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

This matter concerned a review by the General Division of the Administrative Appeals Tribunal of a decision made by the Social Services and Child Support Division. The applicant, FCLQ, sought to challenge a determination regarding the percentage of care he and LTCF had for their children, T and M, which impacted his entitlement to Family Tax Benefit. The core of the dispute revolved around whether there had been a change in the pattern and percentage of care of the children between the parties, particularly in light of a parenting plan and subsequent declarations made to the Department of Social Services.

The legal issues before the Tribunal were whether the parties' care arrangement for the children T and M had changed from the 90 per cent care attributed to LTCF and 10 per cent to FCLQ, as declared in a form dated 22 August 2014, and whether FCLQ had provided sufficient evidence to demonstrate a different pattern of care. The Tribunal was required to consider the provisions of section 35J of the relevant Act, which outlines how actual care and extent of care are to be worked out, primarily based on the number of nights a child is in an individual's care.

The Tribunal's reasoning focused on the documentary evidence and the parties' admissions. While FCLQ presented timesheets from the children's school, the Tribunal found this evidence insufficient to establish actual care for the purposes of section 35J, noting that school drop-off and pick-up times did not necessarily correlate with overnight care. Crucially, both FCLQ and LTCF had signed a form declaring a 90/10 care split from 30 June 2014. Despite FCLQ's later assertion of a 50/50 care arrangement and disputes about how the 90/10 form was signed, the Tribunal found that both parties had signed the document and did not accept FCLQ's claim that he signed a blank document. The Tribunal concluded that FCLQ had not satisfied it that the pattern of care differed from that declared in the 22 August 2014 form.

Consequently, the Tribunal decided to affirm the decision of the Social Services and Child Support Division, which had determined that LTCF had 90 per cent of the care of the children and FCLQ had 10 per cent care from 30 June 2014 until a Federal Circuit Court consent order on 14 September 2015.