4.2.5 The AAT Review Process

Context

The AAT's objective is to provide a mechanism of external review that is fair, just, economical, informal and quick. When an application has been made for an AAT first review of an objection decision, the AAT will contact the parties and arrange for a private hearing to be held. The panel members hearing the application will consider the documents and submissions from the parties and make a decision. The AAT is independent of the Child Support Registrar.

The Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 introduced new rules for the review of care percentage decisions made for periods after 1 July 2010. See 4.1.8 for more information on the review of care percentage objection decisions.

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Application received by the AAT

When the AAT receives an application for first review of an objection decision made by the Registrar, the AAT will send a letter acknowledging receipt to the applicant. The AAT will also notify the Registrar and the other parent (when relevant) that the application has been received (AAT Act section 29AC).

Family violence

Within 14 days of making or being notified by the AAT of the application for an AAT first review, a party must give the AAT a copy of any current family violence order which they obtained against the other party to the review.

A party must also advise the AAT if his or her whereabouts, residential address, contact details and place of employment are not known to the other party due to a history of family violence.

A party who obtains a family violence order against another party to the AAT first review, after the making or notification of the application for review but before the hearing, must give the AAT a copy of the order as soon as practicable (Child Support Review Direction).

If the AAT notifies a parent that another person is a party to an AAT second review, the parent must tell the AAT if there is any history of domestic violence between the parent and the other person. If there is a history of domestic violence between 2 parties to an AAT second review, the AAT will require at least one of the parties to appear at the hearing by telephone or videoconference (Guide to Social Services and Related Jurisdiction).

Parties to a review

The parties to AAT proceedings are the applicant, the Registrar and any other person entitled to apply for a review of the decision under CSRC Act section 89 (e.g. the other parent or a non-parent carer) (AAT Act section 30, CSRC Act section 95D section 97A). For most objection decisions and AAT first review decisions this will mean that all of the parties to the child support case are parties to the AAT review of the decision.

If the decision being reviewed is an objection decision regarding penalties, or an extension of time decision made by the Registrar (i.e. it is an AAT first review), then generally only the applicant and the Registrar will be parties to the review.

Any person whose interests are affected by the objection decision can apply in writing to the AAT to be made a party to the review (AAT Act section 30(1A)). The applicant would need to identify how their interests will be affected and why they should be a party to the review.

The AAT may also give written notice of the application to another person whose interests are, in the AAT's opinion, affected by the decision or alternatively require the applicant to give the other person notice (AAT Act section 29AC(2)). The notice, which may be given at any time before the review is determined, must include information about that person's right to apply to be joined as a party to the review.

However, a child of a party who is aged under 18 years cannot give oral testimony for an AAT first or second review (CSRC Act section 98A) . This includes a child under the age of 18 who is the child of the applicant or respondent parent, or a child who is cared for by a non-parent carer who is a party to the review.

The AAT may give directions, in writing or otherwise, as to the persons who may be present at any hearing of an AAT first review (CSRC Act section 95K).

A person who has made an application for an AAT first review or AAT second review may notify the AAT in writing that they wish to discontinue or withdraw the application (AAT Act section 42A(1A)).

If a party to an AAT proceeding fails to appear in person or by a representative at a directions hearing, alternative dispute resolution process, or hearing of the proceeding, the AAT may direct that the party ceases to be a party to the proceeding. If the party who failed to appear is the applicant seeking the review, the AAT may dismiss the application without proceeding to review the decision (AAT Act section 42A(2) and CSRC Act section 97D).

Documents to be provided by the Registrar

Documents to be sent within 28 days

When the Registrar is advised that an application has been received by the AAT for an AAT first review, the Registrar is required to provide the AAT with a statement about the decision under review within 28 days or an earlier time if the AAT requests (AAT Act section 37 and CSRC Act section 95C). The statement must set out the findings of fact, refer to the evidence and give the reasons for the decision. The report prepared by the objections officer explaining their decision will be the document provided to satisfy this requirement.

The Registrar is also required to provide a copy of every document that is relevant to the review of the decision. All documents referred to or relied upon in the objection decision must be included. Documents required to be sent will include all letters relevant to the decision, a copy of the Registrar's records of conversations with the parents and a copy of any materials relied upon in making the objection decision. As documents 'relevant to the review of the decision' are to be provided, some documents received after the objection decision was made may be included if they will assist the AAT in undertaking their review of the objection decision.

