Ahern & Ahern & Anor (SSAT Appeal) - [2012] FMCAfam 1299

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AHERN & AHERN & ANOR (SSAT APPEAL)

[2012] FMCAfam 1299

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

Child Support (Assessment) Act 1989 (Cth), s.117
Child Support (Registration and Collection) Act 1988 (Cth), ss.72A, 111C

In the Marriage of Gyselman [1991] 103 FCR 156
Jones v Child Support Registrar [2007] FCA 1732
Ladd & Child Support Registrar (SSAT Appeal) [2010] FMCAfam 23

Applicant:

MR AHERN

First Respondent:

MS AHERN

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

SYC 5609 of 2012

Judgment of:

Scarlett FM

Hearing date:

23 November 2012

Date of Last Submission:

23 November 2012

Delivered at:

Sydney

Delivered on:

23 November 2012

REPRESENTATION

Counsel for the Applicant:

Ms Kaur-Bains

Solicitors for the Applicant:

Jackson Lalic Lawyers

The First Respondent:

In person via telephone

Solicitors for the Second Respondents:

Australian Government Solicitor

ORDERS

UNTIL FURTHER ORDER:

The collection and enforcement of child support arrears accumulated up to and including the date of this Order payable by the Applicant to the First Respondent for the children [X] born [in] 1998, [Y] born [in] 1999 and [Z] born [in] 2004 is stayed.
The sum of $5000.00 held by the Child Support Registrar as a result of the operation of the Notice under subsection 72A of the Child Support (Registration and Collection) Act 1988 dated 8 October 2012 is to be retained by the Child Support Registrar until further Order of the Court.
The Applicant is to pay to the Child Support Registrar for payment out to the First Respondent on account of child support the sum of $150.00 per month the first payment to be made by 30 November 2012 and monthly thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Ahern & Ahern & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 5609 of 2012

MR AHERN

Applicant

And

MS AHERN

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

This is an Application for a stay of collection and enforcement of arrears until the determination of the Applicant’s Appeal to this Court against a decision of the Social Security Appeals Tribunal.
The orders sought are set out in a document entitled Application in an Urgent Case filed by the Applicant on 26 October 2012. In that Application, he seeks orders providing that:
a)the collection and enforcement of child support arrears accrued to date be stayed until further order;
b)the operation of all child support assessments be stayed pending the determination of the Appeal;
c)the operation of the section 72A Notice dated 8 October 2012 be stayed and any money received as a result of the notice to be refunded to the Applicant; and
d)The Applicant to make payments of child support to the in the amount of $150.00 per month on or before the 7^th of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahern & Ahern & Anor (SSAT Appeal)

Details

AGLC: AHERN & AHERN & ANOR (SSAT APPEAL) [2012] FMCAfam 1299
Case: [2012] FMCAfam 1299
Decision Date: 23 November 2012

CaseChat Overview and Summary

The parties involved in the appeal were Ahern (the applicant) and Ahern & Anor (the first and second respondents). The dispute related to child support arrears that had accumulated and were subject to enforcement by the Child Support Agency. The matter was heard in the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT). The appeal was subsequently heard in the Federal Circuit Court of Australia.

The central legal issues before the court were the enforcement of child support arrears and the amount of child support payments to be made by the applicant to the first respondent for their three children. The court needed to determine whether the stay on the collection and enforcement of the arrears should be lifted and the amount of child support payments that should be made by the applicant.

The court considered the financial circumstances of the parties, including the applicant's capacity to pay and the needs of the children. The court found that the applicant had the capacity to pay child support and that the amount of $150.00 per month was appropriate. The court also found that the stay on the collection and enforcement of the arrears should remain in place until further order of the court. As a result, the court stayed the collection and enforcement of the child support arrears and ordered that the applicant pay $150.00 per month to the first respondent for the support of their children. Additionally, the court ordered that $5000.00 held by the Child Support Registrar as a result of the operation of a notice under the Child Support (Registration and Collection) Act 1988 be retained by the Registrar until further order of the court.

The court's final orders included a stay on the collection and enforcement of child support arrears up until further order of the court, a requirement for the applicant to pay $150.00 per month to the first respondent for the support of their children, and the retention of $5000.00 held by the Child Support Registrar until further order of the court.

Orders

Orders of the court

UNTIL FURTHER ORDER:

The collection and enforcement of child support arrears accumulated up to and including the date of this Order payable by the Applicant to the First Respondent for the children [X] born [in] 1998, [Y] born [in] 1999 and [Z] born [in] 2004 is stayed.

The sum of $5000.00 held by the Child Support Registrar as a result of the operation of the Notice under subsection 72A of the Child Support (Registration and Collection) Act 1988 dated 8 October 2012 is to be retained by the Child Support Registrar until further Order of the Court.

The Applicant is to pay to the Child Support Registrar for payment out to the First Respondent on account of child support the sum of $150.00 per month the first payment to be made by 30 November 2012 and monthly thereafter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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