Newman and Anor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 849 (1 November 2010)

Last Updated: 1 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 849

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/0211; 2010/0514

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RODNEY NEWMAN

1st Applicant

Re

PAULA NEWMAN

2nd Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr P Wulf, Member

Date 1 November 2010

Place Brisbane

Decision

In accordance with section 43 of the Administrative Appeals Tribunal Act (Cth) the Tribunal: Sets aside the decision under review; Remits the matter to the Respondent with directions to adjust the FTB payments such that: (a) for the period 1 July 2006 to 30 June 2007, FTB is calculated on the basis that the 2nd applicant had primary care of the children, R, L and M; (b) subject to paragraph (a), the FTB for the period from 1 July 2006 to 30 June 2007 be determined on the basis that 1st applicant had care of the three children during the 1st period for 38 nights, this being 10.41% of the year, and the 2nd applicant had the children for 327 nights (89.59%); (c) for the period 1 July 2007 to 30 June 2008, FTB is calculated on the basis that the 2nd applicant had primary care of the children, R, L and M; and, (d) subject to paragraph (c) the FTB for the period from 1 July 2007 to 30 June 2008 be determined on the basis that: (i) the 1st applicant had care of L and M during the 2nd period for 39 days (10.65% of the year) and the 2nd applicant had care of the L and M for 325 nights (89.35%); and, (ii) the 1st applicant had care of R during the 2nd period for 34 days (9.29% of the year) and the 2nd applicant had care of R for 332 nights (90.71%).

....................[Sgd]................
Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Family tax benefit – Apportionment of shared care of children – Means by which the calculation of shared care made – Decision under review varied.

Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 43

A New Tax System (Family Assistance) Act 1999 (Cth) ss 21, 22, 25 and 59

Family Assistance Guide

Wade v Secretary, Department of Family and Community Services [2004] FCA 1660; (2004) 139 FCR 285

Re Nowicz and Secretary to the Department of Family and Community Services [2001] AATA 628; (2001) 33 AAR 337
Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs [2006] AATA 159

REASONS FOR DECISION

1 November 2010

Mr P Wulf, Member

1. Mr Rodney Newman (1st applicant)[1] and Mrs Paula Newman (2nd applicant)[2] have appealed against a decision of the Social Security Appeals Tribunal (“SSAT”) that the 1st applicant was eligible to receive Family Tax Benefit (“FTB”) payments for the year 1 July 2006 to 30 June 2007 (“1st period”) but was not eligible to receive FTB payments for the year 1 July 2007 to 30 June 2008 (“2nd period”).
2. This matter was heard on 2 July 2010. There was some contention as to the location of the three children in January 2007 and dates of exchange. Subsequent to the hearing of the appeal, the 2nd applicant was asked to provide copies of bank statements with respect to this time and then both parties were asked to file further written submissions concerning the relevant period.

BACKGROUND

3. The applicants share care of their three children, R (born 26 October 1992), L (born 12 September 1994) and M (born 10 September 1997) between their locations of Tweed Heads and Port Macquarie respectively. The parties agree that the 2nd applicant is the primary carer of the three children.
4. On 24 June 2009, the 1st applicant lodged a claim for an annual lump sum payment for FTB for the 2nd period.[3]
5. On 29 June 2009, the 1st applicant lodged a claim for an annual lump sum payment for FTB for the 1st period.[4]
6. The basis of the 1st applicant’s claim was that his level of shared care was at least 10%.
7. A Centrelink officer, by letter dated 16 July 2009[5] and 20 July 2009[6] informed the 1st applicant that it had decided, on the basis of the information provided by him that he was eligible for FTB for both the 1st and 2nd periods.
8. The 2nd applicant sought a review of the decision, and on 20 July 2009,[7] Centrelink advised the 2nd applicant that it would not change its decision.
9. The 2nd applicant provided additional information to Centrelink and sought a further review.[8] As a result of that review, on 6 August 2009, Centrelink determined that the 1st applicant’s shared care arrangement was less than 10 percent for the 1st and 2nd periods and the earlier decision was reversed.[9]
10. The decision of 6 August 2009 was affirmed by a Centrelink authorised review officer (“ARO”) on 31 August 2009.[10]
11. On 10 December 2009, the SSAT varied Centrelink’s decision, finding that the 1st applicant was eligible for FTB for the 1st period but he was not eligible for the same in the 2nd period.
12. On 15 January 2010, the 1st applicant appealed against the decision of the SSAT,[11] and on 4 February 2010, the 2nd applicant appealed against that same decision.[12]

THE ISSUE FOR THE TRIBUNAL’S DETERMINATION

13. The issue for the Tribunal’s determination is whether the 1st applicant is entitled to be paid FTB pursuant to ss 21, 22, 25 and 59 of the A New Tax System (Family Assistance) Act 1999 (Cth) (“the Act”), during the 1st and 2nd periods because he had care of the three children or part thereof, for at least 10% of the time during those periods.

