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

[2021] AATA 4591

VGPX and Secretary, Department of Social Services (Social services second review) [2021] AATA 4591 (9 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3362

Re:VGPX

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

AndBYGM

OTHER PARTY

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:9 December 2021

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

FAMILY TAX BENEFIT – whether there was a change in the pattern and percentage of care – factors relevant to the determination of actual care – no sufficiently solid or probative evidence to determine a pattern of care – no firm evidence which might result in significant amendment of decision – decision affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) ss 3, 22, 25 and 35P

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

CASES

Dallas and Secretary, Department of Family and Community Services and Anor [2005] AATA 562

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

Free and Secretary, Department of Family and Community Services and Anor [2003] AATA 678

Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359

P v Child Support Registrar [2013] FCA 1312

Polec v Staker and Anor [2011] FMCAfam 959

SECONDARY MATERIALS

Family Assistance Guide

REASONS FOR DECISION

Chris Puplick AM, Senior Member

9 December 2021

CONFIDENTIALITY

1. In these proceedings the Other Party (BYGM) has made an application for a series of suppression, confidentiality or gag orders under subsections 35(3) and 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

2. On 29 June 2021 Deputy President Constance made an order restricting access to certain documents to each of their parties or their legal representatives. This Tribunal agreed to a request from the Other Party for the hearing to be closed to anyone other than the immediate participants and the officers of the Tribunal.

3. On 12 October 2021 the Other Party made a more comprehensive submission seeking the application of pseudonyms to various parties and the withholding of other material from publication.

4. In considering the requests, the Tribunal has determined to give four letter pseudonyms to both the Applicant (VGPX) and BYGM. Immediate members of their family and any other minor witnesses have also been de-identified. It has also ensured that no identifying contact details for any of the parties or witnesses are included in its published decision. In these circumstances, it does not believe that any other confidentiality or non-publication orders are appropriate or justified against the primary consideration of open justice and the transparency of Tribunal proceedings and decisions.[1]

   [1] Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359.

   BACKGROUND

5. VGPX and BYGM are respectively the father and mother of two minor children P (born 2003) and S (born 2005) in respect of whom they share parenting responsibilities and who are, for these purposes Family Tax Benefit (FTB) children under the relevant legislation. They also have an adult son, R. The couple have been together in a de facto relationship since January/February 1990 or 1991[2] and split up in August 2017.

   [2] Neither party, when questioned, was sure of the date of the commencement of their relationship.

6. There is no court order or formally agreed pattern of care for the two FTB children and a dispute has arisen as to the percentage of care provided by each parent for the purposes of Family Tax Benefit payable to each parent.

   NARRATIVE OF CLAIMS AND HEARING [3]

   [3] The following is taken from the Respondent’s (Secretary, Department of Social Services) Statement of Facts, Issues and Contentions (SFIC) at [7]-[14]. The following footnotes cross-reference the relevant pinpoints in the Tribunal documents (T-documents).

7. It is not in dispute that VGPX had 100% care of the children from 1 August 2017 until 1 July 2019.[4]

   [4] T-documents at 6, Decision of AAT1 at [7].

8. On 13 July 2020 BYGM advised the Department of Social Services that she was providing 50% of the care for the children from 1 July 2019 onward. This claim was contested by VGPX who asserted that his percentage of care remained at almost 100%.

9. On 18 September 2020 the Department determined that the appropriate percentage of care was 50%/50% between the two parents. This decision was affirmed by an Authorised Review Officer (ARO) of the Agency on 13 October 2020.

10. VGPX was dissatisfied with this decision and sought a review by the Social Services and Child Support Division of this Tribunal (AAT1) which, on 20 April 2021 affirmed the ARO’s determination.[5]

    [5] T-documents at 5-12.

