Kaivan and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2443
•22 June 2020
Kaivan and Secretary, Department of Social Services (Social services second review) [2020] AATA 2443 (22 June 2020)
Division:GENERAL DIVISION
File Number: 2019/4433
Re:Mr Kaivan
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndMrs Kaivan
OTHER PARTY
DECISION
Tribunal:Ms Anna Burke AO, Member
Date of decision: 22 June 2020
Date of written reasons: 22 July 2020
Place:Melbourne
For the reasons provided during the hearing, the Tribunal sets aside the decision under review and, in substitution, decides that from 1 February 2018 to 30 January 2019, Mrs Kaivan’s percentage of care was 51%.
......[sgd]..........................................................
Ms Anna Burke AO, Member
CHILD SUPPORT – family tax benefit – care percentage determination finding applicant had 51 per cent care of child and other party had 49 per cent – pattern of care not agreed by the parties – lack of clear evidence of permanent change in care arrangement – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 s 43(2A)
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999Cases
Polec v Staker and Another [2011] FMCAFAM 959; (2011) 253 FLR 339
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 MaterialsFamily Assistance Guide (May 2020)
REASONS FOR DECISION
Ms Anna Burke AO, Member
22 July 2020
INTRODUCTION
Mr Hamid Kaivan and Mrs Leda Kaivan are the separated parents of T (born September 2005) and N (born August 2007). Mr and Mrs Kaivan separated in 2013. Mr Kaivan advised the Tribunal that at that time there was a court order of 75% care to Mrs Kaivan and 25% to himself, however no court documents in respect of the children’s care have been presented to the Tribunal.
Department records indicated that:
·from the 4 May 2016 they assessed Mrs Kaivan as having 75% care of the children.
·on 30 November 2018 Mr Kaivan signed a ‘Details of your child’s care arrangements’ form that since 1 February 2018 he had 75% care of the children upon the basis that ‘they stay with mother 1 or 2 nights /week, mother also goes o/s for 2mths/yr + and I have child full time then’.
·on 11 December 2018 Mr Kaivan made a statement that the children had lived with him about five days a week since February 2018.
·on 29 January 2019 Mr Kaivan signed a ‘Details of your child’s care arrangements’ form that he had 75% care of the children (based on their living with him for five to six days a week) since 20 February 2018.
·on 14 February 2019 the Department decided that Mr Kaivan had 72% care of the children since 1 February 2018.
·on 17 February 2019 Mr Kaivan signed a ‘Details of your child’s care arrangements’ form that he had 50% care of the children (based on care of the children 3-4 nights per week) since 30 January 2019.
The application before the Social Services and Child Support Division of the Tribunal (AAT1) was brought by Mrs Kaivan who sought review of a decision by the Department of Human Services (Department), now known as Services Australia (Agency), as she maintained she had 75% shared care of the children until it reduced to 49% on 30 January 2019. On 22 March 2019 an Authorised Review Officer (ARO) made the following key findings of fact:
From 4 May 2006 you were assessed as having 75% shared care of in N and T.
On 3 December 2018 another party advised your level of share care for the children had reduced to 25% with effect from 1 February 2018.
On 22 January 2019 the Department sent you a letter requesting you provide evidence by 5 February 2019 to support your view of the care arrangements. You did not respond to this request.
On 14 February 2019 based upon evidence provided by the other carer, a decision was made that your level of care for N and T reduced to 28%, with effect from 1 February 2018.
On 18 February 2019 another party advised your level of shared cared for the children had increased to 49% with effect from 31 January 2019.
You have requested a review of the care assessment of 1 February 2018 as you say there was no change to the carer arrangements of the children during the period 1 February 2018 to 30 January 2019.
On 28 February 2019 you provided written statements in support of your view of the care arrangement for N and T.
……
After careful consideration of all the supporting documents, I am not satisfied that you have provided sufficient evidence to justify changing the care assessment. This means I have found the decision to assess your level of share care to be 28% for the period 1 February 2018 to 31 January 2019 to be correct.
On 25 June 2019 the AAT1 set aside the decision under review and substituted the new decision which found that Mrs Kaivan had 72% care of T and N in the period 1 February 2018 to 30 January 2019. In the decision the Member stated:
On balance, the Tribunal prefers the evidence of Ms Kaivan and, given that, the Tribunal finds that in the relevant period Ms Kaivan had care of the children most likely on five nights of the week and Mr Kaivan had care of the children on two nights of the week. Ms Kaivan’s care of the children amounted to 72% of the time over the relevant period.
