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

QWPT and Secretary, Department of Social Services (Social services second review) [2021] AATA 878 (13 April 2021)
Division:GENERAL DIVISION
File Number: 2019/4661
Re:QWPT
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndWNHJ
OTHER PARTY

DECISION
Tribunal:Member K. Parker
Date:13 April 2021
Place:Melbourne

The Tribunal sets aside the Decision Under Review and in substitution, decides as follows:
(a)under s 35C(3) of A New Tax (Family Assistance) Act 1999 (Cth) (the Act), during the Interim Period from 17 December 2017 to 16 July 2018:
(i)the first percentage of care determination under subsection 35C(3) of the Act (that corresponds with the extent of care that QWPT and WNHJ should have had, or is to have, under the care arrangement during the care period) is that QWPT had 44% care, and WNHJ had 56% care of the Children; and
(ii)the second percentage of care determination under subsection 35C(4) of the Act (that corresponds with the actual care that the Tribunal is satisfied that QWPT and WNHJ would have had during the care period if the action referred to in paragraph (1)(c) had not succeeded) is that QWPT had 29% care and WNHJ had 71% care of Child A, and QWPT had 1% care and WNHJ had 99% care of Child B;

(b)after the end of the Interim Period, the Existing Care Percentage is revoked on 17 July 2018 under s 35P of the Act, and a new care percentage determination is made by the Tribunal as follows:
(i)QWPT had 29% care and WNHJ had 71% care of Child A as from 17 July 2018 to the present time; and
(ii)QWPT had 1% care and WNHJ had 99% care of Child B as from 17 July 2018 to the present time.

...............[sgd]........................................................
Member K. Parker
Catchwords
CHILD SUPPORT – review of care percentage determinations for the purpose of family tax benefits – actual care varied from shared care arrangements prescribed in Court orders – whether interim period under s 35C applied – whether Applicant took “reasonable action” to seek compliance by Other Party with Court orders –some conflicting evidence of extent of actual care – nomination of relevant “care period” by which to assess extent of actual care – comparison of different care records – decision under review set aside – care percentage determinations revoked after interim period ended – new care percentage determination made to reflect actual care
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
Family Violence Protection Act 2008 (Vic)
Secondary Materials
Family Assistance Guide (Guide) - Refer Using the Family Assistance Guide | Family Assistance Guide (dss.gov.au)
REASONS FOR DECISION
Member K. Parker
13 April 2021
INTRODUCTION

