Victor and Duncan and Anor (No.2)

[2015] FCCA 2112

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICTOR & DUNCAN & ANOR (No.2) [2015] FCCA 2112

Catchwords:
CHILD SUPPORT – Administrative Appeals Tribunal (Social Services and Child Support Division) – appeal from a decision of the AAT in a child support first review – where Notice of Appeal filed – where Appellant seeks a stay of orders until Appeal finalised – principles relating to stay considered.

Legislation:

Child Support (Assessment) Act 1989 (Cth), s.98H

Child Support (Registration and Collection) Act 1988 (Cth), s.103M

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Victor & Duncan & Anor (SSAT Appeal) [2015] FCCA 1073

Applicant: MR VICTOR

First Respondent: MS DUNCAN

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 2044 of 2013

Judgment of: Judge Scarlett

Hearing date: 14 July 2015

Date of Last Submission: 14 July 2015

Delivered at: Sydney

Delivered on: 22 July 2015

REPRESENTATION

Applicant: In person

First Respondent: No appearance

Solicitor for the Second Respondent: Mr Dennis

Solicitors for the Second Respondent: Sparke Helmore Lawyers

ORDERS

1. Order (2) made on 30 April 2015 is stayed pending determination of the Appeal filed by the Applicant on 28 May 2015.

IT IS NOTED that publication of this judgment under the pseudonym Victor & Duncan & Anor 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 2044 of 2013

MR VICTOR

Applicant

And

MS DUNCAN

First Respondent

CHILD SUPPORT REGISTRAR
Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a stay of an order made by this Court on 30 April 2015 in respect of an appeal by the Appellant against a decision of the Social Security Appeals Tribunal.  In his Application in a Case filed on 28 May 2015 supported by an affidavit, the Appellant seeks that the orders made on 30 April 2015 are stayed until the appeal of the Full Court of the Family Court is determined.

2. The circumstances are that on 30 April 2015, this Court made the following orders:

   (1)    The amended notice of appeal filed on 29 October 2013 is dismissed.

   (2)    The decision of the Social Security Appeals Tribunal made on 7 March 2013 and posted on 20 March 2013 is affirmed.

   (3)    Written submissions in support of any application for costs and the affidavit setting out the way in which the costs sought are quantified are to be filed and served within 28 days from the date of these orders.

   (4)    Any written submissions in opposition to any application for costs are to be filed and served within a further period of 14 days.

3. Those were the orders, and since then the First and Second Respondents have each filed submission on the question of costs.

4. The Appellant has indeed lodged an Appeal against the decision of the Court.  He has set out some 10 grounds of appeal, which I shall quote in full:

   (1)  That his Honour erred in failing to consider all relevant matters.

   (2)  That his Honour’s decision miscarried in that the result embodied in his decision was manifestly unjust.

   (3)  That his Honour erred in not finding that the Tribunal’s decision on the Appellant’s adjusted taxable income was unreasonable and that no reasonable decision maker could have reached it.

   (4)  That his Honour erred in not finding that the Tribunal made findings in relation to the Appellant’s compliance with his taxation obligations, which findings were not properly available to the Tribunal on the evidence, The appellant was not afforded the opportunity to be heard in respect of, and were irrelevant to the decision.

   (5) That his Honour erred in failing to give effect to the legislative intention of section 103M of the Child Support Registration Collection Act 1989 and subsection 98H(1) of the Child Support Assessment Act 1989, which are to require the Child Support Registrar and the SSAT to properly inform themselves of all the relevant matters, including financial information about the financial circumstances of both parties before making decisions regarding child support obligations.

   (6)  That his Honour erred in finding that there was no failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily ascertained.

   (7)  That his Honour erred in not finding that the Tribunal’s decision was perverse and unreasonable.

   (8)  That his Honour erred in finding that the Tribunal’s decision that the Appellant’s adjusted taxable income ought to be set a $360,000 does not give rise to a question of law.

