EOI20 v Child Support Registrar [2025] FedCFamC2G 713

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Note: Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.

IT IS NOTED that publication of this judgment under a pseudonym is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

1. Before the court is an appeal brought by the applicant under section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) ('the Act') from a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal ('the Tribunal'), as it was then constituted, dated 22 August 2024. By that decision, the Tribunal affirmed a decision of a delegate of the Child Support Registrar dated 14 January 2022 which applied the second respondent's adjusted taxable income of $94,811 in the 2020 financial year to administratively assess child support.
2. On 4 November 2024, the matter was mentioned before me by videoconference. The applicant represented herself, and the first respondent was represented. On that occasion, the solicitor for the first respondent made oral submissions to the effect that this court did not have jurisdiction to hear the appeal by operation of section 44 of the Act. I made orders which invited the applicant and first respondent to file and serve written submissions in relation to the jurisdictional issue raised. [1]
3. Therefore, the preliminary issue before me is whether this Court has jurisdiction to hear the appeal.
4. On 5 December 2024, I heard submissions from the applicant and first respondent on the jurisdictional issue. The applicant relied on her written submissions filed on 25 November 2024 and the first respondent relied on its written submissions filed 11 November 2024.
5. Before addressing the issue of jurisdiction, it is appropriate to briefly summarise the history of the application made by the applicant in relation to the Tribunal decision and, to the extent relevant, other decisions of this court.

1. By way of factual background, on 29 October 2020 the first respondent received financial information relating to the second respondent's adjusted taxable income in the 2020 financial year.[2]

1. On 30 October 2020, the first respondent made the decision to apply the second respondent's adjusted taxable income in the 2020 financial year to the administrative assessment of child support, from the commencement of a new child support period on 1 December 2020.[3]
2. On 20 November 2020, the applicant lodged an objection to that decision.[4] On 29 January 2021, the objection was disallowed by an Objections Officer of the first respondent ('the ATI objection decision').[5]
3. On 24 February 2021, the applicant lodged an application for review of the ATI objection decision in the Child Support Division of the Tribunal.[6]
4. On 24 June 2021, the Tribunal, separately constituted, affirmed ATI objection decision.[7]

1. On 3 August 2021, the applicant filed a Notice of Appeal in separate proceedings LNG 41 of 2021, from the decision of the Tribunal to affirm the ATI objection decision.[8]
2. On 24 September 2021, her Honour Judge Taglieri made orders by consent remitting the matter to the Tribunal.[9] Notation A to those orders provided that:
   1. In its decision dated 24 June 2021 in review 2021/HC020866, the Administrative Appeals Tribunal ("Tribunal") affirmed a decision of an Objections Officer to disallow an objection to a decision of the first respondent to, relevantly, start a new child support period from 1 December 2020 ([63]). The respondents accept that the requirements of s 34A(2) of the Child Support (Assessment) Act 1989 (Cth) meant that, as the first respondent made an assessment of the third respondent's taxable income on 30 October 2020, the new child support period should have commenced on 1 November 2020. The respondents accept that the Tribunal's decision is therefore affected by an error of law.
3. On 14 January 2022, the Tribunal decided to set aside the ATI objection decision, and in substitution, decided that the second respondent's adjusted taxable income should be applied to the child support assessment from the start of a new child support period commencing on 1 November 2020 ('the ATI time period decision').[10]

1. On 20 February 2022, the applicant filed a Notice of Appeal in this court from the ATI time period decision in separate proceedings LNG 9 of 2022.
2. On 12 January 2024, the ATI time period decision was set aside and the matter was remitted to the Tribunal pursuant to orders of her Honour Judge Taglieri.[11]
3. The issue on remittal before the Tribunal was confined to relate to the decision of the delegate of the first respondent to administratively assess the second respondent's adjusted taxable income in the 2020 financial year as $94,811 for the child support period commencing 1 November 2020.

1. It is against this procedural background that, on 22 August 2024, the Tribunal upheld the decision of the first respondent in relation to the second respondent's adjusted taxable income in the 2020 financial year. The Tribunal on that occasion, was constituted by Deputy President E who was sitting in its Social Services & Child Support Division.
2. The Notice of Decision attached to the Tribunal's decision record dated 5 September 2024 provided that:

[The applicant] may appeal the AAT's decision on a question of law to the Federal Circuit and Family Court of Australia. However, if the AAT was constituted by the President or a Deputy President, [the applicant will] have to appeal to the Federal Court of Australia ...

1. On 30 September 2024, the applicant lodged a Notice of Appeal giving rise to these proceedings.

1. Section 44 of the Act set out the relevant avenues of appeal that were available from decisions of the Tribunal.
2. Relevantly, section 44 of the Act provided:

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

...

Note 2: A party to a child support first review may in some instances appeal instead to the Federal Circuit and Family Court of Australia (Division 2) (see section 44AAA).

(1A) Subsection (1) does not apply in relation to a proceeding in the Social Services and Child Support Division, other than a proceeding:

1. Section 44AAA of the Act, pursuant to which the applicant purports to have applied to this court relevantly provided:

(1) If the Tribunal as constituted for the purposes of a proceeding that is a child support first review does not consist of or include a presidential member, a party to the proceeding may appeal to the Federal Circuit and Family Court of Australia (Division 2) on a question of law, from a decision of the Tribunal in that proceeding.

1. Section 44(3) of the Act set out the jurisdiction of the Federal Court of Australia over appeals instituted from the Tribunal. Relevantly, section 44(3) of the Act provided that:

(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction:

...

(b) shall be so exercised if:

(i) the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Deputy President who is not a Judge...

