VXQB and Child Support Registrar (Child support second review)
[2019] AATA 873
•10 May 2019
VXQB and Child Support Registrar (Child support second review) [2019] AATA 873 (10 May 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0439
Re:VXQB
APPLICANT
AndChild Support Registrar
RESPONDENT
AndBQJQ
OTHER PARTY
DECISION
Tribunal:Senior Member Dr M Evans
Date:10 May 2019
Place:Perth
The Tribunal decides that:
The AAT2 has jurisdiction to hear and determine the Applicant Father’s application for a stay order and his substantive application for review;
The AAT1 Decision is stayed until the decision of the AAT2 on the substantive application comes into operation or until further order of the Tribunal;
The hearing of the substantive review application by the AAT2 is adjourned until the Federal Court of Australia hands down its decision in Child Support Registrar v MQMV and Others (NSD1769/2018);
The application of the Other Party (Mother) to dismiss the Applicant Father’s application for review of the AAT1 Decision under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed; and
The Other Party’s (Mother's) application with respect to s 29AB of the Administrative Appeals Tribunal Act1975 (Cth) is dismissed.
.........................[sgd]...............................................
Senior Member Dr M Evans
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
CHILD SUPPORT – INTERLOCUTORY – practice and procedure – stay order application – percentage of care decision – revocation decision – jurisdiction of General Division to grant stay order – whether stay order would secure effectiveness of hearing - jurisdiction of General Division review percentage care decision – whether substantive application should be adjourned pending the decision of the Federal Court of Australia on similar jurisdictional issue – whether application vexatious – whether application for review does not clearly identify the respects in which the Applicant believes the decision is not the correct or preferable decision – Tribunal has jurisdiction to determine stay order and substantive application – stay order granted – adjournment granted – application not vexatious
Legislation
Administrative Appeals Tribunal Act 1975 (Cth),
s 2A, s 25(1), s 29(1)(c), s 29AB,
s 40(1)(b), s 41(1), s 41(2), s 41(4)(a), s 42B(1), s 43(1), s 43(6)Child Support (Assessment) Act 1989 (Cth), s 49, s 49(1)(b), s 50, s 50(1)(b)(i), s 54F
Child Support (Registration and Collection) Act 1988 (Cth), s 4, s 96A
Cases
Broadbent v Civil Aviation Safety Authority [1999] FCA 1871
Faulkner and Comcare [2007] AATA 1541
Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 146
LXTK and Child Support Registrar and Anor (AATA, Walsh C, 7 December 2016)
MQMV and Child Support Registrar [2018] AATA 2924
Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 769
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
QLKM and Child Support Registrar and Anor (AATA, McDermott P, 1 February 2018)
Re Commonwealth of Australia and Quirke (1986) 9 ALD 92
Re Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 240
Re Secretary, Department of Social Security and Collins (1991) 26 ALD 344
Re Repatriation Commission and Bramston (1985) 8 ALD 468
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re Secretary, Department of Social Security and Collins (1991) 26 ALD 344
Re Secretary, Department of Social Services and McNamara [2016] AATA 189
Re Williamsand Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467
Romanov-Hughes and Comcare [2001] AATA 1030Rose and Comcare [2013] AATA 735
Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333
Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880
Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246
ZJSZ and Child Support Registrar (Child support second review) [2017] AATA 1565
(25 September 2017)REASONS FOR DECISION
Senior Member Dr M Evans
10 May 2019
BACKGROUND
The Applicant (Father) and the Other Party (Mother) are the separated parents of a minor child, born in 2007.
The child support assessment that was in effect from 18 November 2011 was based on the Mother having 100% care, and the Father having 0% care, of the child.
On 31 May 2018, the Father advised the Child Support Registrar (Registrar), who is the Respondent in this matter, that from 1 July 2017, neither parent had care of the child because the child was living with her maternal grandparents. On 10 July 2018, a delegate of the Registrar decided that there had been no change in the existing care determination (the Original Decision) (T33, page 221).
The Father objected to the Original Decision on 16 July 2018 (T33, pages 224-225).
On 13 September 2018, an Objections Officer partly allowed the Father’s objection (the Objection Decision), by finding that the Mother had 8% care of the child, and the Father had 0% care of the child from 18 July 2017 (T18, pages 87-91). As there was a change in the care percentages, the Objections Officer found that there was a terminating event which occurred on 18 July 2017 (T18, page 91).
The Mother subsequently applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of the Objection Decision. On
11 January 2019, the AAT1 set aside the Objection Decision (AAT1 Decision). The AAT1 found that there was no change in the care of the child from 18 July 2017, which meant there was no terminating event (T2, pages 9-15).
