McKeown and Secretary, Department of Social Services (Social services second review)
[2020] AATA 1530
•1 June 2020
McKeown and Secretary, Department of Social Services (Social services second review) [2020] AATA 1530 (1 June 2020)
Division:GENERAL DIVISION
File Number(s): 2018/4838
Re:Kim McKeown
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
AndBrad Matthews
OTHER PARTY
DECISION
Tribunal:Belinda Pola, Senior Member
Date:1 June 2020
Place:Brisbane
The decision under review is affirmed.
......................[SGD].................................
Senior Member Belinda Pola
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – FTB – care arrangements – percentage of care – whether there was a change to the likely pattern of care - no change to the pattern and percentage of care – decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
CASES
Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405
Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 473
P v Child Support Registrar [2013] FCA 1312
Polec v Staker and Another [2011] FMCAfam 959
Re Drake and Minister for Immigration and Ethnic Affairs (No2) [1979] AATA 179; (1979) 2 ALD 634
Re Nowicz and Department of Family and Community Services [2001] AATA 628
Re Warne and Department of Families, Community Services and Indigenous Affairs [2006] AATA 159
Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607
Wade v Secretary, Department of Family and Community Services [2004] FCA 1660
SECONDARY MATERIALS
Guides to Social Policy Law: Family Assistance Guide, Department of Social Services, Version 1.220 released 11 May 2020
REASONS FOR DECISION
Belinda Pola, Senior Member
1 June 2020
BACKGROUND
The Applicant, Ms Kim McKeown and the Other Party, Mr Brad Matthews, have two children with no formal care agreement or court order in place in relation to the care of their children during the care period[1].
[1] Transcript dated 21 April 2020, page 12, lines 1 to 5; and page 13, lines 28 to 39.
The Applicant notified Centrelink (the ‘Department’) on 3 May 2017[2] that she had 100% care of both children and submitted documents and statements from witnesses confirming such care as evidence.
[2] Exhibit 1, T42, pages 122 and 123; and Exhibit 1, T43, pages 149 and 150.
The Other Party lodged a claim for Family Tax Benefit (‘FTB’) on 23 May 2017[3] for both children on the basis they had care for both children 50% of the time, in addition to submitting statements as evidence.
[3] Exhibit 1, T60, pages 228 to 234.
On 28 December 2017[4] the Department decided to record the care of the children as 50% each for the Applicant and the Other Party effective from 3 May 2017.
[4] Exhibit 1, T42, pages 122 and 123; and Exhibit 1, T43, pages 149 and 150.
On 15 February 2018[5], the Applicant disputed this decision, claiming they had the children for 148 nights for the period of 1 May 2017 to 30 December 2017, with the Applicant stating that the children refused to stay with their father.
[5] Exhibit 1, T34, pages 91 to 98.
On 9 May 2018[6], an Authorised Review Officer (‘ARO’) affirmed the decision.
[6] Exhibit 1, T38, pages 102 to 108.
On 18 May 2018[7], the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Tribunal for a first review of the decision, which was affirmed on 25 July 2018[8].
[7] Exhibit 1, T40, pages 114 and 115.
[8] Exhibit 1, T2, pages 3 to 6.
On 23 August 2018[9], the Applicant applied to this Tribunal for a second review.
[9] Exhibit 1, T1, pages 1 and 2.
JURISDICTION
An ARO reviewed the Department’s decision on 9 May 2018. The SSCSD of the Tribunal reviewed the Application, publishing a decision on 25 July 2018.
Section 128(1) of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘Administration Act’) provides that:
128 Application for AAT second review
(1) Application may be made to the AAT for review (AAT second review) of a decision made by the AAT under subsection 43(1) of the AAT Act on AAT first review.
Given this is an application for second review, in accordance with s128(1) of the Administration Act, the Tribunal has jurisdiction to hear this Application.
ISSUES
The Tribunal must review the application before it and determine:
(a)What is the care period for this application?
