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

[2018] AATA 3742

Dixon and Secretary, Department of Social Services (Social services second review) [2018] AATA 3742 (3 October 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6690

Re:Mr James Dixon

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndMs Josephine Hilder

JOINED PARTY

DECISION

Tribunal:Ms Anna Burke, Member

Date:3 October 2018

Place:Melbourne

The Tribunal affirms the decision under review.

..............[sgd]........................................

Ms Anna Burke, Member

CHILD SUPPORT – care percentage determination finding applicant had 50 per cent care of child and other party had 50 per cent –- pattern of care not agreed by the parties – lack of clear evidence of permanent change in care arrangement - decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975; s 43(2A)
Child Support (Assessment) Act 1989; ss 49, 50, 54F
Child Support (Registration and Collection Act) 1988; s96A(b)

Cases
Polec v Staker and Another [2011] FMCAFAM 959
Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405 (21 April 2004)
Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607 (14 July 2008)

Secondary Materials

Family Assistance Guide

Child Support Guide – Version 4.24, released 8 May 2017

REASONS FOR DECISION

Ms Anna Burke, Member

1. Mr Dixon and Ms Hilder are the parents of child Z who was born 1 April 2009. They were in a de facto relationship which broke down in 2011. On 6 November 2013 they signed a Details of Dependent child care form with Centrelink which stated that from 22 May 2013 child Z would be in 50  per cent care of each parent.

2. This is an application by Mr Dixon to appeal the decision of the Social Security and Child Support Division of the Tribunal (AAT1) which found that Mr Dixon had 50 per cent care of child Z from 22 May 2013 and 100 per cent care from end of 8 March 2015. Mr Dixon requested a review of the AAT1 decision by the General Division of the Tribunal (Tier 2) on the basis that :

   I believe the decision is wrong and I have evidence that supports my claim that I’ve had 100% care of my son since early 2014.

   I have a large amount of evidence that I wish to provide including statutory declarations, information from third parties and affidavits.

   It is also my allegation that the Hilder family have a long and successful history of organising that their daughter collects payments from Centrelink such as rent assistance, single parenting payment, etc. and she did so while being in a domestic relationship and having no access to the child at all, living in properties owned by her parents and paying no rent, and also being provided with luxury cars, loans and other financial support by her parents. At no time did Mr and Mrs Hilder (Josephine’s parents) feel it was necessary to inform Centrelink or anybody else of their daughter’s fraud and assisted in filling out rent assistance forms for Centrelink etc even though she was not entitled to these payments and they knew this. This financial support and fraud funded her drug habit remains undisclosed to Centrelink.

3. The application before the AAT1 was brought by Ms Hilder who sought review of a decision by Centrelink to raise a debt against her for overpayment of Parenting Payment, Family Tax Benefit (FTB), School Kids Bonus and Rent Assistance. The decision of the AAT1 concerned the FBT overpayment 1 February 2014 and 27 October 2015, and is the matter under review in this appeal. The original Centrelink decision in contention was based on a finding that child Z had been 50 per cent in Ms Hilder’s care from 22 May 2013 and nil per cent from 1 February 2014. On 9 December 2016 an Authorised Review Officer (ARO) made the following key findings of fact:

   ·Ms Hilder is the mother of child Z born on 1 April 2009;

   ·Mr Dixon is the father of child Z;

   ·both parents co-signed a department form (F12) dated 6 November 2013 confirming a 50-50 shared care arrangement;

   ·child Z was enrolled at GEKA Kindergarten in 2014;

   ·Ms Hilder resides in Leopold, Victoria, approximately 93 km from the kindergarten;

   ·child Z commenced living with his father Mr Dixon from at least 1 February 2014;

   ·Ms Hilder continued to receive FTB at the higher rate until 27 October 2015; and

   ·Ms Hilder continued to receive parenting payment until 27 October 2015.

   This was based on the following information provided by Mr Dixon:

   ·Departmental change of care forms;

   ·kindergarten enrolment forms dated 16 February 2014;

   ·an application for intervention order dated 11 March 2015;

   ·Elsternwick primary school enrolment confirmation dated 13 April 2015;

   ·interim court orders dated 8 May 2015;

   ·letter from Harwood Andrews lawyers dated 17 June 2015

   ·interim court orders dated 3 August 2015; and

   ·interim court orders dated 2 September 2015.

