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

[2021] AATA 1701

Henneker and Secretary, Department of Social Services (Social services second review) [2021] AATA 1701 (8 June 2021)

Division:GENERAL DIVISION

File Number:          2020/6723

Re:Michael Henneker  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AnorSuzanne Olszewski

OTHER PARTY

DECISION

Tribunal:Senior Member J Rau SC

Date:8 June 2021

Place:Adelaide

The decision under review is affirmed.

..........................[Sgnd]..................................
              Senior Member J Rau SC

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 affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999

Administrative Appeals Tribunal Act 1975

Social Security Act 1947

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

McDonald v Director-General of Social Security (1984) 6 ALO 6; [1984] FCA 57

SECONDARY MATERIAL

Family Assistance Guide

REASONS FOR DECISION

Senior Member John Rau

8 June 2021

INTRODUCTION

1. This is a review of the decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (“AAT 1”) on 15 October 2020 to affirm the decision made by an Authorised Review Officer (“ARO”) of Services Australia dated 15 July 2020, relating to Mr Henneker and Ms Olszewski’s percentage of care of their daughter, Child A, for Family Tax Benefit (“FTB”) purposes. That decision determined each party had care of Child A as follows:

   (a)From 29 August 2019 to 6 November 2019, Mr Henneker had 0% care of Child A and Ms Olszewski had 100% care;

   (b)From 7 November 2019 to 3 March 2020, Mr Henneker had 10% care of Child A and Ms Olszewski had 90% care; and

   (c)From 3 March 2020, Mr Henneker and Ms Olszewski each had 50% care of Child A.

2. This matter essentially boils down to a question of contested facts between the parties. The question is, put simply, in whose care Child A was during each relevant period?

3. At the outset of the hearing, I sought clarification from the parties regarding the extent to which there continued to be a dispute relating to the above three periods. Mr Henneker advised me as follows:

   (a)From 29 August 2019 to 6 November 2019 there is no dispute. Mr Henneker had 0% care;

   (b)From the period 7 November 2019 to 3 March 2020, Mr Henneker asserts that care was split between the parties on a 50-50 basis; and

   (c)From 3 March 2020 to the present, Mr Henneker asserts that he has had 80% of the care.

   BACKGROUND

4. Child A was born on 5 June 2005. Mr Henneker is her father and Ms Olszewski is her mother. They separated in 2017 when Ms Olszewski left the matrimonial home at Two Wells.

5. Mr Henneker and Ms Olszewski have other children, but this matter relates solely to their shared care of Child A.

6. On 17 September 2019, Services Australia was advised that Child A was no longer in Mr Henneker’s care from 29 August 2019. As a result, his FTB in respect of Child A was cancelled.

7. On 10 March 2020, Mr Henneker lodged a claim for FTB stating that he had 90% care of Child A from 4 October 2019. The Secretary decided that Mr Henneker’s FTB percentage of care in respect of Child A from 4 October 2019 was 90%.

8. On 9 June 2020, another person asked for a review of the FTB care percentages. As a result of the review, the Secretary decided that Mr Henneker’s percentage of care in respect of Child A was 10% from 7 November 2019 and 50% from 3 March 2020.

9. Mr Henneker requested review of that decision, and on 15 July 2020 an ARO decided that Mr Henneker and Ms Olszewski’s care percentages in respect of Child A were as set out in paragraph 1 above.

10. Mr Henneker applied to further review of that decision, and on 15 October 2020 Member Cox (AAT1) decided to affirm the ARO’s decision.

11. On 30 October 2020 Mr Henneker applied for review of the AAT 1 decision before this Tribunal. In his application for review of this decision, in answer to the question “why do you claim the decision is wrong?”, Mr Henneker stated as follows:

    “The decision was wrong, people who know [Child A] lives with me were not contacted. Namely local police and school counsellor that attends our house. The mothers manipulation of the system to fraudulently claim benefits, and allowing other family members to claim fraudulently benefits over several years. I think I have supplied enough evidence to prove [Child A] lives with me, and I ask you to send an investigator out to investigate all matters properly.”[1]

    [1] Exhibit 3, T1, p 4.

