Chopra & Child Support Registrar & Anor

[2019] FCCA 3827

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOPRA & CHILD SUPPORT REGISTRAR & ANOR [2019] FCCA 3827

Catchwords:
FAMILY LAW – Applicant seeking stay on the collection and enforcement of child support – the Applicant alleging contravention of the Child Support Registrar and the Australian Taxation Office – matter dismissed – costs ordered.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.44A(2)
Child Support (Registration and Collection) Act 1988 (Cth), s.111C

Applicant: MR CHOPRA

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: MS CHOPRA

File Number: MLC 5574 of 2016

Judgment of: Judge McNab

Hearing date: 3 December 2019

Date of Last Submission: 3 December 2019

Delivered at: Dandenong

Delivered on: 3 December 2019

REPRESENTATION

The applicant appearing in person

Counsel for the Respondent: Ms Underhill

Solicitors for the Respondent: Mills Oakley

ORDERS

1. The Initiating Application filed 8 March 2019 be dismissed.

2. The Applicant pay the Child Support Registrar’s costs fixed in the sum of $2,765, with such payment to be stayed for 30 days.

IT IS NOTED that publication of this judgment under the pseudonym Chopra & 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 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. The applicant is seeking orders staying his child support obligations. I have dismissed his application and will give brief reasons for doing so.

Background

1. On 17 April 2018, final property orders by consent were made by Justice Cronin as between the applicant and the Second Respondent (the applicant’s ex-partner).

2. On 8 March 2019, the applicant filed an Initiating Application seeking orders:

   To stay the matter of change in circumstances assessment until 15th of July 2015. This will allow me to go through the processes of [the Administrative Appeals Tribunal] and also do my tax return for 2018/2019 which will show the income from Centrelink and the nett rent received.

   (errors in original)

3. The Court treats the reference to ‘July 2015’ as an error and that date should be read as ‘July 2019’.

4. The Initiating Application was returnable on 7 May 2019.

5. On 7 May 2019, the Court made an order that:

   Pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth), there be a stay on the collection and enforcement of arrears of child support accumulated up to and including the date of this order, payable by the Applicant to the Respondent, for X born 2002 until the Applicant completes his tax returns or 31 July 2019, whichever date occurs first.

6. On 18 July 2019, the applicant filed an Application in a Case, seeking orders that:

   1. Stay order to be varied until the determination by AAT or Federal Court.

   2. Rectification of the contravention of the Stay order made on 7 May 2019 and returned of money taken in breach of the order.

   3. The child support to use my current taxable income for determination of child support liability declaration that there is no change in circumstances.

   4. Australian Taxation Office to return tax refund that has been inappropriately distributed to third party in contravention of stay orders of 7 May 2019.

   (errors in original)

7. By his affidavit filed 18 July 2019 in support of the Application in a Case, the applicant sought orders that:

   1. Stay order to be varied until the determination by AAT or Federal Court.

   2. The rectification of the contravention of the order and returned of money taken in breach of the order

   3. The child support to use my current taxable income for determination of child support liability rather plugging numbers out of thin air.

   (errors in original)

8. The Application in a Case was returnable on 31 July 2019. The matter came before the Court with the applicant appearing in person and the Child Support Registrar represented by Ms Underhill, solicitor.

9. On 31 July 2019, orders were made, relevantly, that:

   Pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth), there be a stay on the collection and enforcement of all ongoing child support in excess of $427.00 per annum and all arrears of child support, payable by the Applicant to the Respondent, for X born 2002 pending determination of the application for first review (proceeding number 2019/MC016403) lodged in the Administrative Appeals Tribunal.

10. The matter was otherwise adjourned until 3 December 2019.

11. On 15 November 2019, the Administrative Appeals Tribunal (‘the Tribunal’) made orders setting aside the review that the applicant had brought before it. The Tribunal determined that:

    The annual rate of child support payable by Mr Chopra is to be varied to $10,000 in respect of the period 20 December 2018 until a terminating even occurs in respect of the child support assessment of X.

12. On 29 November 2019, the representatives for the Child Support Registrar wrote to the Court noting that the applicant had effectively sought no other orders in his Initiating Application other than the stay made by the Court on 31 July 2019. The Child Support Registrar requested that the 3 December 2019 directions hearing be vacated and that the matter be removed from the active case list.

13. In response on 29 November 2019, the applicant wrote to chambers stating:

    Dear Sirs

    Please do not vacate the listing for 3 December.

    I will be proceeding with other matter.  There is a contravention of orders and I will be seeking extention of stay orders.

    I will also be making an application for appeal from the AAT. I still have time to do so.

    It was never my intention the matter will be closed after the decision of AAT. That is why hearing was listed for 3 December 2019.

    (errors in original)

14. The matter came before the Court on 3 December 2019.

Consideration

1. I accept the submissions of the Child Support Registrar that the relief sought by the applicant in his Initiating Application was for a stay pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth). Given the decision of the Tribunal on 15 November 2019, that stay order made 31 July 2019 lapses.

2. No application was filed by the applicant that the decision of the AAT of 15 November 2019 should be stayed. The Court pointed out to the applicant that if he wished to make such an application, he would have to file material to show that the decision was attended with sufficient doubt to warrant the making of such an order. That application must be made pursuant to section 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).

3. The application for contravention against the Child Support Registrar and the Australian Taxation Office is not in a proper form. The Australian Taxation Office has never been joined as a party to this proceeding. Further, I note the submission of the Child Support Registrar that the stay order does not affect the imposition of penalties against any outstanding balance in excess of $1,000. If the applicant’s review had been successful, and the amount payable had been adjusted downwards, then any penalties that have been imposed are also adjusted downwards.

4. The application by the applicant involved the Child Support Registrar incurring costs which should be borne by the applicant as he has had benefit of the orders and the Child Support Registrar was required to incur costs in relation to the hearing. The applicant was unsuccessful in his AAT review proceedings and had been notified earlier by the Child Support Registrar that this hearing today should be vacated. In those circumstances, I order costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 20 January 2020