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

This matter concerned an appeal by CQCD (the applicant) against a decision by the Secretary, Department of Social Services, regarding the applicant's entitlement to Family Tax Benefit (FTB). The core dispute revolved around determining the percentage of care the applicant had for his children, A, B, and L, during the period of 1 November 2015 to 22 November 2016. The case was heard by Deputy President McDermott.

The primary legal issue before the Tribunal was to ascertain the pattern of care for the children during the specified period to determine the relevant percentage of care for FTB purposes. This involved considering whether there had been a change in the pattern of care and, if so, when that change occurred, with a specific focus on the number of nights the children spent in the applicant's care, as mandated by section 35J(1) of the relevant Act.

The Tribunal applied a "broad brush approach," as outlined in *Re Warne*, to assess the evidence. Deputy President McDermott considered various forms of evidence, including text messages, bank statements, and affidavits, but found much of it irrelevant to the pattern of care. The Tribunal rejected the other party's initial statement to Centrelink of a 50:50 care arrangement, accepting her explanation that it was made to deter the applicant. Based on the evidence, the Tribunal concluded that the applicant did not have a 50:50 care arrangement and that his care primarily consisted of specific nights with A and B, and most Saturday nights with L. Evidence from the applicant's witnesses was found to be lacking in compelling detail regarding the pattern of care, with some witnesses lacking first-hand knowledge.

The Tribunal varied the decision under review, determining that during the period of 1 November 2015 to 22 November 2016, the applicant had 33 per cent care of A and B, and 17 per cent care of L.