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

[2018] AATA 2151

CQCD and Secretary, Department of Social Services (Social services second review) [2018] AATA 2151 (11 July 2018)

Division:GENERAL DIVISION

File Number(s):      2017/1872

Re:CQCD

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndTBPT

OTHER PARTY

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:11 July 2018

Place:Brisbane

I vary the decision under review to provide that during the period of 1 November 2015 to 22 November 2016, the applicant had 33 per cent care of A and B, and 17 per cent care of L.

..........................[SGD].....................................

Deputy President Dr P McDermott RFD

Catchwords

SOCIAL SECURITY – Family Tax Benefit – FTB – whether there was a change in the care of the children – when the applicant had care of the children – when the other party had care of the children 

Legislation

A New Tax System (Family Assistance) Act 1999

Cases

Re Warne and Department of Families, Community Services and Indigenous Affairs [2006] AATA 159

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

11 July 2018

1. The applicant and the other party are the separated parents of three children, A, B and L (“the children”). Their names will be kept confidential for the purposes of this decision.

2. On 24 August 2012, the Federal Magistrates Court made court orders regarding the care of the children, recorded as 33 per cent to the applicant and 67 per cent to the other party.[1]

   [1] Exhibit A, T-Documents, T9.

3. On 21 January 2016, the other party advised the Department of Human Services that care of the children had changed and had been shared equally. The Department was advised that the applicant had had care of the children for four nights per week and half of the school holidays.

4. On 19 April 2016, the other party agreed that the care had been shared equally from 1 November 2015 and the applicant was awarded 50 per cent care of the children. However, after realising the child support implications, the other party sought review of this decision.

5. On 21 October 2016 the Authorised Review Officer (“ARO”) affirmed the decision under review.

6. On 27 October 2016, the other party sought review of the ARO’s decision. The care of the children was then recorded as 32 per cent to the applicant and 68 per cent to the other party for the period of 23 November 2016 to 22 November 2017.  

7. On 28 February 2017 the Social Services and Child Support Division of this Tribunal varied the decision of the ARO such that the percentage of care for the children be recorded as 38 per cent to the applicant and 62 per cent to the other party for the period of 1 November 2015 to 22 November 2016.[2]

   [2] Exhibit A, T-Documents, T2.

8. On 26 March 2017, the applicant applied for review of the decision of the Social Services and Child Support Division with this Tribunal.[3]

   [3] Exhibit A, T-Documents, T1.

   LEGISLATION

9. A New Tax System (Family Assistance) Act 1999 (“the Act”) sets out the qualifying criteria and provisions to calculate Family Tax Benefit (“FTB”) including in the case of shared care arrangements.

10. Section 22 provides:

    22       When an individual is an FTB child of another individual

    (1)  An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

    Individual aged under 16

    (2)An 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

    (5)The 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%

    (7)If 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.

11. The term percentage of care is defined in section 3 of the Act:

    percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.

12. Section 23 of the Act makes provision for where an FTB child is prevented from being in the care of a person who is eligible for FTB.

13. Section 25 of the Act provides:

    25       Effect of an individual’s percentage of care for a child being less than 35%

    If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.

14. The Act sets out the requirements for the Secretary to determine the percentage of care in relation to a child not in the care of a person: see section 35A.

15. Section 35B sets out the requirements of the Secretary to determine the percentage of care in relation to a child when in the care of a person.

    35B     Determination of percentage of care—child is in the adult’s care

    Initial determination

    (1)  If:

    (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

    (2)  If:

    (a)  the Secretary revokes, under Subdivision E of this Division, 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

    (3)  The 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.

    (4)  Despite subsection (3), if section 35C, 35D or 35G applies in relation to the adult, the Secretary must determine the adult’s percentage of care under subsection (1) or (2) in accordance with that section.

16. Section 35J of the Act outlines that care can be determined with reference to the number of nights a child is in the care of an adult:

    35J      Working out actual care, and extent of care, of a child

    (1)  The 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.

    (2)  The 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.

    (3)  For the purposes of this section, a child cannot be in the care of more than one individual at the same time.

    (4)  This section does not limit section 35B, 35C, 35D or 35H.

17. Section 59 of the Act provides:

    59Shared care percentages where individual is FTB child of more than one person who are not members of the same couple

    (1)  An individual has a shared care percentage under this section for an FTB child of the individual if:

    (a)  the Secretary has determined the individual’s percentage of care for the child during a care period; and

    (b)  that percentage is at least 35% and not more than 65%.

