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The Hearing Process

SSAT Hearings

An SSAT hearing is less formal than a court, although the hearing is controlled and structured. Both parties will be present during the hearing, unless a party has advised the SSAT that they do not want to participate in the hearing.

The hearing will commence with the Presiding Member explaining the hearing process and procedures to be followed. Each party will be given an opportunity to explain to the SSAT why they agree or disagree with the Child Support decision. The SSAT member(s) will normally ask both parties questions relevant to the issues.

The Presiding Member is responsible for deciding how any hearing will be conducted. Parties must give evidence and make submissions on oath or affirmation and any witnesses will be asked to take an oath or make an affirmation.

A Child Support representative does not normally attend the hearing. Child Support may request to attend the hearing, or the SSAT may direct the Child Support Registrar to attend and make oral submissions if such submissions would assist the SSAT.

Child Support is required to send to the SSAT, the applicant and the other parent, a copy of the papers setting out the decision and reasons for the Child Support decision and a copy of documents relevant to the application for review. These documents will be used at the hearing.

The SSAT will electronically record the child support review hearing as a record of what was said (and how it was said) might be relevant in the event of an appeal against the SSAT's decision. A party, representative or any other person must not electronically record any part of a child support hearing.

In child support cases any additional documents provided by applicants and other parties must be given to the SSAT at least 14 days prior to the hearing (or 28 days prior to the hearing where a party resides overseas). However, if a party is required to give the SSAT documents in accordance with directions, the documents must be given by the date specified in those directions. If a document is not given to the SSAT by the date specified in any directions given to the party or where no directions have been made, if the document is not given to the SSAT at least 14 days before the hearing (or 28 days if the party resides overseas), the Presiding Member will decide whether or not the document will be considered.

The length of a child support hearing varies, and may take up to 3 hours or more, depending on the nature of the review.

In child support review cases, the SSAT must provide each party with a document setting out its decision. The SSAT may provide reasons for the decision orally or in writing. If the reasons are provided orally, parties have 14 days to request them in writing. The SSAT, in most cases, will make a decision quickly and provide a decision within 14 days of the hearing. However, the SSAT may defer making a decision on the review e.g. to obtain further information from parties or Child Support. Parties will be advised if the SSAT defers making a decision on the review to obtain further information.

Who can attend a hearing?

SSAT hearings must be in private [subsection 103P(1) of the Child Support (Registration and Collection) Act 1988]. Members of the public and other people do not have a right to attend the hearing. Usually the parties are in attendance at the hearing, either in person or by telephone. The Child Support Registrar is a party to the review, but does not usually attend the hearing.

The SSAT Principal Member or a delegate may give directions as to who may be present at the hearing and in doing so must have regard to (a) the wishes of the parties; and (b) the need to protect their privacy [subsections 103P(2) and (3)]. Case Managers cannot make this decision.

For more information see: Representatives, Support persons, Witnesses.

Representatives

A party does not need to be represented at a hearing. Parties frequently appear unrepresented.

A party may, with the permission of the SSAT Principal Member or a delegate, have another person make submissions to the SSAT on the party's behalf [subsection 103C(2) of the Child Support (Registration and Collection) Act 1988]. In deciding whether to give permission, the SSAT Principal Member or delegate must have regard to (a) the wishes of the parties; and (b) the need to protect their privacy [subsection 103C(2A)] and to the objective of providing a mechanism of review that is fair, just, economical, informal and quick [subsection 88(2)].

A request for permission for another person to make submissions on a party's behalf must be made in writing. The SSAT must notify the other party of the request. For the requirements of such a request, see the SSAT Child Support Review General Directions 2012.

If a party has a representative make submissions on his or her behalf, the party will not be permitted to make submissions to the SSAT. However, a party will still need to attend the hearing to give evidence and answer questions which may be asked by the SSAT. If a party fails to participate in the hearing, his or her position might be adversely affected.

A representative may, but need not, be a lawyer. However, the SSAT cannot make any order for payment of the representative's costs.

