Lloyd and Tasker and Anor - [2016] FCCA 297

FEDERAL CIRCUIT COURT OF AUSTRALIA

LLOYD & TASKER & ANOR

[2016] FCCA 297

Catchwords:
CHILD SUPPORT – Appeal from a decision of the Administrative Appeals Tribunal (AAT) in a child support first review – interlocutory application for a stay of that decision – jurisdiction to order a stay is pursuant to s.44A(2) of the AAT Act not s.111C(1)(a) of the Child Support (Registration and Collection) Act 1988.

Legislation:

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

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110P, 111C
Tribunal Amalgamation Act 2015 (Cth)

Tuck & Johns & Anor [2015] FCCA 2832

Applicant:

MR LLOYD

First Respondent:

MS TASKER

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

BRG 750 of 2015

Judgment of:

Judge Cassidy

Hearing date:

4 December 2015

Date of Last Submission:

30 November 2015

Delivered at:

Brisbane

Delivered on:

16 February 2016

REPRESENTATION

The Applicant appeared in person.

The First Respondent’s appearance was excused.

Solicitors for the Child Support Registrar:

Mr C Bishop of Department of Human Services

ORDERS

That the interlocutory application for a stay of the collection of child support arrears and all child support assessments be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Lloyd & Tasker & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 750 of 2015

MR LLOYD

Applicant

And

MS TASKER

First Respondent

And

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application contained in a Notice of Appeal filed by the father on 20 August 2015. The application seeks interim orders for a stay of collection of child support arrears and the stay of all child support assessments.
The applicant relies on s.111C of the Child Support (Registration and Collection) Act 1988 (‘the Collection Act’) to obtain these stay orders. The Child Support Registrar submits that I do not have jurisdiction under that section of the Collection Act.

Background

The Child Support Registrar (‘the Registrar’) in his submissions filed on 30 October 2015 provided a useful summary of the background in this matter.
“4. The Applicant and First Respondent are the parents of X (the child), born (omitted) 2009.
5. The child support assessment was registered on 1 March 2012.
6. On 2 November 2012 the First Respondent applied to the Registrar for a departure from the administrative assessment under Part VIA of the Child Support (Assessment) Act 1989 (Assessment Act).
7. On 7 January 2013 a Senior Case Officer (SCO) being a delegate of the Registrar, considered the application and found a ground of departure established on the basis of the Applicant's income, property and financial resources. The SCO decided to set the Applicant's adjusted taxable income at $44,750 from 1 July 2012 and then at progressively higher figures over time.
8. On 30 May 2013 a Part VIA Objection Officer set aside the decision and decided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lloyd and Tasker and Anor

Details

AGLC: Lloyd and Tasker and Anor [2016] FCCA 297
Case: [2016] FCCA 297
Decision Date: 16 February 2016

CaseChat Overview and Summary

The proceeding concerned an interlocutory application brought by the applicants, Lloyd and Tasker, seeking a stay on the collection of child support arrears and all child support assessments. The application was heard by Judge Cassidy.

The central legal issue before the court was whether the applicants had established sufficient grounds to warrant a stay of the child support collection and assessments. This required the court to consider the principles governing the grant of interlocutory relief, particularly in the context of child support legislation.

Judge Cassidy dismissed the application, finding that the applicants had not met the necessary threshold for a stay. The court applied the established legal principles for interlocutory relief, which generally require a strong prima facie case or a serious question to be tried, along with a consideration of the balance of convenience. In this instance, the applicants failed to demonstrate that the balance of convenience favoured granting the stay, nor did they establish a sufficiently arguable case to justify suspending the statutory obligations related to child support.

Consequently, the interlocutory application for a stay of the collection of child support arrears and all child support assessments was dismissed.

Orders

Orders of the court

That the interlocutory application for a stay of the collection of child support arrears and all child support assessments be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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