Penman and Child Support Registrar and Anor (No.3)
[2013] FCCA 1124
•13 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENMAN & CHILD SUPPORT REGISTRAR & ANOR (No.3) | [2013] FCCA 1124 |
| Catchwords: CHILD SUPPORT – Stay – Application for stay of child support payments pending Appeal – principles relevant to a stay considered – whether the Applicant has an arguable case on appeal. |
| Legislation: Family Law Rules 2004, r.22.11 |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Penman & Child Support Registrar & Anor (SSAT Appeal) [2013] FCCA 1045 Penman & Child Support Registrar & Anor (SSAT Appeal) [2013] FCCA 492 |
| Applicant: | MR PENMAN |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS MORGAN |
| File Number: | SYC 6524 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 13 August 2013 |
| Date of Last Submission: | 13 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2013 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the First Respondent: | Mr Gouliaditis |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Solicitor for the Second Respondent: | Ms Cole |
| Solicitors for the Second Respondent: | Legal Aid NSW |
ORDERS
UNTIL FURTHER ORDER:
As provided by section 111C of the Child Support (Registration and Collection) Act 1988, the collection of any child support payable by the Applicant Mr Penman to the Second Respondent MS MORGAN and any child support payable by the Second Respondent MS MORGAN to the Applicant Mr Penman is stayed pending the outcome of the Applicant’s Notice of Appeal filed on 9 July 2013.
The operation of Order (1) made on 13 August 2013 is stayed pending the outcome of the Applicant’s Notice of Appeal filed on 9 July 2013.
IT IS NOTED that publication of this judgment under the pseudonym Penman & Child Support Registrar & Anor (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6524 of 2012
| MR PENMAN |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS MORGAN |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant and the Second Respondent both seek orders for a stay of the payment of child support pending the outcome of the Applicant’s Appeal.
The Applicant opposes the Second Respondent’s Application, arguing that there is no jurisdiction for the Order.
The First Respondent, the Child Support Registrar, does not oppose either Application but opposes any stay of the operation of the order for costs made against the Applicant today (Penman & Child Support Registrar & Anor (SSAT Appeal[1])).
[1] [2013] FCCA 1045
Background
The Applicant has lodged an appeal against the decision of this Court delivered on 14th June 2013, dismissing his Appeal against a decision of the Social Security Appeals Tribunal (Penman & Child Support Registrar & Anor (SSAT Appeal)[2]).
[2] [2013] FCCA 492
On 9th July 2013 the Applicant filed:
a)A Notice of Appeal;
b)An Application in a Case; and
c)An affidavit sworn on 9th July 2013.
The Second Respondent filed an affidavit on 8th August 2013, affirmed that same day.
On 13th August 2013 the Second Respondent filed an Application in a Case.
Orders Sought
The Applicant seeks the following order:
A stay on all Child support payments until the determination of the appeal to judgment Judge Scarlett dated 14 June 2013.
The Second Respondent seeks the following order:
That pursuant to section 111C of the Child Support (Registration and Collection) Act 1988, the collection of any child support payable by the applicant Mr Penman to the 2nd respondent Ms Morgan, and any child support payable by the 2nd respondent Ms Morgan to the applicant Mr Penman is stayed pending the outcome of the applicant’s Notice of Appeal filed in the Family Court at Sydney on 9 July 2013.
Submissions
The First Respondent Child Support Registrar did not oppose either stay Application but opposed a stay of the Order for costs made against the Applicant.
The Applicant opposed the stay orders sought by the Second Respondent, apparently on the basis of a lack of jurisdiction, as the Second Respondent had not sought to appeal against the primary decision.
In my view there is no merit to the above ground.
The Relevant Law
Section 111C of the Child Support (Registration and Collection) Act 1988 (Cth) permits a party to a proceeding to apply to a Court having jurisdiction under the Act for an order:
(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.
As this is an Application for a stay pending the determination of an Appeal, the provisions of Rule 22.11 of the Family Law Rules 2004 apply:
22.11(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
22.11(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
22.11(3)An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate[3] or Magistrate who made the order under appeal.
[3] Now Judge
When the Court is considering whether to grant a stay pending an appeal, the following matters should be taken into account when the Court is considering the exercise of its discretion:
· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· a person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to grant a stay;
· the bona fides of the applicant;
· a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
…
· The period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time…[4]
[4] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]
Conclusions
Both the Applicant and the Second Respondent are parties to the Appeal, so they each have standing to apply for a stay of payments of child support pending the determination of the Applicant’s Appeal.
The Applicant provides no details in his affidavit of 9th July 2013 as to why a stay should be granted. However, the decision of the SSAT which was the subject of the Appeal was a decision setting the Applicant’s adjusted taxable income at $64,865.00 and the Second Respondent’s adjusted taxable income at $47,368.00. This decision required each party to pay child support.
