CHILD SUPPORT - Interlocutory - practice and procedure - stay order application - percentage of care decision - whether it is desirable for the purpose of ensuring the effectiveness of the review - utility of stay order

Administrative Review Tribunal Act 2024 (Cth)

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

Broadbent v Civil Aviation Safety Authority [1999] FCA 1871

Clement and Comcare [2006] AATA 705

Scott v Australian Securities & Investments Commission [2009] AATA 798

1. Mr TYCS has applied for social services second review of a decision of the Tribunal on a review of a child support care percentage decision. The Tribunal had decided in that matter to set aside the decision of an objection officer so as to revoke an existing care percentage determination of 14% to Mr TYCS from 13 April 2023 and to replace it with a care determination of 0% from 14 April 2023. The care percentage determination in respect of the other parent of 86% was also revoked, but from 13 November 2023 with the new care determination of 100% applying from 14 November 2023. Services Australia had previously not accepted that a change in care had occurred, and an objection to that decision had been disallowed.
2. The Tribunal had also accepted that special circumstances had prevented Ms ZXZV from lodging her objection within 28 days of being given notice of the original decision, and exercised the discretion in section 87 AA of the Child Support (Registration and Collection) Act 1988. Had the Tribunal not done so the favourable outcome on review would not have taken effect until 15 October 2024.
3. The Tribunal observed also that new care percentage determinations had taken effect in any event from 22 July 2024 which were not before the Tribunal.
4. Mr TYCS has applied for second review of that decision. On 2 March 2025 Mr TYCS applied for a stay of the Tribunal's decision on the grounds that he had enclosed new evidence which he believed would impact on the decision that had been made.
5. On 16 May 2025, Ms ZXZV gave notice that she opposed the stay.
6. On 26 May 2025, the Child Support Registrar advised that he neither opposes nor consents to the stay.
7. A hearing of the stay application proceeded on 20 August 2025, although on that occasion Ms ZXZV indicated she had been taken by surprise as to the purpose of the hearing. To address this, I made procedural directions inviting written submissions on the stay application after the hearing, and granted an extension of time when Ms ZXZV indicated she was unable to comply. I also directed the Child Support Registrar to provide written submissions identifying precisely what would be the effect of any stay if it were to be granted on Mr TYCS's and Ms ZXZV's respective liabilities or credits in respect of the child support balance.
8. Ms ZXZV failed to serve her submissions on the other parties, necessitating a further adjustment to the timetable to afford the other parties with a short opportunity to respond in writing. The post-hearing process in this regard was finalised by close of business on 15 September 2025. I have taken into account the further submissions of the applicant dated 11 September 2025.

