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

This matter concerned a second review by the Administrative Appeals Tribunal (AAT) of a decision regarding care percentage determinations for the purpose of Family Tax Benefit (FTB). The parties were QWPT and the Secretary, Department of Social Services. The dispute centred on whether the actual care arrangements for the children had diverged from court orders and, if so, how this divergence should be treated for FTB purposes, particularly concerning an interim period.

The Tribunal was required to determine whether a change in the children's care occurred on 16 December 2017, as contended by one party, or if the court orders had been adhered to. A key legal issue was whether section 35C of the relevant Act applied, which would necessitate an assessment of whether QWPT took "reasonable action" to ensure compliance by the other party with the court orders following any change in care. The Tribunal also had to consider the maximum duration of any applicable interim period under section 35L of the Act.

The Tribunal found QWPT's evidence regarding the change of care to be inconsistent and unreliable, preferring the evidence of the other party that a change in care occurred on 16 December 2017. Consequently, the Tribunal considered the application of section 35C. It determined that the court orders took effect on 17 July 2017, meaning any interim period under section 35C would commence on 17 December 2017 and end no later than 16 July 2018, as this date was later than 26 weeks after the change of care. The Tribunal concluded that QWPT had taken reasonable action by pursuing mediation and contravention proceedings.

The Tribunal revoked the existing care percentage determinations and made new determinations to reflect the actual care arrangements after the interim period ended.