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

[2022] AATA 4373

Savage and Secretary, Department of Social Services (Social services second review) [2022] AATA 4373 (24 November 2022)

Division:GENERAL DIVISION

File Number(s):      2021/6662

Re:Keith Savage

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndNadia Moore

JOINED PARTY

Decision

Tribunal:Chris Puplick AM, Senior Member

Date:24 November 2022

Place:Sydney

The decision under review is affirmed.

.......................................[sgd].................................

Chris Puplick AM, Senior Member

Catchwords

FAMILY TAX BENEFIT – whether there was a change in care percentage – factors relevant to the determination of actual care – no change in care percentage – decision affirmed

Legislation

A New Tax System (Family Assistance) Act 1999 (Cth) s 35J

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Cases

Browne v Dunn [1893] 6 R 67 (HL)

Drake v Minister for Immigration & Ethnic Affairs (No. 2) (1979) 2 ALD 634

Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 473

P v Child Support Registrar [2013] FCA 1312

PFPS and Child Support Registrar (Child support second review) [2022] AATA 3263

Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

Secondary Materials

Family Assistance Guide

REASONS FOR DECISION

Chris Puplick AM, Senior Member

24 November 2022

Background

1. Keith Savage (the Applicant) and Nadia Moore (the Other Party) are respectively the father and mother of three children, a boy and two girls, LS, HS and SS all of whom are minors (the children).

2. Mr Savage and Ms Moore were married in 2000 and separated on 14 June 2019. Although separated they remained living in the same place (separated under one roof) until 25 November 2019 when Ms Moore moved out to other accommodation.

3. Prior to the separation, Mr Savage was paid Family Tax Benefit (FTB) on the basis that he had 100% care of the children.[1]

   [1] Tribunal documents (T-documents) at 289, 561, 574 and 585.

4. Both parties agree that as from 25 November 2019 each of them provided 50% care for the children pursuant to several previous court orders.[2]

   [2] Ibid at 207 and 289.

5. Determination of these issues is made in accordance with the provisions of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act); the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act); and the Family Assistance Guide (the Guide).

   The matter in issue – the relevant period

6. A dispute has arisen in relation to the narrow period from 14 June 2019 to 24 November 2019 (the relevant period) as to what percentage of care for the children was provided by each of the parties.

7. Claims and determinations of care percentage in this disputed period were made as follows:

   (a)On 25 October 2019 Mr Savage advised Services Australia (the Agency) that Ms Moore had left the family home on 23 October 2019 and that as a result he had 100% care of the children.

   (b)On 19 June 2020 Ms Moore made a claim for FTB on the basis that she had 50% care of the children from 14 June 2019.

   (c)The Agency made a determination that, as from 9 July 2020, each party had 50% care of the children.

   (d)On 1 March 2021 Ms Moore contested this determination claiming that she had 50% care of the children from the earlier date of 14 June 2019.

   (e)On 19 March 2021 an Authorised Review Officer (ARO) of the Agency determined that each party had 50% care of the children from 14 June 2019.

   (f)On 14 April 2021 Mr Savage requested the Social Services and Child Support Division of this Tribunal (AAT1) to review the decision of the ARO.

   (g)On 6 August 2021 the AAT1 affirmed the decision of the ARO.

   (h)On 15 September 2021 Mr Savage sought a review of the AAT1 decision in this Tribunal.

   (i)On 9 November 2022 the matter was heard in this Tribunal after considerable difficulty was encountered in finding a mutually convenient date for the parties, each of whom had previously expressed difficulties with proposed dated due to employment requirements.

   The competing claims

8. The AAT1 summarised the claims of the contesting parties as they were put before it, and the evidence submitted before this Tribunal would not cause it to depart from that summary. The AAT1 stated:

   8. Mr Savage, who was not working, claimed to have spent more time with the children than Ms Savage and catered to their needs during the relevant period. Although Ms Savage had ceased work from 22 May 2019, she was “not home during the day and only stayed at night”. Mr Savage said that he took the children to school and appointments, prepared meals and washed their clothes. There was a period of about six or seven weeks when Ms Savage stayed with some friends and was not at home and also another period of three or four weeks when she stayed with another friend. The essence of Mr Savage’s claim is that he spent more time with the children, provided for their daily requirements and was with them for the whole period to 24 November 2019 whereas Ms Savage was away from the family home, in some cases for weeks at a time.

