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

This matter concerned an appeal by ZBHT (the applicant) against a decision of the Social Security Appeals Tribunal (SSAT) regarding the percentage of care for Family Tax Benefit (FTB) children. The dispute arose between the applicant and the Secretary, Department of Social Services, concerning the applicant's entitlement to FTB, which is contingent on the percentage of care provided to the children. The appeal was heard by Egon Fice, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the actual percentage of care provided by each parent to the FTB children during the relevant period, specifically between 26 March 2014 and 26 June 2014. This determination was crucial for establishing the applicant's eligibility for and the correct amount of FTB. The Tribunal was required to assess whether the care arrangements, particularly in circumstances where the parents were separated but living under the same roof, resulted in an unequal distribution of physical and financial care.

The Senior Member found that the evidence presented did not allow for a distinction between the level of care provided by each parent, despite acknowledging that the nature of the care differed. Applying the principle that in circumstances of separation under one roof, care is presumed to be shared equally unless there is evidence of significantly altered conduct, the Tribunal concluded that the care of the FTB children was shared equally between the applicant and the other party, meaning each parent had 50% of the care. Consequently, the Tribunal set aside the previous SSAT decision and substituted its own determination that both parents had 50% care of the children during the specified period.