4.3.6 Appealing AAT decisions
A parent or non-parent carer can appeal to a court under the AAT Act if dissatisfied with a decision of the AAT made about their child support case due to an error of law.
The Registrar can also appeal to a court if dissatisfied with a decision of the AAT due to an error of law.
A parent or non-parent carer or the Registrar can apply to a court for a stay order under the AAT Act. The stay order can stay or affect the operation or implementation of the AAT decision or the decision by the Registrar that was reviewed by the AAT.
AAT Act Part IVA
CSA Act Part 6A, Part 7
CSRC Act section 98D, section 110V, section 111C, Part VII
Appealing AAT decisions
A parent, non-parent carer or the Registrar can appeal to the Federal Court of Australia if they are dissatisfied with an AAT second review decision or an AAT first review decision for which no application may be made for an AAT second review. An appeal can only be brought on a question of law (AAT Act section 44(1)).
However, where an AAT first review decision did not involve a presidential member of the AAT, a party dissatisfied with the first review decision may appeal to either the Federal Court of Australia or the Federal Circuit Court of Australia on a question of law (AAT Act section 44AAA). Where an appeal is lodged in the Federal Circuit Court, an appeal would lie to the Federal Court of Australia from the decision of the Federal Circuit Court under Federal Court of Australia Act section 24.
Time limits for appeals
An appeal must be brought within 28 days of receiving notice of the AAT decision or within such further time as allowed by the court (AAT Act section 44(2A) and section 44AAA, Federal Court Rules 2011 and Federal Circuit Court Rules 2001).
Parties to court proceedings
The parties to a court appeal are the people who were the parties to the AAT proceedings when the AAT made the relevant decision (CSRC Act section 98D). For guidance on who can be a party to an AAT proceeding, see 4.2.5.
Powers of the court
When deciding an appeal a court can make orders it thinks appropriate (AAT Act section 44(4) and section 44AAA(2)), including orders:
- setting aside the decision of the AAT,
- affirming the decision of the AAT, or
- directing the case back to the AAT for rehearing, with or without the hearing of further evidence.
A court may dismiss a proceeding relating to an AAT decision if it is satisfied that the proceeding is frivolous or vexatious (Federal Court of Australia Act 1976 section 20A, Federal Circuit Court Rules 2001 rule 13.10).
Implementation of a decision
When an objection decision is made, or the AAT or the court make a decision, the Registrar must give effect to that decision immediately (CSRC Act section 110V).
Effect of applying to a court on an original decision
An AAT decision continues to have effect from the time it is made and is not affected because a person appeals that decision. The Registrar or the other parent may take action to collect amounts, subject to the effect of a stay order issued by a court under the AAT Act, or the Registrar making a decision not to disburse payments to a payee.
The Registrar may make a decision not to disburse any payments to a payee if a payer has applied to a court challenging the validity of the child support assessment, for reasons other than the parentage of the child concerned, and has requested a suspension of disbursement of payments to the payee. See 5.5.4 for further information about suspending payments to payees.
Stay order under the AAT Act
If an appeal (on a question of law) is instituted in the Federal Court or the Federal Circuit Court from an AAT decision, the court may make an order staying or otherwise affecting the operation or implementation of the AAT decision or the decision by the Registrar that was reviewed by the AAT. The stay order is made under section 44A of the AAT Act. For an appeal instituted in the Federal Circuit Court, section 44AAA(2)(b) is relevant to the meaning of section 44A of the AAT Act.
Stay order under the CSRC Act
A court can make a stay order under section 111C of the CSRC Act which stays or otherwise affects the operation or implementation of the CSA Act or the CSRC Act. An application to a court for a stay order under the CSRC Act can be made if:
- a proceeding has been instituted in a court having jurisdiction under the CSRC Act,
- this does not include an appeal to the Federal Court or the Federal Circuit Court from an AAT decision under the AAT Act (see stay order under the AAT Act, above),
- an objection is proceeding before the Registrar under Part VII of the CSRC Act,
- an AAT first review is proceeding before the AAT,
- a departure determination is proceeding under Part 6A of the CSA Act,
- court review of certain decisions is proceeding under Part 7 of the CSA Act.
A court may make a stay order if it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceedings.
A stay order has effect for the period specified in the order or, if no period is specified, until the proceeding (decision) of the court, the Registrar or AAT, becomes final.
A child support proceeding to which section 111C applies is the process from the time the relevant application is received until the proceeding is finalised.
An objection decision is final if an application for AAT first review has not been made within the 28 day period allowed. An AAT first review decision is final if an appeal has not been made within the prescribed period. A decision of a court is final if an appeal is not made within the time allowed for doing so by the relevant court.