Fuller and Brown (Child support) - [2016] AATA 2007

Fuller and Brown (Child support) [2016] AATA 2007 (11 April 2016)

APPLICANT Ms Fuller

OTHER PARTIES Mr Brown

Child Support Registrar

DECISION DATE 11 April 2016

DECISIONS

In relation to application [File number 1], the Tribunal sets aside the decision under review and, in substitution, decides that the prescribed non-agency payments not be credited.

In relation to application [File number 2], the Tribunal sets aside the decision under review and, in substitution, decides that the prescribed non-agency payment not be credited.

In relation to application [File number 3], the Tribunal sets aside the decisions under review. In relation to the decision to vary the particulars of the Child Support Register, the Tribunal substitutes a decision not to vary the particulars. In relation to the decision to deem “invalid” the objection decision of 20 November 2013 and remake that decision, the Tribunal remits the matter to the Child Support Registrar for reconsideration in accordance with a direction that this course was not open to the Registrar.

CATCHWORDS

Prescribed non-Agency payments – interpretation of section 71C of the Child Support (Registration and Collection) Act 1988 – purported “remaking” of objection decision – decisions under review set aside

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.

REASONS FOR DECISIONS

BACKGROUND

These applications concern child support issues arising following payments of school fees Mr Brown made in 2011 and 2012. Relevantly, he paid $439.60 each month in June, July, August and September 2011. He also made ten monthly payments, each of $1,058.40, during 2012.
Whilst the background history is somewhat complicated, it is sufficient to note for present purposes that the Department of Human Services - Child Support (the Department), on behalf of the Child Support Registrar, made a series of decisions crediting a total amount of school fees ($12,342.40) against Mr Brown’s child support liability. The Department made primary decisions dated 15 September 2011 and 8 May 2012 to credit the four $439.60 payments. It later made two further primary decisions dated 17 August 2012 and 9 January 2013, each to credit five payments of $1,058.40 (each primary decision involving a total of $5,292).
Ms Fuller has always disagreed with any such crediting decisions. She has maintained that the statutory rules governing these crediting decisions were not satisfied or, if they were, the discretion to refuse to credit such payments should be applied in her favour.
Ms Fuller’s various objections have resulted in a number of objection decisions which are now the subject of review before the Tribunal:
·     Objection decision dated 4 August 2014 concerning the primary decision of 15 September 2011 to credit $1,318.80 in total (for three payments of $439.60 for June, July and August 2011) [application [File number 1]];
·     Objection decision dated 4 August 2014 concerning the primary decision of 8 May 2012 to credit $439.60 (payment for September 2011) [application [File number 2]];
·     Objection decision dated 5 November 2015 concerning the primary decision of 9 January 2013 to credit $5,292 in total (for five payments of $1,058.40 for July, August, September, October and November 2012); and
·     Objection decision dated 5 November 2015 concerning a primary decision dated 10 September 2015 to vary the particulars of the assessment (sic), to effectively credit $5,292 (representing five payments of $1,058.40 for February, March, April, May and June 2012) [application [File number 3] dealing with both objection decisions of 5 November 2015].

