The Tribunal affirms the decision of Centrelink made on 3 January 2024 that in respect of the child, the father had 50% care and the mother had 50% care from 12 April 2013 until 25 January 2016.

2. Pursuant to section 70 of the Administrative Review Tribunal Act 2024, the disclosure of the applicant's name, the other party's name and other identifying details are prohibited for the purposes of publication_._

Note: The Tribunal is prohibited in certain types of matters from disclosing certain identifiers when publishing reasons for decision. The above order has been made to comply with that requirement.

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 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.

SOCIAL SECURITY - Care percentage - family assistance -- decision under review affirmed

A New Tax System (Family Assistance) Act 1999

Administrative Review Tribunal Act 2024.

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 and Another [2011] FMCAfam 959

1. This is second review of a decision made in relation to review of the percentages of care used by the Secretary, Department of Social Services (Centrelink) in calculating payment for family assistance paid from 12 April 2013.
2. In these reasons, for ease of reference and for the purposes of publication, the Tribunal shall refer to the applicant as the "mother" and the other party as the "father". The parents have two children, but this decision is in relation to only one of the children, their daughter. The Tribunal will refer to the daughter as the child. When necessary, the Tribunal shall refer to the other child as the son.
3. On 20 April 2016, Centrelink made a care percentage determination that from 12 April 2013, the father had 50% care of the child and the mother had 50% care. On 21 June 2022, the father requested a review of that decision. The Tribunal has before it a copy of the decision of the authorised review officer dated 3 January 2024, an authorised review officer affirmed the decision under review.
4. On 5 January 2024, the father applied to the former Administrative Appeals Tribunal for review of Centrelink's decision. On 23 April 2024, the Tribunal determined that the mother and father each had 50% care of the child for the period 12 April 2013 to 31 July 2013; and the father had 100% care of the child from 1 August 2013 until a subsequent care change on 25 January 2016.
5. The mother has made this application for second review, and disputes that the father had care of the child 100% of the time for the period from 1 August 2013 to 25 January 2016.

1. Section 58(1) of the A New Tax System (Family Assistance) Act 1999 states that the annual rate of family tax benefit is to be calculated in accordance with the rate calculator in schedule 1.
2. Clause 11 of schedule 1 of A New Tax System (Family Assistance) Act provides that if more than one adult has care of a family tax benefit child, the rate of payment is to be assessed based on the shared care percentage as determined in accordance with s 59 of A New Tax System (Family Assistance) Act. That requires the weighing up of all the available evidence to decide whether there is a pattern of care and the appropriate shared care percentages arising from that pattern of care. The term 'care' is not identified in A New Tax System (Family Assistance) Act.
3. The Tribunal has considered the matters identified by Hughes FM in Polec v Staker and Another [2011] FMCAfam 959, in determining the extent of care a person has for a child in a child support matter:

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: > > 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?

4. The Tribunal is mindful that Polec was a child support matter, however in P v Child Support Registrar [2013] FCA 1312, Wigney J referred to the list in Polec as usual guidance but 'no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care'.
5. The Tribunal has also considered the Family Assistance Guide. The Tribunal is not bound by the guide, however in accordance with Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at [639-645] the Tribunal will usually follow it unless there are cogent reasons not to do.
6. Topic 1.1.C.90 of the Family Assistance Guide, relevantly states:

For the purposes of being considered an FTB child, FA legislation refers to being in the care of an adult. Reference is also made to legal responsibility for the day-to-day care, welfare and development of the individual. > > Care generally includes physical care; however, the importance of physical care decreases as the child (also refers to a young person) becomes older. For example, a baby or toddler's care needs are largely immediate and physical (feeding, nappy changing, bathing, supervision). As the child grows older, they will gradually start to meet many of their physical care needs themselves. > > Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child's mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child. > > Some examples of care include: > > • having control of the child, including making major decisions relating to who the > > child spends time with and the child's health, education, discipline, recreational > > and/or social activities > > • having major daily responsibility for caring for the child and making the major > > decisions (for example, meal preparation, hygiene, transport, discipline, emotional > > and moral support and guidance) > > • bearing the costs of the child's daily life (for example, food, accommodation, > > transport, clothing, schools fees, health and dental care, etc.) > > • making arrangements related to the child's needs (for example appointments at > > school or with doctors or dentists and accompanying them on those appointments), > > and/or > > • being the main person for the day care, school, or college to contact in > > emergencies. > > When assessing levels of 'care' consideration of the full circumstances of each case > > must be taken into account to decide whether care remains with a parent, is shared > > with others, or is not present.