1. Subsection 32(2) of the Administrative Review Tribunal Act 2024 (the ART Act) gives the Tribunal power to make an order staying or otherwise affecting the operation or implementation of the decision in relation to which review is sought if it is considered desirable to do so for the purpose of ensuring the effectiveness of the review.
2. Section 95A of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) affects subsection 32(2) of the ART Act by providing that it does not apply in relation to a proceeding for ART review unless the proceeding is in relation to a Guidance and Appeals Panel decision.
3. However, subsection 32(2) of the ART Act specifically applies in relation to second review applications despite a contrary intention in any other law: section 131V of the ART Act. The current proceeding before the Tribunal is an application for second review. It follows therefore that the decision under review is amenable to a stay order.
4. The discretion provided for in the legislation for the Tribunal to grant a stay is a broad discretion. The reason the discretion exists is 'not directed to relief of hardship alone but is for the purpose of securing the effectiveness (and processes) of the hearing and the review that is under foot' and further that 'securing the effectives of the hearing and review is tied to securing the processes of the hearing and review.'[1]
5. Making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision, and there is no automatic right to a stay. The Tribunal will only make an order staying or otherwise affecting the implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
6. The determinative criterion for the exercise of the Tribunal stay power, being to secure the effectiveness of the review, is framed in a general way. In this regard, there is not an exhaustive list of permissibly relevant considerations.[2] In determining whether to grant a stay, the Tribunal should not simply focus on the interests of the Applicant. Paragraph 32(7)(b) of the ART Act prescribes that the Tribunal must consider the interests of any person who may be affected by the review of the decision.
7. Previous cases have recognised that a number of matters may be relevant to the consideration of that discretion. Scott v Australian and Securities and Investment Commission[3] is frequently cited in this regard. The following matters are identified, but should not be viewed as a fixed list, and indeed some of the factors identified do not find resonance in the circumstances of this matter. The matters include:
   • the prospects of success of the application,
   • the prejudice or hardship that the parties or other persons whose interests may be affected by the review may suffer,
   • the consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not,
   • whether the review application if successful would be rendered nugatory if the stay was not granted,
   • whether it is in the public interest to grant a stay and other relevant matters (Scott v Australian Securities & Investments Commission [2009] AATA 798).
8. The practical impact of the decision under review pertains to the changes in outstanding child support liability as between the applicant and the other party. The Child Support Registrar has identified from its records that:
   • prior to the implementation of the AAT decision, Mr TYCS' child support account was in credit in the amount of $2,209.54;
   • when the ART decision was implemented, Mr TYCS' child support liability retrospectively increased by the sum of $4,901.06. Accordingly, the balance of TYCS' child support account moved to arrears of $2,691.52.
   • Mr TYCS has since made payments of $87.40, and incurred late payment penalties of $67.19. The balance of the account is $2,456.63 as at 22 August 2025.
9. The Child Support Registrar contends that if the stay is granted, the amount of $4,901.06 added to Mr TYCS' liability will be temporarily reversed, returning Mr TYCS' account to credit. This would restore the corresponding liability (by way of overpayment in child support) to Ms ZXZV. The Child Support Registrar notes that there is no ongoing child support liability (as the case has ended) from which that liability could be addressed over time.
10. The Child Support Registrar also notes that as the implementation of the AAT decision has produced an outstanding liability for child support, there is the potential for any income taxation return amount to be intercepted by the Child Support Registrar.
11. Submissions and evidence given on behalf of Mr TYCS by his partner and representative proposed slightly different results arising from the implementation of the decision. It was submitted that Services Australia had indicated to Mr TYCS they it not taking any particular steps to enforce the liability while the review was pending, but the outstanding amount was incurring 'interest' (which I take to be a reference to the late payment penalties).
12. When squarely asked why a stay was required, the response focussed on the merits of the decision under review. When the question was posed another way, Mr TYCS' representative posed a concern that if they paid the outstanding liability, and then the decision under review was resolved in Mr TYCS' favour, there may be difficulty in recovering the funds. This concern was restated in the written submission of 11 September 2025.
13. In her submissions, including after the hearing, Ms ZXZV also focussed on the merits of the decision under review, and wider difficulties she had experienced in relation to tracking her child support affairs. Her submissions did not squarely engage with the issues identified at hearing with which I must engage in deciding whether or not a stay should be granted, other than the question of the underlying merit of the review application. At the hearing, Ms ZXZV indicated that granting the stay would place her back in the situation of owing Mr TYCS money, which she did not consider a fair thing.
14. I turn, for completeness, to address the factors identified in the decision of Scott.
15. In relation to the prospects of success of the application for review, I note that both parties advanced positions and evidence consistent with their respective positions in relation to the care arrangements of their now 18-year-old son.
16. It is important to note that the result of the review on its merits will not necessarily be binary. On substantive review the underlying decision relating to the care percentage determination is to be reviewed, as is the decision made regarding the exercise of discretion to effectively backdate any successful review outcome. There is every potential for the review outcome on second review to be mixed. There is nothing in either party's contentions to date that I have identified as being wholly without merit in a way that impacts on the question of a stay. Having regard to the complexities associated with assessing care arrangements for children who are almost adults, and the additional question of the backdating of the date of effect of the review decision where special circumstances prevented the lodgement of the objection within the prescribed period, I consider that the application for review enjoys sufficient prospects of success that this question alone cannot be determinative of the application for the stay.
17. As to the prejudice and hardship each party may suffer, it is clear that neither party wishes to have an outstanding child support liability to the other recorded on their respective child support accounts. To the extent that I might alleviate any hardship to be faced by Mr TYCS in this regard by granting a stay, I can do so only by placing it back on Ms ZXZV instead. In circumstances where the ultimate outcome of the substantive review can be implemented by making those adjustments once the review is complete, I do not consider the prejudice and hardship to be faced by each party justifies the making of the stay. Indeed, to the extent that it is justified in the interests of one party, the contrary conclusion is reached in respect of the other party.
18. The Child Support Registrar has not submitted any adverse consequences on his own role in administering the child support scheme that weighs in favour or against the making of a stay. I recognise that the Child Support Registrar, in addition to assisting the Tribunal navigate the child support law at the hearing, will typically not take a position on the factual matters to be resolved, and will implement any decision of the Tribunal absent any concerns as to a question of law that might justify an appeal. The consequences for the respondent therefore do not call for or against the granting of a stay.
19. Likewise, there is no apparent or identifiable public interest to be protected by making or refusing to make the stay.
20. As to the question of whether the review application if successful would be rendered nugatory without a stay, I am not satisfied that it would be. Indeed, this key question is determinative of the application in this case in my view. Having regard to the criterion for the exercise of the Tribunal's stay power; that is, to secure the effectiveness of the review, I note that the implementation of the AAT's decision on first review is manifested in the adjustment of outstanding liabilities between the parents. It is also the case, that if Mr TYCS is successful in aspects of his application for second review, the implementation of that decision will, in turn, be manifested by adjustments being made to outstanding child support liabilities as between the parents.
21. In these circumstances, I cannot conclude that the effectiveness of the review must or should therefore be secured by a stay, given the review can simply be made effective through the adjustment to the outstanding arrears to reflect the ultimate decision on the review. To put this another way, given the way the decision under review would be implemented, the review will be effective regardless of whether a stay is granted for the time being or not.
22. In relation to late payment penalties, I note these are likewise amenable to adjustment to reflect the outcome of any review. In relation to the potential for the Child Support Registrar to intercept a taxation return, I note this power at section 72 of the Child Support Registration and Collection Act 1988 is discretionary, and contingent in any event on a number of factors falling into place, and ultimately amenable to adjustments being made to the respective child support liability as between the parents in giving effect to the outcome of the review, whatever that may ultimately be. I do not consider it is necessary to stay the decision under review so as to interfere with the contingent possibility that the Child Support Registrar may, in his discretion, intercept a taxation return amount should that option present itself.
23. On the basis of Mr TYCS' representative's evidence, it is apparent that no particular enforcement or collection activity is underway that would prejudicially impact on Mr TYCS in a way that cannot be reversed or adjusted in the event that Mr TYCS is ultimately wholly or partly successful in his review application.
24. Therefore, I am not satisfied that it is desirable to make an order staying or otherwise affecting the operation or implementation of the decision under review for the purpose of ensuring the effectiveness of the review.
25. The application for the stay is therefore refused.
26. As explained to the parties, this has been an interlocutory application in relation to the review. Arrangements for the substantive hearing of the review on its merits will be notified to the parties by the Registry in due course.

[1] Clement and Comcare [2006] AATA 705.

[2] Panganiban and Australian Securities and Investment Commissioner [2016] AATA 703 [7]

[3] Scott v Australian and Securities and Investment Commission [2009] AATA 798