NYSY and Secretary, Department of Social Services (Social services second review) - [2024] AATA 620

NYSY and Secretary, Department of Social Services (Social services second review) [2024] AATA 620 (8 April 2024)
Division:GENERAL DIVISION
File Number: 2023/6604
Re:NYSY
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndTQLN
OTHER PARTY

DECISION
Tribunal:Ms A E Burke AO, Member
Date:8 April 2024
Place:Melbourne

Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and makes a decision in substitution that NYSY and TQLN both had 50% care of child R from 1 January 2022.
............................[sgd]............................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – Family Tax Benefit – establishing a pattern of care – percentage of care – determination of the extent of actual care – where both parents accept a change in the pattern of care but dispute the date on which the change commenced – relevant factors – desire for a flexible approach - limited and conflicting evidence – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Cases
Brightman and Secretary, Department of Family and Community Services and Another [2004] AATA 405
Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2008] AATA 607
Warne and Department of Families, Community Services and Indigenous Affairs and Anor [2006] AATA 159
Secondary Materials
Department of Social Services, Family Assistance Guide (Guides to Social Policy Law, version 1.254, 2 April 2024)
Department of Social Services, Social Security Guide (Guides to Social Policy Law, version 1.316, 20 March 2024)
REASONS FOR DECISION
Ms A E Burke AO, Member
8 April 2024

NYSY (‘the Applicant’) is seeking a second-tier review by the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) of a decision of the Social Security and Child Support division of this Tribunal (‘AAT1’) of 21 August 2023.
The Applicant and the Other Party, TQLN, are the parents of a child born in 2017 (referred to in this decision as ‘R’).
On 11 May 2022, TQLN lodged a claim for parenting payment in which he recorded he had 71% care of R.
On 27 June 2022, TQLN lodged a ‘Details of your child’s care arrangements’ form which recorded that:
·R’s current care arrangement started on 12 June 2021.
·The care arrangement for R was 5 nights a week with dad and for 2 nights a week with mum.
·TQLN had 60% care of R and NYSY had 40%.
TQLN’s ‘Details of your child’s care arrangements’ form appears to have been signed by NYSY on 24 June 2022.
On 4 July 2022 Centrelink determined NYSY had 40% care of R from 12 June 2021.
On 6 July 2022, NYSY requested review of the original decision:
I had ongoing Family violence with TQLN. I do not agree with him having 60% and myself 40%. I have R 4 days a week. I also provide all school costs an activities. I never signed for him to have 60% of care. There is also no Family care orders. I am primary carer and changes have only started two weeks ago.
On 9 November 2022 an authorised review officer (‘ARO’) decided to vary the original decision determining NYSY had 100% care of R until 11 June 2022 and 50% from 12 June 2022.
In respect of NYSY the ARO found:
Your review outcome
After carefully considering all relevant information, I have changed these decisions.
I have determined you had 100% care of R until 11 June 2022 and 50% care from 12 June 2022.
This has restored your Family Tax Benefit entitlement for R as they were your Family Tax Benefit child from 12 June 2021. This has also restored your Parenting Payment entitlement from 12 June 2021, as you had a Parenting Payment child in your care for whom you were the principal carer, continuously from that date.
The restoration of your Parenting Payment entitlement has also restored your Additional Child Care Subsidy Transition To Work entitlement for [W] as Parenting Payment is an eligible payment.
…
Review Notes
I asked the customer what the care was from June 2021. Customer advised always full time until this year.
There were access visits but no care overnight. It has changed from June 2022.
It varies but generally shared 50/50 and will probably be set days when R starts school. Can be 3 days then they have 6 days then recently the OCP had 2 weeks but it is made up.
I advised I may need to make a PP Principal carer decision from when it becomes 50/50 but if this change is made it should resolve/reduce the debts and prevent a PPS debt or reduce what it might be.
Customer advised they couldn't understand why it had been accepted as 60/40. I explained co-signed FA012 and why that is accepted.
