Onder and Child Support Agency and Sari
[2010] FMCAfam 693
•11 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ONDER & CHILD SUPPORT AGENCY and SARI | [2010] FMCAfam 693 |
| CHILD SUPPORT – Appeal against departure prohibition order – stay order refused. |
| Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988, ss.4, 72D, 72Q, 111C |
| Albaugh v Child Support Agency [2007] FMCAfam 1106 Jones & Child Support Registrar [2007] FCA 1732 Russo & Child Support Registrar [2009] FMCAfam 437 |
| Applicant: | MR ONDER |
| First Respondent: | CHILD SUPPORT AGENCY |
| Second Respondent | MS SARI |
| File Number: | SYC 1078 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 11 June 2010 |
| Date of Last Submission: | 11 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Paul & Paul Lawyers |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Solicitors for the Second Respondent: | Robyn Sexton & Associates |
ORDERS
THE COURT ORDERS THAT:
The Applicant’s Interim Application be dismissed.
The Applicant’s Appeal Application be adjourned to this Court on 18 August 2010 at 9:30am for mention (“the Mention Hearing”).
The Applicant’s Appeal Application be adjourned to this Court on 17 September 2010 at 10:00am for final hearing (“the Final Hearing”).
The Applicant make file and serve any further affidavits or other material to be relied upon by the Applicant no later than 21 days prior to the Final Hearing, after which no further affidavits are to be filed without leave of this Court.
The First Respondent make file and serve any further affidavits or other material to be relied upon by the First Respondent no later than 14 days prior to the Final Hearing, after which no further affidavits are to be filed without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee no later than seven (7) days prior to the Final Hearing.
On or before 4:00pm two (2) business days prior to the Final Hearing the Applicant and the First Respondent make file and serve an ‘Outline of Case’ document not exceeding five (5) pages in the following format:
(a)a list of the documents to be relied upon;
(b)a brief chronology listing significant events;
(c)an outline of legal arguments to be advanced;
(d)any relevant legal authorities; and
(e)a statement of the precise orders sought.
The First Respondent’s costs of today be reserved.
AND THE COURT NOTES THAT:
(A)In the event that the Applicant does not seek to file any further material, the Applicant is to notify Chambers in advance of the Mention Hearing, and in that event the Court may consider vacating the Mention Hearing.
(B)The Second Respondent does not seek to be heard in relation to the Appeal Application.
IT IS NOTED that publication of this judgment under the pseudonym Onder & Child Support Agency and Sari is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1078 of 2010
| MR ONDER |
Applicant
And
| CHILD SUPPORT AGENCY |
First Respondent
| MS SARI |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The matter involves an application by MR ONDER (“the father”) appealing against the making of a departure prohibition order by the first respondent, the CHILD SUPPORT AGENCY (“the CSA”) pursuant to s.72Q(1) of the Child Support (Registration and Collection) Act 1989 (“the Act”).
The application was filed on 3 June 2010 and, due to the interim orders sought, was listed on short notice and came before the Court in a duty list on 8 June 2010. On that day the Court made orders listing the matter for mention today and for hearing in respect of the interim orders sought. There were also orders in respect of the CSA delegate filing an affidavit in response to the orders sought.
In summary, the interim orders seek a stay of the departure prohibition order currently in force pursuant to s.111C(3) of the Act that states:
“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 (a reference to the Child Support Assessment Act 1989) and this Act (ie the Child Support Registration and 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.”
In support of his interim application the father relies on his affidavit sworn 25 May 2010 and filed 3 June 2010 (“the father’s first affidavit”). He also relies on his financial statement, sworn on 22 February 2010 and filed on 23 February 2010, in relation to other related child support proceedings now before the Family Court of Australia. The father is represented by Mr Paul today.
The father’s application for a stay of the departure prohibition order is opposed by the CSA. In opposing the stay application the CSA relies on the affidavit of Mr V, sworn and filed today, 11 June 2010. Mr V is the delegate of the Registrar of the CSA and the National Manager of non‑compliance. The CSA is represented by Ms Rayment today.
The second respondent, the mother of the relevant children, was represented in Court on the last occasion but did not seek to be heard in relation to the stay matter.
