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

This matter concerned an appeal by BHPW (the Applicant) against a decision of the Administrative Appeals Tribunal (AAT) regarding Family Tax Benefit (FTB). The dispute arose following the separation of the Applicant and the Other Party, who shared 50% care of their four children under a Family Court order. The Other Party retained full care of the children from 13 April 2018, following allegations of sexual interference by the Applicant against their eldest son, which led to an investigation by Child Safety Services and Tasmania Police. The core of the dispute was whether the 14-week qualifying or interim period for FTB payments should apply, and whether special circumstances existed to justify a departure from the existing care arrangement.

The legal issues before the Tribunal were whether the circumstances constituted "special circumstances" that would permit a departure from the Family Court order regarding the children's care arrangements for the purposes of FTB payments. Specifically, the Tribunal had to determine if the allegations, and the subsequent actions taken by the Other Party based on advice from authorities, were sufficient to establish special circumstances. The Tribunal was also required to consider the application of sections 23 and 35C of the *A New Tax System (Family Assistance) Act 1999* (the Act), which govern the qualifying periods for FTB payments in the context of changes to care arrangements.

The Tribunal found that the Other Party's actions in retaining full care of the children were taken on the recommendation of Child Safety Services and Tasmania Police, following serious allegations made by their son. While the Applicant contended that special circumstances could not be found based on allegations alone, particularly after charges were dropped, the Tribunal noted legal authority supporting such a finding. The Tribunal accepted that the Other Party acted on advice from authorities to protect the children, and that this constituted special circumstances. Consequently, the Tribunal determined that the 14-week interim period under section 23 of the Act did not apply, and the Other Party was entitled to FTB based on having 100% care of the children from 13 April 2018. The decision of the AAT was set aside and substituted.