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

1. 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

1. 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.

2. 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

1. 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 to set the adjusted taxable incomes of the Applicant and First Respondent at $52,000 per annum and $28,097 per annum respectively for the period 1 July 2012 to 31 October 2014.

   9. The Applicant sought review from the Social Security Appeals Tribunal (SSAT), as the AAT was then known, and on 16 December 2013 the SSAT varied the decision such that the departure determination applied only for the period of 2 November 2012 to 31 October 2014 (the December 2013 SSAT decision).

   10. The Applicant appealed the SSAT decision on a question of law to the Family Court and on 23 July 2014 his appeal was dismissed.

   11. On 27 May 2014 the Applicant lodged a further application with the Registrar for departure from the administrative assessment. This application was refused as no ground of departure was established.

   12. The Applicant objected to that decision and on 7 January 2015 the objection was disallowed on the basis that no ground of departure was established.

   13. The Applicant lodged an application for review with the SSAT and on 7 July 2015 the AA T affirmed the decision, again finding no ground of departure established.

   14. On 19 August 2015 the Applicant filed a Notice of Appeal (Child Support) seeking to appeal the decision of the AAT”

Jurisdiction to order a stay

1. When child support decisions were made by the Social Security Appeals Tribunal (SSAT) they were made pursuant to s.110B of the Collection Act and hence the power to grant a stay pending the outcome of the appeal was found in s.111C of the Collection Act:

   “(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 AAT for an AAT first review; 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 AAT determining the proceeding becomes final.”

2. It can be seen that s.111C of the Collection Act provides that in proceedings instituted in a Court, having jurisdiction under the Collection Act, may make such orders as the Court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act or the Collection 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.”

3. Section 110B of the Collection Act, division 3 of Part VIII, was repealed by the Tribunal Amalgamation Act 2015 (‘the Amalgamation Act) and the SSAT was abolished and the jurisdiction under the Collection Act was transferred to the Administrative Appeals Tribunal (AAT).

4. The Amalgamation Act amended the Administrative Appeals Tribunal Act 1975(the AAT Act) and s.44AAA was included. This provision allows a party to the AAT proceedings that concerns a child support first review to appeal any decision of the AAT to the Federal Circuit Court on a question of law (unless the decision was made by a presidential member).

5. Section 44AAA(2) provides:

   “(2) The following provisions of this Part apply in relation to any such appeal as if the appeal were an appeal under subsection 44(1) and a reference in those provisions to the Federal Court of Australia were a reference to the Federal Circuit Court of Australia:

   (a)     subsections 44(2A) to (10) (other than paragraphs 44(3)(a) to (c));

   (b)     section 44A (other than subsection (2A));

   (c) paragraphs 46(1)(a) and (b).”

6. Section 44A(2) of the AAT Act provides the Federal Court with the power to make stay orders in the following circumstances:

   “(2)   Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

   (a)     the decision of the Tribunal or a part of that decision; and

   (b)     the decision to which the proceeding before the Tribunal related or a part of that decision;

   as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.”

7. Due to the provision of s.44AAA(2)(b), s.44A applies as though references to the Federal Court were references to the Federal Circuit Court.

8. The Registrar submits that the effect of this provision is that the Federal Circuit Court has the power under 44A(2) of the AAT Act to make such orders as it considers appropriate for staying or otherwise affecting the operation or implementation of either or both the decision of the AAT or the decision that was under review by the AAT (or parts of that decision).

9. The Registrar submits that the legislative scheme is for appeals filed under s.44AAA of the AAT Act. The power of this Court to grant a stay is to be found in s.44A(2) of the AAT Act, and not s.111C of the Collection Act.

10. The Registrar submits that s.110P of the Collection Act further supports the argument because that section expressly differentiates between the power to grant a stay order under s.111C of the Collection Act and under subsection 44A(2) of the AAT Act.

11. Section 111C(1)(a) of the Collection Act applies if a proceeding has been instituted “in a court having jurisdiction under this Act.”

12. The Registrar argues that it would be inconsistent to construe s.111C(1)(a) as not requiring the proceeding to be instituted under the Collection Act. If s.111C(1)(a) did refer to any proceeding instituted in the Court it would create an inconsistent application of the stay powers between this Court and the Federal Court in hearings from the AAT first review. The Federal Court does not have jurisdiction under the Collection Act, therefore the Federal Court would be unable to exercise the power under s.111C of the Collection Act.

13. I accept that submission as being persuasive in coming to the decision I have in relation to this issue.

14. The Registrar argued that s.111C could be enlivened by a completely unrelated proceeding simply because the party had a matter before this Court. It was submitted by the Registrar that that simply was not the intention of the legislature.

15. To enliven the stay power under the Collection Act the proceeding which is referred to in s.111C(1)(a) is one where the Court’s jurisdiction to hear and determine those proceedings arises under the Collection Act and I accept that.

16. A further submission made by the Registrar was that if s.111C(1)(a) is to be construed as applying to any proceeding it would leave s.111C(1)(d) with no work to do, as proceedings initiated under Part 7 of the Child Support (Assessment) Act 1989 (‘the Assessment Act’) would already be covered under s.111C(1)(a) if it related to any proceeding.

17. I was referred to the case of Tuck & Johns & Anor [2015] FCCA 2832 a decision where Judge Kelly concluded that the Court had jurisdiction under both s.44A of the AAT Act to stay the decision of the tribunal and s.111C of the Collection Act to stay or otherwise affect the operation of either the assessment or the collection that it considers desirable to do so.

18. It does not appear that Judge Kelly had the benefit of the arguments that were provided to me by the Registrar. I am satisfied having considered the submissions that the jurisdiction for an application for a stay in relation to a Notice of Appeal from a Child Support Assessment is under the AAT Act and that s.111C of the Collection Act has no application.

Consideration of the Appeal under s.44A(1)

1. The applicant is a litigant in person and I consider it will serve some benefit to review the merits or otherwise of his application as if it had been under s.44A(2) of the AAT Act.

2. In the present circumstances the jurisdiction under s.111C(3) of the Collection Act is that the Court may make such orders as the Court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act or the Collection Act, therefore there is a very broad power under the Collection Act.

3. This is to be compared with s.44A(2) of the AAT Act that enables the Court to make such orders staying or otherwise affecting the operation or implementation of either or both the decision of the AAT or the decision that was under review by the AAT.

4. The difference in my assessment is that the power to stay under the AAT Act which is the source of power that I have in these matters relates to the decision appealed. In the present circumstances the power under s.44A(2) of the AAT Act does not extend beyond the operative decision that is a subject of the appeal being a refusal to make a departure determination.

5. A stay of this decision will have no practical effect on the applicant’s child support assessment. The applicant’s ongoing liability and the administrative powers of the registrar to enforce the payment of the arrears would not be affected by the order to stay the AAT decision. There is in my view a distinct difference between the stay powers under s.111C of the Collection Act and s.44A(2) of the AAT Act.

6. If I were able to deal with it under the Collection Act I may be able to make the orders that the applicant is seeking, but given the wording of s.44A(2) even if I stayed the decision of the AAT it would have no effect on the collection of arrears that the Registrar is pursuing or the requirement to pay child support amounts into the future.

7. I am satisfied that the applicants application for a stay order pursuant to s.111C of the Collection Act should be dismissed for want of jurisdiction.

8. I am not persuaded that if the applicant sought to make the application under s.44A of the AAT Act that he would be able to obtain a decision that in any way alters the amount of child support that he is currently required to pay. Staying the decision would not achieve that result.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date: 16 February 2016.