The key provisions

Where the Department is collecting the child support liability, a payment by the liable parent to the parent entitled to receive child support, or to another person, can be credited against the liable parent’s child support liability, but only if the parents intended that the payment ‘count’ as child support: see sections 71 and 71A of the Child Support (Registration and Collection) Act 1988. It is clear there is no such joint intention or agreement in this case, so that these provisions have no application here.
Section 71C of the Act provides a mechanism whereby payments made by a liable parent for certain specified items may be taken into account in partial satisfaction of the liable parent’s child support liability. Joint intention or agreement is not required. A number of specific criteria have to be satisfied for this provision to apply. Where all the criteria are met, there is still a discretion in section 71D to refuse to credit amounts that would otherwise be able to be credited against the liability. Sections 71C and 71D relevantly provide:
71C Other payments of up to 30% of child support liability
(1) If:
(a) the payer of an enforceable maintenance liability in relation to a payment period or initial period has made one or more payments to the payee of the liability, or to another person; and
(b) the payment is a payment of the kind specified in the regulations; and
(ba) at the time the payment is made, the payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates; and
(c) the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and
(d) the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates;
then the Registrar must, despite section 30, credit the excess amount mentioned in paragraph (c) against the amount payable under the payer’s liability for the period, up to a maximum of 30% of the amount payable.
Note: Subsection (1) is subject to section 71D.
…
(3) Subject to subsection (4), the Registrar must not credit an amount under this section in relation to a period for which the payer has not paid to the Commonwealth an amount equal to the difference between:
(a) the amount payable by the payer to the Commonwealth under the enforceable maintenance liability in relation to that period; and
(b) the amount that is to be credited under subsection (1), or that would be so credited but for this subsection, in relation to that period.
(4) If the payer:
(a) did not pay that difference to the Commonwealth within the time required under section 66; and
(b) subsequently pays the amount of that difference to the Commonwealth;
the Registrar may credit against the amount payable under the enforceable maintenance liability in relation to that period the amount that, but for subsection (3), would have been credited under subsection (1).
…
71D Registrar may refuse to credit amounts in special circumstances
The Registrar may refuse to credit an amount under section 71, 71A or 71C if satisfied that, in the circumstances of the particular case, the amount ought not to be credited.

Applications [File number 1] & [File number 2]

It is convenient to firstly deal with the four school fees payments of $439.60 Mr Brown made in 2011.
In September 2011, Mr Brown notified the Department that he was paying school fees of $439.60 pm which he wanted to be taken into account in relation to his child support liability. He provided evidence confirming such payments made in June, July and August 2011. At the time, it is common ground that he was required to pay his child support liability to the Department. His monthly liability was then $1,446 pm (or $17,352 annually).
By notices dated 15 September 2011, the Department informed Mr Brown and Ms Fuller that a “decision” had been made to credit each of the three monthly school fees payments of $439.60 as prescribed non-agency payments (PNAPs). The decision letter advised that the payments would be credited, provided certain conditions were met. Ms Fuller’s letter also advised that if she disagreed with the decision, she could object.
By notices dated 8 May 2012, Mr Brown and Ms Fuller were informed that a further decision had been made to credit the monthly school fees payment of $439.60 for September 2011. The notices were in similar terms to those dated 15 September 2011.
Subsequently, Ms Fuller objected to these decisions (having been granted an extension of time). Her objections were disallowed. She then sought review by the Social Security Appeals Tribunal. In December 2014, the SSAT made decisions to the effect that only 50% of the total of the school fees payments should be credited, exercising the discretion in section 71D to refuse to credit the other 50%.
Ms Fuller then lodged an appeal against the SSAT’s decision. In September 2015, consent orders were made by the Federal Circuit Court allowing Ms Fuller’s appeal, setting aside the SSAT’s decision and remitting the matter to the AAT for redetermination (the SSAT ceased to exist from 1 July 2015 and became, in effect, the Social Services and Child Support Division of the AAT).
The President of the AAT directed that I constitute the Tribunal on the remitter. Given Ms Fuller had made further AAT applications in relation to other, more recent PNAP decisions, I considered it appropriate to list all PNAP matters together.
I conducted a hearing on 12 February 2016. Ms Fuller and Mr Brown participated by telephone. The Child Support Registrar was represented. I had before me documents provided by the Department, Mr Brown and Ms Fuller. I subsequently gave the Registrar time to make additional written submissions in respect of specific matters. Both Ms Fuller and Mr Brown were given further time to respond.

When was the operative decision made?