The Applicant, QWPT, and the Other Party, WNHJ, are the separated parents of three children.[1] Two of the children were born in 2001 and 2003. The Tribunal will refer to those two children as Child A and Child B respectively, or collectively as the Children.
[1] The names of the Applicant and Other Party have been replaced with pseudonyms to protect the confidentiality of the Applicant, Other Party and their children.
This application seeks review of a determination made about the percentages of care of the Children as from 16 December 2017, by QWPT and WNHJ respectively, for the purpose of family tax benefit (FTB) payments under A New Tax System (Family Assistance) Act 1999 (the Act).
BACKGROUND
Centrelink records lodged with the Tribunal show that a child support care percentage determination was made to the effect that QWPT has 35% care and WNHJ has 65% care of the Children as from 27 May 2015.[2] This determination was reviewed by a child support payments objections officer on 19 August 2016 and affirmed.[3]
[2] The Respondent has lodged two sets of documents with the Tribunal which the Tribunal will refer to as the T-Documents and ST-Documents. Refer ST-Documents ST4/89 & 90.
[3] Refer T-Documents T12/41.
On 17 July 2017, a parenting order was made by the Federal Circuit Court of Australia (Court) prescribing care arrangements for the Children (Court Orders).[4] On the same day, the care percentage of QWPT and WNHJ for the purpose of FTB was recorded on Centrelink’s computer system to reflect the care arrangements in the Court Orders, to the effect that QWPT had 44% and WNHJ had 56% care of the Children (Existing FTB Care Percentage Determination).[5] This decision was reviewed and affirmed by an Authorised Review Officer (ARO) on 23 March 2018. The ARO’s decision was reviewed and affirmed by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 13 July 2018.[6]
[4] Refer T-Documents T3/6-13.
[5] Refer T-Documents T16/66 & 67 and ST-Documents ST4/89 & 90.
[6] Refer T12/41.
On 7 June 2018, QWPT lodged a contravention application with the Court seeking to enforce the care arrangements in the Court Orders on the basis of an assertion made by QWPT on the application form that the Children did not attend QWPT’s house (on various dates between 16 January 2018 and 7 June 2018), and that WNHJ would not discuss those absences, provide uniforms or pay fees.[7] In an affidavit by QWPT sworn on 7 June 2018, QWPT stated that she had been undermined by WNHJ and could not afford to go to Court which is why she had “settled prematurely under the advice of the financial counsellor”.[8] QWPT also stated that her lawyer required further payment of fees to proceed, but she was in debt, so she could not return to Court. QWPT stated that “Mediation tells me that “the Father does not respond”.[9]
[7] Refer T-Documents T4/14 – copy of Contravention Application filed by QWPT on 7 June 2018.
[8] Refer T-Documents T5/25.
[9] Ibid.
On 2 January 2019, QWTP advised the Child Support Agency (CSA) of a change of care. The CSA’s file note of this conversation is recorded as follows (emphasis added): [10]
She went onto(sic) advise how her 2 eldest children left her care as of Christmas day and she did not expect to gain care of them back.
She explained in detail of the fact the front door was slammed her face by her ex-partner and family.
I attempted to clarify the information around the 2 eldest children leaving her care – she confirmed that her youngest is with her now and then advised she had had care of [Child B] since 2015. She then advised she had the children over the new year.
…
Again attempted to confirm when the children left her care – she then proceeded to advise me that she was refusing to verify the information due to the fact she didn’t trust me and she advised I would make a legislation based decision.
She threatened to sue me if I granted the father 100% care.
…
[10] Refer T12/44.
Subsequently, a representative of the CSA contacted WNHJ on 12 February 2019. He provided details of the care of the Children and the date of the change event. The Tribunal notes the record of this conversation:[11]
Contacted WNHJ to progress the care change.
Questioned the percentage of care for [Child A] as the calculations don’t add up.
Confirmed the nights of care [QWPT] has had since the DOE – 16/01/2017…
[11] Refer ST3/87.
The dates noted in this record were 24 December 2017, 9 to 14 February 2018 (inclusive), 9 to 14 and 23 to 31 March 2018, 1 to 6 and 20 to 25 April 2018, 4 to 9 and 17 to 22 May 2018, 1 and 29 June 2018, 4 to 6 and 20 to 25 July 2018, 3 to 8 and 17 to 22 August 2018, 3 to 5 and 14 to 19 and 23 to 28 September 2018, 12 to 17 and 26 to 28 October 2018, 9, 10 and 23 to 28 November 2018 and 7 to 12 December 2018. They were stated to total 106 nights over a 12-month period.[12]
[12] Refer ST3/87-88.