11. On 22 May 2021 VGPX appealed to this Tribunal for a review of the AAT1 decision. The matter was heard on 15 November 2021. Under what have been the prevailing COVID-19 protocols of the Tribunal this matter would, ordinarily, have been heard using the Microsoft Teams platform. However, due to the ongoing concerns expressed by the parties about each other, and a feeling that the parties would prefer not to even see each other, the Tribunal – reluctantly – consented to hear the matter by telephone. This is a most unsatisfactory way to conduct proceedings as the Tribunal cannot see or engage more directly with participants, especially in matter such as these where issues of personal credibility are at stake. However, given the history between the parties involving accusations against each other and the issuance of an Apprehended Violence Order, the Tribunal, on this occasion, acquiesced.

    LEGISLATIVE FRAMEWORK

12. The relevant legislation covering issues of FTB payments are the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Assistance Act). Relevant formal government policy and guidelines as to the interpretation and administration of the legislation are also set out in the Family Assistance Guide (the Guide). Although the Tribunal is not strictly bound to follow the provisions of the Guide, it generally does so unless there are compelling reasons, in a particular case, not to do so.[6]

    [6] Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.

13. The relevant legislative framework for determining FTB eligibility is set out as follows:

    (a)a person is considered eligible for FTB if they have at least one FTB child (as defined in section 22 of the Act) in their care:

    (2) An individual is an FTB child of the adult if:

    (a) the individual is aged under 16; and

    (b) the individual is in the adult's care; and

    (c) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and

    (d) the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a),(b) or (c).

    …

    (5) The circumstances surrounding legal responsibility for the care of the individual are:

    (a) the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, weare and development of the individual; or

    (b) under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or

    (c) the individual is not in the care the care of anyone with the legal responsibility for the day-today care, welfare and development of the individual. [7]

    (b)and they must have had at least 35% care of an eligible FTB child during the relevant care period for the child to be considered an FTB child for any part of the care period.[8]

    [7] A New Tax System (Family Assistance) Act 1999 (Cth) (Act) s 22.

    [8] Act ss 22(7) and 25.

14. Where (as in this case), both the applicant and the other party share qualification for FTB children and disagree on the pattern of care, the Tribunal must determine the pattern of actual care and whether there was a change in care percentages.

15. In the instance that a change in care percentage is found, the Tribunal may need to revoke the existing care determination or may have the discretion to revoke the existing care determination depending on the degree of any such changes.

16. As a result of this framework, the current matters before the Tribunal are primarily an issue of fact.

    A SAGA OF COMPETING CLAIMS

17. As is not uncommon in such FTB care percentage matters, there is a lack of clear or probative evidence regarding the provision of parental care because neither party has managed to produce formal or concise records of exactly when one or other of the children was in their care.

18. Both parties can recall certain dates and certain sets of circumstances, but neither has maintained comprehensive written records, although VGPX claims he has made a series of entries in his Outlook calendar recording some relevant data and BYGM claims she has recorded relevant data in a personal notebook.

19. There is no third-party evidence which in any way assists in resolving any such questions.

20. The period of concern in these proceedings commences on 1 July 2019. BYGM left the family home (“Hassall Grove”) sometime in August 2017 and moved to live with her parents. She remained there approximately 20 months until she moved into her own accommodation (“Marsden Park”) on 1 July 2019. At that time, she was joined there by her son R who had previously been living in the family home. He has continued to reside with his mother since that date. He is effectively estranged from his father.[9]

    [9] Witness Statement of R dated 18 September 2021.

    VGPX’S CLAIMS

21. VGPX claims that in effect, he has had care and responsibility for both P and S for almost all of the time between 1 July 2019 and “April/May 2020” when he agrees that significant changes in such arrangements took place.

22. In his oral testimony he stated:

    “From 1 July '19 - I will regard [S] first, our youngest, only because it's the easiest. [S] did have visit days at the house in Marsden Park, but she never actually stayed in the house at all. The first time that she stayed in the house was her birthday, on her 15th birthday… That was the first night that she actually stayed in the property. From that point on it was around April, May, I have to look back at the computer, where she actually started staying more so longer periods of time: one, two, sometimes three days as that period went on.

