Borwick and Child Support Agency and Anor (SSAT Appeal)
[2011] FMCAfam 1471
•21 December, 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BORWICK & CHILD SUPPORT AGENCY & ANOR (SSAT APPEAL) | [2011] FMCAfam 1471 |
| CHILD SUPPORT – Application for stay of collection – consideration of discretionary factors. |
| Child Support (Registration and Collection) Act 1988, s.117C |
Agrippa & Horton (2010) FMCAfam 1144
| Applicant: | MR BORWICK |
| First Respondent: | CHILD SUPPORT AGENCY |
| Second Respondent: | MS PLANT |
| File Number: | BRC 1371 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 21 December, 2011 |
| Date of Last Submission: | 21 December, 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 21 December, 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Evans |
| Solicitors for the Applicant: | Evans & Company |
| Solicitor for the First Respondent: | Ms Surm |
| Solicitors for the First Respondent: | DLA Piper |
No appearance by the Second Respondent
ORDERS
Conditional upon the applicant father remitting the sum of $50 per week to the Child Support Agency for the support of the subject child [X], the collection of child support in any other sum, any arrears of child support or penalties by the Registrar or delegate of the Registrar of the Child Support Agency be stayed until further order or determination of the Child Support review.
The Registrar of the Child Support Agency be restrained and an injunction be granted restraining any collection or enforcement of sums or amounts other than as referred to in paragraph 1 hereof.
For so long as the stay remains in place the applicant take no steps to enforce the costs order made by Federal Magistrate Cassidy.
Otherwise the application in a case be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Borwick & Child Support Agency & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1371 of 2011
| MR BORWICK |
Applicant
And
| CHILD SUPPORT AGENCY |
First Respondent
| MS PLANT |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore – revised from the transcript)
This is an application for the stay of collection of child support from the applicant.
These proceedings took two parts. One is an appeal against the decision of the SSAT wherein certain decisions of the SSAT are challenged by Mr Borwick.
At the same time there were proceedings before me which challenged a procedural decision of the SSAT to exclude Mr Borwick as a party to the application then before it.
For reasons that I have already delivered, I determined that the SSAT’s decision in that respect ought to be set aside and the matter remitted to the SSAT for determination according to law. The practical consequence of that seems to be that arrears of child support, which were then outstanding in consequence of the SSAT’s redetermination, of something over $20,000 were reduced and presently stand at about $6,000 plus interest and penalties of $1,700.
It is the collection of that amount and any current assessment which expires in January, 2012 (beyond the figure of $50 per week) that
Mr Borwick seeks to be stayed.
I know very little about the ins and outs of the SSAT decision. It was not necessary in the way in which the matter was resolved to come to grips with the fine detail of that application and so the basis of the SSAT’s redetermination of child support is not entirely clear to me but it seems to me that it does not need to be.
I have power under s.117C of the Child Support (Registration and Collection) Act 1988 to order that the collection of child support be stayed.
The factors to be taken into account and the approach to such an application as this are conveniently set out in the authority referred to usefully by the solicitor for the applicant of Agrippa & Horton (2010) FMCAfam 1144.
In that case Halligan FM said that the approach to an application such as this is not unlike an application for an interim injunction. That is: is there a serious issue to be tried? or to use his Honour’s words, is there a “serious issue to be addressed in the redetermination of the review application by the SSAT.” Secondly, the Court is concerned with where the balance of convenience lies.
I accept that there is a serious issue to be tried on the redetermination application. I accept that there may well be an issue to be determined by the SSAT about the circumstances in which the subject child attends a private educational institution and the arrangements between the parents for the meeting of the costs of those arrangements.
The real issue which concerns me is the balance of convenience. I have great philosophical difficulty with the notion that a person who has not paid child support to the extent to which it was assessed and thereby allowed arrears to accumulate, now suggests that a stay ought to be granted because not to do so would leave that person exposed to the possibility that any payments that he or she might make will not returned to them should their determination in the SSAT be successful.
There are other factors to be taken into account. It is important to understand that the power under s.117C is a power to stay collection. It does not prevent the accumulation of child support or a child support debt to either the Commonwealth respondent payee; simply it is a stay of collection.
Whilst the payee in this case may be without some funds for the duration of the existence of the stay, the debt will nonetheless continue to accumulate although it may well be changed in the future, having regard to any determination that the SSAT might make.
Moreover, the applicant is not suggesting that the respondent payee ought to be left without any child support whatsoever and, as part of his application he proffers an undertaking that there be payment of $50 per week by him to the agency in respect of his child support obligations. It is better than nothing and as he points out in his most recent affidavit, the assessment which will be effective from some time in January, 2012 will reduce his obligations to $12 per week.
The respondent payee owes the applicant some money pursuant to a costs order made in this Court. I am told that the quantum of that costs order is $3500.
In the circumstances, and having regard to the offer of the applicant to pay at least some child support, it seems to me that I ought to grant the stay that is being asked for. Subject to two matters the balance of convenience favours the grant of the stay. The first matter is that the applicant making payment of $50 per week to the child support agency, as he seeks an order for him to do. The second is that for so long as the stay of the collection of child support remains in place, he undertakes no steps to enforce the costs order in his favour against the payee.
RECORDED : NOT TRANSCRIBED
Paragraph 1 will be amended so that it says “be stayed until either further order or the determination of any review application before the SSAT. Paragraph 2 will be in its current form. Paragraph 3 will be that the husband not take any steps to enforce the costs order made in his favour against the respondent by Cassidy FM and otherwise the application in a case is dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 11 January 2012
0
0
0