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

[2020] AATA 3315

Luby and Secretary, Department of Social Services (Social services second review) [2020] AATA 3315 (27 August 2020)

Division:GENERAL DIVISION

File Number(s):      2019/8151

Re:Christina Louise Luby

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndNathan Palmer

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:27 August 2020

Place:Brisbane

The Tribunal sets aside the decision under review and in substitution decides for the period 12 December 2015 to 29 February 2016 the care percentage of the child was 50% to the Applicant and 50% to the Other Party and for the period 1 March 2016 to 25 November 2017 the care percentage was more than 65% to the Applicant.

...............[SGD]......................

Member P Ranson

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit – FTB – care arrangements during the care period – percentage of care – determination of the care period – decision under review set aside

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Guides to Social Policy Law: Family Assistance Guide, Department of Social Services, Version 1.222 released 10 August 2020

REASONS FOR DECISION

Member P Ranson

27 August 2020

BACKGROUND

1. In 2015, Christina Luby (Ms Luby) and Nathan Palmer (Mr Palmer) separated and later divorced. Their daughter was born in 2012 (the Daughter) and her care has been shared between her parents since separation. Sometimes the care is on an equal shared basis (50/50) and sometimes more or less to one or the other of the parents depending on their circumstances. Ms Luby and Mr Palmer have both remarried and provide a home for the Daughter when she is in their care. Ms Luby is the Applicant in this case.

2. The Australian government assists families in many ways including Family Tax Benefit (FTB). To qualify for FTB, parents must have a dependent child (or full-time secondary student aged 16 to 19 who isn’t getting a pension, payment or benefit like Youth Allowance), and care for the child for at least 35% of the time and meet an income test.

3. A parent with less than 35% care has no entitlement to FTB and conversely, a parent with more than 65% care receives 100% of the applicable FTB. In between 35% and 65% care, each parent has a shared care percentage.

4. Ms Luby and Mr Palmer both claimed FTB at different times and in different percentages. From November 2017 they agree the care is shared 50% each. However, from December 2015 to November 2017 they disagree on the care arrangements. Both parents agree it was intended to be 50% each however Ms Luby says the actual care was 67% to her and 33% to Mr Palmer. She submits Mr Palmer’s personal circumstances at that time meant he was not able to maintain equal shared care. Mr Palmer says the care was 50% to him and 50% to Ms Luby with minor variations that don’t affect the care percentages.

5. The Department of Social Services, now Services Australia, (the Department) and the Tribunal have made decisions at various times about the care arrangements during the period of December 2015 to November 2017. Following a decision of the Tribunal, the current position is recorded as 50% care to each parent. Ms Luby, who did not attend the 2019 Tribunal hearing, disagrees with that decision and seeks a review of it.

   PROCEDURAL HISTORY

6. The decision under review was made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 4 November 2019 which varied the current arrangements so that care for the Daughter was to be recorded as 50% to Ms Luby and 50% to Mr Palmer from 12 December 2015.

7. The Hearing for this current application was held before this Tribunal on 25 May 2020 (the Hearing). Ms Luby with her solicitor Mr Bryan Pickard of Greenhalgh Pickard Solicitors & Accountants (Mr Pickard) attended the Hearing along with Mr Palmer and his sole witness Ms Peta Neill (Ms Neill). The video hearing was facilitated using Microsoft Teams. Ms Luby, Mr Palmer and Ms Neill gave affirmed evidence.

8. The Respondent in this matter is the Secretary, Department of Social Services (the Respondent), who identified the issues to be decided as follows:

   ·What is the care period; and if so

   ·What were the care arrangements for the Daughter during the care period?

9. The following documents were admitted into evidence:

Exhibit 1	Section 37 T-Documents: pages 1 – 310
Exhibit 2	Applicant’s Statement of Facts, Issues and Contentions: pages 1 – 3
Exhibit 3	Applicant’s Bundle of Documents: pages 1 – 79
Exhibit 4	Applicant’s Statement of Issues: 1 page
Exhibit 5	Respondent’s Statement of Facts, Issues and Contentions: pages 1 – 11
Exhibit 6	Documents and material of the Other Party filed on 19-20 April 2020 and compiled and filed by the Respondent on 12 May 2020: pages 1 – 71
Exhibit 7	Other Party’s Bundle of 259 photographic images of the Daughter, various dates 2015-2017
Exhibit 8	Other Party’s Further Submissions: pages 1 – 90[1]
Exhibit 9	Applicant’s Further Submissions: pages 1 – 7 with supporting photos[2]

[1] Submitted by the Other Party after the hearing.

[2] Submitted by the Applicant after the hearing.

All parties confirmed they had Exhibits 1 to 7 at the Hearing. Exhibit 8 and Exhibit 9 were received after the Hearing and were provided to all parties.

1. The Respondent’s Statement of Facts, Issues, and Contentions dated 13 May 2020 (the Respondent’s SFIC) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its attachments were provided to the Applicant, Ms Luby, and the Other Party, Mr Palmer, prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

   ·A New Tax System (Family Assistance) Act 1999 (Cth) (the Act);

   ·A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act)

2. The Applicant’s Statement of Facts, Issues, and Contentions (the Applicant’s SFIC) also refers to the Family Assistance Guide (the Guide).

