Henderson and Child Support Registrar

[2004] AATA 829

CATCHWORDS –JURISDICTION – CHILD SUPPORT – child support assessment – whether reviewable decision – Tribunal has no jurisdiction.

Child Support (Assessment) Act 1989 ss. 60, 64A, 98X, 98Z, 98ZC, 98ZD, 98ZE and 98ZF,
Administrative Appeals Tribunal Act 1975 ss. 3, 4, 25, 25A, 27, 30 and 31
Child Support (Registration and Collection) Act 1988 ss. 3, 54, 68, 72D, 72I, 72L, 72M, 72T, 89, 91, 97, 99 and 101

DECISION AND REASONS FOR DECISION [2004] AATA 829

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          V2004/762
GENERAL ADMINISTRATIVE DIVISION     )          

Re                THOMAS HENDERSON

Applicant

And             CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal:                  Deputy President S A Forgie
Date:  6 August, 2004
Place:  Melbourne

Decision:The Tribunal has decided that it does not have jurisdiction in this matter.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 28 June, 2004, the applicant, Mr Thomas Jesse Henderson, applied for review of a decision made on behalf of the respondent, the Child Support Registrar (“Registrar”).  That decision was dated 8 June, 2004.  It disallowed Mr Henderson’s objection to a decision dated 13 February, 2004 made by another person on behalf of the Registrar.  That earlier decision had refused to change the assessments made under the Child Support (Assessment) Act 1989 (“the Act”) of the amount of child support that Mr Henderson has to pay.  They had been made in respect of the years 1996 to 2004 and having effect during the period from 8 November, 1996 to 20 January, 2004. 

1. A hearing was held to determine whether or not the Tribunal has jurisdiction to hear Mr Henderson’s application.  He represented himself and Ms Fahey represented the Registrar.  I had copies of the two decisions made on behalf of the Registrar and Mr Henderson’s written submissions as to the Tribunal’s jurisdiction.

THE ISSUES

1. The issue is whether the Tribunal has jurisdiction to review a decision of the Registrar in relation to the assessment of the amount of child support payable by Mr Henderson.

CONSIDERATION

The Tribunal’s jurisdiction to review a decision

1. The Tribunal may only review a decision if it is specifically given the power to do so by either the Administrative Appeals Tribunal Act 1975 (“AAT Act”) or another piece of legislation. This is the effect of s. 25 of the AAT Act. Section 25(1) provides that:

   “An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; or

   (b)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made (s. 25(3)).

1. It is not enough that an enactment provide for review of specified decisions for the Tribunal must also be given power to review those decisions. That power is given by s. 25(4) which is the necessary corollary to s. 25(1).  It provides:

   “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

1. A reference in the AAT Act to a “decision” includes:

   “(a)   making, suspending, revoking or refusing to make an order or determination;

   (b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

   (c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

   (d)imposing a condition or restriction;

   (e)making a declaration, demand or requirement;

   (f)retaining, or refusing to deliver up, an article; or

   (g)doing or refusing to do any other act or thing.” (s. 3(3))

1. The practical effect of these provisions is that I have to take two steps to determine whether or not the Tribunal has the power to review a particular decision.  The first is to identify precisely the decision of which review is sought and the second is to identify whether there is an enactment providing that an application may be made to the Tribunal for review of that decision or class of decisions. 

What is the decision of which review is sought?

1. The effect of the two decisions is that the amount of financial support that Mr Henderson is required to pay under the Act in respect of the years 1996 to 2004 and having effect during the period from 8 November, 1996 to 20 January, 2004 remains unchanged. That financial support is known as child support.

The structure of the Act and the Tribunal’s jurisdiction

1. The main object of the Act is to ensure that children receive a proper level of financial support from their parents (s. 4(1)).  An application may be made to the Registrar for administrative assessment of child support.  That application may be made by a number of people including a person, who is a parent of a child and who wants to pay child support to an eligible carer of the child (s. 25A), as well as a person, who is the eligible carer of that child (s. 25).  It must be made in the way in which the Registrar specifies it must be made (s. 27).

1. If the application is properly made, the Registrar must accept the application (s. 30(1)).  Once the application has been accepted, it has certain consequences for the applicant.  In the case of a carer, the applicant becomes a person entitled to child support and the person from whom payment is sought becomes the liable parent (s. 31).  Mr Henderson has no choice in the matter.

1. Part 5 of the Act sets out the manner in which the administrative assessment of child support is to be undertaken. In certain circumstances, a person may elect that the assessment is made on the basis of an estimate of the liable parent’s taxable income. That election is made under s. 60 of the Act. If that estimate proves to be incorrect by an amount specified in s. 64A(1), that person is liable to pay a penalty.  In certain circumstances set out in s. 64A(4), the Registrar may remit the penalty.  An objection may be lodged to the Registrar’s decision on remission (s. 98X(1)(f)). 