The effect of the AAT1 Decision was that the Father incurred a debt for the period from
18 July 2017 until the time of the AAT1 Decision (the Debt), being 11 January 2019. It is this past Debt that is the subject of this stay order application, and not any ongoing child support payments.
On 24 January 2019, the Father made an application to the General Division of the Administrative Appeals Tribunal (AAT2) for a review of the AAT1 Decision
(T1, pages 1-8).
Further, on 28 January 2019, the Father lodged an application for a stay order of the AAT1 Decision (Exhibit A1) in the AAT2, until the substantive application is determined. It is this stay order application that is the subject of this decision.
At a Telephone Directions Hearing on 8 March 2019 the Departmental lawyer for the Registrar made preliminary submissions that the AAT2 may not have jurisdiction to hear and determine both the stay order application and the substantive matter. Consequently, the Tribunal directed that the Registrar file written submissions on the Tribunal’s jurisdiction to hear the stay order application, and gave leave to the Mother to file submissions in response. The Father indicated that he did not wish to file submissions with respect to jurisdiction.
At the Telephone Directions Hearing, the Departmental lawyer for the Registrar also noted that the Federal Court of Australia was currently considering a similar issue regarding the jurisdiction of the AAT2 to conduct reviews of percentage of care decisions and that it may be appropriate for the AAT2 to adjourn the substantive application until the Federal Court has handed down this decision.
The application to the Federal Court is Child Support Registrar v MQMV and Ors (NSD1769/2018) (MQMV). The Tribunal decision which is the subject of this application for judicial review to the Federal Court is MQMV and Child Support Registrar [2018] AATA 2924.
The Mother opposed the grant of a stay order (Exhibit OP1). Further, in an email dated
11 March 2019, the Mother submitted that the Father’s application for an AAT2 review be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the Father’s AAT2 application is “vexatious” (Exhibit OP2, pages 3-4).The Mother also submitted that the Father’s application for an AAT2 review be dismissed because he had not provided a sufficient statement of reasons in his application, as required by s 29AB of the AAT Act (Exhibit OP2, pages 2-3).
The Registrar did not oppose the stay order and adopted a neutral position to the stay order application (Exhibit R1, paragraphs [6.1] and [6.2]; transcript, page 11). On
22 March 2019, the Registrar filed written submissions on jurisdiction and the adjournment of the substantive application. These are contained in Exhibit R1, described below.
ISSUES
The issues that require determination by this Tribunal in this interlocutory application are:
(a)Does the AAT2 have jurisdiction to hear and determine the Father’s application for a stay order, and to determine the substantive application?
(b)Should the AAT2 exercise its discretion under s 41(2) of the AAT Act to grant the stay order?
(c)Should the substantive AAT2 proceedings be adjourned until the Federal Court of Australia hands down its decision in Child Support Registrar v MQMV and Others (NSD1769/2018)?
(d)Should the Tribunal exercise its discretion under s 42B(1) of the AAT Act to dismiss the Father’s application on the basis that it is vexatious?
(e)Does the Tribunal consider that the Father’s substantive review application contains an insufficient statement of reasons for his application, contrary to s 29AB of the AAT Act?
MATERIAL BEFORE THE TRIBUNAL
The hearing of this interlocutory application took place on 12 April 2019 by telephone. The Father was self-represented. The Registrar was represented by Mr Burgess from Sparke Helmore Lawyers.
The Mother contacted the Tribunal on the morning of the interlocutory hearing to advise that she did not wish to participate in the proceedings. Consequently, the Tribunal proceeded in her absence in accordance with s 40(1)(b) of the AAT Act.
The Tribunal considered the oral submissions of the parties at the Tribunal hearing, together with documentary materials, which included the following materials which were put into evidence:
(a)the Father’s Request for stay order dated 28 January 2019 (Exhibit A1);
(b)email from the Father regarding care issue dated 5 April 2019 (Exhibit A2);
(c)
email from the Father regarding court orders and AAT1 Decision dated
6 April 2019 (Exhibit A3);
(d)email from the Father dated 8 April 2019 in response to an email from the Mother about his behaviour (Exhibit A4);
(e)Mother’s response to Father’s Request for stay order dated 20 February 2019 (Exhibit OP1);
(f)
Mother’s response to documents from the Registrar dated 11 March 2019
(Exhibit OP2), which contains her application to dismiss the Father’s application for a second review by the AAT2 under s 29AB (insufficient statement of reasons for application) and s 42B (dismissal if the proceeding is frivolous, vexatious, etc) of the AAT Act;
(g)email from Mother dated 1 April 2019 with further submissions opposing the grant of a stay order (Exhibit OP3);
(h)email from Mother dated 8 April 2019 about the Father’s behaviour (Exhibit OP4);
(i)Registrar’s Statement of Facts Issues and Contentions in Relation to Jurisdiction, dated 22 March 2019 (Exhibit R1);
(j)section 37 documents (T documents), filed by the Registrar and numbered T1 to T33, and comprising 255 pages (Exhibit R2).