The Departmental processes have proceeded on the basis that the “decisions” notified in September 2011 and May 2012 enlivened objection rights. I consider that to be incorrect. The review process under the Act is intended to provide citizens with rights of substantive merits review in relation to administrative decisions affecting their rights or interests. Here, the September 2011 and May 2012 determinations resulted in a recognition in the Registrar’s records that Mr Brown had made the school fees payments, which were potentially capable of being credited against his liability, provided certain conditions were met. Such a provisional determination is not a final or operative decision which gives rise to rights of merits review. It is a “step along the way” to a final decision which, if the necessary conditions are not met, may never in fact be made: see generally Australian Broadcasting Authority v Bond (1990) 170 CLR 321.
The Registrar’s submissions correctly concede that the operative decision to credit PNAPs is the final unconditional decision to do so and that the right to object under section 80 of the Act arises upon the Registrar’s final decision to credit the amounts in question.
The suggestion by the Registrar that the practice of issuing “provisional” decisions and inviting the payee to object, whilst no doubt well intentioned, is legally flawed. Further, the Registrar’s submission that, upon the making of a provisional decision, the PNAPs are then taken into account for the purposes of the payee’s family tax benefit entitlement might well reflect Departmental practice. However, this practice appears to have no legal basis (particularly where the Department is collecting the child support liability from the liable parent).
In relation to the 2011 school fees payments, the Registrar’s records show that the actual crediting decisions, properly so-called, were made on:
·     15 September 2011 - $433.80
·     11 October 2011 - $433.80
·     10 November 2011 - $451.20
·     11 May 2012 - $439.60.
It is clear that Ms Fuller has always objected to any such crediting decisions. Whilst the objection decisions of 4 August 2014 did not, in terms, deal specifically with each of these decisions, the Tribunal’s jurisdiction is sufficiently wide to permit me to deal with the substance of these applications in the circumstances: see Commonwealth v Ford (1986) 9 ALD 433.
Ms Fuller’s case has always been that any PNAP crediting decision in relation to school fees paid by Mr Brown unfairly and inappropriately shifts these costs to her, by way of a reduction in child support Mr Brown is required to pay. She says the provisions which might allow PNAPs to be credited have not been satisfied and, if they have, the discretion in section 71D should be exercised. In this latter respect, she is aggrieved by an objection decision on departure dated 3 May 2012 which included in the reasons the following:
I will not make a change to the assessment for the school fees… Mr Fuller (sic) is eligible to continue claiming prescribed non agency payments for the school fees as this is an administrative option available to him.
This observation, which the Registrar concedes could not bind delegates considering any subsequent PNAP decisions, seems to have been accorded a prominence I consider cannot be justified in the circumstances of these applications.
Mr Brown’s position is that the Department has correctly accepted the PNAPs and supports its decisions in his favour.
In considering whether the actual crediting decisions detailed above should be confirmed, it is appropriate to consider the terms of section 71C. It is agreed between the parties that, at all material times, Mr Brown was required to pay his child support liability to the Department and that he was assessed as having no care of the children. Paragraphs 71C(1)(a),(ba) and (d) were satisfied. There is no dispute that the payments of school fees are of a kind specified in the regulations: paragraph 71C(1)(b) was satisfied.
Paragraph 71C(1)(c) has been considered to be contentious. It refers to:
the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods…

The reference to “the sum of those payments” is a reference to the total of all payments made which fall within paragraph (b). The reference to “the sum of all such payments previously credited under this section” is a reference to the sum of all PNAPs previously credited under section 71C against the amount payable under the liability for all past periods. It follows that I accept the Registrar’s submissions as to the interpretation of paragraph 71C(1)(c).