12. At the beginning of the hearing I explained to Mr Henneker that the Tribunal does not engage or direct investigators. I advised him that the calling of evidence in support of his claim is entirely a matter for the him.

    LEGISLATIVE FRAMEWORK

13. The relevant law is contained within the A New Tax System (Family Assistance) Act 1999 (“the FA Act”).

14. The relevant policy is contained within the Family Assistance Guide (“the FA guide”).

15. The Tribunal will normally apply the guidelines unless there are cogent reasons in a particular case for not doing so.[2]

    [2] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645

16. To qualify for FTB a person must relevantly have at least one FTB child, pursuant to s 21(1) of the FA Act.

17. The annual rate of FTB payable to a person is calculated in accordance with the rate calculator in schedule one of the FA Act.[3]

    [3] Section 58(1).

18. A child under 16 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

    (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).

19. 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.

20. A child under 16 will be an FTB child of a person during a care period if:

    (a)The child is in that person’s care[4];

    (b)The person meets the residency requirements in s 22(2)(c) of the FA Act;

    (c)The circumstances surrounding legal responsibility for the care of the child are pursuant to s 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.

    [4] FA Act, s 22(2)(b).

21. If the Tribunal finds that Child A was an FTB child of both Mr Henneker and Ms Olszewski during the care period, it is necessary then to make a determination as to each party’s shared care percentage in respect of Child A.

22. 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.[5]

    [5] FA Act, Schedule 1, s 11.

23. The shared care percentage for a person in respect of an FTB child his then determined based on the percentage of care that person has in respect of that child.

24. The decision-maker, in this instance the Tribunal, is required to determine each person’s percentage of care, according to ss 35A–35N of the FA Act.

25. Once the percentage of care is determined, this is then used to calculate the shared care according to the table contained in s 59 of the FA Act, which provides:

    Shared care percentages where individual is FB child or 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%

1. If a person’s percentage of care in respect of a child is less than 35%, then that child will not be there FTB child and therefore they will have no shared care percentage in respect of that child.

2. 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 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.

3. Having regard to the concession made by Mr Henneker at the outset of these proceedings in respect of the period from 29 August 2019 to 6 November 2019, the care period under review is from 7 November 2019 to the present time.

4. The Tribunal must consider whether there was a change in the pattern and percentage of care that Mr Henneker provided to Child A during the period. And if so, when that change might have occurred.

5. If the Tribunal was to find that there was a change in the percentage of care, it would be required to revoke the existing determination if “the other percentage would not be in the same percentage ranges the individual’s existing percentage of care”.[6]

   [6] FA Act, s 35P.

6. If the Tribunal were to revoke the existing determination the Tribunal would be required to determine a new percentage of care based on actual care that Mr Henneker provided during the care period.

7. In order to make its determination, the Tribunal has had regard to the evidence provided by Mr Henneker and Ms Olszewski.

   THE EVIDENCE

8. The Tribunal received the following written evidence and material:

   (a)Exhibit 1 – Respondent – Statement of Facts, Issues and Contentions

   (b)Exhibit 2 – Other Party – Statutory Declaration & Handwritten note

   (c)Exhibit 3 – Respondent – Exhibit 3

   (d)Exhibit 4 – Applicant – Statement of Desiree Hayward

   (e)Exhibit 5 – Applicant – Family Safety Plan

   (f)Exhibit 6 – Applicant – Letter from case manager at Flexible Learning Options

   (g)Exhibit 7 – Applicant – Centrelink correspondence

   (h)Exhibit 8 – Applicant – Statement of Joshua Silvy

   (i)Exhibit 9 – Applicant – Letter from Gawler & District College

   (j)Exhibit 10 – Other Party – Statutory Declaration of Child A & Photographs

   (k)Exhibit 11 – Other Party – Statement of Sarah Henneker

   (l)Exhibit 12 – Applicant – Bundle of statements

   (m)Exhibit 13 – Other Party – Photographs

   (n)Exhibit 14 – Applicant – Bundle of documents, invoices including invoice from Dr G Williamson