The Registrar is also required to provide a copy of the statement of reasons and relevant documents to each other party to the proceeding within the same time period (AAT Act section 37(1AE)).

In preparing the documents, the Registrar may remove some identifying details from the documents for privacy or other reasons. These deleted details will include the address and telephone numbers of the parties, address details of employers, Child Support Identification Numbers and tax file numbers.

Example: M is dissatisfied with the Registrar's decision on an objection to the care percentages used in calculating the assessment of child support. Both parents have provided the Registrar with calendars and other materials about the children's living arrangements, either when the decision was first made or during the objection process.

If M was to apply to the AAT for an AAT first review of the objection decision, the information received from the parents would be provided to the AAT as relevant documents.

Example: F is dissatisfied with the Registrar's decision on an objection to the care percentages used in calculating the assessment of child support. F has also made an application for a change to the assessment.

If F was to apply to the AAT for a review of the objection decision, the information received from the parents regarding care would be provided to the AAT as relevant documents. The documents relating to the change of assessment application would not be included unless they are relevant to the objection decision.

Example: M, a payer, is dissatisfied with the Registrar's decision on an objection to the calculation of the arrears owing when the liability again became collectable by the Registrar. The objection decision is dated 8 January 2013.

On 18 January 2013 the Registrar received a letter from M that included receipts for payments made in the relevant private collect period. As the objection decision had been made there are no further review processes within the department.

If M was to apply to the AAT for a review of the objection decision the letter received 18 January 2013 would be provided to the AAT as a relevant document.

Documents to be provided by the Registrar for extension of time applications

When the Registrar is advised that an application for an extension of time has been received by the AAT, the Registrar is required to provide to the AAT within 28 days:

  • a statement described in AAT Act section 37(1), and
  • a copy of any correspondence and any record of oral communication between the applicant for the extension of time and the Registrar after the Registrar served notice on that person of the decision about which review is sought.

Some documents may not be required to be sent

The Registrar may identify that a relevant document contains information about a person that is private and considers that it would not be appropriate for that information to be sent to the other party. The information may be a medical report or information relating to a third person, such as a family member of one of the parties.

The Registrar can apply to the AAT for a direction that the document, or part of the document, is not required to be sent. The Registrar must provide one copy of the document to the AAT with the application for the direction (AAT Act section 37(1AF)).The Registrar is not required to send a copy of the application to each party to the AAT first review (CSRC Act section 95L).

The AAT will consider the application and may either direct the Registrar to send the document to the party concerned or make a direction prohibiting or restricting the disclosure to the other parties to an AAT first or second review of the contents of the document (AAT Act sections 35(3) to (5)).

AAT may give directions restricting secondary disclosure of documents

The AAT may make a direction (primary order) prohibiting or restricting the disclosure, to some or all of the parties to an AAT first or second review, of the contents of a document. The direction may be made after an application by the Registrar or on the initiative of the AAT.

The AAT may also direct a person who was authorised under the primary order to receive a document, not to disclose the information specified in the primary order. It is an offence to contravene such a direction, and the penalty is imprisonment for 12 months or 60 penalty units or both (CSRC Act section 98C).

Additional information can be sought

The AAT may request further information from the Registrar or another person in order to make a decision regarding an AAT first review. The AAT may request the further information by requesting production of a document or requesting that a person attend a hearing to answer questions. The Registrar must comply with such a request as soon as practicable and no later than 14 days after the request is made by the AAT. Any other person must comply with the time period specified in the request from the AAT (CSRC Act section 95G and section 95H).

The AAT may also require the Registrar to exercise information gathering powers the Registrar holds under CSA Act section 161 or CSRC Act section 120 to obtain information for the AAT that is relevant to an AAT first review. The Registrar must comply with such a request from the AAT as soon as practicable and no later than 7 days after the request is made (CSRC Act section 95J).

Variation of original decision after application for review lodged

The Registrar may vary or substitute a decision after an application has been made for an AAT first or second review of the decision. In this situation the Registrar must give written notice to the AAT of the variation or substitution and the AAT will treat the application for first or second review as though it relates to the varied or substituted decision. The person who applied for first or second review would need to notify the AAT if they do not want the AAT to review the varied or substituted decision (CSRC Act section 95B and section 97C).