The parties’ submissions
In addition to his oral submissions Mr Paul provided the Court with written submissions. The crux of the father’s argument is that he does not have the financial capacity to meet the child support liability. Moreover, the father has a pressing need to regularly travel over the next few months. Consequently, should the Court not grant the stay he will either be required to undertake the departure authorisation certificate process as contained in Part V, Division 4 of the Act or simply be unable to undertake his employment.
Mr Paul proposes that should the stay application succeed, there is a benefit to the parties and to the public purse to delay the hearing of the appeal pursuant to s.72Q of the Act until after the related child support proceedings in the Family Court of Australia are completed. Mr Paul indicated that this is likely to occur in September 2010, being approximately three (3) months from today’s hearing.
Mr Paul submitted that the requirements of s.111C(3) of the Act were straightforward despite their relatively recent interpretation by Emmett J in the case of Jones & Child Support Registrar [2007] FCA 1732 (“Jones”).
Mr Paul succinctly states the father’s argument in paragraphs 10 to 15 of his written submissions:
“10. Whilst I could argue that the appeal on our submission is likely to succeed, his Honour – ie referring to Emmett J – failed to take into account the broader outline of the way in which the Court should exercise its powers and limit himself to a very narrow legal view. The task of the applicant is not to do what Emmett J thought, but rather to persuade a Court that it is desirable to make the order (ie the stay order).
11. Desirability is not constrained by the usual basis upon which a stay pending an appeal is granted (or not).
12. As the outline suggests, there is a very broad discretion not constrained by the usual approach to a stay.
13. The section suggested by the inquiry is instead limited to:
14. The interest of the persons now who may be affected by the outcome of the proceedings.
15. This can only refer to the mother and the father.”
It is noted that the definition of “persons” in s.4 of the Act states that “persons” includes a company but provides no further assistance.
Mr Paul outlines the legal basis of his client’s application in pages 2 to 4 of his written submissions which will be dealt with shortly.
Ms Rayment for the CSA submitted that the Jones decision is, in her words, “directly binding” on this Court. Indeed, she submitted that the decision of Emmett J in Jones has been followed in a number of decisions both in this Court and in the Federal Court of Australia, including those of Sexton FM in Albaugh v Child Support Agency [2007] FMCAfam 1106 and again in Russo & Child Support Registrar [2009] FMCAfam 437.
Ms Rayment submitted that it is not the CSA that bears the onus of proof in demonstrating the validity of the departure prohibition order and, in any event, the father is simply challenging his capacity to pay the child support.
Ms Rayment also asked the Court to consider the context in which the stay application is being made. The father has applied for urgent orders that relate to:
a)a child support order made in the United Kingdom in 2006; and
b)a departure prohibition order made nearly 12 months ago being after the commencement of child support related proceedings in the Family Court of Australia in February 2010.
The CSA disputes the “urgency” argument and asks the Court to consider context in the “balance of convenience” argument.
Ms Rayment specifically referred to paragraph 10 in Jones where his Honour stated that:
“It appears to me before a stay could be granted I would have to be satisfied there is a serious question to be tried on the appeal or putting it another way, 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. Clearly it is very inconvenient for the applicant to be restrained from departing from Australia.”
In this context the CSA acknowledges the inconvenience experienced, and to be experienced by the father, being the subject of a departure prohibition order. The CSA also accepts the father is not a flight risk. However the CSA asks the Court to consider the interests of the children and indeed, the interests of the public, when making its decision and the reality that despite the proceedings currently before the Family Court of Australia, the child support liability of the father is now some $170,000 of which only $6000 has been paid to date.
Moreover, since the departure prohibition order was issued in July 2009 the father did not make any further payment until 24 February 2010 and that was in the context of a departure authorisation certificate. Indeed, Ms Rayment argued that the approach taken by the father in these proceedings is arguably an attempt to side-step or, in her words, “subvert” the departure authorisation certificate process.
Finally, Ms Rayment also asked the Court to take into consideration that the father’s need to travel is based on employment with a company that he is the [occupation omitted] of and which is controlled by his current father‑in-law.
Law and discussion
As indicated, s.111C of the Act allows the Court to make such orders as it considers appropriate staying or otherwise affecting the operation and implementation of the Child Support (Assessment) Act 1988 and this Act.
This was previously considered in some detail by Emmett J in the Jones case. In paragraphs 5 to 8 his Honour states the relevant law to be:
“5. In an appeal under section 72Q of the Act the person agreed must establish that the order was wrongly made. That may be done by satisfying the Court that any one of the essential elements of section 72D is absent. However, the Registrar bears no onus in establishing the validity of the order.
