WSDL and Secretary, Chief Executive Centrelink (Social security second review) - [2025] ARTA 791

WSDL and Secretary, Chief Executive Centrelink (Social security second review) [2025] ARTA 791 (19 June 2025)
Applicant:WSDL
Other Parties: Secretary, Chief Executive Centrelink (Respondent)
CLWY (Added Party)

Tribunal Number: 2023/9085
Tribunal:Senior Member T Hamilton-Noy (second review)
Place:Melbourne
Date:19 June 2025

Decision:The Tribunal sets aside the decision under review and substitutes its decision that, in the period 1 July 2018 to 30 June 2019, the Applicant had 47% care of the child and the Added Party had 53% care of the child.

Statement made on 19 June 2025 at 10:44am
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 161(1B)–161(1C) of the A New Tax System (Family Assistance) (Administration) Act 1999.
Catchwords
Family assistance legislation – family tax benefit – percentage of care of a child – different care arrangements within a care period
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
P v Child Support Registrar [2013] FCA 1312
Polec v Staker [2011] FMCAfam 959
Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 607
Statement of Reasons
Background

This application relates to the care of a child, for family assistance purposes, during the 2018/19 financial year.
The Applicant and the Added Party are separated and are the father and mother of one child. The Applicant lodged a claim for family tax benefit in respect of his care of that child with Services Australia (Centrelink) on 20 February 2019. In the claim form, the Applicant stated he had had 100% care of the child since 3 June 2018. At the time the Applicant lodged the claim form, he was recorded as having 0% care of the child and the Added Party was recorded as having 100% care of the child.
On 8 March 2019, a decision was made by Centrelink that the Applicant had 100% care of the child from 1 July 2018. Following a review of his circumstances, on 16 July 2020 a further decision was made that the Applicant had 0% care of the child between 3 June 2018 and 19 January 2019, 100% care of the child from 20 January 2019 to 13 March 2019 and 0% care of the child from 14 March 2019 to 7 June 2019. This decision was affirmed by an authorised review officer of Centrelink on 15 December 2022.
The Applicant applied to the Administrative Appeals Tribunal (the AAT) for an independent review of the Centrelink decision on 17 August 2023. On 19 October 2023, the AAT at first review set aside the decision and substituted its decision that, from 1 July 2018 to 30 June 2019, the Applicant had a care percentage of 42% for the child and the Added Party had a care percentage of 58% for the child.
On 1 December 2023, the Applicant applied to the AAT for a second review of the decision. An extension of time was applied for and was subsequently granted by the AAT on 2 January 2024.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The Tribunal hearing in this matter was conducted on 5 May 2025. The Applicant participated in the hearing by telephone and gave evidence on affirmation. A representative of the Respondent also participated in the hearing by telephone. The Added Party was contacted by the Tribunal at the time of the hearing and stated that she did not want to participate in the hearing. Documents had been exchanged between the parties prior to the hearing and the Applicant confirmed with the Tribunal that he had received the Respondent’s bundle of documents and its Statement of Facts, Issues and Contentions.

