FMSG and Child Support Registrar (Child support second review) - [2020] AATA 693

FMSG and Child Support Registrar (Child support second review) [2020] AATA 693 (1 April 2020)
Division:GENERAL DIVISION
File Number(s): 2018/4646
Re:FMSG
APPLICANT

Child Support Registrar And
RESPONDENT

AndLDLV
OTHER PARTY

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:1 April 2020
Place:Brisbane

The Tribunal has jurisdiction to review the decision of the Social Security & Child Support Division of this Tribunal made on 28 July 2018.
.........................[SGD]...............................................
Deputy President Dr P McDermott RFD
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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.
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – whether Tribunal has jurisdiction to review matter – child support – percentage of care – the Tribunal found to have jurisdiction to review the AAT1 decision
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
CASES
Child Support Registrar v MQMV [2019] FCA 1171.
MQMV and Child Support Registrar (Child support second review) [2018] AATA 2924.
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
1 April 2020

On 13 June 2017, the applicant informed the Department that he had been providing 40% of the care for his children since 27 February 2015, in accordance with the Court Orders made on 27 February 2015. Subsequently, on 15 July 2017, the other party confirmed that the applicant was providing 40% of the care from this date. On 19 July 2017, the Department made a record of the applicant providing 40% of the care, with the date of effect from 13 June 2017. On 14 December 2018, the applicant objected to this decision, having stated that he first objected to the decision on 21 July 2017. On 11 April 2018, the Department affirmed the care percentage decision. On 26 July 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) also affirmed the decision. On 15 August 2018, the applicant made an application to the General Division of the Administrative Appeals Tribunal to review the decision.
After receiving submissions from the respondent which questioned the jurisdiction of the Tribunal, the Tribunal listed a Jurisdiction Hearing. On 31 January 2019, the Tribunal made an Order for the application to be held in abeyance, pending the decision of the Federal Court of Australia in Child Support Registrar v MQMV [2019] FCA 1171.
Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provides that, the power to review a decision is conferred by a relevant enactment. The Tribunal’s jurisdiction on second review is limited to the provisions under s 96A of the Child Support (Registration and Collection) Act 1988 (Cth) (“ the Collection Act”). The Tribunal notes that s 87A of the Collection Act…

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.

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Details

Case: [2020] AATA 693
Decision Date: 1 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered whether it had jurisdiction to review a decision concerning a child support percentage of care. The parties involved were FMSG and the Child Support Registrar.

The central legal issue before the Tribunal was whether it possessed the authority to conduct a "second review" of a prior AAT decision relating to the percentage of care for child support purposes. This question hinged on the interpretation of the relevant legislative provisions defining "care percentage decision" and the scope of decisions amenable to second review.

Deputy President McDermott P clarified that the definition of a "care percentage decision" within section 4 of the relevant Act, as incorporated by section 96A(b), was intentionally drafted to encompass determinations made under provisions within Subdivision B of Division 4 of Part 5 of the Assessment Act. His Honour emphasised that this definition was not intended to restrict second reviews solely to decisions originating from powers exclusively found within that specific subdivision, but rather to identify the core element of such decisions.

Consequently, the Tribunal found that it had jurisdiction to review the decision previously made by the Social Security & Child Support Division of the AAT on 28 July 2018.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

His Honour explained (at [45]) that the definition in s 4 of a “care percentage decision”, as embraced by s 96A(b), was a deliberate choice made by the Commonwealth Legislature to identify determinations made “under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act” as the core element of the decisions susceptible of “second review”; but not to confine the decisions susceptible to “second review” by reference to the source of those statutory powers found exclusively in Subdivision B of Division 4 of Pt 5 of the Assessment Act.DECISION The Tribunal has jurisdiction to review the decision of the Social Security & Child Support Division of this Tribunal made on 28 July 2018.

Ratio Decidendi

Legal Principle Established

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