THE RELEVANT LEGISLATION

14. The relevant legislative provisions are contained within ss 21, 22, 25 and 59 of the Act.
15. Section 21 relates to when an individual is eligible for family tax benefit in normal circumstances and states

(1) An individual is eligible for family tax benefit if:

(a) the individual:

• (i) has at least one FTB child; or
• (ii) is not an absent overseas recipient and 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); and

(c) the individual's rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.

When individual satisfies this subsection

(1A)  An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991 , and either of the following applies:

(a) the individual is in Australia; or
(b) the individual:

• (i) is temporarily absent from Australia for a period not exceeding 13 weeks; and
• (ii) the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.

(2) However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.

16. Section 22 of the Act establishes when an individual is a “FTB child” of another adult individual. Section 22(6A) of the amended legislation required that:

(a) where there has been a pattern of care for a child/children over a period, where the child/children will be a FTB child of more than one individual; and
(b) one of the individuals makes a claim for FTB in respect of the child/children for some or all of the days in the period; and
(c) that individual is not a partner of one of the other individuals,

the Secretary must determine the percentage of the period during which the child/children was/were in the care of that individual

17. The percentage determined under s 22(6A) for the individual in respect of the child/children is used to work out the individual’s shared care percentage for the child/children in s 59 of the Act. Under s 22(7), if the Secretary (and, upon review, the Tribunal) determines under s 22(6A) that a child/children was/were in the care of an individual for at least 10 percent of a period, the child/children is/are taken to be a FTB child/children of that individual on each day in that period, whether or not the child/children was/were in the individual’s care on that day. If the Secretary determines that a child/children was/were in the care of an individual for less than 10 percent of the period, the child/children is/are taken not to be a FTB child of that individual.[13]
18. Section 59 of the Act sets out the shared care percentages where a FTB child is a child of individuals who are not members of the same couple. Where one individual’s care percentage has been determined under s 22(6A) of the Act, s 59 sets out the person’s shared care percentage of FTB for the child, based on that individual’s care percentage under s 22(6A).
19. For the purposes of determining an individual’s shared care percentage of FTB, the Secretary has adopted a Family Assistance Guide (“the Guide”). The Guide sets out the way in which the Secretary undertakes the task of determining the percentage of shared care. The Tribunal’s view in the past has been that the policy set out in the Guide provides an appropriate mechanism for the Secretary (and, upon review, the Tribunal) to undertake the task of making a shared care determination and this Tribunal propose to have regard to its terms.
20. Paragraph 2.1.1.45 of the Guide is headed “Shared Care & Establishing a Pattern of Care”. It states:

“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 either the number of nights in care. The percentage of care for each FTB child is then calculated and applied to the standard rate ... of FTB ...”

21. Paragraph 2.1.1.45 discusses making a shared care determination by reference to the actual care arrangements as agreed to by the parties or, where there is no agreement, by reference to available evidence, for example, what must be looked to is the “pattern of care”.
22. A “pattern of care” must be determined on the basis of available evidence: Wade v Secretary, Department of Family and Community Services[14]:

The “pattern of care” referred to in the Guidelines has two aspects, it seems to me. In the first place it reflects the care arrangements agreed between the parties or involves a finding which has regard to the actual care arrangements for the child. It is said that “as much as possible” the pattern of care should be the pattern agreed.

23. These provisions are also discussed in Re Nowicz and Secretary to the Department of Family and Community Services[15]. Importantly, there may be more than one way of assessing a pattern of care, as indeed the Guide makes plain.
24. The Guide suggests as a primary reference point a “nights in care” assessment, that is, a person having the overnight care of a child is regarded as having had care of that child for that day. Notwithstanding, the Guide recognises that there will be occasions where such an approach will not accurately reflect the caring arrangements for the child and suggests, in such cases, an “actual hours in care” approach.
25. Paragraph 2.1.1.50 deals with the calculation of an appropriate percentage. Step 1 establishes a pattern of care, Step 2 is to work out the percentage of care, Step 3 is to round the percentage of care and Step 4 involves calculating the rate.
26. This Tribunal will undertake the first three Steps in the process and allow the Secretary to determine the appropriate rate to be paid to the parties.