4. On 17 October 2017 the AAT1 set aside the decision under review and substituted the new decision which found that Mr Dixon had 100 per cent care of child Z from 9 March 2015. In the decision the Member stated:

   Having considered the matter, I was satisfied that the weight of evidence favours Miss Hilder’s versions of Z’s care arrangements. I therefore found that the 50-50 share arrangements for Z persisted until 9 March 2015, from when Mr Dixon had 100% care of Z.

5. The application was heard on 18 July 2018. Mr Dixon represented himself; and Ms Hilder, who had been joined as a party, was represented by her mother Mrs Hilder. Mr Tim Noonan, a government lawyer from the Department of Human Services, appeared for the respondent, the Secretary of the Department of Social Services.

   ISSUE

6. The issue for determination by the Tribunal is what percentage of care should apply to the child from 1 February 2014 to 9 March 2015.

   THE LEGISLATION CONTEXT

7. FTB is worked out as an annual entitlement, in accordance with schedule 1 of A New Tax System (Family Assistance) Act 1999 (“the Act”) based on the combined adjusted income of the recipient and their partner or the recipient, inclusive of any entitlement to child support. Alternatively, they could elect to receive their full FTB entitlement after the end of the financial year.

8. Section 22 of the Act sets out the qualifying criteria and provisions to calculate FTB, including in the case of shared care arrangements.

   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.

   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).

9. 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.

10. Section 35B of the Act provides:

    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.

11. Whilst the Act does not define a care period, the Family Assistance Guide provides the following policy formula:

    Care period

    A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

    Care periods other than 12 months

    While a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the appropriate care period.

12. The Family Assistance Guide provides the following policy advice on determining a pattern of care:

    The pattern of care to be used in the shared care determination is either the pattern agreed to by all carers of the child or, if there is no such agreement, the pattern of care as established by the decision maker for the care period. A care period is the period over which care is assessed to determine the care percentages for each carer. A care period begins on the day on which the care of a child starts to be shared between 2 or more adults, or the day on which the pattern of care changes and ends when there is a subsequent change in care. It should be noted that a care period will generally be a 12 month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12 month periods, unless otherwise advised. A care period may be shorter than 12 months where the level of care is unsettled and changes on a regular basis.

    If the care percentage for a child is not agreed between carers, it is necessary to establish a pattern of care (1.1.P.70) to make a shared care determination for FTB. A pattern of care is generally established by using the number of nights in care (1.1.N.15) for each FTB child. The percentage of care for each FTB child is then calculated and applied to the standard rate (1.1.S.103) of FTB Part A and FTB Part B.

    How to establish a pattern of care

13. The pattern of care to be generally used in the shared care assessment is the actual care arrangements for the child. As much as possible, the pattern of care should be the pattern as agreed to by all parties who care for the child. Otherwise, Centrelink must carry out further investigation to determine the actual pattern of care. Section 59 of the Act provides:

    Shared 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%.

    Note: Paragraph 27(2)(b) deals with the percentage of care in a blended family case.

    (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.

Subdivision E—Revocation of determination of percentage of care

1. Section 35P of the Act provides:

   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.

2. Section 35Q of the Act provides:

   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.

   (e)  the individual’s percentage of care for the child applies, for the purposes of this Act as it applies to such a claim, in the same way, and in the same circumstances, in which it would apply if it had been determined by the Secretary under such a provision; and

   (f)  the child support care determination may cease to apply, or be revoked, under Subdivision D or E of this Division in the same way, and in the same circumstances, in which a determination made under Subdivision D of this Division may cease to apply, or be revoked.

   (2) This section ceases to apply to the child support care determination if the determination ceases to apply, or is revoked, under Subdivision B or C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989.

   .

   CONSIDERATION

3. The respondent stated in  her Statement of Facts, Issues and Contentions that:

   The Secretary adopts a neutral position about whether the evidence and contentions of Mr Dixon on this order should be preferred. Accordingly the Secretary makes no submission as the correct and preferable decision.

4. The above statement directly contradicts the finding of facts of the ARO which determined that there had been a change in the pattern of care for child Z which has led to the current appeal before the Tribunal.

