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

This matter concerned an appeal by Mr Bohnstedt against a decision by the Secretary of the Department of Social Services regarding the determination of a shared care percentage for family tax benefit purposes. The core of the dispute revolved around whether Mr Bohnstedt had more than 35% care of the children during the relevant periods. The decision was made by Deputy President Bernard J McCabe of the Administrative Appeals Tribunal.

The Tribunal was required to determine the correct shared care percentage for Mr Bohnstedt in relation to the children for the calendar years 2013 and 2014. Specifically, the Tribunal had to ascertain whether the applicant's care exceeded the 35% threshold in each of those years, and whether shared care should be calculated based on hours or nights of custody. The Tribunal also had to consider whether the two-year period could be treated as a single period for the purpose of determining shared care.

Deputy President McCabe P found that shared care should be determined by the number of nights of custody per year, not by hours spent in care. He also determined that each calendar year constituted a separate period for the purpose of this calculation. For the 2013 calendar year, the Tribunal concluded that Mr Bohnstedt had 32% of the shared care. For the 2014 calendar year, the Tribunal accepted the evidence of Ms Gronberg-Greenhill, which indicated Mr Bohnstedt had 118 nights of care, and added 13 nights where he was deemed to have care, resulting in a total of 131 nights. This translated to 35.8% of the shared care, which was rounded down to 35%.

Consequently, the decision under review was set aside. The Tribunal ordered that existing care determinations be revoked as they did not accurately reflect the shared care percentages. Fresh care determinations were to be made, establishing Mr Bohnstedt's shared care at 32% for the period of 1 January 2013 to 31 December 2013, and at 35% for the period of 1 January 2014 to 31 December 2014.