1. Section 3(1) of the Act also defined 'presidential member'. Relevantly, section 3(1) provided that:

...

presidential member means the President or a Deputy President.

1. To the extent that it is relevant to determine the meaning of "first review" under the Act, item 2 to section 89 of the Child Support (Registration and Collection) Act 1988 provided that a first review may relate to a decision on an objection to a decision of the Registrar.
2. Therefore, on a plain reading of the legislation, this Court's jurisdiction to hear the applicant's appeal in this proceeding rests upon whether:

(a) the matter on appeal can be categorised as a "first review" within the meaning of section 44(1) and 44AAA of the Act; and

(b) the Tribunal was constituted by a presidential member at the time the decision was made in accordance with section 44(3) of the Act.

1. In relation to the issue of whether the matter was heard by the Tribunal on first review, the applicant submits that:[12]

...

1. This Appeal has been before the Administrative Appeals Tribunal, for what has been the Third Review.

2. There is no meaning for a Third Review, and is no longer classed as a first review, as the member is not only acting on the original objection application but also the two Tribunal member (sic) before and the findings of the court and acted on those findings.

...

1. Section 44(1A) of the Administrative Appeals Tribunal Act 1975 till 13 October, does not apply to a proceeding in the Child Support Division, unless it is a child support first review, this is not a first review, this also rules out section 44AAA(1) is applying to a first review, and therefore the Federal Circuit and Family Court of Australia Division 2, 44AAA(4) does not affect the operation of subsection 44(1) from any decision, Jurisdiction of the Federal Court, s 44(3) in accordance with subsections (1) and (2) does not apply to Child Support.

1. In oral submissions, the first respondent asserted that each time the matter was heard by the Tribunal it was, in essence, heard afresh. On that basis, the first respondent submits that the matter was decided on a first review in the sense contemplated by the Act, and that the appeal ought to have been instituted in the Federal Court of Australia pursuant to section 44(1) by consequence.

1. In relation to the issue of whether the Tribunal was constituted by a presidential member for the purposes of section 44(3) of the Act, the applicant submits that at the time that her matter was allocated to: [13]

...

1. The allocation of the proceeding was to a senior member, all directions were that of a Senior Member.

1. In oral submissions, the applicant also asserted that at the time the matter was remitted to the Tribunal in January 2024, the relevant Tribunal member docketed to the matter was a senior member. It was suggested that the Tribunal member was appointed as Deputy President over the course of dealing with the matter.
2. As I understand it, on that basis, the applicant submits that the relevant time at which the status of the member who made the decision should be ascertained should be at the time that the matter was remitted to the Tribunal. On that basis, the applicant submits that the matter was determined by a senior member, and the appeal has been validly made through section 44AAA of the Act.
3. The respondent submits that, for the purpose of the court's inquiry as to jurisdiction to hear the appeal, the relevant point of time to determine the status of the Tribunal member is when the decision is made. Further, the respondent submits that the only evidence before the court is the decision record which sets out the Tribunal's constitution at the relevant time.

1. As I understand the applicant's primary submission, the applicant asserts that the matter cannot be considered a first review within the meaning of the Act as it has been the subject of judicial review and previously remitted to the Tribunal. On that basis, as the matter has been before the Tribunal three times, the applicant submits that the decision was made on a 'third review' and therefore is not a 'first review'.
2. The term "first review" as it related to child support proceedings was relevantly defined in section 3(1) of the Act in the following terms:

...

child support first review means a proceeding that is or would be proceeding in the Social Services and Child Support Division on application for AAT first review within the meaning of the Child Support (Registration and Collection) Act 1988.

1. The application for review filed by applicant falls within this definition. The fact that there had been prior reviews which were remitted for various reasons, does not alter that conclusion. For that reason, the applicant's argument that the application to the Tribunal was not a 'first review' is not accepted.

1. As I understand the applicant's argument in this regard, in essence she submits that the member who ultimately determined this review, was not a presidential member at the time that the review was allocated to her.
2. There are two reasons why this submission cannot be accepted.
3. First, there is no evidence before the Court that the underlying premise of this submission is made out. The evidence that is before the Court, namely the decision itself, establishes that the decision the subject of this application was made by Deputy President E. On the face of that decision, it was made by a presidential member as defined.
4. It is clear on a fair reading of the Act that if the appeal is from a presidential member, including, a Deputy President, that such an application cannot be made to this court, but rather can only be made to the Federal Court.

1. In submissions, the first respondent indicated that notwithstanding the lack of merit to the application, it would not seek costs against the applicant if successful.

1. For each of these reasons, this court does not have jurisdiction to deal with the applicant's application for review.
2. I therefore make the orders set out at the commencement of these written reasons for judgment.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

[1] Orders of Deputy Chief Judge Mercuri dated 4 November 2024.

[2] Tribunal decision record dated 22 August 2024 at paragraph [3].

[3] Tribunal decision record dated 22 August 2024 at paragraph [3].

[4] Tribunal decision record dated 22 August 2024 at paragraph [4].

[5] Tribunal decision record dated 22 August 2024 at paragraph [4].

[6] Tribunal decision record dated 22 August 2024 at paragraph [5].

[7] Tribunal decision record dated 22 August 2024 at paragraph [5].

[8] Notice of Appeal filed 3 August 2021 in proceedings LNG 41 of 2021.

[9] Orders of Judge Taglieri dated 24 September 2021 in proceedings LNG 41 of 2021.

[10] Tribunal decision record dated 22 August 2024 at paragraph [7].

[11] Orders of Judge Taglieri dated 12 January 2024.

[12] Applicant's Outline of Submissions filed on 25 November 2024.

[13] Applicant's Outline of Submissions filed on 24 November 2024.