(b)What were the care arrangements during the care period?
(c)Based on the evidence, what is the Applicant’s and Other Party’s share of the care of the children in the care period?
RELEVANT LEGISLATIVE PROVISIONS
A New Tax System (Family Assistance) Act 1999 (Cth) (the ‘Act’), sets out requirements regarding the calculation of Family Tax Benefit (‘FTB’), including instances where there are shared care arrangements between parties.
Section 3 of the Act sets out the definition for ‘percentage of care’, which provides:
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 22(1) and (2) of the Act provides that a child will be an FTB child of an adult if the following requirements are met:
22 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).
Section 22(5) of the Act provides for circumstances surrounding the legal responsibility for the care of the child as mentioned in the above paragraph:
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.
Section 22(7) of the Act provides:
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).
Section 25 of the Act provides:
25 Effect of an individual’s percentage of care for a child being less than 35%
If an individual’s percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.
Section 35A sets out the requirements for the Secretary to make a determination regarding the percentage of care for a child not in the care of an adult.
Section 35B of the Act sets out the requirements for determining the percentage of care in relation to the child in the care of an adult, which provides:
35B 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 or suspends, under Subdivision E of this Division (except under paragraph 35PA(3)(b) or 35QA(3)(b)), 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 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.
Section 35J of the Act is relevant to working out actual care and the extent of care of a child, which provides:
35J Working out actual care, and extent of care, of a child
(1)The actual care of a child that an individual has had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.
(2)The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.
(3)For the purposes of this section, a child cannot be in the care of more than one individual at the same time.
(4) This section does not limit section 35B, 35C, 35GA or 35H.
Sections 35P to 35S of the Act set out the requirements for the revocation and suspension of a percentage of care determination. New care determinations can only be made if existing care determinations have been revoked. Relevantly, s35P and s35Q of the Act provide:
35P Determination must be revoked if there is a change to the individual’s shared care percentage
(1) The Secretary must revoke a determination of an individual’s percentage of care (the existing percentage of care) for a child made under section 35A or 35B if:
(a) the Secretary or 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
(b) 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; and
(c) subsection (2) applies in relation to the individual.
Note: The Secretary must make another determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) This subsection applies in relation to an individual if:
(a) disregarding paragraph 35F(1)(c), section 35C did not apply in relation to the individual; or
(b) section 35C did apply in relation to the individual but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 35C did apply in relation to the individual;
(ii) the maximum interim period for an earlier determination of the individual’s percentage of care for the child has not ended;
(iii) an interim period for the earlier determination does not currently apply;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 35C does not apply, see section 35F.
(3) The revocation of the determination takes effect at the end of:
(a) if the change of care day for the individual occurs during an 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.
…
35Q Secretary may revoke a determination of an individual’s percentage of care
(1) The Secretary may revoke a determination of an individual’s percentage of care (the existing percentage of care) for a child made under section 35A or 35B if:
(a) the Secretary or 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
(b) 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
(c) sections 35P and 35PA do not apply; and
(d) subsection (2) applies in relation to the individual.
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) This subsection applies in relation to an individual if:
(a)disregarding paragraph 35F(1)(b), section 35C did not apply in relation to the individual; or
(b)section 35C did apply in relation to the individual but the maximum interim period for the determination has ended; or
(c)all of the following apply:
(i)section 35C did apply in relation to the individual;
(ii)the maximum interim period for an earlier determination of the individual’s percentage of care for the child has not ended;
(iii)an interim period for the earlier determination does not currently apply;
(iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 35C does not apply, see section 35F.
(3) The revocation of the determination takes effect at the end of:
(a)if the change of care day for the individual occurs during an 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.
A ‘shared care percentage’ is calculated in accordance with s59 of the Act and by reference to the relevant "percentage of care" determination, s59 of the Act provides:
59 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.