Application may be dismissed

An application for a review of a decision of the Registrar can be dismissed by the AAT if:

  • the decision is not reviewable by the AAT (AAT Act section 42A(4)),
  • the AAT is satisfied that the application is frivolous, vexatious, misconceived or lacking in substance; or has no reasonable prospect of success; or is otherwise an abuse of the process of the Tribunal (AAT Act section 42B),
  • all of the parties consent. The Registrar's consent is not required (AAT Act section 42A(1) and section 42A(1AAA)),
  • the applicant has failed to attend the hearing or failed to comply with the AAT's direction in relation to the application within a reasonable time or does not intend to proceed with the application (section 42A(1A), 42A(2) and 42A(5)).

Application may be reinstated

Request for reinstatement

Where an application was dismissed by the AAT, the applicant whose application was dismissed may, within 28 days of receiving notification of the dismissal, or such longer period as the Tribunal, in special circumstances, allows, request that the application be reinstated (section 42A(8) and section (8A)).

The AAT may also reinstate an application for review on its own initiative if the AAT considers the application was dismissed in error.

Submissions from the parties

Submissions from parties other than the Registrar

A party to the AAT first review, other than the Registrar, may make oral submissions, written submissions or both oral and written submissions to the AAT (AAT Act section 39AA(1)).The AAT will advise the parties of the timeframe for any written submissions. Oral submissions are made at the hearing.

The AAT may make directions about proceedings, including:

  • requiring a party to the proceeding to provide further information or statements, or
  • limiting the number of witnesses who may be called to give evidence, or
  • requiring witnesses to give evidence at the same time, or
  • limiting the time for giving evidence or making oral submissions, or
  • limiting the length of written submissions (AAT Act section 33(2A)).

The AAT may also allow or require a person to participate in a hearing by telephone or by means of other electronic communications equipment (AAT Act section 33A).

A party to the review can provide additional documents to the AAT as part of their case. These documents should be provided to the AAT before the hearing.

Submissions from the Registrar

The Registrar may make written submissions to the AAT (AAT Act section 39AA). The Registrar may make a written request to the AAT for permission to make oral submissions, or both oral and written submissions. The request must explain how the submissions would assist the AAT. The AAT may grant the request if it is considered that such submissions would assist the AAT in carrying out its functions under the AAT Act. The AAT may order the Registrar to make oral or written submissions or both oral and written submissions when such submissions would assist the AAT.

Directions hearing

The AAT may arrange a directions hearing between the parties before the application proceeds to a full hearing when it decides that this would assist the review (AAT Act section 33(1A)).

At a directions hearing, the AAT may:

  • fix a day/s for the hearing,
  • give directions regarding time-limits of submissions to be made to the AAT, and
  • give directions about evidence and what information is to be given to the AAT.

If the parties reach agreement, and the terms of the agreement are lodged with the AAT in writing, the AAT may make a decision in accordance with those terms or give effect to the terms of the agreement as part of the AAT's decision, if it thinks it appropriate to do so (AAT Act section 42C).

The hearing

If oral submissions are to be made by the parties the AAT will arrange for a hearing to be held. A panel (generally 1 or 2 members) will sit as the AAT for the purposes of the review. Where more than 1 member is sitting on the panel, 1 of the members is designated as the presiding member (AAT Act section 19A). In reviewing a decision the AAT is not bound by rules of evidence. The AAT is required to conduct proceedings with as little formality and technicality, and with as much expedition as a proper consideration of the matter permits (AAT Act section 33). An AAT first review hearing must be in private, and the AAT may give directions as to who may be present (CSRC Act section 95K). Generally, an AAT second review hearing must be in public (AAT Act section 35(1)). However, the AAT may decide that an AAT second review hearing is to take place in private and give directions as to who may be present (AAT Act section 35(2)).

The AAT may take evidence on oath or affirmation for the purposes of a review of a decision (AAT Act section 40(2)). Children of the parties, or children being cared for by a non-parent carer who is a party, are not to give oral testimony (CSRC Act section 98A). The AAT may adjourn the hearing from time to time. The presiding member of the AAT panel may give directions about the procedure to be followed on the hearing of the review (AAT Act section 33). The presiding member can direct who will be present during the hearing. The President of the AAT may, by legislative instrument, give directions in relation to the conduct of AAT first reviews (CSRC Act section 95Q).

