Palantine and Palantine (No 2)

[2011] FamCA 1096

FAMILY COURT OF AUSTRALIA

PALANTINE & PALANTINE (NO 2) [2011] FamCA 1096

FAMILY LAW – CHILD SUPPORT – Application for a stay of assessment made by a registrar – where father filed an appeal against the assessment in the Social Security Appeals Tribunal

Child Support (Registration and Collection) Act 1988 (Cth), s 111C

APPLICANT: Mr Palantine

RESPONDENT: Ms Palantine

FILE NUMBER: CAC 2273 of 2007

DATE DELIVERED: 31 May 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Ms B Smithies

Orders

1. Pursuant to s 111C of the Child Support (Registration and Collection) Act 1988 the assessment made by the Registrar on 21 February 2011 is stayed on the basis that the sum that will be payable by Mr Palantine until determination of the appeal by the Social Security Appeals Tribunal will be $527 per week.  That is irrespective of any variations that may occur between now and then either in his income or in relation to the arrangements he has for seeing the children and is not to be regarded as reduced by any of the obligations imposed on him by orders made by consent on 8 February 2011.

2. The matter is otherwise finalised. 

IT IS NOTED that publication of this judgment under the pseudonym Palantine & Palantine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 2273 of 2007

Mr Palantine

Applicant

And

Ms Palantine

Respondent

REASONS FOR JUDGMENT

1. The present proceedings before me arise under the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”) and, in particular, under section 111C(3) which reads as follows:

   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 persons who may be affected by the outcome of the proceeding.

2. In this matter, it is common ground that there are proceedings at the moment before the Social Security Appeals Tribunal (“SSAT”) in the nature of an appeal against an assessment which was made on 21 February 2011 after objection and other various interventions.  Prior to the assessment of 21 February 2011 Mr Palantine was assessed to pay the sum of $527 per week to Ms Palantine. It is asserted by Ms Palantine, and denied by Mr Palantine, that in addition to $527 it was agreed that he would pay $150 a week towards school fees for the children who are attending the B School.

3. The present situation is that since the assessment in February the amount that Mr Palantine was ordered to pay was some $740.82 per week. This amount was adjusted on 8 March to $630.14 per week on the basis of the time that Mr Palantine would spend with the children in accordance with orders that were made by consent on 8 February this year.  Those orders were extensive orders. They relate to the time the children spend with their father and provide for the children to attend on Ms D, a psychologist or counsellor. Part of the order was that the father would pay the cost of the children’s attendances with Ms D.

4. The proceedings before me are brought by the father who, in effect, seeks that the increase in child support, that was brought about by the assessment on 21 February this year, be stayed pending the determination of the appeal proceedings before the SSAT.  I am satisfied that appeal has been duly constituted but it may take anything in the order of six months before it is finally determined.  During the period of the stay, I note that if the amount of child support currently ordered is reduced, this would affect both the mother and the children because during part of that period the children will be on holidays, and during periods of school holidays the mother does not receive any income from her own employment.

5. I also note the father’s assertion that, if he is obliged to continue to meet the child support payments pursuant to the assessment made in February, he will have to borrow further money to meet the costs of the children attending upon Ms D and child support.  I note further that there are arrears in child support of some $8,000 which relate principally to school fees which the mother is now obliged to meet.  The precise amounts are not significant because it is not suggested by anyone that arrears in school fees are going to disappear before the appeal is finalised.

6. Under the Act I am to take account of “the interests of the persons who may be affected by the outcome of the proceeding”. I am also obliged to take account of the father’s prospects of success in the SSAT appeal and the effect these matters will have on the mother.  I am not obliged today to make, nor do I make, a determination about where the children should go to school. The effect of what school the children attend is a matter I do take into account, I suppose, in the sense that the children have been attending the B School for some time.   

7. The present matter amounts to this: should I stay the assessment of 21 February 2011 pending the final determination of the SSAT appeal?  The ordinary principle is that a party who has an order in place and that order is the subject of appeal and the appeal is proceeding and there is a prospect that the amount involved will be reduced or kept at the same figure as it was previously, is entitled to a stay of that order pending the resolution of matters before the Court.  However, that is not the order sought by Mr Palantine. Mr Palantine, in fact, seeks that his child support obligation should be reduced by reference, or should be payable only by reference, to his income. This would have the effect of reducing it from $630.14 a week, which is his present obligation, down to $430 a week.  In my opinion, such a variation would constitute a usurping of the function of the SSAT and I am certainly not going to make that order.

8. I am prepared, however, to make an order staying the operation of the determination on 21 February. The effect of this is Mr Palantine will continue to pay $527 per week until the determination of the SSAT appeal. I will make that order specific so there will be no variation based on any other factor between now and the time of determination of the SSAT appeal. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 31 May 2011.

Legal Associate: 

Date:  16 January 2013