Feasey and Riggs (Child support) - [2022] AATA 4303

Feasey and Riggs (Child support) [2022] AATA 4303 (30 November 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC021512
APPLICANT:  Mr Feasey
OTHER PARTIES:  Child Support Registrar
Ms Riggs

TRIBUNAL:Deputy President K Synon (Presiding)
Senior Member K Dordevic

DECISION DATE: 30 November 2022
DECISION:

The Tribunal has no power to reconsider the decision made on 21 July 2021 as it is not open for AAT2 to remit that decision to AAT1 pursuant to section 42D of the Administrative Appeals Tribunal Act 1975.

CATCHWORDS

CHILD SUPPORT – jurisdiction – section 42D Administrative Appeals Tribunal Act 1975 – no power to remit from AAT2 to AAT1 – care – late application to AAT – no 95N determination made in original AAT1 review – decision under review not reconsidered

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 so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

Mr Feasey (the father) and Ms Riggs (the mother) are the parents of two children. This matter concerns the care arrangements of the children from 9 November 2020.
The child support case was registered with Services Australia – Child Support (the Agency) from 8 September 2016. From 7 January 2018 the care record reflected that the mother had 71% care and the father had 29% care of the children, consistent with court orders in place.
On 7 December 2020 the father notified the Agency that there was a change in the care arrangements from 9 November 2020, whereby he would have 45% care and the mother 55% care. The mother did not agree that there had been a change to the care arrangements.
On 23 December 2020 the Agency refused to revoke the existing care determination. The father lodged his objection in a timely manner. The objection was disallowed on 16 April 2021. Notice of the decision was provided to the father electronically on the same day.
The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 17 May 2021.
The matter was heard on 21 July 2021. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. AAT1 considered the documentation provided by the Agency (folios 1 to 562) and the father (folios A1 to A6).
On 21 July 2021 AAT1 set aside the decision, revoked the existing care determination and determined that from 9 November 2020 the mother had 58% care and the father 42% care of the children.
The mother lodged an application with the General Division of the Administrative Appeals Tribunal (AAT2), seeking a review of the decision made by AAT1. On 27 September 2022 AAT2 issued the following order, requiring compliance by 25 October 2022:
Pursuant to section 42D of the Administrative Appeals Tribunal Act 1975, the Tribunal remits to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for reconsideration the decision of the AAT1 dated 21 July 2021.
On 11 and 17 October 2022 AAT1 (differently constituted) sought permission from AAT2 for an extension of time to comply with the order, as:
The SSCSD is currently seeking legal advice as to whether the General Division can remit a matter to the SSCSD. To the best of our knowledge, only one such order has been made before and in a more recent matter the General Division determined it did not have the power to remit to the SSCSD.
The SSCSD must also seek submissions from the applicant and other party in order to comply with the order.
On 11 October 2022 AAT1 issued the following directions:
4.1Mr Feasey must provide the following evidence to the tribunal by the close of business on 2 November 2022:
·      Whether there was a change to the children’s care arrangements on or around November 2020 and if so, what those changes were; and
·      Whether there were special circumstances that prevented the application for review with this tribunal (AAT first review) being lodged by 14 April 2022 (that is, within 28 days of the objection decision).
4.2Ms Riggs must provide the following evidence to the tribunal by the close of business on 2 November 2022:
·      Whether there was a change to the children’s care arrangements on or around November 2020 and if so, what those changes were; and
·      Any evidence on which she intends to rely in respect of the date of effect of the care change (if that is so determined), with particular reference to the lodgement of Mr Feasey’s application to the tribunal (AAT first review) on 17 April 2022.
The extension request was granted by AAT2 on 20 October 2022, permitting AAT1 to respond by 30 November 2022. In correspondence attached to the order, AAT2 noted:
In my respectful opinion, AAT2 has power to remit the decision under review to "the person who made the decision" pursuant to section 42D of Administrative Appeals Tribunal Act 1975 (AAT Act). While references to "the person who made the decision" in the AAT Act are generally modified by the Child Support (Registration and Collection) Act 1998 (Collection Act) to mean the Child Support Registrar (CS Registrar), that is not the case in respect of the power under section 42D of the AAT Act.
In this case, I accepted the CS Registrar’s submission that the remittal of the matter under section 42D of the AAT Act will enable the AAT1 to make a finding as to whether the first review application was lodged out of time and if so, make a decision under subsection 95N(2) of the Collection Act as to whether there were special circumstances that prevented the other party from lodging the first review application within the requisite 28 days. Upon the making of the reconsidered decision, it will then be open to the Applicant and the Other Party to consider how they wish to proceed with the application.
The parents complied with directions within the stipulated time and their evidence and submissions were accepted into evidence (folios A7 to A48 in respect of the father and folios B1 to B16 in respect of the mother).
AAT1 reached its decision on 30 November 2022.

