Kotsaris and Secretary, Department of Social Services (Social security) - [2025] ARTA 2039

Kotsaris and Secretary, Department of Social Services (Social security) [2025] ARTA 2039 (28 July 2025)

Applicant/s: Mr Kotsaris

Respondent: Secretary

Other Parties: Miss Camilleri
Tribunal Number: 2024/M192617
Tribunal: General Member J Nalpantidis
Place:Melbourne
Date:28 July 2025

Decision:The Tribunal decided to set aside the decision under review and substitute its decision to make new care percentage determinations to reflect that from 21 June 2024 to 25 November 2024 Mr Kotsaris had a percentage of care of the child of 40% and Miss Camilleri had a percentage of care of 60%.

CATCHWORDS

SOCIAL SECURITY – family tax benefit and child support – percentage of care – court orders and actual care – nights of care and significant daytime care – child withheld by mother – ongoing dispute and mother’s relocation interstate – decision under review substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 161(1B) of the A New Tax System (Family Assistance) (Administration) Act 1999.

Statement of Reasons

BACKGROUND

This review concerns the care percentages used by Services Australia – Centrelink (Centrelink) for payment of family tax benefit (FTB) and child support purposes from 28 June 2024.
Mr Kotsaris and Miss Camilleri are the separated parents of [Child A] (aged 4 years), (the child).
On 23 July 2024, Centrelink decided that Mr Kotsaris had 65% care of the child from 28 June 2024 for FTB and child support purposes.
On 21 August 2024, Miss Camilleri asked for a review of the care arrangements for the child from 28 June 2024.
On 14 November 2024, an authorised review officer changed the decision and determined the percentage of care as per the Interim Court Order made on [June] 2024 was calculated incorrectly and Mr Kotsaris’ percentage of care of the child changed to 38% on 21 June 2024. Mr Kotsaris’ FTB and child support assessment will be reassessed accordingly from this date.
On 22 December 2024, Mr Kotsaris lodged an application for review with the Administrative Review Tribunal (the Tribunal).
A hearing was held on 14 July 2025, with Mr Kotsaris attending the hearing in person and Miss Camilleri attending by MS Teams audio. Mr Kotsaris and Miss Camilleri provided sworn oral evidence. Centrelink provided the parties and the Tribunal with a bundle of documents, Section I – Combined (178 pages), Section II – Applicant only (61 pages) and Section III – Other Party Only (83 pages). Prior to the hearing Miss Camilleri provided further material, being written submissions dated 11 July 2025 and a Family Court Order dated [July] 2025; a copy of this material was provided to Mr Kotsaris and Child Support.

ISSUES

The issues which arise in this case are:
· whether there should be a change to the care percentages for FTB and child support purposes; and, if so,
· what care percentages should be used.

CONSIDERATION

The relevant law relating to FTB is contained in the A New Tax System (Family Assistance) Act 1999 (the Act).
Sections 21 and 22 of the Act state that a person can be paid FTB if, among other things, they have an FTB child. If the person shares the care of a child with another person who is not their partner, the Secretary must determine the percentage of care for the parent (section 35B). The care percentage will generally correspond to the actual level of care that a person has for the child (subsection 35B(3)). Centrelink uses the care percentage to determine the FTB rate unless the care percentage is less than 35%. In that case, a person is not taken to have an FTB child (section 25) and is not eligible for FTB (section 59).
Centrelink makes determinations of each parent’s percentage of care under sections 35A to 35U of the Act, which deal with the determination of a percentage of care for a period, the revocation of an existing determination of a percentage of care for a period and new determinations.
In particular, section 35P of the Act requires that if the Secretary 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 that the Secretary is satisfied that the change falls outside the range of identified percentage ranges, then the Secretary must revoke the existing determination.

Has there been a change to the care pattern for the child, and if so, what care percentage should be used?