1. Generally, an objection to a decision must be made within 28 days of being served with notice of the decision (s. 98Z(1)).  The time may be extended pursuant to s. 98ZD.  A person who is aggrieved (i.e. dissatisfied with) the decision on an application to extend time may apply to the Tribunal for review of that decision (s. 98ZE(7)).  Mr Henderson has not made an application to extend the time within which to make an objection and no decision has been made under s. 98ZD.  His applications have been made within the time allowed.  Therefore, the Tribunal does not have jurisdiction under s. 98ZE(7).

1. I will return now to the decision that the Registrar may make on a person’s objection to a decision regarding remission of a penalty under s. 64A(4).  The Registrar must make a decision on that objection (s. 98ZC(1)).  A person who is aggrieved by that decision on objection may also apply to the Tribunal for review of the decision on the objection (s. 98ZF(1)).  Mr Henderson submitted that he could seek review of the assessments of child support under this section.  The essence of his submission is that the Registrar’s assessment of his taxable income is a penalty.  Therefore, he should be able to seek review of that penalty under s. 98ZF(1). 

1. I do not accept Mr Henderson’s submission.  Section 98ZF(1) refers to a decision made under s. 98ZC(1).  That is a decision on an objection to a decision under s. 64A(4).  As I said, that is a decision regarding the remission of a penalty.  Certainly, it is arguable that such a decision may involve a consideration of a person’s taxable income in some circumstances.  I do not, however, decide the issue for there is no need.  It would only become an issue I would need to decide if the Tribunal were asked to review a penalty imposed under s. 64A(4).  I find that no penalty has been imposed on Mr Henderson by the Registrar.  A determination of Mr Henderson’s taxable income as one of the steps in assessing the amount of child support he is liable to pay is not a decision regarding the amount of a penalty that he must pay under s. 64A(4).  As the decision does not come within the terms of s. 64A(4), the Tribunal does not have jurisdiction pursuant to s. 98ZF(1).

The Tribunal’s jurisdiction under the Child Support (Registration and Collection) Act 1988

1. The Tribunal also has jurisdiction under the Child Support (Registration and Collection) Act 1988 (“CSRC Act”) to review certain decisions. Like the Act, its objects include ensuring that children receive from their parents the financial support that parents are liable to provide and that parents pay periodic amounts to their children on a regular and timely basis (CSRC Act, s. 3). The provisions of the CSRC Act and of the Act complement each other.

1. Part VA of the CSRC Act is concerned with departure prohibition orders. That is an order preventing a person from leaving Australia to travel to another country (CSRC Act, s. 72D(1)).  It may be made by the Registrar in the circumstances set out in that Part.  Where the Registrar has made a decision relating to a departure prohibition order under ss. 72I, 72L or 72M, an application may be made to the Tribunal for its review (CSRC Act, s. 72T).  The decision of which Mr Henderson seeks review is not a departure prohibition order.  Therefore, the Tribunal does not have jurisdiction under s. 72T.

1. The CSRC Act provides for a system of internal review by the Registrar just as the Act does. It permits objections to be made to the Registrar’s decisions in certain instances. Time limits apply. Section 89 provides that the time limit for lodging an objection under Division 1 of Part VII, relating to decisions reviewable by courts, may be extended.  If the Registrar refuses to extend the time, the Tribunal has jurisdiction to review that refusal (s. 91(5)).  As I have already found, the decision of which Mr Henderson seeks review is not a decision of this type.  Therefore, the Tribunal does not have jurisdiction to review it under s. 91(5).

1. Division 2 of Part VII of the CSRC Act is concerned with decisions reviewable by the Tribunal. There are only three: those made under ss. 54(1) and (2) and those under s. 68.  Sections 54(1) and (2) are concerned with the remission of penalties imposed on an employer.  Section 68 is concerned with the remission of penalties imposed for late payment of a child support debt.  Objections may be made to these decisions within 28 days of being served with notice of the decision (CSRC Act, s. 97).  That time limit may be extended and the Registrar’s refusal to extend the time may be reviewed in the Tribunal (CSRC Act, s. 101(5)).  The decision of which Mr Henderson seeks review is not a decision regarding extension of time.  Therefore, the Tribunal does not have jurisdiction to review the decision under s. 101(5).

1. An application may be made to the Tribunal for review of the decision made on such an objection (s. 99).  Again, the decision of which Mr Henderson is seeking review is not a decision of which review may be sought in the Tribunal.  It is not a decision relating to the remission of a penalty imposed on an employer and nor does it relate to a penalty imposed for late payment of a child support debt.  That is to say, it is a decision under neither ss. 54(1) or (2) nor s. 68.  Therefore, there is no entitlement to have the decision reviewed under s. 99. 

1. The Tribunal does not have any other jurisdiction to review the decisions of the Registrar under either the Act or the CSRC Act. It has not been given any other jurisdiction to review the Registrar’s decisions. As the decision of which Mr Henderson seeks review is not one of the decisions in relation to which the Tribunal has been given jurisdiction, it does not have jurisdiction. I have no alternative but to dismiss Mr Henderson’s application for lack of jurisdiction.

I certify that the twenty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:           ...............................................................

R. Crook  Associate

Date of Telephone Jurisdiction Hearing     22 July, 2004

Date of Decision  6 August, 2004
For the Applicant  self
For the Respondent  Ms L. Fahey