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

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

THE COURT NOTES THAT:

1. 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:

1. The Child Support Registrar file a short propositions document and tender a bundle of material before the SSAT by 29 November 2013

2. The Appellant shall file and serve submissions by 31 January 2014.

3. The Second Respondent shall file and serve submissions no later than 21 February 2014.

4. 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

1. There is an application by the Child Support Registrar that I should transfer this appeal to the Family Court. 

2. 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

3. 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. 

4. The Child Support Registrar now seeks that the proceeding be transferred to the Family Court and it is put because it is the view of the Child Support Registrar that the earlier decision was wrong. 

5. If it was the view of the Child Support Registrar that the decision was wrong, it should have been appealed.  There was no appeal.  There is a protocol between this Court and the Family Court about the reasons why a matter should be transferred from one Court to the other, and this Court makes a point of following that protocol scrupulously. 

6. It is my understanding that the Family Court adheres to that protocol equally scrupulously. There is nothing in the protocol between the Family Court of Australia and the Federal Circuit Court that would cover a transfer of an appeal, which is essentially by way of judicial review, from this Court to the Family Court for what appears to me to be tantamount to running an appeal out of time.

7. In my view, the application to transfer the proceeding to the Family Court of Australia has no merit and that application is refused. 

8. I will now deal with the application for a stay, and I note that the Child Support Registrar has no position on that application.  And I note that the First Respondent, Ms Sherman, has indicated to the Court and to the parties that she does not wish to participate in the Appeal.  I have been handed a minute of orders sought by the Applicant Father in respect of the stay, together with a notation.  I will mark that document as an exhibit and make the order accordingly.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  10 March 2014