   9. Ms Savage disputes the claims made by Mr Savage about the care arrangements for the children. She accepts there was about eight weeks when she did not stay at the family home, but during that time she says she still regularly spent time with the children and the absence was a result of being unable to stay at home due to the difficult nature of her relationship with Mr Savage. She concedes that Mr Savage did the children’s washing and “he did the cooking 60% of the time”. Ms Savage contends the care of the children was equally shared during the relevant period because while Mr Savage may have undertaken household tasks for the children, she was always available to them for emotional support, play and other activities during what was a very challenging time for the whole family.[3]

   [3] Ibid at 208.

9. The Tribunal notes that Mr Savage has called into question the impartiality and personal conduct of the member constituting the AAT1[4] but finds no basis for any such complaints being made.

   [4] Ibid at 16.

   EVIDENCE BEFORE THE TRIBUNAL

10. The Tribunal had before it all the evidence and submissions presented to the AAT1 supplemented by extensive written submissions from both parties, both of whom also gave oral testimony at the hearing.

11. In support of his childcare claims, Mr Savage also submitted written statements from a number of persons who then gave oral evidence before the Tribunal:

    ·His father (Mr Ian Savage) attested that Ms Moore “spent very little time at the house” after the separation and “[h]er ability to contribute to the care of the children was therefore limited and usually only involved outings to the park, relatives, McDonalds etc.”[5]

    ·Mr Matthew Briggs provided a letter dated 22 July 2021 and a subsequent undated statement (apparently made some three to six months ago). He attested that “the children stated to adults at the club that Nadia was rarely ever at home, and that she had very little involvement with the children.” [6] In his undated statement Mr Briggs goes on to make adverse reflections on Ms Moore’s “mental health problems” and her “erratic and irrational” behaviour. He also claimed, as a matter of hearsay, that Ms Moore was threatening and abusive to another parent of a child in the rugby team of one of the couple’s children and that in respect of that child, Ms Moore may have been present at some of his matches but took no active interest or part in them. In the course of cross-examination, he admitted that he had visited the family home on occasions and while he predominantly saw Mr Savage present, Ms Moore was also there on a number of occasions although he never saw the couple undertaking activities together. He also agreed that Ms Moore had been at various of the children’s rugby matches and that she had initially taken one of the children to training.

    ·Ms Jennifer O’Brien (who is apparently Mr Savage’s current partner) in another undated statement recalls listening in to a private conversation between Mr Savage and a person at whose home Ms Moore was staying after the separation. Ms O’Brien admits that that this other party “was at no point aware that I was present or able to hear these conversations.” She then goes on to make serious allegations about what this third party said by way of making adverse comments about Ms Moore, including her alleged drinking habits, her associates, her personal cleanliness and her general level of incompetence. All these comments were refuted in the strongest terms by Ms Moore at the hearing.

    ·Ms Eiline Galloway, in a letter dated 24 July 2022 makes reflections against Ms Moore referring to a matter where she “went off the rails due to her excessive drinking” and that “she would rave about losing weight and how she is meeting men on some App.”[7] Ms Galloway has also submitted an Affidavit (dated 22 November 2021) in which she identifies herself as being the person allegedly threatened by Ms Moore at the child’s rugby team lunch and reflects further on Ms Moore’s drinking habits and sexual proclivities.[8] Ms Moore staringly refuted the allegations of excessive drinking and Ms Galloway agreed that some of her descriptions of Ms Moore’s appearance (such as “crazy eyes”) were overblown. Ms Galloway has never seen either of the parties outside the activities of the children’s rugby encounters (and the associated social events); has no knowledge of their home and has derived all her understanding of the family dynamics from Mr Savage who had approached her at first instance to provide written submissions to the Tribunal.

