Arnold and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr Arnold regarding his eligibility for Family Tax Benefit (FTB) for a child who had been taken from his care without his consent. The Secretary of the Department of Social Services was the respondent. The dispute centred on the interpretation and application of sections 22 and 23 of the *A New Tax System (Family Assistance) Act 1999* (the Act), particularly concerning the determination of an FTB child and the exercise of discretions within section 23.

The primary legal issues before the Tribunal were whether the child remained an FTB child of Mr Arnold despite being taken without his consent, and how the discretions provided for in subsections 23(4A) and 23(5A) of the Act should be exercised in the circumstances. Specifically, the Tribunal had to determine if "special circumstances" existed that would allow for the shortening of the qualifying period under section 23(5A), and the implications of such an exercise for both Mr Arnold's and Mrs Da-It Arnold's eligibility for FTB. The Tribunal also considered the determination of the percentage of care for the child.

The Tribunal reasoned that while section 23 of the Act provides an exception to the general rule in section 22, allowing a person to continue receiving FTB for a child taken without consent, this exception is subject to the Secretary's discretion under section 23(4A) and 23(5A). The Tribunal found that "special circumstances" existed in relation to the child, including an SA police officer's authorisation for Mrs Da-It Arnold to retain the child and subsequent Federal Circuit Court orders granting her 100% care. The Tribunal exercised its discretion under section 23(5A) to shorten the qualifying period to zero days, effectively ending the period during which the child could be considered Mr Arnold's FTB child. This approach was taken to avoid the undesirable consequence of Mrs Da-It Arnold being disentitled from FTB, while also ensuring Mr Arnold did not become entitled to FTB. The Tribunal concluded that in the relevant period, Mrs Da-It Arnold had 100% care of the child and the child remained an FTB child of hers.

Consequently, the Tribunal affirmed the decision under review, finding that Mr Arnold was not eligible for FTB for the child.