Issues and relevant law

The legislation relevant to the administration of family assistance payments is contained in the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) and the A New Tax System (Family Assistance) (Administration) Act 1999.
Part 3 of the Family Assistance Act sets out the legislation relevant to determining eligibility for family tax benefit. Subsection 21(1) of the Family Assistance Act provides that an individual is qualified for family tax benefit in the following circumstances:[1]
[1] Subsections 21(1A), (1B) and (1C) of the Family Assistance Act set out other circumstances in which an individual will qualify for family tax benefit. These relate to specified visa holders and do not apply in the current case.
(1)  An individual is eligible for family tax benefit if:
(a)   the individual:
(i)  has at least one FTB child; or
(ii)  has at least one regular care child who is also a rent assistance child; and
(b)   the individual:
(i)  is an Australian resident; or
(ia)  is a special category visa holder residing in Australia; or
(ii)  satisfies subsection (1A) or (1B); and
(c) the individual's rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding section 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1, is greater than nil.
Where a child is under 16 years of age, subsection 22(2) of the Family Assistance Act states that the child is an FTB child of another individual when:
(2)  An individual is an FTB childof 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).
Subsections 22(5)(a), (b) and (c) then state that:
(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, welfare 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 of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
Subsection 22(5) of the Family Assistance Act provides that if an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of the individual for the purposes of the section, on each day in that period, whether or not the child was in that individual’s care on that date. Section 25 of the Family Assistance Act states that if an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child of that individual for any part of the period.
Subdivision D of Division 1 of Part 3 of the Family Assistance Act provides the relevant legislation for determining a percentage of care for family tax benefit purposes. Subsection 35J(1) of the Family Assistance Act states that 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 the child was, or will be, in the care of the individual during the care period. However, for the purposes of the section, a child cannot be in the care of more than one individual at the same time (subsection 35J(3) of the Family Assistance Act). Where a percentage of care determined under the Subdivision is not a whole percentage, if it is greater than 50% it is rounded up to the nearest whole percentage and if it is less than 50% it is rounded down to the nearest whole percentage (section 35M of the Family Assistance Act).
As noted in submissions provided by the Respondent, “care” is not defined in the legislation. In Polec v Staker [2011] FMCAfam 959, the then-Federal Magistrates Court considered the meaning of care of a child within the context of child support law and noted the following considerations (at [56]):
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:
·       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?
·       To what extent does the person make arrangements for others to meet the needs of the child?
·       To what extent does the person pay for the costs of meeting the needs of the child?
·       To what extent does the person otherwise provide financial support for the child?
·       To what extent does the child provide for his or her own needs or have those needs met from another source?
·       To what extent is the child financially independent or financially supported from another source?
As also noted by the Respondent in written submissions provided to the Tribunal, in P v Child Support Registrar [2013] FCA 1312 the Federal Court commented on the assistance that Polec could provide to decision makers (at [107] – [108]):
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.
Subsection 59 of the Family Assistance Act states that an individual has a “shared care percentage” for an FTB child where a percentage of care has been determined for a child during a care period and that percentage is at least 35% and not more than 65%. Subsection 59(2) sets out a table for calculating the shared care percentage in respect of a child: where a percentage of care is 35% to less than 48% their shared care percentage is 25% plus 2% for each percentage point over 35%; where a percentage of care is 48% to 52%, the shared care percentage is 50%; and where the care is more than 52% to 65%, the shared care percentage is 51% plus 2% for each percentage point over 53%.
Section 35P of the Family Assistance Act provides the circumstances in which an individual’s percentage of care for a child must be revoked. This section states as follows:
(1)  The Secretary must revoke a determination of an individual's percentage of care (the existing percentage of care) for a child made under section 35A or 35B if:
(a)   the Secretary or 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
(b)   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; and
(c)   subsection (2) applies in relation to the individual.
Note:  The Secretary must make another determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2)  This subsection applies in relation to an individual if:
(a)  section 35C did not apply in relation to the individual; or
(b)  section 35C did apply in relation to the individual but the maximum interim period for the determination has ended; or
(c)  all of the following apply:
(i)   section 35C did apply in relation to the individual;
(ii)   the maximum interim period for an earlier determination of the individual's percentage of care for the child has not ended;
(iii)   an interim period for the earlier determination does not currently apply;
(iv)  the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note:  For when section 35C does not apply, see section 35F.
(3)  The revocation of the determination takes effect at the end of:
(a)   if the change of care day for the individual occurs during an 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 3 of the Family Assistance Act defines the following to be 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%.
Section 35B of the Family Assistance Act states that:
(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 1999for 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.
The term “care period” is not defined in the legislation. The Family Assistance Guide at 1.1C.100 provides the following commentary on Centrelink’s policy interpretation of care periods:
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 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.
The Tribunal is not bound by the Family Assistance Guide, but will generally follow the policy unless there are cogent reasons in a particular case for not doing so (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645).

Evidence before the Tribunal

Evidence of the Applicant

The Applicant told the Tribunal at the hearing that he believes he had more than 42% care of his child in the 2018/19 financial year. He told the Tribunal that, while he had provided bank statements as evidence of this care, these had not been accepted as demonstrating when he had spent time with his child. He agreed in his evidence that he had not kept records of specific dates of care. He asserted that he had had 60% to 65% care of his child and the Added Party had had 30% to 35% care of the child. He gave evidence that he and the Added Party were the only people who had provided care to their child during the 2018/19 financial year.
The Applicant gave evidence that as of July 2018, he was living in Location 1, some 350 kilometres, or a three to three-and-a-half hour drive, away from the Added Party (Location 2). He stated that in that period he was “down there” nearly every weekend, as he had a local house he was able to stay at, 10 minutes away from the Added Party’s residence (Location 3). He agreed that the child was with the Added Party during the week in that period and he stated that the child had stayed with him on weekends and that 90% of the time she would stay overnight, mostly Friday, Saturday, Sunday and Monday. The Applicant stated that, as he was not working at the time, he wasn’t required to be back home by Monday. There were times when his child would come back to his home with him.
The Applicant’s evidence at the hearing was that there had been a house swap in “July or August” because the Added Party had commenced a training course. They were not getting along at the time and, while he did his best to stay with her, the arrangement didn’t last longer than 14 days. He then returned to the Added Party’s house.