    [5] Ian Savage Letter dated 25 July 2022.

    [6] Matthew Briggs Letter dated 22 July 2021.

    [7] Eiline Galloway Letter dated 24 July 2022.

    [8] Eiline Galloway Affidavit dated 22 November 2021.

12. In additional material submitted by Mr Savage, there is a letter from Ms Veronica Savage (Mr Savage’s mother) dated 21 July 2021 in which she states:

    “Even though Nadia was unemployed from June to November 2019, I rarely saw Nadia at home during my visits. I was aware Nadia was having rnental health problems and that during this period of time there were several occasions she was an inpatient at The Hills Clinic for several weeks. Obviously Nadia could not provide any care for the children during that period.

    When I did see her, it was for short periods of time and I did not observe her performing any function in relation to child care. I was aware that Nadia's preference was to spend as much time as possible away from home and that this included staying at friends' houses.”

13. On balance, the evidence provided by the four witnesses added nothing to the Tribunal’s understanding of the situation of the parties in the relevant period.

14. As with all such cases, much of their evidence was based on hearsay; and in some instances, it was clear that there was a degree of personal animosity against Ms Moore in their testimony. It is to be noted that this Tribunal is not bound by the formal rules of evidence but must test whatever is put before it in terms of its acceptability or the weight which is assigned to it.[9]

    [9] Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(b).

15. Above all, apart from some of the observations of Mr Briggs, none of the evidence can be taken as resulting from the direct, first-hand or contemporary knowledge of the family dynamics of Mr Savage and Ms Moore during the relevant period.

16. In relation to the alleged “mental health” problems suffered by Ms Moore, the Tribunal notes a detailed letter from Dr Farideh Absalan, a Consultant Psychiatrist who was treating Ms Moore at the relevant time. In his report Dr Absalan opines:

    “Ms Savage was diagnosed with ADHD by her previous psychiatrist (Dr Tanase) but she experienced side effects with prescribed medication for ADHD. Ms Savage was in a process of separation from her husband and seemed stressed by it. The reason for admission was mainly to find a right medication to treat her ADHD. During this admission, Ms Savage discussed openly her relationship problems with her husband with me. She described her husband as a controlling and a punitive man in his relationship with her and with their three children. She felt unappreciated and not understood by him. Ms Savage struggled with her husband's personality whom she found very different from her. She did not like to be restricted and believed he failed to appreciate her efforts as a mother and a wife.

    …

    I reviewed her in Oct 2019. She sold the house and managed to buy a townhouse. She was keen to get shared custody of her children. Her confidence was improving as she was managing a part time job and her parenting role. Her ADHD medication changed as she needed only a short acting type of medication. She seemed excited to be independent and exploring her potentials.

    I reviewed Ms Savage every three months in 2020 (Feb, May, Aug and Dec). She was trying to herself with being a single mother of three children and managing her financial problems. She seemed positive and optimistic about changes in her life. She started yoga and meditation. She was getting organized. She utilized precare and aftercare school for her children to manage her job. Her mother was also quite supportive. During the COVID lockdown, she had to do home schooling for her children.

    Ms Savage talked about her difficulties with her ex-husband in our sessions. He had a new partner who also had two children. She talked about problems in communicating with him about children. She seemed quite sensitive and easily felt rejected by him, However, her relationship with her children were good and she enjoyed parenting.

    I reviewed Ms Savage last on 31 July 2021. She had been working fulltime in marketing. She was upset that her ex-husband had not worked even after the divorce and had applied for child support. She was concerned about being accused by her ex-husband for not providing adequate support for her children. She was also worried whether he could restrict her rights to see her children.”

17. There is no basis in any of the evidence provided by qualified medical practitioners to make any adverse findings about Ms Moore’s “mental health” or her ability to provide care for her children, nor is the Tribunal competent to do so. Throwaway lines from parties with no expertise, qualification or competence to assess matters of mental health, and given in the context of hearings such as this, should be regarded as being worthless.