The Centrelink FTB Shared Care Summary (FSS) screen provides a summary of the percentage of shared care of the child for Mr Kotsaris and Miss Camilleri. Miss Camilleri is listed as having a percentage of care of the child of 100% from 13 August 2020. In line with court orders, from 15 December 2023, Miss Camilleri’’s percentage of care of the child was 72% and Mr Kotsaris’ percentage of care became 28%.
On 23 July 2024, Centrelink determined that Mr Kotsaris’ percentage of care of the child changed to 65% from 28 June 2024. Miss Camilleri requested a review of this decision and on 14 November 2024, the authorised review officer found that based on an Interim Court Order dated [June] 2024, Mr Kotsaris had 38% care of the child from 21 June 2024.
In the notice to Mr Kotsaris, the authorised review officer stated:
You told the agency that you provide 65% of [Child A]’s care from 28 June 2024. Your calculations indicate you established this percentage of care on the hours of care between 28 June 2024 to 31 August 2024 in line with the Interim Order dated [June] 2024. The other carer said that this was not a correct calculation of the level of care.
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.
In this instance, it is not suitable to measure care by hours, and instead the calculation will be based on number of nights as outlined in the Interim Order dated [June] 2024.
This Interim Order provides you with 75 nights of care between 21 June 2024 to 31 December 2024 (194 night period), which is 38%. After 31 December 2024, a new pattern of care is outlined in the Interim Order which will need to be reported as a subsequent care change.
I have made the decision to reflect from 21 June 2024 you provide 38% of [Child A]’s care, based on interpretation of the Interim Order.
This means your entitlement for Family Tax Benefit and Child Support will be reassessed from 21 June 2024.
Mr Kotsaris provided detailed written submissions to the Tribunal, stating:
The decision by Services Australia to assign me a care percentage of 38% for my son, [Child A], is incorrect and does not accurately reflect the court ordered arrangements or the actual time I have cared for him.
Court orders explicitly allocate specific dates and times for my care, amounting to 1732 hours from June to December 2024. Due to breaches by [Child A]’s mother, Miss Camilleri, I was unlawfully denied time with [Child A], reducing my actual care hours to 1264.
Penalising me for these breaches is inequitable and undermines the integrity of the court system.
Furthermore, the calculation appears to have been based solely on “nights of care,” ignoring significant daytime hours when [Child A] was in my custody and attending daycare. [Child A]’s attendance records from [Children’s play centre] and [Children’s learning centre] clearly demonstrate my active role in his daily routines, including facilitating his education, meals, and medical needs. These contributions are critical components of care that should not be disregarded.
I have also taken proactive steps to safeguard [Child A]’s well-being, including raising concerns about his ASD diagnosis and the harmful effects of his medication, Risperidone. Independent assessments by [Dr. B] and his daycare educator, [C], corroborate these concerns and highlight my advocacy for [Child A]’s health and development.
This decision has also financially impacted me through unjustified reductions in Family Tax Benefit and increased Child Support obligations. I request that my care percentage be recalculated to reflect the full 1732 hours of court-ordered care, ensuring a fair and accurate outcome.
At the hearing, Mr Kotsaris acknowledged that there was a final court order in place from [November] 2023 which had not been complied with and the Interim Court Order of [June] 2024 effectively allowed him more care of the child to “make up” for the time he had previously missed. Mr Kotsaris submitted that Miss Camilleri withheld care of the child from him in breach of court orders.
In response to Miss Camilleri’s evidence that Mr Kotsaris had no care of the child from February 2024 to June 2024, Mr Kotsaris gave evidence that there were many periods when the care of the child was withheld by Miss Camilleri and the Interim Court Order of [June] 2024, effectively made up for that time.
Mr Kotsaris gave evidence that when the child was in his care, he was fully responsible for the child and Miss Camilleri did not contribute to the care of the child when the child was in his care. Mr Kotsaris disagreed with Centrelink’s calculation of his percentage of care for the child, which was based solely on “nights of care”, disregarding the substantial daytime hours the child was under his care, including during work hours where he facilitated the child’s care via day care. Mr Kotsaris referred to a calendar from 28 June 2024 to 27 December 2024 which provided a monthly breakdown of his calculation of his hours of care for this period, which he calculated as 1,264 actual care hours, reduced from the 1,732 court-ordered hours; he told the Tribunal that the difference in hours was due to Miss Camilleri’s non-compliance with the court orders.
The authorised review officer noted:
I have reviewed the documents uploaded by Mr Kotsaris and found that he calculated 65% care of [Child A] based on hours in care between 28 June 2024 to 31 August 2024.
Hours in care would not be suitable, given care can be measured in nights. In the Interim Order dated [June] 2024 uploaded by Mr Kotsaris, regular care events are scheduled from the start of the interim order until end of 2024. A new pattern of care is established in 2024 and is to be considered independent of this review.