This is an application by Mr Kaivan to appeal the decision of the AAT1. Mr Kaivan requested a review of the AAT1 decision by the General Division of the Tribunal (Tier 2) on the basis that he disputed much of what his ex-wife had advised the AAT1 stating: “Unfortunately at the hearing day the person ask questions of me and my ex-wife at (24 June) didn’t give me enough time to speak more about my case.”
The application was heard on 22 June 2020 by telephone. Mr Kaivan was self-represented and assisted by his sister Mrs Loni, Mrs Kaivan was self-represented, and Ms April Voigt, government lawyer in the Freedom of Information and Litigation Branch of the Agency appeared for the Respondent. The Tribunal was assisted by an interpreter in the Farsi language, and the Tribunal noted both Mr and Mrs Kaivan were proficient in the English language.
The Tribunal provided an oral decision at the hearing. Mrs Kaivan has subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975, these are those reasons.
ISSUE
The issue for determination by the Tribunal is what percentage of care should apply to the children from 1 February 2018 to 30 January 2019.
THE LEGISLATIVE CONTEXT
Family Tax Benefit (FTB) is worked out as an annual entitlement, in accordance with schedule 1 of the 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.
The Act sets out the qualifying criteria and provisions to calculate FTB including in the case of shared care arrangements.
Section 22 of the Act relevantly provides in relation to 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).
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.
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.
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.
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.
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.
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.
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
The respondent’s Statement of Facts, Issues and Contentions stated:
Given the conflicting evidence of the parties, the Secretary adopts a neutral position about whether the evidence and contentions of the Applicant or Ms. Kaivan should be preferred.
The above statement directly contradicts the findings of fact of the ARO who determined that there had been a change in the pattern of care for children which has led to the current appeal before the Tribunal.
All parties to this matter accept that from 4 May 2016 to 1 February 2018, Mrs Kaivan had 75% care of the children and that from 30 January 2019, Mrs Kaivan had 49% care of the children. The period in dispute before the Tribunal is 1 February 2018 to 30 January 2019.
Mr Kaivan advised the Tribunal that:
·in 2018 his daughters commenced attending Vermont secondary school and Vermont primary school, as they were good schools and very close to his home. At the time his ex-wife was living in Mooroolbark, which was a great distance from the schools requiring the children to catch various modes of transport, both bus and train. As it was much easier for the children to travel to school from his home over time, they started spending more and more time at his house, as they could simply walk to school from his home;
·he thought the children were safer with him, and they could spend time with their dog;
·his ex-wife would not sign the Centrelink forms indicating the children were spending about 50% of the time with him as she feared she would lose her government housing, as it had been provided on the basis that the children were living with her;
·he had informed Centrelink in 2018 that the children had been living with him for a greater percentage of time as it was the right thing to do;
·the children’s dance classes were again very close to his home and they often went from school to his place and then to the dance classes returning to his house after the classes;
·he had taken his children to the dentist during this period but agreed his wife had predominantly taken the children to the doctor as it was closer to her home;
·his ex-wife had been overseas during this period and he had 100% care of the children during this time; and
·he said this was corroborated by numerous statements from family members, a tenant who had previously been residing in his home, the children’ schools, his psychologist and the dentist.
Mrs Kaivan advised the Tribunal that:
·following separation from her husband she had obtained public housing for herself and the children in Mooroolbark;
·her ex-husband had wanted the children to attend Vermont secondary school and she had agreed as it was good school; as she was living outside the zone, she advised the school the children were living with their father so they would be in the catchment zone;
·she took the children to and from school every day and they rarely caught the train or bus during this period as she was working nearby two days a week;
·she took the children to the dance classes every Tuesday night;
·occasionally the children attended family day care (FDC) when she was unable to collect them;
·in this period the children were with her on average five nights a week and at most two nights with their father;
·the children had decided on their own accord that they wished to spend more time at their father’s from about 2019 and she had agreed to this;
·she has subsequently remarried and was living in Point Cook; however, she sees her children regularly, but her ex-husband is not allowing the children to stay overnight in her home as her husband is not related to them;
·she had provided numerous documents and statements to support her assertion that the children were with her for the majority of the time during this period; and
·she described in detail the streets around the children’s’ school where she dropped them off and picked them up; their numerous activities and medical/dental appointments that she had taken them to in the period.