ISSUES

The statutory provisions relevant to this review are the Administrative Appeals Tribunal Act 1975 (the Act), the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).
The issues which arise in this case are:
· Is it open to AAT2 to remit a matter to AAT1 pursuant to section 42D of the Act; and if so
· Was the father’s application to AAT1 made more than 28 days after notice of the objection decision was given; and if so
· Were there special circumstances that prevented the father from lodging his application with AAT1 within 28 days of receipt of the objection decision?

CONSIDERATION

The first AAT1 decision and application to AAT2

It is not in contention that on 21 July 2021 AAT1 set aside the decision under review and substituted a new decision as to the care of the children. This decision was made pursuant to subsection 43(1) of the Act.
Section 95N of the Registration Act provides that if the application to AAT1 was made more than 28 days after the notice of the original decision was given, the AAT1 decision has effect from the date the application was made, unless the Tribunal determines that the 28 day period be extended to a longer period as determined appropriate. AAT1 is also required to give notice of the decision to make, or not to make, a determination under subsection 95N(2). A decision made pursuant to section 95N has its own review rights, pursuant to paragraph 96A(c) of the Registration Act.
This Tribunal finds as a matter of fact that the first AAT1 did not make, or decide not to make, a determination under subsection 95N(2) of the Registration Act.
Application may be made to AAT2 in respect of the decisions made by AAT1 under the Registration Act, only in the following circumstances:
a)   a decision under section 92 to refuse an application to extend the time for lodging an application;
b)   a decision under subsection 43(1) of the Act of a care percentage decision; and
c)   a decision under subsection 95N(2) of the Registration Act to make, or not to make, a determination relating to the date of effect of a care percentage decision.[1]
[1] Section 96A of the Registration Act.
On 18 August 2021 an application was lodged with AAT2 in respect of the care decision made by AAT1, under subsection 43(1) of the Act. This Tribunal understands that AAT2 has yet to determine this application.
On 27 September 2022 AAT2 remitted to AAT1, pursuant to section 42D of the Act, for reconsideration, the first AAT1 decision dated 21 July 2021. The Tribunal now understands, following correspondence received from AAT2 dated 20 October 2022, that the remittal is on the basis that AAT1 is to consider section 95N of the Registration Act:
In this case, I accepted the CS Registrar’s submission that the remittal of the matter under section 42D of the AAT Act will enable the AAT1 to make a finding as to whether the first review application was lodged out of time and is so, make a decision under subsection 95N(2) of the Collection Act as to whether there were special circumstances that prevented the other party from lodging the first review application within the requisite 28 days. Upon the making of the reconsidered decision, it will be open to the Applicant and the Other Party to consider how they wish to proceed with the application.
This Tribunal finds no application in respect of section 95N of the Registration Act was lodged with AAT2. As a matter of logic, no such application could be made as the first AAT1 did not make, or decide not to make, a determination under subsection 95N(2).