When Mr Brown notified the Department in September 2011 that he sought to have the monthly school fees payments he had made credited as PNAPs, no PNAPs had previously been credited. So in relation to the decision of 15 September 2011 to credit $433.80, the school fees payments he reported at that time (3 x $439.60) exceeded the sum of all previously credited PNAPs (because there had been none). It was therefore potentially open to the Registrar to proceed to make a crediting decision.
Subsection 71C(3) provides, in effect, that the Registrar must not credit an amount under section 71C in relation to a period for which the liable parent has not paid to the Commonwealth an amount equal to the difference between their child support liability for that period and any amount to be credited under subsection 71C(1) for that period. Again, I accept the Registrar’s submission as to the interpretation of this subsection.
However, subsection 71C(4) gives the Registrar a discretion to credit where the amount referred to in subsection 71C(3) is not paid by the due date, but paid subsequently. The due date is governed by section 66 of the Act, and in relation to these applications, required Mr Brown to pay the difference (70% of the monthly liability) by the 7^th day of the month following the preceding monthly payment period in order to be entitled to have 30% of his monthly liability met by way of crediting of PNAPs. Any such entitlement to a crediting decision was subject to any adverse decision under section 71D. If the balance payment of 70% of the monthly liability was paid after the due date, then Mr Brown had no entitlement to a favourable crediting decision. The Registrar, however, had a discretion to credit, despite the late payment.
At hearing, I suggested to Mr Brown that the available evidence indicated he was in arrears of child support when the actual crediting decisions were made in the period from September 2011 to May 2012. He did not accept that proposition and was given time to make submissions on the point. His written submission does not address the issue.
The Departmental material shows that Mr Brown’s child support liability for the period 1 November 2010 to 19 October 2011 was $1,446 pm ($17,352 pa). From 20 October 2011 to 31 January 2012, it was $1,605.33 pm ($19,264 pa). A departure decision made on 9 January 2012 had the effect of retrospectively increasing Mr Brown’s child support liability from March 2011. The objection decision on departure dated 3 May 2012 resulted in a variation to the rate of child support flowing from the primary departure decision, albeit that the rate was still considerably increased above the pre-existing administrative assessments.
There is no evidence to show that Mr Brown paid 70% of any monthly liability by the 7^th day of the following month.
It follows he was not “entitled” to have crediting decisions made in his favour.

The discretion in subsection 71C(4)

Not being entitled to have PNAPs credited as of right, the question arises as to whether Mr Brown should have the discretion in subsection 71C(4) exercised in his favour.
The Registrar’s submission is that this discretion is not unconfined and that its scope is intended to be narrow. It is suggested that generally applying an available credit when the balance payment is made late “incentivises the regular payment of current liabilities”. Reference is made to automating the PNAP scheme as much as possible. A difficulty with that submission is that this case demonstrates the “automation” which seems to have occurred has led to provisional or intermediate determinations being treated as final and operative decisions – and objection rights being advised where none exist. It must be doubtful that the sort of automation contended for can be consistent with a discretionary administrative decision in any event.
The Registrar submits that the crediting of PNAPs is intended to operate prospectively, in order to encourage the regular and timely payment of current liabilities. Reference is made to [1.18] of the Supplementary Explanatory Memorandum to the Child support Legislation Amendment Bill 1998:
1.18 To qualify for the credit the payer must have made one or more payments of the type set out in the Regulations and must also have paid the remainder of their monthly child support liability by the due date. If the payer satisfies these conditions and the amount of the payment (or sum of payments) is more than 25% of the enforceable maintenance liability in a given month the payer will be said to have an "uncredited amount". This uncredited amount will be able to be applied as a credit against the payer's enforceable maintenance liability in a later month (provided the conditions for crediting the payment are again met).
On one view, this explanatory material might tend to suggest an “uncredited amount” (originally a specific, defined term in this context) could only arise after a PNAP has been credited “as of right” (ie where the balance payment by the liable parent was made by the due date). That narrower view is inconsistent with the force of the Registrar’s submissions as to the operation of the relevant provisions in their current form. And it is not difficult to envisage situations where a liable parent, who has always paid their liability on time, might nevertheless accrue arrears of child support (a departure decision with retrospective effect being an obvious example). It seems unlikely that subsection 71C(4) should be construed in a way which would prevent a favourable exercise of discretion in such a case, by reason of the child support arrears alone. On the view I take in this matter, it is unnecessary to finally determine this point.