The SSAT must not send a copy of documents to a representative, who is not a lawyer, without the permission of the Principal Member or a Deputy Principal Member.

Support persons

A party must notify the SSAT of any person whom the party wishes to be present at the hearing as a support person at least 14 days before the hearing. The SSAT must advise the Child Support Registrar and the other party of the notification received.

The Presiding Member, as delegate of the Principal Member, will make directions as to who may be present at the hearing, taking into account the wishes of the parties and the need to protect their privacy [Section 103P of the Child Support (Registration and Collection) Act 1988].

Otherwise, a support person is able to attend in the waiting area of the SSAT.

Witnesses

A party must notify the SSAT of any witness who the party wishes to have give evidence at the hearing at least 14 days before the hearing. The party must also notify the SSAT in writing of the matters about which the party wants the person to give evidence. The SSAT must advise the Child Support Registrar and the other party of the notification received. The Presiding Member will decide whether the SSAT will take evidence from the person.

A person who attends a hearing as a witness normally waits outside the hearing room until it is time for them to give evidence. This ensures that any evidence given is independent of any other evidence which has been given during the course of the hearing. The costs associated with the attendance of witnesses must be paid by the party who requested the attendance.

On occasions parties bring people to the hearing in case the SSAT wants to hear from them. That person remains out of the hearing room until such time as the evidence may be required. As stated above, this is a matter to be decided by the Presiding Member.

Children as witnesses

Children cannot give evidence to the SSAT and will not be permitted in the hearing room. Evidence includes statements, statutory declarations or affidavits which may be prepared and signed by children. The legislation specifically provides a child of a party may not give evidence for the purposes of a review of the decision [Section 103H of the Child Support (Registration and Collection) Act 1988].

A child must not be present during the hearing. The SSAT does not provide child care or other facilities and parties should therefore make arrangements for any children to be cared for, for the duration of the hearing. This is also important if the hearing is conducted by telephone. A child should not be present where he/she can hear what is being said and it is the obligation of the party to arrange appropriate child care for any child in that situation. The SSAT does not regard it as acceptable for the hearing to proceed with a young child unattended.

Interpreters

A party who needs the services of an interpreter must tell the SSAT within 14 days of making, or being notified of, the application for review.

The SSAT will arrange for an interpreter, accredited or recognised by NAATI in the relevant language, to attend any directions hearing and the hearing.

The SSAT will not permit a relative or friend of a party to interpret at a directions hearing or hearing.

For information on the role of an interpreter in a hearing, see Information for Interpreters.

Telephone Hearings

The SSAT may determine the method of hearing.

In appropriate cases, hearings by telephone provide an alternative to face-to-face hearings. These hearings are held when parties are not able to attend the hearing in person. The SSAT member(s) will call using a telephone with a loudspeaker so that everyone in the hearing room can hear the conversation.

To prepare for a telephone hearing, make sure the telephone you will use for the hearing is in a quiet, private room, with no distractions (if possible, make sure you will not be interrupted during the call). The SSAT prefers that mobile telephones not be used because of problems with battery life and/or reception. It is not acceptable to participate in either a directions hearing or a hearing on a mobile telephone while driving a car or in a public place.

Please contact your nearest SSAT registry to discuss the most suitable hearing method for your review.

As with all methods of hearings, a Case Manager will provide you with information at each step in the review process.

Video-conference Hearings

Where available, hearings by video-conference provide an alternative to telephone or face-to-face hearings. These hearings are held over a video link when parties are not able to attend the hearing in person. This means that parties are able to see and hear the SSAT member(s) (and any other parties present) in the hearing room.

Please contact your nearest SSAT registry to discuss the most suitable hearing method for your review.

As with all methods of hearings, a Case Manager will provide you with information at each step in the review process.

The situation of the hearing (whether face-to-face, by telephone or video-conference) does not affect the process or outcome. However, on occasions, the SSAT may direct that the hearing proceed in a particular way.

Information Exchange

The SSAT Child Support Review General Directions 2012 provide that the SSAT must give a copy of a document given to the SSAT by a party that is relevant to the review to the Child Support Registrar and the other party.