    (2)The individual’s shared care percentage for the FTB child is the relevant percentage specified in column 2 of the table.

Shared care percentages
Item	Column 1 Individual’s percentage of care	Column 2 Shared care percentage
1	35% to less than 48%	25% plus 2% for each percentage point over 35%
2	48% to 52%	50%
3	more than 52% to 65%	51% plus 2% for each percentage point over 53%

(3) If the shared care percentages, specified in the table, of all of the individuals of whom the child is an FTB child add to less than 100%, then the Secretary may determine a different whole percentage for one or more of those individuals for the FTB child. Despite subsection (2), the individual’s shared care percentage for the child is the percentage so determined for that individual.

1. Any new care determination cannot be made unless the existing care determination is revoked. The provisions relating to the revoking of an existing care determination are contained in sections 35P to 35S of the Act. The relevant sections provide:

   35P     Determination must be revoked if there is a change to the individual’s shared care percentage etc.

   (1)  If:

   (a)  a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and

   (b)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and

   (c)  the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child; and

   (d)  the Secretary is satisfied:

   (i)  that the individual’s shared care percentage for the child would change if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child; or

   (ii)  that, if the Secretary were to determine under that section another percentage to be the individual’s percentage of care for the child, the other percentage would not be in the same percentage range as the individual’s existing percentage of care;

   the Secretary must revoke the determination.

   Note:          The Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

   (2)  Each of the following is a percentage range:

   (a)  0% to less than 14%;

   (b)  14% to less than 35%;

   (c)  48% to 52%;

   (d)  more than 65% to 86%;

   (e)  more than 86% to 100%.

   (3)  The revocation of the determination takes effect at the end of:

   (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

   (b)  otherwise—the day before the change of care day for the individual.

   35Q     Secretary may revoke a determination of an individual’s percentage of care

   (1)  If:

   (a)  a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and

   (b)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and

   (c)  the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child; and

   (d)  the Secretary is satisfied that, if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child, the other percentage would not be the same as the individual’s existing percentage of care for the child; and

   (e)  section 35P does not apply;

   the Secretary may revoke the determination.

   Note:          If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

   (2)  If the Secretary revokes the determination, the revocation takes effect at the end of:

   (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

   (b)  otherwise—the day before the change of care day for the individual.

   EVIDENCE

   Calendars

2. The applicant provided three different calendars in relation to the care of the children. The first calendar is an extract of the College calendar outlined in the T‑Documents,[4] and relates to the period of June 2016 to October 2016. The second calendar formed part of the applicant’s letter dated 1 December 2017, and relates to the period of January 2014 to December 2016.[5] The third calendar, and final calendar, was admitted as evidence during the resumed hearing on 27 March 2018, and was the “original” College calendar from January 2016 to December 2016.[6]   

   Letter of the other party dated 20 January 2017

   [4] Exhibit A, T-Documents, T26, p.109-113.

   [5] Exhibit D.

   [6] Exhibit L.

3. This letter suggests a history of domestic violence in the relationship between the applicant and the other party. The other party contends that the applicant withheld the children on various occasions. In relation to the care of the children, the other party contends that when he returned from Victoria he would usually have the children on a Thursday night and sometimes on a Saturday night, but never on a Friday or Sunday night. The other party considered that the applicant had A and B about two nights per week but he had L less than this.

   Letter of the applicant received 17 July 2017

4. The applicant submits that throughout 2014 and 2015 the children would spend every Thursday to Monday with him and Monday afternoons for music lessons. Then from 2016, the children would spend more than 50 per cent of the time in his care which caused financial difficulties as he had to reduce his work days. The remaining contents of the letter discuss the parties’ history of domestic violence and other unrelated concerns.   

   Letter of BST received 3 November 2017

5. BST submits that the applicant had the children “most of the time” between 2013 and 2016. He also considers that the children would come over every weekend and stay over Sunday night. He also submits they went to music lessons together every Monday afternoon for at least two years.

   Statement of the other party dated 3 November 2017

6. The other party outlines that the applicant had 50 per cent shared care of the children from 2009 to 24 August 2012 when the court orders were in place.

7. In early July 2013 the applicant moved to Victoria and returned at the end of 2013. Since the applicant’s return from Victoria, the other party contends that the applicant had A and B approximately three to four nights per fortnight, comprising of Thursday nights and on some Saturday nights. The other party contends that there was an occasional Friday evening but never a Sunday night as her partner would collect the children from the applicant’s residence on a Sunday afternoon. With regards to the care of L, he would spend approximately one to two nights per fortnight with the applicant during 2014 and 2015 and often did not stay on a Thursday night.

