Abani & Abani & Anor (SSAT Appeal)

[2014] FCCA 2058

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABANI & ABANI & ANOR (SSAT APPEAL) [2014] FCCA 2058

Catchwords:
CHILD SUPPORT – Appeal – Application for Stay – Application for Stay pending finalisation of appeal against decision of Social Security Appeals Tribunal – principles to be applied.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.159, 159A

Child Support (Registration and Collection) Act 1988 (Cth), s.111C

Federal Circuit Court Rules 2001 r.15.29

Cases cited:
Jones v Child Support Registrar [2007] FCA 1732

Applicant: MR ABANI

First Respondent: MS ABANI

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 849 of 2014

Judgment of: Judge Scarlett

Hearing date: 15 July 2014

Date of Last Submission: 15 July 2014

Delivered at: Sydney

Delivered on: 5 September 2014

REPRESENTATION

The Applicant: In person

The First Respondent: In person

Solicitor for the Second Respondent: Ms Given

Solicitors for the Second Respondent: Sparke Helmore Lawyers

ORDERS

UNTIL FURTHER ORDER

1. The collection and enforcement of arrears of child support accumulated up to and including the date of this Order payable by the Applicant to the Respondent MS ABANI for the children [V] born [in] 2003, [W] born [in] 2005, [X] born [in] 2007, [Y] born [in] 2009 and [Z] born [in] 2010 are stayed.

2. The Applicant is to pay to the Respondent Child Support Registrar for payment out to the Respondent MS ABANI on account of child support the sum of $500.00 per month the first payment to be made on or before 3 October 2014 and monthly thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Abani & Abani & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth). 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 849 of 2014

MR ABANI

Applicant

And

MS ABANI

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for a stay of:

   a)collection and enforcement of arrears of child support “pending the determination of the re-hearing in the Social Security Appeals Tribunal”: and

   b)the operation of all child support assessments payable by the Applicant to the First Respondent for the parties’ five children “pending the determination of the re-hearing in the Social Security Appeals Tribunal.”

2. The First Respondent opposes the stay.

3. The solicitor for the Second Respondent, the Child Support Registrar, submitted that a stay was a matter for the Court, but, should a stay be granted, it should be restricted to a further collection of arrears and not to the ongoing assessment of child support.    

Background

1. The Applicant has appealed to the Court against a decision of the Social Security Appeals Tribunal by means of an amended Notice of Appeal filed on 26 June 2014. The Appeal is due to be heard this month.

Evidence and Submissions

1. The Applicant relies on an affidavit sworn or affirmed on 26 June 2014, in which he essentially he claims financial hardship as a reason for the stay. The affidavit contains other material which is quite clearly irrelevant and will not be considered, including:

   a)an allegation that the Respondent Mother has made false and misleading statements or has made statements recklessly in contravention of ss.159 and 159A of the Child Support (Assessment) Act 1989 (Cth); and

   b)a personal attack on a solicitor employed by the Department of Human Services; and

   c)a generalised attack on the Child Support Agency.

2. As well as being irrelevant to the issue of whether or not a stay should be granted, some of the material verges on scandalous and may be liable to be struck out under the provisions of Rule 15.29.

3. More relevantly, the Applicant deposes that he is in financial hardship and his parents are assisting to help pay his living expenses and the shortfall on his mortgage. His company does not have any employees and he deposes that he is looking after everything until the remainder of his business is sold.

The Relevant Law

1. Section 111C of the Child Support (Registration and Collection) Act provides that a party to a proceeding may apply for a stay of the operation of a process of either or both the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act. Subsection 111C(3) provides:

   Pending the hearing and final determination of the proceeding, the Court may make such orders as the Court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the Court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.

2. Subsection 111C(5) provides:

   An order under subsection (3):

   (a)    is subject to such terms and conditions and conditions as are specified in the order; and

   (b)    operates for:

   (i)     such period as is specified in the order; or

   (ii)    if no period is specified – until a decision of the court, the Registrar or the SSAT determining the proceeding becomes final.

3. The way in which a court should approach an application for a stay under s.111C of the Act is set out in the decision of Emmett J in Jones v Child Support Registrar[1]. His Honour held at [10]:

   It appears to me that, before a stay could be granted, I would have to be satisfied that there is a serious question to be tried on the appeal or, putting it another way, that there is at least some arguable basis for suggesting that the appeal might succeed. Secondly, it would be necessary for the Court to have regard to the balance of convenience. Section 111C(3) of the Act requires the Court to take into account the interests of the persons who may be affected by the outcome of the proceeding. That, I suspect, does not go much beyond the balance of convenience.

   [1] [2007] FCA 1732

Conclusions

1. In his Amended Notice of Appeal, the Applicant sets out some 27 separate grounds of appeal, all of which are said to be questions of law. Clearly, some of them are not matters of law at all but more in the nature of merits review, but there are included such grounds as:

   a)Failing to have regard to relevant considerations;

   b)Making a finding of fact where there was no evidence;

   c)Failing to consider a relevant factual matter;

   d)Denial of procedural fairness;

   e)Denial of natural justice; and

   f)Bias.

2. Clearly, it will be up to the Applicant to make out his case on the hearing of the Appeal. In order to show an arguable case, a party does not need to demonstrate that he or she has a strong case, let alone one that is bound to succeed. Whether the Applicant’s case does raise one or more questions of law or whether his claims only go to factual issues will be decided on the hearing of the Appeal.

3. I am inclined to find that the Applicant has shown that he has an arguable case.

4. The Court must also consider the interests of the First Respondent, the payee entitled to child support. She has to support the parties’ five children and opposes any stay, although it appears that she is not receiving any payments at present.

5. I am satisfied that a stay should be granted. However, it is inappropriate to grant a stay pending the determination of the re-hearing in the Social Security Appeals Tribunal, as the Applicant seeks in his Application. The Applicant needs to be successful in his Appeal before the Social Security Appeals Tribunal will rehear his appeal.

6. The stay should extend until this Court decides his Appeal.

7. A stay can be granted on conditions, and I propose to order that the Applicant should pay an amount of $500.00 per month to the Child Support Registrar for payment out to the First Respondent during the continuance of the stay. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 5 September 2014