Federal Court of Australia

BEG26 v Child Support Registrar [2026] FCA 892

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Review Tribunal made on 9 January 2026 be set aside.

3.    In lieu thereof, there be substituted a decision that the decision of a delegate of the first respondent dated 28 September 2024, allowing the second respondent’s objection and refusing the applicant’s application for administrative assessment of child support, be set aside.

THE COURT DECLARES THAT:

1.    The purported decision of a delegate of the first respondent made on 18 September 2024, to grant the second respondent’s application to consider her objection despite the period fixed by s 81(1) of the Child Support (Registration and Collection) Act 1988 (Cth) ending, is invalid.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The applicant, BEG26, is the grandmother of J. J is the son of the second and third respondents, BEH26 and BEI26. J came to live with BEG26 in late October 2022. On 22 November 2022, BEG26 lodged an application for administrative assessment of child support in respect of J. At that time, BEH26 confirmed that BEG26 had 100% support of J. On 5 December 2022, a delegate of the first respondent, the Child Support Registrar (Registrar), decided to accept BEG26’s application (child support decision). The consequence of the child support decision was that BEH26 and BEI26 became liable to pay child support to BEG26.

2    On 7 June 2024, BEH26 lodged an objection to the child support decision, which included a request for the Registrar to consider the objection despite its having been lodged after the end of the prescribed period in which an objection was to be lodged. On 18 September 2024, a delegate of the Registrar purported to grant BEH26’s application for her objection to be considered despite the period ending. On 28 September 2024, a delegate of the Registrar made a decision to allow BEH26’s objection and to refuse BEG26’s application for administrative assessment of child support (objection decision).

3    On 13 January 2025, BEG26 applied to the Administrative Review Tribunal (Tribunal) for review of the delegate’s decision to allow the objection and reject the application for child support. On 9 January 2026, the Tribunal made a decision affirming the decision under review: Keenan and Gathercole (Child support) [2026] ARTA 466. The names used in the published decision of the Tribunal are pseudonyms.

4    BEG26 now appeals to this Court against the decision of the Tribunal, pursuant to s 172(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Neither BEH26 nor BEI26 filed a notice of appearance or otherwise took part in the appeal.

5    The Registrar agrees with the position of BEG26 that the appeal should be allowed, on the basis that the Tribunal’s decision was affected by the errors identified in grounds 1 and 3 of BEG26’s amended notice of appeal. For the reasons that follow, I accept that the decision of the Tribunal was affected by those errors and must be set aside.

Relevant legislative provisions

6    Section 25A of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) provides that a person who is not a parent of a child may apply to the Registrar for administrative assessment of child support for the child if they are an “eligible carer” of the child, and if various other conditions are satisfied. Section 27 of the Assessment Act provides that an application for administrative assessment of child support must be made to the Registrar in the manner specified by the Registrar. Section 30(1) of the Assessment Act provides that, “[i]f the Registrar is satisfied that an application has been properly made for administrative assessment of child support for a child, the Registrar must accept the application”. That is the provision pursuant to which the child support decision was made.

7    Part VII of the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act), comprising ss 79D-87AA, is entitled “Internal objection procedures for certain decisions”. Section 80(1) of the Registration and Collection Act provides that a person may lodge an objection in writing to a decision of the Registrar of any of the kinds set out in the table therein. Relevantly for the present case, the decisions against which an objection may be lodged include a decision “to accept an application for administrative assessment of child support for a child under subsection 30(1) of the Assessment Act”.

8    Section 81(1) of the Registration and Collection Act relevantly provides that an objection to a decision must be lodged by a person within 28 days after a notice of the decision is served on the person. In this case, notice of the child support decision was sent to BEH26 on 5 December 2022.

9    Section 82 of the Registration and Collection Act provides:

82 Applications for extensions of time

(1)    A person may lodge an objection under this Part after the period for lodging such an objection has ended if, at the time of lodging the objection or a later time, the person applies to the Registrar to consider the objection despite the period ending.

(2)    The application must state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection as required by section 81.

(3)    The application must be made in the manner specified by the Registrar.

10    In this case, BEH26’s objection was not lodged until 7 June 2024, 550 days after notice of the child support decision was sent to her, and thus well outside the 28-day period fixed by s 81(1) of the Registration and Collection Act. BEH26’s objection was accompanied by an application to the Registrar to have him consider the objection despite the failure of BEH26 to lodge it until after the period for lodging it had ended.