8. During the school holidays the other party contends that between 2014 and 2016 she would usually have the children except for some of the September or Christmas holidays. The other party would either take care of the children herself, her mother would or the children would be put into vacation care. The other party also contends that when she went away overseas she would either take the children or her mother would look after them. As for the music lessons, the other party contends  that she or her mother would usually take the children and if the applicant took the children to music, on the occasion, the children would never stay with the applicant overnight on the Monday. The other party provided various annexures to her statement including witness statements, bank statements, photos, text messages, accounts and other material.

9. An outline of the relevant statements are as follows:

   (a)Statement of CS – Ms CS considered that the children were often with the applicant on a Thursday night, and sometimes on weekends although this would vary. She considered that L would usually stay with the other party on a Thursday night. Ms CS submits that the children were with the applicant on average four nights per fortnight.   

   (b)Statement of GB – Mr GB submits that the children were with the applicant every Thursday night and most Saturday evenings. He considers that the children visited the applicant approximately four nights per fortnight although he understood that L did not go as regularly as the other two children.

   (c)Statement of AC – Ms AC submits that the applicant had the children every Thursday night and most Saturday nights. The other party would collect the children on Sunday afternoon.

   (d)Statement of KC – Ms KC submits that the applicant had the children every Thursday night. Each weekend was different but she considers that the children stayed with the applicant on average four nights per fortnight.

   (e)Statement of S and W O’K – Mr and Mrs O’K submit that the applicant would have the children approximately two nights per week at the most, being the Thursday night and some Saturdays.

   (f)Statement of AB – Mr AB submits that the children were with the applicant every Thursday night and some weekends averaging four nights per fortnight.   

   Other party’s oral evidence about 50:50 care agreement 

10. During the hearing on 27 March 2018, the other party gave evidence as to why she initially agreed and told Centrelink that there was a 50:50 care arrangement of the children between herself and the applicant. The relevant excerpt from her evidence is below: [7]

    “They [Centrelink] explained to me that [the applicant] had put in something to say that the children are there 50 per cent of the time, and I said to them that’s not correct. They asked me what times he did have. I said it's hard to - like, on the spot it was hard over the phone to work it out what time he had, because it fluctuated. We had a pretty flexible arrangement. I explained to them that every Thursday night he did have the children, but it was usually - I said that was the only definite night that he had, but often [L] stayed with me on the Thursday nights because he didn't like to take school things to and from houses, and I explained that [A and B], you know, would spend weekends - most weekends, but would be one of the nights of that weekend, and then there were weekends they didn't go, and I averaged it out at about two nights per week for [A and B], but said [L] would probably be only one night per week or two nights a fortnight, because he often would just go on the Saturday night or the Friday night, depending on what the night was that particular week, and then I said there's weekends where he didn't at all. But as far as why I agreed to what I did, I just was wanting to just get him off my back, but I made it clear to him in text messages that he's never had 50:50 for over four years, prior to those family court orders being amended in 2012. He had 50:50 before that for a 5 period, after separation, and then after 2012 it was never 50:50. I was just trying to get him - you know, he was saying he needed payments, and I at that particular time hadn't really sat down and worked out, until this process after the first level review, that he actually didn't even have the five or six nights a fortnight that I originally thought I've gone through it all and said, well, hang on a second, he didn't, and then there were gaps where he'd go away to Victoria when his father passed away and before and after that happened.”

    Statement of S O’K dated 24 November 2017

    [7] Transcript of proceedings (27 March 2018), p.12.

1. Mrs O’K is the mother of the other party and the grandmother of the children subject to this decision.

2. Mrs O’K submits that the applicant moved to Victoria around July 2013 due to suffering from depression and during this time the other party was the sole carer for the children. The other party facilitated the children’s extra-curricular activities including piano lessons at this time and on occasion, Mrs O’K would assist by attending piano lessons to help with the children. Mrs O’K submits that the applicant returned from Victoria in early 2014 but continued to make various trips back to Victoria. This was particularly because the applicant’s father passed away in early 2014 and so the applicant would go back and forth to assist his mother.

3. Mrs O’K submits that the applicant did not have the children for half of the school holidays and either she would have them or they would attend vacation care as a result of the other party enrolling them. Mrs O’K provided various examples of when the children were with her or enrolled in vacation care/camps.

