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…

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.

Continue reading Feasey and Riggs (Child support)

Details

AGLC: Feasey and Riggs (Child support) [2022] AATA 4303
Case: [2022] AATA 4303
Decision Date: 30 November 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a dispute concerning child support between Feasey and Riggs. The matter came before the AAT following an application to review a decision made by the Child Support Registrar.

The primary legal issue before the Tribunal was whether it possessed the power to remit a matter from the Second Review Division (AAT2) back to the First Review Division (AAT1) for reconsideration, particularly in circumstances where a determination under section 95N of the *Child Support (Registration and Collection) Act 1988* had not been made during the original AAT1 review. The Tribunal also had to consider the implications of a late application to the AAT.

The Tribunal determined that section 42D of the *Administrative Appeals Tribunal Act 1975* did not grant it the power to remit a matter from AAT2 to AAT1. The Tribunal reasoned that its jurisdiction was confined to reconsidering the decision under review, and it could not effectively reconsider a decision that had not been subject to a prior determination on a specific aspect, such as the section 95N issue. The Tribunal noted that the original AAT1 review had not addressed this crucial element.

The Tribunal concluded that it lacked the power to remit the matter to AAT1 and therefore could not reconsider the decision in the manner sought by the applicant.

Orders