5. All parties to this matter accept that child Z:

   ·attended kindergarten in  Elsternwick on Mondays and Wednesdays in 2014;

   ·has been in Mr Dixon’s care 100% since 9 March 2015; and

   ·commenced at Elsternwick Primary school on 17 March 2015 (Tribunal note: in 2015 the school year commenced in Victoria on 27 January).

   Additionally, both parents co-signed a department form (F12) dated 6 November 2013 confirming a 50-50 shared care arrangement.

6. Mr Dixon provided numerous photographs which he claimed demonstrated he had been providing increasing care of child Z from 2012 which culminated in him having full time care of his child. Accompanying the photographs was a printout of the date and time the images had been taken. Mrs Hilder objected to this evidence as she asserted the date and time of the photographs could have been manipulated. Whilst the photographs demonstrate child Z was in Mr Dixon’s care, they do not corroborate that Mr Dixon had 100 per cent care of child Z or in excess of 50 per cent care of the child prior to 9 March 2015.

1. Mr Dixon provided a statutory declaration from his current partner, in which she stated:

   I have been in a de-facto relationship with James Dixon since 2012. We moved in together shortly after we met and have lived together in Melbourne area ever since. Since we met, I have come to care for and love his son as my own child. Z has called me mum for years. I’ve been present for every major event in Z’s life and help James put Z through kindergarten and primary school.

   By 2013 Z was spending more than equal time with us as opposed to Josie. There were constant opportunities for Z to stay with Jimmy and I for longer, which we were always happy about, even if it was last-minute and we had to rearrange our schedule, because it meant more time together as a family. Josie often said that she wanted more time to herself for whatever reason or that something had come up, and would call Jimmy usually the day before or the day of the changeover to ask if we could keep Z with us for a few days longer. On many occasions she would not turn up at all and ring the next day with vague plans that we always ended up having to organise properly.

   If I had to summarise the percentage of care between Josie and Jimmy during 2014 to early 2015 before court proceedings began in the Federal Court, I would say that Z was with us for 80% of the act with Josie for 20%, although at times there were long gaps we had 100% care. We paid Z’s expenses entirely out of our own pocket too.

2. Mr Dixon provided a statutory declaration from his current partner’s mother, in which she stated:

   …during the period of 2014 to early 2015… Working part-time allowed me the opportunity to travel to Melbourne to see my family, Eloise included. Many times over this period I had the pleasure of visiting Eloise and this would include spending time with Z as well.

   If one day was Eloise and myself only, Eloise would be mindful of the time, so she could pick up Z from his kindergarten or school, depending on what stage in his education Z was at. whilst I never attended Z’s kindergarten personally, I knew I had to contact Eloise pre-visit to see if she was free to catch up or if she had reading or other duties at kindergarten/school with Z.

3. Mr Dixon provided a statement and gave oral testimony at the hearing in which he reiterated that child Z had been in his care on increasing occasions during 2012-13 and he had provided 100 per cent care in 2014. He asserted that both Ms Hilder and her parents were liars, in his statement he says:

   I want to explain the methodology and drive behind why Mr and Mrs Hilder, who stand behind their status as “medical professionals”, are liars and welfare cheats. Once this is understood, a much greater understanding is provided into this situation of very severe welfare fraud and it is then very sad to see how and why the Hilder family have stolen the money they did and done so in such a way that they are now heavily reliant on an all or nothing approach. For instance, I refer to the statement of Lynne King (previous Tribunal meeting) who claimed to be a client of Josie’s (although I doubt Josie can show where she has ever declared to earn money from home while claiming huge amounts of unemployment benefits). It also turns out Lynne King is a work friend of Mrs Hilder, but despite all this Lynne King swore Josephine to be a drug-free wonderful mother and submitted a letter saying so to the Federal Court, shortly before Josephine verbally abused the honourable Judge O’Sullivan while Josephine was high on ice and submitted dirty urine screens from marijuana use. When I say all or nothing, the Hilder’s have nothing left and are scraping up all of it to try and avoid the consequences of years and years of fraud. Anything that is submitted in one arena is contradicted in another and so on. They are liars.

