FFTS and Child Support Registrar (Child support second review)

This matter concerned an interlocutory application for a stay order made by the Mother against the Child Support Registrar. The dispute centred on a decision of the Administrative Appeals Tribunal (AAT) concerning the percentage of care for a child. The application was heard by G Lazanas SM.

The primary legal issue before the Tribunal was whether to grant a stay order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) in relation to the AAT's decision. This required the Tribunal to consider whether granting the stay would secure the effectiveness of the hearing and determination of the application for review, taking into account the interests of any affected persons. The Tribunal also had to consider the prospects of success of the substantive review and the prejudice or hardship that might be suffered by the parties if the stay was or was not granted.

The Tribunal reasoned that the filing of an application for review does not automatically prevent a decision from taking effect, but section 41(2) of the AAT Act provides a mechanism for a stay to be ordered. In exercising its discretion, the Tribunal weighed the potential hardship to the Mother and the child if the stay was not granted, noting that the Mother was reliant on child support payments. Conversely, if the stay was not granted and the Mother was successful on review, she might have to recover overpaid amounts from the Father, which the Father himself acknowledged as a difficult issue. If the Father were successful on review, any debt would be reinstated and deducted from future payments, mitigating recovery issues. On balance, the Tribunal found that the Mother would suffer slightly more prejudice if the stay were not granted, which weighed in favour of granting the order.

The Tribunal concluded that it should exercise its discretion to grant the stay order in respect of the AAT decision.