FEDERAL COURT OF AUSTRALIA

Child Support Registrar v MQMV [2019] FCA 1171

ORDERS

THE COURT ORDERS THAT:

1.    The Originating Application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1    The issue to be resolved in the present proceeding is a question as to the jurisdiction of the Administrative Appeals Tribunal (the “Tribunal”) with respect to a decision taken under the Child Support (Registration and Collection) Act 1988 (Cth) (the “Registration Act”). The decision concerned the percentage of care exercised with respect to a child by his father.

2    In August 2018, in Re MQMV and Child Support Registrar (Child Support Second Review) [2018] AATA 2924 the Tribunal concluded that it did have jurisdiction to review a decision previously made by the Social Services & Child Support Division of the Tribunal in November 2017. In doing so, the Tribunal in August 2018 “overruled” the Child Support Registrar’s (the “Registrar”) objection to jurisdiction.

3    In September 2018, the Registrar filed in this Court an Originating Application. In summary form, the Registrar contends that the Tribunal erred and that it did not have jurisdiction. The First Respondent, identified by the pseudonym MQMV, is the father of the child. The Second Respondent is the Tribunal. The Third Respondent, identified by the pseudonym FUE18, is the mother of the child.

4    The father has taken no part in the present proceeding. The Tribunal filed a Submitting Notice save as to costs. The mother was added as a party to the proceeding in November 2018 but was excused from participating in the proceeding. In order to ensure that any position contrary to that being advocated by the Registrar was entertained, the Court secured the appointment of an Amicus Curiae/Contradictor (the “Amicus”).

5    Counsel for the Registrar and for the Amicus adopted competing positions. Contrary to the position of Counsel for the Registrar, the Amicus contended that the Tribunal had correctly concluded that it had jurisdiction.

6    The proceeding first came before the Court for hearing on 7 March 2019. On that occasion Counsel for the Registrar sought – and was granted – an adjournment. There was no appearance for the Respondents. The hearing resumed on 3 April 2019. Again there was no appearance by the Respondents.

7    It is concluded that the Tribunal was correct in assuming jurisdiction.

8    As the Registrar agreed at the outset to pay the costs of the Amicus, there is no necessity to make any order as to costs.

The background facts

9    The relevant decision-making chain, with respect to the father’s claim as to the care of his son, can be traced back to October 2015. The father was then advised that the Child Support Agency (the “Agency”) had recently received information about his percentage of care for his son. The Agency advised him that its records showed that he had “22% care … from 23 September 2015”. The Agency advised that this “updated percentage of care will continue to apply unless any carer…notifies the [Agency] of a change in care”.

10    In March 2017, the father claimed that he then had 100% care as from 29 March 2017.

11    In May 2017, the Agency again wrote to the father. It advised that it had “recently received new information about … the care arrangements” for the son but had “decided that the new information does not require a change in your child support assessment at this time…”. The decision recorded that it was a “decision … to reject the carer’s request for a new determination of care percentage…”.

12    The father objected to the May 2017 decision. He continued to maintain that he had 100% care of his son in the relevant period.

13    On 7 July 2017, the Agency wrote to the father and advised that it had “disallowed the recent objection to Child Support’s decision on 2 May 2017 to refuse to record that [he] has 100% care … from 29 March 2017”. The details of the decision enclosed with the July 2017 letter identified the decision under review as follows:

DECISION UNDER REVIEW

Child Support’s decision on 2 May 2017 to refuse to record that [the father] has 100% care of [his son] from 29 March 2017.

[The father] has objected to this decision on the grounds that that [his son] was in his 100% care until 1 May 2017.

In considering this objection, a full merit review of the original decision has been conducted.

This means that we have examined and evaluated all the relevant information in order to reach a conclusion based on the relevant facts of the case and how the law is applied to those facts.

You can find more information in The Child Support Guide (our online guide to administration of the Child Support Scheme) by going to guides.dss.gov.au/child-support-guide and refer to chapter 2 and 4.

In providing reasons for its decision, the Agency stated:

In considering [the father’s] objection Child Support will look at making the following care percentage determination:

- A determination of the percentage of the actual care that each parent provides [sections 49 and 50 of the Child Support (Assessment) Act 1989].