1. The mother has raised a preliminary issue relating to time limits. She submits that the father was outside the time to seek review of a care arrangement and an application to have the decision reviewed would require that he demonstrate special circumstances that prevented him from doing so.
2. In that regard the mother relies on the Child Support Guide which details the objection process for a care decision. She submits that section 2.6.1 outlines when the Registrar or a court can consider changing an assessment and that the earliest date from which the Registrar can change the assessment is 18 months prior to the day after the day the change of assessment application was made.
3. Section 111A of A New Tax System (Family Assistance) (Administration) Act provides that an application of this type for an ART review of a decision, must be made no later than 90 days after the person is notified of the decision. The decision of the authorised review officer is dated 3 January 2024. The father made the application to the Tribunal on 5 August 2024. On that basis the application has been made within time and the Child Support Guide is not applicable to a care percentage review. The first review application was made within time.
4. The first review decision was made on 23 April 2024 and the second review application was made on 3 May 2024. The second review application was made within 28 days of the notification of the first review decision as is required by section 18 of the Administrative Review Tribunal Act 2024.
5. Both the first review and second review applications were made within time.
6. At the hearing, the mother also raised that the long passage of time that had passed since the care percentage were in place, affects the accuracy and recollection of the evidence that parties can provide. Where relevant, the Tribunal has taken that into consideration, that there has been a significant passage of time since the care percentages were applied and that may impact the recollection of parties. On that basis the Tribunal had preferred the contemporaneous evidence.

1. The Centrelink records note that on 23 May 2013, the mother notified Centrelink that she and the father had 50% care of the child, with date of event recorded as 12 April 2013.
2. The mother provided a schedule of home stays between 12 April 2013 to 24 June 2013 (as she has been advised to do at the time by Centrelink). That evidence indicated that during that period she had the child in her care for about 49 nights.
3. In cross examination, questions were put to the mother about records and discrepancies between dates between her records and the father's records. She explained that it was difficult for her to go back ten years or more and remember whether her child was staying with her on a particular night, but that she stood by her records, which were done to the best of her ability at the time. She stated that the initial records were drawn from evidence that she had at the time, but which she had not retained. The mother also stated she was responsible for providing food and clothing for the child when the child was staying with her. From April 2013 onwards, both parents were primary contacts with the school. If there were any issues at the school, the school would contact whichever parent was available. The mother also stated that in relation to medical appointments she was the primary carer in that regard and that when the child was staying with her, she arranged and took her to medical appointment and covered the costs. The mother agreed that the daughter was recorded on the father's Medicare card. In relation to changeover, the mother stated that the child would often head off to school which was nearby to her house and then go back to her father's residence after school. She stated that there were occasions where she picked the child up from her father's residence and delivered her to his residence. During holidays the child would sometimes catch a bus from her father's residence to the mother's residence. The mother conceded she did not pay school fees and that at one point the school fees were not being paid and she was contacted by the school. She indicated that the children could be withdrawn from the school and put in public schools because she could not afford to pay them. She stated that after that she presumed the fees were paid by the father. The mother provided invoices for medical costs for the child which she paid. The invoices include the doctors name and provider number. They are dated 7 April 2015, 22 June 2015, 22 July 2015 and 14 April 2016. The applicant also provided telephone invoices for mobile receipts for the child.
4. The father disputes that the child was in the mother's care or that she was responsible for costs towards her. He states he was not aware of the medical costs incurred and that the phone was obtained by the mother on her account so that she could talk to the child.
5. The father stated that from 12 April 2013 there were no arrangements for the care of the child as such. He stated that he allowed his daughter to go to her mother's new place because she was excited and not had much to do with her for the previous six years.
6. He stated that it was his daughter that first told him, on 12 April 2013, that she would be spending 50% of her time with her mother because her mother had obtained social housing and there was a requirement that her daughter stay there 50% of the time for her to obtain the housing. The father stated he allowed his daughter to go that day, but there was no arrangement at all about any percentage of care at that stage. He stated that he let it happen initially, but within several weeks, by about late May, the care arrangement reverted, and the child stayed most of the time with him. The father stated that was because his daughter started saying that her mother's house was too far and that she would only stay there on Saturday nights, but she always came back on Sunday nights, ready for schools. The father stated that on Saturday's he took his kids to sport. The father stated he was not reliant on Services Australia and had no idea that he should be keeping records. It wasn't until later that he did. The father provided a calendar which he states reflected the time the child spent with him. He stated in cross examination that he put the calendar together from his diary school records and the child's bus timetable. However, those supporting documents were not provided to the Tribunal.
7. At the Tribunal's first review of the matter, the father also provided emails from the children dated 11 August 2023 and 24 July 2023, which he submitted corroborated the time spent with the children.
8. As part of the second review the son, who is now 28 years old, provided an affidavit dated 11 December 2024 and stated following:

