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

The Administrative Appeals Tribunal (AAT) reviewed a decision concerning the Family Tax Benefit (FTB) entitlements of the Applicant (Father) and the Other Party (Mother), who are separated parents. The dispute centred on the correct determination of the percentage of care each parent had for their child, which impacts FTB eligibility. The AAT's decision varied previous determinations made by Centrelink and an Authorised Review Officer (ARO).

The primary legal issue before the Tribunal was to determine the percentage of care each parent had for the child for FTB purposes, specifically for the period from 3 June 2016 to 27 May 2019. This required the Tribunal to assess whether a "pattern of care" existed and to assign a percentage of care in accordance with the relevant legislation. The Tribunal noted the difficulty in assessing conflicting evidence provided by the parties, which was often subjective and hostile, spanning several years.

The Tribunal found that much of the evidence presented by both parents lacked objectivity and could not be given significant weight. However, it placed importance on a care arrangements form signed by both parties on 2 June 2016, which indicated the Mother did not have care of the child during weekday evenings at that time. After considering the available evidence, the Tribunal varied the decision under review to reflect its findings on the percentage of care.

Consequently, the Tribunal ordered that for the period from 3 June 2016 to 27 May 2019, the Applicant's percentage of care for the child be determined as 57%, and the Other Party's percentage of care be 43%. This variation would affect the parties' respective FTB entitlements for that period.