In order for section 49 to apply, we need to determine the actual care that each parent provides and determine if each parent has had a pattern of care for that child.

In this case, [the father] stated that he had 100% care of [his son] up until 1 May 2017, however the evidence he provided implies that [the son’s] care continued to be divided between [the father] and [the mother] from 30 March 2017.

[The mother] disputed the objection and provided evidence that supports that she and [the father] continued to share the care and responsibility for [the son] from 29 March 2017.

We [have] reviewed the evidence existing on the case and that provided by both parents during the objection process and the original decision. As we have not been able to make a clear determination about the pattern of care, the decision made by Child Support on 2 May 2017 to refuse to record that [the father] has 100% care of [the son] from 29 March 2017, is affirmed.

[The father’s] objection is disallowed.

The July 2017 letter also advised the father that he could “ask the Administrative Appeals Tribunal … to review” the decision if he thought it was “wrong”.

14    The father then sought review of the July 2017 objection decision. That application was then resolved by a member of the Social Services & Child Support Division of the Tribunal in November 2017. The Member, in her Reasons for Decision, set out the issues to be resolved as follows (without alteration):

12.    The issues to be considered by the tribunal are:

•    Should the existing determination of percentage of care be revoked? If so, from when should it be revoked?

•    Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

The Tribunal affirmed the decision under review. The Member decided that there “was no change in the likely pattern of care as at 29 March 2017”.

15    The father then sought review of the November 2017 decision of that Division of the Tribunal.

16    In August 2018, the General Division of the Tribunal published its reasons for concluding that it did have jurisdiction: [2018] AATA 2924. It is this August 2018 decision of the Tribunal which is now under review.

Assessment and revocation decisions & AAT review – the legislative provisions

17    Of present relevance are the powers conferred by:

    the Child Support (Assessment) Act 1989 (Cth) (the “Assessment Act”) to make determinations as to the “percentage of care” being exercised with respect to a child and the power to revoke such determinations; and

    the jurisdiction conferred on the Tribunal by the Registration Act.

18    Section 5 of the Assessment Act defines “percentage of care”, in relation to a responsible person for a child, as meaning “the responsible person’s percentage of care for the child that is determined by the Registrar under Subdivision B of Division 4 of Part 5”.

19    As the title to Pt 5 of that Act makes apparent, Pt 5 provides for the “Administrative assessment of child support”.

20    Within Subdiv B of Div 4 of Pt 5, s 49 addresses (inter alia) the manner of determining the percentage of care where a responsible person has had no pattern of care for a child and s 50 addresses those circumstances in which a responsible person has had a pattern of care for a child.

21    Subdivision C, within Div 4 of Pt 5, provides for the revocation of a determination that has been made as to the percentage of care. Within that subdivision, provision is made (for example) for the mandatory revocation of a determination of a responsible person’s percentage of care (s 54F) and for the discretionary revocation of an existing determination (s 54H). Section 54F (for example) in May 2017 provided, in part, as follows:

Determination must be revoked if there is a change to the responsible person’s cost percentage

(1)    If:

(a)    a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and

(b)    if section 51 or 52 applied in relation to the responsible person – the interim period for the determination has ended; and

(c)    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

(d)    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

(e)    section 54G does not apply;

the Registrar must revoke the determination.

Section 54F(1) currently provides as follows:

Determination must be revoked if there is a change to the responsible person’s cost percentage

    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).

22    The relevant jurisdiction vested in the Tribunal is to be found within Pt VIIA of the Registration Act. Within Pt VIIA, jurisdiction is vested in the Tribunal to undertake both what are characterised as:

    “AAT first review” (being found within Div 2); and

    “AAT second review” (being found within Div 4).

The “[s]implified outline” of Pt VIIA thus provides in s 87A, in part, as follows:

Certain decisions made by the Registrar on reconsideration under Part VII are reviewable by the AAT. A person may apply to the AAT for review of such a decision (an “AAT first review”).

