S and S
[2000] FMCAfam 64
•9 November 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2000] FMCA fam 64 |
| CHILD SUPPORT – Stay of proceedings – Jurisdiction |
| Applicant: | P J S |
| Respondent: | K M S |
| File No: | ZP2091 of 2000 |
| Delivered on: | 9 November 20000 |
| Delivered at: | Parramatta |
| Hearing Date: | 9 November 2000 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Gonzales, Solicitor |
| Solicitors for the Applicant: | Messrs Watts McCray DX 11517 Sydney |
| Counsel for the Respondent: | Mr Burreket, Solicitor |
| Solicitors for the Respondent: | Brouns Abrahams DX 11551 Sydney |
ORDERS
The application by the Respondent wife for an order for summary dismissal of the Application for a Stay order is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 2091 of 2000
| P J S |
Applicant
And
| K M S |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the husband for an order that the Child Support Agency be stayed from collecting Child Support in an amount of $2,104.42 per month, as determined by an assessment made on
3 October 2000. The Respondent wife has asked the Court to dismiss the application summarily on the basis of a lack of jurisdiction to make such an order in the circumstances of this case.
Background
On 26 September 2000, a Senior Case Officer of the Support Agency made a decision under Part 6A of the Child Support (Assessment) Act 1989
a)Varying the assessed rate of child support; and
b)Deciding that for the period 1 July 2000 to 30 June 2001 the Applicant should be assessed for child support on an annual child support income of $89,399.00.
As a result of that decision, the Child Support Agency issued an assessment on 3 October 2000, requiring the Applicant to pay at the rate of $2,104. 42 per month. The Applicant has lodged an objection to the findings of the Senior Case Officer, pursuant to s. 98X of the Act. This objection has not yet been determined by the Agency.
The stay application
The Applicant seeks a stay of operation of the assessment, presumably until the objection has been determined. There are no other proceedings pending in this court, or in any other court having jurisdiction under the Child Support (Assessment) Act.
The Respondent argues that the application should be dismissed, on the basis that the application does not come under the narrow grounds specified in s. 140 of the Act. Section 140(1) sets out the circumstances in which a court may entertain an application for a stay:
“Where a proceeding has been instituted in a court having jurisdiction under this Act or before the Registrar under Part 6A, a party to the proceeding may, subject to the Family Law Act 1975, apply to that court, or a court having jurisdiction under this Act, as the case may be, for an order under this section.”
The Respondent’s argument is simply that the objection lodged by the Applicant is not a proceeding before the Registrar under Part 6A, but a proceeding under Part 6B. As there are no other proceedings pending in a court having jurisdiction under the Act, then the stay application does not come within the limited scope of s.140.
The Applicant contends that if this were so, he would be left without a remedy, at least as far as a stay were concerned. He cites s.98ZH as authority for the proposition that s.140 does apply. Section 98ZH says:
“Subject to section 140 (Stay orders), the fact that an objection is pending under this Part in relation to a person does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to the person. Any such assessment may be registered under the Child Support (Registration and Collection) Act 1988, and any amounts of child support and other amounts may be recovered in relation to the assessment, as if no objection were pending”.
The principles to be considered
Part 6B of the Act sets out the way in which a party dissatisfied by a decision of the Registrar may lodge an objection and obtain an internal reconsideration of that decision. Part 7 of the Act gives jurisdiction to courts to review the Registrar’s decision.
The purpose of Part 6B is set out in s.98W:
“(1)The object of this Part is:
(a)To provide for internal reconsideration of decisions of the Registrar that are reviewable by a court having jurisdiction under this Act; and
(b)To provide for internal reconsideration of certain other decisions of the Registrar, and for AAT review of those decisions.
(2)In general, the Act requires a person who is aggrieved by a decision to use the objections procedure under this Part before using the procedures provided in the Act for a court or the AAT to consider decisions of the Registrar.”
It is clear that a party seeking a departure decision pursuant to Part 6A may apply for a Stay order pursuant to s. 140, and it is equally clear that a party seeking a review of the Registrar’s decision by a court may apply for a Stay, so it would be anomalous for a Stay not to be available pending the determination of an objection to a Part 6A decision. This view is reinforced by the fact that s. 98W makes it mandatory for a party to seek an internal reconsideration prior to applying to a court for a review. Section 98ZH contemplates the making of such a Stay order pending the outcome of a Part 6B objection.
Decision
For these reasons, I am satisfied that a party objecting to a decision of the Registrar made under Part 6A of the Child Support (Assessment) Act 1989 may properly apply for a Stay order pursuant to s.140 of the Act.
Order
(1)The application by the Respondent wife for an order for summary dismissal of the Application for a Stay order is refused.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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