Penman and Child Support Registrar and Anor (No.3)

This matter came before Judge Scarlett concerning an application by the Second Respondent, Ms. Morgan, for a stay of child support collection pending the outcome of the Applicant, Mr. Penman's, Notice of Appeal. The First Respondent, the Child Support Registrar, did not oppose the stay of child support payments but did oppose a stay of a costs order made against Mr. Penman. Mr. Penman opposed the stay sought by Ms. Morgan, primarily on jurisdictional grounds, arguing she had not appealed the primary decision.

The court was required to determine whether it had the jurisdiction to grant the requested stay and, if so, whether it was appropriate to exercise that discretion. Specifically, the court needed to consider the application of section 111C of the *Child Support (Registration and Collection) Act 1988* (Cth) and Rule 22.11 of the *Family Law Rules 2004* in the context of an appeal. The court also had to consider the factors relevant to exercising its discretion to grant a stay pending appeal, including the onus on the applicant for the stay, the entitlement of a judgment creditor, the presumption of correctness of a judgment, the sufficiency of a mere appeal filing, the bona fides of the applicant, the balance of convenience, the risk of the appeal being rendered nugatory, and the arguable strength of the proposed appeal.

Judge Scarlett found that the jurisdictional objection raised by Mr. Penman lacked merit, as section 111C of the *Child Support (Registration and Collection) Act 1988* permits applications for stays pending the determination of proceedings, and Rule 22.11 of the *Family Law Rules 2004* specifically allows any party to apply for a stay once an appeal has been started. The court outlined a comprehensive list of factors to be considered when exercising discretion to grant a stay, including that the applicant bears the onus but does not need to show "special" or "exceptional" circumstances, the entitlement of a judgment creditor to the benefit of their judgment, and the need to weigh the balance of convenience and competing rights. A significant factor is the risk of the appeal being rendered nugatory if a stay is not granted, alongside a preliminary assessment of the appeal's strength and the timeframe for its hearing.

The court ordered that, until further order, the collection of any child support payable by Mr. Penman to Ms. Morgan and by Ms. Morgan to Mr. Penman be stayed pending the outcome of Mr. Penman's Notice of Appeal. Additionally, the operation of a previous order made on 13 August 2013 was also stayed pending the outcome of the appeal.