    [P] on the other hand did stay at Marsden Park on a few occasions. Her first night there was 1 July, that was the first night that anyone stayed in the property, on 1 July '19. She went with her brother when he took his bed and furnishings and the mother's bed and furnishing, and all the clothes that were still in the house, and delivered it to Marsden Park, when she spent the first four nights there, five days, helping sort the house out when everything was delivered.

    She had quite a few overnight stays, and 90 per cent of the time her friend [LF], who's a witness for the other party, was there with her to keep her company. [P] had a period of time where she only went a couple of times over a few months because she had a broken leg, so she was home in bed, and missed school and everything else. But [P] spent the majority of the time, more so than [S], at Marsden Park, but definitely not 50 per cent of the time.”[10]

    [10] Transcript of hearing dated 15 November 2021 at 6-7.

23. In a Statutory Declaration dated 1 October 2020 VGPX states that from 1 July 2019 to 30 September 2020:

    (a)The total number of days between the two dates is 458.[11]

    (b)Between 1 July 2019 and 31 December 2019 child P stayed at BYGM’s home for a total of 11 overnights.

    (c)Between 1 January 2020 and 30 September 2020 child P stayed at BYGM’s home for a total of 24 overnights.

    (d)During the period 31 May to 3 August 2020 P was confined to his home on a full-time basis as a result of being incapacitated by a broken foot (he explained in his oral evidence that it had required surgery and resulted subsequently in the wearing of a “moon-boot”).[12]

    (e)Between 1 July 2019 and 31 December 2019 S spent each night in his home and did not spend any night with BYGM.

    (f)Between 1 January 2020 and 30 September 2020 S spent a total of 59 nights staying with BYGM. Part of this time resulted from S being required to remain with BYGM due to (unspecified) COVID-19 isolation requirements.[13]

    [11] It is actually 457.

    [12] T-documents at 132.

    [13] Ibid at 133.

24. A note made by the departmental ARO on 12 October 2020 records that VGPX advised that:

    “The change in care arrangements of the children only commenced around July 2020, but not 50/50 care. From July 2019 the overnight stays were on and off. About 3.5 months ago [S] has been spending more time with her brother in Marsden Park and staying overnight 2-3 nights per week since then.”[14]

    [14] Ibid at 134.

25. VGPX was also able to submit to the AAT1 copies of letters provided by him to S and P’s schools advising of a change of their address to his residential address (Hassall Grove), presumably so he could be listed as the person to be contacted by the school if necessary and from the school to him about school fees and educational matters.[15]

    [15] Ibid at 7 and 139. There was other similarly supportive material related to the children’s residential address before the ARO when the determination of 13 October 2020 was made.

26. VGPX also emphasised to the Tribunal that he had sought to obtain details of the mobile phone locations of his daughters from the relevant service providers but that they had refused to provide them, on (proper) privacy grounds. He claims that these records would have better established the location of his daughters at various dates and times.

    BYGM’S CLAIMS

27. In terms of specific claims, BYGM states that:

    ·From 31 January 2020 to 14 February 2020 both P and S stayed with her every night – a total of 14 nights.

    ·In March 2020 P spent 19 nights at Marsden Park (with her mother) and S was there for 13 nights.

    ·In April 2020 P spent 23 nights with her mother and S spent 13 nights.

    ·In May 2020 P spent 20 nights with her mother and S spent 14 nights.

    ·S then stayed with her mother for what BYGM describes as “3 months straight” in July, August and September 2020, but then she qualifies this by indicating that S spent “10 nights during this time” staying with her father.

    ·There was then a period after September 2020 when S “decided that she wanted to split her time equally between staying at Marsden Park and Hassall Grove”, but when she stayed with her father the arrangements was that she spent most of the day with her mother and her father collected her late in the evening (9:30 to 10:30 pm) and took her back to his home where she stayed the night.

    ·P apparently broke her foot in mid-May 2020 and had surgery on it on 18 June 2020, after which time she resided with her father until 3 August 2020, although in that period of time she spent large parts of the day with her mother and returned to her father in the evening.

    ·Since 7 October 2020 when P left school “she has lived with me almost all the time since then”.