   THE FACTS AND EVIDENCE

3. Ms Luby and Mr Palmer separated in either July or August 2015. They disagree on the actual date of separation, which is irrelevant for the purpose of this Decision. There appears to be an informal verbal arrangement between them for the care of the Daughter. Mr Palmer says the arrangement always was and remains 50/50, that is, equal shared care from separation. In a statement to Centrelink, Ms Luby asserts a written parenting plan was prepared with the assistance of Mr Pickard and it was sent to Mr Palmer for signature.[3] Ms Luby asserts Mr Palmer did not sign the parenting plan nor acknowledge receipt of it. In any event, there is no evidence before the Tribunal of any written parenting plan adopted by the parties.

   [3] T documents, T18, page 86.

4. On 8 March 2018 Mr Palmer submitted a claim to Centrelink indicating he had 50% care of the Daughter from the date of the Daughter’s birth[4]. On 20 April 2018 Ms Luby lodged a Family Tax Benefit (FTB) claim agreeing with the 50/50 care arrangement applying only from 25 November 2017.[5] On 28 April 2018, Mr Palmer submitted a Centrelink form ‘Details of your child’s care arrangements’ stating the 50/50 arrangement commenced 12 December 2015.[6]

   [4] T documents, T6, pages 51-55. 

   [5] T documents, T14, pages 66-74.

   [6] T documents, T15 (Note this document is incorrectly marked as T16), pages 75-80.

5. There was then a series of interactions between Ms Luby, Mr Palmer and the Department disputing these arrangements and reviews were conducted at various times. Ultimately, the case came before the Social Services and Child Support Division of this Tribunal which recorded the care arrangement as 50% to Ms Luby and 50% to Mr Palmer from 12 December 2015 (AAT1). Ms Luby agrees the 50/50 care arrangement applies from 25 November 2017 however her position is she had in excess of 65% care during the period 12 December 2015 to 25 November 2017. She agrees the arrangement was intended to be 50/50 shared care during that time however she asserts Mr Palmer did not observe that arrangement during that time due to his personal circumstances.

6. In the Applicant’s SFIC, she states: ‘Ms Luby acknowledges that there was a period where Mr Palmer kept to an agreed care roster commencing in December 2015 however it ended in February 2016. Ms Luby has used the calendar that was followed by the parties for the period 12 December 2015 to the end of February 2016 (Annexure 3 to her statement of evidence) to compile her calendar of nights in care for each of the relevant FTB income years (annexure 1).’ [7]

   [7] Exhibit 2, paragraph 14. Please also see Exhibit 3, Attachment A2 and A4.

7. The Tribunal has analysed the calendar of care provided by Ms Luby[8] and confirms it reveals the percentage of care from 12 December 2015 to 31 December 2015 was 50% and for the months of January and February 2016 it was 55%. The Tribunal has also analysed the calendar of care provided by Mr Palmer and curiously it reveals care percentages in his favour of 60% for 12 December to 31 December 2015; 42% the month of January 2016 and 62% for the month of February 2016.[9] The Tribunal will discuss these calendars in more detail below.

   [8] Exhibit 3, Attachment A2 (Annexure CL1), pages 5-8.

   [9] Exhibit 6, item O5, pages 8-23.

8. All parties agree the Daughter is an FTB child for the purposes of subsection 22(2) and 22(5) of the Act at all relevant times. Each party has produced a calendar of care showing what they assert are the nights the Daughter spent with them during the period 12 December 2015 to 25 November 2017. Those calendars of care show very different patterns and so the Tribunal must form a view of which calendar to accept.

   What does custody mean?

9. Before proceeding to consider the evidence of each party, it is appropriate to discuss the meaning of the term custody as this term is often used by parties to such matters, and by those who provide letters of support to them. The dictionary definition of custody is: ‘responsibility for the care, maintenance, and upbringing of a child or children’.[10]

   [10] Oxford Dictionaries Online, ‘Custody’ <>

   Exploring that definition, it is possible for someone to have custody of a child and yet the child does not stay overnight with them. This can occur, for example, where a solicitor is appointed custodian for a child under the will of the child’s deceased parent, where they have responsibility for the care, maintenance, and upbringing of the child, yet the child lives with a relative. In this example, the custodian has legal responsibility whereas the relative has the day to day, including overnight, care of the child.

10. There may be a false assumption by both Ms Luby and Mr Palmer as to the importance and relevance of paying expenses for the Daughter. The expenses paid by a parent or guardian for a child is their obligation as a parent or guardian. It usually has no bearing on where the child received overnight care. To the extent expenses paid for the Daughter are referred to in the various submissions of the parties to this case they are ignored unless they shed light on where the child received overnight care.

    Ms Luby’s evidence

11. Ms Luby’s evidence[11] consists of her affidavit dated 6 March 2020 (Ms Luby’s Affidavit) in which she affirms the parenting arrangement as it was meant to be and describes how she compiled her calendar of care from phone records, text messages, emails, photos, and Facebook posts. She goes on to describe in detail the actual care arrangements from July 2015 to November 2015 and then from December 2015 to February 2016 and through to November 2017. Ms Luby asserts the reason she did not attend AAT1 was anxiety arising from a history of domestic violence from Mr Palmer. She also had the mistaken belief she would be entitled to the full family tax benefit because she was providing most of the financial support for the Daughter.

    [11] See Exhibit 3.

12. She also includes in her evidence a selection of text message exchanges with Mr Palmer and his mother together with affidavits from Ms Helga Groen and Ms Samantha Klein. The evidence concludes with a table responding directly to Mr Palmer’s calendar of care in which she refutes several entries where he says the Daughter was overnight with him.