The CSA contacted QWPT to ascertain if she agreed with those details or whether she would like to provide alternative details. The records show that QWPT did not do so. Consequently, the CSA accepted the details as provided by WNHJ and on 20 February 2019, the CSA notified QWTP and WNHJ that a further care percentage determination had been made to the effect that:[13]
(a)QWPT had 30% care and WNHJ had 70% care of Child A as from 16 December 2017; and
(b)QWPT had 2% and WNHJ had 98% care of Child B as from 16 December 2017 (the CS Care Percentage Determination).
[13] Refer T-Documents ST5/91-94.
On 22 February 2019, Centrelink sent a “Your Family Assistance” notice to QWPT recording, for the purpose of FTB, that she had 30% care of Child A and that Child B was no longer in her care (FTB Care Percentage Determination).[14]
[14] Refer ST6/98.
Subsequently, QWPT sought review of the FTB Care Percentage Determination by an ARO.[15]
[15] Refer T17/70.
On 28 March 2019, an ARO found that QWPT had 30% care of Child A and 2% care of Child B (and therefore, no longer considered an “FTB child”). Based on those findings, the ARO affirmed the FTB Care Percentage Determination (ARO Decision).[16] In the ARO’s review notes, the ARO recorded that QWPT claimed that the care of the Children was happening “in line with” the Court Orders. However, the records indicated that later in the conversation, QWPT told the ARO that the care was not happening in line with the Court Orders. QWPT told the ARO that she considered that the Court Orders “should be reflected” [in the care percentage determination]. The ARO explained to QWPT that the actual care would be relied upon for FTB and child support purposes.[17]
AAT “first review”
[16] Refer T12.
[17] Refer T12/40-41.
On 5 April 2019, QWPT lodged an application seeking an AAT “first review” of the ARO Decision by the AAT1.[18] The AAT1 affirmed the ARO decision (Decision Under Review).
AAT “second review”
[18] Refer T-Documents T2.
On 31 July 2020, QWPT applied to the General Division of the Tribunal (this Tribunal) for an AAT “second review” of the Decision Under Review. Before making its decision, the Tribunal considered the written submissions and evidence lodged by all parties. Without limitation, those submissions included the Respondent’s statement of facts, issues and contentions and its submission lodged on 22 December 2020 regarding limitations upon the Tribunal’s decision-making authority. The Tribunal also considered the detailed written submissions lodged with this Tribunal by QWPT on 20 January 2020 and her earlier written submissions lodged with the AAT1 on 19 June 2019.
ISSUES
In order to decide whether the Decision Under Review was the correct or preferable decision, the Tribunal must consider whether the Existing FTB Care Percentage Determination should have been revoked and the New FTB Care Percentage Determination made in its place.
If the Tribunal finds that there was a change in care, following which the care diverged from the arrangements set out in the Court Orders, the Tribunal must also consider whether the care percentages as prescribed in the Court Orders should have been applied when calculating FTB for an interim period under s 35C of the Act. This will require the Tribunal to consider whether QWPT had taken “reasonable action” to seek compliance by WNHJ with those Court Orders from the date of the change in care until the end of the maximum interim period that might apply under s 35L of the Act.
LEGISLATIVE FRAMEWORK
Provisions relating to care percentage determinations for the purpose of FTB
Eligibility provisions
Schedule 1 of the Act contains a Rate Calculator by which the annual rate of FTB is calculated. To be eligible for FTB, a person must have at least one “FTB child” in their care.
Section 25 provides that a child will not be taken to be an “FTB child” of an individual if their percentage of care is less than 35%.[19] If the individual’s percentage of care is at least 35% then the child is taken to be an “FTB child” of that individual for the purposes of s 22, on each day in that period, regardless of whether the child was in that individual’s care on that day.[20]
[19] Refer s 25 of the Act.
[20] Refer s 22(7) of the Act.
Clause 11 of Schedule 1 provides that a person who has an “FTB child” who is cared for by more than one adult, will have their FTB based on their care percentage of that child as determined under the Act.
Section 59(1) of the Act provides that an individual has a shared care percentage under that section for their FTB child if the Secretary has determined a percentage of care of the child during the care period and that percentage is at least 35% and not more than 65%.
Section 59(2) of the Act provides that an individual’s shared care percentage for the FTB child is the relevant percentage specified in Column 2 of the table below:

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%

Determination of a percentage of care

Section 35B of the Act provides as follows:
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.
Revoking a percentage of care
There are certain circumstances when the Secretary must revoke an individual’s percentage of care and other circumstances when the Secretary has a discretion whether to do so.
Section 35P of the Act sets out the circumstances in which a determination of an individual’s percentage of care for an FTB child must be revoked:
(1) If:
(a) a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and
(b) if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and
(c) the Secretary or the 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
(d) 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;
the Secretary must revoke the determination.
Note: Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) Each of the following is a percentage range:
(a) 0% to less than 14%;
(b) 14% to less than 35%;
(c) 48% to 52%;
(d) more than 65% to 86%;
(e) more than 86% to 100%.
(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 35Q of the Act sets out the circumstances in which a determination of an individual’s percentage of care for a child may be revoked, as follows:
(1)       If:
(a) a determination of an individual’s percentage of care (the existing percentage of care) for a child has been made under section 35A or 35B; and
(b)if section 35C or 35D applied in relation to the individual – the interim period for the determination has ended; and
(c) the Secretary or the 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
(d) 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
(e)       section 35P does not apply;
the Secretary may revoke the determination.
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) If the Secretary revokes the determination, the revocation 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.
The effect of these provisions is that provided any “interim period” under s 35C has ended, if there is a change in care by QWPT and WNHJ of either Child A or Child B and the new percentage of care is not in the same percentage range as set out in s 35P(2) (reproduced in the paragraph above) as the existing care percentages or their individual “shared care percentage” under s 59(2) of the Act would change, the Tribunal must revoke the existing care determination and make a new care determination. If there is a change of care and their individual percentages of care are different from their existing percentages of care but in the same percentage range or they have the same “shared care percentage” under

s 59(2), the Tribunal has a discretion whether to revoke the existing shared care percentage determination. Once the existing care percentage determination is revoked, a new shared care percentage determination can be made.
Determination of percentages of care
The first step when determining a new percentage of care under the Act involves a consideration of whether there has been a “pattern of care” for the purpose of s 35B of the Act. The term “care” is not defined under the Act. However, s 35J applies when determining the “actual care” and “extent of care” of an FTB child.

