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

[2015] AATA 743

PRPQ and Secretary, Department of Social Services (Social services second review) [2015] AATA 743 (24 September 2015)

Division	GENERAL DIVISION
File Number	2014/6528
Re	PRPQ
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT
And	VJHF
OTHER PARTY

DECISION

Tribunal	Senior Member A C Cotter
Date	24 September 2015
Place	Brisbane

The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the Mother had a care percentage of 90% and the Father had a care percentage of 10% for the Daughter and Son during the period 27 March 2013 to 17 September 2013.

.......................[.Sgd]................................................    

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – Family Tax Benefit –FTB – percentage of care – sets aside decision – remits the matter

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) ss 22, 59, 35B, 35P

CASES

Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159

SECONDARY MATERIALS

Family Assistance Guide 1999 (Cth)

REASONS FOR DECISION

Senior Member A C Cotter

24 September 2015

1. The Applicant[1] (“Mother”) and her former husband (“Father”), divorced in June 2008, after having separated three years earlier. They had two children, a daughter (“Daughter”), aged 16 at the time of the hearing, and a son (“Son”), now aged 14.[2]

   [1] Identifying names of the Applicant and Other Party, and members of their respective families, have deliberately not been used, for confidentiality reasons.

   [2] Exhibit 1, T Documents, T9, pages 103-108.

2. In November 2008, the Federal Magistrates Court made parenting orders in respect of the children, providing that each of the parents would have equal shared parental responsibility for them. The Mother and Father were each to have equal care of the children on a week-about basis unless agreed otherwise.[3]

   [3] Exhibit 1, T Documents, T6, pages 75-85.

3. In September 2013, the Mother completed a Family Assistance claim form, indicating that she had 100% care of the children since 27 March 2013.[4] Centrelink decided in March 2014 that the Mother had 100% care of the children and the Father had 0% care of them.[5] The Father sought a review of that decision.

   [4] Exhibit 1, T Documents, T 5, pages 46 and 48.

   [5] Exhibit 1, T Documents, T 14, page 148.

4. By the time an Authorised Review Officer (“ARO”) undertook a review of Centrelink’s decision in September 2014, the Child Support Agency (“CSA”) had already concluded (in May of that year) that the Mother and Father each had a care percentage of 50% from 18 September 2013 onwards. Conscious of the CSA conclusion, the ARO affirmed Centrelink’s decision, but only up until 17 September 2013.That effectively meant that the Mother was considered to have 100% care of the children from 27 March 2013 to 17 September 2013, and 50% care from 18 September 2013.

5. The Father sought a review of the ARO’s decision by the Social Security Appeals Tribunal (“SSAT”). The SSAT was not persuaded that the Mother’s assertions could be accepted in preference to the Father’s claims or the 2008 court order, and therefore concluded that each parent had a care percentage of 50% for the children during the period 27 March 2013 to 17 September 2013. The Mother now seeks a review of that decision.

   ISSUE FOR THE TRIBUNAL

6. The question I have to decide is what percentage of care did the Mother and Father each have of their children during the period 27 March 2013 to 17 September 2013.

7. Before I deal with that question, I set out below the key legislative provisions.

   THE LEGISLATIVE FRAMEWORK

8. The relevant legislation is A New Tax System (Family Assistance) Act 1999 (Cth) (“Act”).

9. A person may qualify for Family Tax Benefit (“FTB”) if he or she has an “FTB child”.[6] There is no doubt in the present case that the two children fall within that definition.

   [6] See s 22 of the Act.

10. A child can be an FTB child in respect of more than one person. Where, as in the present case, a child is an FTB child of more than one person who are not members of the same couple, s 59 of the Act provides that the amount of FTB payable to each person depends on the shared care percentage of each person. That requires the Secretary to determine the percentage of time the FBT child spent in the care of each person; in this case the Father and the Mother. Section 35B of the Act deals with the determination of percentages of care. Relevantly, subsection (2) provides that if the Secretary revokes an existing determination of an adult’s percentage of care for a child and is satisfied that there has been, or will be, a pattern of care for the child over a period (called the “care period”), such that the child was, or will be, an FTB child of the adult and at least one other individual (who is not a partner of the adult) for the whole or part of the care period, the Secretary is required to determine the adult’s percentage of care for the child during the care period. Subsection (3) provides that the percentage determined 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”.

