4.1.6: Making a decision to allow or disallow an objection

Context

CSA's objection decisions must follow the requirements set out in the child support legislation. Objection decisions must also follow general administrative law principles.

Legislative references

Section 7 Administrative Decisions (Judicial Review) Act 1977

Sections 85, 86 and 87 Child Support (Registration and Collection) Act 1988

Explanation

This topic explains

statutory requirements for making a decision on an objection
the Objections Officer
considering an objection
decisions an Objections Officer can make
decisions involving discretion
review of an Objection Officer's decision
notifying parents of the decision

Statutory requirements

In most cases when CSA receives a valid objection it must, as soon as practicable, provide a copy of the objection, and any document that accompanied the objection, to the other parent (section 85(1)).

CSA is not required to provide a copy of the objection to the other parent if the objection is to a decision to refuse to remit penalties imposed on the payer or an employer or, for an objection to a decision to make, or refuse to make, a departure determination under Part 6A of the Assessment Act, if CSA is satisfied that the rights of the other parent will not be affected by any possible decision on the objection (section 85(2)). CSA may be satisfied that an objection decision will not affect the rights of the other parent where the objection raises no new issues and the original change of assessment decision is the correct or preferable decision.

Example

A parent objects to a change of assessment decision on the grounds that the decision did not take into account his moral duty to provide financial support for his mother. The original decision-maker considered this matter and decided correctly that it could not be taken into account under any of the change of assessment reasons. The decision is otherwise the correct or preferable decision. CSA is satisfied that the rights of the other parent will not be affected by the objection decision and is therefore not required to serve a copy of the objection on the other parent.

Where the other parent is served with a copy of the objection, they may lodge a notice in response to the objection within 28 days of receiving the copy of the objection and any document that accompanied the objection (sections 86(1) and (2)). For cases where one parent resides abroad in a reciprocating jurisdiction while the other parent resides in Australia, the time for lodging a response is extended to 90 days for the parent residing in the reciprocating jurisdiction (section 86(2A)).

CSA must consider any information provided by both parents about the decision that is the subject of the objection. CSA will not make a decision on an objection before it receives the notice in response, unless the period for returning the notice to CSA has ended. The exception would be where a parent advises that they do not wish to lodge a notice in response to an objection.

CSA will also make reasonable efforts to obtain information that is relevant to the original decision from either parent or from third parties. CSA policy about obtaining information from children applies. CSA officer dealing with the objection must use their judgement about the appropriate method of obtaining information in each case.

CSA will provide each parent with an opportunity to comment on information that may be taken into account in a way that is adverse to them.

CSA must make a decision within 60 days of the day on which it received the objection (section 87(1)). For cases where one parent resides abroad in a reciprocating jurisdiction while the other parent resides in Australia, the time to make a decision is extended to 120 days (section 87(1A)).

A parent can make an application to the Federal Court or Federal Magistrates Court on the basis that CSA has failed to make a decision on an objection within the required time (section 7 Administrative Decisions (Judicial Review) Act 1977). However, CSA is still obliged to make a decision on an objection even if the 60 day (or 28 or 120 day) period has ended (Garnaut v Child Support Registrar [2004] FCA 1100).

The Objections Officer

The Child Support Registrar and Regional Registrars have authorised certain CSA staff to consider objections on their behalf. Only authorised 'Objections Officers' will make decisions on an objection (See chapter 6.1, heading Authorisation to make decision on another's behalf).

An Objections Officer must not deal with an objection to a particular decision if they were involved in making that original decision.

Considering an objection

An objection is a request for reconsideration of an original decision. The Objections Officer will reconsider a decision by 'standing in the shoes of the original decision-maker'. They must go through the same steps as the original decision-maker, come to their own conclusions about the relevant facts of the case and determine how the law is applied to those facts. They do not simply check whether there is any obvious error in the original decision on the basis of the grounds raised in the objection.

They must take into account all the relevant information available to them even if it was not available to the original decision-maker. This includes all information that could have been made available to the decision-maker at the time of the original decision.

