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

This matter concerned a review of a decision to cancel the applicant's entitlement to Family Tax Benefit (FTB) for a child, referred to as Child A. The applicant sought to have the cancellation decision set aside. The review was conducted by R W Dunne SM.

The primary legal issue before the court was to determine who, if anyone, was entitled to payment of FTB for Child A from 3 April 2016. This required the court to consider the provisions of the Family Assistance Act (FA Act) and the associated Family Assistance Guide, specifically concerning the definition of an "FTB child" and the circumstances surrounding legal responsibility for a child's day-to-day care, welfare, and development. The court also had to consider the effect of parenting orders made by the Federal Circuit Court.

The court reasoned that for a person to be an FTB child of an individual, they must be under 16 years, in the individual's care, and living with them. Crucially, the individual must also be legally responsible for the child's day-to-day care, welfare, and development, or the child must be supposed to live or spend time with them under a Family Law Order or parenting plan. Evidence from Ms McBride and Pastor Nkombera indicated that Child A had been living with the applicant since September 2015. The court found that orders made by Judge Heffernan in the Federal Circuit Court constituted or were the equivalent of parenting orders, and were consistent with the applicant having legal responsibility for Child A's day-to-day care, welfare, and development.

Consequently, the court concluded that the applicant was entitled to FTB for Child A from her arrival in Australia in September 2015 and continued to be entitled from 3 April 2016. The decision to cancel the FTB payment from that date was therefore incorrect. The decision under review was set aside and substituted.