence from both the Applicant and the Other Party as it lacks objectivity. The Tribunal accepts that the evidence demonstrates that both the Applicant and the Other Party spent time with the Child, attended various extra-curricular functions with the Child, and made purchases for the Child’s needs, as would be expected of both parents.
The more objective evidence before the Tribunal consists of three things. The first of these things is the care arrangements form signed by the Applicant and Other Party on
[24] Exhibit 1, T Documents, T4, pages 43-51, ‘Application for child support assessment’.
2 June 2016 which indicated that the Other Party did not have care of the Child during the week at that point in time.[24] This is of some importance as a central point of disputation between the parties relates to who had care of the Child on Tuesday evenings.

The second more objective piece of evidence is the Child Support Assessment dated
[25] Exhibit 1, T Documents, T6, page 56, ‘Letter to other party from Child Support re registration plus assessment notices’.
9 September 2016, revealing that the care percentage for Child Support purposes at that point in time (the Assessment Period was between 30 August 2016 to 29 November 2017), was Applicant: 66%; Other Party: 34%.[25]
The third piece of objective evidence consists of what this Tribunal considers to be an admission by the Applicant in relation to the number of nights of care that the Child spent with him and the other party. Before the AAT1, it was agreed by both parties that, ‘at the very least, the [Other Party] had overnight care of the child on Friday, Saturday and Sunday nights. Three nights of care equates to a care percentage of 42%, whereas Centrelink has used a lower care percentage of 34% for the [Other Party] during the relevant period.’[26]
[26] Exhibit 1, T Documents, T2 page 12, [17], ‘Decision of the Social Services & Child Support Division’.
Before this Tribunal, the Applicant argues that this Tribunal should consider the care that the parties had of the Child on an hourly basis, rather than an overnight basis. His argument before this Tribunal accepts the earlier admission by him that the Other Party had care of the Child for at least three nights during the relevant period.
Having regard to these matters, the Tribunal considers that the care pattern that is the subject of these proceedings commenced on 3 June 2016, which is the date on which the FTB claim was made. On 22 June 2016, the Other Party was sent written notice of the decision to stop paying FTB as she was determined to have 34% care of the Child. As this was less than 35% care, the Other Party was no longer entitled to FTB payment.[27]
[27] Exhibit 1, T Documents, T27, page 259, ‘Authorised Review Officer decision to Other Party unredacted’.
For several years, aware that she was no longer in receipt of FTB as she had been advised of same, the Other Party did not raise any issues as to the correctness or otherwise of the care percentages. The Other Party raised these concerns on 26 June 2019 when she lodged a claim for FTB.[28]
[28] Exhibit 1, T Documents, T25, pages 227-234, ‘Care arrangement form and attachments’.
As mentioned in relation to the evidence that this Tribunal considers to be reliable, the AAT1 decision reflects that the parties agreed that the Other Party had the Child for overnight care on Friday, Saturday and Sunday nights. The AAT1 determined that the three nights of care equated to a care percentage of 42% for the other party, rather than 34%.[29]
[29] Exhibit 1, T Documents, T2, page 12, ‘Decision of the Social Services & Child Support Division’.
The AAT1 then considered the competing arguments from the Applicant and the Other Party about Tuesday nights. It found that photographs and other evidence (including passages from a Family Report referring to Tuesday overnights with the Other Party) before it lent ‘substantial weight’ to a finding that the Child was in the Other Party’s care on Tuesday nights. Having then decided that the Other Party cared for the Child 4 days per week, and the Applicant 3 days, the AAT1 varied the decision under review to reflect care percentages of Other Party: 58%; and Applicant: 42%.[30]
[30] Ibid, page 13.
At the AAT2 hearing, the Applicant addressed two ‘calendar of hours’ documents that he had placed into evidence.[31] The calendars purport to reflect the hours of care that the Child was in the care of the parties, as that the Applicant claims that nights of care is not an adequate basis on which to determine care percentages in this matter.
[31] Exhibit 5 – Unpaginated tables of hours of care.
However, the calendars are not particularly helpful to the Tribunal as they also attribute the hours of care for school hours in a manner that is self-serving for the Applicant’s purposes. The Other Party also asserts that the calendars are not accurate.
This Tribunal faces the same conundrum that the AAT1 found itself in, and the ARO before that. This Tribunal is not able to place any significant weight on any of the evidence presented by the parties, save for the admissions they make that are adverse to their own positions. Both the Applicant and the Other Party struck the Tribunal as being interested in, at every opportunity possible, commenting unfavourably on each other or causing embarrassment to one another. No objective, dispassionate, credible witnesses were called to give evidence.
