SCVG and Child Support Registrar (No 2)

[2016] FamCA 302

FAMILY COURT OF AUSTRALIA

SCVG & CHILD SUPPORT REGISTRAR (NO 2) [2016] FamCA 302

FAMILY LAW – STAY APPLICATION – Where there has been a previous stay order – Where an extension is requested – Where the Full Court is due to hear the matter within a short space of time – Where the stay is granted with conditions

Family Law Act 1975 (Cth)

APPLICANT: Mr SCVG

RESPONDENT: Child Support Registrar

FILE NUMBER: SYC 2044 of 2013

DATE DELIVERED: 19 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 19 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Kaplan

Orders

For all those reasons I make the following orders:

1. Between the date of this Order and 30 May 2016, or such further date as the Full Court or a Judge of the Appeal Division of the Family Court of Australia may order, the operation of the s 72A(2) notice issued pursuant to the power contained in the Child Support (Registration and Collection) Act 1988 (Cth), the Notice directed to the public officer Ernst and Young and dated 18 June 2015 is stayed upon the following conditions:

   a.That Mr SCVG (the appellant) do all things necessary on his part to ensure that Appeal Number EA75 of 2015 together with any other appeal which he has lodged and which the appeal registrar of this Court consolidates with appeal number EA75/2015 is ready to proceed to hearing on 27 May 2016.

   b.That the appellant meet all his obligations under any child support assessment which may be operative between this date and 30 May 2016.

2. Should the appellant fail to comply with either of the two conditions above specified, the stay order made herein shall stand immediately discharged.

3. The Applications in a Case filed by the husband on 23 September 2015 and 16 November 2015, as amended by the minute of order marked as Exhibit “A” today, are otherwise dismissed.

IT IS NOTED:

1. It is intended that the Order made herein will operate to prevent the collection of arrears of Child Support owed by the appellant as at the date hereof until 30 May 2016 (the Monday following the date expected for the hearing of the appellant’s appeal against the Orders of Judge Scarlett made 30 April 2015) or such further time as the Full Court of this Court or a Judge of the Appeal Division may order, and subject to the appellant meeting the conditions imposed in the Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & Child Support Registrar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2044 of 2013

Mr SCVG

Applicant

And

Child Support Registrar

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application in a case, filed by Mr SCVG (hereafter called the appellant) on 23 September 2015.  He supported that application with an affidavit, which was filed on the same date.  Also relevant to the determination required herein, the appellant filed in court a handwritten minute of order, which has been marked as exhibit A in these proceedings, which changes the wording of the order that he would ask the court to make.  In addition, on 16 November 2015 the appellant filed an application in a case, which sought an order for expedition of the application in a case filed 23 September 2015, as best I understand that application.

2. The application in a case filed 23 September 2015, and the handwritten minute of order which became exhibit A in the proceedings, addresses the consequence of an order made by Judge Scarlett on 14 July 2015.  That order was:

   That order 2 made on 30 April 2015 is stayed, pending determination of the appeal filed by the applicant on 28 May 2015. 

3. The order of 30 April 2015 had been made by Judge Scarlett at the conclusion of hearing an appeal filed by the appellant against a determination of the Social Security Appeals Tribunal (SSAT), dated 7 March 2013.  That decision affected a child support assessment requiring payment by the appellant of child support.  The determination made by the SSAT, which primarily affected the child support paid by the appellant, was that the appellant’s adjusted taxable income ought be set at $360,000, in respect of child support periods covering a number of years.

4. Having heard the appeal, the first order made by Judge Scarlett was that the appeal filed by the appellant be dismissed. The orders sought by the appellant in the appeal heard by Judge Scarlett, sought that the determination of the SSAT be set aside, and that a further hearing take place in relation to the appeal which the appellant had filed before that tribunal.

5. In the determination of the stay application, Judge Scarlett concluded two matters, which ultimately led to his granting the stay.  Firstly, it appears that his Honour had found that refusing the stay may render the appellant’s appeal nugatory; next, and perhaps more importantly, he concluded that the appellant had an arguable case to put on appeal.  Nowhere in the decision of Judge Scarlett, in relation to the stay, is there any reference to a garnishment order which had been served on the appellant’s employer (or administrator of his superannuation fund) on or after 18 June 2015. 

