Smacton and Smacton (Child support) - [2024] AATA 2763

Smacton and Smacton (Child support) [2024] AATA 2763 (18 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/MC027351
APPLICANT:  Mr Smacton
OTHER PARTIES:  Child Support Registrar
Ms Smacton

TRIBUNAL:Member K Hamilton
DECISION DATE: 18 June 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change in the pattern of care – date of effect – not permissible for the pre-existing care determination to be revoked – decision under review affirmed

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

BACKGROUND

Mr Smacton and Ms Smacton are the parents of 2 children, [Child 1] and [Child 2].
On 16 September 2021, Ms Smacton advised Services Australia – Child Support (Child Support) that she had 90% care of the children and that Mr Smacton had 10% care from 24 April 2021. Ms Smacton advised Child Support that she had sole care of the children during school terms from 24 April 2021 onwards and Mr Smacton had care of 40 nights (at most) per year, being 8 nights in each of the 2-week school holiday periods and 16 nights over summer holidays.
Prior to this notification, the pre-existing care percentage determination recorded that Ms Smacton had 83% care and Mr Smacton 17% care of the children.
On 1 October 2021, Child Support made a decision to reflect the care of the children as 90% to Ms Smacton and 10% to Mr Smacton from 24 April 2021 to 30 July 2021.
Mr Smacton objected to that decision on 20 December 2022. On 8 January 2024, a Child Support objections officer disallowed the objection.
On 15 January 2024, Mr Smacton applied to the Administrative Appeals Tribunal (the Tribunal) for further review.
The matter was first listed for hearing on 4 April 2024. Mr Smacton and Ms Smacton participated in that hearing by telephone. Following a discussion with Mr Smacton regarding the recent Federal Court decision in the matter of Child Support Registrar v CMU23 [2024] FCA 109, the matter was adjourned at Mr Smacton’s request to allow him to seek legal advice.
On 9 April 2024, the parties were advised that the matter would be listed for a resumed hearing on 26 April 2024. Ms Smacton subsequently advised the Tribunal that she did not wish to participate in the resumed hearing.
Unfortunately, due to technical difficulties on the part of the Tribunal, the resumed hearing scheduled for 26 April 2024 did not proceed. Mr Smacton subsequently requested that the application be heard on the papers, and Ms Smacton consented to this.
On 9 May 2024, I issued directions requiring both parties to submit any further documents and any written submissions on which they wished to rely by 31 May 2024. Neither party provided…

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.

Keep reading for free

Create a free CaseChat account to read Smacton and Smacton (Child support) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 2763
Decision Date: 18 June 2024

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Smacton, against a decision of the Child Support Registrar regarding the percentage of care for the parties' child. The dispute centred on when a change in the pattern of care should take effect for the purposes of child support assessments.

The primary legal issue before the Tribunal was whether the Registrar had erred in refusing to backdate a change in the percentage of care to a date prior to the application being made. Specifically, the Tribunal had to consider the provisions of the *Child Support (Registration and Collection) Act 1988* (Cth) and the *Child Support (Assessment) Act 1989* (Cth) concerning the retrospective application of changes to care arrangements.

Member K Hamilton affirmed the Registrar's decision, reasoning that the legislation did not permit the revocation of a pre-existing care determination. The Tribunal held that a change in the pattern of care could only be applied from the date of the application for a revised assessment, or from a later date if specified, but not retrospectively to a period before the application was lodged. The existing care determination remained in force until a new assessment was made based on the application. The decision under review was therefore affirmed.

Orders