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

This matter concerned a review by the Administrative Appeals Tribunal of a decision regarding the calculation of Family Tax Benefit (FTB) for Child A. The parties involved were MDXJ and the Secretary, Department of Social Services. The dispute centred on the percentage of care attributed to MDXJ for the purpose of FTB calculations, following a change in Child A's living arrangements.

The primary legal issues before the Tribunal were whether a "care arrangement" within the meaning of the *A New Tax System (Family Assistance) Act 1999* (Cth) applied to Child A at the relevant time, and the interrelationship between sections 35C and 23 of that Act. Specifically, the Tribunal had to determine if a previous court order or an informal agreement between the parents constituted a valid care arrangement for the purposes of the legislation, and consequently, whether section 35C, which deals with dual care percentage determinations, could be invoked.

The Tribunal found that no written agreement regulating the care of Child A existed at the relevant time, and that a court order from 2013 did not apply. It also concluded that informal arrangements between the parents did not meet the legislative definition of a "care arrangement." Consequently, the Tribunal determined that section 35C of the *Family Assistance Act* could not be applied, and the scheme of dual care percentage determinations was therefore unavailable. The Tribunal also noted that section 23 of the Act, which addresses a similar issue of a child ceasing to be in an individual's care without consent, does not require a pre-existing "care arrangement" and operates differently.

As a result of these findings, the Tribunal refused MDXJ's request to issue summonses for evidence potentially relevant to a discretion under section 35L of the *Family Assistance Act*, as that provision also had no application given the absence of a care arrangement.