Tuck and Johns and Anor

[2015] FCCA 2832

FEDERAL CIRCUIT COURT OF AUSTRALIA

TUCK & JOHNS & ANOR [2015] FCCA 2832

Catchwords:
CHILD SUPPORT – Stay – enforcement of arrears pending determination of appeal.

Legislation:

Administrative Appeals Tribunal Act 1975, ss.44AAA, 44A

Child Support (Registration and Collection) Act 1988, s.114C

Applicant: MR TUCK

First Respondent: MS JOHNS

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: ADC 3044 of 2015

Judgment of: Judge Kelly

Hearing date: 12 October 2015

Date of Last Submission: 12 October 2015

Delivered at: Adelaide

Delivered on: 21 October 2015

REPRESENTATION

The Applicant: In Person

The First Respondent: In Person

Counsel for the Second Respondent: Ms D Smith

Solicitors for the Second Respondent: Child Support Registrar

ORDERS

1. The decision of the Administrative Appeals Tribunal in Review No 2015/BC006835 dated 21 July 2015 is stayed insofar as the decision operates to create accrued arrears of Child Support for the period 1 January 2015 to 21 July 2015.

2. The Child Support Agency is restrained from doing any act or thing to enforce payment of any arrears that have accrued pursuant to the above decision, pending further order of this Court.

IT IS NOTED that publication of this judgment under the pseudonym Tuck & Johns & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3044 of 2015

MR TUCK

Applicant

And

MS JOHNS

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. These Reasons relate to the Notice of Appeal (Child Support) filed by the Applicant father on 17 August 2015.  The Respondent mother filed her Response on 11 September 2015. 

2. The parties’ competing Applications were listed for directions on 12 October 2015 and in the course of the hearing the Child Support Registrar was granted leave to be joined as the Second Respondent.

3. After making directions for the future management of the competing applications, the Applicant made an oral application to stay the Order of the Administrative Appeals Tribunal (the AAT) dated 21 July 2015 or, more precisely, to stay any enforcement of the Order by the Child Support Registrar.  The First Respondent opposed the oral application.

4. The Court heard brief submissions from each of the parties and for the Reasons pronounced on that date, accepted the Applicant’s position, to the extent that the Court was satisfied to stay the enforcement of arrears of Child Support that have accrued in accordance with the decision of the AAT.

5. Ms Smith, appearing on behalf of the Child Support Registrar, reminded the Court that the appropriate legislation now governing stay applications arising from an Appeal from the AAT is s.44A of the Administrative Appeals Tribunal Act 1975. Section 44A(2)[1] empowers a Court to stay or otherwise affect the operation or implementation of a decision (or part of a decision from the Tribunal) or from a decision to which the proceeding before the Tribunal related (or a part of that decision) pending hearing and determination of the Appeal before the Federal Circuit Court.

   [1] S.44AAA of the AAT Act 1975 extends the operation of s.44A(2) to the Federal Circuit Court of Australia in addition to the Federal Court of Australia

6. Section 111C of the Child Support (Registration and Collection) Act 1988 empowers a Court having jurisdiction under that legislation to make such orders as the Court considers appropriate staying or otherwise affecting the operation of either the or assessment of the Assessment Act and this Act if the Court considers it is desirable to do so, taking into account the interest of the person who may be affected of the outcome of the proceeding.

7. I am satisfied that both the Administrative Appeals Act and the Child Support (Registration and Collection) Act, empower this Court to stay the enforcement of the arrears that arose by virtue of the AAT  backdating its determination to commence from 1 January 2015.

8. This Order does not address the father’s claim for significant financial relief pending determination of the Appeal but will ease a portion of the financial burden that has arisen as a result of the Order now subject to the appeal.

9. I now make Orders as published at the commencement of these Reasons.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Associate: 

Date:       21 October 2015