11. Section 35P deals with the revocation of existing percentage of care determinations.

12. The policy for determining percentages of shared care is contained in the Family Assistance Guide 1999 (“Guide”). It provides that, where possible, the percentage to be applied in a 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 there is no agreement on the percentage of care, the decision maker is required to determine the care percentage based on the available evidence of the actual pattern of care.[7]  As to establishing a pattern of care, the Guide notes:

    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.[8]

    [7] See 2.1.1.25 of the Guide.

    [8] See 2.1.1.45 of the Guide.

13. It has often been said that a “broad brush” approach should be adopted in determining the

    pattern of care; the Guide accepts that no adjustment to FTB is warranted for minor variations in care arrangements.[9]

    [9] See Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159, [25] (Deputy President P E Hack SC).

    THE EVIDENCE

14. Both the Mother and Father appeared at the hearing and led evidence in support of their respective positions.

    The Mother’s Evidence

15. Oral evidence was given by the Mother, her sister and her sister’s husband (“brother-in-law”), and the Daughter. Each also made affidavits which were lodged with the Tribunal.

16. In her affidavit, the Mother stated that she had the children 100% of the time during the relevant period “apart from a couple of days here and there (which is stated in my diary)”.[10]  She exhibited extracts from a diary which she maintained at the relevant time. At the hearing, she explained that the arrangement that had been agreed between her and the Father was that he would have the children every Wednesday and Thursday and she would have them every Monday and Tuesday.[11] Every alternate week, one of them would have the children for the remainder of the week, so that on the “Father’s week”, he would have them from Wednesday to Sunday (five nights) and on the “Mother’s week”, she would have them five nights, from Friday to Tuesday. Variations were made from time to time to suit particular arrangements. The Mother used the diary to show each of the “Father’s weeks” and to identify those occasions on which he did not have the children when he was supposed to. According to her testimony, he did not have either or both of the children for most of the period.

    [10] Exhibit 2, Mother’s affidavit affirmed 9 April 2015, paragraph [3].

    [11] See Transcript of hearing, 27 July 2015, page 13, lines 30-46.

17. The Mother described an incident around February 2013 when the Father came to the home of her sister and brother-in-law where she and the children had been staying. An altercation between the Father and the brother-in-law ensued, which ultimately culminated in a Domestic Violence Order (“DVO”) being made on 27 March 2013 against the Father. After that incident, the Mother said that the children were traumatised and did not want to go to the Father for about a month.[12] Using her diary, she testified that the first time they went to the Father after the incident was 1 May. He and the Daughter had an argument, so the Daughter returned to the Mother the next day, while the Son stayed with the Father. The Daughter returned to the Father for the following day, before she and her brother both returned to the Mother for the weekend, even though it was “the Father’s weekend”.[13]

    [12] See Transcript of hearing, 27 July 2015, page 28, lines 17-21.

    [13] See Transcript of hearing, 27 July 2015, page 28, lines 27-46.

18. The Mother also gave evidence of an argument which the Daughter subsequently had with the Father. The Daughter was in the honours program at school and needed to focus on her studies. Because it was becoming too much for her to be carting her books from one place to the other, she told her father that she would only come and see him every second weekend. The Father told her that it was “all or nothing”, and that he did not want to have contact with her. That lasted until about 29 August. The Mother described that period as “a very bad time because there was lots of arguing going on between the Father and the children, and the children …didn’t want to go to the Father, so they hardly saw him.” She said he saw them for a “couple of days here or there”, and instanced day outings on which the Father took the Son.[14]

    [14] See Transcript of hearing, 27 July 2015, page 30, lines 3-23.

19. In cross-examination by the Secretary’s representative, the Mother agreed that for about two and a half weeks to three weeks in late August/early September, the Daughter stayed with her father.[15] She acknowledged that she did not have the children 100% of the time, and it was more like 90%.[16] Questioned further on the basis for that figure, she estimated that during the period, the Daughter would have been with the Father 23 days of the 180 days. She guessed the Son would have spent 10 to 15 nights with him, at the most.[17]

    [15] See Transcript of hearing, 27 July 2015, page 61, lines 34-43.

    [16] See Transcript of hearing, 27 July 2015, page 61, lines 1-5.

    [17] See Transcript of hearing, 27 July 2015, page 65, lines 5-26.