The Applicant estimated that, prior to the house swap, he had spent a lot of time with his child. He would see her a lot; she would stay for a week at a time, and there was an average of two to three nights per week where she stayed with him. A lot of the time he would pick her up on a Friday. The child would be with him nine or ten days. She was with him when his house was raided by police in June.
Later in his evidence at the hearing, the Applicant described the training course that had led to the house swap as having occurred in mid-June. He stated that the company had run multiple different dates and could only provide him a broad range of dates that the Added Party had attended. The Applicant’s evidence was that the last one of the training sessions had been run in August 2018 and had run for two weeks and that he had had the child all of that period as well. When the Added Party then commenced work (at the same place the training had been conducted), the Applicant stated that he had not given the child back to the Added Party until Christmas Eve or Christmas Day.
The Tribunal had been provided a written statement prepared by the Added Party, dated 3 January 2019, stating that the Applicant had stayed in her house for nine weeks leading up to Christmas to look after their child while she was training and then working. The Added Party stated that, during that time, she had stayed in the Applicant’s house (in Location 1) and they had done a house swap. When this document was put to the Applicant at hearing, he responded by stating that the house swap was definitely longer than nine weeks. He stated that his grandmother had passed away and he had been at the Added Party’s house for two weeks prior to his grandmother’s passing and knows he was there for a long time.
The Applicant gave evidence at the hearing that he had been providing financial support for the child and that the Added Party was using his spare bank account. He stated that, in November 2018 he stopped providing financial support to the Added Party because he found out she was in another relationship, but he had always provided financial support for his child. He noted that he had provided bank statements to show his expenses.
The Applicant stated that he had care of the child up to Christmas Eve or Christmas Day and the child was then with the Added Party for 13 days; he had nil care of the child from Christmas Day through to 19 January 2019. He then had his child in his care from 19 January 2019 through to March 2019, when she was “taken from him”.
The Applicant gave evidence that, from March 2019 to June 2019, he continued to stay at the house at Location 3 and that he had moved to the main city in his state on 16 March 2019. He stated that, as of March 2019, he had negotiated with the Added Party around the care of the child by text messages and phone calls and the Added Party would text him to see the child. He told the Tribunal that the child was not in kindergarten as of May 2019; when a document was put to him suggesting that the child had been in kindergarten on Tuesdays, Thursdays and Fridays, he then stated that he had dropped the child off, that the child had not been enrolled at the start of 2019 and that the child’s attendance had been poor. When asked about the kindergarten hours, the Applicant stated they had been 8:45 to 2:45 and that he does remember dropping the child off a couple of times.
When asked about any overnight care arrangements from March to June 2019, the Applicant stated that he had had care of the child, at a minimum, on the weekend from Friday to Sunday. This would have been overnight care and was at Location 3 which is owned by his grandfather. As to whether he was residing with his mother for a period of time, the Applicant stated that this was on and off and he really can’t remember. He gave evidence that his parents reside 45 minutes from Location 1, and four hours from Location 3. When asked about travel to his parents’ house between March and June 2019, the Applicant stated that there was lots of travel and they would go there every weekend.
The Applicant had appeared before the AAT at first review and the Tribunal noted that a summary of the evidence he had given at that hearing was outlined in the AAT’s written Statement of Reasons as follows:
[The Applicant] stated that in July 2018 he was seeing a lot of [the child] but she lived 350 kilometres away and he couldn’t work and travel to see [the child] so he left work. He didn’t have 100% care of [the child] from July 2018, but felt like it was around 25% to 40%.
When [the Added Party] was employed in October 2018 they swapped houses so that she could get to work. She stayed in his rental property at [Location 1] and he lived with [the child] in [Location 2] near [capital city]. He did not claim family tax benefit and parenting payment until December 2018 as he thought he could get by on newstart allowance, but his mother helped him out too. [The Added Party] had a higher rental liability than him and he thought he was doing the right thing and that she would help with the financial support of [the child].
[The Added Party] had drug and alcohol issues and he ended up deciding it would be better for [the child] if she lived with him. He had her full-time from early January to the middle of March 2019 when he returned [the child] to [the Added Party’s] care. After that, there was a trust issue between the parents but he was still able to see [the child] a lot. He moved to [Location 3] and saw [the child] every Friday, Saturday and Sunday. He did not keep records of the time [the child] was in his care.
The Applicant had provided documents in support of his position for the AAT proceedings at first review. From these documents (contained in the bundle of “T documents”), the Tribunal had particular regard to the following information:
·Statutory declaration prepared by KMS, dated 20 February 2019, stating that the child had been living with the Applicant “for approx. 8 months”;
·Statutory declaration prepared by the Applicant’s mother, dated 21 February 2019, stating that the child was living with the Applicant and had done so “for several months”;
·Statutory declaration prepared by LT, dated 21 February 2019, stating that the child was living with the Applicant and had done so “for some time now”;
·Statutory declaration prepared by RAL, dated 21 February 2019, stating that the child was living with the Applicant and had done so “for aprox [sic] 8 months”;
·A “Chronology” of events prepared by the Applicant for family court proceedings and provided to Centrelink by the Applicant. In the chronology, the Applicant states (in relevant part) that:
-     June 2018 until early 2019: The child lived with him;
-     Mid/late 2018: The Added Party undertook a course to gain employment and commenced employment in October 2018. The Added Party resided in Location 1 with the Applicant and child as it was easier to commute;
-     Mid/late 2018: The Applicant relocated to the Added Party’s home in Location 2 with the child. The Added party continued to reside in the Applicant’s home at Location 1 to be closer to work;
-     Late 2018: The Applicant moved from Location 1 to Location 3;
-     19 January 2019: The child lived with the Applicant;
-     20 January 2019: The Added Party was hospitalised;
-     13 March 2019: The Applicant took the child to the Added Party to spend time with the child on her birthday. The child was not returned to the Applicant’s care.

