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

This matter concerned an application for review of a decision regarding Family Tax Benefit (FTB) entitlement for RDBG. The dispute centred on whether RDBG was entitled to FTB for two discrete periods: 28 April 2019 to 8 June 2019 (Period 1) and 16 August 2019 to 16 September 2019 (Period 2). The Administrative Appeals Tribunal (AAT) was required to determine the percentage of care RDBG had for his infant child during these periods, which would in turn determine his eligibility for FTB.

The primary legal issues before the Tribunal were whether the child qualified as an "FTB Child" for RDBG during Period 1 and Period 2, and if so, what percentage of care RDBG had for the child during each of those periods. Under the relevant legislation, a child is not considered an "FTB Child" if the individual's percentage of care is less than 35%. If the percentage is 35% or more, the child is considered an "FTB Child" for the purposes of FTB entitlement. The Tribunal also had to consider the provisions for determining shared care percentages, which require a minimum of 35% care and a maximum of 65% care for an individual to have a shared care percentage.

The Tribunal affirmed the decision that RDBG was not eligible for FTB for Period 1. This was based on the finding that the child was overseas with the child's mother during this time, and RDBG did not provide the requisite level of care from afar to meet the 35% threshold. However, the Tribunal set aside the decision regarding Period 2 and substituted a new decision finding RDBG eligible for FTB. This was on the basis that RDBG had 50% care of the child during Period 2, and the child's mother also had 50% care, thereby meeting the criteria for shared care entitlement.