When considering the issues before the Tribunal, the Tribunal has had regard to all of the written and oral submissions and material before it. The Tribunal is satisfied that all of the parties were afforded an adequate opportunity to be heard, including the Mother who did not participate in the interlocutory hearing.
JURISDICTION
The Registrar made extensive submissions regarding the jurisdiction of the Tribunal to review the AAT1 Decision (Exhibit R1). The Registrar submitted that:
“…the Tribunal’s jurisdiction is limited to reviewing the AAT1’s decision only to the extent that it involved first review of the new care percentage determination made by the objection decision, but not the revocation of the existing determination. (Exhibit R1, paragraph [1.3 (b)]).
(Original emphasis.)
The following legislative provisions are relevant to the question of jurisdiction. Firstly,
s 96A of the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act) states:
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.
Section 4 of the Registration and Collection Act contains the following definition:
"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.
(Original emphasis.)
The relevant sections in Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) under which the Registrar determines a responsible person’s percentage of care for a child are ss 49 and 50. With respect to the current application, s 50 is relevant because the Objection Decision changed the care percentages that were already in place. Section 50 states:
(1) This section applies if:
(a)either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) both of the following apply:
(i) the determination of a responsible person's percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person's percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 applies in relation to the responsible person.
Subdivision C of Division 4 of Part 5 of the Assessment Act contains provisions which provide for when an existing care determination must or may be revoked. The relevant section with respect to the current application is 54F of the Assessment Act, which provides:
(1) The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and
(b) the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and
(c) section 54G does not apply; and
(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) This subsection applies in relation to a responsible person if:
(a) disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii) the maximum interim period for an earlier determination of the responsible person's percentage of care for the child has not ended;
(iii) an interim period does not currently apply in relation to the earlier determination;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 51 does not apply, see section 53.
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii) the responsible person's care of the child has reduced--the day before the change of care day.
By way of summary, the Registrar made the following submission (Exhibit R1, paragraphs [5.10] and [5.11]):
5.10 A revocation, being a decision made under Subdivision C of Division 4 of Part 5 of the Assessment Act, is not a “care percentage decision” as defined in s 4 of the Registration and Collection Act. A care percentage determination under s 49 or s 50, being a determination under Subdivision B is a care percentage decision.
5.11 The statutory language, as set out above, makes it plain that it is only a determination under Subdivision B that is a "care percentage decision”. A decision to revoke or not to revoke an existing care percentage determination is made under Subdivision C (not Subdivision B), and as such it falls outside the definition of “care percentage decision”. It follows that the Tribunal’s jurisdiction under s 96A(b) of the Collection Act is not invoked in respect of a revocation decision under Subdivision C.
(footnote omitted.)
With respect to the current application, the Registrar submitted (Exhibit R1, paragraphs [5.12] and [5.16]):
5.12 Turning to the facts of this case, the following decisions as to the particulars of an administrative assessment were made on the objection:
(a) a revocation of the existing care determination with effect from 30 May 2018 (under s 54F of the Assessment Act that was in force prior to
1 July 2018) (revocation decision); and
(b) a new care percentage determination with effect from 31 May 2018 (under ss 50 and 54B of the Assessment Act) (new care percentage decision).
5.13 Thus, the objection decision that comprised the two above decisions partly
involved a determination under Subdivision B.
5.14Accordingly, the AAT1 decision involved first review of a care percentage decision, which enlivens the jurisdiction of this Tribunal. It is to this extent only that this Tribunal has jurisdiction, on a second review, under section 96A(b) of the Act. It follows that this Tribunal’s jurisdiction is confined to a review of the AAT1’s decision insofar as it concerned the new care percentage decision made in the objection decision.
5.15 That said, if this Tribunal (like the AAT1) considers that the existing care determination accurately reflected the mother’s and father’s percentage of care in the relevant period (i.e. mother’s percentage of care was 100% and the father’s percentage of care was 0%), the Tribunal may so find. The Tribunal would reach that decision because the Tribunal has decided that this is the correct and preferable percentage of care determination and should be left undisturbed. However, if the Tribunal was minded to change the care percentages, it could make a new care percentage decision. However, it could not make a revocation decision, which relates to the date of effect…
5.16 The above position has been accepted by the Tribunal in at least two unreported matters being LXTK (2016/2086) and QKLM (2016/4480),* which the Registrar submits are correct and should be followed.
*The Tribunal notes the correct pseudonym is QLKM.
