Hiang and Smibert (Child support) - [2024] AATA 2757

Hiang and Smibert (Child support) [2024] AATA 2757 (12 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/BC027723
APPLICANT:  Mr Hiang
OTHER PARTIES:  Child Support Registrar
Ms Smibert

TRIBUNAL:Member S Letch
DECISION DATE: 12 June 2024
DECISION:

The decision under review is varied so that care for [Child 1] is to be recorded as 0% to Mr Hiang and 0% to Ms Smibert from 1 August 2023 (not 28 December 2023).

CATCHWORDS

CHILD SUPPORT – percentage of care – neither parent had care of child – child was living with her grandmother – decision under review is varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of theChild Support (Registration and Collection) Act 1988

REASONS FOR DECISION

Mr Hiang and Ms Smibert are the parents of [Child 1]. This matter concerns a decision by Child Support to record [Child 1]’s care for the purposes of a child support assessment.
It is convenient by way of background to set out some extracts from the objection decision dated 23 March 2024:
DECISION UNDER REVIEW
The decision was made to refuse to reflect the care of [Child 1] as 0% to Mr Hiang and 0% to Ms Smibert from 19 July 2022, notified on 5 October 2022.
Mr Hiang has objected to this decision stated that [Child 1] is living independently and has applied for Youth Allowance from Centrelink on 2 January 2024.
…
WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION
1. From 27 January 2021, the level of care recorded on the assessment was that Ms Smibert provided 100% and Mr Hiang 0% care for [Child 1].
2. On 5 October 2022, Mr Hiang notified us online to advise that [Child 1] is now supporting herself from 19 July 2022.
3. On 6 October 2022, Ms Smibert disagreed with Mr Hiang s statement that [Child 1] is self-supported. Ms Smibert stated that [Child 1] will sometimes spend some nights at Ms Smibert s mother place.
4. On 3 November 2022, we made the decision to refuse to reflect that both Mr Hiang and Ms Smibert provide 0% care for [Child 1] from 19 July 2022.
5. On 5 January 2024, Mr Hiang objected to this decision. We issued a letter to Ms Smibert about the objection process.
…
We note that the parents do not disagree that child of the assessment [Child 1] is in receipt of her own benefits.
A terminating event happens in relation to a child if:
-both parents of the child are not eligible carers of the child, i.e. they are determined as not having at least 35% care of the child after a change in care, and
-there is no non-parent carer entitled to be paid child support in relation to the child (i.e. no non-parent carer is entitled to 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: [2024] AATA 2757
Decision Date: 12 June 2024

CaseChat Overview and Summary

The case of *Hiang and Smibert (Child support)* concerned a dispute over the assessment of child support. The primary issue before the court was the percentage of care attributed to each parent, as neither parent had the day-to-day care of the child. Instead, the child was living with her grandmother. The decision under review was therefore subject to variation.

The court was required to determine the correct percentage of care for the purposes of child support assessment in circumstances where the child resided with a third party, namely the grandmother, and neither parent had the primary care responsibilities. This involved considering the application of the relevant provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) to the factual matrix presented.

Member S Letch applied the principles governing the assessment of child support percentages of care. The court considered the specific arrangements for the child's residence and care, noting that the statutory framework for determining care percentages typically focuses on the arrangements between the parents. In this instance, where neither parent had the requisite level of care to be considered the primary carer, the court had to assess how the legislation applied to the child's living situation with the grandmother. The court ultimately varied the decision under review, reflecting the specific care arrangements.

Orders