The Tribunal refers to the Family Assistance Guide, which is publicly available[10]. In Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 473, Senior Member McDermott RFD (as he then was) at paragraph 11 stated:
“… it is appropriate to have regard to Centrelink’s policy guidelines. From the inception of this Tribunal there has been judicial guidance concerning the need of the Tribunal to have regard to policy. Centrelink decisions about shared care are generally made with reference to the Family Assistance Guide 1999 (“the Guide”). In my view it is appropriate to have regard to this policy document in contested cases of shared care; the application of the policy encourages consistent decision-making.”
[10]
The Family Assistance Guide is Government policy and should be followed unless there are cogent reasons not do so[11].
[11] Re Drake and Minister for Immigration and Ethnic Affairs (No2) [1979] AATA 179; (1979) 2 ALD 634.
The Family Assistance Guide references plainly the legislative steps which determine a shared care percentage in instances where there is a dispute between parties regarding the care of their children[12].
[12] Guides to Social Policy Law: Family Assistance Guide, Chapter 2.1.1.25, ‘Shared care of an FTB child’ <
Where possible, the percentage to be applied in the shared care determination should be:
·the percentage of care agreed to by all parties who share the care of the child; or
·the agreed pattern of care.
Where the carers do not agree on the level of care, the decision maker (in this instance the Tribunal conducting a second review) will determine the care percentage to be applied based on the available evidence of the actual pattern of care.
This percentage is applied when calculating the standard rate of FTB Part A and FTB Part B each person is eligible to receive.
Pattern of care
In determining the pattern of care, the Tribunal must weigh the available evidence in deciding whether there is a pattern of care and decide the appropriate share care percentages.
The Family Assistance Guide provides the following reference material in determining a pattern of care[13]:
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.
[13] Guides to Social Policy Law: Family Assistance Guide, Chapter 2.1.1.50, ‘Determining percentage of care’ <
The Tribunal refers to Brightman and Secretary, Department of Family and Community Services and Anor [2004] AATA 405, where Member Allen at paragraphs 26 and 27 stated:
“For the purposes of s 22(7) it is, in my opinion, clear from the terms of the agreement between the applicant and Mrshich 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."
The Tribunal refers to Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607, where Senior Member Levy RFD, stated in paragraphs 18, 19, and 20:
“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 ...”.
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 ...”.
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.”
Care
The term ‘care’ is not defined in the Act, the Tribunal refers to Polec v Staker and Another [2011] FMCAfam 959, where in paragraph 56, Hughes FM listed matters for consideration when determining the extent of care a person has for a child in a child support matter:
“In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
(a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?
(b)To what extent does the person make arrangements for others to meet the needs of the child?
(c)To what extent does the person pay for the costs of meeting the needs of the child?
(d)To what extent does the person otherwise provide financial support for the child?
(e)To what extent does the child provide for his or her own needs or have those needs met from another source?
(f)To what extent is the child financially independent or financially supported from another source?”
In P v Child Support Registrar [2013] FCA 1312, Wigney J commented on the list provided by Hughes FM in the above mentioned Polec decision, and stated the following in paragraphs 107 and 108:
“In my opinion, however, paragraph [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand. “Care” is not defined in the Act. The extent of care that is provided is a question of fact. It will depend on the facts and circumstances of the particular case. The meaning of care in any given case should not be constrained by a set list of questions or considerations. Failure to have regard to one of the matters referred to in Polec may or may not invalidate a decision depending on the particular facts and circumstances of the case. On the other hand, in some cases a decision-maker might fall into error by ignoring facts or circumstances that are not in the list in Polec.
Nor is Polec authority for the proposition, as Mr P contends, that in all cases where a child is not residing with his or her parents, the financial arrangements for meeting the child’s needs are a “paramount consideration”. Much will depend on the particular facts and circumstances of the matter at hand. The weight to be given to financial arrangements will differ in each case. In some cases financial considerations will be paramount, in some cases they may not.”
Care Period
The Act does not define the ‘care period’ when assessing shared care for the purposes of FTB, however the Family Assistance Guide provides commentary on the ‘care period’ as follows[14]:
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.