(footnotes omitted.)
The Registrar also noted Tribunal decisions that applied a different interpretation of a percentage of care decision as follows (Exhibit R1, paragraphs [5.17]-[5.19]):
5.17 The Registrar notes that in ZJSZ and Child Support Registrar [2017] AATA 1565 (ZJSZ), the Tribunal found that a decision not to revoke an existing percentage of care decision, which was considered by the AAT1, enlivened the Tribunal’s jurisdiction under s 96A(b) as it “was concerned with a review of a care percentage decision.” The Tribunal found that the definition of “care percentage decision” is “clearly broad” and that it “involves (wholly or partly)” a determination of a person’s percentage of care for a child. The Tribunal found that “[i]t seems as long as the decision made has some relationship to a determination of a person’s percentage of care for a child, whether wholly or partly, that decision is reviewable by the AAT2” (at [21]).
5.18 This approach was adopted by the Tribunal in MQMV, where Deputy President Rayment found (at [33]) that the department’s original and objection decisions to affirm the existing care determination, were each (wholly) decisions involving a determination of a person’s percentage of care that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act.
5.19 The Registrar respectfully submits that ZJSZ and MQMV are plainly wrong.
This Tribunal does not propose to undertake an exhaustive analysis of these decisions. However, the Tribunal respectfully disagrees with the interpretation suggested by the Registrar, and instead agrees with the approach adopted by the Tribunal in ZJSZ and MQMV for the following reasons:
(a)In the Tribunal’s respectful opinion, the Tribunal’s jurisdiction cannot depend on the final decision that the Tribunal reaches. Rather, jurisdiction is to be established at the commencement of an application, and not at the conclusion of it. The Tribunal either has jurisdiction to review a decision, or it does not. If the submission in paragraph [5.15] of Exhibit R1 is to be accepted, the Tribunal would have jurisdiction to affirm the AAT1 Decision in its entirety, if the Tribunal considered that the existing care determination accurately reflected the percentage of care for the Mother and Father in the relevant period. However, if the Tribunal determined that the care percentages were inaccurate and decided to make a new care percentage decision, it would only have jurisdiction over part of the decision because it could not make a revocation decision. The Tribunal does not accept this construction. The Tribunal either has jurisdiction to review a decision in its entirety, and to make an order under s 43(1) of the AAT Act, or it does not.
Indeed if the Tribunal is only permitted to review part of a decision, it cannot properly undertake a ‘de novo’ review of that decision. The Tribunal would be fettered in its task of “stand[ing] in the shoes of the original decision maker and consider[ing] all evidence again and from the beginning” (Senior Member Hunt in Faulkner and Comcare [2007] AATA 1541 at 27). The Tribunal’s decision, depending on what that decision was, could not be deemed to be a decision of the decision-maker in whose shoes the Tribunal is standing (see also s 43(6) of the AAT Act);
(b)It is not possible to make a new percentage of care decision without first revoking the existing one. Specifically, s 50(1)(b)(i) of the Assessment Act states that the subsection only applies if there is a revocation or suspension of a responsible person’s percentage of care under Subdivision C. Thus, if there is an existing percentage of care decision made under s 49 or s 50 of the Assessment Act that the Registrar believes does not correspond with the care of the child that is actually taking place, the Registrar “must”, according to s 54F(1) of the Assessment Act, revoke the existing percentage of care decision, before making a new determination under s 49(1)(b) or s 50(1)(b) of the Assessment Act; and
(c)
The definition of a “care percentage decision” in s 4 of the Registration and Collection Act defines such a decision with reference to, “…to the extent that the decision involves (wholly or partly)”. The Registrar has submitted that “a decision is a care percentage decision only “to the extent that” it involves a determination under Subdivision B of Division 4 of Part 5 of the Assessment Act” (Exhibit R1, paragraph [5.6]). However, with respect, this approach does not consider the reference to “wholly or partly”. With respect to this wording, the Tribunal agrees with the approach taken by Senior Member Fice in ZJSZ and Child Support Registrar and (Child support second review) [2017] AATA 1565
(25 September 2017), who stated at [21]:
…the definition of the expression care percentage decision is clearly broad. It refers to a notional assessment as well as an actual assessment and it refers to the extent that the decision involves (wholly or partly) a determination of a person’s percentage of care for a child. The verb involve has the following relevant definition in The Shorter Oxford English Dictionary: ...6. To include; to contain, imply; esp. to contain implicitly 1605. It seems that as long as the decision made has some relationship to a determination of a person’s percentage care for a child, whether wholly or partly, that decision is reviewable by AAT 2.…
Accordingly, the Tribunal finds that it has jurisdiction to conduct the AAT2 review. Consequently, the Tribunal also has jurisdiction to grant a stay order with respect to the AAT1 Decision under s 41(2) of the AAT Act. Whether the Tribunal should exercise discretion to grant the stay order is considered below.