Customer advised they did sign the form but was not shown the care section and would never have signed it if they knew it said 60/40 to the OCP.
I advised that unfortunately signing it meant what was in the form had been taken as fact.
I advised that in relation to the date it could simply be the wrong year but that doesn't explain the 60/40.
In respect of TQLN the ARO found:
Your review outcome
After carefully considering all relevant information, I have changed the decision. I have determined you had 100% care of R until 11 June 2022 and 50% care from
12 June 2022. As a result, I have determined that your Parenting Payment should be granted from 12 June 2022.
You will be advised separately regarding any Parenting Payment overpayment arising from this decision.
Key findings:
·On 11 May 2022, you lodged a claim for Parenting Payment for R.
·On 27 June 2022, you provided a 'Details of your child's care arrangements' form, which reflected that you had 60% care of R from 12 June 2021.
·On 4 July 2022, your claim for Parenting Payment was granted from 11 May 2022, based on R being a Parenting Payment child and you being R's principal carer.
·You had 0% care of R from 12 June 2021 and 50% care from 12 June 2022.
·You were not R's principal carer until 12 June 2022.
·You were not entitled to Parenting Payment for the period 11 May 2022 to 11 June 2022. This is because you did not have a Parenting Payment child in your care until 12 June 2022.
·You are entitled to Parenting Payment from 12 June 2022, as you have a Parenting Payment child in your care and you are R's principal carer.
Reasons for the outcome
Where the care of a child is disputed, we ask both carers to provide evidence to support their claims. I was unable to discuss the review with you and request further evidence.
However, I acknowledge that you provided a co-signed ’Details of your child’s care arrangements' form on 27 June 2022, as part of the original decision.
The other carer has disputed the details on the form, which reflected that you had 60% care. They advised that they did not agree to 60% care and were unaware that you were claiming 60% care when asked to complete the signature page of the form. They advised that you had 0% care of R until 11 June 2022 and 50% care from 12 June 2022.
The other carer has provided multiple statements from third parties to support their claims.
I am satisfied that the evidence is compelling and shows that you had 0% care of R until 11 June 2022 and 50% care from 12 June 2022.
On 20 March 2023 TQLN applied to the AAT1 to review the ARO decision in respect of Family Tax Benefit (‘FTB’) and the care percentage decision.
On 21 August 2023, the AAT1 varied the ARO decision; finding:
In reconciling the parties' accounts, the Tribunal is mindful that there is no independent evidence that corroborates TQLN’s assertion that he had 50% or more care of R prior to 2022. His own account has varied over time and his latest documentary evidence goes no further than establishing that he had contact with R during 2020, a fact NYSY acknowledges. For her part, NYSY who has also given different accounts over time - states that TQLN had a gradually increasing level of care from some point in 2020 onwards but disputed that it was 50% care until recently. Unlike TQLN, she has provided statements from third parties attesting to her version of events. However, these statements cannot be accurate given that they indicate that the shared care arrangement commenced in June 2022, whereas NYSY has acknowledged that TQLN was having overnight care from 2020 onwards. While NYSY has indicated that TQLN’s level of overnight care was initially minimal, the Tribunal is mindful that she signed an FA012 form in June 2022 that indicated that he had significant care from June 2021 onwards. Whether or not the form contained this information when she signed it, the tenor of her evidence to the tribunal was also that the level of TQLN’s care had nonetheless increased by the 2021-22 year. Consistent with this fact, it is during this particular year that TQLN first claimed payment in respect of R.
In the absence of any reliable evidence confirming that TQLN had 35% care - the minimum threshold for family tax benefit eligibility under the FA Act - until recently, the Tribunal is not prepared to conclude that he had such care prior to the 2021-22 year. However, given that the evidence of both parties indicates that TQLN had a significant level of care from the 2021-22 year onwards, the tribunal infers that his level of care had increased to its current level of 50% by that time. The Tribunal will therefore vary the current care determination on the basis that each party had a care percentage of 50% in relation to R from 1 July 2021, the beginning of the 2021-22 year.
