Stay order for child support assessment dismissed
- The applicant and the first respondent are parents of two young children; Z who was born on (omitted) 2004 and is presently 12 years old and X who was born on (omitted) 2005 and is presently 11 years old.
- A child support assessment was registered on 19 January 2011. On 16 October 2015 the first respondent mother applied to the Registrar for a departure of the administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (‘the Assessment Act’).
- On 9 December 2016 a senior case officer considered the mother’s application and found two grounds of departure established on the basis of the applicant’s income, property, financial resources and earning capacity. The senior officer decided to set the adjusted taxable income at $136,641 for the period from 1 February 2016 to 31 October 2017 (‘the departure decision’).
- On 12 February 2016 the applicant’s objection to the decision was disallowed (‘the objection decision’).
- On 18 February 2016 the applicant sought the first review from the AAT. On 21 June 2016 the objection decision was affirmed (‘the AAT decision’).
- It was on 2 August 2016 that the applicant filed a Notice of Appeal (Child Support) seeking to appeal the decision of the AAT on a question of law. The applicant has subsequently filed an Amended Notice of Appeal on 11 October 2016.
The Law in relation to ‘Stay Orders’
- On 1 July 2015 the SSAT, formerly responsible for decisions in relation to child support, amalgamated with the AAT to become the Social Services and Child Support Division of the AAT.
- In Lloyd & Tasker & Anor  FCCA 297 this Court held that child support appeals filed pursuant to s.44AAA of the AAT Act are no longer proceedings under the Collection Act and therefore the Federal Circuit Court of Australia has no jurisdiction under s.111C of the Collection Act to order a stay.
- In Lawson & Lynch & Anor  FCCA 1258 at paragraphs 24-28 Judge Terry declined to express a concluded view but considered that s.111C of the Collection Act may apply. I am not bound by that decision.
- I am satisfied that the Federal Circuit Court of Australia has no jurisdiction under s.111C of the Collection Act to order a stay.
The power to stay under the AAT Act
- The power under s.44A(2) of the AAT Act is, in my view, where the Court has to look to determine whether to stay the order of the AAT decision.
- The Registrar at paragraph 18 of the written submissions filed on 24 October 2016 sets out the considerations in relation to a stay under the AAT Act:
“18. While there has been limited consideration of this provision in respect of child support proceedings the following considerations have been found to be relevant to the exercise of the discretion of whether or not to grant a stay under subsection 44A(2) of the AAT Act :
18.1 The discretion should be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending the appeal. As such, the decision under appeal is not to be treated as merely provisional.
18.2 The starting point is to recognise that the discretion, although importantly broad, is a true exception, conditioned by demonstrated circumstances, to the general proposition that an appeal does not operate as a stay.
18.3 The applicant bears the onus of demonstrating that the stay order proposed is
- “fair to all parties”
having regard to the balance of convenience (namely, the balance of risks and irremediable harm) and competing rights of the parties.
18.4 Weighed in balance is whether the appellant’s ground of appeal raises an arguable case. Such an assessment is designed to be
of the respondent in the sense of being undertaken to test whether the appeal has
- “been lodged without any real prospect of success and simply in the hope of granting a respite against immediate execution upon the judgment”
. The assessment of the prospects of success of the appeal by reference to such a test requires a low threshold of arguability.”
- [Footnotes Omitted’
- I accept the submission made by the Registrar accurately summarises the law.
- The order to stay the AAT decision in my view would be of no utility because the stay of the AAT decision, which simply affirmed the objection decision, would result in a reinstatement of the objection decision. To be effective any stay will need to affect the implementation or operation of the operative decision, that is the decision that allowed for a departure of the administrative assessment.
- The reasons the applicant asserted that a stay is justified are summarised at paragraph 24 of the written submission of the Registrar:
“24. In his affidavit filed 11 October 2016 the Applicant appears to assert a stay is justified on account of the following:
24.1 this matter may take an extended period of time to resolve;
24.2 his arrears will continue to accrue and deductions will continue from his Centrelink benefits;
24.3 he believes that if successful, the Registrar will not return any overpaid amounts;
24.4 he had not engaged in employment for over 15 months due to mental health issues;
24.5 he is attempting to save enough money to fly the children from (omitted) to (omitted) for Christmas holidays.”
- I am not satisfied that the appeal will be rendered nugatory unless a stay is granted. The applicant is currently on Centrelink and is paying $47.61 a fortnight which is the capped amount for parties on Centrelink.
- In the event that the applicant was able to stay the decision of the AAT, if for example s.111C of the Collection Act was available to him, it would result in the children having no financial support provided by the father pending the appeal, as opposed to $47.61 that is being paid from the Centrelink benefit.
- I note that the applicant wishes to save money for flights for the children, so that they can spend time with him for Christmas. I do not accept that that is a basis upon which I should stay the order if I had jurisdiction. Child support is for the daily needs of the children to be provided to their carer to enable those needs to be funded. Therefore, I am not persuaded that it would be appropriate to order a stay, if the power to do so was under s.111C of the Collection Act. I do not consider that power is available. The jurisdiction is pursuant to s.44A(2) of the AAT Act, and staying the AAT decision would not provide the result sought by the applicant.
- I will therefore dismiss the application.