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

This case concerned a dispute between the Applicant and the Other Party regarding the determination of the principal carer of their children for the purposes of Family Tax Benefit (FTB) and parenting payment. The matter came before the Administrative Appeals Tribunal (AAT) for review of a decision made by the Secretary of the Department of Social Services.

The primary legal issues before the Tribunal were to determine the actual pattern of care for the children and, based on that pattern, to establish the percentage of care each party had for the children. This determination was crucial for establishing who was the principal carer and therefore entitled to receive FTB and parenting payments. The Tribunal also had to consider whether the Applicant's claimed care arrangement, supported by diary records, accurately reflected the actual care provided.

The Tribunal's reasoning focused on establishing the pattern of care as defined by the Department's Guide, which prioritised agreed arrangements but required investigation where disagreement existed. The Guide indicated that a pattern of care is generally based on the number of nights a child has overnight care. The Tribunal considered the Applicant's evidence, including diary records, which suggested he had care for approximately 64.49% of the nights. The Tribunal found that the Applicant's evidence, particularly his diary records, substantiated his claim of having a greater percentage of care. Consequently, the Tribunal set aside the previous decision and substituted its own determinations, finding that the Applicant had 59% care and the Other Party had 41% care for the period from 16 March 2017 to 15 November 2017. Furthermore, the Tribunal determined that the Applicant was the principal carer and entitled to parenting payment for the period from 1 August 2017 to 15 November 2017, while the Other Party was the principal carer prior to that date.