The person may apply to the AAT for a further review (an “AAT second review”) if the person is dissatisfied with any of the following decisions of the AAT:

(a)    a decision to refuse an extension of time for a person to make an application for AAT first review;

    (b)    a decision on AAT first review of a care percentage decision;

(c)    a decision in relation to the date of effect of a decision on AAT first review of a care percentage decision.

The expression a “care percentage decision” is defined in s 4 of that Act as meaning:

… 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.

23    Jurisdiction is conferred upon the Tribunal to undertake a “first review” of those decisions identified in the table set forth in s 89 of the Registration Act. That table provides as follows:

24    The jurisdiction vested in the Tribunal to undertake a “second review” is that set forth in s 96A, within Div 4 of Pt VIIA, of the Registration Act. The identification of the decisions of the Tribunal that are susceptible to “second review” are expressed, by way of contrast, in less simple terms. Section 96A provides as follows:

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.

Section 96A was inserted by way of amendment by the Tribunals Amalgamation Act 2015 (Cth). The provision of present relevance is s 96A(b).

25    The close interrelationship between the Assessment Act and the Registration Act is underscored (inter alia) by the reference within the definition of “care percentage decision” in s 4 of the Registration Act to provisions within the Assessment Act.

The decision-making chain in the present proceeding

26    With reference to this statutory structure, it was common ground between the parties that:

    for the purposes of the present proceeding, and using the language of the Registration Act, the May 2017 decision was the original decision;

    the July 2017 decision (the objection decision) was a decision made under s 87(1) of the Registration Act. As such, it fell within Item 2 of s 89 of that Act and was susceptible to Tribunal “first review”;

    the July 2017 decision was the consideration of the objection to the original decision which had been lodged by the father;

    the father could seek review of the July 2017 decision by the Tribunal; and

    in entertaining the review of the July 2017 decision, the Tribunal, when reaching its November 2017 decision, was exercising the jurisdiction to undertake a “first review”, being that jurisdiction conferred by Item 2 of s 89 of the Registration Act.

27    The question to be resolved is the next step in this decision-making chain, namely whether the August 2018 decision was a review of “a decision … on AAT first review of a care percentage decision”.

28    For the purposes of s 96A(b), it is concluded that:

    the “decision under subsection 43(1)” was the decision made by the Tribunal in November 2017, that being an “AAT first review”; and

    the November 2017 decision was “a first review of a care percentage decision”, that “care percentage decision” being the one made in July 2017.

It is the last step in this analysis which divides the Registrar and the Amicus. Expressed differently, rather than characterising the July 2017 decision solely as:

    a decision to reject the father’s objection under s 87 of the Registration Act;

it is also properly to be characterised as:

    a “decision involv[ing] (wholly or partly)… a determination of a person’s percentage of care for a child made under” s  50, that being “a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act” and being the “determination” made in October 2015.

29    These conclusions obviously largely turn upon the correct interpretation of the definition in s 4 of the Registration Act and its application to the facts.

The determination of the father’s percentage of care and subsequent decisions

30    The definition in s 4 of the Registration Act of a “care percentage decision” uses both the terms “decision” and “determination”. The difference in language, it is considered, was deliberate and assumes relevance.

31    The “determination” as to the father’s “percentage of care” for his son, which he was seeking to challenge, had been made in October 2015. The May 2017 decision, as described in the July 2017 decision, “refuse[d] to record” the father’s claim that he had 100% care of his son and further, according to the notes regarding the May 2017 decision, that decision was expressed to be a decision “to reject the carer’s request for a new determination of care percentage”. The father then invoked his statutory right to have an objection to that “decision” considered by the Registrar pursuant to s 87 of the Registration Act. The July 2017 decision was that the objection made by the father was disallowed and there was to “be no change to the assessment”.

32    Subsequent to both the May and July 2017 decisions, the “determination” which continued to fix the father’s “percentage of care” remained that which was first made in October 2015. Attempts to challenge that determination had been “rejected” or “disallowed”.

33    For the purposes of the definition of a “care percentage decision”, the “determination” which had been made as to the father’s percentage of care was that made in October 2015. Later decisions affirming that October 2015 “determination”, or declining to vary that “determination”, were not the “determination” referred to in the definition of a “care percentage decision” for the purposes of s 4 and thereafter in s 96A(b).