THE EVIDENCE

27. The evidence before the Tribunal was comprised of:
    • (1) The “T Documents” (Exhibit 1 (T1-T22/1-150) and Exhibit 2 (ST1-13/1-74)) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
    • (2) The respondent’s Statement of Facts and Contentions with respect to appeals 2010/0211 and 2010/0514 (Exhibit 3);
    • (3) The respondent’s Statement of Facts and Contentions with respect to appeal 2010/0344 (Exhibit 4) although see later paragraphs with respect to the use of these submissions;
    • (4) Exhibits submitted to the Tribunal by the parties including:
      • (i) Submission by the 1st Applicant dated 13 April 2010 with attached Premier Motor Service bus ticket for R issued 17 December 2007 (Exhibit 5);
      • (ii) Submission by the 2nd applicant dated 13 April 2010 with attached bank statements etc (Exhibit 6);
      • (iii) Submission by the 2nd applicant dated 22 February 2010 with attachments (Exhibit 7);
      • (iv) Submission by the 1st Applicant dated 21 April 2010 with attachments including copies of Movie World Annual Passes for R, L, M and the 1st applicant (Exhibit 8);
      • (v) Calendars supplied by both the 1st applicant and 2nd applicant;
      • (vi) Bank statement requested by the Tribunal from the 2nd applicant for January 2007;
      • (vii) Submissions by the parties with respect to the requests for copies of the 2nd applicant’s bank statements for December 2006 and January 2007; and,
    • (5) the oral evidence of the 1st applicant.

The 1st applicant’s evidence

28. The 1st applicant’s oral evidence can be summarised as follows:
    • (a) Mr Newman resides in Tweed Heads where he works at Seagull’s Rugby League Club in hospitality. The 1st applicant provided the Tribunal with copies of his employment history and dates he was on leave;
    • (b) When taking leave, the 1st applicant would take from a Wednesday to the following Wednesday off and extend this time to include rostered days off;
    • (c) The applicants would normally exchange the three children in Grafton although on at least one occasion, the parties exchanged the children on the Gold Coast;
    • (d) The 1st applicant bought his three children yearly tickets to Movie World in January 2007 and these were used on numerous occasions when the three children were with him;[16]
    • (e) He supplied an undated letter from Selena Lawson of Warner Village Theme Park as to attendance at the location;[17]
    • (f) That on the 22nd January 2008, the 1st applicant travelled to Port Macquarie with the three children to return them to the 2nd applicant. He stayed at the 2nd applicant’s house until 25 January 2008; and,
    • (g) That the calendars he prepared were to the best of his recollection and relate to his work calendar.

The 2nd applicant’s evidence

29. The 2nd applicant’s evidence was contained within the written material provided to the Tribunal. This included a calendar of the periods when the 2nd applicant submitted that the children were in the care of the 1st applicant. There was some conflict between the periods submitted by the 1st applicant as to the relevant dates of care and these are discussed below.
30. The 2nd applicant also provided a copy of a bus ticket she purchased for R, the bus ticket being for a trip from Port Macquarie to Tweed Heads on 8 January 2008.[18]
31. It was noted from the bank statements of the 2nd applicant[19] that on a number of occasions, when the 2nd applicant would meet the 1st applicant in Grafton for an exchange of the children, she would sometimes purchase fuel and McDonalds for the three children. This was of assistance when trying to calculate days when the children may have been with the 1st applicant and/or the 2nd applicant.
32. For example, on 1 July 2006, 8 July 2006, 19 April 2007, 12 July 2007 and 8 October 2007, there are purchases at McDonalds Grafton listed on the 2nd applicant’s bank statement.[20] There was also a purchase at Subway in Grafton on 16 April 2008.
33. Further, the 2nd applicant provided evidence of purchasing fuel in Grafton on 19 April 2007 and 2 October 2007.[21] The 2nd applicant also provided evidence of when she purchased fuel on the Gold Coast when she indicated that she was exchanging the three children with the 1st applicant near his home rather than as normal at Grafton (1 July 2006).