The Tribunal understands that family dynamics following a separation are complex, but the Tribunal is not in a position to determine which parent is more ‘believable’ and therefore must search for evidence that is not infected by subjective views of the parties, and which has not been gathered in a way so as to assist the parties, as is often the case from evidence from supporting friends and family who are aligned to one of the parties. The consequence of the manner in which the parties each presented their case is that the Tribunal finds that both the Applicant and the Other Party lack reasonable objectivity. This Tribunal cannot possibly go back in time, to Little Athletics events and tuckshop purchases, to decide what hours of the day the Child was with which party. This Tribunal simply does not have that sort of forensic ability.
While the Tribunal accepts that parents often change care arrangements, the Tribunal considers the jointly signed 2 June 2016 change of care arrangements form, which indicated that the Other Party did not have care of the Child during the week at that point in time; to reliably indicate that the Child was with the Applicant during the week.[32] The Child Support Assessment dated 9 September 2016 reflecting care percentages of Applicant: 66%; Other Party: 34% is reliable corroborating evidence that the Child was with the Applicant during the week.[33]
[32] Exhibit 1, T Documents, T4, pages 43-51, ‘Application for child support assessment’.
[33] Exhibit 1, T Documents, T6, page 56, ‘Letter to other party from Child Support re registration plus
assessment notices’.
The Other Party has faintly suggested to the ARO that she did not sign the change of care arrangements form, and further that she did not know that she had lost her entitlement to FTB. The Tribunal observes that three years is a lengthy period of time, and that it is the Other Party’s responsibility to be aware of her own financial circumstances. The Tribunal observes that she was advised of the assessment of the 34% care percentage on
[34] Ibid, pages 55-58.
9 September 2016, if not earlier.[34] There is no suggestion that this letter was misdirected, or undelivered. As such, the Tribunal considers that it is more likely that the Other Party was aware of these matters. The Tribunal observes that the Other Party applied to reclaim FTB on 26 June 2019, in the very midst of the Federal Circuit Court family law proceedings.
In the Tribunal’s view, the Applicant’s admission that the Other Party had the Child on at least three nights means, as the AAT1 found, that the care arrangements were different from those that the ARO had attributed to the parties: Applicant: 66%; Other Party: 34%. Despite acknowledging that the Child was with the Other Party at least three nights, the Applicant asserts that the ARO was correct, on a ‘number of hours of care’ basis. For reasons traversed earlier, the Tribunal does not consider that there is a reliable pool of evidence that would support a finding based on hours of care rather than nights of care.
For similar reasons, the Tribunal does not accept that the Other Party consistently had the Child on Tuesday nights. The Tribunal thinks that the 2 June 2016 change of care arrangements form is a more reliable, contemporaneous piece of evidence to place weight on in relation to where the Child was spending time during the week. As such, the Tribunal finds that the evidence supports a finding that the Child spent Friday, Saturday and Sunday nights with the Other Party; and Monday – Thursday nights with the Applicant. For clarity, this Tribunal finds that the Child spent 4 nights per week with the Applicant, and 3 nights per week with the Other Party.
The Tribunal observes that the Applicant seeks that the Tribunal make a determination about care percentages from 3 June 2016, whereas the AAT1 determined that the relevant period for purposes of this review commenced on 1 July 2017.
The AAT1 decided that the relevant period for purposes of determining the care percentage was 1 July 2017 to 27 May 2019, on the basis that any change to the care percentage for FTB purposes could only be paid from 1 July 2017. This is because the Administration Act, section 10, provides that there is a 12-month window following the income year to lodge a past period claim. Here, that means that the Other Party’s claim lodged on 26 June 2019 could only be paid from the commencement of the last financial year, 1 July 2017.
While this Tribunal accepts the practical utility of the AAT1 constraining the period to the period commencing 1 July 2017, it considers that this is not the right approach for the reason that there is a distinction between the correctness of the ‘relevant period’ and any entitlement to be paid FTB which flows from a decision that is made about the care percentage during the ‘relevant period.’
Therefore, the Tribunal determines the relevant care period under review in these proceedings is from 3 June 2016 to 27 May 2019. Based on the Tribunal’s finding that the pattern of care was 4 nights per week with the Applicant and 3 nights per week with the Other Party, this equates to a care percentage of Applicant: 57% and Other Party: 43%.
The Tribunal will vary the decision under review so that the parties’ respective FTB entitlements for the period between 3 June 2016 and 27 May 2019 reflect the Tribunal’s percentage of care findings.
DECISION
The Tribunal varies the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 11 March 2021 so that, for the period 3 June 2016 to 27 May 2019, the Applicant’s percentage of care of the child is 57% and the Other Party’s percentage of care for the child is 43%.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Cullen

......................[SGD]......................
Associate
Dated: 24 March 2023

Date of hearing: 5 April 2022

Applicant:
Other Party:

By phone

By phone

Solicitors for the Respondent: Ms Donna Smith
(Services Australia)

[2023] AATA 662

24 March 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction