YXVZ and Child Support Registrar (Child support second review)
[2020] AATA 4802
•27 November 2020
YXVZ and Child Support Registrar (Child support second review) [2020] AATA 4802 (27 November 2020)
Division:GENERAL DIVISION
File Number(s):2020/0071
Re:YXVZ
APPLICANT
Child Support RegistrarAnd
RESPONDENT
And
FQNP
OTHER PARTY
DECISION
Tribunal:Mr S. Webb, Member
Ms F. Hewson, Member
Date:27 November 2020
Place:Canberra
The Tribunal does not have jurisdiction to review the objection decision under s 87AA(2) of the Child Support (Registration and Collection) Act 1988.
..........[sgd]..............................................................
Mr S. Webb, 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.
CHILD SUPPORT – care percentage decision for each parent of a child during a period – objection lodged by one parent more than 28 days later – objection allowed – delayed lodgement not prevented by special circumstances – no discretion to vary date of effect imposed by statute – no application for AAT first review - application by other parent for AAT first review of care percentage decision – decision substituted with no change to date of effect – application for AAT second review – Tribunal has no jurisdiction in respect of special circumstances decision.
Administrative Appeals Tribunal Act 1975 ss 25, 29, 29AA, 29AB, 43
Child Support (Assessment) Act 1989 Pt 5, Div 4, Subdiv B, ss 5, 54B, 54C
Child Support (Registration and Collection) Act 1988 ss 4, 80A, 87, 87AA, 89, 91, 92, 95E, 95N, 96AAustralian Broadcasting Tribunal v Bond [1990] HCA 33
Child Support Registrar v MQMV [2019] FCA 1171
Kerford and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 148ZGCJ and Child Support Registrar [2020] AATA 4481
REASONS FOR DECISION
Mr S. Webb, Member
Ms F. Hewson, Member26 November 2020
This application arises from a dispute between parents of a child who is now an adult (the child). The applicant (YXVZ) and the other party (FQNP) shared care for the child. The dispute is about care percentage decisions in respect of a past care period in 2018.
As with so many cases of this kind, there are issues of sensitivity involved. We will tread carefully when dealing with such matters, and we will not refer to each party and those involved by name, applying pseudonyms to protect their privacy. There are also issues of money in the background – care percentages are applied when calculating the amount of a parent’s child support obligation, and they are applied when calculating Family Tax Benefit (FTB) payments and overpayment debts. None of those matters are presently before this Tribunal.
In the course of proceedings an issue has arisen in relation to the Tribunal’s jurisdiction to determine the date of effect should it decide to vary or set aside the decision under review. The issue arises from a decision of the Child Support Registrar (Registrar) allowing an objection lodged by YXVZ against an original decision that FQNP had 100 percent care for the child. As will appear, YXVZ’s objection was lodged many months after the original decision, and several months after the then 18 year-old child completed school and the particular care period came to an end. The Registrar decided that YXVZ’s delay in lodging the objection was not prevented by special circumstances, whereupon the decision in YXVZ’s favour applied only from the date the objection was lodged. This meant the objection decision had no effect on YXVZ’s child support in respect of the child. YXVZ did not apply for review of this decision.
FQNP, however, was unhappy with the care percentages resulting from reversal of the original decision and sought first review by the Tribunal. In a first review decision, the Tribunal set aside the Registrar’s care percentage objection decision and substituted new percentages of care for each parent in respect of the child. Unhappy with this decision, YXVZ applied to the Tribunal for second review and, in this context, contended that the Tribunal should determine an earlier date of effect as lodgement of the objection was prevented by special circumstances – YXVZ asserts that notice of the original decision was not received.
The resulting question for the Tribunal is whether it has jurisdiction to review the Registrar’s decision in respect of YXVZ’s delay in lodging an objection and any related special circumstances, and also whether it has power to determine any different date of effect in respect of care percentages.
It is these matters alone that we will deal with in this interlocutory decision.
Facts
The following facts arise from the materials before the Tribunal and are established to our reasonable satisfaction.
In the child support assessment period from 19 December 2017 to 22 May 2018, the following care percentages applied in respect of the child: YXVZ – 73 percent; FQNP – 27 percent.[1]
[1] T6 folios 37-38.
On 17 May 2018, the child turned 18.
YXVZ applied for an extension of child support arrangements while the child completed high school. This was accepted by the Registrar and notices extending child support to 23 November 2018 were issued.[2] A new Child Support Assessment notice was issued, extending the care percentages to 23 November 2018: YXVZ – 73 percent; FQNP – 27 percent.[3]
[2] T5 folios 24-26.
[3] T5 folios 27-29.
On 5 June 2018, FQNP informed the Registrar that the child was 100 percent in his care from 23 May 2018.[4] On 6 June 2018, the Registrar sent a notice to YXVZ, setting out this information and inviting comment.[5]
[4] T22 folio 263.
[5] T4.
On 29 June 2018, the Registrar notified YXVZ of a change in the care percentage in respect of the child from 23 May 2018: YXVZ – 0 percent; FQNP – 100 percent.[6] This is the ‘original decision’ in the present dispute.
[6] T6 folios 35, 40-41.
On 23 November 2018, the child completed high school and the child support ‘care period’ came to an end.
In the period from 7 December 2018 to 13 May 2019, it appears that YXVZ contacted, or was contacted by, the Child Support Agency in respect of care percentages for the child.[7]
[7] See T22 folios 269-275; T9 refers.