    ·Between 1 January 2020 and 30 September 2020 P was in her mother’s care for approximately 188 out of 274 days.

    ·In the same period, S was in her mothers’ care for 195 out of 274 days.[16]

    [16] Witness Statement of BYGM dated 18 September 2021.

28. In summary, BYGM told the Tribunal

    “[Ms Bickovsky – BYGM’s representative]: And where did you live after you moved out of your parents' house?---Marsden Park.

    Is that the house you're still in?---We're in our own home now.

    That's what I mean. When you moved out from your parents' house did you move to the house that you're currently in?---Correct.

    And did anyone else move into that house with you?---[R] permanently.

    And anyone else?---The girls were fifty-fifty. [P] was here more than 50; [S] made the decision herself that she wanted it to be fair, and she picked fifty-fifty care.”[17]

    [17] Transcript of hearing dated 15 November 2021 at 18, lines 9 to 21.

29. In support of these claims, BYGM put a number of documents to the Tribunal and called evidence from a number of witnesses.

    THE TESTIMONY OF R

30. R, the eldest child of the couple gave evidence to the effect that his sisters spent various periods of time with his mother (with whom he lived on a full-time basis) although he was generally unspecific as to exact dates or details of stays. He indicated that in 2019 his sister P “tended to stay later in the week at Marsden Park on Thursday, Friday and Saturday nights”. He stated that at the time of P’s accident with her foot, his other sister, S “stayed with us for a few months straight”. After that “she stayed at Hassall Grove for a while.” He also says that from “November 2020 until the lockdown started in 2021 because of Covid 19 (date actually unspecified), [P] spent all her weeknights at Marsden Park and weekend night’s at [LF’s] place.”[18]

    [18] Witness Statement of R dated 18 September 2021.

31. R was a very convincing and forthright witness in oral evidence and the Tribunal accords his testimony some weight although it is generally unspecific as to exact dates and may be coloured by the fact that he clearly has major issues with his father and states that “I do not wish to have any association with the name [VGPX’s surname]”.[19]

    [19] Ibid.

    THE TESTIMONY OF LF

32. LF is P’s closest friend – they have known each other since primary school and are “besties”. She provided a statement to the Tribunal and was invited to give oral evidence in support of that statement. As a young person she found it too difficult to cope with the processes and procedures of the Tribunal and so the Tribunal excused her from further involvement. VGPX indicated that he took no issue with any of the statements in LF’s written submission.

    “VGPX: Look, I'm willing to accept [LF’s] written statement without any further questions. Okay. When [P] was over there, [LF] was with her 95 per cent of the time for company.”[20]

    [20] Transcript of hearing dated 15 November 2021 at 42, lines 9 to 11.

33. In that statement, LF indicates that P started regularly “sleeping over” at her house (where her parents regarded her as a member of the family) starting in 2017. She has also stayed over with P at Marsden Park. She states that after the couple split up in 2018 P “spent lots of nights at my place but this was mainly on Friday and Saturday nights”. She also states that prior to P breaking her foot “Sometimes P stayed 4 nights a week. At other times it felt like she lived with us full time”. It was her impression that when P was not staying with her, she was with her mother “at least half of the time”.[21]

    [21] Witness Statement of LF dated 15 September 2021.

    BYGM’S PARENTS

34. BYGM’s parents in a handwritten note before the Tribunal (dated 13 September 2020) state:

    When we go to visit our daughter [BYGM] it is quiet [sic] common to see our granddaughters [P] and [S] there. They seem to spend their time between their mother and father as it takes their fancy to share their time between both parents.

    OTHER MATERIAL

35. There is a statement from a Real Estate Agent to the effect that BYGM and R have been tenants of the property at Marsden Park and that “we acknowledge that there are 2 additional occupants, being [P] and [S].” This statement is of no moment in these proceedings and has nothing to add to the question of where either child spent the day or night during the relevant period.