34    That remains so even though, as the Amicus pointed out, a decision made under s 87 not to allow an objection may well involve much the same factual analysis as was undertaken in October 2015, even though by reference to presumably more up-to-date information. And, further, the legal and practical effect of not upholding the objection may have just as much an immediate impact upon the father as did the October 2015 “determination”. The father wanted the existing “determination” changed and he was unsuccessful in changing his entitlements.

A decision involving wholly or partly review of a determination

35    That which fixed the jurisdiction of the Tribunal to undertake a “second review” was the character of the decision being previously reviewed; for the Tribunal to undertake a “second review” the “first review” had to be (inter alia) the “review of a care percentage decision”.

36    The “first review” was that undertaken by the Social Services & Child Support Division of the Tribunal in November 2017. As expressed in the reasons provided by that Division, the decision then being reviewed was (without alteration) the “objection officer’s decisions”. That being the decision made in July 2017 and taken pursuant to s 87 of the Registration Act.

37    The July 2017 decision, however, was not the “determination” which fixed the father’s percentage of care. It is, however, concluded that it was a “decision involv[ing] (wholly or partly)” a review of that “determination”.

38    This conclusion, it is respectfully considered, gives effect to the natural and ordinary meaning of the terms employed in the definition in s 4. It is also supported by the legislative context in which the definition is employed. The contrary submission of the Registrar, with respect, fails to give effect to the phrase in s 4 “wholly or partly”.

39    Unlike the simplicity of language employed in s 89, the language employed in s 96A(b) gives rise to initial uncertainty.

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) 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) 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) 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).

41    There is no uncertainty in discerning a legislative intent to:

    confine the ability of the Tribunal to undertake a “second review” by means of reference to Subdiv B of Div 4 of Pt 5 of the Assessment Act – so much follows from the express reference in the definition of a “care percentage decision” in s 4 of the Registration Act to Subdiv B but not Subdiv C of Div 4 of Pt 5 of the Assessment Act.

There is similarly a discernible legislative intent:

    to limit the category of decisions that could be reviewed by employing the phrase “to the extent”;

but conversely there is a clear legislative intent:

    to also convey the width of the boundary of the category of decisions that could be reviewed by employing the terms “particulars” and “involves” and the phrase “wholly or partly”.

42    But there the certainty ends. Where the boundary of the category of decisions that were susceptible of “second review” was to be drawn initially remained an elusive exercise.

43    A reference to the range of the potentially relevant decisions provided a fertile field for those advocating uncertainty in meaning. The making of the decision under s 54F of the Assessment Act (for example) – being a decision to revoke an existing “determination” and a decision made under Subdiv C of Div 4 and not Subdiv B – also necessitates the making of a new “determination” under s 49 or s 50, being provisions found within Subdiv B. On the approach of the Registrar, a decision under s 54F would not be susceptible to “second review” by the Tribunal because it was not made under Subdiv B of Div 4 of Pt 5 of the Assessment Act. Similarly, so it was submitted, the making of a decision under s 87 of the Registration Act and the resolution of an objection was not susceptible to “second review”, again because it was not made under Subdiv B. This was so even though the decision made under s 87 had the legal effect of remaining on foot a prior determination as to the percentage of care being exercised.

44    But all such examples as were given had the temptation to divert attention from the words employed in s 96A(b) and the definition in s 4 in the Registration Act. If attention is focused upon the words employed, it would seem apparent that the Commonwealth Legislature:

    when conferring jurisdiction, in s 89, on the Tribunal to undertake a “first review” did so with a considerable degree of precision as evidenced by the identification of the statutory source of power to make the decision sought to be reviewed;

but when conferring jurisdiction on the Tribunal pursuant to s 96A(b) to undertake a “second review”:

    evidenced a deliberate legislative intent to be more expansive and less confining in identifying the decisions of the Tribunal that would be susceptible to review, as evidenced by a deliberate intent not to prescribe the boundaries of that jurisdiction by reference to specific sources of statutory power but rather by reference to the more broadly expressed definition of a “care percentage decision”.