On 13 May 2019, YXVZ objected to the Registrar’s care percentage decision of 29 June 2018 and lodged an objection by email dated 20 May 2019.[8]
[8] T11.
On 29 July 2019, the Registrar allowed the objection, reinstating the previously applicable care percentages for each parent: YXVZ – 73 percent; FQNP – 27 percent.[9] Importantly, the Registrar decided that this change would have effect to the child support assessment from 13 May 2019, being the date of YXVZ’s objection. This resulted in no change to the assessment of child support in the period from 23 May 2018 to 23 November 2018, when the child support obligation in respect of the child came to an end.
[9] T16 folio 124.
This notwithstanding, FQNP objected to the care percentages determined in the Registrar’s decision[10] and supplied additional information.[11]
[10] T22 folios 283-285.
[11] T17, T18 and T19.
On 28 August 2019, FQNP made an application for AAT first review of the Registrar’s care percentage decision – this is recorded in a brief written record of the application.[12] We understand that the application was made orally, by telephone.
[12] T20.
On 12 November 2019, the first review Tribunal made the following decision –
The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for [the child] from 23 May 2018 are 30% for [YXVZ] and 70% for [FQNP].
This decision has effect from 13 May 2019.[13]
[13] T2 folio 4.
We note that, in respect of the date of effect, the first review Tribunal stated –
31. As mentioned before, the Department also decided that there were no special circumstances that prevented [YXVZ] for lodging [an] objection within 28 days of being notified of the Department’s decision of 29 June 2018 and, as a consequence of that decision, and in accordance with s 87AA of the Child Support (Registration and Collection) Act 1988 the Department’s objection decision of 29 July 2019 took effect from 13 May 2019. There has been no application for review of that decision. Given that, and given that the Tribunal’s decision is deemed to be a decision of the Department and has effect on and from the day of the decision under review, the Tribunal’s decision also has effect only from 13 May 2019.
On 23 December 2019, YXVZ applied for second review by the Tribunal of the first review decision.[14]
[14] T1.
Issues
The issue is one of jurisdiction and power. Does the Tribunal have –
(a)jurisdiction to review the Registrar’s decision in respect of YXVZ’s delay in lodging an objection and any related special circumstances; and
(b)power to determine any different date of effect in respect of care percentages.
With YXVZ’s concurrence, the Registrar submits that the determination of care percentages requires determination of dates of effect, and both elements arise at each level of review – both elements are presently before the Tribunal. Despite opportunity, FQNP made no submissions on these points.
In the Registrar’s submission, the Tribunal stands in the shoes of the original decision maker and exercises all the powers conferred upon that person for the purposes of review – the Tribunal must make a new decision in respect of care percentages and dates of effect. These elements, so the argument goes, are inseparable, and arise at each level on review. For that reason, the Registrar argues it is not necessary for a separate application for review to be made in respect of the date of effect of a care percentage decision – an application for review of a care percentage decision includes the date of effect of any care percentages that may be determined. This, the Registrar contends, is a matter of logic that is consistent with a plain reading of the legislation. The Registrar maintains that this raises no jurisdictional difficulty for the Tribunal at first or second review once an application for review of a care percentage decision is lodged. Furthermore, the Registrar asserts that the construction contended for preserves the rights of parents or carers in disputes involving percentages of care – one parent should not be disadvantaged by the other parent’s delay in lodging an application for review.
With regard to the present case, the Registrar asserts that the first review Tribunal had jurisdiction to review all aspects of the objection decision, including the respective care percentages of each parent of the child and the dates of effect, including any consideration of special circumstances that may have prevented YXVZ from lodging an objection within 28 days of the initial determination of care percentages. The Registrar argues that, to the extent the first review Tribunal thought it had no jurisdiction to deal with the date of effect issue, absent an application for review of that element of the objection decision, it was wrong. This, the Registrar says, does not limit the present Tribunal’s jurisdiction in respect to care percentages and dates of effect – jurisdictional error in the first review does not limit jurisdiction on second review.
While the latter submission may be correct, for reasons that will appear, we do not accept the balance of the Registrar’s submissions. Essentially, the flaw in the Registrar’s reasoning lies in the text of the legislation and the review framework it sets out. It is not permissible to construe provisions as inseparable that are in fact distinct and severable, and it is not possible to assume jurisdiction in excess of that conferred.
Considering these matters, the jurisdictional issue arises on two limbs.
Firstly, the legislation conferring jurisdiction on the Tribunal is specific in its terms and distinguishes between a care percentage decision and a decision in respect of date of effect. Each of these decisions is to be made under different sections of the legislation, applying different statutory powers. The question in respect of the Tribunal’s second review jurisdiction is one of statutory construction.
Secondly, the Tribunal’s second review jurisdiction is enlivened by an application for review of a first review decision. YXVZ’s application for second review does not refer to the Registrar’s objection decision dealing with special circumstances and date of effect. The first review Tribunal decision adopts the date of effect that flowed from this decision of the Registrar. FQNP’s application for first review of the Registrar’s care percentage objection decision did not refer to the date of effect decision and, even though it resulted in no change to YXVZ’s child support assessment, YXVZ did not make an application for first review of it. In these circumstances, there is a question whether the Tribunal has jurisdiction to review that decision or power to determine a different date of effect.