DECISION
The decision under review is varied so that TQLN and NYSY each had a care percentage of 50% in relation to R from 1 July 2021.
On 5 September 2023 NYSY, applied to the General Division of the Administrative Appeals Tribunal ('the Tribunal') for review of the AAT1 decision, stating:
There was no evidence to prove TQLN had 50 % care of R. I am now on my third IVO with TQLN. TQLN never wanted to claim payments until 2022. I was coercive [sic] by signing paperwork which was not even correct information given. TQLN told me he was claiming 50% from 2022 and then later changed the dates and care level. There has been no formal agreement. TQLN had been in prison since R was 7 months then went back into jail till R was 2. TQLN got a place through housing and then it changed to TQLN having him one night a week and one night of weekend. I was also driving to collect R to and from his house for extended periods of time. I have provided letters from day care and friends who can confirm myself being primary carer and 50% care since 2022 when he has claimed. TQLN has only tried to claim payments as part of tactic used by perps to put me into debt. I want this reviewed due to his long history of family violence he was not allowed to have 50% care. He would have supervised visits.
The application was heard on 14 March 2024 by telephone where NYSY and TQLN were both self-represented. Mr Tim Noonan, solicitor with Services Australia appeared for the Secretary of the Department of Social Services (‘the Respondent’).
ISSUE
The issue for determination before the Tribunal is whether there has been a change in the pattern of care for R, and if so:
(i)what percentage of care applies to each parent; and
(ii)when did the change in care commence.
LEGISLATIVE FRAMEWORK
Family Tax Benefit (‘FTB’)
In relation to FTB generally, a person is eligible for FTB if, amongst other requirements, they have an 'FTB child’.
Section 22(2) of the A New Tax System (Family Assistance) Act 1999 (Cth) (‘Family Assistance Act’) provides that an individual is an FTB child of the adult if:
·the individual is aged under 16; and
·the individual is in the adult's care; and
·the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
·the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
Section 22 of the Family Assistance Act requires a person receiving FTB to have the care of an FTB child.
Where two separated parents are both eligible for FTB in relation to the same FTB child, section 59 of the Family Assistance Act allows for FTB to be shared between the two parents. The amount payable to each parent will depend in part on the percentage of care that each parent has of the FTB child.
Section 59 of the Family Assistance 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%.
…..
Percentage of care
Part 3, Division 1, Subdivision D of the Family Assistance Act contains a number of provisions regarding the determination of a percentage of care.
Section 35J of the Family Assistance Act provides that the Secretary (or Tribunal upon review) may determine the percentage of care based on the number of nights that a child is in the care of the adult. That section 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.
Revoking a care determination
The provisions relating to revoking an existing care determination are contained in Part 3, Division 1, Subdivision E of the Family Assistance Act.
Sections 35P and 35Q of the Family Assistance Act set out the circumstances in which an existing care determination must be or may be revoked. Those sections provide as follows:
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 the interim period for the determination—the day on which the interim period ends; or
(b) otherwise—the day before the change of care day for the individual.
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: 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 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 the interim period for the determination—the day on which the interim period ends; or
(b) otherwise—the day before the change of care day for the individual.
Section 35B of the Family Assistance Act relevantly provides:
35B Determination of percentage of care – child is in the adult’s care
Initial determination
…
Determination after revocation
(2) If:
(a) the Secretary revokes or suspends, under Subdivision E of this Division…, a determination of an individual's (the adult) percentage of care for a child that was made under section 35A or this section; and
(b) the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3) or (4), an FTB child of the adult and at least one other individual; and
(c) the adult is not a partner of at least one of those other individuals;
the Secretary must determine the adult's percentage of care for the child during the care period.
Percentage of care
(3) The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.