    Calendar of care

13. Included in Ms Luby’s evidence is a complete calendar of care from 1 July 2015 to 30 November 2017 (the Complete Calendar of Care)[12]. As the period under review is from 12 December 2015 to 25 November 2017, the entries from 1 July 2015 to 11 December 2015 and from 26 November 2017 to 30 November 2017 have been disregarded. The Tribunal has analysed this calendar of care and notes the following in relation Ms Luby:

    [12] See Exhibit 3, Attachment A2 (Annexure CL1), pages 5-8.

From	To	Percentage of care
12 December 2015	29 February 2016	54%
1 March 2016	30 June 2016	66%
1 July 2016	30 June 2017	65%
1 July 2017	25 November 2017	78%

1. The Complete Calendar of Care provided by Ms Luby sets out in detail the nights she asserts the Daughter received overnight care with her and provides a legend setting out the basis on which she has compiled this calendar, viz, phone calls, text messages, Facebook, calendar, photos and a statement from a work colleague. The first point to be made about the Complete Calendar of Care is it has not been prepared contemporaneously. Ms Luby’s evidence at the Hearing is she compiled the complete calendar of care for the purpose of this matter, which means it has been prepared over two years after the event.

2. The Tribunal has analysed the Complete Calendar of Care and identified the total number of nights from 12 December 2015 to 25 November 2017 as 715. Of this total, Ms Luby asserts the Daughter received overnight care with her on 478 nights. The period from 12 December 2015 to 29 February 2016 is not in dispute as the parties agree the arrangements over that time were 50/50. Removing that period from the overall calculation reveals a care arrangement of 69% to Ms Luby and 31% to Mr Palmer.

3. A calendar of care is also provided for the months of December 2015 to February 2016.[13] Set out in paragraph 12 of Ms Luby’s Affidavit is an explanation of the calendar of care covering the period December 2015 to February 2016 (the Interim Calendar of Care). As she was working full-time, Ms Luby explains she created the Interim Calendar of Care in order to provide a structured care arrangement for the Daughter while the property and matrimonial issues with Mr Palmer were ongoing. It appears the intention of the Interim Calendar of Care was each party would have overnight care of the Daughter on the days designated, which include days described as ‘shared’. The Tribunal notes there are some similarities between the entries shown on the Interim Calendar of Care compared with the Complete Calendar of Care.

   [13] See Exhibit 3, Attachment A3 (Annexure CL3), pages 44-47.

4. As previously mentioned, Ms Luby agrees the care arrangements were 50/50 during the period 12 December 2015 to 29 February 2016. Mr Palmer’s position is the care arrangements throughout the whole of the care period were 50/50. Rather than explore the differences between the Interim Calendar of Care and the Complete Calendar of Care, the Tribunal finds the care during the period 12 December 2015 to 29 February 2016 was 50/50, that is, equal shared care.

   Affidavit of Helga Groen

5. Ms Helga Groen (Ms Groen) provided an affidavit dated 6 March 2020.[14] Ms Groen states she is the mother of Ms Luby and the Daughter is her Granddaughter. She confirms the separation of Ms Luby and Mr Palmer occurred in mid July 2015 after which Ms Luby brought the Daughter to live in a granny flat attached to Ms Groen’s home. Her affidavit includes confirmation of the 50/50 care arrangements during the period December 2015 to February 2016. She continues at paragraph 4 to discuss the period from March 2016 to July 2017 where she observes the Daughter frequently stayed with Ms Luby on nights when Mr Palmer was to care for her. She states Mr Palmer would leave the Daughter at Ms Luby’s home or her home: ‘giving some reason why he could not care for [redacted]’. She goes on to say she would often collect the Daughter from day care, if Ms Luby couldn’t and she also took the Daughter to day care on Tuesday mornings where she would collect the Daughter from Ms Luby’s workplace.

   [14] See Exhibit 3, Attachment A7, pages 54-55.

6. At the end of her affidavit, she states: ‘There were numerous occasions when I had to pick up [redacted] or take her because Christina [Ms Luby] had agreed to have [the Daughter] when Nathan [Mr Palmer] was supposed to care for her.’

7. The Tribunal notes the reference in Ms Groen’s affidavit to the period March 2016 to July 2017 where she observes Ms Luby frequently having the Daughter on nights when Mr Palmer was to care for her. This is a clear indication of who had overnight care in this situation, that is, Ms Luby.

   Affidavit of Samantha Klein

8. Ms Samantha Klein (Ms Klein) provided an affidavit dated 5 March 2020.[15] Ms Klein states, she knew Ms Luby as a work colleague during the period July 2011 to March 2018. She recalls during the period August 2015 to November 2017 Ms Luby would bring the Daughter into the office with her on most Tuesday mornings and she would interact with her while waiting for Ms Groen to collect her for day care. She further states she was told by Ms Luby it was necessary to bring the Daughter to work with her because she was in her care on Monday nights and the Daughter became anxious when leaving Ms Luby if she left her at childcare. She also states she had further contact with Ms Luby and the Daughter outside of work when they resided at her house for a period of seven weeks in September and October 2016 while she and her partner were overseas.

   [15] See Exhibit 3, Attachment A8, pages 57-58.