4. With regards to the pattern of care of the children, Mrs O’K submits that the applicant rarely had the children on a school night and if anything, the applicant had the children on some of the weekends. Mrs O’K estimated the applicant had the children around two nights per fortnight at the most however L would often stay with the other party. Mrs O’K remarked that the applicant would usually collect the children from school and have them on a Thursday night but there were also a number of occasions where the children remained with either herself or the other party on a Thursday night. She also considered that the applicant would see the children every second weekend, usually on a Saturday night. They would not stay overnight on a Friday or Sunday. 

   Statement of GB dated 24 November 2017

5. The statement of Mr B coincides with the history of care as outlined by Mrs O’K. Mr B considers the applicant had the children on average two nights per fortnight, mainly on weekends. Mr B submits that the children were with the applicant most Thursday nights and Saturday nights but it was not every Saturday night.

   Other material

6. There were various other materials admitted as evidence including text messages,[8] bank statements,[9] domestic violence affidavits of the applicant,[10] a domestic violence affidavit of BST,[11] a USB and a CD containing audio and video recordings.[12] Much of this evidence is not relevant to the pattern of care of the children during the relevant period.  

   [8] Exhibit O.

   [9] Exhibit I.

   [10] Exhibit G and F.

   [11] Exhibit E.

   [12] Exhibit M.

   CONSIDERATION

7. The relevant care period under review by this Tribunal is 1 November 2015 to 22 November 2016. The Tribunal can under section 35P of the Act make a determination for an alternate period where there is an event that changed the pattern of care. There has been another determination in relation to the care of the children for the period of 23 November 2016 to 22 November 2017: however, there is no evidence before this Tribunal that this period of time has been disputed.

8. To determine the relevant percentage of care, I have to determine the pattern of care for the children based on the evidence. As outlined in Re Warne and Department of Families, Community Services and Indigenous Affairs,[13] the Tribunal uses a “broad brush approach” when making decisions in relation to these provisions. I am required to consider whether there has been a change in the pattern of care during the relevant period and if there has been, when this change occurred. The Tribunal must consider the nights in care of the children because of section 35J(1) of the Act.

   [13] [2006] AATA 159, [25] DP Hack S.C.

9. The decision of the Social Services and Child Support Division was that the applicant had 38 per cent care of the children, equating to five nights per fortnight, along with half of the school holidays.[14] 

   [14] Exhibit A, T-Documents, T2.

10. While the other party told Centrelink there was a 50:50 care arrangement between the applicant and herself, I accept her explanation for doing so, that is, she just wanted to get the applicant “off her back”. Her explanation was not challenged by the applicant despite the Tribunal having reminded the applicant that he could challenge any statement of the other party that he disagreed with. At the time of the hearing of this application there were still unresolved domestic violence allegations.

11. On the evidence before me I do not accept that in the relevant period there was a 50:50 care arrangement between the parents and it would appear that the applicant had A and B every Thursday night and most Saturday nights, and then L most Saturday nights only. I also consider there is little evidence before this Tribunal with regards to the pattern of care of the children during the school holidays with the only compelling evidence being the Easter school holidays during March and April 2016.  

12. The applicant’s witnesses did not provide any compelling evidence as to the pattern of care of the children with the majority saying that the applicant had the children at least 50 per cent of the time or most of the time. It also became apparent that at least some of the witnesses did not have any first-hand knowledge in relation to the nights in care of the children.

    Calendars

13. During the course of the hearings, the applicant tendered three different calendars to the Tribunal to indicate when he had care of the children. The applicant gave evidence that the calendars were not completed contemporaneously but retrospectively by using extrinsic materials such as the other party’s Facebook posts to determine when he had or might have had care of the children. The applicant also gave evidence that his support person, J, assisted with this task.

14. On 24 January 2018, the applicant relied on the extract of the calendar in the T‑Documents and the calendar provided in his letter dated 1 December 2017 to show when he cared for the children. Then during the resumed hearing on 26 March and 27 March 2018, the applicant tendered yet another calendar, claiming that this calendar was the original 2016 calendar he had used, as opposed to the other calendars.

15. The calendars are grossly inconsistent, including the method in which the applicant recorded having the children. The calendar contained in the T-Documents has crosses and ticks in each of the boxes to indicate when the applicant had the children. The second calendar has small ticks in the right hand side of the box, and sometimes has references to the other party’s Facebook posts or text messages to indicate when he had the children. The third calendar has stars and crosses in the boxes as well as references to the other party’s Facebook posts and text messages to indicate when he had the children.