18. It is true that during the relevant period Ms Moore sought professional help to cope with her ADHD and with managing a change of treatment regime to one more attuned to her needs. She was also taking positive steps to find employment and address her financial situation while “keen to get shared custody of her children.” If anything, all these are matters to the credit of Ms Moore. The Tribunal does not take the reference to prospectively getting “shared care” as an admission that no care was involved at the time, rather that Ms Moore was seeking regularisation or formal recognition of an existing arrangement of actual care, albeit when Mr Savage was receiving 100% of FTB payments.

19. By contrast with the evidence of Mr Savage’s witnesses, there are letters before the Tribunal from Mr David Christie and Mrs Lana Christie, (being Ms Moore’s brother-in-law and sister) dated 20 July 2020 which are all but identical and which claim:

    “This letter is to confirm Nadia Savage had shared care of her children [LS, HS and SS] 50/50% with her ex husband Keith Savage during the ‘separated under one roof’ period of 14 June – 25 November 2019.

    I visited several times during the house sale preparation and observed Nadia caring for her children with activities such as home work, and after school activities such as dancing lessons, rugby training and cricket.

    I also visited my mother in laws [alt. ‘mother’s’] house, Patricia Moore, and Nadia was there with her children approximately 4 [alt. ‘3’] times and also visited my house approx. 10 times, including my children’s birthday parties and play dates [alt. ‘and also at my house with her children approx. 5 times on weekend’].[10]

    [10] T-documents at 281-282.

20. Neither Mr nor Mrs Christie was invited to appear before the Tribunal, but their written statements are somewhat more to the point in terms of relevant dates and circumstances than some of those presented by Mr Savage.

21. There is also an email (dated 27 July 2021), addressed “To whom this may concern” from a Mr Simon Zanin who appears to be the person whose conversation was the subject of the submission of Ms O’Brien. He writes:

    “It has recently come to my attention that my name has been used numerous times in a document marked A 1-A20 (Review number 2021 IS 160060).

    The majority of this submission used my name throughout the document which I had asked the party (Keith Savage) not to involve me. I made it very clear to Keith Savage that I do not want to submit a statement myself as I don't believe I would add any value that would help his case. In fact, I sent him a text massage advising him to please respect my decision not to be involved as the more I think about it the more things come to mind that actually prove Nadia Savage was very much involved with the kids. Which is the opposite of what Keith was trying to prove.

    Some statements made in this document were taken out of context and actually not entirely true. In one paragraph where I said Nadia said ‘many things I don't how to do because Keith did everything while we lived In Epping’. Keith had asked me to put this in a statement and I declined as it was inaccurate because I said that could have been in relation to technology not ‘everything’. And I cannot recall because it was so long ago. In fact now that I think about it Nadia was having issues with connecting a blu-ray player to the tv and said something to the effect of ‘I'm used to Keith doing this stuff'. Again it was so long ago and this was explained to Keith more than once.

    Another statement made in the document that was out of context was Nadia advising me she wanted to stay away from the house as much as possible. This was taken out of context, as I know Nadia was very uncomfortable with Keith and wanted to avoid him as much as possible which is why she stayed with us during the split and selling of their house. I did not want elaborate on this with Keith as I did not want to hurt his feelings. Another reason I told Keith not involve as it will not help his case.

    Keith tried to contact me a few times to discuss me putting a statement in regarding Nadia staying at our house for 6-7 weeks, and a few other things that would potentially prove Keith was 100% full time parenting. Keith sent me a draft statement for me to review and fine tune if needed and sign and send it back to him. I declined and advised Keith that it's actually inaccurate and here's why ....

    I'd love to very much clear up my involvement in this if I can over the phone. I can be contacted on [xxxx]

    Kind regards,

    Simon Zanin.”

