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

This matter concerned an application by Andrew Oates for review of a decision by the Social Security and Child Support Division of the Administrative Appeals Tribunal. The decision under review affirmed a prior determination that Leeanne Oates had 100% care of the parties' three children, G, J, and C, from 24 November 2015, following the separation of Mr Oates and Ms Oates. Ms Oates had been receiving family tax benefit for all three children on this basis.

The primary legal issue before the Tribunal was to determine the care arrangements for each of the children following the parties' separation on 24 November 2015. Specifically, the Tribunal was required to ascertain the percentage of care each parent provided for G and J, as Mr Oates conceded that Ms Oates had 100% care of C from the date of separation. The relevant legislation included provisions of the *A New Tax System (Family Assistance) Act 1999* (Cth) and the *A New Tax System (Family Assistance) (Administration) Act 1999* (Cth), which prescribe the criteria for eligibility for family tax benefit and the methods for determining an individual's percentage of care for a child.

The Tribunal rejected the contention that separated parents living under the same roof should automatically be considered to share care of their children. It found that while Mr Oates and Ms Oates occupied separate portions of the house, neither was accessible to the other. The Tribunal considered the evidence regarding the practical arrangements, noting that Ms Oates was responsible for the children's daily needs, including food, cleaning, health, schooling, and holiday care, and that Mr Oates had limited involvement in these aspects. The Tribunal also referred to the Department of Social Services' Family Assistance Guide, which indicates that a decision maker must consider the extent of any change in the level of care since separation, and that a pattern of care is generally established by the number of nights in care. Based on the evidence, the Tribunal concluded that Ms Oates had 100% care of all three children from 24 November 2015.