4. Ms Hilder provided statutory declarations from her sisters which attested that in 2014 child Z was living with his mother for part of the week and for part of the week with Mr Dixon in Melbourne to attend kindergarten. They had observed this when they visited their sister on numerous occasions and child Z had always been present. They stated that their sister and child Z had visited them and attended numerous family functions together during this period. One sister stated that in February 2015 they observed photographs of child Z in his Leopold Primary School uniform where he had commenced primary school.

5. Mrs Hilder advised the Tribunal that in 2014 Mr Dixon and her daughter had 50-50 shared care of child Z because her daughter had agreed that child Z could attend kindergarten in Melbourne so that he could spend additional time with his father before he commenced school. Mrs Hilder volunteered that she did not believe this was a wise decision as she believed it was part of Mr Dixon’s plan to eventually have 100 per cent care of her grandson. She stated that child Z had been enrolled and commenced primary school in Leopold, Geelong in 2015. She also said that she saw child Z every week in 2014 in Geelong, as they always got together and went out for meals. Mrs Hilder said that she also has hundreds of photographs of herself and/or her daughter with child Z that they had not submitted to the Tribunal because they were aware that photographs could be manipulated.

6. According to Mrs Hilder, the arrangement for child Z in 2014 was that from Sunday afternoon to Wednesday afternoon he was with his father and the rest of the week he was with his mother and that child Z never spent long periods away from his mother. Child Z had been enrolled and commenced primary school in Leopold, Geelong in 2015 which would indicate it was intended that he remain in her daughter’s care.

7. Mrs Hilder disputed that her daughter’s drug addiction and mental health issues had commenced in 2014 and that this was having an impact on her care of child Z. She did acknowledge that her daughter’s issues with drugs had commenced in late February or early March 2015.

8. She stated that many of her daughter’s mental health issues had stemmed from, and been greatly impacted by, the loss of child Z and the numerous court hearings that have followed. Since 2015, Mr and Mrs Hilder have continued to have contact with child Z.  Mrs Hilder stated that her daughter has had various contact arrangements with the child but does not dispute that from 9 March 2015 child Z has been in his father’s care 100 per cent of the time.

   FINDINGS

9. The Tribunal is in the difficult position of having received limited assistance from the respondent and little corroborating evidence from the applicant or the joined party. The Tribunal must determine to what extent Mr Dixon and Ms Hilder had care of their son during the period in dispute. As there are differing accounts by both parties, the conflicting evidence must be weighed to arrive at the correct and preferable decision.

10. There is no definition of the term ‘care’ in the Act. Rather, there are a number of cases which provide guidance as to the matters to be considered in determining the extent of care of a child. For example, in Polec v Staker and Another [2011] FMCAFAM 959 at [56] the Honourable Justice Hughes outlined that it was necessary to consider the following:

    (a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities?

    (b)To what extent does the person make arrangements for others to meet the needs of the child?

    (c)To what extent does the person pay for the costs of meeting the needs of the child?

    (d)To what extent does the person otherwise provide financial support for the child?

    (e)To what extent does the child provide for his or her own needs or have those needs been met from another source?

    (f)To what extent is the child financially independent or financially supported from another source?

11. Mr Dixon and his partner have claimed to have been providing the bulk of child Z’s financial, accommodation and educational needs during this period but there are no corroborating financial statements to verify this claim. Mr Dixon advised at the hearing that he had paid child support in that period and had not realised he was entitled to FTB during that time. Mr Dixon and his partner also attest that child Z was spending more time in their care during this period. The Tribunal accepts that this maybe an accurate reflection of the situation; but there is no documentary evidence which corroborates this claim.

12. A Centrelink customer contact record indicates that on 26 March 2015 Mr Dixon rang to advise that child Z had been in his care 100 per cent of the time since 3 March 2015; and had been in his care more than 50 per cent since February 2014.

13. In an affidavit filed in the Federal Court proceedings dated 29 January 2016, Ms Hilder states that she had primary care of child Z from his birth until 2014, when he commenced kindergarten near his father’s home, with her agreement.

