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

This matter concerned an application by Kylie Whale for a review of a decision by the Administrative Appeals Tribunal (AAT) regarding her entitlement to Family Tax Benefit (FTB) for her daughter, Ashleigh. The dispute centred on the percentage of care each parent, Ms Whale and Ian Jones, provided to Ashleigh during specific financial years, as this determined eligibility for FTB. The AAT had affirmed a previous decision that varied an Authorised Review Officer's determination regarding the care percentages.

The primary legal issue before the court was to determine the percentage of care each parent provided to Ashleigh for the periods from 1 July 2011 to 30 June 2012, 1 July 2012 to 30 June 2013, 1 July 2013 to 30 June 2014, and 1 July 2014 to 30 June 2015. This determination was crucial for establishing whether Ashleigh qualified as an FTB child under the *A New Tax System (Family Assistance) Act 1999* (Cth) and, consequently, for calculating the FTB entitlement.

The court considered sworn evidence from both Ms Whale and Mr Jones, who relied partly on diary entries to substantiate their claims of care. While acknowledging that neither parent deliberately fabricated records, the court found Mr Jones's evidence and diary entries to be more likely accurate, based on his demeanour and the content of his records. The court noted that the ARO had previously split disputed periods 50/50 in the absence of clear information, but found that the inconsistencies in this case could be resolved by preferring Mr Jones's evidence, aligning with the reviewable decision of 27 November 2015. The decision of the AAT was affirmed.