The remittal powers of AAT2

Section 42D of the Act sets out AAT2’s power to remit a decision to the decision-maker for reconsideration during the course of a review. Subsections 42D(1) and (2) provide:
(1)At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
(2)If a decision is so remitted to a person, the person may reconsider the decision and may:
(a)    affirm the decision; or
(b)    vary the decision; or
(c)    set aside the decision and make a new decision in substitution for the decision set aside.
If the decision-maker varies or sets aside the decision, the application is taken to be an application for review of the varied or new decision and the applicant must decide whether they want to proceed with the application or withdraw it[2]. If the decision-maker affirms the decision, the review resumes[3].
[2] Subsections 42D(3) and (4) of the Act.
[3] Subsection 42D(8) of the Act.
The critical question in relation to this matter is therefore who is the ‘person who made’ the decision that is the subject of the review by AAT2.
The Act makes a number of references to the ‘person who made’ the decision and other, similar terms. The meaning of this term is expressly modified in relation to AAT2 reviews in the following ways:
·Subsection 29AC(1) of the Act provides that if an application is made to the Tribunal, notice must be given to the person who made the decision. For a second review of a child support extension refusal under section 92 of the Registration Act, subsection 29AC(1) of the Act applies as if the reference to the person who made the decision were a reference to the Child Support Registrar.[4]
·Section 30 of the Act provides that the parties to a review are the applicant, the person who made the decision, any joined party and, in limited circumstances, the Attorney-General. For an AAT2 review, paragraph 30(1)(b) of the Act applies as if the reference to the person who made the decision were:
- in the case of an application for review of a child support extension of time refusal, the Child Support Registrar[5]; and
- in the case of an application for review of an AAT1 care percentage decision made under subsection 43(1) of the Act or an application for review of a decision under subsection 95N(2) of the Registration Act, a reference to each person who was a party to AAT1 (other than the applicant to AAT2). This includes the Child Support Registrar[6].
·Subsection 37(1) of the Act requires the person who has made the decision under review to lodge a statement of the reasons for the decision and every other document relevant to the review. For an AAT2 review, subsection 37(1AAB) imposes this obligation on the person who made the decision that was reviewed by the AAT1 or, in the case of a decision made by the Tribunal under sections 92 or 95N of the Registration Act, on the Child Support Registrar.
·Subsections 41(4) and (5) of the Act set out, amongst other things, requirements relating to giving the person who made the decision a reasonable opportunity to make submissions before the Tribunal makes, varies or revokes a stay order in relation to that decision. For the AAT2, a second review of a decision originally made by Services Australia, subsections 41(4) and (5) of the Act apply as if references to the person who made the decision were references to each party, which includes the original decision-maker[7].
·Subsection 42A(2) of the Act provides that the Tribunal may take certain action when a party other than the person who made the decision fails to appear at an ADR proceeding, directions hearing or hearing. At the AAT2, subsection 42A(2) of the Act applies as if reference to the person who made the decision were a reference to the Child Support Registrar.[8]
[4] Section 96B of the Registration Act.
[5] Subsection 97A(1) of the Registration Act.
[6] Subsection 97A(2) of the Registration Act.
[7] Section 97B of the Registration Act.
[8] Section 97D of the Registration Act.
Other references to the ‘person who made’ the decision (or such similar terms) are not modified expressly, including in the following provisions of the Act:
·subsection 33(1AA) which provides that, on a review, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision;
·paragraph 33(2A)(b) which provides that the Tribunal may direct the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; and
·section 42D, explored further below.
In general, decisions made by AAT2 to remit under section 42D of the Act have been remitted to the original decision-maker rather than to AAT1[9].
[9] For examples of matters remitted to the original decision-maker under s 42D of the AAT Act since the AAT was amalgamated with the Social Security Appeals Tribunal on 1 July 2015, see Smalldon and Secretary, Department of Social Services [2015] AATA 575; Van-Oostveen and Secretary, Department of Social Services [2015] AATA 713; QGZY and Secretary, Department of Social Services [2016] AATA 523; Phillips and Secretary, Department of Social Services [2018] AATA 1636; and Ringham and Secretary, Department of Social Services [2019] AATA 1003.
This Tribunal is not aware of any judicial guidance as to whether it is legally permissible for AAT2 to remit a matter to AAT1 pursuant to section 42D of the Act. This Tribunal was only able to locate two matters (apart from the matter under review) where AAT2 considered remitting a decision to AAT1 under section 42D of the Act.
The first was in the matter of Logan and Secretary, Department of Social Services[10]. The facts can be summarised as follows. AAT1 affirmed a Centrelink authorised review officer’s decision that the applicant was not entitled to arrears as she had not applied for review of the original decision within 13 weeks. At AAT2, the respondent accepted the applicant had requested a review within 13 weeks and she could be paid arrears if she met the relevant criteria at the time of her original claim. The respondent requested that the matter be remitted to AAT1 to consider that issue and AAT2 made such a decision. The terms of the order used the language of paragraph 43(1)(c) of the Act but AAT2 stated in the body of its reasons for decision that the remittal was pursuant to section 42D of the Act[11].
[10] 2019/6396.
[11] [2020] AATA 102, [12].
The second matter was SPWX and Secretary, Department of Social Services[12], where AAT1 refused to entertain the application on the basis that it had not been made within a reasonable timeframe pursuant to subsection 29(4) of the Act. The respondent contended that AAT2 had jurisdiction to review the AAT1 decision. The respondent went on to submit that, if it was determined that AAT1 should have determined the application, AAT2 should set aside the decision and remit the matter back to AAT1 to consider the application substantively. AAT2 determined it did not have jurisdiction to review the AAT1 decision, nor to remit the matter to AAT1, including pursuant to section 42D of the Act. In relation to the issue of remittal under section 42D, AAT2 noted that there were at least two significant impediments. First, AAT1 was not a party to the application, and so cannot be directed to do anything and, secondly, the Tribunal is defined as one entity under the Act. Thus, a remittal from AAT2 to AAT1 would constitute an order to itself[13].
[12] 2021/9004.
[13] [2022] AATA 2486, [20].
The critical question to be determined in this case is the meaning of the term ‘the person who made’ the decision in subsection 42D(1). As outlined above, references to the person who made the decision in the Act are modified so that at AAT2 the original decision-maker is a party (and not AAT1) and the rights and obligations of the person who made the decision are imposed on the Secretary or the Child Support Registrar (and not AAT1). However, no modifications have been made in respect of the meaning of ‘the person who made’ the decision in section 42D of the Act. AAT2 highlighted this fact in its correspondence to this Tribunal on 20 October 2022.
It could be argued that, had Parliament intended to modify the meaning of ‘person who made’ the decision for the purpose of section 42D, it would have expressly done so. If such an approach is adopted, it follows that in the absence of any express modification of the provision the words should be construed in accordance with their ordinary meaning in their statutory context. On that basis, one possible construction is that the reference to the ‘person who made’ the decision in section 42D is always AAT1. However, that would be counter to the reality that in most cases there would be no utility in remitting a matter to AAT1, whereas there could be utility in remitting it to the original decision-maker. Another is that it could be read as referring to either the original decision-maker or AAT1. This would better reflect the reality of the decision-making process, although such an interpretation would give rise to uncertainty.
The Tribunal finds that the better reading of section 42D is that the ‘person who made’ the decision is a reference to the original decision-maker. In reaching this conclusion this Tribunal took into account the overall legislative context, the mechanisms of the operation and implementation of a decision under review, the parties to the proceedings, the benefit of consistent operation of the provisions that refer to the decision-maker, the nature of merits review and the Tribunal’s statutory objectives, explored further below.
In Yolbir v Administrative Appeals Tribunal (Yolbir), a Full Court of the Federal Court[14] held that the Tribunal had power to make an order under section 41 of the Act in relation to the original decision that had been affirmed by the (then) Social Security Appeals Tribunal (SSAT). The Court noted that:
Even if there were not, in reality, one decision which had passed through a prior process of review, but instead there should be seen to have been an original decision now remote from the process of review, the width of the expression ‘the decision to which the relevant proceeding relates’ would be capable of referring back to that original decision.
[…]
… the section bears a wide enough construction to cover the operative decision which is the decision to which, in substance, the proceeding relates. The operative decision is also the decision made in the exercise of powers conferred by an enactment for the purpose of s 25 of the AAT Act and the decision under review for the purposes of s 43 of the AAT Act. [15]
[14] [1994] FCA 910, [9].
[15] Ibid, [10].