22. In cross-examination by the Tribunal, Mr Savage was asked to comment on this email, a copy of which had been provided to him prior to the hearing.[11] His response was to the effect that Mr Zanin had initially approached him expressing his concern about the “welfare” of the children and had offered to assist him in his application. However, for some unspecified reason, other than a desire “not to be involved” Mr Zanin retreated from this position and ended contact. Mr Savage indicated that his offers to assist Mr Zanin in formulating any letters of support was in no way improper and merely an attempt to speed up and facilitate the process.

    [11] Browne v Dunn [1893] 6 R 67 (HL).

23. In the absence of any evidence from Mr Zanin on these points, the Tribunal declines to give any weight to any of the material put before it in relation to what he might have said, his motivations or his subsequent behaviour and statements.

    Conclusion re evidence

1. On balance, the Tribunal comes to exactly the same conclusion as the AAT1 which stated:

   Both Mr Savage and Ms Savage provided supporting evidence from other persons about observations made during the relevant period on certain days. The Tribunal does not consider any of the material to be compelling and does not shift the weight of evidence about care in favour of either party.[12]

   [12] T-documents at 208.

   What constitutes “care”

2. The relevant legislation provides no definition of what constitutes “care”, so both that and the level at which any care is provided is a matter to be determined on a case-by-case basis with reference to all the relevant particular circumstances.

3. In Polec,[13] Federal Magistrate Hughes stated:

   [13] Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 at [56]-[57].

   In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a.To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

   b.To what extent does the person make arrangements for others to meet the needs of the child?

   c.To what extent does the person pay for the costs of meeting the needs of the child?

   d.To what extent does the person otherwise provide financial support for the child?

   e.To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.To what extent is the child financially independent or financially supported from another source?

   [57] An analysis of the evidence in relation to these considerations should assist the Tribunal in determining whether or not there has been a child support terminating event or a change in the percentage of care for the child provided by the first respondent.

4. Further guidance on this matter was provided by Wigney J in P v Child Support Registrar as follows:[14]

   In my opinion, however, paragraph [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand. “Care” is not defined in the Act. The extent of care that is provided is a question of fact. It will depend on the facts and circumstances of the particular case. The meaning of care in any given case should not be constrained by a set list of questions or considerations. Failure to have regard to one of the matters referred to in Polec may or may not invalidate a decision depending on the particular facts and circumstances of the case. On the other hand, in some cases a decision-maker might fall into error by ignoring facts or circumstances that are not in the list in Polec.

   Nor is Polec authority for the proposition, as Mr P contends, that in all cases where a child is not residing with his or her parents, the financial arrangements for meeting the child’s needs are a “paramount consideration”. Much will depend on the particular facts and circumstances of the matter at hand. The weight to be given to financial arrangements will differ in each case. In some cases financial considerations will be paramount, in some cases they may not.

   [14] [2013] FCA 1312 at [107]-[108].

5. The Social Security Guide (the Guide) has been issued by the Agency to assist in the determination of such matters as what might be taken as constituting care. At 1.1.C.90 the Guide advises:

   “For the purposes of being considered an FTB child, [Family Assistance] legislation refers to being in the care of an adult. Reference is also made to legal responsibility for the day-to-day care, welfare and development of the individual.

   Care generally includes physical care; however, the importance of physical care decreases as the child (also refers to a young person) becomes older. For example, a baby or toddler's care needs are largely immediate and physical (feeding, nappy changing, bathing, supervision). As the child grows older, they will gradually start to meet many of their physical care needs themselves.

   Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child's mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child.”

6. The different forms or ways in which care can be provided, as outlined in the Guide, was recognised in the finding of the AAT1 that:

   The balance of the evidence is that both Mr Savage and Ms Savage provided care for the children during the relevant period in different ways. They both retained day-to-day decision-making capacity and exercised legal responsibilities as the parents of the children. Although the evidence indicates Mr Savage may have been engaged to a greater extent in the daily routine for the children, Ms Savage nonetheless remained available for them at all times, including when she stayed overnight elsewhere.[15]

   [15] T-documents at 208

7. It is appropriate for the Tribunal to accept the examples as provided by the Guide[16] in making its assessments, especially where issues of shared care are contested.[17]

   [16] Drake v Minister for Immigration & Ethnic Affairs (No. 2) (1979) 2 ALD 634.