.... > > I have one sister, ... , who is 26 years of age. My sister and I have always had a > > good relationship and continue to get along very well. > > 5. On or about 24 July 2023, I sent an email to my father, ... , in response to his > > request. > > 6. I said the following in my email: > > I write to you concerning the request/or information about living arrangements and dependency of myself, ..., and my sister, ... , with our father, .... It is to the best of my knowledge that my sister began living part time (2 to 3 days per week) with my mother, after her moving [mother's address] around 13 April 2013. Please see attached moving receipt as proof During this lime l remained living effectively 100% with my father, save for a few days to spend time with my mother from time to time. It is also my understanding that the part time living arrangement with my sister and my mother did nor last particularly long. This was nearly a full decade ago. At a minimum, my father was caring for 1.5 dependent children as I was still in school until the end of 2013 and under 18 until the 29th of August 2014, nearly a year and half after the time in question. At a maximum, both my sister and I were in the care of my father during this time and for a significant period thereafter. If you should require further information, please respond by email. > > 7. Given the significant lapse of time since 2013, I acknowledge that my current recollection of specific details from the period in which I sent the email to my father may contain inaccuracies. While I affirm that the statements I have made regarding these arrangements reflect my best understanding and recollection, I recognise that my memory of these events may not be entirely precise. The passage of over a decade since these occurrences may have impacted my ability to recall the events with complete accuracy. > > 8. In 2013 my father and mother were separated. My father was living in [father's address], NSW and my mother was living in [mother's address]. > > 9. ln 2013 I was 17 years old attending year 12. It was my last year of secondary school. > > 10. In 2013, I was living with my father at his house and occasionally stayed over at my mother's house. > > 11. I am unable to recall with precision the exact amount of time I spent residing at either of my parents' respective homes. However, to the best of my recollection, I spent majority of my time residing at my father's residence. > > 12. The living arrangements I recall with my sister was fluid and changed overtime. It was not a fixed schedule. Over an extended period, the rough idea of living between homes for my sister remained but the exact days varied as I cannot remember the details accurately. > > 13. My mother has informed me that there is a disputed matter pending before the Administrative Appeals Tribunal (AAT) concerning child support payments claimed against her, which issue pertains to my living arrangements with my parents. > > 14. I respectfully request the Honourable Tribunal to disregard the contents of the email previously sent to my father and instead accept this affidavit as a true and accurate recollection of my recollection regarding the living arrangements between my parents.

9. The daughter had also provided an email at the first review regarding her care. She has also sworn an affidavit dated 11 September 2024 in these proceedings asking that the Tribunal disregard her first email as the contents she wrote in her email for the first review decision do not reflect an accurate interpretation of her recollection of events. She also states:

Between the period of 2013 until I left school in 2016, I remember living both at my father's and mother's house and in 2016 I was living full time with my mother in .... > > 10. I honestly cannot remember the amount of time I was living at either of my parent's house. > > 11. The statement I made in the email to my father is not correct, as I cannot recall accurately the time, I spent with either parent. > > 12. I do remember travelling between my father's and mother's house regularly. > > 13. I believe I spent reasonable time with each parent between 2013 to 2015 at each of their houses. In 2016 in my last year of school, I was living full time with my mother. > > 14. I had my own room at my father's and mother's house, and I had my personal belongings in both properties. > > 15. I remember that my brother was living with his father for an extended period, but I cannot remember what the period was. My brother finished school in 2013. > > 16. I do remember the school I attended was closer to my father's house. > > 17. I did travel to school from both my father's and mother's house. > > 18. My father had told me that he had paid for my schooling. I do not know what the actual arrangement were between my father and mother concerning the school fees. Just what my father told me.

