Wade and Secretary, Department of Family and Community Services a Nd Anor

[2004] AATA 276

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 276

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2003/539

GENERAL ADMINSTRATIVE DIVISION		)
Re		PAUL WADE

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

and

LINLEY BARAN

Respondent

DECISION

Tribunal Deputy President, Don Muller

Date 8 March 2004

Place Brisbane

Decision  The Tribunal affirms the decision under review.

...................(Sgn)............................

DEPUTY PRESIDENT

CATCHWORDS

Social Security- percentage of shared care of children – reasonable to use a method based on the number of hours the children are in the care of each parent- decision affirmed

Family Assistance Act 1999

REASONS FOR DECISION

1.      This is an application to review a decision by the Social Security Appeals Tribunal (SSAT), dated 4 June 2003, which determined that between 1 July 2002 and 30 June 2003, the percentage of shared care Paul Wade had of his two children was 69%, for the purposes of the Family Assistance Act 1999.

2.      This review concerns the arrangements between Paul Wade and Ms. Linley Baran, the mother of the children, for the period from 1 July 2002 to 30 June 2003.

3.      It was agreed between Mr. Wade and Ms Baran that the care arrangements between them for the period under review were that Ms. Baran have the care of the children:

(a)One night per week from after school at  3 pm, until the next morning, when they went to school at 9:00am.

(b)Alternate weekend access from 3 pm Friday until 6 pm Sunday.

(c)One half of the school holidays.

4.      The SSAT calculated the total hours for the year spent by the children in Ms. Barran’s care at 2748.

5.      The SSAT determined that there are 8760 hours in one year. Hence the percentage of shared care attributable to Ms. Baran was 31.36%, rounded down to 31%.

6.      The SSAT concluded that the balance of shared care attributable to Mr. Wade was 69%.

7.      Mr. Wade submitted that the percentage of shared care should be not calculated to the reference to the hours that the children were in care, but should be based solely on the number of full days during which the children were in the respective care of their parents. That is, Mr. Wade submitted that those periods during which the children stayed the night with their mother from 3pm in the afternoon until 9 am the following morning, should be ignored for the purpose of the calculation.

8.      The Tribunal accepts that there may be very short periods of time during which a child is in the care of a parent, which time could perhaps be disregarded for the purposes of this type of calculation in the interests of practicalities and common sense. However, the Tribunal regards a period from 3 pm one day to 9 am the following day, as quite significant. It should be part of the calculation.

9.      The Tribunal agrees with the SSAT assessment. It more accurately reflects the reality of the level of care provided by the parents for the period under review, than would be the case if only full days were taken into account.

10.     The Tribunal affirms the SSAT decision.

I certify that the 10  preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .......................................................................................
  Associate

Date/s of Hearing   8 March 2004
Date of Decision    8 March 2004
Advocate for the Applicant:        Paul Wade      

Advocate for the Respondent :   Helen Wallis -Dunn