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

This matter concerned an appeal by the Applicant, Patterson, against a decision of the Secretary, Department of Social Services, regarding the Family Tax Benefit (FTB) for her two children, L and A. The core of the dispute revolved around the percentage of care each parent provided to the children during a specific "care period," which determined eligibility for and the amount of FTB. The case was heard by J Sosso SM.

The legal issues before the court were to determine the percentage of care the Applicant and the Other Party (the children's father) had for L and A during the relevant care period, and consequently, whether the children qualified as FTB children for the Applicant. This involved assessing whether the Applicant had at least 35% care of each child, as required for them to be considered her FTB children.

J Sosso SM considered the provisions of s 35B and s 35J of the relevant legislation, which allow for the determination of the percentage of care based on the "care period" and the number of nights a child is in a parent's care. However, the court noted, referencing *P v Child Support Registrar & Anor*, that the "number of nights" methodology is not obligatory. The court found that the Applicant's own evidence indicated the Other Party provided the vast bulk of care, with the children sleeping at his home almost every night and with the Applicant only having them approximately once a fortnight. While the Applicant provided emotional support and financial contributions, and took the children on a holiday, her admissions to Centrelink in October and November 2015 confirmed that the Other Party was the principal carer and the children lived with him. Applying the principle from *Wade v Secretary, Department of Family and Community Services* that the percentage of care should reflect the actual care provided, the court concluded that the Applicant did not have at least 35% care of either child during the care period.

Consequently, the court found that both L and A should be recorded as the Other Party's FTB children, with him having 100% care during the care period. The decision under review was affirmed.