   (o)Exhibit 15 – Applicant – Bundle of photographs

9. The Tribunal was provided with a number of documents (see exhibits listed above), which Mr Henneker says supported his case. These included for example, Exhibit 14 and 15. Exhibit 14 contained various invoices relating to dental treatment which had been paid for by him together with photographs of Child A. Exhibit 15 contained a bundle of images of Child A. Exhibit 3 contained more material of this type including records indicating mobile phone records from a period between 1 June 2020 and 31 July 2020.

10. Ms Olszewski also produced a bundle of documents (Exhibit 13) in the nature of dated photographs of Child A.

11. All of these materials provide support for the proposition that at various times, at least since June 2020, Child A has from time to time, been in the care of each of her parents. This evidence does not, however, greatly assist the Tribunal in coming to any conclusion as to the actual percentage of time spent with each parent during any of the relevant periods.

12. The Tribunal took sworn evidence from the following witnesses by telephone:

    (a)Mr Michael Henneker (Mr Henneker)

    (b)Ms Suzanne Olszewski (Child A’s mother)

    (c)Ms Desiree Howard (Mr Henneker’s de facto partner)

    (d)Ms Brooke Holland (friend of Mr Henneker)

    (e)Ms Sarah Henneker (daughter aged over 18)

    (f)Ms Sandra Olszewski (Child A’s maternal grandmother)

    (g)Ms Leanne Tauber (Suzanne Olszewski’s sister and Child A’s aunt)

13. Mr Henneker also requested that the Tribunal contact Mr Joshua Silvey, Mr Jason Hunt, Mr Neville Seccafien, Mr Tony Lange, and Mr Bob Fountain. The Tribunal had already received statements from each of these individuals, but they were unavailable to speak to the Tribunal during the hearing.

14. Mr Henneker also requested that the Tribunal contact Senior Constable Garry Wills, who I was advised was a police officer who had witnessed a statutory declaration made by him on 11 June 2020. No statement by SC Wills had been provided either to the Tribunal or to Ms Olszewski. I requested clarification from Mr Henneker as to what sort of evidence he expected that SC Wills would be able to give. He indicated that SC Wills would basically be able to say that Child A was frequently seen in the Two Wells area.

15. Given the fact that there did not appear to be any serious contest that Child A and Mr Henneker were indeed frequently in the vicinity of Two Wells and given that SC Wills did not reside with Mr Henneker, or otherwise have any particular association with Child A, I determined that it was not on balance necessary, or helpful for SC Wills to be called to give evidence without notice, or the provision of a statement.

16. Mr Henneker had previously provided a number of short statements in support of his case which appear in evidence at page 201 and beyond of Exhibit 3.

17. The first of these was from Brooke Holland who also gave oral evidence. In her written statement dated 11 May 2020, Ms Holland indicated that she had known Mr Henneker for the past three years and that during this time:

    “I have only known his daughter [Child A] to reside with him at his address of 87 Port Wakefield Road two wells. There was a period of approximately four weeks in this timeframe when Child A was staying with her mother but then she immediately returned to reside at the Two Wills address with her father.”

18. In her statement and indeed in her oral evidence Ms Holland indicated that her interaction with Mr Henneker had been based on the fact that he would from time to time bring scrap metal for sale at the place where she worked. In other words, she came to know him as a customer. She indicated that he would visit the scrap metal business “every few months, sometimes weekly”. She indicated that she had known him socially for the last two years but that she had probably only visited his home on four occasions during that time. It was only during her evidence that a previously undisclosed relationship between Ms Holland and Mr Henneker emerged, namely that she was a tenant in his rental property and had been, since approximately May 2020. Given all of the evidence, it is extremely difficult to see how Ms Holland would ever been in a position to independently observe the amount of time that Child A would spend with Mr Henneker as set out in her statement of 11 May 2020. From her very limited observations, her evidence seems to suggest that Child A spent more time in the care of Mr Henneker than even suggested by Mr Henneker. I place little weight on her evidence as to the periods of time that Child A has spent in Mr Henneker’s care.