11    Section 83 of the Registration and Collection Act relevantly provides:

83 Consideration of applications for extensions of time for lodging objections

(1)    If an application is sent to the Registrar under section 82 in relation to an objection under this Part, the Registrar must:

(a)    consider the application; and

(b)    within 60 days after the application is received by the Registrar:

(i)    either grant or refuse the application; and

(ii)    if the application is granted—deal with the objection under subsection 87(1).

…

(2)    If the Registrar does not either grant or refuse to grant the application within the period applicable under subsection (1) or (1A), the Registrar is taken, at the end of that period, to have refused to grant the application.

(3)    The Registrar must serve notice in writing of the decision on the person who made the application.

(4)    The notice must include, or be accompanied by:

(a)    the reasons for the decision; and

(b)    a statement to the effect that, if the person is aggrieved by the decision, application may be made, subject to this Act and the ART Act, to the ART for review of the decision.

(5)    A contravention of subsection (4) in relation to a decision does not affect the validity of the decision.

(6)    If an application under subsection 82(1) is granted, the person who made the application is, for the purposes of this Act, taken to have duly lodged the objection to which the application relates.

12    In the present case, the purported decision of the delegate to grant BEH26’s application under s 82 of the Registration and Collection Act was made on 18 September 2024. Although this was, precisely described in the language of s 82(1), a decision to grant BEH26’s application for the Registrar to consider BEH26’s objection despite the period of 28 days, fixed by s 81(1), having ended, it is convenient to adopt the shorthand terminology that is reflected in the provisions of the Registration and Collection Act itself, and to refer to the decision of 18 September 2024 as the “extension of time decision”. The extension of time decision was made outside the period of 60 days from the date on which that application was lodged, being the period within which the Registrar was required by s 83(1)(b)(i) of the Registration and Collection Act to make a decision to either grant or refuse BEH26’s application under s 82.

13    Section 85(1) of the Registration and Collection Act relevantly provides that, if a person objects to a decision to accept an application for administrative assessment of child support for a child under s 30(1) of the Assessment Act, the Registrar must, as soon as practicable, serve a copy of the objection, and any document that accompanied the objection, on the applicant for administrative assessment of child support (ie, in this case, BEG26).

14    Section 87(1) of the Registration and Collection Act provides that, if an objection is “lodged under this Part” (that is, Part VII of the Registration and Collection Act), the Registrar must consider the objection and, within 60 days after the objection is lodged, either disallow the objection or allow it in whole or in part.

15    Part VIIA of the Registration and Collection Act is entitled “Review by ART”. Within that Part, s 89(1) provides that an application may be made to the Tribunal for review of a decision of the Registrar if the decision is set out in an item of the table in s 89(1) and if the person making the application is set out in that item. Relevantly for present purposes, items 1 and 2 of the table provide as follows:

16    In the present case, BEG26 applied to the Tribunal for review of the objection decision pursuant to s 89(1) of the Registration and Collection Act.

17    Except insofar as they were disapplied by the Registration and Collection Act, the provisions of the ART Act applied to the Tribunal’s review of the decision. Relevantly, s 105 of the ART Act sets out the powers exercisable by the Tribunal in determining a review of a reviewable decision:

105 Tribunal decision on review of reviewable decision

In relation to the reviewable decision, the Tribunal must make a decision:

(a)    affirming the reviewable decision; or

(b)    varying the reviewable decision; or

(c)    setting aside the reviewable decision and:

(i)    making a decision in substitution for the reviewable decision; or

(ii)    remitting the matter to the decision‑maker for reconsideration in accordance with any orders or recommendations of the Tribunal.

18    Section 54 of the ART Act should also be noted. It provides:

For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision‑maker by an Act or an instrument made under an Act.

19    Section 172(1) of the ART Act entitles a party to appeal to this Court, on a question of law, from a decision of the Tribunal. The jurisdiction of the Court and its powers to make orders giving effect to its decision on an appeal from a decision of the Tribunal are set out in s 176 of the ART Act, which states as follows:

176 Federal Court has jurisdiction

(1)    If an appeal is made under Subdivision A, the Federal Court:

(a)    has jurisdiction to hear and determine the appeal; and

(b)    must hear and determine the appeal; and

(c)    may make any order it considers appropriate because of its decision.

(2)    Without limiting the orders it may make, the Federal Court may:

(a)    affirm or set aside a decision of the Tribunal; or

(b)    remit a matter to be decided again by the Tribunal, either with or without the taking of further evidence, in accordance with the directions of the Court.