45    Properly construed, it is considered that the definition in s 4 of a “care percentage decision”, as embraced by s 96A(b), was a deliberate choice made by the Commonwealth Legislature to:

    identify determinations made “under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act” as the core element of the decisions susceptible of “second review”

but:

    not to confine the decisions susceptible to “second review” by reference to the source of those statutory powers found exclusively in Subdiv B of Div 4 of Pt 5 of the Assessment Act.

Such a construction simply gives effect to the terms employed in s 96A(b) and s 4. The difference in the terms in which jurisdiction is conferred by s 89 and s 96A(b) assumes significance. Whereas the Commonwealth Legislature saw fit to identify a discrete number of decisions as susceptible to “first review” and did so by reference to the specific source of power being exercised, when conferring jurisdiction to undertake a “second review” it was the character of decisions which were susceptible to review that was seized upon. In not identifying specific sources of statutory power, the drafting of s 96A(b) evidences a deliberate legislative choice to leave a wider category of decisions susceptible to review – subject only to the constraint that the decisions to be so reviewable involved in whole or in part a determination as to the percentage of care. And that was so irrespective of whether the statutory source of power of the specific decision under review was to be found within Subdiv B.

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…”. A decision to affirm a decision as to an existing determination of a parent’s percentage of care, or a decision to disallow an objection made to an existing determination, is such a decision. It is a decision which, at least in part, “involves” a decision that the existing “determination” remained appropriate. Similarly, a decision made under s 54F to revoke a “determination” may not itself be the making of a “determination” under ss 49 or 50 of the Assessment Act to replace the existing “determination” but it is a decision “involv[ing]” the existing determination; the existing “determination” is immediately involved in the making of a revocation decision under s 54F because it is a decision that the existing “determination” is to be set aside.

47    On any construction of ss 96A(b) and 4, the availability of “second review” was not sought to be confined by the Commonwealth Legislature to only the making of a new “determination”. So much was denied (inter alia) by the use of the phrase “involves (wholly or partly)”.

48    This more expansive construction of ss 96A(b) and 4 is not only driven by the terms employed by the manner in which those provisions are drafted but is further supported by two further considerations.

49    First, the legislative history leading to the introduction by way of amendment in 2015 of s 96A(b) tends to suggest that no change was intended to be effected to the prior structure for review which contemplated both review of comparable decision by the SSAT and thereafter for review by the Tribunal. The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) thus referred to the “new section 96A” and “application[s] for AAT second review” and stated that “[t]hese categories of decision are the same as the SSAT decisions in respect of which a person may currently seek AAT review, under … s103VA” and that “there would be no change to existing policy”: at para [1440]. The reference to s 103VA was a reference to the terms of s 103VA of the Registration Act which provided, prior to the amalgamation of the Tribunals, as follows:

A party to a review aggrieved by a decision of the SSAT under this Part relating to a party’s percentage of care for a child may apply to the AAT for review of that decision.

50    Second, the construction now advocated in the present case on behalf of the Registrar as to unavailability of “second review” of decisions other than those taken under Subdiv B does not sit comfortably with the fact that “second review” is available with respect to comparable decisions made under the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the “Family Assistance Administration Act”). This Act, the Assessment Act and the Registration Act were obviously intended to operate in tandem. So much is evident from (inter alia):

    the comparable definitions of a “care percentage decision” – that phrase being defined in s 3 of the Family Assistance Administration Act in similar terms as the definition in s 4 of the Registration Act; and

    the express reference in the Assessment Act to the Family Assistance Administration Act: e.g. in s 54L of the Assessment Act.

Under s 128 of the Family Assistance Administration Act provision is made for “second review” by the Tribunal of an earlier decision of the Tribunal. Section 128 thus provides, in part, as follows:

Application for AAT second review

(1)    Application may be made to the AAT for review (AAT second review) of a decision made by the AAT under subsection 43(1) of the AAT Act on AAT first review.

(2)    For the purposes of subsection (1), the decision on AAT first review is taken to be:

   (a)    if the AAT affirmed a decision—the decision as affirmed; and

   (b)    if the AAT varied a decision—the decision as varied; and

(c)    if the AAT set a decision aside and substituted a new decision—the new decision; and

(d)    if the AAT set a decision aside and sent the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.

