YBQB and Child Support Registrar (Child support second review)

This matter concerned a second review of a child support decision, brought before Emeritus Professor P A Fairall, Senior Member. The dispute centred on whether the current provisions of the *Child Support (Assessment) Act 1989* (Cth) regarding the percentage of care applied retrospectively to a change of care that occurred in 2016, where notification of the change was given more than 28 days after it occurred.

The primary legal issue before the Tribunal was to determine whether the application of subsection 54F(3) of the *Child Support (Assessment) Act 1989* (Cth), as amended, to a change of care that occurred prior to its commencement, but where notification was received by the Registrar more than 26 weeks after 1 July 2018, constituted a retrospective application of the law. This involved considering the distinction between statutes that operate retrospectively in the sense of speaking to the past, and those that create future rights or liabilities by reference to past events.

The Tribunal reasoned that, by reference to the specific application provisions in Item 183 of Schedule 1 of the Amending Act, the current version of s 54F did not apply retrospectively in the relevant sense. It was held that the commencement of the amended section did not alter existing rights or obligations, nor did it apply new date-of-effect rules to revocations or changes of care already notified. Instead, for changes of care that occurred before the commencement date, where notification was received more than 26 weeks after 1 July 2018, the current version of s 54F was engaged, meaning the amendments spoke only to the future.

Consequently, the Tribunal found that the questions of revocation and new determinations fell to be determined in accordance with the legislative provisions in force at the time the Registrar was notified. The Tribunal concluded that this did not involve a retrospective application of the current s 54F, and that any resulting monetary adjustment would not cause injustice. The decision of the Social Services and Child Support Division (AAT1) dated 27 October 2021 was set aside and substituted with the objection decision dated 27 May 2021.