20. The Mother also gave evidence of the lack of financial support she received from the Father in respect of the children. While he paid child support of $411.00 a month (combined for both children), she said that the extra time for which she had the children beyond the agreed arrangements meant that she was bearing an unfair financial burden, in having to meet their additional daily living expenses.[18]

    [18] See Exhibit 2, Mother’s affidavit affirmed 9 April 2015, paragraphs [6], [8], [9] and [11].

21. The sister gave evidence that since the separation, she had been very involved in the lives of the children.[19] She sees them weekly and said that she and her husband provide emotional and financial support.[20]

    [19] See Exhibit 4, sister’s affidavit affirmed 7 April 2015, paragraph [2].

    [20] See Exhibit 4, sister’s affidavit affirmed 7 April 2015, paragraph [3].

22. She testified that the Mother and the children lived with her and her husband from December 2012 to June 2013; she said that she witnessed firsthand that the Father did not have the children in his care 50% of that time.[21]

    [21] See Exhibit 4, sister’s affidavit affirmed 7 April 2015, paragraph [4].

23. She also described the incident at their home which she said happened in March 2013, when the Father arrived uninvited and physically assaulted her husband when he was asked to leave. A DVO was subsequently obtained against the Father, protecting the Mother and her two children, as well as the sister, her husband and their daughter. From about that time, she said the children hardly saw their father for over five to six months.[22] Prior to the incident, she said they visited their father “every second weekend”.[23]

    [22] See Exhibit 4, sister’s affidavit affirmed 7 April 2015, paragraph [5].

    [23] See Transcript of hearing, 27 July 2015, page 94, line 46.

24. The sister confirmed the Mother’s statement that the children had lived with the latter 100% of the time apart from “a couple of days here and there” during the relevant period.[24]

    [24] See Exhibit 4, sister’s affidavit affirmed 7 April 2015, paragraph [10].

25. Exhibited to the sister’s affidavit were 29 pages of photographs which were used to cross-refer to particular dates in the Mother’s diary.

26. The brother-in-law confirmed that the Mother and children lived with him and his wife for six months to June 2013.[25] He also gave evidence of the incident which led to the granting of the DVO against the Father[26] and confirmed that, after that incident, the children were “shaken up” and requested to stay away from the Father’s care for some time.[27]

    [25] See Exhibit 5, affidavit of brother-in law affirmed 28 March 2015, paragraph [5].

    [26] See Exhibit 5, affidavit of brother-in law affirmed 28 March 2015, paragraph [7].

    [27] See Transcript of hearing, 27 July 2015, page 17, lines 17-20.

27. During cross-examination by the Father, the brother-in-law said that in the period the Mother and children lived with him and his wife, the children spent the majority of time with the Mother, especially after the incident. He could not give a percentage, but said that while the children saw the Father “a few times here and there” in that period, he thought the Mother had 100% care of them.[28]

    [28] See Transcript of hearing, 27 July 2015, page 18, lines 28-47.

28. After the Mother and the children left in June, the brother-in-law said that he would still see them regularly. He saw the Daughter two, three, or sometimes even four, times a week because he was tutoring her. Sometimes, she would stay over because she had an assignment to do and he would help her with it. The Son would visit about once a week, usually on the weekend, and would sometimes go to church with them.[29] While the brother-in-law did not believe that the arrangement ever returned to a 50/50 split, he acknowledged that the children saw the Father “here and there”, sometimes on day trips. The Son would sometimes stay with the Father overnight.[30]

    [29] See Transcript of hearing, 27 July 2015, page 21, lines 20-32.

    [30] See Transcript of hearing, 27 July 2015, page 22, lines 1-5.

29. The Daughter gave evidence to the effect that she did not spend equal time with her parents and that she had lived mostly with the Mother since her parents’ separation.[31] She could remember only a few occasions since the separation when she and her brother stayed the full five days with the Father.[32] That was because the Father works 12 hour shifts and he could not find anyone to look after them when he was on night shift; she and her brother preferred to be with their mother rather than someone else if their father had to work.[33] The Father’s mother (“paternal grandmother”), had looked after them when they were younger, but the Daughter said that she usually went on six month holidays to Chile, so they hardly saw her.[34] The Daughter also denied that in the relevant time she saw her grandmother regularly, saying it was more like “once in a blue moon”.[35]

    [31] See Exhibit 3, Daughter’s affidavit affirmed 28 March 2015, paragraphs [4] and [5].

