Ballard and Smedley (Child support) - [2025] ARTA 621

Ballard and Smedley (Child support) [2025] ARTA 621 (13 March 2025)

Applicant: Ms Ballard

Respondent: Child Support Registrar

Other Parties: Mr Smedley
Tribunal Number: 2024/SC028584
Tribunal:General Member R Prasad
Place:Sydney
Date:13 March 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 13 March 2025 at 4:16pm

CATCHWORDS

CHILD SUPPORT – whether there has been a change in the pattern of care – child had left the father’s care – minor departures from the normal care of the child will not constitute a change to the pattern of care – care percentage remains the same – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

Ms Ballard (the mother) and Mr Smedley (the father) have had a registered child support assessment for their youngest child. Services Australia – Child Support (Child Support) has collected child support on the basis that the father has had 100% care of the child and the mother has had 0% care since 19 June 2023. These percentages denote the existing percentages of care.
On 9 January 2024, the mother notified Child Support of a change in care on the basis that the child had left the father’s care on 8 August 2023.
On 2 June 2024, Child Support decided to reject the care change notice as there was insufficient evidence that there had been a change in care (the original decision). The mother objected to the original decision on 12 June 2024.
On 12 September 2024, Child Support disallowed the mother’s objection (the objection decision). On 18 September 2024, the mother sought review of the objection decision by the Administrative Appeals Tribunal (the AAT).
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was heard on 24 January 2025. The Child Support Registrar elected not to be represented at the hearing but provided documentation (T1 to T162). The mother appeared by MS Teams audio and provided documentation before and after the hearing (A1 to A52). The father attended the Tribunal and provided documentation after the hearing (B1 to B189).

ISSUES

The relevant issues before me are whether there was a change to the child’s care arrangements, and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

Section 49 of the Child…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 621
Decision Date: 13 March 2025

CaseChat Overview and Summary

The case of Ballard and Smedley (Child support) involved a dispute between Ms Ballard and Mr Smedley over the registered child support assessment for their youngest child. The matter was reviewed by the Administrative Review Tribunal (the Tribunal) after the Administrative Appeals Tribunal (the AAT) disallowed Ms Ballard's objection to a decision by Services Australia – Child Support (Child Support) to reject a care change notice. The Tribunal was required to decide whether there had been a change in the child's care arrangements and, if so, the date of effect of the new care determination.

The court considered the evidence provided by both parties regarding the child's care and the applicability of sections 51 and 54G of the Child Support (Assessment) Act 1989. The court found that while the child had been living separately from the father since 3 December 2023, there had not been a material change in the pattern of care apart from the child's residence. The mother had provided some support, but this did not constitute a change to the pattern of care. The court also found that sections 51 and 54G did not apply, and as the cost percentages had not changed, the existing care percentage must not be revoked. The Tribunal affirmed the decision under review, maintaining the father's 100% care and the mother's 0% care of the child.

The Tribunal's decision was based on the evidence presented and the applicable sections of the Child Support (Assessment) Act 1989. The court found that minor departures from the normal care of the child, such as the child living separately from the father, would not constitute a change to the pattern of care. The court also noted that the existing care arrangement was not being followed and that the father had not notified of a change in care. Therefore, the Tribunal affirmed the decision under review, maintaining the father's 100% care and the mother's 0% care of the child.

Orders