10. The affidavits establish, that the child did spend some time at her mother's address during the period.
11. The father stated he was covering the cost of the child's school uniforms. He stated that the mother may have bought her some clothes, but he paid for her school uniform. He stated he was unaware that his daughter went to any doctor and that doctors were usually covered by Medicare, and he paid for private health insurance. The father stated that paid the school fees and he was the first point of contact for the school. He stated he was unaware if the mother was a contact, but that she may have been.
12. It is not in dispute between the parties that prior to 12 April 2013, the father had 100% care of the child. However, the Centrelink records indicate that the mother subsequently moved into a house nearer to where the father lived and on 23 May 2013, she notified the Centrelink that she and the father had 50% care of the child from 12 April 2013.
13. The Centrelink records also demonstrate that on 12 July 2013, Centrelink sent letter to the father notifying him that he and the mother had 50% care of the child from 12 April 2013
14. The Centrelink records note that on 19 February 2016, Centrelink actioned a change in care arrangement for family tax benefit, and child support program. In that regard they decided that the mother had 50% care and the father had 50% care of the daughter from 12 April 2013. The note also records that the date of notification was 23 May 2013.
15. Having considered the Centrelink records, the evidence of the parties and cross examination of the witnesses, the Tribunal finds that the parents had shared care of the daughter with the mother having care of her 50% of the time and the father caring for her the other 50% of the time for the period from 12 April 2012 to 25 January 2016. The Tribunal accepts from the records of the mother, in particular that the diary entries were generally from the time of care. The mother has consistently maintained her position regarding care since she notified Centrelink of the care arrangements on 23 May 2013.
16. The Centrelink records indicate that the father was contacted by Centrelink, regarding the care arrangement on 28 May 2013. The father stated that the mother had approached him and asked him to sign a statutory declaration for care of the children at 50/50, which he did not agree to. However, the father stated that in relation to his daughter he believed that care would continue as a 50/50 arrangement with the daughter spending four nights with the mother on one week and 3 nights the other. Based on that information that Centrelink recorded a 50/50 care arrangement for the daughter. The father never advised Centrelink of any change in that regard.
17. In a Centrelink record dated 13 February 2017, it records that the father contacted Centrelink by phone to make a general enquiry for family tax benefit and debts due to shared care percentages backdated to April 2013. The father stated he had 100% care of his children but had agreed to advise child support of a 50/50 care arrangement to help the mother obtain housing. When asked about that in cross examination, the father explained that the arrangement only lasted a few weeks, and that arrangement was only for a short period and then his daughter spent most of her time with him.
18. The Tribunal is not satisfied that the care arrangement changed after a few weeks. The Tribunal finds on the evidence that the 50/50 care arrangement did continue from 12 April 2013 until 25 January 2016 when the father moved out of Sydney. The Tribunal accepts the records of the mother from the time. The Tribunal accepts that the father did pay the school fees and for school uniforms. However, the Tribunal also accepts from the medical invoices provided and the telephone invoices that the mother was paying for at least some of the child's medical expenses and her mobile phone. The Tribunal also finds that the mother paid for clothes and food when the child was at her house and provided for her emotional and care needs regarding her child's general health and wellbeing. The Tribunal also finds that the mother was a contact at the child's school.
19. Accordingly, the Tribunal finds that the decision of the authorised review officer was correct. The father had 50% care and the mother had 50% care from 12 April 2013 until 25 January 2016 when he moved away from Sydney.

The Tribunal sets aside the decision of the Tribunal made on 23 April 2024 and in substitution decides:

The Tribunal affirms the decision Centrelink made on 3 January 2024 that in respect of the child, the father had 50% care and the mother had 50% care from 12 April 2013 until 25 January 2016.