Smickle and Boocker (Child support)

[2025] ARTA 498

Smickle and Boocker (Child support) [2025] ARTA 498 (20 February 2025)

Applicant:  Mr Smickle

Respondent:  Child Support Registrar

Other Parties:  Ms Boocker

Tribunal Number:   2024/PC028762

Tribunal:Senior Member A Suthers

Place:Perth

Date:20 February 2025

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – application for extension of time – separated under the one roof – query of the assessment – regular correspondence not received – 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

Summary

1. The Child Support (Assessment) Act 1989 (the Act) provides for Services Australia – Child Support (Child Support) to make an administrative assessment of child support.

1. Under section 25 of the Act, a parent of a relevant child may apply for an administrative assessment. If the necessary conditions are met, Child Support must make the assessment: section 30 of the Act.

2. Mr Smickle and Ms Boocker are the parents of [Child 1]. In 2018, they ended their relationship, but Ms Boocker and [Child 1] remained living in the home owned by Mr Smickle. Mr Smickle is a fly‑in, fly‑out worker, and so was not always home.

3. A child support case was registered with Child Support in respect of [Child 1] on 15 February 2019. Ms Boocker applied for the assessment and initially opted for private collection.

4. In the usual course, Child Support contacted Mr Smickle to confirm his details, which he provided, before the assessment commenced. That occurred on 15 February 2019. However, Mr Smickle says he told Child Support that there was no need for an assessment because he and Ms Boocker had a private agreement.

5. Later, in 2024, Ms Boocker moved from Mr Smickle’s home and opted to have Child Support collect the child support Mr Smickle was to pay her under the assessment. That prompted Mr Smickle to query the assessment, and why it had been in place since 2019. Mr Smickle says he did not know the assessment was in place and had not received any of the regular correspondence Child Support had sent to him whilst the assessment has been in place.

6. Mr Smickle was granted an extension of time to lodge a late objection to Child Support’s decision to accept the assessment, but the decision was affirmed on 9 October 2024. Mr Smickle then sought review in the Tribunal.

7. I heard the matter on 18 February 2025 and took evidence and submissions from Mr Smickle and submissions from Ms Boocker’s nominated representative, [named]. Child Support elected not to participate in the hearing.

8. I also had regard to a bundle of 252 numbered pages lodged by Child Support, 7 numbered pages lodged by Mr Smickle and 62 numbered pages lodged by Ms Boocker.

9. As Mr Smickle’s own evidence to me (which is consistent with the other evidence lodged) indicates that the requirements of section 25 of the Act were met when Ms Boocker applied for the assessment, I will affirm Child Support’s decision.

Summary of the law and the issue to be determined

1. As this is a ‘statement of reasons’, I am required, amongst other things, to explain the reasons for the decision. To do so, it is necessary to set out, to an extent, the law to be considered.

2. If the Registrar makes a decision to accept an application and make an administrative assessment, it is a decision ‘as to the particulars of an administrative assessment’ (item 11 of the table in subsection 80(1) of the Child Support (Registration and Collection) Act 1988). Either parent may object to the decision and then seek review by the Tribunal.

3. I ‘stand in the shoes’ of the original decision-maker, in that I am to determine for myself on the material before me the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision‑maker for the purpose of making the original decision. However, as section 9 of the Administrative Review Tribunal Act 2024 makes clear, the Tribunal makes its decision on review independently of the parties, including Child Support. The Tribunal is subject to the same constraints as the original decision-maker: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the, now repealed, Administrative Appeals Tribunal Act 1975.

4. The Act provides, relevantly:

   25 Persons who may apply—parents

   A parent (the applicant) of a child may apply to the Registrar under this section for administrative assessment of child support for the child if:

   (a)the applicant applies for both parents to be assessed in respect of the costs of the child; and

   (b)the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent); and

   (c)the applicant complies with any applicable requirements of section 26 (dealing with joint care situations) and section 26A (dealing with children cared for under child welfare laws); and

   (d)if either parent of the child is not a resident of Australia on the day on which the application is made—the application meets the requirements of sections 29A and 29B.

   …

   30 Decision on application

   (1) If the Registrar is satisfied that an application has been properly made for administrative assessment of child support for a child, the Registrar must accept the application.

CONSIDERATION

1. When initially objecting to the decision to accept the assessment, Mr Smickle challenged whether he was separated from Ms Boocker, that is, not living with her as his partner on a genuine domestic basis, at the time. He relied upon a pro-forma affidavit by Ms Boocker, sworn in respect of unrelated proceedings, wherein she indicated that the date of commencement of their relationship was 2009 and the date of separation was ‘2024’.

2. Mr Smickle is also reported as telling Child Support on 19 April 2024 that the parties ‘did not separate until late Feb 2024 and not aware of the registration as they were together [sic]’.

3. However, in evidence before me, Mr Smickle confirmed that, consistently with a letter he lodged in the proceedings (A4), and a Centrelink ‘[r]elationship details – separated under one roof’ form completed by Ms Boocker on 30 April 2024, the parties separated and were living under the one roof from December 2018. They did not reconcile. I accept that is the case and that, relevantly, they were not living together on a genuine domestic basis when the application was made.

4. As I am further satisfied from the evidence before me:

   (1)    that Ms Boocker and Mr Smickle are the parents of [Child 1];

   (2)    Ms Boocker applied for the assessment in respect of both parents;

   (3)    both parents were residents of Australia on the day on which the application was made; and

   (4)    sections 26 and 26a of the Act have no application;

   Child Support was bound to accept the application.

DECISION

The Tribunal affirms the decision under review.

Date of hearing:	Tuesday 18 February 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	[Name deleted]