The effect of the Registrar’s submission is that, where the 70% balance payment is paid late, PNAPs should generally be credited in any event. The suggestion is made that the context of subsection 71C(4) indicates the existence of a discretion which does “not involve any significant discretionary decision-making”. Indeed, the background in this case suggests the Department tends to automatically credit PNAPs in this context. On that approach, a liable parent who had continuously failed to meet their child support liability over an extended period, resulting in significant arrears of child support, could nevertheless avail themselves of the benefit of having part of their ongoing liability met by way of prior payment of school fees, for example (provided the Department was responsible for collection of child support at all material times). I doubt that approach is appropriate.
However, to quite different effect, the Registrar’s submissions then proceed to indicate that the Department could consider a range of factors, including the case history, the payment history of the payer and recent parental contacts with the Department, to assess whether PNAPs should be credited under subsection 71C(4). There is no evidence that any consideration of these sorts of factors actually occurred in this matter.
In this respect, I also have regard to the objects of the Act found in section 3 which include:
(1) The principal objects of this Act are to ensure:
(a) that children receive from their parents the financial support that the parents are liable to provide; and
(b) that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis; …
On balance, I consider the better view is that the sorts of factors referred to immediately above can and should inform the decision as to whether a favourable decision under subsection 71C(4) is to be made. I do not accept a favourable decision should be, in effect, automatic.
Here, before any departure determination had been made, Mr Brown’s monthly liability was $1,446 up to 19 October 2011 and $1,605.33 from 20 October 2011 to 31 January 2012. By 14 July 2011, the Department had accepted an application from Ms Fuller for it to collect child support from Mr Brown from 10 June 2011. The Department also accepted an application for collection of unpaid child support for the three month period 10 March to 9 June 2011. It determined that $4,364.72 was unpaid for that period.
As at 15 September 2011, when the Department first credited PNAPs of $433.80 against Mr Brown’s child support account, his arrears were $4,633.92. On these figures, he had paid no child support in the period 10 March to 9 June 2011 (when his monthly liability was $1,446). And it seems he had paid nothing towards these arrears by 15 September 2011.
I do not consider this payment history suggests that a favourable exercise of discretion under subsection 71C(4) in Mr Brown’s favour is appropriate. Accordingly, I set that decision aside.
The next PNAP credit was for $433.80 on 11 October 2011. Mr Brown made a payment of $2,728.74 on 10 October 2011 which reduced his child support arrears from $6,279.92 to $3,551.18.
The school fees payments here relevant were made in June, July and August 2011. In the context of significant arrears of child support still owed by Mr Brown, I am not persuaded that it is appropriate that he have the benefit of part of his ongoing monthly liability met by way of previous school fees payments. It follows I do not consider this amount should have been credited. I set aside that decision.
Similar considerations apply to the PNAP credit of $451.20 on 10 November 2011. Whilst Mr Brown had made some inroads into the arrears owing ($1,842.29 before this PNAP was credited to his account), he was also incurring late payment penalties from 17 October 2011. Again, I do not consider this amount should have been credited and I set aside this decision.
Similar considerations also apply to the PNAP credit of $439.60 on 11 May 2012. This related to the school fees payment for September 2011. By that point, pursuant to the departure decision on objection dated 3 May 2012, Mr Brown’s monthly child support liability had increased to $2,595.42. His child support arrears exceeded $11,000. Again, I do not consider this amount of $439.60 should have been credited and I set aside this decision.

Application [File number 3]