STATUTORY CONSTRUCTION
As Flick J explained in Child Support Registrar v MQMV[15] (MQMV) when dealing with a similar but different question regarding the Tribunal’s jurisdiction at [40] –
In resolving any uncertainty in statutory language, the “starting point for ascertainment of a statutory provision is, of course, the text of the provision considered in light of its context and purpose”: SAS Trustee Corporation v Miles [2018] HCA 55 at [20], [2018] HCA 55; (2018) 92 ALJR 1064 at 1071 per Kiefel CJ, Bell and Nettle JJ. “In the absence of any clear identification of the legislative purpose intended to be served by the words appearing” in a statutory provision, “it is necessary to give effect to, the literal words chosen by the legislature”: cf. Mitchell v Bailey [2008] FCA 426 at [31], [2008] FCA 426; (2008) 168 FCR 370 at 378. Tracey J there went on to observe that a “Court should not speculate about the legislature’s intention”: [2008] FCA 426 at [31], (2008) 168 FCR at 379. Similarly, in Certain Lloyd’s Underwriters v Cross [2012] HCA 56 at [26], [2012] HCA 56; (2012) 248 CLR 378 at 390 French CJ and Hayne J said that the “purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions” (footnote omitted).
[15] [2019] FCA 1171.
Jurisdiction conferred
With these sage words in mind, we note that the Tribunal does not exercise power at large. It is a creature of statute: jurisdiction is conferred upon it by enactment. In consideration of this, the Tribunal, differently constituted, in Kerford and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[16] identified three intended purposes, with which we respectfully agree –
19. … The first is that Parliament intended that the Tribunal’s power of review be defined and circumscribed by the enactment providing for that review. The second is that Parliament intended that the Tribunal’s power be in relation to a “decision” made in the exercise of powers conferred by an enactment although it need not be the same enactment as that which gives the Tribunal power to review the decision. The third is that the Tribunal only has power to review a decision in respect of which an application has been made “under an enactment”.
[16] [2009] AATA 148.
Administrative efficiency and the convenience of those engaging in disputation are not sounds bases on which to assert jurisdiction.
The Tribunal’s jurisdiction in respect of second review is conferred by s 96A of the Child Support (Registration and Collection) Act 1988 (Registration Act) –
96A Application for AAT second review
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.
As can be seen, the conferral of jurisdiction on the Tribunal in this context is confined to three kinds of decision.
The first refers to a decision of the Tribunal under s 92(1)(b) of the Registration Act to refuse to grant an extension of time in which to apply for first review. This provision does not arise in the present case as there has been no request from either YXVZ or FQNP for an extension of time in which to lodge an application for first review and, consequently, there is no decision under s 92(1)(b) and no application for second review of such a decision.
The third refers to a Tribunal decision to make, or to refuse to make, a determination in respect of the date of effect of a first review decision under s 95N(2) of the Registration Act – where an application for first review is lodged more than 28 days from an objection decision, the first review decision will come into effect on the date the application was made unless lodgement of the application was prevented by special circumstances. In this case, FQNP applied for first tier review of the Registrar’s objection decision within 28 days and s 95N of that Act did not arise. Consequently, there has been no application for review of a decision of this kind.
It is the second kind of decision specified in s 96A(b) of the Registration Act that presently arises. This refers to a decision made by the Tribunal under s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) on first review of a ‘care percentage decision’.
It is important to observe immediately that the second review jurisdiction conferred by s 96A(b) is confined to a class of decisions made by the Tribunal on first review.
There are difficulties, and a good deal of uncertainty, discerning the scope of s 96A(b) of the Registration Act. There is a question whether the second review jurisdiction conferred upon the Tribunal by this provision is sufficiently broad to include a decision made under s 87AA(2) of the Registration Act where this has not been addressed by the Tribunal on first review. This is not an easy question to answer. With respect, we agree with Flick J’s observation in MQMV’s case at [42] –
Where the boundary of the category of decisions that were susceptible of “second review” was to be drawn initially remained an elusive exercise.
Scope of ‘care percentage decision’
The term ‘care percentage decision’ is defined in s 4(1) of the Registration Act –
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.
We note in passing that the term ‘administrative assessment’ is given meaning in s 5(1) of the Child Support (Assessment) Act 1989 (Assessment Act) and refers to an assessment under Part 5 of that Act, whereas the term ‘notional assessment’ is given meaning under s 146E of the Assessment Act, which is not presently relevant.
As can be seen from the definition, a ‘care percentage decision’ is one made under Subdivision B of Division 4 of Part 5 of the Assessment Act or s 54K of that Act in Subdivision D of Part 4, which deals with applying percentages of care determined under the A New Tax System (Family Assistance) Act 1999 for child support purposes. Essentially, a decision of this kind requires consideration of the arrangement and provision of care, the pattern of care and changes in care for a child (and related matters) during a care period. This includes the determination of days to which the particular care percentages apply, under s 54B or s 54C of the Assessment Act.
Furthermore, a ‘care percentage decision’ is a ‘decision as to the particulars’ of an assessment that ‘wholly or partly’ ‘involves’ a determination of a person’s percentage of care for a child. The words ‘wholly or partly’ and ‘involves’ convey a broad scope that is not confined to a decision made under Subdivision B of Division 4 of Part 5 of the Assessment Act.[17] In resolving this issue, we are guided as much as we are bound by what Flick J decided in MQMV’s case at [46] –
To be susceptible to “second review” the decision of the Tribunal on “first review” does not have to be one made exclusively under Subdiv B but rather be one which “involve[d] (wholly or partly) ... a determination made under a provision of Subdivision B...”…
[17] MQMV v Child Support Registrar [2019] FCA 1171 at [45].
