JKRM and Secretary, Department of Social Services (Social services second review)
[2020] AATA 1954
•8 May 2020
JKRM and Secretary, Department of Social Services (Social services second review) [2020] AATA 1954 (8 May 2020)
Division:GENERAL DIVISION
File Number:2019/2620
Re:JKRM
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
AndWZRZ
OTHER PARTY
DECISION
Tribunal:Member S Barton
Date:8 May 2020
Place:Perth
The Tribunal sets aside the decision under review and substitutes with the decision that the Applicant and the Other Party each had a care percentage of 50% of their son from
16 December 2016 - 23 April 2018 and that the Applicant had a care percentage of
39% and the Other Party had a care percentage of 61% of their daughter from
16 December 2016 - 23 April 2018................................[sgd].................................
Member S Barton
CATCHWORDS
FAMILY TAX BENEFIT – FTB – whether child was an FTB child of the Applicant or Other Party – was there a change in the pattern and percentage of care of children – determination of percentage of care – lack of corroborating evidence – decision under review set aside and substituted
LEGISLATION
A New Tax System (Family Assistance) Act 1999 – ss 3, 22, 35B, 35C, 35J, 35L, 35M, 35P, 35Q, 59
CASES
Parent 1 and Child Support Secretary, and Parent 2 [2013] AATA 562
Polec and Staker [2001] FMCAfam 959
SECONDARY MATERIALS
Guides to Social Policy Law, Family Assistance Guide, version 1.219
REASONS FOR DECISION
Member S Barton
8 May 2020
BACKGROUND
This is a review of a decision made by the Administrative Appeals Tribunal,
Social Services and Child Support Division (the AAT1) dated 10 April 2019
(the Reviewable decision).
The AAT1 set aside the decision of an Authorised Review Officer made on 10 January 2018 and, in substitution, decided that from 16 December 2016, the Applicant had
28% care of the two children and the Other Party had 72% care.
FACTS
JKRM (the Applicant) and WZRZ (the Other Party) are the separated parents of two children, a boy and a girl.
At various points, both parents have been in receipt of the family tax benefit (FTB).
On 21 December 2016, the Other Party made an application for FTB when the parents separated. In June 2017, the Department of Human Services (Department) determined that from the date of the application, the Other Party had 72% care of the children and the Applicant had 28%.The Applicant sought of review of this decision and, on 10 January 2018, an Authorised Review Officer (ARO) decided that the Applicant and the Other Party each had 50% care of the children. The Other Party applied to AAT1 for a review of the ARO’s decision.
On 10 April 2019, AAT1 set aside the ARO’s decision and in substitution decided that the Other Party had 72% care of the children and the Applicant had 28%.
On 13 May 2019, the Applicant applied to the General Division of the Tribunal for a review of the AAT1 decision.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Monday 17 February 2020. The Applicant appeared in person and was self-represented.
The Applicant gave oral evidence.
The Respondent was represented by Ms L Hinwood, who appeared by telephone.
The Other Party appeared by telephone.
An interpreter for the Other Party was present at the hearing.
The Other Party called a witness, her mother, who appeared by telephone with the assistance of the aforementioned interpreter.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Submission, dated 10 October 2019 (Exhibit A1);
(b)Applicant’s response to the Other Party, dated 22 September 2019 (Exhibit A2);
(c)Bank Statements of the Other Party, from 26 November 2016 to
26 September 2018 (Exhibit A3);(d)Respondent’s Statement of Facts, Issues and Contentions, dated 29 October 2019 (Exhibit R1); and
(e)Section 37 documents (T documents) numbered T1 to T31, comprising 179 pages, dated 21 August 2019 (Exhibit R2).
(f)Statement of WZRZ, dated 5 October 2019 (Exhibit O1); and
(g)Statement of the Other Party’s mother, dated 11 September 2019 (Exhibit O2).
ISSUES
The issue before the Tribunal is what percentage of care the Applicant and the
Other Party each had of the children between 16 December 2016 and 23 April 2018.
LEGISLATIVE FRAMEWORK
The relevant legislation for this application is the A New Tax System (Family Assistance) Act 1999(Cth) (the Family Assistance Act). The policy relevant to this application is the Family Assistance Guide (the Guide)
The eligibility requirements for FTB is contained in s 21(1) of the Family Assistance Act, which states that:
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i)has at least one FTB child; or
(ii)has at least one regular care child who is also a rent assistance child;
….
Of relevance to this matter, in ss 22(2) and 22(5), the Family Assistance Act makes provision for circumstances where the care of a child is shared.
(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).
