[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.

1. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. When asked about the financial support she had provided to the Applicant, the Applicant's mother stated it had been "lots".
6. 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.

1. 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.
2. 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.
3. 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.
4. 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.

1. 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.
2. 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.

1. 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.
2. 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.

1. 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.
2. 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.
3. 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.
4. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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).
10. 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.
11. 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.
12. 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).
13. 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.
14. 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.

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.

[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.