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

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by Ms Kaivan against a decision by the Secretary of the Department of Social Services. The dispute centred on the correct percentage of care for two children, N and T, during the period between 1 February 2018 and 30 January 2019. While it was agreed that Ms Kaivan had 75% care for the children from 4 May 2016 to 1 February 2018, and 49% care from 30 January 2019, the intervening period was contested.

The primary legal issue before the Tribunal was to determine the actual percentage of care each parent provided for the children during the disputed period. This determination was crucial for the application of relevant social security legislation, specifically concerning the Secretary's power to revoke a previous determination of a percentage of care under section 35Q of the Act, and to make a new determination. The Tribunal was required to assess the evidence presented by both parents regarding the children's living arrangements and care during this time.

The Tribunal considered evidence from both parties, including Mr Kaivan's assertions that the children spent more time with him due to school and extracurricular activities being closer to his residence, and that his ex-wife was overseas for a period. The Tribunal noted that the Secretary adopted a neutral position due to conflicting evidence. However, the Tribunal expressed disappointment with the parents' conduct, particularly their use of statements from their underage children and their apparent focus on financial outcomes rather than the children's welfare. Ultimately, the Tribunal set aside the decision under review and substituted its own finding that, for the period from 1 February 2018 to 30 January 2019, Ms Kaivan had 51% care of the children and Mr Kaivan had 49% care.