Section 35J provides:
Working out actual care, and extend 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 purpose 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.
Care period
The phrase “care period” is not defined by the Act. However, policy guidance is provided as to what period should be taken as the care period under the Family Assistance Guide (Guide).[21] Specifically, paragraph 1.1.C.100 of the Guide states (emphasis added):
[21] Refer Using the Family Assistance Guide | Family Assistance Guide (dss.gov.au)
1.1.C.100 Care period for FTB assessments
Definition
The term 'care period' is used in relation to assessing shared care for the purposes of FTB.
The care period for working out the percentage of care provided by an adult:
·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 (2.1.1.45) changes, and
·ends when there is a subsequent change in care.
Explanation: A care period of 12 months from the commencement of the care arrangements will generally be used where the care arrangements are ongoing. The same care arrangements will be assumed to apply for subsequent 12 month periods, unless otherwise advised. If there is no agreed ongoing pattern of care and the care arrangements only apply to a period shorter than 12 months, a one-off shorter care period may be determined.
Interim period under s 35C
Under the Act, if the care arrangements prescribed in family court orders are not complied with by one parent, and the other parent takes “reasonable action” to ensure compliance, percentages of care which reflect the level of care as prescribed in those court orders will be applied when calculating FTB but for an interim period only. In this regard, s 35C of the Act provides as follows:
35C Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1)       This section applies in relation to an individual (the adult) if:
(a)       a care arrangement applies in relation to a child; and
(b) the Secretary is satisfied that the actual care of the child that the adult has had, or will have, during a care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil); and
(c) an individual who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
Note: This section does not apply in certain circumstances, see section 35F.
2   percentages of care in relation to the adult
(2) Subject to subsection (5), the Secretary must determine, under section 35A or 35B, 2 percentages of care in relation to the adult.
(3) The first percentage of care is to be a percentage that corresponds with the     extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil).
(4)       The second percentage of care is to be:
(a)       if section 35A applies in relation to the adult—0%; or
(b) if section 35B applies in relation to the adult—a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed.
Single percentage of care in relation to the adult
(5) If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may determine, under section 35A or 35B, a single percentage of care in relation to the adult.
(6)       The single percentage of care is to be:
(a)       if section 35A applies in relation to the adult—0%; or
(b) if section 35B applies in relation to the adult—a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed.
Section 35L sets out the maximum number of days that the interim period percentages of care may be applied, and this will be either 52 weeks after the date of effect of the Court Orders or 26 weeks after the change of care event, whichever occurs last.
CONSIDERATION
Change of care on 16 December 2017
Centrelink was first notified by QWPT that there had been a change in the care of the Children (see paragraph [6] above). QWPT refused to provide the date upon which this change took place. The same enquiry was made of WNHJ. Thereafter, the date of 16 December 2017 was recorded on Centrelink’s system as the day upon which this change of care took place.
Subsequent to the initial notification of the change of care as referred to above, QWPT has at times acknowledged that there had been a change of care. For instance, as set out in paragraph [5] of these Reasons for Decision and based on QWPT’s affidavit attached to her application lodged to initiate the contravention proceedings, and also by the dates recorded in QWPT’s Care Record, QWPT specifies various dates during 2018 when WNHJ had the Children in his care in contravention of the Court Orders. However, Centrelink’s records show that at other times, QWPT either refused to confirm or deny whether there had been a change in care, or those records show that she would claim that there had been no change in care and that the Court Orders had been adhered to. Considering those matters, the Tribunal regards QWPT’s evidence to be inconsistent and therefore, unreliable.
For this reason, the Tribunal prefers the evidence of WNHJ that on 16 December 2017, a change in care of the Children took place. The Tribunal finds that there was a change of care of the Children by QWPT and WNHJ on 16 December 2017.
Interim period under s 35C
In this application, the evidence revealed that the change of care of the children took place on 16 December 2017 when QWPT and WNHJ ceased caring for them in accordance with the care arrangements prescribed under the Court Orders. Accordingly, the Tribunal must consider whether s 35C of the Act applies in this case, depending on whether the Tribunal is satisfied that QWPT took “reasonable action” after 16 December 2017 to ensure compliance by WNHJ with the Court Orders.
If the Tribunal concludes that s 35C applies, s 35L provides that the maximum period that any interim period may extend for, in the circumstances of this case, is 52 weeks after the date that the Court Orders took effect (because this date is later in time than 26 weeks after the date of the change in care, which would fall in June 2018). The Court Orders took effect on 17 July 2017. This means that any “interim period” under s 35C would commence on 17 December 2017 (the day after the change of care date) and would end no later than 16 July 2018.