A party may request that the SSAT not disclose information in a document to the other party. Such a request must be made at a directions hearing, if held. Otherwise, the request must be made in writing, stating the reasons for the request, at or before the time the party gives the document to the SSAT. The request must be refused if withholding the information from the other party may adversely affect the fairness of the review.

Unless the Presiding Member directs otherwise, a party may obliterate the following information from a document before giving it to the SSAT:

A tax file number or passport number;
The party's Centrelink client reference number or Child Support identification number;
The bank account number on a bank statement, other than the last four digits (but not the number of any account to or from which money is transferred in the bank statement).

The SSAT must give a party a copy of any document obtained by the exercise of the SSAT Principal Member's statutory powers which is to be considered in the review. The SSAT must obliterate certain information about a party before giving a copy of such a document to a party. For details, see the SSAT Child Support Review General Directions 2012.

Financial Information

Change of assessment applications and the provision of financial information

The ordinary operation of the child support formula is calculated on a person's taxable income with some additional components. In a change of assessment application the person making the application wants a departure from the operation of the formula.

In change of assessment applications the SSAT is obliged by law to look at "the income, property and financial resources of each parent who is a party to the proceeding" [Section 117(4) of the Child Support (Assessment) Act]. The SSAT is often required to carry out this assessment where parties are not PAYG employees but run their own business, or are PAYG employees but such arrangement is in the context of a private family company or trust structure. A person's taxable income may not in fact reflect the true level of a person's financial resources. In such cases the SSAT is required to make a proper assessment of each of the party's financial resources based on full and complete information about the parties' financial resources.

This can often require the SSAT to examine details of trusts, partnerships and private companies involving other persons or family members. Whilst such arrangements may be legitimate tax arrangements it is also possible that some of the income or expenses are relevant for child support purposes and if so, would be included in the assessment of a person's salary or resources.

What obligations does a party have in relation to providing financial and other information to the SSAT?

In matters such as change of assessment applications where the financial position of parties is a relevant consideration, the case law provides the following guidance as to what a party's obligations are:

a clear obligation for a party to make a full and frank disclosure of all relevant financial circumstances
the obligation extends to presenting the material in a way that shows the true nature of the person's financial affairs and which allows those affairs to be easily understood and examined.

The SSAT needs correct, complete and up-to-date information to enable it to make the correct or preferable decision. Although the SSAT has power to obtain information, the law states that the primary obligation is on the parties to make full and complete disclosure of their financial affairs [Humphries & Berry [2008] FMCAfam 409]. This is a decision of the Federal Magistrates Court (now known as the Federal Circuit Court of Australia) and can be accessed through the following website: http://www.austlii.edu.au

Statement of Financial Circumstances

Ordinarily the SSAT will require the parties to prepare a completed Statement of Financial Circumstances in change of assessment matters. The statements may also be required in other types of matters where financial circumstances are relevant. A party who receives a "Statement of Financial Circumstances" form from the SSAT must complete the form and return it to the SSAT within 14 days. This is required under the SSAT Child Support Review General Directions 2012.

These statements are required because the SSAT needs up-to-date full and complete information from each party as to their financial position. Ultimately the SSAT needs to have regard to a party's capacity to pay child support after a consideration of both parties' financial positions. It is important that this documentation is completed as fully and accurately as possible as the SSAT relies on this documentation. Where an estimate is made, it should be reasonably based.

The statement requires information about other income earners in the household. This information is relevant where other household members are in receipt of income from a party's business structure.

What if a party does not provide requested information to the SSAT?

If a party does not produce financial information to the SSAT, or other information which is relevant and within their possession or control, the SSAT may draw an adverse inference. This means that it may draw a conclusion which is against the interests of the party who has not provided the financial or other information. Effectively such an inference may produce a result which is in favour of the other party.

Example

A party asserts that they earn $20,000. The central issue at the hearing relates to the amount of the person's income or financial resources. That person does not produce complete documentation (or produces conflicting information) to allow the SSAT to reach a proper conclusion as to the person's true income or financial resources situation. The SSAT may reach a decision that a higher amount of income is the appropriate figure (e.g. $60,000) based on information it has, coupled with an inference that the lack of information does not support the lower figure.