In Patti-Mae Lee v Secretary, Department of Social Security, a Full Court of the Federal Court considered whether the law to be applied to the review of a decision to waive a debt should be that which existed at the time of the primary decision or at the time of review. In the course of considering the issues, Cooper J stated that:
The submission of the respondent that the decision at each stage of the review process became the relevant operative decision and that the original decision of the delegate became incorporated in each new decision on review and thereby lost its character as the operative decision under review is inconsistent with the decision of a Full Court of this Court in Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 and is rejected.[16]
[16] [1996] FCA 1682, [10].
While the decision in Yolbir related specifically to the scope of section 41 of the Act, the reasoning supports the general notion that a decision before AAT2 is not confined to the decision made by AAT1, but incorporates the last decision made by the original decision-maker. Furthermore, the child support legislation modifies the Act to specifically exclude AAT1 from being a party to AAT2, despite it having made the decision which resulted in the application to AAT2. Other provisions, albeit not all, have been modified to provide that a reference to the ‘person who made’ the decision is to the original decision-maker.
While not modified for the purposes of AAT2, the references to ‘the person who made the decision’ in subsection 33(1AA) and paragraph 33(2A)(b) of the Act only make sense in the context of AAT2 if they apply to the original decision-maker. Similarly, while the social services and child support legislation do not specifically modify the application of section 42D of the Act, the only logical construction is that the provision refers to the original decision-maker. This ensures that the concept of ‘person who made’ the decision is applied consistently throughout the application of the Act at AAT2 where a decision was originally made by Services Australia.
Section 2A of the Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that:
· is accessible, fair, just, economical, informal, quick and proportionate to the importance and complexity of the matter; and
· promotes public trust and confidence in the decision-making of the Tribunal.
AAT2 has the same power as AAT1 to conduct a full merits review and come to a final decision when reviewing a decision made by AAT1. Remitting a matter to AAT1 pursuant to section 42D would unnecessarily prolong proceedings and create additional costs, which is inconsistent with the Tribunal’s statutory objectives.
The Tribunal concludes that the better interpretation is that, though not expressly prohibited, the legislation does not evince an intention that AAT2 may remit a decision to AAT1 under section 42D where the original decision was made by Services Australia.
It is on this basis that this Tribunal is satisfied that section 42D of the Act does not permit AAT2 to remit to AAT1 a care percentage decision made under subsection 43(1) of the Act, as AAT1 is not the original decision-maker in relation to the care percentage decision.