ADJOURNMENT OF THE SUBSTANTIVE APPLICATION
The Registrar further submitted that the Tribunal has jurisdiction to hear the stay order application, but that it would be appropriate for the Tribunal to adjourn its consideration of the substantive matter, or to reserve its decision in relation to the substantive matter, until the Federal Court’s judgment in MQMV is handed down (Exhibit R1, paragraph [7.2]).
The hearing of the application in the Federal Court in MQMV was concluded on
3 April 2019 when Flick J reserved his judgment. It is not possible to ascertain how long the Federal Court will take to hand down its decision, and the Tribunal is mindful of its objectives, as set out in s 2A of the AAT Act which provide as follows:In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Thus, on the one hand, proceeding to determine the substantive application would comply with the objectives set out in s 2A(B) of the AAT Act, particularly with respect to resolving the application informally and quickly. However, as is evident from the analysis above, and particularly the conflicting Tribunal decisions (of Senior Members and Deputy Presidents) of the Tribunal with respect to jurisdiction, the question of jurisdiction is a complex one. If the Tribunal proceeded to determine the substantive matter before the Federal Court was to hand down its decision it may give the parties some finality, however that finality may be disrupted if the Federal Court were to adopt a different interpretation with respect to the jurisdiction of the Tribunal. The parties may then be left in the precarious position of having a Tribunal decision that was made in jurisdictional error, and which may be out of time to appeal. That would not be a result that would be consistent with the promotion of public trust and confidence in the decision-making of the Tribunal.
In these circumstances, the Tribunal is of the opinion that it would be appropriate for the Tribunal to consider the stay order application to preserve the status quo in the interim, but to adjourn the hearing of the substantive application until such time as the Federal Court hands down its decision in MQMV. The Tribunal also observes that it is common practice in the Tribunal to adjourn matters where there is a question of law before the Federal Court yet to be determined which may affect the outcome of an application before the Tribunal.
STAY ORDER
The filing of an application to review a decision with the Tribunal will not automatically prevent it from taking effect. This is provided for by s 41(1) of the AAT Act which states:
(1)Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
If the Tribunal grants a stay order under s 41(2) of the AAT Act, it will stop a decision from taking effect until the final determination of the matter following the substantive hearing.
The Federal Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880 at [20] stated:
The discretion conferred by s 44A(2) of the AAT Act should be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending the appeal, because the appeal, although successful, may otherwise be rendered nugatory.
Section 41(2) of the AAT Act permits a party to apply to the Tribunal for a stay order with respect to an operative decision which affects a person’s rights (Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246). The Tribunal will only grant a stay order if there is something for the stay order to operate on (Re Repatriation Commission and Delkou (1985) 8 ALD 454 at 458). In this case, the operative decision is the AAT1 Decision, and it is this decision which is the subject of the stay order application.
Section 41(2) of the AAT Act states:
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review
(Emphasis added.)
In summary, s 41(2) of the AAT Act provides that the granting a stay order is conditional upon:
(a)a request being made to the Tribunal by a party; and
(b)the Tribunal having the opinion that “it is desirable to do so after taking into account the interests of any persons who may be affected by the review”. The relevance of a person’s interests will be assessed with reference to the specific legislation under which the decision under review was made (Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333).
The fundamental purpose of a stay order is a narrow one, that is, the purpose of a stay order is to secure the effectiveness of the hearing and determination of the application for review (Kurukkal and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 146 at [34]).
Section 41(4)(a) of the AAT Act also provides that the Tribunal will not grant a stay order unless the parties have been given a reasonable opportunity to make submissions to the Tribunal:
(4) …the Tribunal shall not:
(a) make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter…
The discretion which s 41(2) of the AAT Act gives to the Tribunal is a broad one, and is similar to the power of a court to grant a stay order (Broadbent v Civil Aviation Safety Authority [1999] FCA 1871). The AAT has a broad jurisdiction, which is conferred by numerous Acts of the Commonwealth Parliament (s 25(1) of the AAT Act). Section 41(2) of the AAT Act applications are made to the Tribunal to stay decisions under a broad range of Commonwealth legislation in areas including civil aviation, social security and aged pensions, compensation and professional licences and registrations, such as tax agents’ registration. The relevant factors which may be considered by the Tribunal may consequently differ for each application (Re Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 240).