[14] Guides to Social Policy Law: Family Assistance Guide, Chapter 2.2.1, ‘Basics of care’ <
CONSIDERATION
The application was heard in Brisbane on 21 April 2020, with the Applicant, the Other Party and the Respondent all appearing by telephone. Both the Applicant and Other Party were self-represented and the Tribunal considered oral submissions from all parties, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
The Tribunal notes that the Respondent, adopted a neutral position in respect of whether the evidence and contentions of the Applicant or the Other Party should be preferred in this application[15].
[15] Exhibit 2, page 1, paragraph 4; and page 10, paragraph 53.
Evidence
All of the evidence before the Tribunal has been taken into consideration including the oral submissions made by the Applicant and the Other Party at the hearing.
The Tribunal is in the difficult position of determining this application with negligible corroborating evidence from either the Applicant or the Other Party, in addition to being presented with both of their differing factual accounts.
Applicant’s Evidence
The Applicant submitted a number of documents to the Tribunal for consideration including annotated calendar records[16], written statements from individuals known to the Applicant[17], statutory declarations from two individuals known to the Applicant[18], a range of correspondence from the school of her children, a letter from Legal Aid[19], and Centrelink correspondence.
[16] Exhibit 1, T51, pages 177 to 187.
[17] Exhibit 1, T14, page 54; T15, page 55; T28, page 77; and T29, page 78.
[18] Exhibit 1, T36, page 100; and T37, page 101.
[19] Exhibit 1, T35, page 99.
Evidence submitted by the Applicant to the Tribunal for consideration, contends that the Applicant had 100% care for her children from the start of May 2017 and the following
12-month period. A letter submitted by the Applicant from Legal Aid dated 20 February 2018, stated that the Applicant, “has lodged application for internal review of a decision [redacted] on the basis of a report made by her ex-partner as to the percentage of care he has for their two children… [the Applicant] instructs us that she has the children full time”[20].
[20] Exhibit 1, T35, page 99.
Despite the Applicant claiming that the she had full-time care of her children during the care period, at the hearing, she sought to change this claim stating, “I didn’t say 100 per cent of the time. I had the kids most of the time, and, yes, most definitely, over 50 per cent of the time”[21].
[21] Transcript dated 21 April 2020, page 7, lines 46 and 47.
The Applicant completed a statutory declaration on 18 January 2018, stating in relation to the care the children spend with their father is, “whenever it suits him”[22]. Written statements and statutory declarations submitted from individuals claim the Applicant had care of the children for most of the time[23].
[22] Exhibit 1, T30, page 79.
[23] Exhibit 1, T28, page 77; T29, page 78; T36, page 100; and T37, page 101.
The Tribunal places little weight on the evidence submitted by the Applicant in relation to the witness statements and statutory declarations, on the basis that there is little corroborating evidence to substantiate the claims made in these documents.
The Applicant signed a form to Centrelink dated 15 February 2018, claiming she had care of the children for “148” total nights, “since the 1st May 2017 until 30th Dec 2017”. The Applicant estimated that her percentage of care was “65%” during the care period, and that “at least Dads care is not consistent its when he chooses or the girls” [24].
[24] Exhibit 1, T34, page 96.
The Applicant submitted diary entries for the Tribunal to consider, which range in date from 23 October 2017 through to 31 December 2017[25]. The Tribunal asked the Applicant if these diary entries were made daily or prepared in retrospect, to which the Applicant responded, “No, they’re done like as the days come along. I’ve got a very good memory, but, no, I do not do them like weeks and weeks at a time, or, I do them as each day appears. I’m completely up to date with all of my diaries, and even as we speak right now”[26]. The Tribunal notes that the oral submission of the Applicant at the hearing conflicts with their previous evidence given to the SSCSD Tribunal, where the SSCSD Tribunal noted that the Applicant gave evidence that the diary entries were prepared retrospectively[27].