For the purposes of s 96A(b) of the Registration Act and the Tribunal’s second review jurisdiction, there is a question whether a decision under s 87AA(2) is a decision of this kind – a ‘care percentage decision’.
87AA Date of effect of objections relating to care percentage decisions that are allowed
(1) If:
(a) a person lodges, under section 80A, an objection to a care percentage decision; and
(b) the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and
(c) the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;
the date of effect of the review decision is the day on which the person lodged the objection.
(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
(a) in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or
(b) otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
(3) If:
(a) the Registrar decides to make a determination under subsection (2) in relation to a person; or
(b) the Registrar decides not to make such a determination in relation to a person;
the Registrar must give written notice of the decision to each person affected by the decision.
(4) The notice must:
(a) set out the reasons for the decision; and
(b) include a statement to the effect that, if the person is aggrieved by the decision, application may be made, subject to this Act and the AAT Act, to the AAT for review of the decision.
(5) A contravention of subsection (4) in relation to a decision does not affect the validity of the decision.
As can be seen, the discretion to extend time under s 87AA(2) is essentially preconditioned by the Registrar being satisfied that special circumstances prevented the person from objecting to a care percentage decision within the period referred to in paragraph 87AA(1)(b). Without this essential precondition being made out, absent satisfaction that special circumstances prevented the person from making an objection within the specified time, the discretion is not enlivened and it cannot be exercised. In that eventuality, s 87AA(1) applies and the date of effect of the care percentage decision is thus imposed.
Plainly enough, a decision under s 87AA(2) is not a determination made under Subdivision B of Division 4 of Part 5 of the Assessment Act. Nevertheless, it is a decision that ‘partly’ ‘involves’ a care percentage determination under that Subdivision to the extent that, in certain circumstances, the date of effect of an objection decision relating to such a determination may be varied. Where the discretion conferred by s 87AA(2) is enlivened by special circumstances, the Registrar may extend the period specified as a precondition to operation of s 87AA(1) and, thereby, change the date on which s 87AA(1) applies and the day on which the Registrar’s allowance of an objection to a care percentage determination under s 80A has effect.
That being so, arguably at least, a decision under s 87AA(2) may be within the broad meaning of ‘care percentage decision’. For this to be so, adopting the language Flick J used in MQMV’s case, it would need to be accepted that a care percentage decision is a “core element” of a decision under s 87AA(2). This is an open question that we do not need to resolve as the jurisdictional issue before us is resolved on other grounds.
We note that the Tribunal (differently constituted) appears to have adopted a similar approach in ZGCJ and Child Support Registrar (ZGCJ)[18], although the jurisdictional issue that is before us and the meaning of ‘care percentage decision’ were not squarely addressed.
[18] [2020] AATA 4481 at [64]-[76].
In ZGCJ’s case, the Tribunal allowed an objection made more than 28 days after an original decision involving care percentages and considered it necessary “to determine the date of effect pursuant to s 87AA of the Registration and Collection Act and s 43(6) of the AAT Act”,[19] observing at [66] –
Section 87AA(1) of the Registration and Collection Act necessarily interacts with s 43(6) of the AAT Act. Section 43(6) effectively provides that the decision of the Tribunal is deemed to be a decision of the person who made the Reviewable Decision and gives the Tribunal discretion to backdate the effect of that deemed decision.
[19] Ibid at [64].
It appears that the Tribunal in ZGCJ’s case proceeded in a manner that is largely consistent with that for which the Registrar contends in this case.
While we acknowledge that consistency in Tribunal decision-making is important, being a matter of public expectation, consistency cannot usurp the legislative basis on which Tribunal decisions are made and it cannot assume statutory power where none exists.
It is at this point statutory uncertainty arises in respect of the severability of a care percentage decision under the Assessment Act and a decision under s 87AA(2) of the Registration Act In order to resolve this uncertainty it is necessary to consider the legislative framework under which the Tribunal exercises power for the purposes of second review under the Registration Act.
Legislative framework for exercise of power
Under s 43(1) of the AAT Act, for the purposes of review, the Tribunal ‘may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’ that is subject to review within the terms of s 25 of the AAT Act. Thus, when conducting a second review of under the Registration Act, the Tribunal may exercise all the powers and discretions conferred on the Tribunal at first review when considering afresh all of the matters that were properly before the Tribunal at first review in respect of the impugned ‘care percentage decision’. This is so even if the Tribunal at first review failed, omitted or decided not to deal with a matter that was squarely before it, or if a party cavils with some part of the decision but not other parts. On second review, the Tribunal has before it the entirety of the matters that were decided, or capable of being decided, by the Tribunal at first review under s 43(1) in respect of the care percentage decision.
It is important to note, however, that the powers of the Tribunal at first review, and consequently the powers of the Tribunal at second review, are subject to the limit imposed by s 95E of the Registration Act –
Despite subsection 43(1) of the AAT Act, the AAT must not, for the purposes of an AAT first review, exercise a power or discretion conferred on the Registrar by a prescribed provision of this Act or the Assessment Act.