Evidence given by the Applicant’s mother

During the hearing, the Tribunal took evidence from the Applicant’s mother. The Applicant’s mother spoke to the Tribunal by telephone and gave evidence on affirmation.
When asked to comment on care arrangements for the child between 1 July 2018 and 30 June 2019, the Applicant’s mother gave evidence that she had looked after the child a few times, that she had given the Applicant money and that the child was in the Applicant’s care and the Applicant’s mother would babysit. The Applicant’s mother stated that the Applicant had care of the child the whole time from July 2018 up to March 2019, aside from a couple of weeks around Christmas time. When asked directly whether the Applicant had had full-time care of the child as of July 2018, the Applicant’s mother stated yes. When asked what contact she had had with the Applicant and the child as of 2018, the Applicant’s mother stated that most of the time the Applicant would be in Location 1 or would come and see them. He used to stay at the Added Party’s house when the Added party was working; this had started in “October roughly”. The Applicant’s mother stated that, between July and October 2018, the Applicant and the child had been living in Location 1 and the child was with the Applicant seven nights per week. After October 2018, the Added Party moved to Location 1 and the Applicant and child moved to the Added Party’s house in Location 2.
The Applicant’s mother stated that the Applicant’s grandmother had passed away on 15 November 2018 and the Applicant had returned for his mother’s funeral before returning to the Added Party’s house.
The Applicant’s mother told the Tribunal that in the first half of 2019, care of the child was entirely up the Applicant, was supposed to be part-time but that the Added Party had gone interstate and the Applicant had the child 100% of the time in 2019. When questioned further about this, the Applicant’s mother stated that in 2019 the Applicant had only had the child until March and the child had then stayed with the Added Party. She was unable to state what the care arrangements had been between March and June 2019 and stated that, while she would have seen the Applicant, she doesn’t know how often that would have been.
When asked about the financial support she had provided to the Applicant, the Applicant’s mother stated it had been “lots”.
When asked to comment on his mother’s evidence that he had had 100% care of the child from July 2018, and that this was different from the evidence he had given to the Tribunal, the Applicant stated that he believes it was from June 2018 but has no evidence to prove that. The Applicant stated that he didn’t speak to his mother before she gave evidence. As to the March 2019 arrangements, the Applicant stated that he knows he took the child up to see his parents a bit through that period.