    [32] See Exhibit 3, Daughter’s affidavit affirmed 28 March 2015, paragraph [6].

    [33] See Exhibit 3, Daughter’s affidavit affirmed 28 March 2015, paragraphs [7] and [8].

    [34] See Exhibit 3, Daughter’s affidavit affirmed 28 March 2015, paragraph [9].

    [35] See Exhibit 3, Daughter’s affidavit affirmed 28 March 2015, paragraph [15].

30. Finally, the Daughter testified that while she spent much more time with her mother,[36] she did spend about three weeks with her father during the relevant period, around her birthday in September 2013.[37] Apart from that, she estimated that she had spent about four nights with her father in the relevant period.[38]

    [36] See Exhibit 3, Daughter’s affidavit affirmed 28 March 2015, paragraph [12].

    [37] See Exhibit 3, Daughter’s affidavit affirmed 28 March 2015, paragraph [14].

    [38] See Transcript of hearing, 27 July 2015, page 85, lines 15-28.

    The Father’s evidence

31. Statutory declarations by the Father and the paternal grandmother were lodged. They also gave oral evidence.

32. The Father exhibited a number of photographs, notably from his birthday in 2013 (the day before the DVO was made and the relevant period commenced) where he was shown celebrating with his children, and of outings with his son.[39] They were intended to disprove some of the entries in the Mother’s diary.  

    [39] See Exhibit 6, Father’s statutory declaration, declared 8 April 2015.

33. The Father claimed that the Mother’s application was false and made for financial gain.[40]

    [40] See Exhibit 7, Father’s statutory declaration, declared 9 July 2015, paragraphs [4], [5] and13].

34. He highlighted the passage from the Daughter’s affidavit concerning the three weeks she spent with him during the relevant period and around the time of her birthday, to show that the children spent more than a few days with him during the relevant time and to reject the claim that they spent 100% of the time with the Mother.[41] He said that the only change to the care arrangements was that he and the Daughter had a fight in June, after which she did not come to him for two months (the equivalents of four of “his” weeks). He said that the three weeks she spent with him around September made up for those weeks; otherwise, the 50/50 care arrangements operated. The Father also expressly noted that none of the Mother’s evidence dealt with the Son’s care arrangements, which he said were unchanged throughout.[42]

    [41] See Exhibit 7, Father’s statutory declaration, declared 9 July 2015, paragraphs [7] and [8].

    [42] See Exhibit 7, Father’s statutory declaration, declared 9 July 2015, paragraphs [9].

35. The paternal grandmother denied that the Mother had 100% care during the relevant period, and maintained that the 50/50 arrangements remained unchanged.[43] She exhibited a number of photographs of family events since the separation, showing the children’s contact with the Father and his family.[44] She said that the Son was still very close to the Father and his family and that they spent a lot of time with him.[45]

    [43] See Transcript of hearing, 28 July 2015, page 118, lines 35-47.

    [44] See Exhibit 8, paternal grandmother’s statutory declaration, declared 18 June 2015, paragraph [9].

    [45] See Exhibit 8, paternal grandmother’s statutory declaration, declared 18 June 2015, paragraph [7].

36. She confirmed that when her son had had night shifts (which she estimated to be every three to four weeks[46]), she would pick the children up from school and take them to his house and stay until he got home. Some nights she would stay the night and take them to school the next day.[47] She stated that she would visit her son every week, or he would visit her, and that she would see the children when they were with him.

    [46] See Transcript of hearing, 28 July 2015, page 135, lines 24-30. I note that the Father corrected this, saying he had a night shift every five weeks: see page 135 (lines 45-46) and page 136 (lines 1-2).

    [47] See Exhibit 8, paternal grandmother’s statutory declaration, declared 18 June 2015, paragraphs [3] and [4].

37. Although he did not call them to give evidence, the Father had previously submitted unsworn statements from his brother and nephew, both affirming that since the order in 2008, the children had been spending their time equally between the Mother and Father.[48]

    [48] Exhibit 1, T Documents, T6, pages 86 and 89.

    CONSIDERATION

1. As I said earlier, the issue I have to determine is the percentage of care which the Mother and Father each had during the relevant period. Those percentages are to correspond with the actual care of the children that each parent had during the period. Absent agreement, I have to determine the actual pattern of care on the basis of the evidence available.