Mrs Loni advised the Tribunal that much of Mrs Kaivan’s statement and those provided by her friends were fabricated, that Mrs Kaivan did not care about her children, she rarely visited them, her brother (Mr Kaivan) had been providing the majority of care to his children, that she had on numerous occasions assisted with their care and that the children turned to her for numerous things, rather than their mother, as in the Iranian culture it is difficult for daughters to talk to their fathers about certain things.
FINDINGS
The Tribunal is in the difficult position of having received limited assistance from the respondent and little corroborating evidence from the applicant or the other party. The Tribunal must determine to what extent Mr and Mrs Kaivan had care of their children 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.
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; (2011) 253 FLR 339 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?
Mr Kaivan and his sister claimed that in the relevant period Mr Kaivan, with the support of his family, was providing the bulk of care to the children. However, there was little to corroborate these assertions outside statements from the family members which the Tribunal placed little weight on.
Mrs Kaivan claimed the children were with her most of the time in this period, on average five nights per week, and provided statements from third parties to this effect. However, again the Tribunal was unable to ascertain much from the statements as many appeared to be from her friendship network. The Tribunal also found it highly unlikely children of N and T’s age were attending FDC, as they would be more than capable of looking after themselves for a short time before and after school. Additionally, the rules for FDC do not allow high school children to receive subsidised Commonwealth payment unless they have special needs.
The Tribunal was also presented with two letters from the children’s dentist. One advised that Mrs Kaivan attended all dental appointments with her child, and another that Mr Kaivan attended a number of appointments with his child and that he demonstrated full engagement in his child’s dental care. This conflicting evidence was indicative of the disputed arrangement for the children’s care during this period, providing no plausible corroborating evidence on which to determine the percentage care of the children.
The respondent referred the Tribunal to Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405, where the Member 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.
Given that neither Mr or Mrs Kaivan had provided a parenting plan or court documents to the Tribunal, there was no definitive factual evidence before the Tribunal in respect of the parties’ agreement about the care arrangements for the children.
The Tribunal is required to consider whether the parties had a pattern of care for the children. 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.
The respondent referred the Tribunal to Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607 where the Member 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 ...”.
19. The application of s 59(1) and the Guide was amplified in Wade v Secretary, Department of Family and Community Services. 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 ...”.
20. It has been previously determined in this Tribunal that exactness in calculations or determinations of “day-to-day variations in that care” is not intended. Also, in Re Warne and Department of Families, Community Services and Indigenous Affairs, DP Hack held that a “broad brush basis” is an appropriate method of making decisions in relation to these provisions.
As there is no documentary evidence to establish the pattern of care for the children agreed to by the parents, and there was an obvious change in the arrangements for the children’s care brought about by their move to Vermont College, the Tribunal determined the best course was to award a 50/50 split to the parents. The Tribunal found a change of care had come about following the children’s relocation to schools in close proximity to their father’s residence and it would appear they were spending more time at his home.
The Tribunal also found Mrs Kaivan had a great awareness of her daughters’ lives and therefore finds that she had 51% care, and Mr Kaivan 49%.
As can be seen by the decisions preceding the Tribunal’s determination, there is nothing more to base this decision on than a sense of which parent is being more truthful about where the children were residing.
The Tribunal places no weight on the evidence of Mrs Loni as the Tribunal is of the view that it was all based on conjecture and was informed by her obvious contempt for her former sister-in-law.
The Tribunal was unimpressed by both parent’s attempts to utilise statements from their underage children in this matter and is saddened to see that their parents are not putting the care and wellbeing of the children ahead of their own ongoing bitter separation, or their desire to inflict financial stress on each other by way of a Centrelink debt.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that from 1 February 2018 to 30 January 2019, Mrs Kaivan’s percentage of care for N and T was 51%, and Mr Kaivan’s was 49%.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the written reasons for the decision of Member Anna Burke AO
.....[sgd]..................................................
Associate
Dated: 22 July 2020
Date of hearing: 22 June 2020 Advocate for the Applicant: Mrs Anita Loni Advocate for the Respondent: Ms April Voigt Solicitors for the Respondent: Services Australia The Other Party: In person
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Statutory Construction
-
Remedies
0
4
0