The Hearing Process
On this page:
SSAT
Hearings
Who can attend a hearing?
Representatives
Support persons
Witnesses
Interpreters
Telephone Hearings
Video-conference Hearings
Information Exchange
Financial Information
Statement of Financial
Circumstances
Formal
Directions/Notices
Privacy
The Decision
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 decision of the CSA. 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 CSA representative does not normally attend the hearing. In all
child support reviews the CSA puts its case to the SSAT in paper
documents. These are the same papers that are also provided to the
parties. The CSA may request to attend the hearing, or the SSAT may
direct the CSA to attend and make oral submissions if such
submissions would assist the SSAT. Before all hearings, the CSA is
required to send a copy of the papers setting out the decision and
reasons for the CSA decision and any relevant papers held by the
CSA, to the SSAT, the applicant and the other parent.
Child support review hearings are electronically recorded for the
purposes of any appeal to the Federal Magistrates Court. A party
must not electronically record a child support hearing or
pre-hearing conference.
In child support cases any additional documents provided by
applicants and other parties must be submitted to the SSAT at least
14 days prior to the hearing. If a party provides a document to the
SSAT less than 14 days before the hearing, 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 the terms of 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 many cases, will make a decision quickly
and provide a decision within 14 days of the hearing. However, the
SSAT may adjourn the matter e.g. to obtain further information from
parties or the CSA before making a decision. Parties will be
advised if the hearing has been adjourned.
Who can attend a hearing?
SSAT hearings are required by law to be held in private. 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 law allows only certain people to decide and direct who else
may be present at a hearing. The Presiding Member or the relevant
Senior Member are the only people who can decide who may be present
at a hearing. Case Managers cannot make this decision.
In making a decision as to who can be present at a hearing the law
[Section 103P of the Child Support (Registration and
Collection) Act] requires the person making the decision to
take into account;
- the wishes of the parties, and
- the need to protect the privacy of the parties.
Representatives
A party does not need to be represented at a hearing. Parties
frequently appear unrepresented. However a party may wish to have a
representative attend the hearing. A person who attends as a
representative has a particular role to perform. If a person is
performing the role of a representative (and is not a potential
witness or in attendance for support) ordinarily that person would
be permitted to represent a party. That enables them to make
submissions on a party's behalf [section 103C(2) of the Child
Support (Registration and Collection) Act]. Essentially this
means that they are presenting a summary of that party's case and
the points or issues that party wishes to make to assist the SSAT
to understand their case. If a party does not feel able to perform
this role, someone who is not a party may be in a position to do it
on their behalf.
A representative should not attempt to give evidence. If they give
evidence about the matter they are a witness rather than a
representative. Ultimately it is for the SSAT to determine whether
the person is a representative or a witness or support
person.
The representative may, but need not, be a lawyer. However the
SSAT cannot make any order for payment of the representative's
costs. If a party chooses to bring a representative to the hearing,
they must bear any costs of that representative's attendance.
If a party has a representative in attendance, 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, their position might be adversely affected.
Support persons
A support person is able to attend in the waiting area of the
SSAT. Whether that person can be present in the hearing room during
the hearing cannot be answered with a simple yes or no - it depends
on the particular circumstances. Usually it is a matter for the
SSAT to determine on the day of the hearing.
This decision cannot be made in advance of the hearing as the law
requires the SSAT to have regard to the wishes of both parties
before making this decision [Section 103P of the Child Support
(Registration and Collection) Act]. It is most efficient to
discuss this with both parties on the day of the hearing.
As the hearing is held in private this means that, generally, no
additional people are permitted to be present in the hearing room.
It is not usual for support persons to be admitted into the
hearing.
The decision as to whether a support person will be allowed to
enter or remain in the hearing room can only effectively be decided
by the Presiding Member. Ordinarily this will depend on the SSAT's
view whether or not the hearing can proceed appropriately without
the attendance of the support person.
Witnesses
A party must notify the SSAT of any witness who the party
intends to have give evidence at the hearing at least 14 days
before the hearing.
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]. In addition, the SSAT Child Support Review Directions
2009 provide that a child must not be a witness at a hearing.
This applies to all children, whether or not a child of the
parties.
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
The SSAT may decide that an interpreter is required for a
hearing or pre-hearing conference. In addition, a party may request
the SSAT, at least 14 days before a hearing, to arrange for an
interpreter to be present at a hearing or pre-hearing conference.
If a party wishes to use an interpreter of their choice, the person
may only act as an interpreter for the party with the agreement of
the SSAT.
An interpreter must take an oath or make an affirmation before
providing interpreter services at a 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 or video-conference 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 pre-hearing conference 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 recognises that people may have concerns about the
privacy of documentation which is supplied to it.
Many child support matters involve information about people's
financial or other personal circumstances. The SSAT needs to have
all relevant information in order to make the correct or preferable
decision. It is a principle of procedural fairness that any
documents or information which the SSAT relies on to make a
decision should be made available to all parties. This is so that
all parties have an opportunity to comment on material given to the
SSAT by another party or witness, allowing any questions to be
raised. It would be improper for the SSAT to rely on documents
which it receives without the knowledge of one of the
parties.
This is not simply a procedural requirement of the SSAT but is
based on the legal principle of a right to a fair hearing. That
right includes a right to be informed of the nature and content of
any material which is potentially adverse to a person.
Particular concerns
The usual position is that full disclosure of documentation to
all parties is required, unless the SSAT member(s) decide that the
document or information contained in the document is not relevant
to the review. However, there may be occasions where it is
appropriate for a document or part of the document not to be
released to the other party.
Ordinarily it will be the responsibility of the person sending in
information to delete any sensitive information using a dark pen.