19. A further statement was placed in evidence from Tony Lange. This statement, also dated 11 May 2020, says as follows:

    “My shop address is 120 old Port Wakefield Road two Wills SA 5501 this letter is to verify that I see [Child A] walk past my shop at above address most days when I am at shop Monday to Saturday to the best of my knowledge she has lived with Michael at 87 old Port Wakefield Road two wells and has most of the time”

20. Mr Lange was not called, but I note the similarity between the text of his statement and that of other witnesses. Mr Lange’s statement draws conclusions very beneficial to Mr Henneker from limited observations. I place little weight on his evidence as to the periods of time that Child A has spent in Mr Henneker’s care.

21. A further statement was placed in evidence from Mr Neville Seccafien also dated 11 May 2020 which says as follows:

    “My name is Neville of 85 Port Wakefield Road Two Wells SA 5510. This letter is to verify that I see [Child A] walked past my shop at the above address most days when I am at shop Monday to Friday to my best knowledge she has lived next door at 87 Allport Road two Wills SA except for a short period when she went to live with her mother”.

22. An attempt was made to speak to Mr Seccafien, but he did not answer his telephone. I note the similarity between his statement and that of other witnesses. I also note the conclusions that he draws from his limited observations. I place little weight on his evidence as to the periods of time that Child A has spent in Mr Henneker’s care.

23. A further statement was placed in evidence from a Mr Bob Fountain. This statement was in the following terms:

    “I’m writing this a to inform you that as to my knowledge Michael has care of his daughter Child A. I have known Michael for the past six years and often pops into our work for a chat. I often see Child A around Two Wells with friends, in a school uniform catching the bus to and from school and walking to the shops.”

24. Mr Fountain was not called to give evidence. Again, he draws conclusions based on limited observations. I place little weight on his evidence as to the periods of time that Child A has spent in Mr Henneker’s care.

25. A further statement was placed in evidence from a Mr Jason Hunt, dated 11 May 2020, which was in the following terms:

    “My shop address is 92 Port Wakefield Road Two Wells SA 5501. This letter is to verify that I have seen [Child A] in Two Wells most days when I’m in my shop were doing deliveries. To my best knowledge she has lived with Michael at 87 Port Wakefield Road Two Wells SA and has most of the time and most of her life.”

26. An attempt was made to speak to Mr Hunt but he did not answer is telephone. I notice a similarity between his statement and that presented by others. I also note that his conclusion is drawn from limited observations. I place little weight on his evidence as to the periods of time that Child A has spent in Mr Henneker’s care.

1. Statement was provided by Deirdre Desiree Hayward dated 21 February 2021. Her statement says:

   “During the past 15 months I have been a frequent visitor to the residents of Michael Henneker. I am aware that his daughter Child A lives with him. On occasion, Child A spends time with her mother but resides at 87 Allport Wakefield Road, two wells. I regularly transfer funds to Child A for her father, to purchase a lunch, clothing and other personal items Child A requires.”

2. Ms Hayward did give evidence by telephone. It only emerged during the course of her evidence, that she was Mr Henneker’s de facto partner. Her evidence was that up until the last 12 months or so (from August 2020 approximately) she had been, essentially, a weekend visitor to Mr Henneker’s home, returning to her own home in the southern suburbs during the week. Leaving aside any question of Ms Hayward wishing to assist Mr Henneker in his application, on her own evidence she would only have been in a position to make observations during the last 12 months. During this period, she suggested that Child A had been with Mr Henneker between 80 and 90% of the time. I accept that Ms Hayward has been in a position to make detailed observations of Child A’s movements since she began to co-habit with Mr Henneker. Prior to that, her observations were confined to weekends. I note that her assessment of “80 to 90%” supports Mr Henneker. I accept Ms Hayward’s evidence to the extent that it supports a finding that during the last year, Child A has spent significant time with Mr Henneker. This much is not in issue in this case. The issue is between 50/50 and some higher number, such as 80% in Mr Henneker’s favour. On this point I give little weight to her evidence.