   [17] Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 473 at [11].

   DISCUSSION

8. It is these “different ways” that are crucial in determining the extent to which Ms Moore had care of the children while they were clearly primarily in the physical custody of Mr Savage during the relevant period.

9. There is no doubt that during the relevant period Mr Savage undertook the majority of household tasks such as shopping, cleaning and cooking, although Ms Moore maintains that his “controlling behaviour” prevented her from being more involved in such activities.

10. Although during the relevant period Ms Moore spent some time away from the matrimonial home, the evidence suggests that this was for a series of periods amounting to four to six weeks in total. However, when Ms Moore was absent from the matrimonial home, she still maintained regular contact with the children, being involved in activities including some participation in her son’s rugby games, paying for her daughter’s dance classes and collecting the children from school.

11. None of the witnesses or written statements before the Tribunal deny that there was some level of involvement by Ms Moore and that she clearly attended some of the son’s football matches; took the daughters to their dance classes (for which she paid), played some role in arranging their transport to/from school, and otherwise took the children out of the house, to the park or to restaurants.

12. Importantly, the evidence is that while each of the couple maintained a separate bank savings account and credit cards, there was a joint home loan account from which monies were taken on a regular basis to pay household expenses and to act as what Mr Savage described as “a buffer” for mortgage and other payments. The evidence is that prior to the relevant period Mr Savage was not in receipt of any income other than FTB payments while Ms Moore was employed. During the relevant period, neither was employed. At one stage Ms Moore was the beneficiary of a family legacy (in the sum of $160,000.00) and this money was deposited in the joint home savings account and used to the benefit of both parties and indeed, the family. Ms Moore purchased a new vehicle from the legacy, but it was used not just for her own purposes but also for the transportation of the children and other family-related activities. Mr Savage, although maintaining that most of the legacy was spent by Ms Moore on items of personal benefit to herself, does not deny that some of the money was used for joint household expenses.

13. The critical point in this determination is 14 June 2019, the date upon which both parties agree they separated but remained living under one roof. This change precipitated Ms Moore’s initial application for a variation in the FTB payments to the couple, claiming a 50% share of the care of the children. In her evidence to the Tribunal, she asserted that it was on this date that she decided to, as she put it, “take control on all fronts” and put an end to what she characterised as Mr Savage’s “controlling behaviour”. The Tribunal makes no comment about Mr Savage’s alleged behaviour but does accept that Ms Moore was in the state of mind that she described following the couple’s separation.

14. This initial application resulted in the Department undertaking a review of FTB arrangements, making an initial decision, having that challenged and then making a final (50%/50%) determination on 19 March 2021.

15. In the Department’s letter to Mr Savage of that date, advising of the decision, the ARO wrote that their decision was based upon:

    ·Information you provided in our discussion on 18 March 2021.

    ·Information provided by the other carer.

    ·Records maintained by us.[18]

    [18] T-documents at 289.

16. The “information provided in our discussion of 18 March” is set out in a Note by the ARO recording his discussions with Mr Savage. What is recorded is as follows:

    “I asked whether the parenting of the children changed post separation but while they still lived together.

    Customer advised that there was no real difference in care pre and post separation.

    They advised they both made decisions relating to the children’s care and actively cared for the children.

    I advised that I asked this because where a couple is separated under one roof the care os [sic] generally 50/50 as both parents are there to care for the children.

    I advised there would have to be compelling evidence that a parent was not parenting the children substantially equally for it to be different.”[19]

    [19] Ibid at 287.

17. The way in which this conversation is record may give rise to a presumption that when a couple are separated under one roof it is effectively departmental “policy” to regard them as providing 50%/50% care. The Tribunal put this to the Respondent’s representative and was assured that this was not the case and that each case was determined by the ARO on its individual and particular facts.