Parenting payment

Section 500(1()(a) of the Social Security Act 1991 (Cth) (‘the Social Security Act’) provides that a person is qualified for parenting payment ('PP') if, among other things, 'the person has at least one PP child'. Subsection 500D(2)(a)-(d) provides that a child is a 'PP child of a person' if, among other things, the person is the 'principal carer of the child'.
Principal carer
Section 5 of the Social Security Act defines the term 'principal carer' as follows:
5 Family relationships definitions-children
...
Principal carer
(15) A person is the principal carer of a child if:
(a) the child is a dependent child of the person; and
(b) the child has not turned 16.
(16) For the purpose of determining whether a person is the principal carer of a child, the person is taken to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the child if:
(a) the person is the step-parent of the child; and
(b) the person is living with the child and a parent of the child; and
(c) the person and the parent are members of the same couple.
This subsection does not, by implication, affect the determination of whether a person is taken to be legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of a child in cases to which this subsection does not apply.
In most situations in which separated parents share the care of a child this definition would include both parents. However, subsection 5(18) of the Social Security Act imposes the limitation that only one person at a time can be the principal carer of a particular child.
Under subsection 5(19) of the Social Security Act, when there would otherwise be more than one principal carer under the general definition, the Secretary must make a written determination and give a copy of the determination to each person.
(19) If the Secretary is satisfied that, but for subsection (18), 2 or more persons (adults) would be principal carers of the same child, the Secretary must:
(a) make a written determination specifying one of the adults as the principal carer of the child; and
(b) give a copy of the determination to each adult.
(20) The Secretary may make the determination even if all the adults have not claimed a social security payment that is based on, or would be affected by, the adult being the principal carer of the child.
EVIDENCE
An email to TQLN from the Housing Officer at Housing Choices Australia dated 12 May 2020 states:
Please find attached a copy of the THM program condition for you to sign and return as soon as possible.
An email to TQLN from the Centre Director at [RN] Early Childhood Learning Centre (‘ECL’) dated 18 August 2020 states:
Thankyou for sending through some pictures of you and R. Its great to see you guys having so much fun together.
NYSY’s Centrelink Customer record of 8 July 2022 states:
Why does the customer want an explanation?
I had ongoing family violence with TQLN. I don't agree with him having 60% and myself having 40%. I have R 4 days a week. I also have provide all school costs and activities. I never signed for him to have 60% of care. There is also no family care orders. I am primary carer and changes have only started two weeks ago – taken from SS351 scanned on 08.07.22
This has cause reco debt that cus disagrees with.
Was the customer contacted? Yes
Findings of fact:
I am unable to change the decision based on the evidence currently provided.
o/c … provided a dual signed FA012 which was used to change the care. I have done a signature match with SS351 lodged by cust and the signature does match however I do note that it is an easy on the forge.
Cust has only provided a letter from a friend confirming care and as this is a he said/she said situation this is not enought to make a determination. [sic]
Called cust and she has requested to go to ARO and I have adivsed to provide further evidence such as something from the Preschool [sic]
The decision after explanation is:
I am unable to change the decision based on evidence currently provided.
The Centre Director of [RN] ECL in a letter of 16 September 2022 advised:
l would like to confirm that NYSY has been the primary care giver to R since June 2021. From June 2022 both NYSY and R’s father, TQLN have 50/50 custody of R.
Ms SH in an undated letter stated that she had been a friend of NYSY since 2011 and also stated:
NYSY has come to me to provide proof that she has care of R currently for 4 days a week. NYSY has been the primary carer of R since his birth. R’s father TQLN has been in prison twice and not had any care for his son. Only since the end of June of 2022, NYSY had made private arrangements for care of R. NYSY pays for all R school costs and basic items…… I myself am over NYSY place once or twice a week so I have full aware how often TQLN has R.