9. The Tribunal notes Ms Klein is relying on comments by Ms Luby about the reasons for bringing the Daughter to work, which means she has no direct knowledge of those arrangements. Further, as she and her partner were overseas during the seven-week period in September and October 2016, she has no direct knowledge of the Daughter staying overnight with Ms Luby during that period.

   Exchange of text messages

10. Attachment A3 marked CL2 of Ms Luby’s Affidavit contains 33 pages being extracts of text message exchanges purported to be between Ms Luby and Mr Palmer during the period 3 September 2015 to 25 November 2017. As the parties have already agreed the care arrangement was 50/50 during the period up to 29 February 2016, text messages dated prior to then have been disregarded. The Tribunal has reviewed the messages contained in attachment A3 commencing with the first message after 1 March 2016 and finds no noticeable disharmony as between the parties and no frequent requests by Mr Palmer for Ms Luby to have the Daughter overnight when she was intended to be with him.

11. Attachment A6 marked CL5 of Ms Luby’s affidavit contains two pages being extracts of text messages purported to be between Ms Luby and Mr Palmer.[16] Two of the messages are also contained in attachment A3 marked CL2 and so the only message that provides new information is on 31 August 2017, which reads: ‘Good morning everyone. I want you to know kate and I have have [sic –repeated] discussed and decided to make a go of it all. Nothing is going to change [the Daughter] wise. No week on week off. We are here to help and come together for [the Daughter]. I will pick her up today and hope she will stay tonight. Have a wonderful day.’[17] The Tribunal notes the comments ‘no week on week off’ and ‘hope she will stay tonight’, which implies the 50/50 arrangement does not apply and there is no certainty the Daughter will stay with Mr Palmer on any given time.

    [16] Exhibit 3, Attachment A6, pages 52-53.

    [17] Exhibit 3, Attachment A6, page 52.

1. There is an exchange commencing Wednesday 9 September 2017[18] when relations between Mr Palmer and Ms Luby appear to deteriorate. On 20 September 2017 Mr Palmer’s states: ‘Look, Christina [Ms Luby]. How about you just keep her and your happy family and I will see her on the odd occasion. Please collect her from my poor excuse for a mother today.’[19]

   [18] See Exhibit 3, Attachment A3 pages 34-36.

   [19] Exhibit 3, Attachment A3, page 35.

2. The exchange continues across the course of that day with Ms Luby attempting to calm the situation. However, Mr Palmer goes on to say: ‘Please collect that precious little girl. Tell her I had to work She doesn’t care anyway’ and later: ‘I just want [the Daughter] to grow up happy. I can’t handle this anymore. She is happy with you both. She needs stability She doesn’t need me Just collect her please.’[20]

   [20] Exhibit 3, Attachment A3, page 36.

3. The exchange above concludes on Thursday 21 September 2017 with Mr Palmer saying: ‘Good morning. I made a decision to end my relationship with Kate. That being said, I will collect [ the Daughter] tomorrow. What you said yesterday about [ the Daughter’s] anxiety pushed me over the edge I’m such a [redacted] up. I just want [the Daughter] to be happy again. Until I get appropriate accommodation for her she can stay with you during the weeks. I will pick her up in the afternoons. Drop her in the evening. But not today I will have her tomorrow night and return her Saturday afternoon. I’m working Sunday. Please tell her I love her and will see her tomorrow Early day at kindy for her’.[21]

   [21] Exhibit 3, Attachment A3, page 36.

4. There are a further series of exchanges, which possibly show Mr Palmer needing to ask Ms Luby to have care of the Daughter at times when it was expected she would be with him. The final text message is dated 25 November 2017 and is quite long and detailed, so will not be reproduced here. Suffice to say it appears to be the end of a series of difficult exchanges not provided to the Tribunal, which culminate in Mr Palmer stating: ‘I have thought about yesterday all night and have decided it’s best for [the Daughter] that we revert back to our parental agreement of week to week.’ He concludes by saying: ‘Starting tomorrow as it’s my week. I think it was 6pm from memory. Bring her bag I had bought her and everything else that does not belong to you.’[22] It seems clear this is the resumption of a regular pattern of 50/50 equal care of the Daughter.

   [22] Exhibit 3, Attachment A3, page 43.

   Email from Karina Allen

5. Attachment A5 marked CL4 of Ms Luby’s affidavit contains an e-mail exchange between Ms Luby and Ms Karina Allen (Ms Allen) between 18 and 29 August 2017. The signature file for Ms Allen’s e-mails describes her as a clinical psychologist. The exchange begins with an email from Ms Luby to Ms Allen in advance of a session for the Daughter scheduled for 30 August 2017. She notes she has agreed for Mr Palmer to attend the session with the Daughter and she provides an update on issues she is aware of. One of those issues, concerns the Daughter refusing to go to Mr Palmer’s place the past few weeks, noting the Daughter has been predominantly at her house. She states: ‘Nathan [Mr Palmer] picks her up in the afternoon and then drops her to me after I finish work.’ She goes on to say: ‘[– the Daughter] did spend one night at Nathan’s [Mr Palmer], but that was after a bit of bribery and she got to take the cat from my place to stay at Daddy’s.’[23] The remainder of that email concerns various parenting matters which are not relevant to this decision.

   [23] Exhibit 3, Attachment A5, pages 49-50.