…
(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 the care of anyone with the legal responsibility for the day-today care, welfare and development of the individual.
Section 22(7) of the Family Assistance Act states:
(7)If an individual’s percentage of care for a child during a period of care 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 the individual’s care on that day.
Note:if an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).
Section 25 of the Family Assistance Act states that:
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.
The annual rate, as detailed by s 58(1) of the Family Assistance Act, is calculated in accordance with the Rate Calculator in Schedule 1. Clause 11 of Schedule 1 provides for the rate to be assessed on the basis of the shared care percentage, in the event more than one adult has care of an FTB child.
Section 59 of the Family Assistance Act makes provision for shared care percentages where the individual is FTB child of more than one person, who are not a 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.
The effect of this provision is to allow FTB to be shared between two parents and the amount payable will depend of the percentage of care each parent has of the FTB child.
Part 3, Division 1, Subdivision D includes a number of provisions regarding the determination of the percentage of care and a determination of care is made under s 35A or s 35B of the Family Assistance Act.
In the matter before the Tribunal, a care determination has previously been made in respect of the two children. Provisions for revoking an existing care determination are contained in Part 3, Division 1, Subdivision E. Sections 35P and 35Q detail the circumstances in which an existing care determination must or may be revoked.
In essence s 35P, provides that a ‘Determination must be revoked if there is a change to the individual’s shared care percentage…’ and that change is outside the existing percentage range set out in s 35P(2) as:
(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%.
Section 35Q provides that the ‘Secretary may revoke a determination of an individual’s percentage of care’[1] if there was a change in the percentage of care that the parties had of the children and that the new percentage of care remained within the existing percentage range.
[1] Emphasis added.
Therefore, it follows that the Tribunal:
(a)Must revoke the determination if there was a change in the percentages of care and the new percentage of care for each parent was outside the existing range.
(b)May revoke the determination if there was a change in the percentages of care and the new percentages of care for each parent was inside the existing range.
(c)Not revoke the determination if it is not satisfied there has been a change in the percentage of care.
PATTERN OF CARE
In order to determine the percentage of care s 35J(1) states that:
(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.
The Guide, at 2.1.1.50, states:
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 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.
As noted by the Respondent in the Statement of Facts, Issues and Contentions (Exhibit R1, at 32), ‘care’ or ‘pattern of care’ is not defined in the Family Assistance Act.
These terms have previously been considered by the Tribunal, notably by Member Webb in Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 [at 33]… A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situation, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words,
the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.
As is the case in the matter before the Tribunal, carers can disagree on the patter of care. The Guide, at 2.1.1.45, states:
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.…
Where the carers do not agree on the actual pattern of care for the child, Centrelink must determine the actual pattern of care on the basis of available evidence. This applies even if a formal care arrangement… exists. If the carers do not agree on the care percentage, each carer should be asked to provide additional evidence to support their declared arrangements in order for Centrelink to make a decision as to the actual pattern of care.The challenge before the Tribunal is to establish the actual pattern of care between
16 December 2016 and 23 April 2018 on the available evidence before the Tribunal.
The Tribunal will need to consider if there was a change in the pattern of care and percentages of care, and, if so, when it took place.OTHER RELEVANT POINTS
On 21 December 2016, the Other Party submitted a claim for FTB in which she stated she did not share the care of the two children with another party (Exhibit R2,
p 25-26). Departmental records show that care was subsequently noted as 72% to the Other Party and 28% to the Applicant and the file note records that the Applicant confirmed the percentage of care in a telephone call from the Department (Exhibit R2, p 167).On 29 May 2017, the Other Party submitted the Your Child’s Care Arrangements Form, which stated the Applicant had the children in his care from Friday at 5:30pm to Sunday at 5:00pm (Exhibit R2, p 31). The Applicant co-signed this form, in effect confirming the percentage of care being 72% to the Other Party and 28% to him.
THE APPLICANT
In his written submission to the Tribunal, Applicant contends that (Exhibit A2, p 1):
From December 2016 to the end of 2017 and early 2018 both [omitted] and [omitted] stayed every weekend with me. [omitted] was the first in early January 2017 to start staying during the week and then later [omitted] from Thursday.
…
During 2017 [omitted] stayed with me all the time [sic] [omitted] stayed from Thursday night to Monday morning. All the school holidays both [omitted] and [omitted] stayed with me as WZRZ was too busy working [sic] During that time I had [omitted] 100% and [omitted] 60%.
In the hearing, the Applicant stated:[2]
During the duration of 2017 [omitted] was with me the whole period, and [omitted] - only [omitted] on a Friday evening and went back on a Monday. So, every single weekend for 2017 both [omitted] and [omitted] were in the care of me.