Within this limit, the Tribunal at first review is required to exercise jurisdiction conferred upon it by s 89 of the Registration Act, as follows –
89 Application for AAT first review
An application may be made to the AAT for review (AAT first review) of a decision of the Registrar if:
(a) the decision is set out in an item of the following table; and
(b) the person is set out in that item.
Decisions/applicants
Item
Decision
Who may apply for review
1
a decision under subsection 83(1) on an application for an extension of time
the person who applied for the extension of time
2
a decision under subsection 87(1) on an objection to a decision (the original decision) of the Registrar
(a) the person who objected to the original decision under section 80 or 80A; or
(b) a person who was entitled to be served a copy of the objection and any accompanying documents under section 85
3
a decision to make a determination under subsection 87AA(2) or a decision not to make such a determination
a person affected by the decision
4
a decision to make a determination under subsection 110Y(3) or 110Z(3) or a decision not to make such a determination
a person affected by the decision
As can be seen, the Tribunal’s first review jurisdiction arises in respect of four kinds of decision under the sections specified, each of which involves the exercise of different statutory powers. In order for the jurisdiction to be enlivened, an application for first review must be made in writing under s 29 of the AAT Act, or orally under s 29AA of that Act.
Thus, where the Registrar decides to allow an objection and varies the care percentage decision or substitutes a new care percentage decision under s 87, application may be made to the Tribunal for first review. Similarly, where a person lodges an objection more than 28 days after notice of a care percentage decision has been served and the Registrar allows the objection and exercises, or refuses to exercise, the discretion conferred by s 87AA(2) of the Registration Act to allow a longer period before s 87AA(1) applies, application may be made for first review of that decision by the Tribunal.
Severability
In the construction contended for by the Registrar, a decision under s 87AA(2) is taken to be an integral part of a decision under s 87(1) in respect of an objection to a percentage of care decision - these two decisions are taken as parts of a whole where, in certain circumstances, the former determines the date of effect of the latter and where an application for first review of the latter includes the former.
While the Registrar is correct to assert that the date of effect is a matter that arises in the context of an objection decision, as well as on first and second review by the Tribunal, it does not follow in all cases, and it should not be assumed, that an application for first or second review of a decision under s 87(1) extends to include an application for review of a decision under s87AA(2). There are four reasons for this.
Firstly, the statutory power to make such decisions arises under different legislative provisions. With regard to ‘AAT first review’, these are specified in the Table set out in s 89 of the Registration Act. The distinction between a decision under s 87(1) of the Registration Act and one made under s 87AA(2) is clearly drawn.
Secondly, the legislation provides for review of specific kinds of determinations, objection decisions and Tribunal decisions within a tiered framework. The clear purpose of this is to enable a person who is dissatisfied with a particular decision to apply for it to be reviewed on the merits. In this way, the respective review rights of parents are preserved. Considering the diversity of circumstances, interests and sensitivities that commonly arise in child support cases, and the likelihood that people seeking review may not have detailed knowledge or understanding of the legislation or the law, it is not surprising that these provisions allow a good deal of flexibility in their terms and should be construed liberally.[20] Nevertheless, to our minds, that flexibility does not go so far as to ignore, or conflate without authority, review provisions that are specific in their terms, unambiguous in meaning and clear in effect. To do so may lead to unintended consequences and, furthermore, with regard to the interpretation of a ‘decision’ for the purposes of the AAT Act, the words of Mason CJ in Australian Broadcasting Tribunal v Bond[21] at [30]-[32] are apposite, in particular –
31. … To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
[20] Director-General of Social Services v Hales [1983] FCA 81; (1983) 78 FLR 373, per Lockhart J (with whom Sheppard J agreed) at 397.
[21] [1990] HCA 33.
Should the construction contended for by the Registrar be accepted, a decision under s 87AA(2) in respect of late objection to a care percentage decision could not be treated as final while disputation over the care percentage decision persisted in the Tribunal or in the courts. To our minds, this is not consistent with the text or the purposes of the legislation.
On a plain reading of the legislation, the finality of an unchallenged decision in respect of the cause of one party’s delay in lodging an objection to a care percentage decision is not upset by an application for review of the care percentage objection decision by another party. This does not mean that the date of effect and the care percentage decision are fragmented, rather it means that where the statutory preconditions in s 87AA(2) are met, the date of effect is determined under one head of statutory power (s 87AA(1)) while the care percentages are determined under another head of power (Subdivision B, Division 4, Part 5 of the Assessment Act), with each being capable of review, as s 89 clearly provides.
Thirdly, while the determination of care percentages under relevant provisions of the Assessment Act extends to the days on which such percentages apply, where an objection is lodged more than 28 days[22] after notice of a percentage care decision (s 87AA), or an application for first review by the Tribunal is lodged more than 28 days after notice of an objection decision (s 95N), the date of effect is specified in s 87AA or s 95N of the Registration Act respectively.
[22] Under s 87AA and s 95N, 90 day periods apply in respect of reciprocating jurisdictions. These are not presently relevant.
These are operative provisions that do not require the decision maker to make a determination before they have effect: each provision has effect once the preconditioning factors are satisfied. Relief from the effect of these operative provisions is provided under s 87AA(2) and s 95N(2), each of which confers discretion upon the decision maker to extend the 28 day period and change the date on which s 87AA(1) or s 95N(1) apply. By doing so, the Registrar may determine an earlier date of effect than that imposed by s 87AA(1) or 95N(1), should it be established that special circumstances prevented the person from lodging the objection or the application for first review.