3. Overall, the evidence of witnesses for Mr Henneker raise some concerns. First of all, there is the great similarity between the text of a number of the statements, raising the issue of whether they may have been prepared in advance by Mr Henneker, or at least as the product of some guided collaboration with him. This was put to Mr Henneker, but he denied this was so. There is the fact that a number of the statements have the same date, namely 11 May 2020. This is not necessarily a problem in itself, but it does suggest a quick run around on a single day, to obtain statements.  There is also a big question about the extent to which many of these witnesses would have been in any position to make observations about Child A’s daily movements. If they were, they do not explain why they would have any particular memory of such movements. Furthermore, it is not necessarily the case that Child A being sighted in Two Wells is or was probative of her residing with Mr Henneker at that time. There was evidence to the effect that Child A also spent significant time at her boyfriend’s home at Lower Light. This may be an alternative explanation for some of the times that she was observed in the vicinity of Two Wells.

4. Sarah Henneker was called as a witness by the Ms Olszewski. Her evidence was to the effect that in the period between 7 November 2019 and 3 March 2020, Child A was usually with Ms Olszewski, but sometimes with her boyfriend. Since 3 March 2020, Child A was “in between both houses week to week”. She also gave evidence about Child A working at a McDonald’s store at Enfield for the last 10 months, on up to 5 days per week. She gave evidence about collecting her from work from time to time. I note that Enfield is much closer to Ms Olszewski’s residence than to Two Wells. Sarah herself had lived with each of her parents at various points in time, but now resided with her mother. Overall, I was impressed with the straightforward way in which Ms Henneker gave her evidence. I give weight to her evidence.

5. Leanne Taeuber was also called as a witness by Ms Olszewski. She is Ms Olszewski’s sister and Child A’s aunt. She gave evidence that she is usually in Ms Olszewski’s home 3 to 5 nights per week. This obviously gave her a frequent opportunity to observe whether Child A was there or not. Her evidence was that between the period 7 November 2019 and 3 March 2020 Child A was there at her sister’s house “nearly every time she was there”, she was “there are a lot” but she freely conceded that there were “a few nights when she wasn’t there”. She indicated that from 3 March 2020 to the present she has still seen a lot of Child A at her sister’s home, but not as much as before. I formed the impression that Ms Tauber was straightforward in her evidence and that she did not attempt to tailor her testimony to advantage her sister. I give weight to Ms Taeuber ‘s evidence.

6. Sandra Olszewski was called as a witness by the other party as well. She is Suzanne Olszewski’s mother and Child A’s grandmother. She lives very close to her daughter Ms Olszewski. She said that she would visit Ms Olszewski three or four times per week and therefore again, she has had a good opportunity to observe who is in Ms Olszewski’s home. She gave evidence that with respect to the period between 7 November 2019 and 3 March 2020, Child A was mostly with Ms Olszewski and a “minimum with her father”. In the period since 3 March 2010, Child A had continued to be “regularly with her mother”, but also with her father and at her boyfriend’s parents’ home. I formed the impression that Sandra Olszewski was a truthful witness who has had a close opportunity to observe Child A’s movements. I give weight to her evidence.

7. Exhibit 3 contained a statutory declaration dated 26 May 2020 from Child A herself in this statement she says as follows:

   “Since the end of August 2019 when families SA took me out of my dad’s care I have lived with my mum full-time. I stayed at my dad’s for two weeks during the Christmas holidays. But other than that I have lived at my mum’s full-time. My mum, my sisters, myself went on a holiday to Bali at the end of February when we returned on 3 March I went to my dad’s house and since then I’ve been going backwards and forwards between my mums and my dad’s house. I have not been living with my dad since October 2019 my dad is lying about this. So since 3 March 2020 it would be equal time between my mum and my dad as I stay about the same time of nights at each of their houses each week.”[7]

   [7] Exhibit 3, T44, p 287.