Based on the Child Support Guide 2.2.1, I have determined it is suitable to measure care over a period shorter than 12 months.
Care calculator used to check number of nights scheduled between 21 June 2024 to 31 December 2024 (194 night period). 75/194*100 = 38.6598, rounded to 38%.
The Tribunal referred Mr Kotsaris to the authorised review officer’s calculation, as outlined above. He disagreed with the authorised review officer’s method of calculating his percentage of care and submitted that his calculation, using the hours he provided care, inclusive of daytime hours, should be preferred, which would result in 65% care.
Miss Camilleri told the Tribunal the co-parenting arrangement for the child was complex and there has been an ongoing dispute despite the final court order on [date] November 2023. She acknowledged that the actual care arrangements prior to [June] 2024 did not follow the final court order of [November] 2023, but disagreed that this was due to her withholding care or that she breached the order because there were legitimate reasons. She told the Tribunal while she would allow overnight care she offered time during the day but the offer was not taken up by Mr Kotsaris. She told the Tribunal that the final court order allowed for increased periods of care for Mr Kotsaris until she was to relocate to Queensland; no specific date had been set for the relocation other than it would be after 1 September 2024.
Miss Camilleri confirmed the written submission from her legal representative that the child was not in Mr Kotsaris’ care from February 2024 to June 2024, which she calculated as a cumulative total of 31 nights. She acknowledged Mr Kotsaris issued court contravention proceedings on 7 June 2024 and the matter was heard on [date] June 2024. At the hearing, the parties agreed, by consent for Mr Kotsaris to have makeup time and the Interim Court Order provided for a variation of the final court order of [November] 2023 for Mr Kotsaris to spend time with the child as follows:
·from 5.00 pm Friday 28 June 2024 to 5.00 pm Friday 5 July 2024;
·from 5.00 pm Friday 12 July 2024 to 5.00 pm Friday 19 July 2024;
·from 5.00 pm Friday 26 July 2024 to 5.00 pm Friday 2 August 2024;
·from 5.00 pm Monday 5 August 2024 to 9.00 am Sunday 11 August 2024;
·from 9.00 am Monday 12 August 2024 to 5.00 pm Friday 16 August 2024;
·from 5.00 pm Friday 23 August 2024 to 5.00 pm Friday 30 August 2024;
·from 5.00 pm Friday 6 September 2024 to Friday 5.00 pm 13 September 2024;
·on Thursday 10 October 2024 to Tuesday 15 October 2024;
·on Wednesday 30 October 2024 to Wednesday 6 November 2024;
·on Monday 18 November 2024 to Monday 25 November 2024;
·on Friday 6 December 2024 to Friday 13 December 2024; and
·on Sunday 22 December 2024 to Friday 27 December 2024.
Miss Camilleri gave evidence that the Interim Court Order was by consent, that the parties agreed Mr Kotsaris be allowed additional time with the child to make up for the earlier time he did not have care between February 2024 and June 2024. To be clear Miss Camilleri submitted this “time arrangement” was not on top of the time provided for in the final court order of [November] 2023, rather it acted in variation of those orders to make up for earlier times that Mr Kotsaris did not have care per the order.
Miss Camilleri referred to calendars she had provided to Centrelink highlighting the dates she and Mr Kotsaris had care of the child. She gave evidence that essentially the Interim Court Order of [June] 2024 was complied with from June until 26 November 2024. Miss Camilleri told the Tribunal that from 26 November 2024, Mr Kotsaris had no overnight care for the child until yesterday.
Miss Camilleri gave evidence that she started relocating to Queensland on or around 21 September 2024 and Mr Kotsaris may have had care for a week or so but she agreed to follow the dates per the Interim Court Order of June 2024. She told the Tribunal that she has had full-time care of the child since November 2024, and Mr Kotsaris has not spent time with the child in Queensland from 26 November 2024 to date. Mr Kotsaris is due to commence time pursuant to the new interim parenting orders dated [July] 2025.
On 24 March 2025, the parties agreed to reopen matters in the court with respect to the care arrangements for the child and interim parenting orders were made on [date] July 2025. The child was to remain living with Miss Camilleri and was to spend time with Mr Kotsaris as specified in the interim parenting orders recommencing from 11 July 2025, noting the balance of orders in the final court order remains in full force and effect and the interim parenting orders made on [date] July 2025 operate in conjunction with the final court order. Miss Camilleri told the Tribunal she had applied for a change in care in January 2025 but as yet has not received a decision from Centrelink.
The Tribunal noted that the Family Assistance Guide at topic 2.1.1.45 states:
2.1.1.45 Establishing a pattern of care
Summary
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 (2.1.1.10). 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.
This topic includes the following:
·how to establish a pattern of care
·carers agree on pattern of care
·carers disagree on pattern of care
·nights in care versus hours of care, and
·instalment claim - pattern of care changes.
Calculation of the percentage of care is explained in 2.1.1.50.
How to establish a pattern of care
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.
An assessment of care arrangements that is determined by either Centrelink for FA purposes or Child Support for child support purposes will apply to the other program. This means where a care percentage has been determined by Child Support, that determination will be aligned for the purpose of FA and will be applied in determining the individual's care percentage for FTB purposes. Centrelink will only be able to make a new care determination if there has been a change in the care arrangements (2.1.1.30).