6. Annexed to an affidavit filed by the second respondent, opposing the orders sought by the appellant, is a copy of the garnishment order, which was issued, pursuant to section 72A of the Child Support (Registration and Collection) Act 1988. That order required the payment to the Child Support Registrar of a sum of 10 cents from every dollar which was otherwise paid to the appellant by Company I. Annexure E to that same affidavit is a printout of the history of payment and charges relevant to the appellant’s obligations under child support assessments.  It operates in respect of the period 1 November 2011 through to 25 January 2016.  That document illustrates that the first payment received, pursuant to the garnishment order, was $438.60 on 10 July 2015. 

7. It is apparent to me from reading the stay judgment of Judge Scarlett that (a) he did not know of the garnishment order; and (b) he intended that the operation of the stay would prevent any collection of arrears by the Child Support Agency, pending the hearing of the appellant’s appeal against the order and determination made by Judge Scarlett on 30 April 2015. It also appears reasonably clear that had he known of the garnishment order, he would have, on the application of the appellant, granted an injunction which restrained further collection, perhaps on conditions.

8. Inquiries which were able to be conducted on my behalf today have led to information from the appeals division of this court that the appeal number EA 75 of 2015, lodged by the appellant, will be allocated a hearing date on 27 May 2016.  The operation of a stay, therefore, relates to a period from the date hereof to the conclusion of the hearing of the appeal on that day, or such further date as members of the Full Court hearing the appeal, or a judge of the appeal division of this court, concludes ought be made. 

9. In considering an application for an injunction, effectively restraining the Registrar from collecting the arrears of child support relevant to the determination made by the SSAT as aforementioned, consideration of prejudice which may flow to the appellant, to the first respondent to the applications (the person who holds the benefit from the child support assessments) and the Child Support Registrar (the second respondent) is required.  The second respondent has candidly conceded that no detriment would realistically flow to the second respondent by an injunction being made limited to the period aforementioned, however, in fairness, points out that the first respondent would suffer prejudice in that she would not have paid to her the monthly amount collected under the subject garnishment order which at this time is likely to be in the order of $439 per month. Apart from the arrears, which are being collected in the manner aforementioned, the appellant also is the subject of a current child support assessment, however the evidence suggests that payments pursuant to that assessment are significantly less than $438 per month.

10. The appellant’s financial circumstances are not clear.  What is clear is that he receives a monthly payment from his employer, or the manager of his superannuation fund, of about $4300.  In addition, he has income from other sources.  The extent of his capital and other financial circumstances are not before the court.

11. Given that which I have set out so far, and given that the appeal will most probably be concluded by the end of May, I consider that it is appropriate to make an order which would suspend the operation of the garnishment order currently in place for a limited period of time.  Any such operative order must be the subject of conditions, those conditions including that the appellant meet his current obligations under current child support assessment and that he prosecute his appeal diligently.  Failure on his part to comply with either of those requirements, at the very least, should give rise to an automatic discharge of the stay order.  Accordingly, I propose to make such an order, which I will set out shortly.

12. The minute of order, which has been marked as exhibit A in the proceedings, seeks a further extension of consequence to both the Child Support Registrar and to the appellant.  In particular, the appellant seeks that a departure prohibition order which is in place, and which is not in evidence before me, be set aside.  The appellant argues that the departure prohibition order arises only from the existence of substantial arrears of child support as specified in the affidavit sworn on 21 January 2016 on behalf of the second respondent.

13. The second respondent says there is no jurisdiction in the Court to entertain the application in respect of discharging a departure prohibition order as requested by the appellant, and directs the court’s attention to section 72Q(1) of the Family Law Act.  That section is clear, and states as follows:

    A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit Court of Australia against the making of the order.

14. It is clear, upon the reading of that section, that the submission made on behalf of the second respondent must be upheld, and accordingly I find that there is no jurisdiction in this Court to hear the application that the appellant seeks to prosecute in respect of a departure prohibition order operating against him.

15. Additionally, the appellant seeks a restraint against the Child Support Registrar applying penalties for non-payment of outstanding child support. The appellant is concerned that if no payment is made as against the arrears claimed by the Child Support Registrar then there will be applied, pursuant to the Child Support Assessment Act or the Child Support (Registration and Collection) Act, penalties which the appellant will be required to pay at some time in the future.

16. The Child Support Registrar argues that if at the conclusion of this litigation some variation to the determination made by the SSAT against which the appellant appeals should be required, then a review of penalties pursuant to the Act will take place.  The quantification of any such penalties is determined by a formula, and that formula will be applied.  I accept that submission, and accordingly I would not grant the application of the appellant in that respect. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 19 February 2016.

Associate: 

Date:  19 February 2016