Every school holiday they were in total care of me.[2] Transcript p 6.
The Applicant was asked to clarify the percentage of care for his son during the period and he responded as follows:[3]
[Omitted] was with me 100 per cent.
[3] Transcript p 8.
The Applicant was asked to clarify the percentage of care for his daughter during the period and he responded as follows:[4]
On Friday through to Monday morning.
[4] Transcript p 8.
In response to additional questions relating to the care of his daughter, the Applicant stated:[5]
I work as a handyman, I’m pretty - I can vary when I start and work, finish work. So, if I picked up [omitted] on, I mean, from 3 o’clock on a Friday, I would deliver her to school Monday morning.
[5] Transcript p 11-12.
The Applicant sought to call his son as a witness, but the Tribunal declined this request, noting the Guide, at 2.1.1.30, states ‘Centrelink must not attempt to obtain verification of care arrangements from the child.’
The Applicant provided three statements: one from his daughter from a previous relationship: one from neighbours at his previous residence, their marital home; and one from his neighbour in the period under consideration (Exhibit R2, p 38, 37 and 41).
The statement from his daughter and his neighbour in the period under consideration, state he had 50% care. The statement from his previous neighbours stated,
‘From Thursday, his children stayed with him, and would be dropped back at their house for school on Monday.’At the hearing, the Applicant also provided a statement from his son’s football coach stating that from February to September 2017, his son was a regular participant in training on Tuesdays and Thursdays, which the Applicant also attended, with his daughter on some occasions. The statement also noted that the son attended matches on Sunday mornings during the football season, accompanied by the Applicant and his daughter.
None of these people were called to give evidence, so the content of their statements could not be properly tested.
The Applicant also provided a list of dates he claims he had his daughter, which he claims are supported by photographic evidence. However, these photos were not provided to the Tribunal and therefore cannot be considered further.
With respect to his co-signing of the Your Child’s Care Arrangements Form, in his submission the Applicant stated (Exhibit A2, p 1).
The day before she left to go to china [sic] on the 15 March she got [omitted] and [omitted] to ask me to sign a Tax Concession form as she had obtained a job at 6:30pm that evening [sic] As it was dark the form was blank I signed it twice [sic] Later I found out it was not a Tax Concession form but a child allowance form for [omitted] and [omitted] [sic] This is where she tricked me into signing as I was under extreme duress and was trying to save our marriage
This to me is an act of fraud by her knowingly to deceive me I was not told she put the percentage as 78 to 22
In his oral submission at the hearing, the Applicant stated that the Your Child’s Care Arrangements Form:[6]
…was given to me prior to her leaving to go China for three weeks with [omitted] and [omitted], I was forced to sign this form without it being completed.
She’s completed the form later, putting in 70/28, which I have no idea about.[6] Transcript p 6.
The Tribunal notes that, according to Department records, the Applicant told the Department on 26 September 2017, that the Other Party had said the form needed to be filled out so that she would be eligible for a lower rate of tax. He stated that when the Department called to confirm the care arrangement he believed it was to assist the
Other Party with obtaining a lower tax rate and he agreed to this even though it was false and he had 50% care of both children (Exhibit R2, p 94).OTHER PARTY
In her submission to the Tribunal dated 5 October 2019 (Exhibit OP 1, p1),
the Other Party stated:3.From December 16 to Apirl [omitted] and [omitted] with me.
start from Apirl [omitted] some time with him on Thursday night…[sic]…
5.This is false [in response to the Applicant’s submission regarding the percentage of care for 2017], [omitted] was with me 80% By this time, [the Applicant] had begun turning my son against me asking him to start sending vulgar nasty txt [sic] messages to me on behalf of his father, I have copies of these text messages I can offer in evidence…
The Other Party, through an interpreter, stated at the hearing that her separation from the Applicant commenced on 16 December 2016 after a domestic violence incident. From that time until 17 April 2017, her children were with her 100% of the time, which included a trip to China from 17 March 2017 to 10 April 2017.
The Other Party said:[7]
Okay, between 16 December ‘16 to 17 April ‘17, children are 100 per cent with me and my mum. After April 2017 I don’t like them to be jammed in between of us,
in between of our conflict. So I start to ask JKRM to send [omitted] to football on Thursday. And after Thursday - sorry, after football - he will be sent back to me.
I didn’t start to work until June 2017. Even I started to work, my mum was still with me, so we are still looking after children. But during the weekend JKRM will take the children, not every weekend.…
This pattern went until 29 August 2017, that’s the date my mum went to China.