Carers agree on pattern of care
Where all carers agree on the actual pattern of care for the child, the agreed pattern of care is used to determine the care percentage.
Example: Linda receives FTB for her child John. After separation, Phillip, Linda's ex-partner, claims FTB on 5 September stating they are sharing care of the child. Both parents agree that Phillip has care of the child every second weekend and school holidays and Linda has care for the remainder of the time. The pattern of care commenced on 31 August and will continue for the foreseeable future. Phillip may be granted FTB on the basis of the shared care percentage derived from the agreed pattern of care and Linda's entitlement is reassessed accordingly.
Carers disagree on 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 (1.1.C.05) 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. Examples of evidence, which may be provided by the carers, are outlined in 2.1.1.30.
Example: Simone and Lucy are members of a couple. Simone receives FTB for their daughter Katia. After they separate, Lucy claims FTB on 3 May stating they are sharing the care of the child. Lucy has a family law order stating the caring arrangements for the child. Centrelink contacts Simone who states that Lucy is not complying with the order. Simone presents child care receipts and written advice from family and friends to confirm the actual care arrangements. Lucy presents no evidence of their actual care arrangements apart from the family law order. Lucy may be granted FTB with a shared care percentage based on the actual pattern of care as confirmed by the documentation provided by Simone, rather than the caring arrangements specified in the family law order (2.1.1.70).
Where an FTB child is being shared, all carers of the child should be consulted in making the shared care determination for the following reasons:
·to ensure that each FTB recipient is paid the correct rate
·the other carer may decide to claim their shared care entitlement later
·the care determination may impact on the other parties' child support assessment, and
·consultation at the initial stage should reduce the likelihood of reviews and appeals.
If an FTB recipient provides proof of the other carer's agreement with the stated care percentages or arrangements (for example, their signature on the form stating care details), it is not necessary to contact the other carer to verify the arrangements.
Policy reference: FA Guide 2.1.1.30 Verification of shared care arrangements
Nights in care versus hours of care
A pattern of care is generally based on the number of nights in a care period that an individual has the overnight care of an FTB child. A person with the overnight care of a child is regarded as having had care of the child for that day.
Explanation: One night in care equals one day in care.
Example: Alison and Neil share the care of their 2 children according to a written agreement. Their current care period is from 30 April to 30 June, which is 62 nights. The children stay with Neil every second weekend starting from Friday 4 May, and the rest of the time they live with Alison. The pattern of care is worked out as follows:
·Neil provides 10 weekend nights of care, and
·Alison provides 52 nights of care made up of 44 week nights plus 8 weekend nights.
There may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. In such cases, at the request of a carer, the actual number of hours of care may be calculated for each carer in determining the pattern of care and then converted into days in care.
Example: William and Julia are divorced. They have 3 children. Sam attends primary school, and Pat and Louise attend a pre-school program. William and Julia do not have a formal care arrangement such as a family law order, parenting plan or written agreement, and they are unsure of their respective percentages of care.
William works full-time during the week, and Julia works part-time on Sundays. William takes the children to Julia every morning at 8 am on their way to work. Julia is responsible for the children during the day, and participates in parental activities at Sam's school. William picks the children up on their way home at 6 pm from Monday to Thursday. The children spend Friday night with Julia and Julia leaves them with William on their way to work at 8 am on Sunday. This means that Julia cares for the children from 8 am to 6 pm Monday to Thursday, as well as from 8 am on Friday, as Julia is responsible for the children during the day while they are at school. William cares for the children during the day from 8 am on Sunday, as Julia has returned them to William and he cares for them overnight on Sunday night.
Twice a year during school holidays the children spend a full week with William. Once during the end of year school holidays they spend a full 4 weeks with Julia. The care period used to determine the care percentages is 12 months from the day the care arrangements commenced, automatically renewed at the end of every 12 month period until a change in the pattern of care occurs.
The pattern of care is worked out as follows:
·William provides 167.81 days of care
o2 full weeks during school holidays = 14 days
oDuring remaining 323 days of the year
(80 hours ÷ total 168 hours per week) × 323 days = 153.81 days
oTherefore, 153.81 days + 14 days = 167.81 days per year
·Julia provides 197 days of care
o4 full weeks during school holidays = 28 days
oDuring remaining 323 days of the year
(88 hours ÷ total 168 hours per week) × 323 days = 169.19 days
oTherefore, 168.19 days + 28 days = 197.19 days per year

