Badgery and Child Support Registrar and Anor

[2013] FCCA 1727

FEDERAL CIRCUIT COURT OF AUSTRALIA

BADGERY & CHILD SUPPORT REGISTRAR & ANOR [2013] FCCA 1727

Catchwords:
CHILD SUPPORT – Stay – application for Stay of child support – no current proceeding – no basis for stay – Application incompetent.

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

Cases cited:
Kidd & Kidd (No.2) [2013] FCCA 1101

Applicant: MR BADGERY

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: MS BADGERY

File Number: SYC 5112 of 2013

Judgment of: Judge Scarlett

Hearing date: 15 October 2013

Date of Last Submission: 15 October 2013

Delivered at: Sydney

Delivered on: 15 October 2013

REPRESENTATION

Applicant: In Person

Solicitor for the First Respondent: Ms Sharma

Solicitors for the First Respondent: Department of Human Services

Solicitor for the Second Respondent: Ms Tin (as duty lawyer)

ORDERS

1. The Application is dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 5112 of 2013

MR BADGERY

Applicant

And

CHILD SUPPORT REGISTRAR

First Respondent

MS BADGERY

Second Respondent

REASONS FOR JUDGMENT

1. There is an application before the Court for a stay of arrears and ongoing child support, brought by the Applicant. Presumably, the stay is sought under the provisions of s. 111C of the Child Support (Registration and Collection) Act 1988 (Cth).

2. The facts are that the Applicant sought a review of a determination by the Child Support Agency, which was determined unfavourably to him on 3^rd October 2013.  The Child Support Registrar, who appears today, has submitted that the application for a stay, or rather, the continuation of the stay made by the Local Court of New South Wales at Kogarah on 8^th August 2013 should be continued on the basis that the Applicant has a period of 28 days from the date of determination, namely, 3^rd October 2013, in which to make application for review to the Social Security Appeals Tribunal.  In other words, he has until 1^st November to make an application to the SSAT for review.

3. There is no application to the SSAT at this stage.  The Applicant still has a period of approximately a fortnight in which he can make such application.  However, he is seeking the stay now. 

4. The application is misconceived.  An application for a stay is inherently a temporary application, and if there is no review pending, or no appeal pending, there is no basis upon which a stay can be ground.  I made a similar decision in matters under the Family Law Act 1975 on 2^nd August 2013 in a matter called Kidd & Kidd (No.2)[1].  As there is no application for review, there is no ground for a stay.  It follows that the application must be dismissed. 

   [1] [2013] FFCA 1101

5. If the Applicant wants a stay, he is going to have to file an application for review to the SSAT.  He is then going to have to bring a fresh application for a stay, and he is going to have to produce affidavit evidence that there is an application for review to the SSAT.  But I cannot grant a stay on the basis of what someone says they are going to do, only on a basis of ongoing proceedings.

6. Thus the Application is misconceived. There is no basis for a stay. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  28 October 2013