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

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Mr Higgins against a decision regarding the percentage of care he had for his children for the purposes of Family Tax Benefit (FTB). The dispute arose because both Mr Higgins and Ms Murray, the children's mother, claimed 100% care of the children during the relevant period from 28 November 2019 to 25 November 2020. Services Australia had initially determined Mr Higgins had 100% care, which was affirmed by an Authorised Review Officer. However, the AAT had previously set aside that decision and substituted a determination that Ms Murray had 100% care until 26 October 2020, and Mr Higgins had 100% care thereafter. Mr Higgins sought review of this substituted decision.

The primary legal issue before the Tribunal was to determine the actual percentage of care each parent had for the children during the period from 28 November 2019 to 25 November 2020, given that both parents claimed 100% care and provided conflicting evidence. The Tribunal was required to assess the evidence to establish the pattern of care and the extent of actual care provided by each parent, considering the legislative framework for FTB eligibility, which relies on an individual being an FTB child of an adult if, among other things, the child is in the adult's care.

The Tribunal found that the evidence presented by both parties was limited and conflicting, and Ms Murray's failure to attend the hearing further complicated the assessment. Mr Higgins provided documentary evidence including school correspondence and an Apprehended Domestic Violence Order (ADVO) to support his claim of 100% care from November 2019. Ms Murray's evidence, primarily from a social enterprise, suggested the children resided with her until October 2020, with Mr Higgins visiting and supporting parenting duties. The Tribunal noted inconsistencies in Mr Higgins' own evidence regarding his care arrangements and the timing of the ADVOs. Ultimately, the Tribunal determined that neither parent had 100% care during the period in question.

The Tribunal set aside the previous decision and substituted a new determination. It found that both Mr Higgins and Ms Murray had 50% care of the children from 28 November 2019 to 25 November 2020. From 26 November 2020, the Tribunal determined that Mr Higgins had 100% care of the children.