2. There is an enormous divergence between the two versions. While some aspects of the competing evidence may be able to be reconciled, it is obvious that, on the ultimate question of percentage of care, they cannot both be correct. Before I deal with that issue, there are a few observations I should make.

3. First, the events which are the subject of these proceedings occurred some two years ago, give or take a few months. Apart from some particular events or occurrences which distinguish themselves and stand out, such as birthdays or the incident between the Father and the Mother’s brother-in-law, the evidence invariably turns to a consideration of daily and routine activities. It is only natural that after such a lengthy period of time, one’s memory about those unexceptional - even mundane - matters, necessarily fades. It is therefore not unusual to find differing, but genuinely held, recollections of the same topic; just because there is a disagreement, perhaps even a strong one, does not necessarily mean that one or other of the parties is being deliberately untruthful.

4. Second, it is important to remember that, generally, patterns of care are based on the number of nights where an individual has overnight care, since they are regarded as having had care for the child for that day.  While recollections, or even photographs or film, of particular events are of use in identifying where a child was on a particular day and with whom they were engaged, they are not necessarily conclusive of who actually had care for them on that day for the purpose of FBT entitlement. The same can be said of day trips or outings.

5. Finally, I note the Mother’s concession during cross-examination by the Secretary’s representative, that when she spoke of 100% care, she was not intending to convey that the children were with her the entire period; rather, she said that it was something less than that, perhaps in the order of 90%, although she had not undertaken an estimate.  When questioned further on that, she used her diary to estimate that the Daughter was with the Father for about 23 days during the period. On the other hand, the Son had more outings and day trips with his father, but stayed with him on fewer nights than the Daughter did (again, using her diary, the Mother estimated between 10 and 15 days over the period).

6. During the hearing, much attention was placed, understandably, on the Mother’s diary and the various photographs produced by witnesses on both sides.

7. The Father was critical of the Mother’s diary on a number of grounds. Relying on comments made by the Mother at the SSAT hearing, he suggested that the diary might not have been contemporaneous, but rather prepared sometime after the events; he pointed to some comments which, on their face, suggested they had been added at a later time. He was also critical of the diary because the extracts exhibited to the Mother’s affidavit were incomplete, in that they only showed “his” weeks and not the entire period. The reliability and accuracy of the diary was also questioned by the Father, both because of internal inconsistencies and because it failed to record some key details favourable to him.

8. While it is true that the Mother’s affidavit exhibited only extracts from the diary, it is important to record that she had the original diary with her and produced it for inspection. The Father inspected the diary during the lunch adjournment on the first day of hearing and I also examined it. The Mother testified that she had always kept a diary and that it was used to record different daily activities, and was compiled contemporaneously. From my inspection of the original, it was apparent that the diary was used to record a variety of information unrelated to the issues under consideration here: medical and dental appointments, hairdressing appointments, social events and their RSVP dates are recorded, as well as dates when bills are due. It also records the weekends on which the Father was scheduled to have the children. In short, it contained a variety of entries dealing with the everyday, mundane activities of daily life. Absent cogent evidence to the contrary, I accept that it was an authentic document.  

9. That said, it is true that some entries may have been added at a later time rather than on the date for which they are recorded. An example is the entry for 27 March 2013, being the date the DVO was obtained against the Father. It records the separate entries “court” and “got order”, as well as the asterisked notation, “This was the last day [the Father] had kids.”[49] That last statement was clearly entered some time later, which the Mother acknowledged. Importantly, however, that is clear on its face. There can be no suggestion that it was written with the intention to mislead. A diary, especially of the type I described earlier, is a “living” document and its entries need to be read in that context.

   [49] Exhibit 2, Mother's affidavit affirmed 9 April 2015, page 1 of Diary

10. As the original diary was readily produced for inspection, I do not think any criticism can be made that only selected extracts were exhibited to the Mother’s affidavit.  In her oral evidence, she made it clear that the extracts related to the “Father’s weeks”; there can be no suggestion that she was attempting to mislead.

11. As to the diary’s accuracy and reliability, the Father highlighted the fact that it was incomplete in several respects, in that it failed to show dates on which the Daughter was staying with him or outings he had with the Son. For example, it was not disputed that around September 2013, the Daughter stayed with the Father for about three weeks. That was not recorded at all in the diary. That raised a question about other entries where no comment was made as to whether the children were with the Father or not. I raised those occasions (namely, the weekends of 10 and 11 August and 24 and 25 August) with the Mother, who testified that the Father did not have the children on those dates.