6. The reply from Ms Allen acknowledges the email from Ms Luby and deals with matters such as confidentiality, none of which is relevant to this decision. Ms Luby responds to Ms Allen on 29 August 2017 to advise: ‘I just got word from Nathan that he forgot to arrange time off and he cannot bring [the Daughter] tomorrow. So I will be bringing her in.’[24] There is no direct evidence here to guide the Tribunal as to where the Daughter receives overnight care except for an inference as to the sometimes unreliability of Mr Palmer to maintain agreed arrangements.

   [24] Exhibit 3, Attachment A5, page 49.

   Mr Palmer’s evidence

7. On 19 April 2020 Mr Palmer provided a submission in support of his assertion the 50/50 care arrangement of the Daughter prevailed throughout the period from December 2015 to November 2017.[25] He talks about the split from Ms Luby and how he created a new family life for the Daughter when she is with him. He states he has always paid half of her educational expenses however as discussed above this is not relevant to this decision. He also states he organised ongoing after-hours activity and sports for the Daughter which he paid for exclusively. For similar reasons, this is also not relevant.

   [25] Exhibit 6, pages 1-2.

8. He goes on to describe the commencement of a new relationship with Ms Kate Neill (now Mrs Kate Palmer) who he later married after a period of about one month in late 2017 when they were not living together. Nonetheless, he states Mrs Palmer and her parents were all fully involved in supervision and care of the Daughter when required.

9. Mr Palmer acknowledges during this period (the period when he was separated from Mrs Palmer) there were times when he contacted Ms Luby and requested her to care for the Daughter as he either had a very early work shift or he was unwell.

10. Mr Palmer provides numerous thumbnail photos of the Daughter which he ascribes to various periods from October 2015 to August 2017.[26] The photos largely show the Daughter engaged in various activities some of which are of her asleep either in bed or in the car. The Tribunal accepts the photos show the Daughter engaged in activities presumably with Mr Palmer and his new family however there is little to show any evidence of where the Daughter received overnight care.

    [26] See Exhibit 6, Attachment O3, pages 10-17.

11. Reference is made to the affidavits of Ms Groen and Ms Klein, which were discussed in detail above as they were part of the evidence provided by Ms Luby.[27] Ms Klein states during the period August 2015 to November 2017 Ms Luby would bring the Daughter to work on most Tuesdays. He says that was not possible because every second Monday was his Rostered Day Off (RDO) and the Daughter stayed with him that night, that is, Mr Palmer asserts the Daughter stayed with him the week he had his RDO. He then lists various dates, month by month in 2015, 2016 and 2017, when he says the Daughter stayed with him overnight and, in some cases, he provides photographic evidence in support of that.

    [27] Exhibit 6, Attachment O9, pages 29-30.

12. He makes the obvious point that Ms Klein seeing the Daughter with Ms Luby at their workplace on Tuesday mornings does not equate to evidence of where the Daughter stayed overnight. He is correct. He also makes the obvious point, as discussed above, Ms Klein can give no contemporaneous evidence of where the Daughter stayed overnight during the period of seven weeks when she and her husband were overseas in September and October 2016.

13. Mr Palmer then takes issue with the affidavit of Ms Luby.[28] He disputes the date of their separation however that is not relevant to this case. He also refers to an affidavit of Ms Luby from 2016 in which she says the Daughter currently lives with us pursuant to a ‘week about’ arrangement.[29] Ms Luby does not dispute the arrangement was always intended to be 50/50 on a week about basis. Her position is that arrangement was not adhered to by Mr Palmer until 25 November 2017. Mr Palmer states the text messages submitted by Ms Luby have in some cases been taken out of context.[30] That may be so, and it has always been open to Mr Palmer to provide the missing messages to provide the context. He has not done that. References as to who paid which expenses for the Daughter are not relevant as pointed out above. That applies to both Mr Palmer and Ms Luby.

    [28] Exhibit 6, Attachment O12, pages 37-40.

    [29] Exhibit 6, Attachment O12, page 38.

    [30] Exhibit 6, Attachment O12, page 38.

14. On 25 May 2016, a letter was sent by Pippa Colman & Associates to Mr Palmer.[31] Mr Palmer points out the comment in the first paragraph on the second page: ‘She [the Daughter] currently spends one week with each of you.’ as support for his position of the 50/50 overnight care arrangement. Ms Luby agrees the 50/50 care arrangement did apply up to 29 February 2016. That letter also goes on to note concerns Ms Luby holds for the capacity of Mr Palmer to discharge his parenting responsibilities and, she asserts, the significant difficulties in communicating about co-parenting matters. The letter proposes a new parenting plan until the Daughter reaches school age in which both parents equally share the parental responsibilities and major decision making; the Daughter lives with Ms Luby and spends each second weekend, from Friday to Tuesday, that is, four nights of care, with Mr Palmer. In the alternate week the Daughter spends from Wednesday afternoon to Thursday morning, that is, one night of care with Mr Palmer. That amounts to five nights of care per fortnight.

    [31] Exhibit 6, O21, pages 54-55.

15. Mr Palmer refers to the text message from Ms Luby on 7 September 2015 as evidence Ms Luby was: ‘requesting Friday till Tuesday care of [the Daughter].’[32] The text message in question does not say that. It says: ‘It’s no trouble for me to have [the Daughter] Fri-Tues’, which sounds like Ms Luby agreeing to have care of the Daughter on those days in lieu of Mr Palmer.

    [32] Exhibit 6, Attachment O12, page 38.

16. This comment is consistent with the proposed parenting plan set out in the letter from Pippa Colman & Associates discussed above. As Mr Palmer correctly points out, the context is missing yet he does provide that context.

