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

This matter concerned a review of a decision by the Secretary of the Department of Social Services regarding the percentage of care for a child, R, between the child's parents, NYSY and TQLN. The dispute centred on when a change in the pattern of care, specifically a shift to a 50/50 split, commenced. The Administrative Appeals Tribunal (AAT) was tasked with determining the extent of actual care provided by each parent.

The primary legal issues before the Tribunal were to establish whether the pattern of care for child R had changed, and if so, to determine the corresponding percentage of care for each parent. The Tribunal needed to ascertain the date on which any change in the care arrangement commenced, particularly the transition to a 50/50 split, given that both parents accepted a change had occurred but disagreed on its timing.

The Tribunal considered the evidence provided by both parties, including emails and statements from various sources, and applied the principles outlined in the Department of Social Services' Family Assistance Guide regarding the establishment of a pattern of care and care periods. While acknowledging that the care arrangement had evolved over time, with TQLN's involvement increasing, the Tribunal found that the evidence did not support a permanent 50/50 care arrangement prior to 1 January 2022. The Tribunal concluded that TQLN's increased care before this date was "random" and did not constitute a settled pattern. Consequently, the Tribunal set aside the decision under review and substituted a new decision, finding that both NYSY and TQLN had a 50% care arrangement for child R from 1 January 2022.