Decisions that can be made

The AAT is independent of the Child Support Registrar and will take a fresh look at the decision under review. The AAT will make a fresh decision after considering the relevant information provided by all parties (including information provided at the hearing) and the applicable child support law. The AAT must determine what the correct or preferable decision is in the circumstances of each case.

After reviewing the merits of an objection decision, the AAT must make a decision to (AAT Act section 43(1)):

  • affirm that decision,
  • vary that decision,
  • set aside that decision and substitute a new decision, or
  • set aside that decision and send the matter back to the Registrar with directions or recommendations. This may result in the Registrar making a new objection decision to replace the original objection decision. If a parent is dissatisfied with the new objection decision, they can apply to the AAT for an AAT first review of the decision.

The parties to the review (which includes the Registrar) may reach agreement on the review decision that should be made (AAT Act section 42C). If such an agreement is reached the parties may advise the AAT in writing, signed by the parties, of the terms of the agreement. The agreement may address some or all of the issues before the AAT. The AAT may then make the decision as agreed if it is satisfied that it is within its power to make that decision.

The AAT can only make decisions that are in accordance with child support law. The AAT cannot make a decision that the Registrar could not make (AAT Act section 43(1)).

The AAT's decision is taken to be the decision of the original decision-maker and has effect from the date of effect of the original decision, or from a date specified by the AAT (AAT Act section 43(6)).

The Registrar must immediately take action to give effect to the AAT decision (section 110V).

Notification of decision

The AAT will advise the parties to an AAT first review of their decision within 14 days of making the decision (CSRC Act section 95P). The notice must:

  • be in writing, and
  • include a statement that an appeal may be made to a court on a question of law, or
  • include a statement that the party may apply to the AAT for an AAT second review of the decision if the decision relates to a party's percentage of care for a child.

The AAT must also provide reasons for the decision within 14 days of making the decision (CSRC Act section 95P). This can be done in 2 ways:

  • by providing a written statement of the reasons for the decision with the notification of the decision, or
  • by providing oral reasons for the decision and explaining that the parties may request a written statement of the reasons.

The written statement of the reasons must set out the reasons for the decision, set out the findings on any material questions of fact and refer to the evidence on which the findings of fact are based. The request for a written statement of the reasons must be made within 14 days of the receipt of the decision (CSRC Act section 95P(3)). The AAT must comply with the request for written reasons within 14 days after the day it received the request (CSRC Act section 95P(3)).

AAT Act section 43AA allows the AAT to amend a decision, or the statement of the reasons for a decision, to correct an obvious error or an inconsistency between the decision and the statement.

Publication of review proceedings

CSRC Act section 110X imposes restrictions upon the publication of an account of review proceedings if the report identifies a party to the proceedings or other people relevant to the review. The restrictions do not apply for certain purposes (section 110X(4)).

Appeal to a court on a question of law

If a decision does not relate to a care percentage decision, parties dissatisfied with an AAT first review decision may appeal to a court, on a question of law (see 4.3.6 on appealing AAT decisions). Similarly, parties dissatisfied with an AAT second review decision relating to a care percentage decision may appeal to a court, on a question of law. The Registrar, as a party to the review, can also appeal a first or second review decision of the AAT to a court on a question of law (AAT Act section 44(1)).

A question of law is how the law or legal principle was applied to the facts of the case or whether the process was legally correct e.g. the AAT failed to properly apply the relevant law. A parent cannot apply to a court if they simply disagree with the decision. An appeal on a question of law is not a review of the merits or a rehearing and as such, is not one in which findings of fact can be called into question. Parents may wish to seek legal advice about questions of law if considering appealing an AAT decision.

Appeal to the AAT for a second review relating to care percentages decisions

A parent dissatisfied with an AAT first review decision of a care percentage decision for a child may apply to the AAT for an AAT second review of the decision (CSRC Act section 96A(b)). A parent may also apply for a second review of an AAT first review decision regarding the date of effect of the care percentage determination (section 96A(c)).

Where the AAT has made a decision to refuse an application for an extension of time to apply for an AAT first review, a parent may also apply to the AAT for a second review of that decision (section 96A(a)).

More information on the AAT review process is available at the AAT website.

Last reviewed: 16 May 2016