These provisions are plain enough in their terms, the purposes being to allow discretionary relief in cases where special circumstances prevented lodgement of an objection or a first review application within 28 days of receiving notice of the contested decision. The discretion conferred is not at large, it arises only where the decision maker is satisfied that special circumstances prevented the person from lodging an objection or an application for first review within the specified period. Exercise of the discretion in such circumstances allows relief from the mandatory date of effect that otherwise would apply under s 87AA(1) or s 95N(1) and, in consequence, it allows the person to benefit from earlier effect of a favourable objection decision or a decision on first review.
Plainly enough, a decision whether or not to exercise discretion under s 87AA(2), and if so to what date of effect, requires different evidence and different considerations than a decision under s 87 in respect of an objection to a determination within the terms of s 80 or s 80A about which notice must be given under s 85 or s 85A and the views of notified persons taken into account under s 86 or s 86A. Decisions of the latter kinds involve consideration of provisions that are set out in s 80, relating to child support liabilities, assessments, agreements and care percentages, for example, whereas a decision under s 87AA(2) requires consideration of reasons for delay in lodging an objection and factors relevant to the discretion conferred.
Were the Registrar’s submissions to be accepted, care percentage decisions and decisions relating to discretionary relief from prescribed dates of effect under clearly distinct provisions of the legislation would be treated as parts of an unseverable whole. A construction of this kind is not consistent with the text or the plain meaning of the legislation; nor is it consistent with the purposes of the legislation in providing for tiered review of specific decisions, and we reject it.
Fourthly, it is a requirement of s 29(1)(c) of the AAT Act that a written application for review should set out the reasons for the application and, in the case of an oral application, s 29AA(1) requires that the details of the application must be recorded. Thus, while different language may be used than that used in the legislation, for a review application to include both kinds of decisions under s 87(1) and s 87AA(2) of the Registration Act, the applicant’s intention to seek review of each decision must be expressed or implied in the reasons or details of the application, or be capable of being inferred from those reasons, with sufficient clarity to convey this information to the Tribunal. For the Tribunal to proceed on the assumption that an application for review of a care percentage objection decision under s 87(1) extends to include a decision under s 87AA(2) without that being expressed or implied in the application, may be affected by jurisdictional error.
The key question for the Tribunal in such circumstances, is whether the application relates to one or both kinds of objection decision. Where there is a lack of sufficient detail in the reasons for the application, such that it does not clearly identify the respects in which the applicant believes that the decision is not the correct or preferable decision, under s 29AB of the AAT Act, the Tribunal may require the person to provide further or better information by amending the stated reasons. While s 29AB does not apply to oral applications for first review, the purposes of the legislation are clear – sufficient detail must be provided in an application for review to enable the Tribunal to identify the decision to which the application relates and the reasons why the person is dissatisfied with it.
Conclusion
We are satisfied that a decision under s 87AA(2) is not integral to a decision under s 87(1) in respect of percentages of care. That being so, the Tribunal’s first review jurisdiction to review a decision under s 87AA(2) requires an application for review of such a decision under s 89.
Where no such application was made, whether expressly or constructively, and the matter was not before the Tribunal and decided under s 43(1) of the AAT Act on first review, the Tribunal has no jurisdiction under s 96A(b) on second review in respect of it.
APPLICATION FOR REVIEW
The Registrar argues that FQNP’s application is sufficiently broad to encompass any date of effect considerations. The Registrar asserts that the Tribunal has jurisdiction to review all matters that were before the Tribunal at first review, whether or not the Tribunal dealt with each matter that was before it. This includes, so the argument goes, consideration of special circumstances and the exercise of discretion under s 87AA(2). In the Registrar’s submission, the Tribunal at first review had jurisdiction to deal with this issue and the contrary suggestion is wrong.
On the facts of YXVZ’s case, the first review Tribunal had one application before it, being FQNP’s application for review of the Registrar’s care percentage decision under s 87(1). There was no express application before it for review of the Registrar’s decision under s 87AA(2). The Tribunal’s first review decision, which is the subject of YXVZ’s application for second review, adopted but did not squarely address or review the date of effect that flowed from the Registrar’s objection decision under s 87AA(2).
We note in passing that, under s 43(6) of the AAT Act, a decision of the Tribunal varying a decision, or substituting a new decision, is deemed to be a decision of the person who made the decision under review. Subject to order, such a Tribunal decision is deemed to come into effect at the time the decision under review came into effect. In this case, the Tribunal at first review made no order to change the date of effect of the Registrar’s objection decision.
As we have said, VXYZ did not apply within 28 days, and has not yet applied, for first review of the 29 July 2019 objection decision under s 87AA(2).
FQNP applied for first review of the 29 July 2019 care percentage objection decision within 28 days. This application was made orally, by telephone, and it was supported by documents FQNP gave to the Registrar.[23] The record of the oral application identifies the 29 July 2019 ‘care percentage decision’ as the subject of the review application.[24] No express reference is made to the objection decision under s 87AA(2) of the Registration Act in the record of FQNP’s application for first review, or in the extensive documents given in support of this application.
[23] T17, T18 and T19.
[24] T20.
On these facts there is a question whether FQNP’s application can be construed as sufficiently broad to include the Registrar’s decision under s 87AA(2) in respect of YXVZ’s delay in objecting to the original care percentage decision. For reasons that follow, the answer to this question is No.