16. During the hearing it was apparent that the applicant consistently could not indicate with confidence that he had the children on the specific dates he had marked in the calendar(s). There were many inconsistencies in his evidence and it seemed as though the applicant had just made assumptions about when he might have had the children for various reasons. Under cross-examination it became apparent that on many occasions where the applicant had ticked in his calendar as having the children, he actually did not have the children (some examples include 27 November 2015, 18 December 2015, 20 December 2015, 12 February 2016, 12 March 2016, 13 March 2016, 16 March 2016, 17 March 2016, 19 March 2016, 20 April 2016 and 22 April – 23 April 2016)[15] or he could not remember.

    [15] Oral evidence.

17. I do not accept that the calendars record an accurate pattern of care of the children. During the hearing the Tribunal drew the attention of the applicant to the various calendar entries on 2 October 2016 which highlighted the inconsistencies in the applicant’s record of his care of the children: the calendar in the T‑Documents indicated the applicant had the children on 2 October 2016; the second calendar did not give a clear indication of whether the applicant had the children on 2 October 2016, only stating, “music festival – L dropped back to festival”; and then the last calendar indicated that the applicant most likely did not have at least one of the children, L as the entry makes explicit reference to the other party’s Facebook post about being at Dreamworld with at least one of the children, L.

    Holidays

18. The applicant gave evidence that he had complete care of the children from 2 March 2016 until mid-April 2016. The applicant explained that B was admitted to the hospital on 2 March 2016 and discharged somewhere between 23 March and 28 March 2016. The applicant also gave evidence that the other party left for New York on 3 March 2016 until about 9 March 2016, although he could not confirm the return date.

19. The other party during cross-examination explained that B was admitted to hospital in March 2016 on two separate occasions and while she was away (actually in Las Vegas) for five days from 3 March 2016, her mother looked after the children. It was also conceded that B had been admitted to hospital by the other party’s mother and also discharged into her care. 

20. The applicant gave evidence that he had all three children for the whole of March 2016 to mid-April 2016. He gave evidence he went away with the children to Melbourne at the end of March 2016 and returned with them mid-April 2016. The applicant explained that L returned to the other party’s care on 11 April 2016 in preparation for the start of school, and A and B returned to the other party’s care on 18 April 2016.

21. I consider it likely that the applicant had the children during the Easter school holidays towards the end of March 2016 to mid-April 2016. I note that the school term ended on Friday, 24 March 2016 and resumed on Monday, 11 April 2016. This is largely consistent with the applicant’s evidence that he had the children during these school holidays. Adopting this approach, this would mean that the applicant had care of L for 13 nights during these holidays,[16] and 20 nights for A and B during these holidays.[17] 

    [16] Calculated based on the applicant having L from 28 March 2016 to 10 April 2016.

    [17] Calculated based on the applicant having A and B from 28 March 2016 to 17 April 2016.

22. I have concluded that during the relevant care period the pattern of care was that the applicant had, at most, 33.97 per cent care of A and B. This calculation is made on the basis of the applicant having A and B for four nights per fortnight as well as 20 nights for holidays. There would be instances where the applicant would care for A and B for three nights per fortnight but I consider that the pattern of care was that the applicant would care for A and B for four nights per fortnight. I have also concluded that during the relevant care period the applicant had 17.80 per cent care of L, calculated on the basis of the applicant having L for two nights per fortnight as well as 13 nights for holidays. Pursuant to section 35M of the Act, these percentages are rounded down to 33 per cent and 17 per cent respectively.

23. During the hearing of this application I made it clear to the applicant that any decision made in this matter may be more adverse to him than the original decision.  The applicant, after consideration of his matter, stated he understood this and wished to pursue his application.

    CONCLUSION

24. I conclude that on the evidence before me that during the period of 1 November 2015 to 22 November 2016, the applicant had 33 per cent care of A and B, and 17 per cent care of L.

    DECISION

25. I vary the decision under review to provide that during the period of 1 November 2015 to 22 November 2016, the applicant had 33 per cent care of A and B, and 17 per cent care of L.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.......................[SGD]..............................

Associate

Dated:            11 July 2018

Dates of Hearing:  24 January 2018

26 March 2018

27 March 2018  

The Applicant:  In person

The Other Party:  In person  

Solicitor for the Respondent:             Mills Oakley Lawyers