At the hearing, the Tribunal sought clarification from both parties as to what action had been taken by QWPT in relation to the change in care and non-compliance with the Court Orders. QWPT’s position, as best as the Tribunal could ascertain from the documents lodged in this matter, was that she had pursued (unsuccessfully) both mediation and contravention proceedings against WNHJ in the Federal Circuit Court (Contravention Proceedings).
The Contravention Proceedings were lodged by QWPT on 7 June 2018. The Tribunal notes that QWPT had allowed six months to lapse prior to lodging the Contravention Proceedings. Given the sensitive nature of the family disputation that had taken place in December 2017 and the months to follow, the Tribunal does not consider this to be an unreasonable delay by QWPT before she took the step of lodging that proceeding. The documents before the Tribunal included reports of QWPT’s attempts to discuss the non-compliances by WNHJ with the Court Orders (see paragraph [5] of these Reasons for Decision). WNHJ appeared to take a view that the children should decide where they wished to stay, and he would support the Children in their decision and not tell them to do otherwise.
At the hearing, the Tribunal sought further information about the status of the Contravention Proceedings. The Tribunal notes that on 17 September 2018, the Federal Circuit Court decided to dismiss the Contravention Proceedings.[22] It seems that QWPT’s legal documentation lodged in the Contravention Proceedings was deficient. QWPT states she was unable to afford to pay a lawyer to continue to represent her in the Contravention Proceedings, having already spent a considerable amount of her financial resources to obtain the Court Orders in the first instance.
[22] WNHJ lodged a copy of the Court’s dismissal order dated 17 September 2018.
The Tribunal is satisfied that WNHJ did not otherwise support QWPT in her attempts for the Children to remain in her care under the care arrangements prescribed in the Court Orders.
In the context as described in the above two paragraphs, the Tribunal is satisfied that QWPT took “reasonable action”, within her means, between 16 December 2017 to 16 July 2018, by attempting to have discussions with WNHJ, to no avail, about returning the children into her care under the care arrangements provided for by the Court Orders and thereafter, by making her best endeavours to pursue Contravention Proceedings seeking compliance with the Court Orders, even though she was ultimately unsuccessful in doing so.
Under the Act, if “special circumstances” exist, the Tribunal has discretion under subsections 35C(5) and (6) to apply percentages of care reflecting the actual care of the children, where otherwise the “interim period” provisions under subsections 35C(2), (3) and (4) would apply. Policy guidance under the Guide states that this might apply whether a person's own unusual and unreasonable actions are a significant cause for the agreement, plan or order not being complied with.
WNHJ lodged with the Tribunal a “Family Violence Final Intervention Order” (Intervention Order) issued under the Family Violence Protection Act 2008 (Vic).[23] The Tribunal has considered the written submissions lodged by the Respondent after the conclusion of the hearing, on 1 January 2021, in relation to s 35C. The Tribunal acknowledges the existence of the Intervention Order; however, it was issued on 25 February 2020, being well after the end of any potential interim period under s 35C in the circumstances of this case. Therefore, the issuing of the Intervention Order is irrelevant.
[23] This Order was lodged with the Tribunal on 31 December 2020.
On this basis, and in the absence of any other evidence demonstrating that QWPT had, in some way, contributed to the non-compliance by WNHJ of the Court Orders, the Tribunal is not satisfied that “special circumstances” existed in the circumstances of this application. The Tribunal concludes that subsections 35C(5) and (6) do not apply in the present case.
Instead, the Tribunal is satisfied that “interim period” percentages of care under s 35C should be applied in this case for the maximum “interim period” under s 35L, being 17 December 2017 to 16 July 2018 (Interim Period). The effect of this is that for the Interim Period, the percentages of care that will be applied to calculate FTB between the period 16 December 2017 to 16 July 2018 inclusive, are the percentages of care reflecting the care arrangements in the Court Orders.
Therefore, the Tribunal determines that during the Interim Period:
(a)the first percentage of care determination under subsection 35C(3) (that corresponds with the extent of care of the child that QWPT and WNHJ should have had, or is to have, under the care arrangement during the care period) is that QWPT had 44% care, and WNHJ had 56% care of the Children; and
(b)for the reasons set out below, the second percentage of care under subsection 35C(4) (that corresponds with the actual care of the child that the Secretary is satisfied that QWPT and WNHJ would have during the care period if the action referred to in paragraph (1)(c) were not to succeed) is that QWPT had 29% care and WNHJ had 71% care of Child A, and QWPT had 1% care and WNHJ had 99% care of Child B.
Relevant Care Period
Policy guidance in the Guide suggests that the relevant “care period” is generally taken as the 12-month period to follow on from the date of the change in care. If the Tribunal were to adopt this suggested approach, the relevant “care period” in this case would be 16 December 2017 to 15 December 2018 inclusive.
On account of the effluxion of time in this case (almost three years have passed since the change of care event), the Tribunal initially considered taking a much longer period than the initial 12 months as being the relevant “care period” by which to determine the percentages of care. At the hearing, the Tribunal asked both QWPT and WNHJ if they kept and were able to provide additional records of care for the 2019 and 2020 calendar years. QWPT indicated she was reluctant to provide any such information, explaining that she had allegedly received advice from a Parliamentary committee not to talk to anyone about her case. No evidence was before the Tribunal about the alleged advice she had received from the Parliamentary committee. WNHJ indicated he could produce such records. Ultimately, he did not do so.