Constructive application
Even adopting a broad, liberal or generous construction of FQNP’s application for first review, without any reference whatsoever to the decision under s87AA(2), we are not persuaded that it can be treated as an application for first review of the Registrar’s decision under s 87AA(2) of the Registration Act. To construe the application in that way would mean inserting words and broadening the scope of the application in a manner that would not be consistent with FQNP’s interests which, as the documents provided in T17, T18 and T19 clearly reveal, were squarely directed to the assessment of care percentages. The Registrar’s decision under s 87AA(2) in respect of special circumstances resulted in a date of effect being imposed under s87AA(1), which was to FQNP’s advantage as it meant there was no change to child support assessments from 23 May 2018.
The present evidence does not establish any sufficient basis to find that YXVZ expressly or impliedly asserted dissatisfaction with the Registrar’s objection decision in respect of special circumstances in the conduct of the Tribunal’s first review of FQNP’s application, such that it should be taken as an oral application for first review.
It is possible that the assertions YXVZ has made in the course of these second review proceedings, in respect of special circumstances that allegedly prevented objection being made against the initial 23 May 2018 care percentage decision within 28 days, might amount to an application for first review of the Registrar’s objection decision under s 87AA(2) of the Registration Act. Even if that possibility is real, and we make no such finding, YXVZ has not agitated and no other party has addressed such a possibility.
Furthermore, as the 28 day period in which an application for first review of the Registrar’s s 87AA(2) objection decision is long past, it would be necessary for YXVZ to apply under s 91 of the Registration Act for an extension of time in which to make an application for first review of that decision. No such application for an extension of time has been made. That being so, even if YXVZ’s assertion of special circumstances could be treated as an application for first review, without the grant of an extension of time it could not proceed. We note that there is no bar to YXVZ applying for such an extension of time.
We can go no further on this point.
That being so, as we have said, absent an application for first review of the Registrar’s objection decision under s 87AA(2), the Tribunal at first review had no jurisdiction in respect of that matter. From this it follows that the Tribunal, presently, has no jurisdiction for second review of that decision.
Duplication
We understand the Registrar’s submissions about efficiency in decision making and in respect of duplication, but these do not persuade us to accept the result contended for.
The objection decision contains a number of headings. Under the heading REASONS FOR DECISION, findings are made in respect of percentages of care and the following decision is recorded –
Therefore as we are not satisfied that a change in the pattern of care has occurred we have made the decision to refuse to change the care for [the child] to be reflected as100 percent to [FQNP] from 23 My 2018.
The care for [the child] will be reflected as 73 per cent to [YXVZ] and 23 per cent to [FQNP].
The objection is allowed.
[YXVZ] objected more than 28 days from the date of the original decision.
We needed to take into account any special circumstances that may have prevented [YXVZ] from objecting earlier.
This is because the care percentage can be applied from an earlier date if special circumstances existed.[25]
[25] T16 folio 154.
Under the heading WE CONSIDERED THE FOLLOWING SPECIAL CIRCUMSTANCES, the following decision is recorded –
We have accepted that special circumstances did not prevent [YXVZ] from objecting earlier.
As a result, we have decided to apply the care percentage from 13 May 2019.
This decision is made under s 87AA(2) of the [Registration Act].[26]
[26] Ibid.
It is quite clear that the Registrar made two distinct decisions.
FQNP’s application was in respect of the care percentage decision and it made no reference to the decision under s 87AA(2).
As we have said, we do not accept the Registrar’s submission that the care percentage decision is unseverably tied to the decision regarding special circumstances under s 87AA(2) and the date of effect that applied in consequence, nor do we accept that to make any contrary finding would be illogical or inconsistent with the legislation.
The legislative separation of a care percentage decision under s 87(1) and a special circumstances decision under s 87AA(2) is quite clear.
This separation is reflected in the date of effect of the first review Tribunal’s decision in respect of care percentages. The date applied is the same as that applied under the Registrar’s objection decision, namely the date YXVZ lodged an objection to the initial care percentage decision.
It is not difficult to accept that a person in YXVZ’s shoes might expect all that all elements of an objection decision are inseparable and a related application for first review, however framed, would cover all the elements of the objection decision to which it applies. Considerations of these kinds, regarding expectations based on convenience and administrative economy, may be attractive in some regards. An easy to navigate mechanism for parents seeking review of child support decisions is no doubt desirable, as is efficient discharge of legislative responsibility and related administrative processes, but such considerations do not authorise departure from the legislative framework and statutory provisions that must be applied.
Saying this, even despite the lack of certainty to which we have referred in respect of the scope of s 96A(b), we do not suggest that the legislative framework for review of child support determinations is unnecessarily complex or difficult to navigate. In the present case, the Registrar provided YXVZ with the following information about review of the objection decision –
We are writing to advise you that we have allowed the recent objection to reflect the care for [the child] as 100 percent to [FQNP] from 23 May 2018.
The details of the decision are enclosed.
What this means for you
- Your child support is still receivable at the current rate.
If you do not agree with this decision
If you think the decision is wrong, you can ask the Administrative Appeals Tribunal (AAT) to review it. You must do this within 28 days from the date you receive this letter…
…
Even though the language used in the first sentence of this letter is somewhat obtuse – the actual decision was to allow the objection on the basis that YXVZ’s care percentage was 73 percent and FQNP’s care percentage was 27 percent with effect from 13 May 2019 – the result is clear enough: there was no change to the rate of YXVZ’s child support. To our minds, despite the confusing language and references to ‘the decision’ when, in fact, two distinct decisions had been made, the letter and the attached reasons contained sufficient information to enable YXVZ to seek review.