ANALYSIS

34. As Deputy President Hack of this Tribunal pointed out in Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs,[22] it is important in disputed cases to take a broad brush approach; one in which a number of factors or aspects of care may be taken into account. Deputy President Hack noted that the Guide does suggest reference to nights in care as one approach, but nevertheless allows for flexibility in order to avoid inequitable results.
35. There appears to be consensus between the applicants as to a number of the times when the children were with the 1st applicant. These include October 2006 and July 2007 although the dates are different in July 2007 between the parties. Accordingly, October 2006 does not require any discussion except with respect to the times that the three children were with the 1st applicant which is included in the conclusion made by the Tribunal as to care.
36. When making an assessment of the dates that the three children were with the 1st applicant in July 2006, the 2nd applicant’s bank statements are of significant benefit to the Tribunal. The evidence was that the 2nd applicant purchased McDonalds in Grafton on 1 July 2006 and again on 8 July 2006. The Tribunal finds that these dates are when there was an exchange of the three children.
37. When making an assessment of the dates that the three children were with the 1st applicant in December 2006 and January 2007, there is significant conflict as to the dates that the children travelled to be with the 1st applicant, this being either 22 December 2006 or 24 December 2006. The Tribunal finds that the 2nd applicant appears to have a better recollection of these events and therefore determines that the children travelled to be with the 1st applicant on 24 December 2006.
38. The Tribunal notes that the 2nd applicant states that the children returned home on 7 January 2007. However, the Tribunal finds that the children attended the Warner Village Theme Park on 9 January 2007, and as such, does not agree with the dates proposed by the 2nd applicant.
39. When making an assessment of the bank statement provided by the 2nd applicant as part of the direction of the Tribunal, a number of things are noted. On 8 January 2007, the 2nd applicant followed a consistent pattern of withdrawing money from the bank ($300) for her trip to collect her children. However, on 15 January 2007, the 2nd applicant purchased fuel at a Caltex, made a purchase at McDonalds and withdrew money from the bank ($200). This would also appear to be consistent with the 2nd applicant’s standard practice when collecting the children from the 1st applicant in Grafton. However, the bank statements are not clear as to where the fuel and McDonalds were purchased unlike the stated times when it was clear that these purchases had occurred in Grafton.
40. When comparing the 1st applicant’s time sheet as to these dates and noting that the Tribunal finds that the exchange did not occur on 9 January 2007, it is clear that the 1st applicant worked on 15 January 2007 from 0830 to 1230,[23] and therefore, it appears to be improbable that an exchange of the children occurred on that date.
41. The 1st applicant’s calendar indicates that the children were with him until 8 January 2008 while the 2nd applicant’s calendar indicates that the children were with the 1st applicant until 6 January 2007. However, the use of the Warner Village Theme Park on 9 January 2007 would appear to suggest that the three children were with the 1st applicant on that date so the Tribunal finds that this is the case.
42. When assessing the 1st applicant’s time sheet for 10 January 2007, it is noted that the 1st applicant only worked from 0700 to 1000 so it is more than probable that the 1st applicant returned the three children to the 2nd applicant on that day as logistically, the Tribunal finds that the other days of the week, except for 13 January 2007, the 1st applicant would not have had time to drive the children to Grafton as he was working until mid to late afternoon after starting at 0700. Accordingly, the Tribunal finds that the children were in the 1st applicant’s care until 10 January 2007.
43. When making an assessment of the dates that the three children were with the 1st applicant in April 2007, the Tribunal notes that the 1st applicant had 12 April 2007 off work. The 1st applicant states in his calendar that he collected the children on that date. The Tribunal accepts this. Further, the applicants agree that the exchange occurred on 19 April 2007 and this is corroborated by the 2nd applicant’s bank statement that indicates that she purchased both fuel and McDonalds on that day in Grafton.
44. When making an assessment of the dates that the three children were with the 1st applicant in July 2007, the Tribunal notes that the 1st applicant has contended that the children were exchanged on 5 July 2007. The 2nd applicant indicates that while it commenced on a different date (3 July 2007), it was for a period of seven days. The Tribunal notes the bank statements of the 2nd applicant which indicate that she purchased McDonalds on 12 July 2007 consistent with her previous actions. Therefore the Tribunal agrees with the period indicated by the 1st applicant, this being that the three children were in his care from 5 July 2007 to 11 July 2007.
45. When making an assessment of the dates that the three children were with the 1st applicant in October 2007, the parties agree that the exchange occurred on 1 October 2007, although based on the evidence presented in the 2nd applicant’s bank statement, the Tribunal finds that it was in fact 2 October 2007 as the 2nd applicant purchased fuel in Grafton on this date. There is disagreement as to the return date and again the 2nd applicant’s bank statements are of assistance. On 8 October 2007, the 2nd applicant purchased McDonalds in Grafton, and accordingly, the Tribunal finds that this is the date of exchange.
46. When making an assessment of the dates that the three children were with the 1st applicant in January 2008, it is necessary to assess the three children individually during this time as the evidence appears to suggest that the two boys (L and M) were with the 1st applicant at the same time and, the daughter (R) was not with the 1st applicant for the same length of time.
47. While the 1st applicant’s calendar suggests otherwise, there was consensus by the 1st applicant that the dates proposed as to when L and M were under the 1st applicant’s care commenced on 3 January 2008. Accordingly, this is the date the Tribunal finds that the exchange occurred.
48. However, it is clear that the daughter R was not under the 1st applicant’s care until 8 January 2008 when she caught a bus from Port Macquarie to Tweed Heads.[24] Accordingly, this is the date the Tribunal finds that the exchange occurred for her alone.
49. With respect to the period when the 1st applicant had care of the three children, the 1st applicant and the three children appear to have travelled to Port Macquarie on 22 January 2008 and the 1st applicant stayed there until 25 January 2008. The 1st applicant contended that the three children were still under his care as he looked after them one night when the 2nd applicant went out. However, the Tribunal notes that the children and the 1st applicant were staying at the 2nd applicant’s house. Notwithstanding that the applicant may have assisted the 2nd applicant with the care of the three children, the Tribunal finds that the children were from 22 January 2008, under the care of the 2nd applicant for those three days while the 1st applicant was staying in the house.
50. When making an assessment of the dates that the three children were with the 1st applicant in April 2008, the parties agree that the exchange occurred on 16 April 2008 and this is further enhanced as the date by the 2nd applicant’s bank statements which indicate that she purchased Subway in Grafton on that date. When assessing the letter from Warner Village Theme Park,[25] it indicates that the three children attended the location on 22 April 2008. This would appear to suggest that the exchange is as per the 1st applicant’s calendar on 23 April 2008.