The SSAT is not responsible for editing documents supplied by the
parties. It should be evident from the face of the document that
there have been deletions. It is common for information such as
addresses, phone numbers and tax file numbers to be deleted.
If a party has a particular request for the SSAT not to disclose
certain information, that party should set out the reasons for the
request in writing. It will be a matter for the relevant SSAT
Senior Member to determine whether or not that request is granted.
A Case Manager cannot make this decision. The decision has to be
made on a case-by-case basis and may vary depending on the
circumstances of the particular case.
Example 1
A party produced documentation of their business, showing a reduction in their customer base, to demonstrate a downturn in the business. The documentation included details of the customers' names and addresses. It may be appropriate for those customers' names and addresses to be deleted. The SSAT may determine that procedural fairness will be satisfied by the substance of the information, being passed on to the other party rather than the detail - i.e. that the customer base has reduced from thirty (30) to ten (10) but not any details of the actual customers' names.
Example 2
The detail contained in medical information may or may not be relevant to a particular case. If someone is suggesting they cannot work due to a medical condition it may be appropriate that the detail of the medical condition is relevant and therefore any medical report should be released.
However if a person indicates they have incurred expenses associated with an operation it may be irrelevant for the details of that medical condition to be disclosed (but receipts as evidence of actual expenditure may be required).
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 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 after
receiving it. This is required under the SSAT Child Support Review Directions
2009.
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
Directions 2009, including the requirement to complete and
return a "Statement of Financial Circumstances" form.
Formal Directions/Notices
SSAT Child Support Review 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 Directions 2009). The General Directions set out procedures to be followed in child support reviews. The matters dealt with in the General Directions include:
- Limits on disclosure by a party of CSA and SSAT documents;
- Limits on disclosure of documents or information obtained during the review process;
- Limits on disclosure by a party's representative of documents or information received during the review process;
- Provision of documents to the SSAT;
- The use and disclosure of documents by the SSAT;
- The requirement to complete and return a "Statement of Financial Circumstances" form;
- The requirement to take part in a pre-hearing conference when requested;
- Adjournments;
- Requirements in relation to witnesses 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 Directions 2009.
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 CSA. 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 the CSA, the parties or
from other persons.
It is common for the SSAT to make directions for parties to
provide information or documents, often as part of a pre-hearing
conference process. 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 also issue a notice requiring the attendance of a
person before the SSAT to answer questions [Section 103J of the
Child Support (Registration and Collection) Act]; in
relation to information or documents from the Child Support Agency,
[Section 103K of the Child Support (Registration and
Collection) Act]; or in relation to requiring a person to
attend and/or to provide information or documents from other
persons.
Non-Compliance with Formal Directions/Notices
The SSAT has the power to remove a party to the proceedings if a
person fails to comply with the SSAT
Child Support Review Directions 2009 or other or order [Section
101(5)(c) of the Child Support (Registration and Collection)
Act]. If a person is removed as a party they are at risk of
the application being dismissed or the matter proceeding in their
absence. If a person is removed as a party they cannot participate
in the review and will not receive a copy of the written
decision.
If a person does not comply with a formal notice, an offence is
committed under section 103K of the Child Support (Registration
and Collection) Act. The offence carries a sanction of an
imprisonment term.
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.
SSAT Child Support Review 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
Directions 2009).
Under the General Directions, a party must not disclose documents
or information obtained during the review process to any person,
except to their authorised representative for the purposes of the
review or other CSA proceedings.
A party's "authorised representative" is either of the
following:
- A person who is authorised by the party to represent them in a review and who the SSAT accepts may represent the party in the review;
- A person who is authorised by a party to represent them in CSA, AAT or court proceedings about child support.
A witness must not disclose documents or information obtained
during the reviewl process to any person.
For further details, see SSAT Child
Support Review Directions 2009.
Orders
Orders or directions can be made by the SSAT in respect of a particular review in relation to the following:
- Documents sent from CSA related to the review - a person cannot disclose information in the statements or documents.
- Information given in a hearing - a person cannot disclose information obtained in the course of a hearing.
However, the SSAT can direct that a person can disclose information for a specific purpose (such as to a lawyer to obtain legal advice). In such a case information can only be disclosed for that limited purpose.
Publication
The law also contains a provision (Section 110X) severely restricting the publication of details of proceedings. The effect of the provision is that a person cannot publish anything identifying:
- 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,
- any personal particulars or property interests of a person, etc.
Another provision (section16) prevents any staff of the CSA or
staff or member of the SSAT divulging information or producing a
document to a court (except under certain limited circumstances
under the Act).
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)). Selected SSAT decisions are
published (with the removal of any personal identifying
information) and are available on the CSA website at www.csa.gov.au.
Breaches of Non-disclosure Directions and Publication Restrictions
The consequences for breaches of certain directions or provisions of the Act are serious. Offences are prescribed. Penalties can include imprisonment terms of up to two years.
Section 96(3) Child Support
(Registration and Collection) Act
Section 103Q(2) Child Support (Registration and Collection)
Act
Section 110X(1) Child Support (Registration and Collection)
Act
Section 16(2) Child Support (Registration and Collection)
Act
The SSAT cannot investigate if a party or person believes that
there has been a breach of privacy by a party as the result of
non-compliance with a direction. The SSAT has no power to do so
under the legislation.
If you believe there has been a privacy breach in relation to an
SSAT direction, you should contact:
Complaints Team
Department of Families, Housing, Community Services and Indigenous
Affairs
PO Box 7576
Canberra Business Centre ACT 2610
Email: complaints@fahcsia.gov.au
Phone: 1800 634 035
A person who wants to refer a matter for investigation should be in a position to provide evidence that there has been a breach - mere suspicion will not be enough.
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.