Crowley and Stross and Anor (SSAT Appeal) (No.2)
[2012] FMCAfam 1383
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROWLEY & STROSS & ANOR (SSAT APPEAL) (NO.2) | [2012] FMCAfam 1383 |
| CHILD SUPPORT – New appeal – stay – considerations – limited stay granted. |
| Child Support (Assessment) Act 1989, ss.5(1), 43(1) Child Support (Registration and Assessment) Act 1988, s.111C |
| Ahern & Ahern & Anor(SSAT Appeal) [2012] FMCAfam 1299 Jones v Child Support Registrar [2007] FCA 1732 |
| Applicant: | MR CROWLEY |
| First Respondent: | MS STROSS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 5457 of 2009 |
| Judgment of: | Coates FM |
| Hearing date: | 7 December 2012 |
| Date of Last Submission: | 7 December 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 19 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Shoebridge |
| Solicitors for the Applicant: | Pippa Colman & Associates |
| Solicitors for the First Respondent: | Shultz Toomey O'Brien Lawyers |
| Solicitors for the Second Respondent: | Department of Human Services |
ORDERS
That pursuant to s.111C of the Child Support (Registration and Collection) Act1988:
(a)The operation of the Administrative Assessment, as amended, applicable to the period from 1 July 2010 to 31 December 2011, is stayed, but only to the extent of the difference between the amount payable pursuant to that assessment, and the amount that was previously payable, that is the sum of $2,644 per annum (“the disputed child support assessment amount”), such stay to remain in place until the conclusion of these proceedings and any subsequent decision or appeal resulting from a SSAT rehearing;
(b)The Registrar of the Child Support Agency be restrained from collecting any arrears of child support or penalties applicable thereto, but only to the extent of the disputed child support assessment amount; and
(c)The Registrar of the Child Support Agency be restrained from distributing to the carer any amount of child support collected that is referrable to the disputed child support amount, until a final decision in this matter by the Court or the Social Security Appeals Tribunal.
That the Child Support Agency have leave to withdraw from further involvement in these proceedings.
Hearing Date
That the Appeal be set down for hearing at 9.30 am on 9 April 2013 in the Federal Magistrates Court of Australia at Brisbane.
Directions for hearing
That the Appellant have liberty to amend the Grounds of Appeal to plead the question of law provided that such amendment has been filed and served at least twenty eight (28) days prior to the hearing of the Appeal.
That in the event the Appellant intends to rely on the transcript (or part thereof) to establish the Grounds of Appeal, the Appellant shall obtain (and to that end pay the costs of the preparation of the transcript) and serve the transcript no later than seven (7) days prior to the hearing of the Appeal.
That for the Appeal the following documents shall be relied upon:
(a)the Notice of Appeal;
(b)a copy of the decision of the SSAT;
(c)the statement of reasons for that decision;
(d)the documents that were before the SSAT in relation to the proceedings to which the Appeal relates and provided to the Court in accordance with s.110K of the Child Support (Registration and Collection) Act;
(e)the transcript of the SSAT proceedings (if available);
(f)any such other document(s) for which leave of the Court has been granted.
That the Appellant and Respondent must obtain leave of the Court to rely upon any other document or to receive further evidence.
That the parties shall have leave to inspect and copy the s.110K documents.
That each party have liberty to apply for any further directions on the giving of two (2) days notice in writing to the other.
That the costs of and incidental to the procedural hearing be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Crowley & Stross & Anor (SSAT Appeal) (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 5457 of 2009
| MR CROWLEY |
Applicant
And
| MS STROSS |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Mr Crowley is appealing a decision of the Social Security Appeals Tribunal (the SSAT) made on 8 October 2012.
Directions for hearing and a date have yet to be set.
He also applies for a stay of collection and enforcement of arrears and an order restraining the Child Support Agency from distributing child support monies referrable to the disputed child support amounts.
The respondent wants the application for a stay and appeal struck out, however, if I grant a stay it should be limited and not pertain to enforcement proceedings.
To understand the nature of the case, the appellant was originally assessed for child support at the rate of $2,644 annually commencing 1 December 2009 and a re-assessment increased this to just under $10,000 annually. I use the term just under $10,000 because at this stage there is no need to pinpoint the exact amount, the case being agitated by the appellant going to sources of income.
This is the second appeal in this matter because on 5 April 2012 I had remitted the first decision of the SSAT back to the Tribunal because of errors of law.
The new decision of the SSAT comes before the court alleging further errors of law.
The sensitivity surrounding this matter for the parties is that the appellant suffered brain injuries in a vehicle accident in 1992 and is totally and permanently incapacitated because of that accident. He receives two streams of income being superannuation through [omitted] Super and a [omitted] pension.
The original child support assessment, supported by the appellant, applied to only one of those streams of income. Subsequent assessments applied to the two streams of income, objectionable in the appellant’s case.
I note the grounds of appeal appear to be different from the first appeal in this matter.
Section 111C of the Child Support (Registration and Assessment) Act 1988 states:
“s.111C Stay orders
(1) This section applies if a proceeding has been instituted:
(a) in a court having jurisdiction under this Act; or
(b) before the Registrar under Part VII; or
(c) before the SSAT under Part VIIA; or
(d) under Part 6A or 7 of the Assessment Act.
(2) A party to the proceeding may, subject to the Family Law Act 1975 :
(a) in the case of a proceeding instituted in a court--apply to that court for an order under this section; or
(b) otherwise--apply to a court having jurisdiction under this Act for an order under this section.