So since then some of the weekend children will be with him.[7] Transcript p 8.
The Other Party said that when her children were with the Applicant after April:[8]
What happened usually is either Friday he picks up and Monday send them to school. I forget the other one. From beginning it’s he will pick up on Friday and drop them back to me on Sunday but after he will drop children to school on Monday morning.
[8] Transcript p 14.
When asked about the statement from her son’s football coach, the Other Party stated:[9]
Two points. The firstly is the only time the coach can see him is the training time, he wouldn’t see him 24 hours for so many months from February to September. He has no way to prove that hundred per cent care and hundred per cent share in his care and secondly, March 2017 I have taken all the children back to China…
I drop [omitted] off and he will pick [omitted] when he finishes work and then drop him back to Parkwood, my place.[9] Transcript p 5.
The Other Party’s mother appeared as a witness, by telephone and with the assistance of an interpreter. According to her evidence, the mother stayed with the Other Party from August 2016 to August 2017.
The mother said, in response to the question of how often the children would go to the Applicant:[10]
It usually happen in the weekend. Sometimes they stay over for overnight, one night, sometimes two nights, sometimes they will be back on Sunday, sometimes Monday because he will either send children back to us on Sunday or send them to school on Monday. Not every weekend.
[10] Transcript p 19.
CONSIDERATION
In the matter of Polec v Staker and Another [2011] FMCAfam 959 [at 56], in addressing the extent to which a person has care of a child, Hughes J said 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 extracurricular 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 met from another source?
f.To what extent is the child financially independent or financially supported from another source?
The Tribunal accepts that both parents, during the period under consideration, shared in meeting the needs of their children. The Tribunal finds it likely that the Applicant met the majority of financial costs relating to the schooling and extracurricular activities of the children as evidenced by various receipts (Exhibit R2, p 69-82). While accepting that both parents played a role in meeting the accommodation, clothing, food, education, health care and other needs of their children, there remains the issue of determining the percentage of care.
There are substantial and irreconcilable conflicts in the statements made by both parties and there may be legitimate questions as to the veracity of elements of their contentions. The Applicant did not take the opportunity to call as witnesses those individuals who had previously provided statements to the Department. The Other Party provided no evidence to support her contentions and called only her mother as a witness.
While it is clear that on 16 December 2016 a change in the care of the children occurred, determining a percentage of care for both children beyond that date is particularly vexing.
On 21 December 2016, the Other Party submitted a Claim for Family Tax Benefit, stating they did not share care of the two children (Exhibit R2, pages 24-27). On 2 June 2017,
the Department decided that the Other Party’s percentage of care for the two children was 72% from 16 December 2016, the Applicant agreed to this percentage of care,
even though, according to the Department’s records, by his own admission he thought
‘it was false’ (Exhibit R2, p 94). This differs from his statements in the hearing and in his written submission, as detailed above, where the Applicant claimed to be the victim of some deception by the Other Party.
On 30 August 2017, the Department had raised a FTB debt of $5003.56 for the period
16 December 2016 to June 2017 because he had been paid 100% FTB care for both children. He told AAT1 that once the debt was raised ‘he tried to set the record straight’ (Exhibit R2, p 10). On 26 September 2017, the Applicant requested a review of the decision that he had 28% care of the two children from 16 December 2016.
As part of the review process, the Applicant advised the Department he had 50% care of both children from 16 December 2016 until 21 September 2017 and 90% care of both children from 22 September 2017. In support of his contention, he provided the Department with three referee statements.
As noted above, the Applicant did not call these referees as witnesses during the hearing. As such, they were not tested by the Tribunal, however, they cannot be discarded as being of no weight or irrelevant, not least given the lack of evidence before the Tribunal.
Of the three letters, one is from his neighbour during the period under consideration and the other from an adult daughter from a previous relationship (Exhibit R2, p 38, 37). Both of the letters are similar in form, structure and content, presumably resulting from a request from the Applicant. Both state:
I am writing this to verify that [JKRM] has custody of his two children [omitted] and [omitted] 50% of the time and they stay in his unit.
Both letters further state that the Applicant has the children from Thursday to Sunday.
His daughter added, ‘I know this as I come over weekly and I see my dad with the children every week.’
The Department’s ARO spoke to both referees and subsequently noted:
I contacted two of the three referees (the third did not have a contact number). All confirmed that care of [omitted] and [omitted] was 50% from 16/12/16, however the Appellant’s [the Applicant’s] neighbour [omitted] stating care was 50% from 16/12/16 but could not confirm any increased care. Appellant’s [Applicant’s] daughter… confirmed the 50% care from 16/12/16 and that the Appellant’s [Applicant’s] care of [omitted] had increased to100% from six months ago and [omitted] increased to 58% (4 night’s pw) also from six months…[sic]
As the only care agreed to by all referees was 50% I have decided that the Appellant’s care was 50% from 16/12/16.