Evidence of Ms PS

The Tribunal also took evidence during the hearing from an employee of the Added Party’s employer, Ms PS, at the request of the Applicant. Ms PS told the Tribunal that the Applicant is a family friend in the town where they live and she has known him for two years, as a family friend rather than through work. Ms PS gave evidence that the Added Party had worked for her employer but that there were no records of when the Added Party had undertaken training for the company. Ms PS stated that she knows when the training dates are during the year and that she had an email from her employer about staff placements that she would not provide the Tribunal as evidence of training dates. She stated that there had been training at the end of August and it is usually a week or two before the start of October and that this was the last training conducted in a year.
Ms PS stated that in 2018 the last training would have been from the end of August to mid-September. When asked why she could not provide the Tribunal with evidence of training dates, Ms PS stated that it is “confidential under work” and she is not allowed to give the information out. When asked when the Added Party would have undertaken the training, Ms PS stated that she cannot give that information and doesn’t have details of when the Added Party did the training.
When asked what the hours are that training was run, Ms PS stated that it depends on the days and how much they get done, but is usually 8am to 4pm. Ms PS gave evidence that the Added Party would have undertaken a three day course during August to September and that this would not have lasted for four weeks. When asked typically how many weeks before work started the training would be run, Ms PS stated that some can be up to one week before a person starts.
When asked to comment on the above information, the Applicant stated that he had never said the Added Party’s training was a four-week course but that in that period he had the child. The Applicant stated that Ms PS is technically not a family friend but he knows her from the local community and would call her an associate.

Position and evidence of the Respondent

The Respondent’s written submissions noted that the Respondent adopts a neutral position on the factual issues before the Tribunal and this position was confirmed by the Respondent’s representative at the Tribunal hearing.
The Respondent provided a set of hearing papers for the Tribunal and from these the Tribunal noted in particular the following documents:
·   The Applicant had provided the Respondent a form on 29 January 2019 about his care of the child, in which he stated that the child did not spend time with anyone other than him; the care arrangement had commenced on 3 June 2018; and there was no court order, parenting plan or written agreement about the care of the child.
·   Claim form submitted by the Applicant to Centrelink on 20 February 2019, in which he stated the care arrangement for the child had commenced on 3 June 2018 and he had had 100% care of the child. In the form the Applicant stated that the child had come into his care permanently as of 3 June 2018 and before that the child was predominantly with the Added Party, but that he had had care on weekends.
·   Case Information Affidavit prepared for family court proceedings by the Added Party. In the Affidavit, the Added Party indicates that she had not seen the child for three months at the beginning of 2019 due to the child being withheld from her and that the child had come back into her care around March 2019.
·   Statement prepared by the Added Party, dated 3 January 2019, in which she states that the Applicant had stayed in her house for nine weeks leading up to Christmas to look after the child while she was training and working, that she stayed at the Applicant’s house during that time and that they had done a “house swap”.
·   Part of a statement prepared by the Applicant for family law proceedings, undated, stating that following separation he had cared for the child each weekend and on occasions for extended periods of up to two weeks.
·   Information prepared by the child protection service in the state in which the parties were residing, which indicates that:
-     The child protection service had initially been in contact with the family several years earlier;
-     In January 2019, the child protection service had investigated neglect and emotional abuse concerns in relation to the child, after the Applicant had contacted the service about ongoing violence. The service also received a domestic violence incident report about an incident that had occurred on 1 January 2019, where it was alleged that the Applicant had attended the Added Party’s address and kicked a door in and scratched a car. Concerns had been raised about the Added Party drinking while caring for the child and about her driving while abusing alcohol. After investigation, the case was closed with no further action;
-     On 23 January 2019, the service received a call from the Added Party advising that the Applicant had the child and would not return the child. No protection concerns were raised and the contact was closed with no further action;
-     On 23 January 2019, the service received a domestic violence incident report which raised allegations that the Added Party had attended the address of another family member and demanded the child. It was determined that the Applicant had acted appropriately during the incident and the contact was closed with no further action;
-     On 14 February 2019, the service received concerns about the child after spending time with the Added Party relating to altered toileting habits. The Added Party had been involved in a serious car accident and that the child was described as having been in the Applicant’s care since that time;
-     On 14 February 2019, the service received contact from the Added Party about the welfare of the child in the Applicant’s care and reported that the Applicant was withholding contact;
-     On 10 April 2019 the service received a domestic violence incident report. No information of relevance in relation to the care of the child was noted in the description of the incident;
-     On 9 May 2019, Added Party requested a letter be prepared by the service advising Centrelink that the child was in her full-time care. A letter was prepared but it only confirmed the service’s involvement.
·   The Added Party lodged a claim with Centrelink on 5 April 2019, in which she stated that the child had come into her care on the child’s date of birth and that she did not share care of the child with another person;
·   In a “Details of your child’s care arrangements” form submitted to Centrelink on 9 May 2019, the Added Party stated that the current care arrangement for the child commenced at the time of the child’s birth (2015) and that the child did not spend time with anyone other than the Added Party;
·   In a “Details of your child’s care arrangements” form submitted to Centrelink on 23 May 2019, the Added Party stated that the current care arrangement started on 19 March 2019 and that the child did not spend time with anyone other than the Added Party;
·   The Added Party provided documents to Centrelink on 24 May 2019. One was a letter prepared by a doctor stating that the child had attended the doctor’s surgery with the Added Party on 24 May 2019 and that was the third visit the Added Party had attended with the child. A second letter was prepared by a “class teacher” and stated that the child was dropped off at school on their designated days (Tuesday, Thursday and every second Friday) by the Added Party; and
·   A handwritten document, addressed “to whom it may concern” by the Added Party, stated that the child had been in the care of the Applicant from 20 January 2019 to 14 March 2019.