18. Nevertheless, section 2.1.1.25 of the Guide addresses this matter as follows:

    “A couple who have separated, but are still sharing a home may share the care of an FTB child. Centrelink will determine FTB eligibility and the relevant shared care percentages for each individual based on their individual circumstances and the evidence available. Generally, where each individual contributes in a similar manner to the care of the child, the care percentage will be 50%. The care percentage determined by Centrelink will remain in place until either individual provides evidence that the care arrangements for the child have changed.”

19. The key terms here are “similar manner” and “evidence that the care arrangements for the child have changed.” The ARO’s record of conversation with Mr Savage has him confirming that before and after the separation, care arrangements evidenced “no real change”. The question then becomes about whether the care provided was provided in a “similar manner”.

20. The answer to that appears to be that the care provided was provided in a “similar manner” but that it was both quantitively and qualitatively different. To the extent that Mr Savage undertook most of the household chores and attended to the bulk of what might be described as the physical arrangements for care, Ms Moore’s contribution was rather in terms of emotional support for the children, continuation of her shared legal responsibility for them and limited involvement in activities such as attending to their recreational and educational needs (such as meeting with school authorities). It is also the case that Ms Moore spent some time way from the matrimonial home and that as a result Mr Savage had care of the children overnight to a far greater extent than Ms Moore.

21. Reference to overnight care/responsibility is reflected in section 35J of the Act and the table set out in section 2.1.1.20 of the Guide. However, there is no reliable evidence before the Tribunal as to exactly how many “nights” Ms Moore spent away from the matrimonial home, nor the actual hours on any particular day that she was absent.

22. On this matter the AAT1 found that:

    Although the evidence indicates Mr Savage may have been engaged to a greater extent in the daily routine for the children, Ms Savage nonetheless remained available for them at all times, including when she stayed overnight elsewhere.[20]

    [20] T-documents at 208.

23. There is no evidence before this Tribunal to refute such a finding and this Tribunal adopts it as an accurate reflection of the actual care arrangements in place.

    the role of the Child support registrar in proceedings

24. In the matter of PFPS[21] Senior Member Dr Evans-Bonner stated that it would be helpful for this Tribunal were the Registrar to, on appropriate occasions, adopt a position which, while maintaining its neutrality was more helpful to the Tribunal in completing its fact-finding responsibilities.

    [21] PFPS and Child Support Registrar (Child support second review) [2022] AATA 3263.

25. The Tribunal makes no reflections on the Respondent’s representative in these proceedings who provided assistance by way of questions directed to the parties and witnesses, however, this Tribunal strongly endorses the Senior Member’s comments, specifically to the effect that:

    For example, in closing submissions it would be appropriate for the Registrar’s representative to summarise the evidence in support of the father and summarise the evidence in support of the mother. A more specific example is that the Registrar’s legal representative could summarise the evidence in support of care changing on one date rather than another date; or they could summarise the evidence that supports there being a change in care or no change in care.

    If the Registrar wishes to remain “neutral”, they need not comment on the ultimate conclusion that the Tribunal should draw after summarising the evidence. However, given the duty of the decision-maker and the parties’ to assist the Tribunal (s 33(1AA) and (1AB) of the AAT Act), there is no apparent reason why they should not do so. Indeed, the Tribunal would often, as would have been the case in these proceedings, be better assisted by a more pro-active approach from the Registrar’s legal representative.

    I also observe that if the Registrar adopted a position concerning the strengths and weaknesses of each party’s evidence, it may assist a party to better understand their own position. These insights may result in applications being resolved earlier, such as during the General Division conferencing stage of proceedings.

    Conclusion

26. The Tribunal concludes that while Mr Savage and Ms Moore provided different levels and a somewhat different nature of care arrangements for the three children, they nevertheless contributed equally to the provision of that care and that the determination by the ARO and the AAT1 that this amounted to a 50%/50% care arrangement was correct.

    DECISION

27. The decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...................................[sgd].....................................

Associate

Dated: 24 November 2022

Date(s) of hearing:	9 November 2022
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Services Australia
Joined Party:	In person