Chopra and Child Support Registrar and Anor (No.2)

[2019] FCCA 3828

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOPRA & CHILD SUPPORT REGISTRAR & ANOR (No.2) [2019] FCCA 3828

Catchwords:

FAMILY LAW – CHILD SUPPORT – Where the matter had been dismissed – seeking reinstatement – seeking a stay on an order from the Administrative Appeals Tribunal which is the subject of a Federal Court appeal – seeking dismissal of a costs order – whether the applicant has an arguable case.  

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.44A(2)

Child Support (Registration and Collection) Act 1988 (Cth), s.11C

Family Law Act 1975 (Cth), s.117(2A)(e)

Cases cited:

Chopra & Child Support Registrar & Anor [2019] FCCA 3827

Applicant: MR CHOPRA

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: MS CHOPRA

File Number: MLC 5574 of 2016

Judgment of: Judge McNab

Hearing date: 11 December 2019

Date of Last Submission: 11 December 2019

Delivered at: Dandenong

Delivered on: 11 December 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the First Respondent: Mr Young

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. The Application in a Case filed 6 December 2019 be dismissed.

2. The Applicant pay the Respondent’s costs fixed in the sum of $1,500.

IT IS NOTED that publication of this judgment under the pseudonym Chopra & Child Support Registrar & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 5574 of 2016

MR CHOPRA

Applicant

And

CHILD SUPPORT REGISTRAR

First Respondent

MS CHOPRA

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction 

1. This matter arises by an Application in a Case filed 6 December 2019. The Application in a Case seeks a stay on orders made 3 December 2019.

2. I gave reasons on 3 December 2019 dismissing his Initiating Application: see Chopra & Child Support Registrar & Anor [2019] FCCA 3827.

3. The orders sought in the Application in a Case are in the following terms:

   1. Re- instatement of the orders and orders sought of 31^st July 2019 until the decision of the appeal.

   2. Cost order against the applicant to be stayed until 21 days of the decision of the appeal.

4. At the hearing today, the applicant appeared in person and Mr Young appeared for the Child Support Registrar.

5. The notice of appeal, which forms the basis of this stay application, seeks the following orders:

   1. Application in a Case filed 18 July 2019 be re-instated and listed for hearing.

   2. The orders of 31^st July 2019 be re-instated and varied to 21 days after the determination of the Appeal from the Federal Court

   3. Costs of awarded to the respondent be dismissed.

   4. Orders made on 3/12/19 be dismissed or set aside

   (errors in original)

6. The grounds of appeal are as follows:

   1. The matter was listed for Mention on 03/12/2019. I sought extention of stay orders and contravention. The conyravention orders have not being addressed by His Honour

   2. Appeal from AAT was ready to be filed before the hearing on 03/12/2019. The Dandenong court refused to take application. They said it has to be filed in Melbourne.

   3. I made oral application of filing and sought leave from the court to be filed the next day in Melbourne registry. The Application was denied.

   4. I only got the response from AAT on 21 November 2019. I still had plenty of time to file this application. If the Hearing was held in Melbourne then I would not this problem of filing. I would also have opportunity of seeking the matter stood down to enable me to file documents in Ferderal court.

   5. Cost of awarded to the respondent to be dismissed.

   6. No consideration was given to my case or situation. It was only a mention. Documents could have been presented at directions hearing.

   7. No reasons were provided for dismissal of application. Apart from His Honour saying there is nothing infront of His Honour.

   8. Under s111c, I am entitle for stay orders. It was proposed orders made by Child support and with discussion, I conscented to it.

   9. There was no application for costs made.

   10. How the costs is awarded is beyond me as it was a statutory right for me to seek the orders.

   (errors in original)

Consideration

1. I am not minded to grant a stay in this matter. The applicant is required to point to hardship as a result of a stay not being ordered and must point to an arguable ground, sufficient to warrant the grant of stay. Such circumstances do not appear from the orders sought or the evidence put before the Court.

2. In respect of order 1, there is no basis for reinstating the proceeding. The proceeding was conducted with both parties present. There is no basis put forward which would enliven a basis under the Federal Circuit Court Rules 2001 (Cth) to reinstate the proceeding.

3. In relation to order 2, the relief that the appellant seeks is relief which is not available to this Court because the appeal that he has instituted of the Administrative Appeals Tribunal (‘the Tribunal’) (made on 15 November 2019) has been appealed to the Federal Court. The question of whether the decision of the Tribunal be stayed is reserved to the Federal Court, and not to this Court.

4. The relief that the applicant was seeking to extend the stay made pursuant of section 111C of the Child Support (Registration and Collection) Act 1988 (Cth) is not the appropriate course. It seems that the appropriate course for the applicant to make is to seek a stay of the proceeding pursuant to section 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth). Even if an application had been filed pursuant to that section, no material has been put before the Court to persuade the Court that an order staying the Tribunal’s decision is necessary in the interests of justice.

Consideration on costs

1. In relation to seeking a stay of the order for costs, the applicant has not demonstrated to the Court there is sufficient basis to persuade the Court that it is likely that the Court of Appeal will interfere with the cost orders that have been made.

2. The applicant’s institution of this matter has required the Child Support Registrar to respond to the applicant. The Child Support Registrar attended upon the applicant and upon Court by telephone on 31 July 2019 and on 3 December 2019. The costs, effectively, follow in circumstances where the applicant was wholly unsuccessful in the review proceeding before the Tribunal,[1] and when the findings of the Tribunal suggest that the applicant has the capacity to pay the costs ordered.

   [1] Family Law Act 1975 (Cth), s 117(2A)(e).

Conclusion

1. There is sufficient doubt about the relief sought by the applicant such that the Court is not persuaded that the stay of the proceedings is appropriate in this case. Accordingly, I dismiss the application for a stay and order costs incurred today by the Child Support Registrar.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 20 January 2020