Baylden and Baylden and Anor (SSAT Appeal)

[2013] FCCA 2000

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAYLDEN & BAYLDEN & ANOR (SSAT APPEAL) [2013] FCCA 2000

Catchwords:
CHILD SUPPORT – Stay – Application for Stay – where Applicant has appealed against a decision of the Social Security Appeals Tribunal.

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

Applicant: MR BAYLDEN

First Respondent: MS BAYLDEN

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 2887 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

First Respondent: In person

Counsel for the Second Respondent: Mr Kaplan

Solicitors for the Second Respondent: Department of Human Services

ORDERS

UNTIL FURTHER ORDER

1. Enforcement of the collection of arrears of child support and the payment of ongoing child support in respect of the children, X and Y, is stayed until the hearing and determination of the appeal against the decision of the Social Security Appeals Tribunal made on 23 April 2013 and dispatched on 6 May 2013, on condition that the Applicant pay to the Respondent the sum of $500.00 per month by way of child support.  The first payment to be made within 14 days.

2. The Appeal against the decision of the Social Security Appeals Tribunal will be listed for final hearing on 12 November 2013 at 12 noon.

IT IS NOTED that publication of this judgment under the pseudonym Baylden & Baylden & 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 2887 of 2013

MR BAYLDEN

Applicant

And

MS BAYLDEN

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is seeking a stay of the operation of the child support assessment and any enforcement proceedings, until an appeal is heard and in fact determined against the decision of the Social Security Appeals Tribunal.  He seeks an order that he will continue to contribute $400.00 per month in child support until the appeal is heard and determined.

2. The Child Support Registrar does not take a position either way.  The First Respondent opposes the application for a stay on the basis that the Applicant is in arrears.  She said she can confirm that he has paid some money in the sum of $6,000.00. She cannot confirm his contention that he has paid the amount of $10,000.00 in the last period of approximately three months. 

3. She is also of the view that it is unjust or unfair that he should pay an amount of $2,800.00 for children of his other relationship, but is not prepared to make appropriate payments in respect in respect of these two children, who are the subject of these proceedings. 

4. Against this, the Applicant relies on his affidavit and his earlier financial statement to say that he has not the funds to meet the amounts.  He claims, at paragraph 2, that the recent decision by the Social Security Appeals Tribunal means that his debt went to $42,051.00 with a payment of over $1,900.00 a month.

5. He notes in paragraph 5, that the Child Support Agency issued a section 72A order with (omitted) Bank to secure all of his funds held in his bank account with (omitted) Bank, which is the only bank account that he has and he has received a demand for rent from his landlord which is threaten to termination notice, if he does not pay the rent and he said that at paragraph 7:

   I have no way of paying child support to my other children who rely on payments from me without access to my funds in my (omitted) Bank account.

6. The Applicant also says that he believes that he has a strong case on appeal.  That is not necessarily conceded by either of the Respondents.

7. A stay application is, of course, an interim application on a discretionary basis.  I note the period of time until the appeal is heard, which is on 12^th November 2013, is approximately 28 days away.  I note the evidence and of course, I cannot go through the finer points of the evidence at this stage.

8. I note that the Applicant has offered to pay an amount towards child support in the sum of $400.00 per month, which is significantly less than the amount which he has been assessed and significantly less than the First Respondent says that he is paying in respect of other children.  Taking all those matters into account, as the appeal is to be heard relatively soon, I am of a view that there is a basis to make order, but I am not satisfied that it should be conditional on only the amount of $400.00 per month as the Applicant seeks.

9. In my view, it should be somewhat more generous than that, but even so, it would not be a significant amount, but it will need to be paid.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  26 November 2013