If the Objections Officer is allowing an objection to a change of assessment decision they can either:

make a new decision (either to change the assessment, or refusing to change the assessment) taking into account all information including a change of circumstances or new reason, or
where the objection is to a pre-conference refusal decision, set aside the original decision to refuse to change the assessment and refer the application to a Senior Case Officer to consider the application afresh. (This two-step process is necessary because CSA must arrange for exchange of documents between the parents and for each parent to have a conference with the Senior Case Officer before a change of assessment decision can be made).

Example

M, a payer, makes a change of assessment application because of the high costs involved in enabling the parent to spend time with, or communicate with the child in the assessment. The Senior Case Officer finds that there is no reason to change the assessment because M's costs do not amount to more than 5% of M's child support income amount.

M objects because the Senior Case Officer did not take into account all of M's air fares. M also provides details of significant medical costs for a new relevant dependent child who was born after the original decision was made.

The Objections Officer considers all the information that is relevant to the costs M incurs in spending time with or communicating with the child and finds that the costs do exceed 5% of M's child support income amount. In making a decision to change the assessment the Objections Officer also takes into account the information about the medical costs for M's new relevant dependent.

The Objections Officer will ensure that the process followed is procedurally fair and will give parents an opportunity to respond to information that is being taken into account.

Decisions an Objections Officer can make

The Objections Officers must decide to allow, partly allow or disallow the objection (section 87(1)). They do not simply look at the grounds of the objection and decide whether they agree or disagree with the original decision. The Objections Officer must make their own findings about the facts and apply the law to those facts in order to make the correct or preferable decision (Garnaut v Child Support Registrar [2004] FCA 1100). They then compare their decision with the original decision.

If the Objections Officer finds that it was not correct to make the original decision then they will allow the objection. The original decision is set aside and the assessment and/or Register are amended as if the decision had not been made.

If the Objections Officer finds that it was correct to make the decision but that some aspect of the decision is incorrect, they will partly allow the objection. The original decision is taken never to have been made and the Objections Officer will make a new and preferable decision to replace the decision. CSA will amend the assessment and/or Register in accordance with the new decision.

If the Objections Officer finds that the original decision was entirely correct they will disallow the objection.

Decisions involving discretion

If the original decision involved the exercise of discretion, the Objections Officer may find that the original decision was technically correct but that it was not the best exercise of the discretion. The Objections Officer must allow an objection in these circumstances and replace the decision with the preferable decision.

Example

F, the payer, makes a COA application to change the assessment because of the costs involved in enabling the parent to spend time with, or communicate with the child in the assessment. The SCO finds that this is a reason to change the assessment and that it is fair to reduce the annual rate by $500 per year. F objects because the SCO did not take into account significant medical costs for a relevant dependent child.

The Objections Officer considers the available information that is pertinent to the finding that F's relevant costs exceed 5% of the child support income amount. They agree with the SCO's finding that this is a reason to change the assessment. They provide M, the payee, with an opportunity to comment on the new information about F's medical costs for the relevant dependant child and further information from the child's treating specialist. The Objections Officer takes the new information and any information provided by the other parent into account when considering whether a change to the assessment would be fair and proper.

Review of an objection officer's decision

The objection decision

A parent cannot object to a decision made upon their objection, or the other parent's objection. A parent who disagrees with an objection decision (other than a decision to refuse to change an assessment because the matters are too complex) can make application to the SSAT for a review of the decision (See chapter 4.2).

Other decisions made by an Objections Officer

An Objections Officer can also be authorised to make decisions about other matters raised by the parents, which are not related to the objection. Any decision made by the Objections Officer, except the decision on the objection, is a new decision and either parent may object to the new decision. Another Objections Officer will make a decision on that subsequent objection.

Notifying parents of the decision

CSA must serve written notice of the objection decision on the parent who lodged the objection and on the other parent if the other parent was entitled to be served a copy of the objection and accompanying documents (section 87(2)). The notice of decision must include a statement that the parent may apply to the SSAT for a review of the decision if they are dissatisfied with the outcome of the objection (section 87(3)).

If the Objections Officer refused to change a child support assessment because the issues involves are too complex the notice must state that the parents can apply to a court for an order departing from the assessment (section 87(3)).

The notice must include or be accompanied by the reasons for the decision (section 87(3)).

The reasons for decision will include:

the Objections Officer's understanding of the relevant legislation;
the findings of facts upon which their conclusions depend; and
the reasoning process that led them to their conclusion.

Version 1.6

Issued 1 January 2008

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