36. There were further statements from friends of BYGM which were essentially hearsay statements to the effect that she had told them about the alleged care arrangements for each of the children and that they had seen or spoken to one or other of the children at Marsden Park at some time during the periods in question.[22] The Tribunal has taken note of these statements but as they are primarily hearsay and do not involve any physical sighting of where the children were each night in question, it places limited reliance on them.

    [22] Witness Statements of Lawrence Thomas (who lives in far western NSW and knows BYGM through social media contacts) dated 6 September 2021 and Jenni Capps (a friend of BYGM who lives in Queensland) dated 17 September 2021. Mr Thomas also gave oral testimony to the Tribunal.

    PATTERNS OF CARE

1. As with so many critical terms in social security legislation, the key terms “care” and “pattern of care” are not defined in the legislation. In many such cases before the Tribunal regard has been had to the decision by Federal Magistrate Hughes in Polec v Staker and Anor[23] which provides a “workable guide”[24] as to the factors to be taken into account when determining if “care” has been provided, albeit this decision was made in relation to a child support matter rather than FTB, under different legislation.[25] These factors include (but are not limited to) 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 extracurricular 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?

   [23] [2011] FMCAfam 959.

   [24] P v Child Support Registrar [2013] FCA 1312 at [107].

   [25] Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).

2. The Guide takes a somewhat mechanistic approach to working out patterns of care with a general emphasis upon the number of nights spent by the FTB child with the care-provider/parent.[26] In this it relies on section 35J of the Act:

   35J Working out actual care, and extent 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 purposes 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.

   [26] Family Assistance Guide (Guide) at 2.1.1.45.

3. However, this is not always a satisfactory way of establishing what level of actual care has been provided, especially where it is apparent that a child spends a large (or even predominant) part of any day with one parent but returns to the residence of the other parent each evening to sleep. An approach reliant solely on where a child spends the night can be particularly disadvantageous to one parent who might, as a result of family separation and departure from the family home, lack stable accommodation for some time, or be temporarily sharing accommodation until settling into a more stable living arrangement.

4. In this instance, matters are complicated by the fact that clearly, P spent a considerable amount of her nights with neither parent but stayed with LF and her family.

   DISCUSSION

5. The Tribunal in previous decisions has indicated that where there is both written contemporaneous evidence and evidence based on memory, that the former should be given greater weight.[27] However, as is apparent in this instance, neither party has produced satisfactory contemporaneous written records.

   [27] Free and Secretary, Department of Family and Community Services and Anor [2003] AATA 678 at [33].

6. The issue in these proceedings is further complicated by the fact that P obviously spent a considerable period of time residing (overnight) with neither parent. This is clearly not a case of “delegated care”[28] where a formal arrangement has been entered into by one or both parents for the provision of care by a third party.

   [28] Guide at 2.1.1.60 and the Act at section 25.

7. The Tribunal sought advice from the Respondent on the question of legal responsibility in circumstances such as this and was helpfully advised that:

   “As per paragraphs 18 and 19 of the Secretary’s Statement of Facts and Contentions dated 20 October 2021, in accordance with paragraph 22(2)(d) and 22(5)(a) of the Act, an individual is an FTB child of an adult if the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual.

   
   
   

   The Family Assistance Guide at Instruction 1.1.L.20 provides a definition for legal responsibility:

   For the purposes of FA, legal responsibility is the right to have and to make decisions concerning the day-to-day care, welfare and development of a child. Both parents are legally responsible for their child, except where:

   ·they agree that one parent should have greater or sole responsibility, or

   ·a court makes an order that changes their responsibility in a particular matter.     

   The Tribunal in Barrett; Department of Family and Community Services [1999] AATA 196 considered the term legal responsibility and stated at paragraph [40]:

   Legal responsibility is not determined by who has the actual physical care and control but by a consideration of those who, either at common law, or as a result of an order of the Family Court, have that responsibility. Such responsibility may flow from a person's entitlement to custody of a child or, in certain circumstances, from his or her having access.”[29]

   [29] Advice from the Respondent provided to the Tribunal by email dated 19 November 2021.

8. Unfortunately, this does not really serve to clarify the position as to which parent, at any particular time, had legal responsibility for P while she was staying with LF’s family as it appears that she might otherwise have been staying with either.