This leaves the Tribunal in a position where the only evidence before it, is limited to the care records produced by QWPT and WNHJ for an overlapping period of 17 December 2017 to 15 December 2018 (364 days in total). In those circumstances, the Tribunal considers it appropriate to take as the “care period” in this case, the period extending from 17 December 2017 to 15 December 2018 (Care Period).
Findings of percentages of care during the Care Period
Next, the Tribunal will make findings as to the percentages of care by QWPT and WNHJ of Child A and Child B during the Care Period, which will be assumed to represent the care percentages of those children on and after 17 December 2017 to the present time.
WNHJ relied upon a “Forward Planner” containing hand-written coloured dots, as marked up by WNHJ, for the Care Period showing when QWPT had actual care for Child A (red dots) and Child B (blue dots) (WNHJ’s Care Record).[24] Centrelink’s computer system recorded that this care record had been uploaded or submitted by WNHJ to Centrelink on 28 March 2019.[25]
[24] Refer T-Documents T11/33-35.
[25] Refer T-Documents T11/32.
On 4 July 2019, during the AAT1 “first review” hearing, QWPT lodged with the AAT1 a marked-up calendar prepared by her, showing the care of Child A and Child B on separate sheets for the 2017 and 2018 calendar years (QWPT’s Care Record).[26]
[26] Refer T-Documents T15/59-64.
Actual care of Child A
The Tribunal has compared QWPT’s Care Record and WNHJ’s Care Record. Upon comparison of those care records, the Tribunal notes that QWPT and WNHJ both agree that Child A was in QWPT’s care overnight on the following days:
24 December 2017;
11 to 14 February 2018;
9 to 14 and 23 to 31 March 2018;
1 to 6 and 20 to 25 April 2018;
4 to 9 and 18 to 23 May 2018;
4 to 6 and 20 to 25 July 2018;
3 to 8 and 17 to 22 August 2018;
3 to 5 and 14 to 19 and 23 to 28 September 2018;
12 to 17 and 26, 27 October 2018;
9, 10 and 23 to 28 November 2018;
7 to 12 December 2018.
The total number of days agreed by QWPT and WNHJ that Child A was in QWPT’s care overnight in the Care Period is 102 days.
There were nine additional dates recorded by QWPT in her record of care that she claimed to have the actual care of Child A overnight, which was not recorded on WNHJ’s Care Record, and are therefore, in dispute. They are:
17, 18 December 2017;
26 January 2018;
12, 13 and 16 May 2018;
7 July 2018; and
24, 25 October 2018.
Further there were four additional dates that WNHJ recorded QWPT as having the actual care of Child A which QWPT did not have recorded in her record of care. They are:
9, 10 February 2018;
1 June 2018;
28 October 2018
The Tribunal must decide which of the care records as produced by QWPT and WNHJ it considers to be more reliable. The discrepancies between them are insignificant and amount to only 13 days over the course of 364 days. However, as to the additional days referred to in the above two paragraphs, the Tribunal prefers WNHJ’s Care Record over QWPT’s Care Record because it was prepared at an earlier point in time and the Tribunal regards QWPT’s evidence overall to be unreliable because she had made inconsistent statements in the past and was not transparent in her dealings with Centrelink and the CSA about the details of the change of care that took place in 16 December 2017. At times QWPT accepted that the care had changed (as reflected in QWPT’s Care Record) and at other times, she denied that any change had taken place and instead, asserted the care was taking place in accordance with the Court Orders (see paragraph [12] of these Reasons for Decision) .
Accordingly, the Tribunal accepts that the actual care of Child A by QWPT during the Care Period took place on the dates as marked up by WNHJ in WNHJ’s Care Record, being 106 days over a period of 364 days. Accordingly, the Tribunal finds that QWPT’s percentage of care of Child A during the Care Period was 29% and WNHJ’s percentage of care was 71%. The Tribunal rounded QWPT’s percentage of care down and WNHJ’s percentage of care up in accordance with s 35M of the Act, which provides as follows:
If an individual’s percentage of care determined under this Subdivision is not a whole percentage:
(a) if the percentage is greater than 50%—the percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than 50%—the percentage is rounded down to the nearest whole percentage.
Actual care of Child B
The Tribunal has compared QWPT’s Care Record and WNHJ’s Care Record. Upon comparison of those care records, the Tribunal notes that QWPT and WNHJ both agree that Child B was in QWPT’s care overnight on the following days:
24 December 2017;
10 February 2018;
18, 19 May 2018;
31 August 2018; and
14, 15 September 2018.
The total number of days agreed by QWPT and WNHJ that Child B was in QWPT’s care overnight in the Care Period is 7 days.
There were nine additional dates recorded by QWPT in her record of care that she claimed to have the actual care of Child A overnight, which were not recorded on WNHJ’s Care Record, and are therefore, in dispute. They are:
18 December 2017;
14 February 2018;
20 to 25 April 2018; and
24 October 2018.
As mentioned above, the Tribunal prefers WNHJ’s Care Record over QWPT’s Care Record because it was prepared at any earlier point in time and the Tribunal regards QWPT’s evidence overall to be unreliable because she has made inconsistent statements in the past and was not transparent in her dealings with Centrelink and the CSA about the change of care event that took place on 16 December 2017. Specifically, at times QWPT asserted that care was taking place in accordance with the Court Orders when QWPT’s Care Record shows that this assertion by QWPT was incorrect.
Accordingly, the Tribunal will accept that the actual care of Child B by QWPT during the Care Period took place on the dates as marked up in WNHJ’s Care Record, being 7 days over a period of 364 days. The Tribunal finds that QWPT’s percentage of care of Child B during the Care Period was 1% and WNHJ’s percentage of care was 99%.[27]
[27] Applying the rounding rules as provided for in s 35M of the Act as reproduced in paragraph [58] of these Reasons for Decision.
Revocation of existing care percentage determination