This application concerns two objection decisions, both dated 5 November 2015. One objection decision concerned a primary decision dated 10 September 2015 to “reinstate” PNAPs of $5,292 originally accepted by decision dated 17 August 2012. This total represented five monthly school fees payments of $1,058.40 Mr Brown made in February, March, April, May and June 2012. The other objection decision concerned the primary decision of 9 January 2013 to credit a total amount of $5,292 as PNAPs. This total represented five monthly school fees payments Mr Brown made in July, August, September, October and November 2012.
On 22 August 2013, Ms Fuller objected to the decision of 9 January 2013 and she was granted an extension of time within which to object.
On 13 November 2013, the Federal Circuit Court made orders concerning the parents’ property and child support matters. Those orders included a departure determination which required Mr Brown to pay monthly child support of $3,466.67 from 14 October 2011. In addition, he was required to pay certain other costs, including tuition fees, levies and mandatory school expenses associated with the children’s schooling.
Ms Fuller made the Department aware of the Court’s orders and requested a calculation of child support owing. A file note dated 14 November 2013 shows the Department’s response to the Court order was to change the PNAPs from “accepted’ to “disallowed”. The Department’s case liability records shows that two credits, each of $5,292, were “reversed” in Mr Brown’s account on 14 November 2013.
Since Ms Fuller still had a pending objection on foot, an objection decision dated 20 November 2013 was then made, allowing Ms Fuller’s objection and refusing to credit PNAPs of $5,292.
Mr Brown filed an appeal against the Federal Circuit Court’s orders and his appeal succeeded. By orders dated 26 June 2015, the Full Court of the Family Court allowed Mr Brown’s appeals against the property and child support departure orders of 13 November 2013, set aside those orders and remitted Ms Fuller’s originating applications to the Federal Circuit Court for re-hearing by a different Judge (expected to be in June 2016). The effect of these orders was to restore or revive the departure decision on objection dated 3 May 2012.
The Departmental records show that, once it became aware of the Full Court’s orders, consideration was given to what consequences flowed in relation to these PNAP matters. That led to decisions to:
· “reinstate” the PNAPs of $5,292 originally accepted on 17 August 2012; and
· declare “invalid” the objection decision of 20 November 2013, remake that decision and “reinstate” PNAPs of $5,292.
The former decision was characterised as a variation to the particulars of the Child Support Register whereas the latter course of remaking the objection decision of 20 November 2013 was said to be because it “now contains an error of fact because the facts that existed at the time of the decision no longer apply”. This is plainly a reference to the Full Court setting aside the primary Judge’s departure orders of 13 November 2013.
Ms Fuller formally objected to the decision to vary the particulars in the Register so as to reinstate PNAPs of $5,292. She had been advised she would be able to exercise AAT review rights in relation to the objection decision which was to be re-made. (It might be noted that it appears there had been no formal objection lodged in respect of the original decision of 17 August 2012).
On 5 November 2015, her objection to the variation of the particulars of “the assessment” (sic) was disallowed. On the same date, the “re-made” objection decision resulted in Ms Fuller’s objection of 22 August 2013 being disallowed. She subsequently applied to the Tribunal for review of both objection decisions.
Prior to the hearing on 12 February 2016, I had sought submissions from the Registrar as to various matters, including:
· The legislative basis for the decision to vary the particulars of “the assessment” so as to “reinstate” PNAP credits of $5,292; and
· The legislative basis for the decision to deem the objection decision of 20 November 2013 “invalid” and to “reinstate” PNAP credits of $5,292.
As to the variation of particulars decision, the Registrar relies upon section 37 of the Act which provides:
Where the Registrar is of the opinion (otherwise than because of the receipt of an application or notice (as the case may be) under subsection 33(1), 34(1) or 35(1) or (2)):
(a) that, under this Act, the Assessment Act, the Family Law Act 1975 or the law of a State or Territory:
(i) an order has been made by, or registered in, a court; or
(ii) a maintenance agreement has been registered in, or approved by, a court;
and the order or agreement varies or otherwise affects a registered maintenance liability; or
(b) that an affecting event in relation to an enforceable maintenance liability has happened;
the Registrar shall make such variations (if any) to the particulars entered in the Child Support Register in relation to the liability as the Registrar considers necessary or desirable to enable the order or agreement to be given effect to under this Act or to take account of the happening of the event, as the case may be.
The difficulty with the Registrar’s position is that the orders of the Full Court say nothing about crediting of PNAPs or otherwise. In relation to child support, the Court simply allowed Mr Brown’s appeal against the departure orders of the primary Judge, set aside the orders and remitted Ms Fuller’s application for rehearing. In this context, it should be borne in mind that departure matters under the Child Support (Assessment) Act 1989 are concerned with determining the level of child support liability whereas the provisions here relevant under the Act are concerned with collection of that liability.
