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

This matter concerned a dispute between a Grandmother and her daughter, the Mother, regarding the care of two children for the purposes of Family Tax Benefit (FTB). The Administrative Appeals Tribunal (AAT) was required to determine whether a change of care had occurred on or about 12 November 2021, and consequently, whether the children were the FTB children of the Grandmother or the Mother during the period from 12 November 2021 to 11 February 2022.

The Tribunal was tasked with determining two primary legal issues: first, whether there had been a change in the care arrangements for the children on 12 November 2021, and second, to ascertain who was considered the FTB child of for the purposes of the relevant legislation between 12 November 2021 and 11 February 2022. The Tribunal noted that subsequent determinations by the Respondent regarding care arrangements after 12 February 2022 meant that the period under consideration was limited to the specified timeframe.

The Tribunal considered the evidence of both the Grandmother and the Mother, noting their agreement that the children commenced residing with the Grandmother on 11 or 12 November 2021. The Grandmother's evidence indicated she assumed primary responsibility for the children's day-to-day care, welfare, and development, including making decisions about their health and organising their activities. She stated she had no communication with the Mother during this period, with any communication regarding the children being relayed through the Father. The Tribunal inferred from this that the Grandmother was carrying out the Father's instructions regarding the children and that the Father was keeping the Mother informed. The Tribunal applied the provisions of sections 21 and 22 of the A New Tax System (Family Assistance) Act 1999 (Cth), which define eligibility for FTB and when an individual is considered an FTB child, particularly considering the legal responsibility for day-to-day care, welfare, and development, and the percentage of care arrangements.

The Tribunal found that there had been a change of care for the purposes of FTB from 12 November 2021. Consequently, the Tribunal set aside the previous decision and substituted a new decision finding that both children were the FTB children of the Grandmother from 12 November 2021 until 11 February 2022.