Although not bound by policy as set out in the Family Assistance Guide, the Federal Court has held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
In this case the Tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation.
The Tribunal has considered all of the evidence before it and finds that the care of the child was shared by the parents from [June] 2024. In this case, the Tribunal accepts that it is appropriate to assess the care as overnight care, where one night in care equals one day in care. The Tribunal finds there has been a pattern of care since 21 June 2024, which is in line with the Interim Court Order dated [June] 2024 until 25 November 2024. Following Miss Camilleri’s and the child’s relocation to Queensland, the Tribunal accepts that Mr Kotsaris did not have overnight care of the child from 26 November 2024, until recommencing care on 11 July 2025, following court proceedings on [date] July 2025.
In line with the Interim Court Order of [June] 2024, the Tribunal finds Mr Kotsaris had the following overnight care of the child:

from 5.00 pm Friday 28 June 2024 to 5.00 pm Friday 5 July 2024 (7 nights);
from 5.00 pm Friday 12 July 2024 to 5.00 pm Friday 19 July 2024 (7 nights);
from 5.00 pm Friday 26 July 2024 to 5.00 pm Friday 2 August 2024 (7 nights);
from 5.00 pm Monday 5 August 2024 to 9.00 am Sunday 11 August 2024 (6 nights);
from 9.00 am Monday 12 August 2024 to 5.00 pm Friday 16 August 2024 (4 nights);
from 5.00 pm Friday 23 August 2024 to 5.00 pm Friday 30 August 2024 (7 nights);
from 5.00 pm Friday 6 September 2024 to Friday 5.00 pm 13 September 2024 (7 nights);
on Thursday 10 October 2024 to Tuesday 15 October 2024 (5 nights);
on Wednesday 30 October 2024 to Wednesday 6 November 2024 (7 nights);
on Monday 18 November 2024 to Monday 25 November 2024 (7 nights).

The Tribunal has calculated a period of 157 nights from 21 June 2024 to 25 November 2024, and Mr Kotsaris has provided overnight care for 64 nights, which reflects a percentage of care of 40% (rounded).
The Tribunal is therefore satisfied that in the period 21 June 2024 to 25 November 2024, Mr Kotsaris had 40% care of the child from 21 June 2024 and Miss Camilleri had 60% care.

DECISION

The Tribunal decided to set aside the decision under review and substitute its decision to make new care percentage determinations to reflect that from 21 June 2024 to 25 November 2024 Mr Kotsaris had a percentage of care of the child of 40% and Miss Camilleri had a percentage of care of 60%.

Date(s) of hearing:	Monday, 14 July 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	Self-represented