9. It is clear that the care arrangements for P and S are different. They have different patterns of residing with both their mother and father (or neither) and it cannot be assumed that the arrangements in place regarding P are identical with those regarding S.

10. The Tribunal accepts the evidence of both BYGM and R to the effect that:

    ·S spent more time at Marsden Park than did P, especially in the period when P was effectively confined to Hassall Grove recuperating from her foot surgery; and

    ·S expressed concerns that she felt neglected by VGPX in this period and so was reluctant to remain at Hassall Grove.

11. The discrepancies in the competing narratives are not simply a matter of degree. They are utterly irreconcilable:

Claim by:[30]	Period	No. of days	CHILD P Nights spent away from Father’s care	CHILD S  Nights spent away from Father’s care
Father	1 July 2019 30 Sept 2020	457	35	59
Father	1 January 2020 30 Sept 2020	274	24	59
Mother	1 January 2020 30 Sept 2020	274	188	195

[30] Father’s claims at T-documents 132-133; Mother’s claims at her Witness Statement of 18 September 2021.

1. To put it bluntly, there is nothing sufficiently solid or probative before the Tribunal which would allow it to determine in any definitive way the exact details of where each of the children spent either their days or their nights beyond 1 July 2019.

2. This point was recognised by the AAT1 which concluded that:

   [T]he Tribunal is unable to determine the exact care percentages with mathematical precision, in such a situation of disputed care, where it is clear that both parents had significant care of the children…[31]

   [31] T-documents at 12, AAT1 decision at [31].

3. It went on from this observation to determine that:

   …it is not unreasonable for each parent to be allocated a care percentage of 50% as Centrelink has done. This is within the discretion of both the Secretary and the Tribunal and is consistent with the available evidence.[32]

   [32] Ibid.

4. In Dallas the Tribunal stated:

   The Tribunal has also revisited Reasons for Decision in the SSAT determination of 16 June 2003 to reject Ms Dallas’ claims for FTB and affirm the decision under review. The Tribunal has not found any firm evidence which might result in significant amendment or abandonment of the SSAT decision. While the Tribunal has some sympathy for the situation Ms Dallas faces, there is no convincing proof that the pattern of care she provided during the relevant period exceeded 10 per cent. The Tribunal has therefore decided on the balance of probabilities the decision under review should be affirmed.[33]

   [33] Dallas and Secretary, Department of Family and Community Services and Anor [2005] AATA 562 at [40]. Emphasis added.

5. BYGM did not press the Tribunal to make a new determination of care based on a 30%/70% care percentage split for the period from 1 January 2020 to 30 September 2020 which would have been justified if the level of care provided was as she claims.

6. VGPX did not press the Tribunal for anything other than for the 50%/50% care percentage decision of the AAT1 to be set aside, in terms of making an effective claim for the period from 1 July 2019 to 30 September 2020 when, according to his calculations he would have been entitled to be awarded 100% of care; nor for the period from 1 January 2020 to 30 September 2020 when he would have been entitled to 84%.[34]

   [34] Based on the calculations in ss 3 and 35P of the Act.

7. Again, to be blunt, the Tribunal does not accept that the claims of either VGPX or BYGM are entirely credible.

8. Both the ARO and the AAT1 reviewed all of the evidence presented by the parties and heard from them personally. They each separately determined that, on the balance of probabilities the care arrangements between the parties should be assessed as 50%/50%.

9. This Tribunal has likewise received evidence and heard from the parties. It is not persuaded that any evidence has been put before it which would suggest that the determinations made by the ARO and the AAT1 were incorrect and it has independently reached the same conclusion as the previous decision-makers.

   DECISION

10. The decision under review is affirmed.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 9 December 2021

Date(s) of hearing:	15 November 2021
Date final submissions received:	19 November 2021
Applicant:	In person
Solicitors for the Respondent:	Ms E Ulrick, Services Australia
Solicitors for the Other Party:	Ms R Bickovsky, Legal Aid