Stark & Sherman & Anor (SSAT Appeal) - [2013] FCCA 2405

FEDERAL CIRCUIT COURT OF AUSTRALIA

STARK & SHERMAN & ANOR (SSAT APPEAL)

[2013] FCCA 2405

Catchwords:

CHILD SUPPORT – Appeal – Appeal from decision of Social Security Appeals Tribunal – stay.

PRACTICE & PROCEDURE – Application to transfer to Family Court of Australia – no ground for transfer.

Legislation:
Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 111C

Cases cited:

Stark & Sherman & Anor (SSAT Appeal) [2012] FMCAfam 1184

Applicant:

MR STARK

First Respondent:

MS SHERMAN

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

SYC 2043 of 2012

Judgment of:

Judge Scarlett

Hearing date:

15 October 2013

Date of Last Submission:

15 October 2013

Delivered at:

Sydney

Delivered on:

15 October 2013

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Clinch Long Letherbarrow

First Respondent:

In Person

Counsel for the Second Respondent:

Mr Gouliaditis

Solicitors for the Second Respondent:

Australian Government Solicitor

UNTIL FURTHER ORDER

The decision of the Social Security Appeals Tribunal dated 31 May 2013 be stayed pending final hearing of this matter.

THE COURT NOTES THAT:

Pending hearing of the Appeal, the effect of this stay shall be that the Father is required to pay child support in accordance with the Child Support Assessment as at 13 April 2011 being the sum of $1,570.25 per month.

BY CONSENT THE COURT ORDERS THAT:

The Child Support Registrar file a short propositions document and tender a bundle of material before the SSAT by 29 November 2013
The Appellant shall file and serve submissions by 31 January 2014.
The Second Respondent shall file and serve submissions no later than 21 February 2014.
The matter is adjourned to Tuesday 11 March 2014 at 2:15pm for Hearing.

IT IS NOTED that publication of this judgment under the pseudonym Stark & Sherman & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 2043 of 2012

MR STARK

Applicant

And

MS SHERMAN

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

There is an application by the Child Support Registrar that I should transfer this appeal to the Family Court.
The history of this matter is that I have previously heard an appeal by this appellant in which I found that a document which was said to be a Child Support Agreement was redundant and that the Tribunal fell into error relying upon it (Stark & Sherman & Anor (SSAT Appeal)[1]).
[1] [2012] FMCAfam 1184
The Appeal was successful. The proceedings were remitted to the Tribunal to be heard according to law. The matter was heard by the Tribunal. The Tribunal, I am told, took further evidence in respect of this document. It noted the submissions by Counsel for the Appellant in this case, but nevertheless made a decision unfavourable to the Appellant, relying at least in part on this document.
The Child Support Registrar now seeks that the proceeding be transferred to the Family Court and it is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 2405
Decision Date: 15 October 2013

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Social Security Appeals Tribunal (SSAT) to the Federal Circuit and Family Court of Australia. The applicants, Stark and Sherman, sought to appeal the SSAT's decision.

The primary legal issues before the Court were whether to grant a stay of the SSAT's decision pending the determination of the appeal, and whether to transfer the proceedings to the Family Court of Australia.

Scarlett J considered the criteria for granting a stay, noting that it is an exceptional remedy. Her Honour found that the applicants had not demonstrated a strong prima facie case, nor had they shown that the balance of convenience favoured granting a stay. Regarding the transfer application, Scarlett J determined that there were no grounds to transfer the proceedings to the Family Court, as the matter did not fall within the Family Court's jurisdiction.

Consequently, the applications for a stay and for transfer were dismissed.

Orders