17. There is also a reference to the week about arrangement made by Ms Luby in an affidavit submitted by Mr Palmer in support of his case.[33] Ms Luby does not dispute the arrangement was intended to be week about on a 50/50 basis. She disputes Mr Palmer maintained that arrangement prior to November 2017. Mr Palmer highlights in his evidence an extract from the application for a domestic violence order (DVO) granted on 15 May 2018.[34] In describing Incident 2 Ms Luby states: ‘On 20/11/2017 Nathan collected our [the Daughter] to start his week with her.’ The calendar of care provided by Ms Luby indicates the Daughter was with her from 19 November 2017 to 24 November 2017. This is what Mr Palmer says indicates Ms Luby’s evidence, especially the calendar of care, is unreliable. It is correct to say these two statements are in conflict.

    [33] Exhibit 6, Attachment O13, pages 41-44.

    [34] Exhibit 6, Attachment O24, page 60.

18. Returning to Mr Palmer’s text message to Ms Luby on 25 November 2017 he states: ‘I have thought about yesterday all night and have decided it’s best for [the Daughter] that we revert back to our parental agreement of week to week.’[35] Further on in the text message he states: ‘Starting tomorrow as it’s my week.’ It seems clear from those statements the care arrangement of 50/50 had not been in operation until then and Mr Palmer’s week was to commence the next day, that is, 26 November 2017. The earlier reference to the conflict around the date 20 November 2017 is contradicted by Mr Palmer statements in his text message to Ms Luby on 25 November 2017.[36]

    [35] Exhibit 3, Attachment A3, page 43.

    [36] Exhibit 3, Attachment A3, page 37.

19. Mr Palmer refers to an email sent on 8 February 2016 by Ms Luby to various recipients in the Neill family. In that email, she states: ‘I hope we can resolve this. It’s only nine more weeks, and it’s an opportunity for us to test weekly activities and managing them together as we move one week on, one week off.’[37] Mr Palmer says the reference to moving to one week on, one week off confirms the commencement of the 50/50 arrangement.

    [37] Exhibit 6, Attachment O27, page 65.

20. Ms Luby agrees the 50/50 arrangement was in place from December 2015 until the end of February 2016. There is no explanation as to the significance of ‘nine more weeks’ however, the reference to moving to one week on, one week off confirms the intention for the 50/50 arrangement to commence. That doesn’t mean that it did.

    Letter from Deborah Palmer

21. Mrs Deborah Palmer is the mother of Mr Palmer. She provided a letter dated 13 April 2020 and signed 18 April 2020.[38] It adds little by way of evidence as to where the Daughter received overnight care limited to further confirmation of the verbally agreed 50/50 care arrangement in December 2015. The Tribunal places little weight on it.

    [38] Exhibit 6, Attachment O16, page 48.

    Letter from Kate Palmer

22. The Tribunal understands Mrs Kate Palmer is Mr Palmer’s second wife and she provided a letter of support dated 3 April 2020.[39] She comments in that letter: ‘by this time [late September 2016] custody of [the Daughter] was shared, generally week on/week off …’. The Tribunal notes the word generally is used rather than something more emphatic like regularly. The remainder of the letter provides commentary on the arrangements for a separate bedroom and activities arranged for the Daughter when she stays with her and Mr Palmer or with her parents. Mrs Palmer states: ‘Everything revolved around “[the Daughter] Week”. To suggest that the custody arrangement was different to this [the 50/50 care arrangement], is simply untrue.’ If it is simply untrue to suggest the care arrangement was anything other than 50/50, why did Mrs Palmer use the word generally earlier in her letter. The Tribunal places little weight on this statement.

    [39] Exhibit 6, Attachment O17, page 49.

    Letter from Peta Neill

23. Ms Peta Neill is the mother of Mrs Kate Palmer. She provided a letter of support dated and signed 29 March 2020 as a follow up to her handwritten letter of support dated 20 March 2018.[40] Ms Neill describes in detail the arrangements for the Daughter when Mrs Palmer was on a mid-week RDO on the days the Daughter was in her care.

    [40] Exhibit 6, Attachment O18, page 50.

24. Regarding the regularity of the 50/50 care arrangement, she states: ‘By early 2016 [redacted – the Daughter’s] care was shared in a more regular week on/week off rotation with changeover days changed from time to time. Sometimes Sunday, sometimes Friday.’ The reference to early 2016 perhaps coincides with Ms Luby’s agreement the care arrangement was 50/50 during the period December 2015 to February 2016, however, she, too, does not make an emphatic statement about the regularity of the 50/50 arrangement. She uses the term: ‘in a more regular week on/week off rotation’. The Tribunal places little weight on this statement.

    Letter from Jason Parker

25. Mr Jason Parker provided a letter which was received by Centrelink on 22 March 2018.[41] Mr Parker states he is a work colleague of Mr Palmer and has known him and the Daughter since November 2016. He states: ‘Nathan Palmer has custody of his daughter [the Daughter] seven days a fortnight since I have known him.’ Earlier in this decision that the meaning of the word custody was discussed. Assuming Mr Parker uses the word custody to refer to overnight care, his statement about Mr Palmer having custody seven days a fortnight is inconsistent with Mr Palmer’s own calendar of care, which doesn’t show that. The Tribunal places no weight on this letter.

    [41] Exhibit 1, T9, page 60.