Evidence of the Added Party

The Added Party was advised of the hearing details and was contacted by the Tribunal at the commencement of the hearing. The Added Party advised a Tribunal Officer that she did not want to participate in the hearing.
The Tribunal noted that the Added Party had given evidence at the AAT hearing at first review. The evidence she gave was recorded in the Statement of Reasons of the AAT as follows:
[The Added Party] agreed that [the Applicant] saw [the child] regularly over the weekends while she was living in [Location 2]. [The Applicant] was living in [Location 1]. They had an on-off relationship but [the Applicant] would get things for her and would drop things off and come in and spend time with [the child].
She did not keep a record of when [the child] was in the care of [the Applicant] but “he had a massive involvement”. She feels like she had the majority of the care and that she was responsible for the day-to-day care.
They ended up deciding that [the Applicant] would have full care of [the child] after [the Added Party] was successful in gaining work in October 2018. She started on 31 October 2018 at [workplace] working on the grain harvest. She attended a training course for a week which she thinks was earlier in October 2018. [The Applicant] was living with [the child] in [another suburb]. She sent money to [the Applicant’s] bank account as she knew he was only getting newstart allowance. There was no set amount per week. The transfer of $4,750 in December 2018 was for the purchase of a car and was not for the support of [the child].
[The Added Party] resigned from work on 25 December 2018. She had a mental health condition and things were not going well in their relationship. There were issues with alcohol and drugs. In January 2019 [the child] was with [the Applicant] full-time. He withheld care and she didn’t know where they were. There was no contact, but after [the child’s] birthday in mid March 2019 he returned [the child] to her care.
From mid-March 2019 [the child] was spending time with [the Applicant] every second weekend. During the week he would visit. She does not believe it was as often as every Friday, Saturday and Sunday. There was no agreement, and the arrangement would fluctuate. She did not keep records of the time [the child] was in [the Applicant’s] care. She reclaimed parenting payment (single) in April 2019.

