Statement of principles for referrals to the Guidance and Appeals Panel based on errors of fact or law

Date: April 10, 2025

 

[GAP-AAA] and [GAP-AAB]; Child Support Registrar 2024/BC027893.

Key Points:

 

Background:

The applicant and first respondent, separated parents of three children, were involved in a dispute regarding child support. The applicant had 100% care of the children. A child support assessment began in 2017, and on 8 March 2024, a decision was made to account for the children’s 2024 and 2025 school fees. However, the decision was replaced on 3 May 2024 by a less favourable one for the applicant. On 25 October 2024, the Tribunal set aside the 3 May 2024 decision, substituting a new decision that required the first respondent to contribute only 50% of the Catholic primary school fees, assuming the oldest child had not transitioned to a higher-fee Catholic college for Year 5 in 2024.

The key dispute was whether the parents had an expectation that their children would transition from a Catholic primary school to a Catholic college for Year 5. The Tribunal found no evidence of this expectation, leading to its decision to limit the first respondent’s financial responsibility to the primary school fees. The applicant subsequently enrolled the oldest child in the Catholic college in 2024 despite the higher costs.

On 30 October 2024, the applicant applied for a referral of the Tribunal Decision, alleging errors of fact and law that materially affected the outcome. Specifically, the applicant contended the Tribunal erred in finding no parental expectation about the children’s schooling and misinterpreted s 117(2)(b)(ii) of the Child Support (Assessment) Act 1989. The applicant also requested an oral hearing and a stay of the Tribunal Decision pending further proceedings.

The first respondent opposed the Referral Application, arguing that the Tribunal Decision contained no material errors, and didn’t seek an oral hearing. The second respondent supported the Referral Application but confined its reliance on fewer alleged errors than the applicant and did not request an oral hearing.

Decisions under s 128(1) of the ART Act are typically communicated through a notice of decision under s 129(2) rather than with detailed reasons. However, in this case, reasons have been provided to outline general principles that may assist future applicants and decision-makers. These principles are intended as guidance rather than strict rules, as each case must be assessed on its own merits and may evolve with further experience.

The Tribunal noted the general principles addressed the following issues:

The Tribunal noted that the GAP Practice Direction required parties to submit detailed information and submissions to assist the President in deciding on a referral application. The Tribunal further noted that generally, such materials are sufficient for a decision, and therefore the interests of justice would not require an oral hearing.

Under s 127(1) of the ART Act, filing a referral application does not affect the operation of the Tribunal decision. However, under s 127(2), the Tribunal may grant a stay if necessary to ensure the effectiveness of the referral application. Granting a stay is discretionary and requires evidence that, without it, the applicant would suffer irreversible prejudice, such as rendering a successful outcome before the GAP meaningless. The Tribunal explained it must balance this against any prejudice to the opposing party and consider all relevant factors to determine what the interests of justice require in each case.

The Tribunal distinguished between errors of fact and law, emphasising the difference between primary facts and inferences. If multiple reasonable inferences can be drawn from a fact, choosing one over another does not constitute an error. The Tribunal also clarified the meaning of “may contain” in s 128(2)(b) of the ART Act, explaining that the possibility of an error must be more than fanciful but does not need to be near certainty. The stronger the possibility of error, the more likely the requirement is met. Consequently, the President’s statement on whether a decision “may contain” an error will be broad rather than highly detailed.

The Tribunal explained that an error of fact or law materially affects a Tribunal decision if it concerns an issue significant enough that, without the error, there is a realistic possibility the outcome could have been different. A mere fanciful or abstract possibility is insufficient. If the Tribunal decision would have remained the same despite the error, it is not considered to have materially affected the decision.[1]

Under s 128(2)(b) of the ART Act, a Tribunal decision can only be referred to the GAP if the President determines that it may contain a material error of fact or law. However, the President retains discretion under s 128(1), (2), and (5) to refuse a referral even if these preconditions are met. Section 128(4) requires the President to consider the circumstances of the parties and any other relevant factors, which may include financial burden, risk of trauma, adequacy of legal representation, and the nature of the error. The GAP Practice Direction further outlines discretionary considerations, such as the likelihood and significance of the error, the impact on Tribunal resources, and whether the issue is better resolved by judicial review. The Tribunal’s substantial backlog of cases also informs the exercise of discretion, as increased referrals to the GAP reduce the Tribunal’s ability to hear first-instance matters, many of which have been pending for years. The President must balance these considerations with the need to ensure fairness and proper adjudication in each case.

The Law:

Section 128(1) of the ART Act provides that if a person applies to refer a Tribunal decision to the GAP, ‘the President may refer the Tribunal decision to the [GAP] or refuse the application’.

Section 128(2)(b) provides that the President ‘may refer the Tribunal decision to the [GAP] if the President is satisfied that … the Tribunal decision may contain an error of fact or law materially affecting the Tribunal decision.’

Section 128(2)(a) provides for referral to the GAP of Tribunal decisions which raise ‘an issue of significance to administrative decision-making’. The Tribunal noted that those reasons were confined to s 128(2)(b) because s 128(2)(a) was not relevant.

Under s 128(1) of the ART Act, when the President or a delegated member grants or refuses a referral application, they are not required to provide reasons. This is because such decisions are excluded from ss 111(1) and 112(1), which govern the Tribunal’s obligation to provide reasons. Additionally, s 112(2) explicitly states that s 112 does not apply to decisions under s 128.

Conclusion:

Decision on the request for an oral hearing

The Tribunal refused the applicant’s request for an oral hearing, noting that the applicant had already provided a detailed five-page submission articulating their arguments for referral to the GAP. While the applicant expressed concerns about effectively presenting their case in writing, the Tribunal found that their submissions were clear and comprehensive. As neither respondent requested an oral hearing, and an oral hearing was not deemed necessary in the interests of justice, the request was denied.

Decision on whether to grant the referral application

The Tribunal refused the Referral Application after considering the parties’ circumstances and supporting materials. It found that the general member had correctly applied the relevant statutory provisions and legal principles. The applicant’s legal arguments, particularly on issue estoppel, were based on a misunderstanding of administrative tribunal decisions and could not succeed. While some alleged legal and factual errors were not entirely fanciful, they were minor and did not justify referral to the GAP, especially given the strong discretionary considerations against it. As the errors were insufficient to warrant referral, it was unnecessary to determine whether they materially affected the Tribunal Decision.

Decision on the application for a stay

As the Tribunal refused the Referral Application, the applicant’s request for a stay of the Tribunal Decision, both pending the Referral Application and any subsequent GAP proceeding, was no longer relevant and must be rejected.

Lessons Learnt:

The case highlights the importance of distinguishing between errors of fact and law, with emphasis on whether an error materially affects the outcome of the decision. The Tribunal carefully assessed the applicant’s legal and factual arguments, determining that the potential errors were minor and insufficient to warrant a referral. The important takeaways from this case include the broad discretion of the President in deciding whether to refer a case to the GAP, the need for a substantial likelihood that the error could alter the decision, and the consideration of broader factors such as case volume and resource constraints. The case emphasises that referral is not automatic and requires a careful weighing of the errors and the circumstances surrounding the case.

Contact:

Caitlin Jenkins
Graduate
Direct:  +02 4044 4110
Caitlin.Jenkins@hbacrawford.com.au		Claire Tota
Partner
Direct: +08 9265 6011
Claire.Tota@hbacrawford.com.au

 

Download PDF here:  [GAP-AAA] and [GAP-AAB]; Child Support Registrar 2024/BC027893.

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