TQLN’s Centrelink record notes that he has lived at various addresses:
17 Feb 2017    Prison
18 April 2018   No fixed address
14 Oct 2018     Prison
15 Aug 2019    Rooming house
13 Feb 2020    Supported accommodation.
28 June 2021 Social housing
9 Nov 2021     Social housing
TQLN’s Centrelink record notes that he advised Centrelink that he had R for 80% and NYSY had 20% from 25 September 2020 and from 31 January 2023, when R started school, both he and NYSY have a 50/50 care arrangement.
CONTENTION
The Respondent provided submissions in relation to the facts and legislation applicable to the matter before the Tribunal and adopted a neutral position regarding the evidence and contentions. The Respondent made no submissions in relation to the correct or preferable decision of the Tribunal. The Tribunal was appreciative of the assistance it received from the Respondent through the submissions and at the hearing but observes it was Centrelink that made the original determination that both NYSY and TQLN are disputing.
NYSY
NYSY submitted that:
·R had been in her care 100% of the time until 2022.
·When she had 100% care of R she was paid zero child support because of exemptions.
·She has and continues to provide for all of R’s financial needs, clothing, food, schooling, child care, kinder and extracurricular activities.
·That when R is with TQLN he pays for R’s food and clothing needs.
·That she makes all the decisions about R, such as where he goes to school.
·That she attends to all R’s medical needs, taking him to the doctors, dentist and meets all the associated costs – which are considerable as he is under the care of a specialist.
·She had been subjected to domestic violence at the hands of TQLN.
·During Covid-19, R was in her care 100%.
·That she was having to drive R to and from TQLN’s place of residence for his supervised visits.
·TQLN has never had 60% care of R.
·That she recalls signing the care arrangements form but did not see the details on the form and would not have signed if she had known TQLN was claiming a 60/40 care arrangement.
·That TQLN’s mother had assisted her with purchasing a car but that had nothing to do with meeting R’s needs. It had been given to her as her car had been damaged and deemed unsafe to drive as a result of TQLN’s domestic violence. The car had not cost anywhere in the vicinity of $40,000.
·TQLN’s mother had given her money directly to assist with meeting R’s child care and school needs.
NYSY’s evidence was that the care arrangement for R had been 100% from his birth and it had changed over time with R spending time during the day with TQLN and eventually having time overnight with his father. NYSY was adamant that TQLN never had more than 50% care of R.
NYSY’s evidence was there was no formal arrangement in place for R, and that she and TQLN had not entered a parenting plan. NYSY did concede that TQLN had taken increasing care of R but could not pinpoint when the new arrangement commenced.
NYSY advised the Tribunal she believed the new arrangement had started in 2022 when R was attending kindergarten and was willing to accept the new arrangement commenced in January 2022 but did not accept the change in care arrangement occurred in June 2021.
TQLN
TQLN submitted that:
·He had not been able to have R in his care because of circumstances in his life, but since he has been in stable housing, he is doing everything in his power to have R in his life.
·He was struggling to provide for R on Jobseeker payments and was made aware he was able to claim parenting payment and family tax benefit as he had care of R, so put in a claim.
·During the Covid-19 lockdown he sought an exemption so he could travel to collect R from kindergarten which was over 9 kilometres away.
·That he is currently spending all day taking R to and from school on the bus.
·That he provides for all R’s needs when R is in his care.
·His mother purchased NYSY a car for $40,000, his mother had to pay $1,500 to cover R’s child care fees when NYSY returned to work as R was no longer entitled to a subsidised spot and his mother had met all the expenses related to R starting school.
·That he had helped out NYSY considerably over the years by taking R when she was in a new relationship and pregnant with her second child and when she broke her ankle.
·That he had R 50% of the time from when he received a social housing unit and relied upon the email from Housing Choices Australia.
·That his social media accounts were full of pictures of him with R which was clear evidence that R had been in his care 50% of the time since 2022.
TQLN’s evidence had been that he and NYSY had tried to resolve the care arrangement for R through mediation, but this had failed and there was no formal arrangement in place for R’s care. TQLN contended that NYSY is constantly changing days and times to suit her, and he is happy with any arrangement so long as he has access to R.