Findings of the Tribunal

The AAT at first review limited itself to considering the care arrangements within the 2018/19 financial year, and the Tribunal considered it was appropriate for the Tribunal on review of this matter to also confine itself to a care period from 1 July 2018 to 30 June 2019.
Section 35J of the Family Assistance Act allows for, but does not require, care to be worked out using nights of care. Taking into account all of the evidence before it, the Tribunal considered that assessing care of the child by nights of care is an appropriate approach in this case. There is no evidence before the Tribunal that would suggest that assessing care by this method would lead to an unfair or incorrect assessment of the pattern of care each parent provided to the child in the care period, for example, because one parent provided substantial care during the day time and the use of nights of care would not fairly reflect this. The Tribunal further considered that this approach would also reflect the guidance provided in Polec v Staker, in that it captures who was meeting the needs of the child and the costs of meeting those needs, broadly, during the care period.
The Tribunal accepted that there are no written records of care prepared by either of the parents in this matter. Bank statements provided by the Applicant do not provide direct evidence of any child-related expenses that would allow the Tribunal to ascertain the nights of care the Applicant had of the child in the period under review. The Tribunal has not placed any weight on the bank statements provided by the Applicant in this matter.
The totality of the evidence before the Tribunal suggests that there were a number of distinct periods and arrangements within the 2018/19 financial year, and the Tribunal considered each of these in turn. In considering what the pattern of care was for the child, the Tribunal had regard to comments of the AAT in Rogers and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 607, referred to in the Respondent’s written submissions, where the AAT (at [18]-[20]) noted the following about the preferable approach in considering a pattern of care for family assistance purposes:
The essential decision must therefore be made in terms of s 59(1) of the Act, ie. the Secretary may determine the percentage of family tax benefit for each child which is to be paid to each parent. The Family Assistance Guide (“the Guide”) is of some use conducting this evaluation. In particular, the Guide specifies that where the percentages or the care arrangements between the relevant parties is not agreed, then it is necessary to determine “a pattern of care”. This is usefully done by adopting “either the number of nights in care ... or the hours of care for each FTB child. The percentage of care for each FTB child is then calculated and applied to the standard rate ...”.
The application of s 59(1) and the Guide was amplified in Wade v Secretary, Department of Family and Community Services. The Court said that the purpose of the Act is to provide the proportion of the benefit to “... the person having the care of the child. To be consistent with this object the percentage of care to be assigned to each person should reflect the actual care provided by them ... The pattern of care is also used as the basis for calculation of the percentage ...”.
It has been previously determined in this Tribunal that exactness in calculations or determinations of “day-to-day variations in that care” is not intended. Also, in Re Warne and Department of Families, Community Services and Indigenous Affairs, DP Hack held that a “broad brush basis” is an appropriate method of making decisions in relation to these provisions.
The Applicant asserted at the hearing that as of July 2018, although he had been living some 350 kilometres away from the Added Party’s location, he had travelled there nearly every weekend and stayed at a house in Location 3, some 10 minutes away from the Added Party’s location. The Applicant asserted that he had had care of the child two to three nights over the weekend on such occasions. The Tribunal noted that the oral evidence given by the Applicant at hearing about these arrangements was different to information he gave in a newstart allowance claim form, submitted on 22 July 2018, in which he stated he was single and with no dependents. It was also different to a further claim form submitted to Centrelink on 20 February 2019, in which the Applicant stated that the child had come into his care on 3 June 2018 and had been in his care 100% since that time. The Tribunal finds from this evidence that the Applicant has given different accounts to Centrelink, at different points in time, about the care of the child from July 2018 onwards.
The Applicant’s mother gave affirmed evidence at the hearing that the Applicant had the child in his full-time care from July 2018 through to March 2019. This evidence differed from the Applicant’s own evidence at the hearing and asserted significantly more care than the Applicant himself gave evidence of having had of the child. Given this, the Tribunal did not consider the Applicant’s mother to be credible and did not accept the evidence given by the Applicant’s mother at the hearing.
There were a number of statutory declarations before the Tribunal, provided by the Applicant in support of his assertion about his care of the child. These indicate that the child had been living with the Applicant for, variously, approximately eight months as of February 2019, for several months as of February 2019 and for some time as of February 2019. They do not provide details of any shared care arrangements and are inconsistent with the Applicant’s own evidence that, from July 2018, the Added Party had care of the child during the week and he saw the child on weekends. The Tribunal has placed little weight on the statutory declarations on the basis that it did not consider them to be reliable accounts of the care of the child.
The Applicant told the Tribunal that, from July 2018 onwards, the child was with the Added Party during the week but would stay with him on weekends. This was broadly consistent with the evidence he had given to the AAT at first review and was consistent with the evidence given by the Added Party at the AAT first review, that the Applicant had seen the child regularly over weekends during that period.
The Tribunal considered that the best evidence before it is the consistent evidence given by the Applicant and Second Party at the AAT first review hearing and by the Applicant before the Tribunal in these proceedings, that the child had been with the Added Party during the week but that there was a pattern of the Applicant having the child regularly over weekends. In the absence of any clearer evidence about the actual nights of care, the Tribunal considered it appropriate to reflect that the Applicant had two nights of care on average each weekend, noting his assertions that it had been more than this but also that his evidence suggested it was not every weekend.
