JDKD and Secretary, Department of Social Services (Child support second review)

This matter concerned an application for review by the father (JDKD) of a decision by the Secretary, Department of Social Services, which affirmed a previous decision regarding the shared care percentage for the purposes of Family Tax Benefit. The dispute centred on the date from which a change in care arrangements should be recognised and a new care percentage determined. The case was heard by West M in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the appropriate shared care percentage for the child and the effective date of any change in those arrangements, in accordance with the *A New Tax System (Family Assistance) Act 1999* (the Act) and the *A New Tax System (Family Assistance) (Administration) Act 1999*. This involved assessing the evidence to establish a pattern of care and applying the relevant legislative provisions, particularly sections concerning the determination of care percentages and the revocation of existing determinations when actual care arrangements change.

The Tribunal's reasoning focused on the statutory framework for determining Family Tax Benefit, which requires assessing shared care percentages based on a pattern of care over a defined 'care period'. While the Act does not define 'care' or 'care period', governmental policy suggests a 12-month period for ongoing arrangements, though the Tribunal is not bound by this policy but must consider it. The Tribunal noted that the extent of care is a question of fact, to be determined by weighing available evidence, with section 35J of the Act providing that the number of nights a child is in an individual's care is a primary consideration. The Tribunal was required to determine the appropriate date for any change in care percentage and make a new determination as per section 35P of the Act.