Although the very different terms employed in s 128, when compared to s 96A(b) of the Registration Act, obviously make the availability of “second review” under the Family Assistance Administration Act apparent, the incongruity as to the availability of “second review” remains if the Registrar’s position was to prevail.

51    Although the contrary construction advanced by Counsel on behalf of the Registrar has great merit, it is nevertheless considered that the jurisdiction conferred on the Tribunal under the Registration Act is not as confined as suggested.

52    The Tribunal in the present case was correct in assuming jurisdiction to undertake a “second review”.

What is left over

53    The conclusion that the Tribunal did have jurisdiction to undertake a “second review”, even though the July 2017 decision (to disallow the objection to the original decision which refused to record a change to the October 2015 “determination”) was taken under s 87 of the Registration Act (that not being a provision found within Subdiv B of Div 4 of Pt 5 of the Assessment Act), leaves open a potentially worrying concern as to what decisions would not be susceptible of “second review”.

54    If ss 4 and 96A(b) do not confine the decisions susceptible to “second review” to only those decisions taken under Subdiv B of Div 4 of Pt 5 of the Assessment Act, and extends the availability of “second review” to other decisions “involv[ing] (wholly or partly)… a determination of a person’s percentage of care”, a question arises as to whether the reference to “a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act” serves any useful purpose. The reference to a provision under Subdiv B, obviously enough, serves as a core element in identifying those decisions susceptible of “second review”.

55    A conclusion that decisions, albeit decisions not taken under Subdiv B, may nevertheless be susceptible of “second review” by reason of (inter alia) the phrase “wholly or partly”, nevertheless confines the decisions susceptible of “second review” to those which fall within s 96A(b) and the definition in s 4.

56    Albeit unnecessary to decide, decisions which would not be susceptible of “second review” would include:

    an assessment as to a parent’s child support income under s 41 of the Assessment Act; and

    an assessment as to a parent’s adjusted taxable income under s 43 of the Assessment Act.

These two examples are by no means exhaustive. But they serve to make good the point that the ambit of operation given to ss 4 and 96A(b) does not mean that all decisions made under the Assessment Act are susceptible to “second review”. The terms of s 96A(b) and the reference in the s 4 definition of a “care percentage decision” to decisions “involving” decisions which either in whole or in part have at their core a determination made under Subdiv B of Div 4 of Pt 5 of the Assessment Act serve as a useful identification of those decisions which are – and those decisions which are not – susceptible to “second review”.

57    Just as it was imperative for the Amicus to establish that the phrase “wholly or partly” did not have the consequence of making all decision making under the Assessment Act susceptible to “second review” and that the definition served as a useful identification of the outer boundaries of what was so reviewable, it was equally important for Counsel for the Registrar to identify what decisions, other than those made under Subdiv B, were susceptible to “second review”. Counsel rejected the prospect that revocation decisions made under s 54F, for example, could fall with the definition. That could have been so because a decision under s 54F necessarily thereafter involved the making of a new “determination”, as the “note” to s 54F makes clear. It could also potentially have been said that a decision under s 54F at least in “part” was a decision “involving” an existing determination. But the rejection of that prospect, with respect, left Counsel for the Registrar with no explanation as to what decisions other than those made under Subdiv B were susceptible to “second review”.

58    Meaning has to be given to the phrase in the s 4 definition: “… to the extent that the decision involves (wholly or partly) …a determination of a person’s percentage of care of a child…”. The case advanced on behalf of the Registrar left no room for this phrase to operate.

CONCLUSIONS

59    The construction given to ss 4 and 96A(b) of the Registration Act gives effect to the words employed in those sections. That construction is further supported by the legislative history out of which s 96A(b) emerged and gives effect to a consistency of available means of review with respect to the regime which the Registration Act, the Assessment Act and the Family Assistance Administration Act forms part.

60    The Tribunal, when making its decision in August 2018, was correct in concluding that it had jurisdiction.

THE ORDER OF THE COURT IS:

The Originating Application is dismissed.

Associate:    

Dated:    31 July 2019