    Email from Paul Stokje

26. Mr Paul Stokje who identifies himself as a personal friend of Mr Palmer for over 13 years and cousin of Ms Luby states an email to Mr Palmer received by Centrelink on 15 May 2018:[42] ‘Nathan has had 50/50 custodianship since his separation with my cousin Cristina [sic – Christina] since December 2015.’ Mr Stokje does not mention who the 50/50 custodianship is in respect of although the Tribunal accepts it is in respect of the Daughter. As with other letters of support provided by Mr Palmer, they do not provide any direct confirmation of where the Daughter received overnight care. Like the others, the Tribunal places little weight on this email.

    [42] Exhibit 1, T19, page 91.

    The calendars of care

27. Ms Luby and Mr Palmer have both provided the Tribunal with detailed calendars of care from 2015 to 2017. Those calendars were not prepared contemporaneously, and they differ substantially. Both calendars are necessarily inaccurate because they have been compiled after the event. The Tribunal notes in reviewing these calendars, there are dates when neither party indicates the Daughter was with them overnight, such is the difficulty in assessing the calendars of care as evidence in this case.

28. Ms Luby’s calendar, she says, is based on phone calls, text messages, Facebook postings, photos and emails and in some cases the statement of a work colleague. Mr Palmer’s calendar, he says, is supported by photos.

29. Ms Luby did prepare a three-month calendar of care at the beginning of December 2015[43] which she provided to Mr Palmer. That calendar shows a 50/50 care arrangement, which Ms Luby agrees was largely followed during that period and that is confirmed by her analysis of Mr Palmer’s calendar[44] where all but eight days are marked as agreed.

    [43] Exhibit 3, Annexure A4, pages 44-47.

    [44] Exhibit 3, Annexure A10, pages 65-71.

30. Mr Palmer provided a substantial number of photos of the Daughter alone and with others, which he says is proof the Daughter was in his overnight care on the date shown on the photo.[45] The difficulty with this assertion is most of those photos show the Daughter in family situations and don’t, of themselves, support the claim by Mr Palmer the Daughter was in his overnight (emphasis added) care on that day. By contrast, Ms Luby provided in her final submission[46] approximately 26 photos of the Daughter either asleep or dressed for bed at her residence on dates when Mr Palmer says the Daughter was with him.

    [45] See Exhibit 7.

    [46] See Exhibit 9.

31. Ms Luby provided a detailed schedule[47] setting each day from 12 July 2015 to 28 December 2017, where she identifies the days not in dispute. Where she does disagree, she provides direct evidence as to why the Daughter received overnight care with her and not with Mr Palmer. Mr Palmer did not disagree with this schedule.

    [47] Exhibit 3, Annexure A10

    Final submissions

32. Ms Luby provided a detailed final submission in which she addresses the evidence presented to the Tribunal and as mentioned above, provides specific photographic evidence she says of the Daughter in her overnight care on dates when Mr Palmer says the Daughter was with him.[48] Her position is there was agreement for the care of the Daughter to be shared on a 50/50 basis, which for most of the period in dispute was not observed reliably by Mr Palmer. There is much dispute about where the Daughter received overnight care on the night before Mr Palmer had his regular RDO and when changeover was intended to occur and did occur. Ms Luby contends there were numerous times when changes to the care arrangement were requested by Mr Palmer because he was unable, for whatever reason, to have overnight care of the Daughter on that occasion. This appears to be borne out by the exchange of text messages provided by Ms Luby, which also show the parents had a suitably amicable relationship until November 2017, which is contrary to Mr Palmer’s assertion in his evidence.

    [48] See Exhibit 9.

33. Ms Luby contends she has expertise in the field of digital images in her role as a graphic designer and asserts that dates recorded on an image don’t necessarily reflect the date the image was taken. As Ms Luby provided no evidence of this expertise, the Tribunal places no weight on this assertion.

34. Mr Palmer provided a final submission dated 31 May 2020 and signed 1 June 2020 in which he restates his claim to have had at least 50% care of the Daughter since December 2015.[49] He again makes the claim that Ms Luby falsely claimed to have one hundred percent financial responsibility for the Daughter, which as discussed above is not relevant in this case. Mr Palmer goes on to reiterate that he has created new family life for the Daughter including sports and leisure activities which he says she attends every second week on his week. He does not provide any evidence to link that assertion to his calendar of care. He confirms the period in late 2017 when he and his now current wife were not living together during that time and he did request Ms Luby to have care of the Daughter at times when she was supposed to be with him. Beyond that, he says the 50/50 care arrangement was substantially adhered to by him.

    [49] See Exhibit 8, pages 1-2.

1. In his evidence he asserts Ms Luby has provided text messages that are incomplete and out of context. He says in his final submission he was issued with a new work phone and was unable to access texts from prior to that time. The Tribunal can only rely on the evidence before it.

2. The final statement by Mr Palmer is as follows: ‘I have provided consistent loving care in a 50/50 week on week off arrangement.’[50] He restates that position further in his submission where he deals with a calendar of care. He states again the care arrangement was regularly 7 days on/7 days off. He says sometimes there were irregularities due to holidays, sicknesses and other unforeseen events which were later swapped or regarded as owed. He does not provide any evidence of that. The difficulty for the Tribunal with these statements is they are inconsistent with his own calendar of care, which does not show consistent week on, week off care.

   [50] Exhibit 8, page 2.