The SSAT provides the last merits review opportunity for a party to present factual information and for findings of fact to be made. An appeal court will not usually receive evidence which should, and could, have been produced to the SSAT.

Information may be requested by means of a formal direction/notice in a particular review. There are ramifications of non-compliance with such directions/notices and of non-compliance with a requirement of the SSAT Child Support Review General Directions 2012, including the requirement to complete and return a "Statement of Financial Circumstances" form.

Formal Directions/Notices

SSAT Child Support Review General Directions

The SSAT Principal Member has made General Directions under paragraph 103ZA(1)(a) of the Child Support (Registration and Collection) Act 1988 (the SSAT Child Support Review General Directions 2012). The General Directions set out procedures to be followed in child support reviews. The matters dealt with in the General Directions include:

Extension of time applications;
Making an application for review;
Hearing arrangements where there is a family violence order;
Provision of documents to the SSAT;
The disclosure of information by the SSAT;
The requirement to complete and return a "Statement of Financial Circumstances" form;
The requirement to participate in a directions hearing when requested;
Requests for another person to make submissions to the SSAT on behalf of a party;
Adjournments;
Requirements in relation to hearings including who may be present and the giving of evidence;
Interpreters; and
Requests for reinstatement of an application that has been dismissed.

For more information, see SSAT Child Support Review General Directions 2012.

Other Directions and Notices

The SSAT must consider relevant information to make its decision and can request information from parties or other persons/bodies.

The SSAT receives documents from the Department of Human Services (Child Support). These same documents are also sent to the parties. The SSAT is not limited to those documents for the purposes of the review. It can decide that it requires further information either from Child Support, the parties or from other persons.

It is common for the SSAT to make directions for parties to provide information or documents, often at a directions hearing. It can also issue a formal notice to a party requiring the provision of information or documents.

If the SSAT decides that it requires further information from other persons/bodies such as trustees of a family trust, director of a private company, trustee of a superannuation fund, previous or current employer or bank, it has power under the legislation to issue formal notices requesting this further information.

The SSAT can issue a notice requiring a person to attend before the SSAT to answer questions or requiring a person to give information or produce documents to the SSAT [section 103K of the Child Support (Registration and Collection) Act 1988]; requiring the Child Support Registrar to provide the SSAT with information or a document [section 103J of the Child Support (Registration and Collection) Act 1988]; or requiring the Child Support Registrar to exercise his or her powers under the child support legislation to obtain information or documents from a person [section 103L of the Child Support (Registration and Collection) Act 1988].

Non-Compliance with Formal Directions/Notices

The SSAT Principal Member or a delegate may direct that a person no longer be a party to a review if the person fails to comply with the SSAT Child Support Review General Directions 2012 or other direction or order [paragraph 101(5)(c) of the Child Support (Registration and Collection) Act 1988]. If a person is removed as a party, the person will not be entitled to attend the hearing or make oral or written submissions to the SSAT. The person will not receive a copy of any further evidence or material that may be before the SSAT in making its decision. The SSAT's decision may be less favourable to the person than the decision of the Child Support Registrar and the person may not have a right of appeal against the SSAT's decision.

The SSAT Principal Member or a delegate may by written notice require a person to attend before the SSAT and answer questions or to produce documents [section 103K of the Child Support (Registration and Collection) Act 1988]. It is an offence punishable by imprisonment to refuse or fail to comply with such a notice.

Late Material

The SSAT requires that information from parties be received at least 14 days before a hearing. This provides the SSAT time to consider it and distribute the information to all parties (including the CSA) if necessary, thus enabling a fair hearing. Late documents may cause delay in the conclusion of the hearing.

Late material is information received by the SSAT within 14 days of a hearing. This may occur when documents come into existence after the deadline has passed and could not have been produced at an earlier point in time.

The SSAT must consider all relevant information in making its decision and make sure all parties have a proper opportunity to consider and respond to relevant material.