Original decisions made by AAT1

There are two types of decisions reviewable by AAT2 under the Registration Act where AAT1 is the original decision-maker: a decision to refuse an extension of time (section 92) and a decision to make, or not to make, a determination under subsection 95N(2) of the Registration Act. The reference to the ‘person who made it’ in section 42D of the Act the decision could only be to AAT1. Clearly then, these decisions could not be remitted to the Child Support Registrar for reconsideration.
It follows that when AAT1 has made a decision either to make, or not to make, a determination under subsection 95N(2), that decision can clearly be the subject of a review by AAT2. In the current matter before AAT2, the Child Support Registrar made submissions that AAT2 did not have jurisdiction to review a decision under section 95N because no such decision was made by AAT1. This is correct; the first AAT1 did not make a decision either to make, or not to make, a determination under subsection 95N(2) of the Registration Act. Therefore, the question of whether a section 95N decision could be remitted to AAT1 simply does not arise in this case.
This conclusion is consistent with the legislative framework, including the definition of ‘decision’ set down in subsection 3(3) of the Act:
(3)Unless the contrary intention appears, a reference in the Act to a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
…
(g) doing or refusing to do any other act or thing.
The Act makes no reference to a failure to make a decision.
In their submission to AAT2, the Child Support Registrar went on to state that it was open to AAT2 to remit the matter to AAT1 to enable a section 95N decision to be made. With respect, and for the reasons set out below, this Tribunal does not agree with those submissions.
It has long been established that an application cannot be made to the Tribunal for review in circumstances where a decision-maker has failed to make a decision unless[17]:
·the legislation conferring jurisdiction provides that a failure to do an act or thing within a prescribed period is deemed to constitute the making of a decision at the expiration of that period (subsection 25(5) of the Act); or
·the Commonwealth Ombudsman has granted a certificate that there has been unreasonable delay in deciding whether to do an act or thing (section 10 of the Ombudsman Act 1976).[18]
[17] Pearce, D (2020) Administrative Appeals Tribunal, 5th Ed.
[18] Ibid at [3.37]. The position where a decision-maker has failed to make a decision can be contrasted with the situation where a decision-maker positively declines to act on the basis that there is no jurisdiction to do so: at [3.24].
As outlined above, the question of whether a section 95N decision may be remitted to AAT1 is not relevant in this case, as no such decision was originally made by AAT1. Therefore, this Tribunal is not required to consider whether it is open to AAT2 to remit the decision to AAT1 under subsection 42D(1) for reconsideration of subsection 95(2) of the Registration Act.
However, this Tribunal makes the following observations. In the current case, where AAT1 has not made a decision under section 95N, the Tribunal is not functus officio. If it is the case that a decision under section 95N is required, the decision-making power that could have been exercised by AAT1 remains unexercised. In that situation, it would be open to any of the parties (including the Child Support Registrar) to make submissions to AAT1 to the effect that the matter should be reopened at AAT1 level to enable section 95N to be considered.
In addition, in the view of this Tribunal, in the event that the decision on first review of a care percentage decision is reviewed by AAT2, the same powers and discretions that would be available to AAT1 are available to AAT2 in its own right, should a decision under subsection 95N(2) of the Registration Act be necessary. This power would be available to AAT2 in circumstances where AAT1 has affirmed a care percentage decision, but the decision is varied or set aside by AAT2. Therefore, it must also be the case where AAT1 has not exercised the power at first review (as is the case in this matter) AAT2 has power to consider section 95N of the Registration Act, should AAT2 find that such consideration is necessary.

DECISION