In previous stay order applications the Tribunal has had regard to the following factors:
(a)the prospects of success, or the merits of the Applicant’s case if the matter were to proceed to a substantive hearing;
(b)the prejudice or hardship that the parties, or other persons whose interests may be affected by the review, may suffer;
(c)the likelihood of recovery of monies by the Commonwealth if the person is unsuccessful at the substantive hearing of the matter;
(d)whether it is in the public interest to grant a stay order; and
(e)whether the review application, if successful, would be rendered nugatory if the stay order is not granted.
(see for example, Re Repatriation Commission and Delkou (1985) 8 ALD 454, Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 769, Rose and Comcare [2013] AATA 735, Re Secretary, Department of Social Services and McNamara [2016] AATA 189, Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065).
The Tribunal can consider the extent to which the stay order should operate and may exercise its discretion to stay part of the operative decision (see for example,
Re Secretary, Department of Social Security and Collins(1991) 26 ALD 344). In cases where the recipient of a payment would suffer hardship, the Tribunal may exercise its discretion to stay the payment of the lump sum arrears pending the final decision of the Tribunal under review, but not the ongoing weekly or fortnightly payments (see for example Re Commonwealth of Australia and Quirke (1986) 9 ALD 92 (Quirke);
Re Repatriation Commission and Bramston(1985) 8 ALD 468). This may assist to relieve hardship to the recipient, whilst, in part, protecting public funds from being dissipated.
Prospects of success
The Tribunal should consider the prospects of success or the merits of the Applicant’s case if the matter were to proceed to a substantive hearing in deciding whether to exercise its discretion to grant a stay order.
The relevant legal principles relating to this ground were summarised by Member Fice in Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065 at paragraphs [10]-[11] as follows:
10. When considering the prospects of success of an applicant in the course of a Stay application, it is not the role of the Tribunal to conduct a preliminary hearing of the substantive matter based on the evidence given in the SSAT. As Davies J (President) said in Re Dart and Director-General of Social Services (1982) 4 ALD 553 at 555:
It is not convenient or appropriate that on this application for a stay there should be any preliminary trial of the issues that will ultimately have to be considered by the Tribunal.
11. However, it is relevant for the Tribunal to consider whether there exist facts and circumstances which, if established at the substantive hearing, would provide a basis for the Secretary’s success in the review application; or whether there are points of law raised which, if sustained, will lead to that conclusion (see Re Commonwealth of Australia and Quirke (1986) 9 ALD 92 at 95).
As noted by Mr Burgess at the interlocutory hearing, the context of the AAT1 Decision was that the child was residing with the maternal grandparents. Thus, it is not a straight forward case where the Mother had 100% care of the child. Indeed, the Objection Decision found that the Mother had 8% care of the child and the Father had 0% care of the child.
The Federal Magistrates Court of Australia (now the Federal Circuit Court) has identified a number of factors that the Tribunal must evaluate at the AAT2 review to determine whether and to what extent a person has care of a child for the purpose of the child support legislation (see Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959) (Polec). This involves a balancing exercise where the Tribunal must weigh up the various factors from Polec with reference to the evidence before it.
Also, as the AAT2 will undertake a de novo review in which it stands in the shoes of the original decision maker, the Tribunal can take into account additional evidence which was not before the original decision maker. The Father has made submissions in his application about the way that the AAT1 drew conclusions from the evidence. It is possible that the AAT2 may reach a different conclusion after weighing up the factors from Polec and evaluating the evidence before it.
Consequently the Father has some prospects of success in the substantive matter. This weighs in favour of the grant of a stay order.
Prejudice or hardship
Whether a person’s interests will be affected by the review will be assessed with reference to the specific statutes under which the decision being reviewed was made (Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333). Considering the statutory regime in this instance is the Registration and Collection Act and the Assessment Act, the persons who may be affected by this application are the Father, the Mother and the child.
The Father would benefit from the grant of the stay order because he has a retrospective liability to pay the Debt in addition to ongoing child support payments. If a stay order was granted, the Registrar would not seek to recover the Debt during the period of operation of the stay order. The Father stated that this additional amount added to his ongoing child support payments to repay the Debt was “quite substantial“(transcript, page 15).
There would be some prejudice or hardship to the Mother and the child if the stay order was granted, as the Mother would not receive these additional payments to pay down the Debt from the Father for the duration of any stay order. The Mother would still, however, receive the ongoing child support payments from the Father that she is currently entitled to.
The position of the Registrar is somewhat neutral in that the Registrar’s role is to facilitate the collection, payment and recovery of child support monies between the child’s parents, and the Commonwealth is not out of pocket. Thus the Registrar would not be prejudiced if a stay order was or was not granted.
