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

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding the calculation of Family Tax Benefit (FTB) for a child, G. The applicant, Mr. Fragomeni, and the other party, Ms. Hawkins, are G's parents. Following their separation in 2005, Ms. Hawkins continued to receive FTB based on 100% care of G, despite court orders made in September 2007 that stipulated a shared care arrangement of 43% for Mr. Fragomeni and 57% for Ms. Hawkins. Mr. Fragomeni notified Centrelink of these orders in 2017, leading to a variation of the care percentages and the creation of an overpayment debt for Ms. Hawkins. Ms. Hawkins sought review, arguing Mr. Fragomeni had less than 35% care. An Authorised Review Officer affirmed the original decision, and Ms. Hawkins appealed to the AAT.

The AAT was required to determine the actual percentage of care Mr. Fragomeni had for G from 27 September 2007 onwards, to ascertain if he met the threshold for having an "FTB child" under the relevant legislation. This involved assessing the evidence presented by both parties regarding the practical implementation of the 2007 court orders for child care. The central legal issue was whether the evidence sufficiently demonstrated that Mr. Fragomeni had at least 35% of G's care to qualify for FTB purposes.

The Tribunal found that Mr. Fragomeni's evidence was poorly presented and did not adequately establish the pattern of care he claimed. Despite opportunities to provide detailed evidence, including explanations of his diary records and corroborating statements, the Tribunal considered the information provided to be unsatisfactory. The Tribunal noted that Mr. Fragomeni repeatedly stated that the details of his care arrangements were "in his head" but failed to adequately communicate this information. While some evidence, such as a former employer's statement, corroborated certain aspects of the Wednesday care arrangement, it was inconsistent with other claims regarding school holiday care. Statements from family members were considered too general to establish a specific pattern of care. Consequently, the Tribunal concluded that Mr. Fragomeni had not demonstrated he had at least 35% of G's care.

The AAT affirmed the decision that Mr. Fragomeni did not have an FTB child, meaning the previous care percentage of 100% for Ms. Hawkins was not revoked. The Tribunal preferred the evidence of Ms. Hawkins and found that G had not been in Mr. Fragomeni's overnight care for more than 33% of the nights in any given year.