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

1. 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.

2. 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.

3. 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 is an outline of Part VIIA, Division 1 of the Collection Act and does not itself confer the jurisdiction upon the General Division of the Tribunal. The Tribunal has jurisdiction to review a percentage of care decision pursuant to Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) as defined under s 4 of the Collection Act. The respondent submits that the date of effect is not capable of second review; as such a decision is made pursuant to Subdivision C of Division 4 of Part 5 of the Assessment Act.

4. The applicant submits that the Tribunal does have jurisdiction to review the decision and relies upon s 50 of the Assessment Act, which is located under Subdivision B of Division 4 of Part 5 together with s 54F of the Assessment Act which is contained in Subdivision C of Division 4 of Part 5. The Tribunal is not of the view that there is any contractual obligation to review the application as the applicant contends. The jurisdiction of the Tribunal is conferred by statute, and the Tribunal does not have jurisdiction to consider applications which do not have a statutory jurisdictional basis. The applicant contends that Subdivision B and Subdivision C must be read together, as a care percentage cannot be calculated without a care period, and vice versa, as s 49 and s 50 of the Assessment Act refer to a care period.

5. The Tribunal accepts the applicant’s submissions that s 50 and s 54F of the Assessment Act are certainly closely interrelated, as was recognised by Deputy President Rayment QC in MQMV at [19].

6. In MQMV Deputy President Rayment QC explained that the jurisdiction of the General Division to entertain the application for a second review of the AAT1 is conferred by s 96A(b) of the Collection Act which refers to “a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision”.

7. The expression “care percentage decision” is defined by s 4 of the Collection Act, unless the contrary intention appears, as follows:

   Care percentage decision means a decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partly):

   (a) a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or

   
   

   (b) a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision.

   The Assessment Act in that definition is a reference to the Child Support (Assessment) Act1989 (Cth).

8. I have to determine whether a decision to not revoke a care percentage decision comes within the expression of a “care percentage decision”. This is dependent on whether the first mentioned decision involves (wholly or partly) a determination of a person’s percentage of care.

9. In Child Support Registrar v MQMV [2019] FCA 1171 Flick J (at [37])) held that a decision not to revoke a care percentage decision was a decision involving wholly or partly a determination of a person’s percentage of care.

10. 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

11. The Tribunal has jurisdiction to review the decision of the Social Security & Child Support Division of this Tribunal made on 28 July 2018.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

................[SGD]............................

Associate

Dated: 1 April 2020

Date of hearings:

24 January 2019, 31 January 2020 and               19 September 2019

Applicant:

By phone

Solicitors for the Respondent:

Other Party:

Services Australia

By Phone