8. Exhibit 10 contains a further statutory declaration from Child A dated 6 January 2021.

9. In this she states:

   “I am the daughter of Suzanne Olszewski who this review is about. All the dates that mum has put down for the last two months since 6 November are true and correct I have spent all these nights over at mums house.”

10. There is then attached a list of dates between 6 November 2020 and 5 January 2021. On the face of it, these dates indicate that Child A was with her mother on 35 out of 60 nights during the relevant period. This equates to approximately 58%.

11. I am mindful that Exhibit 10 only purports to provide a sample, by which to draw inferences about the balance of the period involved. I am also mindful that the list of dates was   compiled by Ms Olszewski in support of her case. Whilst I am persuaded that this material provides evidence of a pattern of shared care, I am not satisfied that it is safe to extrapolate from this period and apply the exact same percentage for the whole time since 7 November 2019, or indeed since 3 March 2020.

12. On the basis of all of the evidence, I have come to the view that since 3 March 2020, Child A has been in the habit of moving between her mother’s and father’s homes from time to time, as she sees fit. It is probably the case that she has also spent some time at neither of her parent’s homes, but at the home of her boyfriend. There is insufficient evidence for any precision to be given to the amount of time that Child A may have spent at her boyfriend’s home during any period.

    64.As a matter of general principle, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.[8] In McDonald v Director-General of Social Security (1984) 6 ALO 6; [1984] FCA 57 the Federal Court considered the question of whether there was an evidential onus of proof in proceedings before the Tribunal (in the context of the former Social Security Act 1947) and found (per Woodward J at 11, emphasis added):

    [ ... ] there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 does not. If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled.”

    65.The task before the Tribunal in this case is similar to that described by Woodward J. The Tribunal must decide whether it can revoke the existing care determinations. If the Tribunal cannot revoke the existing care determinations, there is no need to make new care determinations.

    66.Sections 35P and 35Q of the FA Act require that the Tribunal be satisfied that either:

    a. the percentage of care will change[9]; or

    b. that the shared care percentage or percentage range will change.

    [8] Administrative Appeals Tribunal Act 1975, s 33(1)(c).

    [9] FA Act, s 35Q(1)(b).

    CONCLUSION

13. Child A was not relevantly in Mr Henneker’s care prior to 7 November 2019 and therefore it is not possible to make a care determination in his favour. This much is agreed.

14. Having regard to all of the above, in my view the weight of evidence suggests that from 7 November 2019 to 3 March 2020, Child A spent very little with her father and was substantially in the care of her mother. Whilst it is difficult to be mathematically precise, I determine that a split of 10% care for Mr Henneker in 90% to Ms Olszewski is appropriate.

15. I determine pursuant to s 35B(1) of the FA Act that from 7 November 2019 Mr Henneker has had a percentage care in respect of Child A of 10%.

16. In relation to the period from 3 March 2020 to the present, it seems clear that there was a family dispute or some other disruption that occurred upon Child A’s return from a family trip to Bali which saw her abruptly increase her contact with her father. It seems that for most of this period Child A has been essentially pleasing herself where she stays, moving between her mother’s home, her father’s home and, possibly to some limited degree, her boyfriend’s home. This makes mathematical precision impossible but, having regard to all of the evidence I determine that from 3 March 2020 Mr Henneker and Ms Olszewski each have had 50% care of Child A.

17. Accordingly, I revoke that percentage of care determination with effect from 2 March 2020 pursuant to s 35P of the FA Act.

18. I further determine pursuant to s 35B(2) of the FA Act that from 3 March 2020 Mr Henneker has had a percentage of care of Child A of 50%.

    DECISION

19. The decision under review is affirmed.  

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for the decision herein of Senior Member Rau SC.

............................[Sgnd]....................................

Associate

Dated:   8 June 2021

Date of hearing:

26 May 2021

Applicant:

Self-Represented

Solicitor for the Respondent:

Other Party:  

Riley Calaby

Services Australia

Self-Represented