(3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
(4) The court may, by order, vary or revoke an order made under subsection (3).
(5) An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for:
(i) such period as is specified in the order; or
(ii) if no period is specified--until a decision of the court, the Registrar or the SSAT determining the proceeding becomes final.”
In Ahern & Ahern & Anor(SSAT Appeal) [2012] FMCAfam 1299 Scarlett FM referred to the test for a stay as stated in the decision of Emmett J in Jones v Child Support Registrar [2007] FCA 1732:
“It appears to me that, before a stay could be granted, I would have to be satisfied that there is a serious question to be tried on the appeal or, putting it another way, that there is at least some arguable basis for suggesting that the appeal might succeed. Secondly, it would be necessary for the Court to have regard to the balance of convenience. Section 111C(3) of the Act requires the Court to take into account the interests of the persons who may be affected by the outcome of the proceeding. That, I suspect, does not go much beyond the balance of convenience.”
In simplified terms, the approach requires identification of a serious question or an arguable case.
There are three grounds of appeal stated in the Notice of Appeal filed 7 November 2012. Without repeating the grounds verbatim they allege:
a)The Tribunal erred in law by finding that it would not be necessary for the appellant to move to a retirement village, being a conclusion not open on the face of the evidence of the appellant and a doctor;
b)The Tribunal erred in law holding that the appellant could pay off child support arrears without such payment causing him hardship, particularised in stating that the Tribunal did not quantify the arrears and so the conclusion of there being no hardship had no reference to any objective evidence; and
c)The Tribunal erred in law by determining the [omitted] Pension can be taken into account as income for child support purposes when ss.5(1) & 43(1) of the Child Support (Assessment) Act 1989 is applied to the reasoning.
A determination as to whether such amounts to an error of law is a matter for decision at hearing and it is a matter for the appellant to show how an error of law exists as Scarlett FM said at paragraph 22 in his decision of Ahern:
“22. In order to show an arguable case, a party does not need to demonstrate that he or she has a strong case, let alone one that is bound to succeed. Whether the Applicant’s case does raise a question of law, as the Applicant submits, or whether the claim is no more than a factual issue, as the Child Support Registrar submits, is a matter to be decided on the hearing of the Appeal. It is for the Applicant to establish that the Tribunal’s finding that he managed to repay an overdraft of $70,000.00 is a finding made without evidence, which would take the matter beyond a mere questioning of the factual merits of the Tribunal’s decision. Whilst the claim does not appear to be overwhelmingly persuasive, it is far from a hopeless case.”
In support of the stay Mr Shoebridge of counsel states that the evidence of a doctor as to the future accommodation requirements of the appellant was ignored. As to the question of hardship, he submitted that it was impossible for the SSAT to have properly turned its mind to the issue because there was no quantification of the affects of the decision. As to in the reasons given and as to ground three, it was submitted that the Act contains definitions of tax free pensions at s.5 and the [omitted] Pension is excluded.
In my view, at least on ground three, there appears to be a question of law which arises although I could not exclude the other grounds if they are mistakes of such magnitude that they should not be allowed to stand.
There was not really any submission against the grounds with the respondent’s case going to the balance of convenience and hardship.
In her affidavit filed 5 December 2012, the respondent gives the relevant history and that the child support is for the support of two children born [in] 2005 and [in] 2007.
She also states there are arrears in the sum of $15,815.
As against this, the appellant has savings of $40,000.
It is her case that a stay should not be granted or if it is, it ought be limited in operation so that the arrears are paid.
She also states that because of the legal process relating to this matter she has borne the financial burden of the care of the children and that has created significant hardship. As to that submission I understand her position but if the SSAT decision is incorrect, then it cannot be wholly true that she has borne the costs of the children because the appellant does pay child support and does not object to all child support.
The respondent also says the appellant seeks to revisit the first appeal on the same grounds.
I am satisfied that they are not necessarily the same grounds, but even if they are, if there is an error of law then there is an error of law. The submission has to be more specific.
The stay is sought not against the payment of all child support because the appellant only wants the re-assessed amounts stayed and for him to continue payment of the original amounts, although there does seem to be some contention surrounding this on the evidence before me.
The appellant addresses hardship from a different perspective. It is not in dispute that he is being looked after by his parents, primarily his mother.
It is not in dispute that constantly he has said he will have to move into a care facility, probably when he reaches the age of 55 in about 15 years time and that the monies he receives and the monies he has in the bank now will be directed to the financing of that care facility.
In the first judgment in this matter, I remarked on the sensitivity on the issues surrounding this family stemming from the acquired brain injury of the appellant and the objects of the child support legislation.
A stay order is obviously an exercise of discretion and in my view, the discretion ought be exercised in favour of the appellant on the basis that there appears to be an arguable case and the balance of convenience factors for both the appellant and the respondent appear equally well placed.
But the stay is not to all child support payments and will only go as far as staying the difference between the amount payable pursuant to the assessment for the period from 1 July 2010 to 31 December 2011 and that amount previously payable being the sum of $2,644 per annum, with such stay to remain in place until the conclusion of these proceedings or any subsequent decision resulting from a new SSAT re-hearing if the matter is remitted.
Because of the issue surrounding the hardship arguments put forward by the appellant that he is saving to enter a care facility, I will restrain the collection of arrears and penalties and restrain the Child Support Agency from distributing to the carer any amount of child support collected that is referrable to the disputed child support amount. I will also give directions for the hearing and set a date.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Coates FM
Associate:
Date: 19 December 2012
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