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

This matter concerned an appeal by Ms Luby against a decision regarding the Family Tax Benefit (FTB) and the determination of care arrangements for her daughter. The dispute centred on the percentage of care provided by each parent during a specific period, which directly impacted the FTB entitlement. The case was heard by Member P Ranson of the Tribunal.

The primary legal issues before the Tribunal were to determine the relevant "care period" and, crucially, the percentage of overnight care each parent provided to the daughter during that period. This involved assessing the credibility of the evidence presented by both Ms Luby and Mr Palmer, including detailed calendars of care, affidavits, text messages, emails, and photographic evidence. The Tribunal also considered the meaning of "custody" in the context of child care arrangements and determined that the payment of expenses for a child was generally irrelevant to the question of overnight care.

The Tribunal reasoned that the care period should be divided into two parts: from 12 December 2015 to 29 February 2016, during which both parties agreed to a 50/50 care arrangement, and from 1 March 2016 to 25 November 2017. For the latter period, the Tribunal found Ms Luby's evidence more convincing. This was based on her reliance on a broader range of evidence, including text messages and emails, compared to Mr Palmer's primarily photographic evidence, which often depicted activities rather than overnight care. The Tribunal also noted Ms Luby's detailed schedule of care, which Mr Palmer did not effectively dispute, and the apparent lack of organisation in Mr Palmer's living arrangements during this time.

The Tribunal set aside the original decision and substituted its own findings. It determined that for the period of 12 December 2015 to 29 February 2016, the care percentage was 50% for Ms Luby and 50% for Mr Palmer. For the subsequent period, from 1 March 2016 to 25 November 2017, the Tribunal found that Ms Luby provided more than 65% of the care.