Nothing in the Full Court’s orders related directly or indirectly to the manner of collection of or satisfaction of Mr Brown’s child support liability. It follows I do not consider there was any occasion, flowing from the Full Court’s orders, for the Register to hold any opinion that the variation to the particulars in the Register by “reinstating” PNAP credits of $5,292 was necessary or desirable to give effect to the Full Court’s orders.
I find that nothing in the circumstances required any variation of the particulars in the Register under section 37 of the Act. No other substantive basis for this decision has been suggested in the Registrar’s submissions. Accordingly, I set aside the decision to vary the particulars.
In relation to the decision to treat as “invalid” the objection decision of 20 November 2013 and then re-make it, the Registrar submitted that the setting aside of the primary Judge’s departure orders “meant that the objection decision contained an error of fact, such as to warrant a remaking of the decision.” Reference was made to Minister for Immigration and Multicultural Affairs v Bhardwaj (202) 209 CLR 597 as authority.
Bhardwaj was a matter where the Immigration Review Tribunal proceeded to make a decision in the applicant’s absence, unaware that an adjournment application had been made. Once this administrative oversight was discovered, the Tribunal relisted the matter and made a different decision. The question before the High Court was whether it was open to the Tribunal to make the second decision, or whether its statutory function was exhausted upon delivery of the first decision. The High Court held that the Tribunal’s first decision involved a denial of procedural fairness and was affected by jurisdictional error. This meant the Tribunal’s first decision was, in law, “no decision at all”. In those circumstances, the Tribunal had not discharged its statutory function and the second decision was validly made.
It can be accepted for present purposes that an administrative decision which is affected by jurisdictional error can be remade. However, the AAT has held that, in the context of Tribunal proceedings, that course should only be followed in “clear cases”: see ReMichael and Secretary, Department of Employment, Science and Training [2006] AATA 227 per Downes J, President. With respect, that sort of approach also suggests itself at the Departmental level.
It might be observed that Bhardwaj was such a clear case. A material circumstance had occurred and been overlooked due to administrative oversight. The circumstances there are a very long way from those here. I do not accept that the ambit of jurisdictional error in this context is so broad as to include a failure to take account of a factor which had not arisen at the time of the objection decision on 20 November 2013 – and which could have only involved speculation at that point.
In my view, there was no error of fact of the sort now contended for by the Registrar in the objection decision of 20 November 2013. I do not accept that the Registrar was entitled, in September 2015, to retrospectively determine that the November 2013 objection decision was “invalid”. There was no proper basis for doing so. Had either party disagreed with that objection decision, they were entitled to seek review by the SSAT (or, from 1 July 2015, the AAT) and apply for an extension of time, if necessary. Absent such a review application, the November 2013 objection decision should have been an end of the matter.
The Registrar also relies on section 110V of the Act which provides:
When the Registrar, the AAT or a court makes a decision on a reconsideration, the Registrar must immediately take such action as is necessary to give effect to the decision.
The term “reconsideration” in this context is defined in section 110Q:
For the purposes of this Act, each of the following is a reconsideration of a decision:
(a) an objection to the decision under Part VII;
(b) an application to the AAT for AAT first review of that objection or AAT second review of a decision on that AAT first review;
(c) an appeal to a court from such a review under Part IVA of the AAT Act;
(d) an appeal to another court from that appeal under Division 2 of Part VIII and any subsequent appeals under that Division.
Relevantly here, the orders of the Full Court responded to an appeal from departure orders made by the Federal Circuit Court upon consideration of an originating application for departure brought by Ms Fuller. It follows that the orders of the Full Court did not constitute a reconsideration within section 110Q. It also follows that section 110V has no application and could not provide any basis for the Registrar’s position.
In any event, there was nothing in the Full Court’s orders that directly or indirectly affected any PNAP crediting decision which had been made. The orders were silent as to issues of collection or satisfaction of Mr Brown’s child support liability. So giving effect to the Full Court’s orders could not require any action in relation to the PNAP decisions here in issue.
There being no proper basis for the Registrar to purport to remake the objection decision of 20 November 2013, I set aside the objection decision dated 5 November 2015.

DECISIONS

In relation to application [File number 1], the Tribunal sets aside the decision under review and, in substitution, decides that the prescribed non-agency payments not be credited.

In relation to application [File number 2], the Tribunal sets aside the decision under review and, in substitution, decides that the prescribed non-agency payment not be credited.