As a result, the Second Respondent deposes that she has now received an assessment of child support requiring her to pay child support to the Applicant. Previously, the Applicant had to pay child support to her. She deposes that the Applicant has not paid any child support to her since the SSAT decision was made and she believes that there are outstanding arrears of $4,548.84.[5]
[5] Affidavit of Ms Morgan 8.8.2013 at paragraphs [2]-[4]
Until the appeal is heard, the parties will not know whether either of them should pay child support to the other. If a stay were not to be granted, a liability for child support may accrue which could well be reversed. The Second Respondent has deposed that she has already received a new assessment for the period from 1st November 2013 to 30th June 2014 and, as a result, has now applied to depart from that assessment.[6]
[6] Ibid at [6]
In his Notice of Appeal, the Applicant relies on the following grounds:
1. The Judge failed to ensure the Appellant, as a litigant in person, understood the procedure of the court and the Appellant’s obligations as a litigant in the presence of his case to enable him to properly and fairly present his case.
2. The Judge erred in finding that ground 8 of the Appeal before the Judge, being the question as to whether the SSAT erred in law in having regard to the income, earning capacity, property and financial resources of the Appellant’s mother, Mrs Penman, was not or did not state an error or question of law.
3. The Judge erred in finding that the Appellant was not (sic) afforded natural justice and or procedural fairness in the proceedings before the Social Security Appeals Tribunal (the “SSAT”).
4. The Judge erred in finding that:
a. the Appellant’s further medical evidence being the report of Dr M dated 19 August 2012 and specifically the opinion and evidence as the Appellant’s capacity to undertake (omitted) work was considered by the SSAT.
b. the Appellant was not denied natural justice in the presentation of his case by the inability to properly call or rely upon medical evidence.
5. The Judge erred in not finding that the failure of the SSAT to give proper weight or consideration to the fact that the Applicant’s medical condition impacts on his earning capacity and specifically his ability to perform (omitted) was not an error of law.
6. The Judge erred by failing to properly consider, have regard to and or engage the submissions made by the Appellant that the SSAT made findings and findings of fact that were not reasonably open on the evidence.
7. The Judge erred in failing to consider the Appellant’s submissions and grounds that the SSAT did not have regard (sic) to irrelevant matters or gave weight to irrelevant matters in making its findings and conclusions of law.
8. The Judge erred in finding that the ground that the SSAT made findings and findings of fact that were not reasonably open on the evidence was not made out.
9. The Judge erred in finding that the Appellant’s grounds and submission that the SSAT gave adequate reasons (sic) or set out the reasoning process for the findings of fact and decision was not made out.
There appears to be some duplication in the grounds of appeal and it also appears that the word “not” has either been wrongly included in some grounds or left out of others. However, this does not appear to be a case where the Applicant lacks bona fides in bringing his Appeal. He clearly believes that he was treated unfairly by the Social Security Appeals Tribunal and the Court should have found in his favour. He is entitled to hold that belief and to have this Court’s decision challenged on appeal.
In considering whether the Applicant has an arguable case on appeal, it should be said that it is neither necessary nor appropriate for a judge at first instance to seek to defend the judgment under appeal, nor is it appropriate for the judge to attempt to predict the outcome of the appeal, as that is the task of the appellate court.
The task of the court hearing the application for the stay is to make a “preliminary assessment” of the strength of the proposed appeal with a view to determining whether the appellant has an arguable case. It may be, of course, that the grounds of the appeal are so weak that the court can easily determine that the appeal would have no reasonable prospects of success, which, in other words, amounts to a finding that the appellant does not have an arguable case.
Whilst some of the Applicant’s grounds of appeal do not appear to be particularly strong and are unlikely to succeed on appeal, I am not of the view that the Applicant does not have an arguable case. This is not to say that the Applicant can necessarily expect to be successful on appeal, far from it. An arguable case is just that – a case that can be argued for consideration by a court and is not a case so lacking in substance that it can be said to have no reasonable prospect of success.
There is no evidence before the Court as to when the appeal may be heard. The appeal has been lodged and there does not appear to have been any unreasonable delay in either lodging the appeal or seeking a stay.
A substantial factor in determining whether it will be appropriate to grant a stay is whether the appeal will be rendered nugatory if a stay were not to be granted (Aldridge & Keaton[7] at [18]). Depending on the outcome of the appeal, one party or other may end up with a liability to pay child support to the other, and if a stay were not granted payments would have to be made or arrears would accrue which may lead to enforcement action.
[7] supra
Both parties are playing a role in the care of the children of the marriage, and it does not appear that any particular hardship would be suffered if the Court were to grant each party a stay of the collection of any child support until the hearing and determination of the appeal.
The order sought by the Second Respondent covers both parties and it appears to be the appropriate order in the circumstances.
The Child Support Registrar opposes a stay of the order for costs, which are to be paid within six months. There is no information as to when the appeal may be heard, and it may well be the case that the hearing date of the appeal is more than six months away, in which case the Applicant would find himself required to meet a costs order arising from a decision still under appeal.
In my view, it is in the interests of the administration of justice to stay the operation of the costs Order until the Applicant’s appeal against the primary decision is determined.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 16 August 2013
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