CONCLUSION

51. The time periods when the three children were with the 1st applicant have been divided into a number of specific sections:
    • (a) 1st Period:
      • (i) July 2006;
      • (ii) October 2006;
      • (iii) December 2006 and January 2007; and,
      • (iv) April 2007.
    • (b) 2nd Period:
      • (i) July 2007;
      • (ii) October 2007;
      • (iii) December 2007 and January 2008; and,
      • (iv) April 2008.

1st Period

52. During July 2006, the 1st applicant had care for the three children from 1 July 2006 and returned the children to the 2nd applicant on 8 July 2006, a total of seven (7) nights.
53. During October 2006, the 1st applicant had care for the three children from 4 October 2006 and returned the children to the 2nd applicant on 11 October 2006, a total of seven (7) nights.
54. During December 2006 and January 2007, the 1st applicant had care for the three children from 24 December 2006 and returned the children to the 2nd applicant on 10 January 2007, a total of 17 nights.
55. During April 2007, the 1st applicant had care for the three children from 12 April 2007 and returned the children to the 2nd applicant on 19 April 2007, a total of seven (7) nights.
56. The Tribunal therefore finds that the 1st applicant had care of the three children during the 1st period for 38 nights, this being 10.41% of the year, and the 2nd applicant had the children for 327 nights (89.59%).

