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

This matter concerned an appeal by Mary Senior against a decision regarding the determination of child care arrangements for Family Tax Benefit purposes. The dispute centred on the percentage of care each parent, Mary Senior and Julian Senior, had for their child during a specific period between 11 November 2016 and 20 January 2017. The Administrative Appeals Tribunal (AAT) was required to determine the actual care arrangements between the parties during this period to establish the correct percentage of shared care.

The primary legal issue before the Tribunal was to ascertain the percentage of care each parent provided for the child, applying the principles outlined in the Child Support Guide. This involved assessing documentary evidence, including letters from various third parties and correspondence between the parents, as well as oral testimony. The Tribunal needed to determine whether the child was in the sole care of Mary Senior, as she contended, or if a shared care arrangement existed, and if so, what the precise division of care was.

The Tribunal considered the Child Support Guide, which indicates that the percentage of care is generally determined by the number of nights a child spends with each carer. While Mary Senior presented numerous documents asserting her sole or predominant care of the child, the Tribunal found these statements to have limited independent corroboration and noted concerns about the reliability of some third-party evidence. Conversely, text message exchanges between the parties strongly indicated a mutual agreement for a 50/50 shared care arrangement, with scheduled pick-up and drop-off times. The Tribunal found this documentary evidence more persuasive than the assertions of sole care, particularly in the absence of any recorded complaints from Mary Senior about Julian Senior failing to adhere to the agreed arrangements.

The Tribunal set aside the previous decision and substituted its own finding that, during the relevant period from 11 November 2016 to 20 January 2017, Julian Senior and Mary Senior each had 50% care of the children.