TQLN did not advance an exact date or time period for when he believed the 50/50 care arrangement for R commenced but had been happy with the findings of the AAT1 determination.
CONSIDERATION
Has the pattern of care for R change?
There is no dispute between the parties that the pattern of care for R has changed over time. What is in dispute is when the change of care arrangement commenced.
NYSY concedes that over the course of R’s short life he has spent an increasing amount of time with his father TQLN. NYSY’s evidence was that when R was born TQLN was in prison and was again imprisoned until R was about 2 years old. NYSY submitted she had 100% care of R from birth as TQLN was obviously unable to have R with him in prison. NYSY submitted after TQLN left prison, he was only allowed supervised visits with R through Child Services. NYSY submitted TQLN over time has been allowed to have R in his care which has increased to having overnight access and eventually increasing to a 50/50 care arrangement.
NYSY argues the amount of time R spent with TQLN varied from week to week until approximately January 2022 when R was with TQLN 50% of the time. NYSY was adamant the 50/50 care arrangement occurred no earlier than that.
TQLN conceded he was not in a position to have R overnight for a considerable period of time particularly when he was in accommodation which did not allow children to stay, or when he was in a share house. TQLN’s evidence at the hearing was that he was able to have R on the basis of a 50/50 split from the time he secured stable and appropriate housing. TQLN submitted the email from Housing Choices Australia of 12 May 2020 was proof he had R in his care 50/50 from that time.
On the evidence before it the Tribunal finds that the care arrangement for R has changed over time. That NYSY had R in her care 100% from birth and this has changed over time resulting in a more permanent care arrangement of R split between NYSY and TQLN.
What is the pattern of care and the corresponding percentage of care?
The Department of Social Services, Family Assistance Guide (‘the Guide’) at Topic 2.1.1.50 provides that the first step in determining the percentage of care is to establish the pattern of care. The Guide states:
The pattern of care to be used in the shared care determination is either the pattern agreed to by all carers of the child or, if there is no such agreement, the pattern of care as established by the decision maker for the care period… A care period begins on the day on which the care of a child starts to be shared between 2 or more adults, or the day on which the pattern of care changes and ends when there is a subsequent change in care. It should be noted that a care period will generally be a 12-month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12-month periods, unless otherwise advised. A care period may be shorter than 12 months where the level of care is unsettled and changes on a regular basis.
The Guide at Topic 2.1.1.45 provides further assistance in relation to establishing a pattern of care and states:
The pattern of care to be generally used in the shared care assessment is the actual care arrangements for the child. As much as possible, the pattern of care should be the pattern as agreed to by all parties who care for the child. Otherwise, Centrelink must carry out further investigation to determine the actual pattern of care.
An assessment of care arrangements that is determined by either Centrelink for FA purposes or Child Support for child support purposes will have effect for the other agency in relation to care periods that begin on or after this date. 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.
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Where the carers do not agree on the actual pattern of care for the child, Centrelink must determine the actual pattern of care on the basis of available evidence. This applies even if a formal care arrangement exists. If the carers do not agree on the care percentage, each carer should be asked to provide additional evidence to support their declared arrangements in order for Centrelink to make a decision as to the actual pattern of care.
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Generally a pattern of care is based on the number of nights in a care period where 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.
Previous Tribunal decisions provide guidance on determining a pattern of care and deciding whether there should be a change to the shared care percentage. For example, in Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Another [2008] AATA 607, Senior Member Levy stated at [18]-[20]:
18. The essential decision must therefore be made in terms of s 59(1) of the Act, ie. the Secretary may determine the percentage of family tax benefit for each child which is to be paid to each parent. The Family Assistance Guide ("the Guide") is of some use conducting this evaluation. In particular, the Guide specifies that where the percentages or the care arrangements between the relevant parties is not agreed, then it is necessary to determine "a pattern of care". This is usefully done by adopting "either the number of nights in care ... or the hours of care for each FTB child. The percentage of care for each FTB child is then calculated and applied to the standard rate ..."
