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

This matter concerned an application for Family Tax Benefit (FTB) by the applicant, who sought to establish that he had a pattern of care of 35% or more of his children. The respondent, the Secretary of the Department of Social Services, maintained a neutral position. The proceedings were before B J Illingworth SM in the Federal Circuit Court.

The central legal issue was whether the applicant had demonstrated a "pattern of care" for his children that met the threshold of 35% for the purposes of receiving FTB. This involved determining the actual periods of care the applicant had with his children, particularly in light of various Federal Circuit Court orders that altered the care arrangements over time, and whether these arrangements constituted a consistent pattern.

The court considered the meaning of "pattern of care" as established in *Brightman and Secretary, Department of Family and Community Services and Anor* [2004] AATA 405, which requires a common-sense approach to past and future arrangements. The court noted that variations to an established pattern only occur with significant departures. The applicant contended that the Department's calculations failed to account for specific days and periods of care, including school holidays and birthdays, which he argued would bring his care percentage to 35% or more. However, the court found that even if the interim orders were assumed to last for a full year, they would result in only 33.42% of care for the applicant, which was below the required threshold.

Ultimately, the Tribunal was not satisfied that the applicant had established a pattern of care in respect of the children that gave him a shared care percentage of 35% or more. Consequently, the decision under review was affirmed.