In summary, there would be some hardship or prejudice to the Mother, and consequently the child, if the stay order was granted, because the Mother would not receive reimbursement for monies expended in the past for the care of the child. However, that hardship is somewhat minimised because the Mother is currently receiving ongoing child support payments from the Father to assist her with the support of the child. Conversely, if a stay order was not granted and the Father was successful at the AAT2 hearing, he may have repaid substantial amounts of money that he was not liable for, with the likely means of recovery being a reduction in future child support payments. Some issues with respect to any future reduction in the Father’s child support payments are discussed in the following section. On balance, when this factor is considered together with the following factor of likelihood of recovery of monies, the Father is slightly more prejudiced if the Tribunal does not grant the stay order. This weighs slightly in favour of the grant of a stay order.
Likelihood of recovery of monies
If the Father is unsuccessful at the AAT2 review, the Debt would effectively be reinstated, and he would continue to pay an additional amount to the Mother in addition to his ongoing child support payments to repay the Debt. This would occur through his salary being garnished by the Registrar. Thus it would be relatively straightforward for the Registrar to facilitate the recovery of the Debt from the Father in this manner.
If a stay order was not granted and the Father was ultimately successful at the AAT2 review, any monies overpaid to the Mother would likely be deducted from the Father’s ongoing child support payments until the Debt to him was effectively repaid. However, if the circumstances surrounding the care of the child were to change, as they have in the past, affecting this liability, it may be more difficult to recover the money overpaid to the Mother (for example, if she has 0% care of the child in the future). Garnishing the Mother’s salary may potentially be a recovery option but there is no evidence currently before the Tribunal regarding the Mother’s employment or her ability to repay any overpayment to her.
Both repayment arrangements would be facilitated by the Registrar, and involve the private funds of the Mother and Father, and not Commonwealth funds.
The consideration of the likelihood of recovery of monies has, in the Tribunal’s opinion, more relevance in social security matters where there is a risk that public funds may be difficult to recover if the recipient was unsuccessful at the second review. The circumstances of the current case do not involve the expenditure of public monies and regardless of the outcome of the AAT2 review, monies could be recovered from either the Mother or Father if they were unsuccessful following that review. However, in the Tribunal’s opinion, the evidence suggests that the monies could be recovered from the Father, but minimal to no evidence regarding the Mother’s capacity to repay such monies.
Consequently, the Tribunal regards this factor to weigh slightly in favour of granting the stay order.
Public interest
In social security matters where public monies are being expended, the Commonwealth will often argue that as the payments are from public funds there is an obligation to protect those funds by ensuring that payments are only made to individuals who are lawfully entitled to receive them.
As noted above, this is not a case where public monies are being expended, but rather, the child support legislation facilitates the collection of private monies between parents.
Consequently, the Tribunal also regards this factor to be neutral with respect to the stay order.
Whether the review application will be rendered nugatory
The Tribunal is also required to consider whether the review application, if successful, would be rendered nugatory if the Stay Order is not granted.
From the perspective of the Father, if the stay order is not granted and the Mother is successful at the AAT2 review, the Mother would have received monies that she was not entitled to. As discussed above, these monies are likely to be recoverable by way of a reduction in the future child support payments of the Father. If that entitlement changes or ceases, it may be more difficult for the Father to recover the monies from the Mother. Consequently, a stay order may assist in securing the effectiveness of the hearing, particularly in the current circumstances where the substantive matter has been adjourned pending the Federal Court’s decision which may not be handed down for some time. The difficulty in recovering monies has been found by the Tribunal to weigh in favour of granting a stay order (Re Repatriation Commission and Delkou (1985) 8 ALD 454).
Overall, this factor tends to weigh slightly in favour of the granting of the stay order.
Whether the Tribunal should exercise discretion to grant the stay order
Having reviewed the evidence before it including the oral and written submissions of all parties, and for the reasons outlined above, the Tribunal concludes that it should exercise the discretion conferred upon it by s 41(2) of the AAT Act to grant a stay order with respect to the AAT1 Decision.
IS THE FATHER’S APPLICATION BY THE AAT2 VEXATIOUS?
As noted in the Background section above, the Mother submitted that the Father’s application for an AAT2 review be dismissed under s 42B of the AAT Act on the basis that the Father’s AAT2 application was “vexatious” (Exhibit OP2, pages 3-4).
Section 42B of the AAT Act provides that:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(2)If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
Essentially, the Mother’s argument was that the Father has filed applications in the Family Court of Australia “…6 times, over small and frivolous claims…” She attached a list of applications to the Family Court which lists 10 applications filed in the Family Court by the Father between 30 May 2013 and 3 January 2019 (Exhibit OP2).