2nd Period

57. During July 2007, the 1st applicant had care for the three children from 5 July 2007 and returned the children to the 2nd applicant on 12 July 2007, a total of seven (7) nights.
58. During October 2007, the 1st applicant had care for the three children from 2 October 2007 and returned the children to the 2nd applicant on 8 October 2007, a total of six (6) nights.
59. During January 2008, the 1st applicant had care of two of the children (L and M) from 3 January 2007 and returned the children to the 2nd applicant on 22 January 2008, a total of 19 nights.
60. During that same period, the applicant only had care for R from 8 January 2008 to 22 January 2008, a total of 14 nights.
61. During April 2008, the applicant had care for the three children from 16 April 2008 and returned the children to the 2nd applicant on 23 April 2008, a total of seven (7) nights.
62. The Tribunal therefore finds, noting that 2008 was a leap year, that the 1st applicant had care of the three children during the 2nd period as follows:
    • (a) L and M – 39 days; and
    • (b) R – 34 days.
63. The Tribunal therefore finds that:
    • (a) the 1st applicant had care of L and M during the 2nd period for 39 days (10.65% of the year) and the 2nd applicant had care of the L and M for 325 nights (89.35%); and
    • (b) the 1st applicant had care of R during the 2nd period for 34 days (9.29% of the year) and the 2nd applicant had care of R for 332 nights (90.71%).

APPEAL 2010/0344

64. The respondent has filed Appeal 2010/0344 with respect to potential overpayments to the applicant. Based on this decision, the parties are directed to do as follows:
    • (a) The respondent will file with the Tribunal and serve on the 1st applicant, any written submissions as to any monies that it believes have been paid to the 1st applicant within 14 days of this decision;
    • (b) The 1st applicant will file with the Tribunal and serve on the respondent as applicable, any written submissions as to any monies that the respondent believes have been paid to the 1st applicant within 14 days receiving the respondent’s written submissions;
    • (c) The Tribunal will arrange for a telephone directions hearing within one week after the written submission as described above have been filed and served; and,
    • (d) The parties are at liberty to apply for an oral hearing on any overpayment that is pressed or in the alternative; the Tribunal will make a decision and prepare written reasons based on this decision and that contained within the written submissions.

DECISION

65. In accordance with section 43 of the Administrative Appeals Tribunal Act (Cth) the Tribunal:
    1. Sets aside the decision under review;
    2. Remits the matter to the Respondent with directions to adjust the FTB payments such that:
       • (a) for the period 1 July 2006 to 30 June 2007, FTB is calculated on the basis that the 2nd applicant had primary care of the children, R, L and M;
       • (b) subject to paragraph (a), the FTB for the period from 1 July 2006 to 30 June 2007 be determined on the basis that 1st applicant had care of the three children during the 1st period for 38 nights, this being 10.41% of the year, and the 2nd applicant had the children for 327 nights (89.59%);
       • (c) for the period 1 July 2007 to 30 June 2008, FTB is calculated on the basis that the 2nd applicant had primary care of the children, R, L and M; and,
       • (d) subject to paragraph (c) the FTB for the period from 1 July 2007 to 30 June 2008 be determined on the basis that:
         • (i) the 1st applicant had care of L and M during the 2nd period for 39 days (10.65% of the year) and the 2nd applicant had care of the L and M for 325 nights (89.35%); and,
         • (ii) the 1st applicant had care of R during the 2nd period for 34 days (9.29% of the year) and the 2nd applicant had care of R for 332 nights (90.71%).

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member

Signed: ..................[Sgd].....................................................

Kate Slack, Research Associate

Date/s of Hearing 2 July 2010

Date of Decision 1 November 2010

Solicitor for the 1st Applicant: Jacqueline McCormack of Hoy and McCormack Solicitors

2nd applicant Did not appear

Solicitor for the Respondent Rick McQuinlan, departmental advocate

---

[1] Exhibit 1, T1/1-14 filed on 15 January 2010
[2] Exhibit 2, ST1/1-2 filed on 4 February 2010
[3] Exhibit 1, T5/62-69.
[4] Exhibit 1, T7/71-83.
[5] Exhibit 1, T9/85-86.
[6] Exhibit 1, T10/87-88.
[7] Exhibit 2, ST8/51-53.
[8] Exhibit 2, ST10/56-58.
[9] Exhibit 1, T15A/127-128.
[10] Exhibit 1, T18/134-146.
[11] Exhibit 1, T1/1-14.
[12] Exhibit 2, ST1/1-2.
[13] Section 25 of the Act.
[14] [2004] FCA 1660; (2004) 139 FCR 285 at [31].
[15] [2001] AATA 628.
[16] Exhibits 8.
[17] Exhibit 1, T22/150.
[18] Exhibit 5, 6 and 7.
[19] Exhibit 6.
[20] Exhibit 6.
[21] Exhibit 6.
[22] [2006] AATA 159.
[23] Exhibit 1, T12/97.
[24] Exhibit 7.
[25] Exhibit 1, T22/150.