19. The application of s 59(1) and the Guide was amplified in Wade v Secretary, Department of Family and Community Services. The Court said that the purpose of the Act is to provide the proportion of the benefit to "... the person having the care of the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided by them ... The pattern of care is also used as the basis for calculation of the percentage ...".
20. It has been previously determined in this Tribunal that exactness in calculations or determinations of "day-to-day variations in that care" is not intended. Also, in Re Warne and Department of Families, Community Services and Indigenous Affairs, DP Hack held that a "broad brush basis" is an appropriate method of making decisions in relation to these provisions.
In Brightman and Secretary, Department of Family and Community Services and Another [2004] AATA 405, Member Allen stated at [27]:
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 evidence before the Tribunal as to the actual care arrangement for R, was limited to the oral evidence of NYSY and TQLN, which was vague at best, conflicting and disputed.
The Tribunal sadly in this case had no evidentiary proof on which to base the care arrangement for R. NYSY and TQLN have no court orders or parenting plan for R. NYSY and TQLN did not present to the Tribunal even a vague outline of when R is with each parent let alone a timeline for when R’s care arrangement has changed over time.
The Tribunal concurs with the Member at the AAT1 that both NYSY and TQLN have given different accounts to various decision-makers over time as to the actual care arrangement for R. However, the Tribunal differs from the AAT1 as it places no weight on the co-signed ‘Details of your child’s care arrangements’ form submitted by TQLN on 27 June 2022. The Tribunal does not rely upon this form for several reasons:
(a)the fact TQLN submitted the form supposedly 12 months after the care arrangement had changed;
(b)the form was signed by NYSY on 24 June 2022 and later by TQLN on 27 June 2022;
(c)the form claimed he had 60% care of R from 12 June 2021;
(d)previously on 11 May 2022 TQLN had claimed he had 71% care of R;
(e)TQLN has also claimed he had 80% care of R from 25 September 2020;
(f)TQLN then claimed he had 50% care of R from 31 January 2023, when R started school;
(g)TQLN’s evidence to the Tribunal was his claim could be substantiated by the email from Housing Choices Australia which he claimed corroborated he had 50% care of R from the time he moved into appropriate housing, however the email is dated 12 May 2020 and the records indicate TQLN was in the social housing unit from 28 June 2021.
The Tribunal placed no weight on the evidence from NYSY’s friend Ms SH as the letter appears to be a recount of what NYSY had advised her. The Tribunal places weight on the evidence of the Centre Director for [RN] ECL as both NYSY and TQLN had attested to their involvement with R whilst at the Centre. However, the letter from the Centre carries limited benefit as NYSY conceded at the hearing that the care arrangement had changed prior to June 2022 but no earlier than January 2022.

The Tribunal does not find fault with NYSY’s and TQLN’s inability to provide proof of the care arrangement for R or to be precise as to when the change occurred. The Tribunal appreciates most people are far too busy trying to survive to document their children’s lives to justify a care arrangement. The Tribunal appreciates that both NYSY and TQLN are single parents of small children trying to survive on limited income support in the midst of a cost-of-living crisis. The Tribunal is always perplexed by the fact parents in percentage care dispute are contesting who gets the income, losing sight of the fact the benefit is for their children.
The Tribunal, in the absence of other evidence, to be satisfied that a percentage could be established that corresponds with the actual care of R, determines that on the balance of probabilities the care provided by NYSY and TQLN now and into the future is 50/50. The Tribunal arrived at this determination by adopting Deputy President Hack’s "broad brush basis" as an appropriate method of making its determination based on a common sense approach to the evidence of both parties as to what has been happening in the past and what is intended to happen in the future.
When did the new pattern of care for R commence?
As outlined above there seems to have been no actual pattern of care for R on which the Tribunal can make an assessment of the actual care arrangements for R. The Tribunal is not in a position to try to arrive at a determination of nights or hours which R was in either parent’s care or indeed consider other issues such as who is meeting R’s financial needs.