3. To the extent the photographic evidence he provided shows the Daughter asleep in either his house or his mother-in-law’s house it shows she was in his overnight care on that day. Unfortunately, there are very few such photographs. As explained above, the bulk of the photographs are of the Daughter engaged in activities either alone or with others.

4. Ms Neill provides a further affirmation about the personal photos taken on her phone and camera and provided to Mr Palmer as evidence.[51] She asserts she did not change the date or attempt to do so. As mentioned above in connection with Ms Luby’s final submission her assertion to have expertise in digital imaging has been disregarded by the Tribunal. The submission then goes through month by month showing Mr Palmer’s calendar of care and providing photographic evidence said to support the dates he says the Daughter was in his overnight care. To restate what has been mentioned several times before, the photographic evidence is largely of the Daughter’s activities and very few of her sleeping arrangements.

   [51] Exhibit 8, page 4.

5. Mr Palmer then provides various letters of support some of which had already been provided to the Tribunal and are discussed above. The letter from the Daughter’s Day Care dated 13 April 2018 states Mr Palmer and Ms Luby share custody arrangements 50/50 for the duration of the Daughter’s enrolment and attendance at day care.[52] The meaning of custody has been discussed in this decision. The writer, Ms Nancy Andrews, makes no reference to where the Daughter receives overnight care. This letter carries little weight in this case. The submission then includes again the letters of support from Ms Neill, Mrs Deborah Palmer, Mrs Kate Palmer, Mr Jason Parker and Mr Paul Stokje all of which have been discussed above.

   [52] Exhibit 8, page 30.

6. Mr Palmer’s final submission goes on to draw the Tribunal’s attention to various statements made by Ms Luby in documents such as affidavits, which he says are incorrect, and thereby degrades her evidence in this case. The Tribunal considered these matters earlier in this decision and finds they do not add much if any weight to Mr Palmer’s case. He also provides extracts of emails where negotiations take place for changes to the care arrangement for specific instances such as the trip to Melbourne Ms Luby undertook in July 2016. Such arrangements and negotiations are common in these situations and the Tribunal finds these emails carry little weight.

   SUMMARY OF FINDINGS

7. The issues in this case are what is the care period and if so, what were the care arrangements for the Daughter during the care period. In order to determine those issues, it is necessary to first determine which calendar of care has more credibility. Both Mr Palmer and Ms Luby have produced calendars of care which were not prepared contemporaneously and in which they have relied on external evidence, such as photos, text messages, and the like.

8. What is clear is the care period should be broken into two separate periods being 12 December 2015 to 29 February 2016 (the Former Period) and 1 March 2016 to 25 November 2017 (the Latter Period) because Ms Luby and Mr Palmer both agree the care during the Former Period was at or about 50/50.

9. It is also clear both parents have a loving relationship with the Daughter and have provided well for her when she is in their care.

10. Remembering the issue here is where the Daughter received overnight care. Ultimately, the Tribunal finds the evidence of Ms Luby for the Latter Period more convincing because:

    (a)Mr Palmer relies only on photographic evidence, most of which shows the Daughter engaged in activities, either alone or with others, and only a few images reflect her asleep in bed or ready for bed, whereas, Ms Luby relies on a broader range of evidence including photographs and also other sources of information such as text messages and emails.

    (b)Ms Luby provided a detailed schedule[53] setting out day by day from 12 July 2015 to 28 December 2017, in which she identifies the days not in dispute and, where she disagrees, she provides direct evidence as to why the Daughter received overnight care with her and not with Mr Palmer. There is no evidence before the Tribunal to indicate Mr Palmer disagrees with the findings in this schedule.

    (c)Ms Luby provided a selection of text message exchanges with Mr Palmer in support of her case. Mr Palmer points out the context in which those text messages were exchanged is not included. That may be so, and it was open to Mr Palmer then and remains so now to provide the missing text messages to provide that context. He did not do so.

    (d)Mr Palmer’s living arrangements from March 2016 to November 2017 appear to be somewhat lacking in organisation until he makes the decision on 25 November 2017 to regularise his arrangements. Ms Luby appears to have had stable living arrangements then and now. Mr Palmer did not dispute this in his evidence.

    (e)The letters of support each party provided are largely unhelpful as they almost invariably attest as to the writer’s belief about the custodial arrangements for the Daughter. The deficiency of these documents is none of them makes any direct reference as to where the Daughter received overnight care.

    (f)The information provided by each party as to expenses paid by them in connection with the Daughter and whether the other party contributed to those expenses is not relevant for the reasons previously given.

    [53] Exhibit 3, Annexure A10, pages 65-79.

    DECISION

11. The Tribunal sets aside the decision in AAT1 and in substitution decides for the period 12 December 2015 to 29 February 2016 the care percentage of the Daughter was 50% to Ms Luby and 50% to Mr Palmer and for the period 1 March 2016 to 25 November 2017 the care percentage was more than 65% to Ms Luby.

1.       I certify that the preceding 79 (Seventy-Nine) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

................[SGD]............................

Associate 

Dated: 27 August 2020

Date of hearing:	25 May 2020
Date final submissions received:	8 June 2020
Applicant:	Ms Christina Luby
Solicitor for the Applicant	Mr Bryan Pickard Greenhalgh Pickard Solicitors and Accountants
Other Party:	Mr Nathan Palmer
Solicitor for the Respondent:	Mr Rick McQuinlan Department of Social Services