Ahern & Ahern & Anor (SSAT Appeal)
[2012] FMCAfam 1299
•23 November 2012
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 7th of each calendar month.
The First Respondent opposes the stay.
The solicitor for the Second Respondent, the Child Support Registrar, said that a stay was a matter for the Court, but should a stay be granted, it should be restricted to a further enforcement of collection of arrears and not to the ongoing assessment of child support. He further submitted that the proposed Order relating to the Section 72A Notice was redundant.
In reply, Ms Kaur-Bains for the Applicant told the Court that it was agreed that the money collected under the s.72A Notice should be retained and not refunded. The Court has the power under s.111C(3) of the Child Support (Registration and Collection) Act 1988 to order that the amount already collected be retained by the Child Support Registrar.
Background
The Applicant has appealed to the Court against a decision of the Social Security Appeals Tribunal by means of a Notice of Appeal filed on 14 November 2012. The Appeal is due to be heard on 13 May 2013.
On 8 October 2012 the Child Support Registrar issued a Notice under s.72A(1) of the Child Support (Registration and Collection) Act to the St George Bank Limited in respect of an amount of $5,000.00, being the amount of child support outstanding as at that date. That sum is currently being held by the Child Support Registrar.
Evidence and Submissions
The Applicant relies on an affidavit affirmed on 20 November 2012. He deposed that he is a [occupation omitted] and the account at the St George Bank the subject of the notice is his general business account. He stated that, as a result of the withdrawal of sums totalling $5,000.00 from the account, the account has been constantly overdrawn in amounts ranging from $2,437.95 to $12,183.95 with effect from 25 October 2012.[1]
[1] Affidavit of Mr Ahern 20.11.2012 at paragraph [18]
He set out various debts that he owes and details of the income from his [occupation omitted].
The Applicant described in his affidavit how he suffers from severe anxiety and annexed to his affidavit a copy of a brief report from a general medical practitioner, Dr I, dated 29 August 2012.
The Applicant also set out, at paragraphs [45] to [48] of his affidavit, reasons why he believes that the Social Security Appeals Tribunal made errors in deciding his review. He claims that:
a)The Tribunal erroneously made a finding that he had repaid an overdraft of $70,000.00 in full over two years; and
b)He was not permitted to call evidence in the hearing from his partner Ms S, who is also his [occupation omitted].
Ms Kaur-Bains of counsel submitted for the Applicant that 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[2]. In that decision, 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.
[2] [2007] FCA 1732
Further, it was submitted that it is reasonably arguable that there is an error of law in the Tribunal decision, in particular, that the Tribunal made a decision that the Applicant had repaid an overdraft of $70,000.00 without any evidence and, further, that the Tribunal had misunderstood the meaning of the term “financial resources” as used in s.117 of the Child Support (Assessment) Act 1989. Ms Kaur-Bains referred the Court to the decision of Sexton FM in Ladd & Child Support Registrar (SSAT Appeal)[3], where her Honour held at [34]:
I find the Tribunal misinterpreted the meaning of “financial resources” when it failed to examine the financial evidence before it in the context of determining what the actual personal financial resources of the appellant really were. This required an analysis of the personal benefits which actually flowed to the appellant from the company from the company’s financial records. While I accept Mr Gouliaditis’ contention that it was a matter for the Tribunal whether or not to include particular liabilities of the company when deciding the extent of the appellant’s personal financial resources, the Tribunal could not simply disregard those liabilities without explanation, and the loss incurred by the company in that year. I do not accept the submission that the Tribunal’s approach was consistent with the Gyselman decision[4], nor that Gyselman be distinguished because it concerned the debts of an individual.
[3] [2010] FMCAfam 23
[4] In the Marriage of Gyselman (1991) 103 FCR 156
As to the balance of convenience, it was submitted that the Applicant had a number of debts and also suffered from an anxiety disorder. Against this, it was conceded that the First Respondent needed ongoing payments of child support to meet the children’s needs, and to this end the Applicant was offering to pay child support at the rate of $150.00 per month until the appeal against the SSAT decision was determined.
For the Child Support Registrar, Mr Gouliaditis tendered without objection a bundle of correspondence and told the Court that the Child Support Registrar had been attempting to obtain from the Applicant information about his claim that he was suffering hardship due to the service of the s.72A Notice.
It was submitted that the Applicant’s argument was an argument in the nature of merits review. The Social Security Appeals Tribunal clearly took the Applicant’s expenses into account in its decision. If there is an error, it is an error of fact, not law.
The First Respondent told the Court that the Applicant had not been paying child support on a regular basis. He was supposed to pay $266.00 per month but he had not been doing so. She had received a lump sum in December 2010, which she believed came from an intercept. She had then received the sum of $327.00 in March of 2012 and an amount of $150.00 in October. She submitted that the amount of $5,000.00 seized as a result of the s.72A Notice should be distributed to pay the arrears of child support.
She submitted that the children were suffering hardship because the Applicant is spending money on lawyers that should go to pay child support. The children have needs that she cannot meet. She submitted that the Court should not grant the stay.
The Relevant Law
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.
Subsection 111C(5) provides:
An order under subsection (3):
(a) is subject to such terms 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.
As mentioned in Jones v Child Support Registrar[5], the Court should consider:
a)whether there is an arguable basis for suggesting that the appeal might succeed; and
b)the interests of the parties who may be affected by the outcome of the proceeding, i.e. the balance of convenience.
[5] supra
Conclusions
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 a question of law, as the Applicant submits, or whether the claim is no more than a factual issue, as the Child Support Registrar submits, is a matter to be decided on the hearing of the Appeal. It is for the Applicant to establish that the Tribunal’s finding that he managed to repay an overdraft of $70,000.00 is a finding made without evidence, which would take the matter beyond a mere questioning of the factual merits of the Tribunal’s decision. Whilst the claim does not appear to be overwhelmingly persuasive, it is far from a hopeless case.
Thus, I am satisfied that the Applicant has shown that he has an arguable case, a serious question to be tried on appeal.
The Applicant has also provided evidence that he is suffering financial hardship and would be financially strained if the Child Support Registrar were to take further enforcement action before the Appeal is determined.
The Court must also consider the interests of the First Respondent, the payee entitled to child support. She would suffer hardship if she were not to receive any payments of child support at all in the intervening period. The Applicant has committed himself to pay $150.00 per month towards his child support obligation. In view of the First Respondent’s complaints about his erratic payments in recent year, if the Applicant were to pay $150.00 per month promptly it would provide the First Respondent with some certainty, at least.
I am satisfied that the case for a stay has been made out. The stay will be conditional on the Applicant paying to the Child Support Registrar for payment out to the First Respondent the sum of $150.00 per month towards his child support obligation. However, the Applicant will need to start paying promptly. The first payment is to be made on 30 November and monthly thereafter.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 November 2012
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