SYMB and Child Support Registrar (Child support second review)

[2023] AATA 248

SYMB and Child Support Registrar (Child support second review) [2023] AATA 248 (20 February 2023)

Division:GENERAL DIVISION

File Number:          2022/10303

Re:SYMB  

APPLICANT

AndChild Support Registrar

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member

Date:20 February 2023

Date of written reasons:        23 February 2023

Place:Sydney

For the reasons given orally at the hearing, the Tribunal does not have jurisdiction to review the decision made on 3 November 2022 by the Social Services & Child Support Division of the Tribunal.

.................................[sgd]......................................

Mrs J C Kelly, Senior Member

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 question – child support – application for review by the Tribunal – Tribunal has no jurisdiction to review the decision on an AAT second review

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

23 February 2023

Written reasons for oral decision

1. The Applicant has requested written reasons for the oral decision I gave on 20 February 2023 that the Tribunal does not have jurisdiction to review the decision made on 3 November 2022 by the Social Services & Child Support Division of the Tribunal (the SSCSD decision).

2. The SSCSD decision was made pursuant to the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act). It was about a departure from administrative assessment of child support.

3. Under Part 6A of the Assessment Act, the liable parent or carer may apply for a determination departing from the administrative assessment. That occurred in this case.

4. Thereafter, this matter has quite a complex history which it is unnecessary to set out here.  What is relevant, is the objection and review process set out in the Child Support (Registration and Collection) Act 1988 (Cth) (the Registration and Collection Act) which has resulted in the Applicant’s application for what is referred to in that Act as an ‘AAT second review’.

5. Part VII of the Registration and Collection Act sets out internal objection procedures for certain decisions. Section 80 lists the provisions of the Registration and Collection Act and the Assessment Act, against which objection may be lodged. Item 15 is ‘to make or to refuse to make a determination under Part 6A of the Assessment Act’.

6. Part VIIA of the Registration and Collection Act provides for a review of certain decisions made by the Registrar on reconsideration under Part VII of that Act, by the AAT (AAT first review).

7. The SSCDS decision is an AAT first review.

8. The difficulty for the Applicant in this case is the narrow scope of AAT second review set out in section 96A of the Registration and Collection Act:

   An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:

   (a)       a decision under section 92 to refuse an extension application;

   (b)       a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;

   (c)       a decision under subsection 95N(2) to make, or not to make, a determination.

9. The SSCSD decision is not one of the decisions specified in section 96A of the Registration and Collection Act. It was made pursuant to section 98S of the Assessment Act.

10. Therefore, the Tribunal has no jurisdiction to review the SSCSD decision on an AAT second review.

11. I note that the Tribunal’s letter dated 3 January 2023, responding to the Applicant’s application for review, advised her that it could not review the SSCSD decision at the second tier and that the review of the decision needed to be directed to the Federal Court.

12. The relevant provision is section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which provides that:

    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..................................[sgd]...................................

Associate

Dated: 23 February 2023

Date of hearing:	20 February 2023
Applicant:	In person
Solicitor for the Respondent:	Mr S Harvey, Services Australia