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

This matter concerned an appeal by Mr Devlin against a decision of the Secretary of the Department of Social Services regarding the calculation of care percentages for Family Tax Benefit purposes. Mr Devlin contended that an "interim period" should apply from January 2015, reflecting the care percentages he was entitled to under Court Orders, rather than his actual care of the children. He argued that the other party, Ms Heuvel, had failed to comply with these Court Orders and that he had taken reasonable steps to ensure compliance.

The legal issues before the Tribunal were whether section 35C of the relevant Act applied to establish an interim period for the calculation of care percentages, and whether Mr Devlin met the criteria under sections 35A or 35B of the Act to have such an interim period determined. Specifically, the Tribunal had to consider if Mr Devlin's entitlement under the Court Orders, despite his actual lack of care, was sufficient to trigger the application of section 35C.

The Tribunal reasoned that section 35C of the Act allows for the determination of care percentages based on agreed arrangements during an interim period if the Secretary is satisfied that reasonable action has been taken to ensure compliance with those arrangements. However, the Tribunal found that Mr Devlin did not meet the threshold requirements of sections 35A or 35B, which are prerequisites for the application of section 35C. These sections require that the child be an FTB child of the individual or would be under a care arrangement. The Tribunal noted that applying the Court Order percentages did not result in either child being an FTB child of Mr Devlin, and his actual care percentages were not greater than those previously determined.

Consequently, the Tribunal affirmed the decision under review, finding no grounds to disturb the earlier findings and concluding that the provisions of the Act precluded the determination of an interim period in these circumstances.