[25] Exhibit 1, T51, page 177 to 187.
[26] Transcript dated 21 April 2020, page 9, lines 24 to 27.
[27] Exhibit 1, T2, page 4, paragraph 7.
The Tribunal refers to a submitted report regarding each child from their school, stating that in relation to each child’s care arrangement that, “… natural parents are separated and [redacted] currently spends week about with each parent”[28]. When the Tribunal put this to the Applicant, the Applicant responded[29]:
“APPLICANT: That was in play only for some of the time when the father chose not to have the children, he did not have them at all. And that’s why I became very sick and everything, and the girls playing up on me. He would come and go as he liked and picked the children up when he felt like it. The girls were going to him on the Friday, week about, only here and there. And then he’d ring up on the Friday and say he wasn’t picking them up, or they’re not to catch the bus there, and then that’s where I had to put up with the behavioural problems.”
[28] Exhibit 1, T8, page 35 (4 May 2017); and T9, page 39 (5 May 2017).
[29] Transcript dated 21 April 2020, page 8, lines 45 to 48; and page 9, lines 1 to 5.
The Tribunal accepts in good faith the reports prepared by the children’s school confirming the living arrangements of the children at the beginning of the care period in question.
The Tribunal concurs with the original finding of the SSCSD Tribunal that the Applicant was not a convincing witness, as the evidence they provided was confused and contradictory[30].
[30] Exhibit 1, T2, page 5, paragraph 10.
Other Party’s Evidence
The Other Party to the application before the Tribunal tendered written statements from three individuals known to the Other Party confirming the Other Party had a week about arrangement or equal care of their children[31]
[31] T61, page 235; T62, page 236; and T63, page 237.
The Tribunal places little weight on the evidence provided by the Other Party in relation to the submitted witness statements on the basis that there is little corroborating evidence to substantiate the claims made in these documents.
When the Tribunal sought the views of the Other Party in relation to the report from the children’s school, as to whether this report was a consistent arrangement for the care period in question, the Other Party responded[32]:
[32] Transcript dated 21 April 2020, page 10, lines 6 to 25.
“SENIOR MEMBER: …there are some letters from the school in relation to your children confirming week about arrangements.
OTHER PARTY: Yes.
SENIOR MEMBER: These letters are dated early May, and that’s about - that’s very close to the date of the period that we’re examining.
OTHER PARTY: Yes.
SENIOR MEMBER: The letters do confirm that the children were in a week about arrangement.
OTHER PARTY: Yes.
SENIOR MEMBER: Was that week about arrangement consistent for that 12-month period?
OTHER PARTY: Yes.”
CONCLUSION
(a) What is the care period for this Application?
The care period in relation to this Application is the date the Applicant notified the change of care arrangements, being 3 May 2017, and the 12-month period following this date.
(b) What were the care arrangements during the care period?
After review of the evidence before the Tribunal and consideration of contentions between the Applicant and the Other Party, the Tribunal is not satisfied that there was a change to the pattern and percentage of care that the Applicant provided to their children in the care period.
(c) Based on the evidence, what is the Applicant’s and Other Party’s share of the care of the children in the care period?
As the Tribunal has found that there was no change to the pattern and percentage of care that the Applicant provided to their children in the care period, the original decision under review is correct, that the Applicant and Other Party equally shared care of their children during the care period, on the basis of an alternating weekly arrangement.
DECISION
The decision under review is affirmed.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola
………[SGD]…………
Associate
Dated: 1 June 2020
Date of hearing: 21 April 2020
Applicant: Ms Kim McKeown
Other Party: Mr Brad Matthews
Respondent: Represented by Ms Jasmine Forsyth
Senior Government Lawyer
‘Annexure 1 – Exhibit Register’
Exhibit
NumberDescription
1
Section 37 T Documents, paged 1 to 249.
2
Secretary’s Statement of Facts, Issues and Contentions and List of Authorities, dated 14 March 2019, paged 1 to 11.
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
0
6
0