TYCS and Child Support Registrar (Practice and procedure) - [2025] ARTA 1861

TYCS and Child Support Registrar (Practice and procedure) [2025] ARTA 1861 (16 September 2025)
Applicant/s:  TYCS
Respondent:  Child Support Registrar
Other party:  ZXZV
Tribunal Number:                2025/2063

Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:16 September 2025
Decision:The application for a stay is refused.

Statement made on 16 September 2025 at 11:48am

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 201(1A) - 201(1B) of the Social Security (Administration) Act 1999
Catchwords
CHILD SUPPORT – Interlocutory – practice and procedure – stay order application – percentage of care decision – whether it is desirable for the purpose of ensuring the effectiveness of the review – utility of stay order
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Broadbent v Civil Aviation Safety Authority [1999] FCA 1871
Clement and Comcare [2006] AATA 705
Scott v Australian Securities & Investments Commission [2009] AATA 798
Statement of Reasons

Mr TYCS has applied for social services second review of a decision of the Tribunal on a review of a child support care percentage decision. The Tribunal had decided in that matter to set aside the decision of an objection officer so as to revoke an existing care percentage determination of 14% to Mr TYCS from 13 April 2023 and to replace it with a care determination of 0% from 14 April 2023. The care percentage determination in respect of the other parent of 86% was also revoked, but from 13 November 2023 with the new care determination of 100% applying from 14 November 2023. Services Australia had previously not accepted that a change in care had occurred, and an objection to that decision had been disallowed.
The Tribunal had also accepted that special circumstances had prevented Ms ZXZV from lodging her objection within 28 days of being given notice of the original decision, and exercised the discretion in section 87 AA of the Child Support (Registration and Collection) Act 1988. Had the Tribunal not done so the favourable outcome on review would not have taken effect until 15 October 2024.
The Tribunal observed also that new care percentage determinations had taken effect in any event from 22 July 2024 which were not before the Tribunal.
Mr TYCS has applied for second review of that decision. On 2 March 2025 Mr TYCS applied for a stay of the Tribunal’s decision on the grounds that he had enclosed new evidence which he believed would impact on the decision that had been made.
On 16 May 2025, Ms ZXZV gave notice that she opposed the stay.
On 26 May 2025, the Child Support Registrar advised that he neither opposes nor consents to the stay.
A hearing of the stay application proceeded on 20 August 2025, although on that occasion Ms ZXZV indicated she had been taken by surprise as to…

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: [2025] ARTA 1861
Decision Date: 16 September 2025

CaseChat Overview and Summary

The case of TYCS and Child Support Registrar (Practice and procedure) involved an interlocutory application concerning the review of a decision. The applicant sought a stay order, while the dispute centred on the percentage of care decision. The application was heard and determined by the relevant administrative tribunal.

The legal issues before the court were whether the application for a stay order was appropriate and whether it was desirable for ensuring the effectiveness of the review. The court had to consider the statutory provisions and the relevant factors outlined in previous cases when exercising its discretion to grant a stay.

The court found that the application for a stay was not appropriate in this case. The court emphasised that the discretion provided by the legislation was broad and was not solely focused on relief of hardship. The determinative criterion for the exercise of the Tribunal stay power was to secure the effectiveness of the review. The court considered various factors, including the prospects of success, the potential prejudice or hardship, and the consequences for the respondent if a stay was granted. Ultimately, the court concluded that it was not desirable to grant a stay in this instance to ensure the effectiveness of the review.

The final orders of the court were to refuse the application for a stay order. The substantive hearing of the review on its merits would be notified to the parties by the Registry in due course.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As explained to the parties, this has been an interlocutory application in relation to the review. Arrangements for the substantive hearing of the review on its merits will be notified to the parties by the Registry in due course.DECISIONThe application for a stay is refused.

Ratio Decidendi

Legal Principle Established

Ms ZXZV failed to serve her submissions on the other parties, necessitating a further adjustment to the timetable to afford the other parties with a short opportunity to respond in writing. The post-hearing process in this regard was finalised by close of business on 15 September 2025. I have taken into account the further submissions of the applicant dated 11 September 2025.CONSIDERATION Subsection 32(2) of the Administrative Review Tribunal Act 2024 (the ART Act) gives the Tribunal power to make an order staying or otherwise affecting the operation or implementation of the decision in relation to which review is sought if it is considered desirable to do so for the purpose of ensuring the effectiveness of the review. Section 95A of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) affects subsection 32(2) of the ART Act by providing that it does not apply in relation to a proceeding for ART review unless the proceeding is in relation to a Guidance and Appeals Panel decision. However, subsection 32(2) of the ART Act specifically applies in relation to second review applications despite a contrary intention in any other law: section 131V of the ART Act. The current proceeding before the Tribunal is an application for second review. It follows therefore that the decision under review is amenable to a stay order. The discretion provided for in the legislation for the Tribunal to grant a stay is a broad discretion. The reason the discretion exists is ‘not directed to relief of hardship alone but is for the purpose of securing the effectiveness (and processes) of the hearing and the review that is under foot’ and further that ‘securing the effectives of the hearing and review is tied to securing the processes of the hearing and review.’[1] [1] Clement and Comcare [2006] AATA 705. Making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision, and there is no automatic right to a stay. The Tribunal will only make an order staying or otherwise affecting the implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review. The determinative criterion for the exercise of the Tribunal stay power, being to secure the effectiveness of the review, is framed in a general way. In this regard, there is not an exhaustive list of permissibly relevant considerations.[2] In determining whether to grant a stay, the Tribunal should not simply focus on the interests of the Applicant. Paragraph 32(7)(b) of the ART Act prescribes that the Tribunal must consider the interests of any person who may be affected by the review of the decision.[2] Panganiban and Australian Securities and Investment Commissioner [2016] AATA 703 [7] Previous cases have recognised that a number of matters may be relevant to the consideration of that discretion. Scott v Australian and Securities and Investment Commission[3] is frequently cited in this regard. The following matters are identified, but should not be viewed as a fixed list, and indeed some of the factors identified do not find resonance in the circumstances of this matter. The matters include:·the prospects of success of the application, ·the prejudice or hardship that the parties or other persons whose interests may be affected by the review may suffer, ·the consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not, ·whether the review application if successful would be rendered nugatory if the stay was not granted, ·whether it is in the public interest to grant a stay and other relevant matters (Scott v Australian Securities & Investments Commission [2009] AATA 798).[3] Scott v Australian and Securities and Investment Commission [2009] AATA 798