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

This matter concerned an appeal by KYRZ against a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) regarding entitlement to Family Tax Benefit payments. The dispute centred on the determination of the percentage of care provided by each parent to their three children, following a relocation of the children from Sydney to Queensland with their mother, and their subsequent return to the father's care in Sydney. The appeal was heard by Emeritus Professor P A Fairall, Senior Member.

The primary legal issue before the Tribunal was to determine the actual pattern of care provided to the children and, consequently, to revoke or substitute the existing care percentage determination under the relevant provisions of the Social Security Act. This involved assessing whether there had been a change in the pattern and percentage of care, and if so, when that change occurred, to ensure the care percentage accurately reflected the actual care provided by the applicant.

The Tribunal's reasoning was guided by the principle that in cases of disagreement regarding the pattern of care, the Tribunal must determine the actual care based on available evidence. The Tribunal accepted the father's evidence that there was no formal agreement regarding the children's care. It was satisfied, on the balance of probabilities, that the mother agreed to the children travelling to Sydney with their father on 28 March 2021, with no agreement for their return. Furthermore, the Tribunal found that the children expressed a desire to remain in Sydney and were enrolled in school there on 24 May 2021. Based on these findings, the Tribunal concluded that the existing care percentage determination should be revoked as the circumstances of actual care no longer corresponded with it.

The Tribunal set aside the Administrative Appeals Tribunal's decision and substituted its own. It determined that the father, KYRZ, had 100% care of the children from 28 March 2021 onwards, and prior to that, the mother, HHDZ, had 100% care until 27 March 2021.