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Tribunal: Senior Member Ann Cunningham

The applicant Mr Oates, and the other party Ms Oates, are the parents of three children, G, J and C. Mr Oates and Ms Oates separated on 24 November 2015 but continued to live at the same residence for the next 12 months, which was the relevant period for the purposes of this decision. On 26 May 2017, the Social Services and Child Support Division of the Administrative Appeals Tribunal made a decision that Ms Oates continued to have 100% care of the children. Ms Oates has been in receipt of Family Tax Benefit (FTB) for all three children on the basis of that decision. Subsequently, Mr Oates applied for a second tier review of this decision to the General and Other Division of the Administrative Appeals Tribunal and on 6 March 2018, the Tribunal affirmed the decision.

Section 25 of the A New Tax System (Family Assistance) Act 1999 (the Act) provides 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. The issue before the Tribunal was whether Mr Oates should be assessed as having shared care of the children and, if so, what percentage.

The Tribunal considered the extent to which the level of care had changed since the separation occurred as provided by part of the Department of Social Services’ Family Assistance Guide (the Guide). The Tribunal rejected the suggestion that simply because a separated couple continues to occupy the same residence it should be assumed that they have shared care of their children.

The Guide also provided, at part, that if the care percentage for a child is not agreed between carers, it is necessary to establish a pattern of care to make a shared care determination for FTB. A pattern of care is generally established by using the number of nights in care for each child.

The Tribunal considered the evidence relating to a pattern of care. G shared the odd meal with Mr Oates during the period in question but there was no evidence that G spent any nights in the care of Mr Oates following the parties’ separation. The Tribunal accepted J enjoyed a closer relationship with his father in that there was regular and more frequent contact most weeks during the 12 month period, including some weekends. The Tribunal did not consider that this contact constituted a care arrangement. The contact between Mr Oates and J, whilst reasonably frequent, was organised via text messages in a fairly ad hoc manner and there was no evidence of a regular pattern of care. On the basis of the evidence regarding nights in care, the Tribunal concluded that Ms Oates had 100% care of all of the children.

Mr Oates contended that his financial contributions towards the care of the children were relevant to the Tribunal’s determination of his percentages of care. Mr Oates contributed to half of the mortgage repayments and other additional outgoings in lieu of child support.

The Tribunal considered that the financial contribution made by Mr Oates did not constitute additional care. The Tribunal found there was no additional financial contribution by Mr Oates over and above his general responsibility towards his children to justify a finding other than one that Ms Oates had 100% care of the three children during the period.  

Read the full written decision on Austlii.