14. The respondent referred the Tribunal to  Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405, where the Member of the Administrative Appeals Tribunal stated:

    For the purposes of s 22(7) it is, in my opinion, clear from the terms of the agreement between the applicant and Mrs Brightman, which was reflected in a court order, and from the oral and documentary evidence before me, that there has been a pattern of care for the two children over the period in question such that the two children would be FBT children of both their parents unless s 25(1) requires a different conclusion.

    When looking at that pattern of care the Tribunal is not restricted to the extent of contact set out in the court order. As was said in Re Nowicz and Department of Family and Community Services [2001] AATA 628 at [15] (per Senior Member Kiosoglous) "a common sense approach necessarily means that ...this Tribunal considers the relevant documentation, and the evidence of both parties as to what has been happening in the past and what is intended to happen in the future, if such differs from the documentary evidence. Based upon such consideration, [the Tribunal] is then in a position to determine what pattern of care has existed, or will exist in relation to the relevant FTB child." The Senior Member went on to say that "once established it is appropriate that variation only occur where there is to be a significant departure in an established pattern of care. This may occur, for example, when contact weekends are changed from fortnightly to monthly. It would not occur when the odd weekend contact visit was missed, or a child stayed for one particular weekend in addition to the contact weekend in a given fortnight during a particular assessment period."

15. Given that the only relevant documentary evidence of the care arrangements for Z in the period in question is the shared care agreement (department form (F12)) both parents co-signed dated 6 November 2013, common sense would dictate that this is the basis for the Tribunal to determine the percentage care for child Z from 22 May 2013 until 9 March 2015. All the evidentiary information provided by Mr Dixon to the ARO which resulted in the determination that he had 100 per cent care of Z from 1 February 2014 (aside from the agreed kindergarten enrolment) is from the period after 9 March 2015 and does not assist these deliberations.

16. The Tribunal is required to consider whether the parties had a pattern of care for the child. If a pattern of care is found, the percentage of care for the children during the care period must be determined as a percentage that corresponds with the actual care of the children that has occurred, or is likely to occur, during that period. A percentage of care is determined by reference to a care period, which is not defined in the Act but is referenced in the relevant guide and is generally 12 months taken from the date the actual care commences.

17. The respondent referred the Tribunal to  Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA where the  Administrative Appeals Tribunal stated:

    18.The essential decision must therefore be made in terms of s 59(1) of the Act, ie. the Secretary may determine the percentage of family tax benefit for each child which is to be paid to each parent. The Family Assistance Guide (“the Guide”) is of some use conducting this evaluation. In particular, the Guide specifies that where the percentages or the care arrangements between the relevant parties is not agreed, then it is necessary to determine “a pattern of care”. This is usefully done by adopting “either the number of nights in care ... or the hours of care for each FTB child. The percentage of care for each FTB child is then calculated and applied to the standard rate ...”[6].

    19.The application of s 59(1) and the Guide was amplified in Wade v Secretary, Department of Family and Community Services[7]. The Court said that the purpose of the Act is to provide the proportion of the benefit to “... the person having the care of the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided by them ... The pattern of care is also used as the basis for calculation of the percentage ...”[8].

    20.It has been previously determined in this Tribunal that exactness in calculations or determinations of “day-to-day variations in that care”[9] is not intended[10]. Also, in Re Warne and Department of Families, Community Services and Indigenous Affairs[11], DP Hack held that a “broad brush basis” is an appropriate method of making decisions in relation to these provisions.

18. As there is no documentary evidence to establish that the pattern of care for child Z agreed to by the parents on 6 November 2013 was varied until 9 March 2015, the Tribunal determines that the pattern of care was 50-50 from 1 February 2014 until 9 March 2015.

    CONCLUSION

19. For the reasons outlined above, the Tribunal affirms the decision under review that from 1 February 2014 to 9 March 2015 Mr Dixon had a care percentage of 50 per cent of child Z, and Ms Hilder had 50 per cent care of child Z.

20. The Tribunal affirms the decision under review.

I certify that the preceding 39(thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

..............[sgd].................................................

Associate

Dated: 3 October 2018

Date of hearing:	18 July 2018
Applicant:	Self-represented
Advocate for the Respondent:	Mr Tim Noonan
Solicitors for the Respondent:	Department of Human Services, Freedom of Information and Litigation Branch
Representative for Other Party:	Mrs Jacqueline Hilder (Mother)