6. An appeal may involve questions of fact or law or both. An appeal would ordinarily involve the determination by the Court of at least three principal questions. The first is whether the affected person has a child support liability. The second is whether the Registrar was satisfied as to the matters and had the belief referred to in section 72D. The third is whether reasonable ground existed for the Registrar to be satisfied as to those matters and for the formation by the Registrar of the requisite belief.
7. The issue of whether a person has a relevant liability would be readily ascertainable. That question is not in issue in the present proceeding. In some cases an appeal could involve the examination of the Registrar’s state of mind if there were a suggestion that the Registrar were not bona fide satisfied or that a belief was not held bona fide. That may or may not be an issue in the present proceeding. The question that is most likely to be involved in an appeal under section 72Q is whether reasonable grounds existed for the Registrar to be satisfied as to the relevant matters or for the holding of the requisite belief.
8. Ordinarily the material before the Registrar would not be known to the applicant. However, an applicant is entitled to have produced for his consideration the material on which the Registrar relied in making the order and any other material that was before the Registrar that bears on the reasonableness of the grounds for the Registrar’s belief or satisfaction. It may be that an applicant would be entitled to have such material produced to the Court by the Registrar by means of subpoena or discovery. Further, it may be that the provisions of the Administrative Decisions (Judicial Review) Act 1977 Cth could be called in to aid to require the Registrar to give reasons for the decision to make the relevant order.”
His Honour’s statement of the law has been accepted in the decisions previously referred to by Ms Rayment, as well as a number of other unreported decisions of this Court.
At paragraph 10 of the Jones decision, his Honour states that before a stay could be granted, the Court would need to be satisfied that:
·firstly, there is a serious question to be tried on the appeal or at least an arguable basis that it might succeed; and
·secondly, the balance of convenience and in this context his Honour goes on to note that s.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.”
Mr Paul argues that his Honour took a very narrow legal view, or some might say, a traditional legal view as to the stay principles, rather than simply approaching the stay on the basis that it is “desirable to make the order”.
Mr Paul submits that desirability in this case would encompass the:
a)arguable case of the father;
b)urgency surrounding his need to travel; and
c)relentless problems that he will be confronted with in utilising the departure authorisation certificate process.
Mr Paul submits that the Court has a broad discretion to order a stay provided it is satisfied that, taking into account the interests of persons who may be affected by the outcome, it is desirable to make the stay.
Mr Paul asked the Court to limit the review of the interested persons to the parents whereas Ms Rayment asked the Court to consider in addition, the interests of the children and even the interests of the public. The Court is convinced that the interests of the children must be factored in at the very least.
In respect of the appeal and the issue of the strength of the father’s case, the Court notes s.72D(1) of the Act authorises the Registrar to make a departure prohibition order prohibiting a person from departing from Australia if:
“(1) The Registrar may make an order (a departure prohibition order ) prohibiting a person from departing from Australia for a foreign country if:
(a) the person has a child support liability; and
(b) the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and
(c) the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
(i) child support debts arising from a registrable maintenance liability under section 17; or
(ii) a child support debt arising from a registrable maintenance liability under section 17A; or
(iii) one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); and
(d) the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the child support liability; or
(ii) making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.”
The question surrounding whether the departure prohibition order was correctly made will be determined by the appeal. The father clearly bears the burden. He asserts that his evidence of his poor financial circumstances is unchallenged.
One further issue is whether the Registrar had regard to the father’s capacity to pay the debt as required by s.72D(2) of the Act, nevertheless that is a matter that the father has to convince the Court of at the appeal. In respect of this the Court notes that the CSA states in its affidavit material that it did comply with its requirements under the legislation.
Decision
The “balance of convenience” does not justify the making of the stay or its desirability. The context of these proceedings is that the father has waited nearly 12 months to challenge the departure prohibition order and has issued an application filed only seven (7) days ago.
The Court notes that the father’s first affidavit was actually sworn on 25 May 2010 and despite filing that application on 3 June 2010, he now seeks to argue that the substantive order should be stayed until the appeal can be heard, preferably after the hearing of the child support related proceedings in the Family Court of Australia.
The Court proposes listing the appeal for hearing at the earliest opportunity.
The right to settle the reasons for this interim decision is reserved.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 19 October 2010
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