The decision and reasons of the Tribunal

20    Before the Tribunal, both BEG26 and the Registrar took the position that the Tribunal was bound to set aside the decision of the delegate to allow the objection, because the extension of time decision was invalid and legally ineffective. The Tribunal set out the Registrar’s submissions in support of this contention in its reasons at [27]-[29], and then said, at [30]:

The Tribunal disagrees with the Registrar’s submissions on that point that the objection decision should be set aside as the [extension of time] decision is invalid. The Tribunal accepts there is an objection decision which enlivens the Tribunal’s jurisdiction and enables the Tribunal to deal with the substantive matter before the Tribunal about whether [BEG26] is an “eligible carer”.

21    The Tribunal did not articulate its reasons for this conclusion beyond expressing its disagreement with the submissions of the Registrar.

22    The Tribunal does not appear to have proceeded on the basis that it had power to decide for itself whether it was appropriate to exercise the discretion to accept an objection lodged after the end of the period fixed by s 81(1) of the Registration and Collection Act. Rather, it appears that the Tribunal considered that the extension of time decision had been made, and that it was not open to the Tribunal to revisit that decision, or to question its validity for the purposes of the Tribunal’s review of the objection decision.

23    The Tribunal proceeded to consider BEH26’s objection on its merits, and concluded that BEG26 was not an “eligible carer” in relation to J, as defined in s 78B of the Assessment Act. Accordingly, the Tribunal affirmed the objection decision.

The grounds of appeal to this Court

24    On her appeal to this Court, BEG26 relies on four grounds of appeal. It is only necessary to set out grounds 1 and 3, which (omitting particulars to ground 1) are expressed as follows:

Ground One – The First Respondent’s Power to Make the Objection Decision

The Tribunal erred in finding that the Objection Decision was a decision validly made by the [Registrar]. The [Registrar] only had the power to make the Objection Decision under s 87(1) of the [Registration and Collection Act] if the objection by [BEH26] was duly lodged within the prescribed time limit (28 days from notification of the Child Support Decision) or if the [Registrar] made a valid decision to grant an extension of time in accordance with s 83(1)(b) of the [Registration and Collection Act], neither of which occurred.

…

Ground Three – The Tribunal’s Power to Affirm the Objection Decision

The Tribunal erred in finding that it had the power on an application for review under s 89(1) of the [Registration and Collection Act] to make a decision affirming the Objection Decision. The Tribunal only had the power to do so if the [Registrar] had the power to make the Objection Decision under the [Registration and Collection Act]. For the reasons set out in Grounds One and Two, the [Registrar] did not have that power in the present case.

25    The Registrar and BEG26 both accept that, if the appeal is allowed on grounds 1 and 3, it is unnecessary for the Court to consider or decide BEG26’s other two grounds of appeal.

The Tribunal was legally bound to set aside the objection decision

26    In Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16 (Frugtniet) at 271 [51], Bell, Gageler, Gordon and Edelman JJ explained the jurisdiction and powers of the former Administrative Appeals Tribunal (AAT) on a review of an administrative decision as follows:

… [T]he jurisdiction conferred on the AAT … , where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.

(Emphasis added.)

27    The jurisdiction of the Tribunal on a review of an administrative decision is relevantly of the same kind as that formerly exercised by the AAT.

28    Where legislation prescribes a period within which an administrative decision is required to be made, the expiration of that period will ordinarily indicate that the time for the performance (and, if necessary, enforcement) of the duty to make a decision has arrived; not that the power to perform it has ceased to exist: see, eg, Garnaut v Child Support Registrar [2004] FCA 1100 at [60]-[61]. However, in the case of the period fixed by s 81(1) of the Registration and Collection Act, the situation is different, because of the deeming effect of s 83(2).

29    By operation of s 83(2) of the Registration and Collection Act, the Registrar was taken to have refused to grant BEH26’s application for her objection to be considered, at the end of the period of 60 days from the date on which the application was made. That application having been made on 7 June 2024, s 83(2) operated to deem the Registrar to have refused to grant the application on 6 August 2024. After that, the legal effect of s 83(2) was that the application had been decided and refused. The power to decide whether to grant or refuse the application could not be exercised by the delegate after that time.

30    It follows that, in purporting to exercise the power in s 83(1)(b)(i) on 18 September 2024 by making the extension of time decision, the delegate acted beyond power. The decision to grant BEH26’s application to have her objection considered was therefore affected by jurisdictional error and was invalid. As far as its purported legal effect of enabling the Registrar to consider BEH26’s objection was concerned, it was “no decision at all” and was in that sense “void”: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at 325 [2], citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at 616 [53]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at 133 [24], 143 [62].