In Romanov-Hughes and Comcare [2001] AATA 1030 (Romanov-Hughes), Senior Member Dwyer applied the test from Re Williamsand Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467 to determine whether proceedings were vexatious. The Senior Member stated, at [11]:
The Tribunal in Re Williams emphasised that the power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly. The Tribunal cited the reasons of Barwick CJ in General Steel Industries Inc. v Commissioner for Railways New South Wales [1964] HCA 69; (1964) 112 CLR 125, as authority for this proposition. The Tribunal then set out the test to be applied in determining whether proceedings are vexatious, from the reasoning of Roden J in Attorney-General v Wentworth (1998) 14 NSWLR 481 at 491:
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
Having regard to the test explained by Senior Member Dwyer in Romanov-Hughes, the Tribunal is of the opinion that the Father’s application for an AAT2 review is not vexatious.
The Father’s application indicates that he believed the AAT1 Decision was incorrect because he disagreed with the manner in which the AAT1 interpreted and applied the evidence. Consequently, there is a legitimate basis for his application. Despite the apparent animosity between the Mother and the Father, the application does not appear to the Tribunal to have been commenced to annoy or embarrass the Mother, nor does it appear to the Tribunal to have been brought for other collateral purposes. Further, as discussed above with respect to the stay order, this Tribunal is of the opinion that the Father does have some prospect of success in the AAT2 review, and so his application is not untenable, or manifestly groundless as to be utterly hopeless.
Filing multiple applications in the Family Court of Australia does not indicate that the Father’s application to the Tribunal on a separate matter that is within the Tribunal’s jurisdiction is vexatious, and there is no evidence, in any event, that the Father’s applications in the Family Court were vexatious.
In summary, the Tribunal finds that the Father’s application for an AAT2 review is not vexatious, and should not be dismissed on that basis.
INSUFFICIENT STATEMENT OF REASONS
Section 29(1)(c) of the AAT Act provides in part:
(1) An application to the Tribunal for a review of a decision:
(a) must be made:
(i) in writing; …
(b) must be accompanied by any prescribed fee; and
(c) unless paragraph (ca) or (cb) applies or the application was oral--must contain a statement of the reasons for the application; and…
(Emphasis added.)
Further, s 29AB of the AAT Act provides as follows:
If the Tribunal considers that an applicant's statement under paragraph 29(1)(c) does not clearly identify the respects in which the applicant believes that the decision is not the correct or preferable decision, the Tribunal may, by notice given to the applicant, request the applicant to amend the statement appropriately, within the period specified in the notice.
The Mother submitted that the Father’s application for an AAT2 review be dismissed because he had not provided a sufficient statement of reasons in his application. She stated that, “this objection is not on the grounds of the law not being applied, but on the grounds that VXQB simply does not agree with it”. Further, the Mother stated that “…VXQB does not clearly identify the respects in which he believes the decision is not correct…” (Exhibit OP2, page 3).
Firstly, s 29AB of the AAT Act does not permit the Tribunal to dismiss an application if the Tribunal considers that an applicant’s statement does not contain sufficient reasons for the application. Instead, the Tribunal has discretion to request that an applicant amend his or her statement to more clearly identify why the applicant believes that the decision is not the correct or preferable decision, within a specified period of time.
Secondly, and with respect to the Mother, the Tribunal is of the opinion that the application for review of the AAT1 Decision made by the Father does sufficiently outline the reasons for his application. Specifically, in answer to the question “why do you claim the decision is wrong?” in the application form (T1, pages 2-4), the Father has provided a detailed response outlining why he is making an application for review of the AAT1 Decision. In summary, his reasons include submissions that he disagrees with the way that the AAT1 interpreted the evidence. The Father made similar submissions in his application for the stay order.
Accordingly, the Tribunal finds that the Father’s application for an AAT2 review contains a sufficient statement of reasons for his application which complies with s 29(1)(c) of the AAT Act.
DECISION
The AAT2 has jurisdiction to hear and determine the Applicant Father’s application for a stay order and his substantive application for review.
The AAT1 Decision is stayed until the decision of the AAT2 on the substantive application comes into operation or until further order of the Tribunal.
The hearing of the substantive review application by the AAT2 is adjourned until the Federal Court of Australia hands down its decision in Child Support Registrar v MQMV and Others (NSD1769/2018).
The application of the Other Party (Mother) to dismiss the Applicant Father’s application for review of the AAT1 Decision under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is dismissed.
The Other Party’s (Mother's) application with respect to s 29AB of the Administrative Appeals Tribunal Act1975 (Cth) is dismissed.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
.............................[sgd]..........................................
Associate
Dated: 10 May 2019
Date of hearing: 12 April 2019 Solicitors for the Applicant: Self-represented Counsel for the Respondent:
Mr Ashley Burgess
Solicitors for the Respondent: Sparke Helmore Lawyers Solicitors for the Other Party: Self-represented
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