The Tribunal notes that, according to Department records, the Other Party, on
8 January 2018, in response to questions relating to the percentage of care of the children confirmed that the care was 50%. The record of discussion is as follows:
I called introducing myself, I said I was reviewing a care decision for [omitted] and [omitted] that the OP [the Applicant] asked to be reviewed. I said recipient [Other Party] had lodged a FTB LSC and FA012 stating that she had 72% care of [omitted] and [omitted] and had been paid on that. I stated the OP [Applicant] said the care was 50% and had increased recently. Recipient [Other Party] stated that was correct the care has been 50% since December. I asked if she meant December 2016 or 2017? She stated 2016. I said if that is the case and I accept the care has been 50% since December 2016 then she will have a debt. Recipient [Other Party] asked how much the debt would be? I said she has been paid FTB since December 2016 based on 72% care which means she was paid 100% of the FTB, if it’s 50% there will be a debt, I said I couldn’t give her the figure now but it would be at least a couple of thousand, at that the recipient stated ‘Oh I meant December 2017’ but then stated [omitted] hadn’t been with her for a while.
(Exhibit R2, p 164).
The ARO subsequently wrote to the Other Party on 10 January 2018, stating ‘In our discussions you initially stated that your care of [omitted] and [omitted] was 50% from
16 December 2016, however, when I advised you may have a debt you stated the 50% care changed from December 2017’ (Exhibit R2, p 161).During the AAT1 hearing, when questioned as to why the Other Party changed her evidence regarding the care arrangement when she became aware of the potential of a debt, the Other Party denied that was the case and ‘explained that her English is not that proficient and she can very easily become confused and misunderstood’ (Exhibit R 2 p 9).
The Other Party used an interpreter for the hearing and the Tribunal could not form a full appreciation of her proficiency in speaking and understanding English. However, the Tribunal notes that on a number of occasions during the hearing, the Other Party interjected in English to clarify the interpreter’s answers. She did so when discussing weekend visits, her employment, and the children’s schooling.
The Tribunal is satisfied that, notwithstanding her limited English language skills, having commenced the process by submitting a Claim for Family Tax benefit, and having been in contact with the Department over the period, the process and the relevant dates would have been reasonably familiar to the Other Party.
The Tribunal concludes that the decision by the ARO was made after discussions with both parties, contact with third parties and other supporting material.
The calculations and decision appear reasonable. However, there is one area that requires further examination, namely the difference in the percentage of care provided to the two children.
Notwithstanding, the conflicting evidence presented, the percentage of care provided by each parent to the daughter appears to be in the least amount of dispute. Mindful of Member Webb’s words in Parent 1 at [31] that ‘a pattern of care may bend or flex’, there seems to be a degree of consistency in the statements to the Tribunal from the Applicant, the Other Party and the Other party’s mother, to conclude, that the daughter was in the care of her father from Fridays to Sundays. The Applicant was also consistent in stating that the son spent more time with him than the daughter. The Tribunal also notes the Other Party’s statement that ‘[the Applicant] had begun turning my son against me...’ (Exhibit OP 1, p1), which may be reasonably taken to suggest some distance or disturbance in that relationship.
While the ARO’s decision was a reasonable starting point, subsequent evidence to the Tribunal suggests a slight variation between the percentage of care provided by the Applicant to his son and daughter.
CONCLUSION
For the reasons outlined above, the Tribunal sets aside the decision under review and substitutes a decision that the Applicant and the Other Party each had a care percentage of 50% of their son from 16 December 2016- 23 April 2018 and that the Applicant had a care percentage of 39% of their daughter and the Other Party had a care percentage of 61% of their daughter from 16 December- 23 April 2018.
DECISION
The Tribunal sets aside the decision under review and substitutes with the decision that the Applicant and the Other Party each had a care percentage of 50% of their son from
16 December 2016 - 23 April 2018 and that the Applicant had a care percentage of
39% and the Other Party had a care percentage of 61% of their daughter from
16 December 2016 - 23 April 2018
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member S Barton
..............................[sgd].....................................
Associate
Dated: 8 May 2020
Date of hearing:
17 February 2020
Applicant:
Representative for the Respondent:
Self-represented
Ms L Hinwood
Solicitors for the Respondent:
Services Australia
Other Party
Self-represented
Key Legal Topics
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Administrative Law
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Appeal
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