   (9)  That his Honour erred in not finding that the Tribunal erred in law by assessing the Appellant’s adjustable taxable income $360,000 without properly analysing the Appellant’s financial situation and making detailed findings on the evidence that was available to it based on the Appellant’s full and frank disclosure of his circumstances, thereby aggregating its function by refusing to undertake the task it was required to do.

   (10)  That the Appellant reserves the right to amend these grounds upon receipt and review of the transcript of the hearing before Judge Scarlett on 15 October 2015 and 15 November 2015.

5. Those grounds are quoted directly, notwithstanding there appear to be some slight errors in date.  I do not consider that they are significant.

Principles relating to stay 

1. What the Court must do when considering an application for a stay is consider a variety of matters that have been set out by the Full Court of the Family Court in what I consider to be the leading authority, with respect, Aldridge & Keaton (Stay Appeal)[1].  In that decision, the Full Court of the Family Court, at paragraph 18, set out the applicable proceedings relating to a stay application.  I shall read those onto the record, not all of which will be relevant to this particular matter. 

   [1] [2009] FamCAFC 106

2. However, their Honours said at [18]:

   Principles relevant to this matter include the following:

   ·   the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·   a person who has obtained a judgment is entitled to the benefit of that judgment;

·   a person who has obtained a judgment is entitled to presume the judgment is correct;

·   the mere filing of an appeal is insufficient to grant a stay;

·   the bona fides of the applicant;

·   a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

·   a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

·   some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

·   the desirability of limiting the frequency of any change in a child’s living arrangements;

·   the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

·   the best interests of the child the subject of the proceedings are a significant consideration.

Conclusions

1. I have considered those matters insofar as they are relevant.  This is an appeal against an appeal decision by way of judicial review of a decision of the Social Security Appeals Tribunal in the question of child support.  It is not a parenting case, per se.  The Appellant has not demonstrated any special or exceptional circumstances for the grant of a stay, nor does he need to do so.  I accept the fact that the Respondents are entitled not only to the benefit of my judgment of 30 April 2015, but are entitled to presume that the judgment is correct.  In my view, it is correct.  Clearly, the filing of an appeal is insufficient to grant a stay. 

2. I am satisfied that the Application for a stay is bona fide in that the Appellant has filed an appeal in which he has set out some 10 grounds of appeal.  It is difficult to weigh the balance of convenience and the competing rights of the parties, except as to say that a granting of the stay will prolong the situation which has existed prior to the hearing of the Appeal and whilst the decision was being prepared.  It is always a factor that an appeal may be rendered nugatory if a stay is not granted.  This is a substantial factor.

3. I have considered the strength of the proposed appeal.  I do not believe that it is a strong appeal.  It appears to me to be, with the greatest of respect, a restatement of matters which I have already considered in some detail in quite a lengthy judgment.  This was a hearing that took a considerable time to hear, and the Court had the benefit of substantial submissions from Counsel for the Appellant and both respondents.  That said, I am considering the strength of an appeal against my decision.

4. In an ideal world, I would consider the strength of the appeal independently of the fact that I had written the decision, but, of course, that is not the case.  It may well be that the Full Court of the Family Court, on hearing the appeal, may find favour in one or more grounds of the appeal.  That is not for me to predict.  The decision, at first instance, was not an easy decision.  It involved a considerable amount of submission and argument, and the Full Court may take a different view.

5. Whilst I am of the belief that the Appeal will ultimately fail, I cannot say that the Appellant does not have an arguable case.  An arguable case is not an unlosable case or a case that the Appellant can expect to win without any opposition.  It is what it says it is, a case that is worthy of the time of the Court.  In my view, applying that criterion, the Appellant has an arguable case.  This is not a case where I need to consider any change to a child’s living arrangements. 

6. I have no information about the period of time in which the Appeal can be heard, although my understanding is that the Full Court of the Family Court is as heavily burdened by a large workload as other courts which exercise this jurisdiction.  I do not expect the Appeal to be heard in the very near future. 

7. The question of the best interests of a child does not appear to be a factor of any great relevance.

8. I have considered all of those matters.  I am not of a view that the stay should be refused. I propose to grant the stay. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett.

Associate: 

Date: 6 August 2015