12. Similarly, some entries arguably fail to accurately reflect what happened on a particular date. For example, the Father established, through photographs and a letter from the venue, that he and the Son attended a shooting range on 1 June 2013. However, the diary entry for that day says: “[Father’s] w/e. did not take kids”. While it is true that that entry does not provide a comprehensive description of what happened on that day, the Mother would nevertheless say that her entry was accurate for what she was recording, namely overnight stays with the Father.

13. While I understand the Father’s criticisms, the diary needs to be viewed in a personal or domestic context, rather than in a business or commercial one; the level of precision and degree of reporting required of a work log, schedule or itinerary for business or regulatory purposes is far removed from the expectations one might have of an everyday household diary. 

14. I am also conscious of the fact that the Mother was able to corroborate, or at least support, a number of entries in her diary by cross-referencing them with photographs taken in a variety of different contexts during the relevant period. Although they are by no means conclusive, they nevertheless provide additional support to what is recorded in the diary. They also provide a cohesive, and consistent, link to the testimony of the Mother’s other witnesses, particularly the Daughter, who could speak directly to the photographs and the occasions on which they were taken. She also gave clear and unequivocal evidence as to the number of days (about four) she spent with her father outside the September stay of three weeks.

15. The Mother’s evidence was also reinforced by the evidence of her sister and brother-in-law. As the Mother and her children had lived with them for the first few months of the relevant period, they were able to speak directly of their observations of the children’s contact with the Father and the amount of care he provided.  Even after the Mother and her children moved into their own accommodation, the sister and brother-in-law maintained regular and substantive contact, particularly with the Daughter who was tutored by the brother-in-law, and who stayed with them overnight on occasions.

16. In support of his position, the Father pointed to different occasions when he was with one or both of the children, such as his birthday and the outing with the Son to a shooting range. While there is no doubt that those events occurred, they are not conclusive, of themselves, that the Father had actual overnight care of the children on those days. In fact, the Daughter specifically recalled her brother returning home, quite excited from the shooting range outing he and the Father had been on that day.[50]

    [50] See Transcript of hearing, 27 July 2015, page 80, lines 1-2.

17. While the evidence of the children’s paternal grandmother was supportive of the Father’s case, the occasions on which she could directly speak about overnight care by the Father were limited to the times she was called on to assist when her son’s work shift prevented him from being home in the evening or later at night. Given that the Father’s night shifts were every five or six weeks, that would have meant that during the relevant period, the grandmother would have been called upon, at most, four or five times during the relevant period (depending also on whose “week” it was).

18. The paternal grandmother also produced a number of photographs, but they were not confined to the relevant period. In any event, as I stated earlier, photographs, in themselves, are not necessarily conclusive as to who had overnight care on a particular day.

19. Neither the Father’s brother, nor his nephew, were called as witnesses at the hearing, despite their having previously given unsworn statements. Those statements, however, were general in nature, rather than specifically addressing the period in question. They did not take the matter any further.

20. Having regard to the above matters, I favour the Mother’s version of events. It was supported by a largely contemporaneous, written diary, reinforced by the Daughter’s testimony and the photographs to which she spoke. That evidence was further supported by the consistent and direct evidence of the sister and brother-in-law, who had regular and direct contact with the children (particularly the Daughter) over the period.

21. I therefore accept the Mother’s estimate that during the relevant period, the Daughter spent approximately 23 days with her father, while the Son spent about 10 to 15 days with him during the same period. I calculate that the relevant period was 175 days in duration. Based on that figure, the Daughter would have spent approximately 13% in the Father’s care and the Son, about 8.6%.  Acknowledging that these are at best estimates and adopting a “broad brush” approach, I find that the children were in the Mother’s care for 90% of the relevant period, with the Father having care for them 10% of that period.

    CONCLUSION

22. The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the Mother had a care percentage of 90% and the Father had a care percentage of 10% for the Daughter and the Son during the period 27 March 2013 to 17 September 2013.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

......................[Sgd]..................................................

Associate

Dated    24 September 2015

Date(s) of hearing	27 and 28 July 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services
Joined Party	In person