YXVZ asserts that this letter was not received. This is one component of the argument made in respect of special circumstances. It is clear this was considered by the Registrar when making the objection decision under s 87AA(2).[27]
[27] See T16 folio 124.
We note that YXVZ was informed of the objection decision by telephone on 29 July 2019. The record of that conversation reveals that both decisions were conveyed to YXVZ – the decision, in effect, reversing the initial decision that FQNP had 100 percent care of the child from 28 May 2018, as well as the decision that special circumstances did not prevent YXVZ from objecting earlier, with the result the care percentage decision would apply from 13 May 2019.
It was open for YXVZ to seek first review of this decision. There is no evidence before us that any such application has been made. We were informed, furthermore, that YXVZ assumed that the Tribunal would review the care percentages as well as the dates of effect when deciding FQNP’s application for first review. We have carefully examined the Tribunal’s first review decision and note that there is no reference to YXVZ agitating issues relating to special circumstances preventing earlier lodgement of an objection. That being so, it is not established by evidence that such matters were raised with the Tribunal at first review, and it is not established that the Tribunal considered such matters in any substantive or determinative way.
Power to determine date of effect
The Registrar’s assertion that, in the circumstances of this case, the Tribunal has power on second review to determine the date of effect of a decision to substitute or vary the first review care percentage decision is not made out.
As YXVZ lodged an objection to the initial care percentage decision after more than 28 days, s 87AA(1) applies with binding effect, subject only to the exercise of discretion under s 87AA(2). The Registrar found against YXVZ’s assertion that special circumstances prevented earlier lodgement of the objection. In consequence the discretion conferred by s 87AA(2) was not enlivened and, unavoidably, the date of effect under s 87AA(1) is the date on which YXVZ lodged an objection against the initial care percentage decision – 13 May 2019.
Without an application for review of the Registrar’s s 87AA(2) objection decision, the Tribunal at first review had no jurisdiction to review that decision and no discretion under s 87AA(2), standing in the Registrar’s shoes.
Under s 43(6) of the AAT Act, the first review Tribunal’s decision is taken to be a decision of the Registrar, in place of the care percentage decision made on 29 July 2019, and it has effect from the date that decision took effect. As we have said, the first review Tribunal made no different or additional order specifying any other date of effect – it simply adopted the date of effect from the Registrar’s objection decision that flowed from s 87AA(1) of the Registration Act.
On this point, ZGCJ’s case is distinguished.
The scope of the Tribunal’s power under s 43(6) of the AAT Act to make orders in respect of the date of effect of its decision and, in particular, whether this power might extend to overturn the date of effect prescribed in s 87AA(1) of the Registration Act, was not squarely argued or addressed in submissions. All we will say on this point is that the Tribunal does not exercise power at large and it is unlikely the power would reach so far in circumstances where the Registrar’s s 87AA(2) decision has not been subject to first review by the Tribunal.
The Tribunal’s power under s 43(6) of the AAT Act to determine the date of effect of a second review decision must be construed within the legislation being applied.
In the circumstances of this case, it is subject to the operation of the statutory prescription under s 87AA(1) of the Registration Act, or the exercise of discretion conferred by s 87AA(2) of that Act, in respect of which it has no jurisdiction.
Conclusion
The Tribunal at second review has no jurisdiction conferred upon it to deal with any matters other than those set out in s 96 of the Registration Act. Under s 96(b), the Tribunal’s jurisdiction at second review extends to include all matters that were dealt with, or that were capable of being dealt with, by the Tribunal at first review when making the decision under s 43(1) of the AAT Act that is the subject of a second review application. The matters that YXVZ is attempting to agitate on second review, in respect of the Registrar’s s 87AA(2) objection decision, were not before the Tribunal at first review and such matters are not before the Tribunal on second review.
That being so, the Tribunal at second review, presently, does not have any jurisdiction to decide matters YXVZ is seeking to agitate in respect of special circumstances under s 87AA(2) of the Registration Act.
Consequently, on second review of the care percentage decision, should a decision be made to apportion a greater percentage of care for the child to YXVZ than decided by the Tribunal on first review, the date of effect would remain unchanged. The date of effect is that imposed by operation of s 87AA(1) of the Registration Act. Absent jurisdiction to review the decision under s 87AA(2) in respect of special circumstances, the Tribunal on second review has no discretion or power to change that date.
This means that, while YXVZ might succeed in obtaining a change in the care percentages for the child in the period from 23 May 2018 to 23 November 2018, when the child completed school, and we make no such finding ahead of hearing and deciding that matter on the merits, no change in child support would result as the date of effect would not change from 13 May 2019.
This raises a question about the utility of the hearing should the matter proceed. Even if YXVZ’s assertions were to be accepted, the date of effect under s 87AA(1) of the Registrtion Act would apply and, consequently, no change would result in the assessment of child support and Family Tax Benefit during the period from 23 May 2018 to 23 November 2018.
The parties have not been heard on this question so we will make no findings and draw no conclusions about it.
Decision
The Tribunal presently has no jurisdiction to review the Registrar’s objection decision under s 87AA(2).
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