The evidence before the Tribunal from both NYSY and TQLN is there is little to no agreement to the pattern of care for R. Regardless of this, both NYSY and TQLN impressed the Tribunal with their desire to provide the best care and support they could for R in an ongoing shared care arrangement.
As the AAT1 found, the oral evidence clearly indicates there had been a change in care arrangements for R from 2021 with TQLN increasing his percentage of care for R. Given the lack of any corroborating evidence, the Tribunal, as was the Member at AAT1, is left to make the correct or preferable decision of when a permanent change had taken place on an assessment of NYSY’s and TQLN’s oral evidence and information the Tribunal had obtained from Centrelink records.
The evidence from TQLN’s Centrelink records indicates he moved into stable accommodation where R could reside with him overnight from the end of June 2021. However, the Tribunal was not persuaded this was when R was with TQLN for 50% of the time, as both NYSY and TQLN confirmed it was NYSY who determined when and if R would be in his father’s care.
NYSY’s evidence before the Tribunal was that she accepted that the care arrangement for R had changed but there had not been a permanent change in the care arrangement prior to 2022. She argued this was as much to do with Covid-19 restrictions as anything else with Victoria experiencing restrictions and rolling lockdowns until 21 October 2021. NYSY’s evidence was she was willing to concede a permanent change in R’s care arrangement occurred in January 2022 but definitely not in 2021.
The Tribunal notes that as a result of the various determinations of the care percentage of R and the dates on which they apply, both NYSY and TQLN have incurred Centrelink debts. The Tribunal, arriving at a preferable decision in this matter, is guided by the policy articulated in the Guide that when making a shared care determination a decision-maker should minimise the possibility of a debt occurring.
The Department of Social Services, Social Security Guide at Topic 1.1.P.416: Principal carer - shared care states:
Change in existing shared care – different principal carer
Care should be taken when making a shared care determination, which will result in a change of principal carer, where a person is already receiving income support as a principal carer to minimise the possibility of a debt occurring for the period the decision is pending. Particularly where the current recipient has not made a false statement and has complied with the notification requirements relating to shared care, and the other carer is not reliant on a favourable determination to be the principal carer for the period before the date of determination.
Explanation: This is intended to avoid a debt being created for payments received before the determination is made.
Example: Janice is receiving PPS for Henry and has 100% care. The care arrangements change, so Janice has 40% care and her former partner, David, has 60% care. Janice notifies Centrelink on the last day of the 14-day notification of change requirement, after receiving payment for that entitlement period, which ended 2 days prior. Even though David is now the principal carer, he has not claimed PP and not reliant on income support.
A decision should be made that Janice remained the principal carer for the prior entitlement period, and not incur a debt for the period between the care arrangements changing and the new principal carer determination being made.
The Tribunal is mindful that given TQLN made his application for parenting payment 12 months after the fact, any determination was going to result in a debt for NYSY and any determination from this Tribunal which alters the current determination will result in TQLN incurring an increased debt.
The Tribunal considers on all the evidence that a permanent change in care arrangement for R did not occur in 2021 but on 1 January 2022. The Tribunal considers that TQLN was having increased care of R from July 2021, but it was as he described himself ‘random’ and not a pattern on which the Tribunal could consider a permanent change had occurred.
DECISION
Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and makes a decision in substitution that NYSY and TQLN both had 50% care of child R from 1 January 2022.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member

............................[sgd]............................................
Associate
Dated: 8 April 2024

Date of hearing: 14 March 2024

Applicant: Self-Represented

Other Party: Self-Represented

Advocate for the Respondent: Mr Tim Noonan

Solicitors for the Respondent: Services Australia

Date of hearing:	14 March 2024
Applicant:	Self-Represented
Other Party:	Self-Represented
Advocate for the Respondent:	Mr Tim Noonan
Solicitors for the Respondent:	Services Australia