It will be a matter for the Presiding Member to decide whether documents received 'late' will be considered. If documents are received late, and the other party does not have an adequate opportunity to consider them, a possible consequence is that there may be an adjournment of the matter.

Privacy

A concern of many parties in child support matters is the protection of their privacy given that often sensitive financial or other information is supplied to all parties and the SSAT.

The Child Support legislation provides sanctions to protect people's privacy, including preventing parties from disclosing information obtained during SSAT proceedings to any other person.

When an SSAT decision is appealed to a court the SSAT is obliged to give certain documents to that court for the purpose of the appeal. For further information see Further Appeal Rights.

Non-disclosure Orders

The SSAT Principal Member or a delegate may make an order directing a person not to disclose information specified in the order [section 103ZAA of the Child Support (Registration and Collection) Act 1988]. Generally, such an order specifies information acquired by the person for the purposes of the review in the following ways:

Receipt of documents from the Child Support Registrar for the purposes of the review;
Participation in a directions hearing or hearing;
Receipt of documents from the SSAT (whether that document was given to the SSAT by a party to the review or a third party);
Attendance at the delivery of an oral statement of reasons for the SSAT's decision and/or receipt of a written statement of reasons for the SSAT's decision.

However, the SSAT Principal Member or a delegate may direct that a person can disclose information for a specified purpose or to a specified person (such as to a lawyer to obtain legal advice in relation to the review). In such a case information can only be disclosed for that limited purpose. The SSAT Principal Member or a delegate may also make a separate order directing a "specified person", such as a party's representative, not to disclose information [section 103ZAC of the Child Support (Registration and Collection) Act 1988].

A non-disclosure order does not apply to information which the person knew before the information was disclosed to the person for the purposes of the review.

A person commits an offence punishable by imprisonment for two years if a person contravenes a non-disclosure order made in relation to the person.

If you believe there has been a breach of an SSAT non-disclosure order, you should write to the Deputy Registrar of the SSAT registry that you are dealing with. Where the SSAT receives a written allegation of a breach of a non-disclosure order, the SSAT will refer the allegation to the Department of Families, Housing, Community Services and Indigenous Affairs if investigation is warranted.

Publication

Section 110X of the Child Support (Registration and Collection) Act 1988 severely restricts the publication of details of review proceedings. The effect of the provision is that a person commits an offence punishable by imprisonment for 12 months if the person publishes an account of review proceedings that identifies:

a party to the proceedings,
a witness to the proceedings,
a person related to, or associated with, a party to the proceedings or otherwise concerned in the matter.

The law permits the publication of the written reasons for decisions of the SSAT. A published decision must not, however, identify a party, a person related to, or associated with, a party or a witness (Section 16(2AB) of the Child Support (Registration and Collection) Act 1988). Selected SSAT decisions are published (with the removal of any personal identifying information) and are available on the AustLII website at www.austlii.edu.au.

The Decision

Written notice of the SSAT's decision will usually be received in the mail about 14 days after the hearing, or longer if the matter has been adjourned. Reasons for the decision will be provided either in writing or verbally. The SSAT's decision is always expressed in the terms of the legislation - that is, to affirm (i.e. the decision is confirmed), vary or set aside the decision (i.e. the decision of the CSA Objections Officer is changed).

If the SSAT cannot make a decision straight away, it will let you know within a few days of the hearing. Adjournments are only made if absolutely necessary.

Decisions should be read carefully. If English is not your first language, ask someone to explain it to you.

In reaching a decision, the SSAT takes into account:

All relevant evidence including the evidence of the applicant, any other parties, the CSA and other sources;
The provisions of the relevant legislation;
Relevant decisions of the AAT and the Courts;
CSA or department policy relating to the issue under review; and
The individual circumstances of each case.

Where this is more than one member, the member(s) constituting the hearing panel usually reach a unanimous decision. In many cases, the decision is made shortly after the end of the hearing when the members have conferred privately.

The front page of the decision contains the name of the applicant, the name of any other parties, details of the decision under review, information about the hearing and the decision of the SSAT.