The Existing Care Percentage Determination was that QWPT had a care percentage of 44% of both Child A and Child B.
The Tribunal has found that after the interim period ended, QWPT had 29% care of Child A and 1% care of Child B. Those new care percentages in respect of both Children were in a different percentage range as prescribed in s 35P(2) of the Act, to the care percentages under the Existing Care Percentage Determination. Accordingly, by operation of s 35P of the Act, the Existing Care Percentage Determination must be revoked at the end of the Interim Period and a new care percentage determination made in respect of both Children.
New care percentages from 17 July 2018 to the present time
After the end of the Interim Period ending on 16 July 2018, i.e. from 17 July 2018 onwards, the Tribunal determines new care percentages of 29% for QWPT and 71% for WNHJ in respect of Child A; and 1% for QWPT and 99% for WNHJ in respect of Child B, for the purpose of FTB. This means that as from 17 July 2018 to the present time, neither Child A or Child B is an “FTB child” of QWPT as her percentages of care for both children are less than 35%.
CONCLUSION
Accordingly, the Tribunal sets aside the Decision Under Review and in substitution, decides as follows:
(a)under s 35C(3) of the Act, during the Interim Period from 17 December 2017 to 16 July 2018:
(i)the first percentage of care determination under subsection 35C(3) (that corresponds with the extent of care that QWPT and WNHJ should have had, or is to have, under the care arrangement during the care period) is that QWPT had 44% care, and WNHJ had 56% care of the Children; and
(ii)the second percentage of care determination under subsection 35C(4) (that corresponds with the actual care that the Tribunal is satisfied that QWPT and WNHJ would have had during the care period if the action referred to in subsection 35C(1)(c) of the Act had not succeeded) is that QWPT had 29% care and WNHJ had 71% care of Child A, and QWPT had 1% care and WNHJ had 99% care of Child B;
(b)after the end of the Interim Period, the Existing Care Percentage is revoked on 17 July 2018 under s 35P of the Act and a new care percentage determination is made by the Tribunal under s 35B of the Act as follows:
(i)QWPT had 29% care and WNHJ had 71% care of Child A as from 17 July 2018 to the present time; and
(ii)QWPT had 1% care and WNHJ had 99% care of Child B as from 17 July 2018 to the present time.

68.

69. I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

..................[sgd]......................................................
Associate
Dated: 13 April 2021

Date of hearing:

Date last submission lodged:

10 December 2020

25 January 2021

Applicant: By telephone

Advocate for the Respondent:
Mr April Voight, Litigation and Information Release Branch, Services Australia

Other Party: By telephone

[2021] AATA 878

13 April 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

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%

Date of hearing: Date last submission lodged:	10 December 2020 25 January 2021
Applicant:	By telephone
Advocate for the Respondent:	Mr April Voight, Litigation and Information Release Branch, Services Australia
Other Party:	By telephone