The Tribunal is prepared to accept that the Applicant and the Added Party had a “house swap” for a period of time while the Added Party undertook work-related training. The Applicant gave evidence at the hearing that the training had been conducted in July or August. Later in his evidence, he asserted it had been mid-June. Ms PS, who gave evidence as a witness on behalf of the Applicant, was unable to clarify the dates of the training with any clarity. Ms PS was unwilling to provide an email to the Tribunal that may have confirmed the dates of training and the reasons for her unwillingness were unclear to the Tribunal. She indicated that the last training would have been conducted in August but was unable to clarify whether these dates related to the Added Party’s training commitments. She stated that the training would have been a three-day course that was conducted sometime between August and September.
The evidence given by Ms PS was unclear and unconvincing and the Tribunal has placed little weight on the information provided by Ms PS to the Tribunal at the hearing. The evidence given by the Applicant about the time period of the training was inconsistent and details of the training duration differed to the evidence given by Ms PS, based on her knowledge of the company in question. The Tribunal did not accept the Applicant’s account of the training and employment arrangements of the Added Party in the second half of 2018. The clearest evidence before the Tribunal is the evidence given by the Added Party at the AAT first review hearing, that she had commenced training in October 2018, had started work on 31 October 2018 and had resigned from her employment on 25 December 2018. A start date of 31 October 2018 for the house swap is also consistent with the Applicant’s evidence that he had been living there for two weeks before his grandmother passed away; his mother’s evidence was that this had occurred on 15 November 2018.
The Tribunal finds that the Applicant had 100% care of the child from 31 October 2018 to 25 December 2018, being 54 nights of care. In the period prior to that time, from 1 July 2018 to 30 October 2018, based on the findings of the Tribunal above that the Applicant had a pattern of two nights of care per week, the Applicant had had 35 nights of care and the Added Party had had 87 nights of care.
The Applicant gave evidence at the hearing, which the Tribunal is prepared to accept, that the child had been with the Added Party from Christmas Day in 2018 through to January 2019. Both parties appear to agree that the child had been with the Applicant from mid-January to mid-March 2019 and the Tribunal is also prepared to accept this as correct. The Tribunal noted that the Applicant gave evidence at the hearing that the child had lived with him from 19 January 2019 to 13 March 2019. This was consistent with a statement prepared by the Added Party that the child had lived with the Applicant from 20 January 2019 to 14 March 2019. The Tribunal is prepared to accept the dates given by the Applicant at hearing that the child lived with him from 19 January 2019 to 13 March 2019 (54 nights). Prior to that, from Christmas Day to 19 January, the child had been with the Added Party (25 nights).
The Applicant told the Tribunal that, from March 2019 to June 2019, he had had care of the child on weekends from Friday to Sunday, or two nights per week. This was inconsistent with the evidence given by the Added Party at the AAT first review hearing, that she did not believe it was every weekend. The Tribunal did not have the benefit of speaking to the Added Party at the hearing and is prepared to accept the evidence of the Applicant that a two-night-per-week pattern resumed from 13 March 2019 to 30 June 2019. Based on a pattern of two nights of care each weekend, the Tribunal finds that in the period from 13 March 2019 to 30 June 2019, the Applicant had 32 nights of care of the child and the Added Party had 78 nights of care of the child.
Taking into account the above findings, the Tribunal finds that the Applicant had 175 nights of care of the child (47% care in accordance with section 35M of the Family Assistance Act) and the Added Party had 190 nights of care of the child (53% care) during the care period. The shared care percentages for the parties, calculated in accordance with section 59 of the Family Assistance Act, are a shared care percentage of 49% for the Applicant and 51% for the Added Party.
Section 35P of the Family Assistance Act requires the Tribunal to revoke a determination of an individual’s percentage of care where specified circumstances are met. Having regard to the requirements in section 35P of the Family Assistance Act, the Tribunal finds that the existing percentage of care was that the Added Party had had 100% care of the child and the Applicant had had 0% care of the child. The care of the child that the Tribunal has found occurred between 1 July 2018 and 30 June 2019 does not correspond with the existing percentages of care. The Applicant’s shared care percentage changed from 0% to 49% as a result of the findings of the Tribunal and the percentage range would also change. Subsection 35P(2) of the Family Assistance Act applies, because section 35C did not apply (there is no care arrangement in relation to the child).
The Tribunal has noted, above, that there were different care arrangements for the child at various times within the care period being considered. The Tribunal considered it most appropriate to make a finding as to the overall care of the child over the care period, rather than considering distinct times within that financial year. The Tribunal makes a new percentage of care determination under section 35B of the Family Assistance Act that, in the period from 1 July 2018 to 30 June 2019, the Applicant had 47% care of the child and the Added Party had 53% care of the child. Upon any application for family assistance payments by either party, the associated shared care percentages would be of relevance to determining that individual’s rate of family tax benefit for the 2017/18 financial year.
The Tribunal also notes that section 23 of the Family Assistance Act recognises circumstances where a child remains an FTB child of an individual where an event has occurred that prevents a child being in an adult’s care and the adult takes reasonable steps to have the child returned to their care. Both parties have asserted, at various points, that the child was withheld from them. However, given the lack of clarity as to where the child was expected to be at any point in time, the fluid arrangements that unfolded during the 2018/19 financial year and the lack of clear evidence that the child was withheld from negotiated care arrangements between July 2018 and June 2019, the Tribunal did not consider this section applied in the circumstances of this particular case.

DECISION

The Tribunal sets aside the decision under review and substitutes its decision that, in the period 1 July 2018 to 30 June 2019, the Applicant had 47% care of the child and the Added Party had 53% care of the child.

Date of hearing: 5 May 2025

Solicitors for the Applicant:
Self-represented

Solicitors for the Respondent:
Ms Economou

Date of hearing:	5 May 2025
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms Economou