31    The power conferred by s 87(1)(b)(ii), to allow the objection, can only be exercised “[i]f an objection is lodged under [Part VII of the Registration and Collection Act]”. Section 81(1) requires that an objection be lodged within a 28-day period. If an objection is made after the end of that period, an application under s 82(1) must be made to the Registrar to consider the objection “despite the period ending”, and it is only where such an application has been granted that the applicant is, for the purposes of the Registration and Collection Act, “taken to have duly lodged the objection to which the application relates”: s 83(6). Put another way, an objection that is not lodged within the 28-day time period fixed by s 81(1) is not “lodged under [Part VII]”, and it is only through the operation of s 83(6) that such an objection can come to be “taken to have [been] duly lodged” for the purposes of the Act.

32    Because the decision purportedly made under s 83(1)(b)(i) of the Registration and Collection Act was not legally effective, an essential precondition for the exercise of the power in s 87(1) (the lodging of an objection under Part VII) was absent, and the delegate therefore had no power to consider, and ultimately to decide to allow, BEH26’s objection.

33    Even though the decision of the Registrar under s 87(1) of the Registration and Collection Act was legally ineffective, it was a decision that had been made in fact. Thus, BEG26 was able to apply for review of that decision, and the Tribunal had jurisdiction to review it: see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 342 (Bowen CJ), 370 (Smithers J); Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at 232-3 [39] (Gageler, Keane and Nettle JJ).

34    On the review of the delegate’s decision under s 87(1) of the Registration and Collection Act, the Tribunal “stood in the shoes” of the delegate. The Tribunal was required to determine whether the delegate’s decision was the correct and preferable decision. The only answer to that question which was consistent with the provisions of Part VII of the Registration and Collection Act was that the delegate’s decision was not the correct decision, because the delegate had no power to make it. It follows that the Tribunal, on the application for review lodged by BEG26, was legally bound to set aside the delegate’s decision under s 87(1).

35    Accordingly, I accept the submissions of BEG26 and the Registrar, that the decision of the Tribunal, which was based on its consideration of the merits of BEH26’s objection, shows that it failed to appreciate the limits of its powers. Just as the delegate had no power under s 87 of the Registration and Collection Act, to “deal with” an objection unless it was “lodged under [Part VII]”, the Tribunal had no power to uphold the objection decision, or to make a decision that the objection should be allowed on its merits.

36    The Tribunal’s decision to affirm the objection decision was made in circumstances where an essential precondition to the making of that decision was not satisfied. For these reasons, grounds 1 and 3 of BEG26’s appeal should be upheld. It follows that it is unnecessary to consider the other grounds of appeal.

Conclusions

37    For the reasons explained above, the appeal should be allowed. The decision of the Tribunal should be set aside. In lieu thereof, there should be substituted a decision setting aside the objection decision.

38    The decision under s 83(1) of the Registration and Collection Act which was taken to have been made by operation of s 83(2) – that is, the deemed decision of the Registrar refusing to grant the application for BEH26’s objection to be considered – remains operative. As BEG26 correctly accepted, it was open to BEH26 to apply to the Tribunal for review of that deemed decision – although it appears that she would now need to apply for and obtain an extension of time to do so: see Registration and Collection Act, s 91; ART Act, s 18(1); Administrative Review Tribunal Rules 2024 (Cth), r 6(4).

39    The reasons given above make it clear that the purported decision of a delegate of the Registrar under s 83(1) of the Registration and Collection Act, to consider the objection after the end of the period fixed by s 81(1) of that Act, was invalid. The Registrar submits that, if the Court is satisfied that the delegate’s decision to consider the objection is invalid, it may, pursuant to s 176(1)(c) of the ART Act, have the power to substitute for the decision of the Tribunal a decision to the effect that both the objection decision and the extension of time decision be set aside. I do not accept that submission, as it is expressed, because the power to set aside the extension of time decision is not a power which the Tribunal itself was able to exercise. However, s 176(1)(c) confers a broad power on the Court to “make any order it considers appropriate because of its decision”, and I accept the Registrar’s alternative submission that, in the exercise of that power, it is appropriate to make a declaration that the purported decision of a delegate of the Registrar made on 18 September 2024, to grant BEH26’s application to consider her objection despite the period fixed by s 81(1) of the Registration and Collection Act ending, is invalid.

Associate:

Dated:    10 July 2026