CAMPANO & TENUTA
[2013] FMCAfam 230
•12 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAMPANO & TENUTA | [2013] FMCAfam 230 |
| CHILD SUPPORT – Child support liability – enforcement – where Respondent in default – where Respondent absent from the hearing – orders until further order. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.111F, 113A, 116 Federal Magistrates Court Rules 2001 rr.4.03, 4.05, 24.02, 13.03A, 13.03B, 13.03C, 16.05, 25B.09 |
| Applicant: | MS CAMPANO |
| Respondent: | MR TENUTA |
| File Number: | SYC 7486 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 March 2013 |
| Date of Last Submission: | 12 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Brien |
| Solicitors for the Applicant: | Haydon Fowler Corbett Jessop |
| The Respondent: | No appearance |
ORDERS
UNTIL FURTHER ORDER
Order that pursuant to Rule 25B.09 of the Federal Magistrates Court Rules, the Respondent pay the amount of $45,572.90, or such greater amount as may be owing by the Respondent at the date of payment, being the amount owed by the Respondent for a child support liability for the Applicant is the payee, Child Support Agency case number 1099574.
Order that pursuant to s.111F of the Child Support (Registration and Collection) Act 1988, payment of the amount in Order 1 be made to the Child Support Registrar within 28 days for payment out to the Applicant.
Order that the obligation of the Respondent to make the payment referred to in Order 1 be charged over the Respondent’s interest in the following properties:
(a)Property S, being the land referred to in Folio Identifier [omitted] (“[S] property”); and
(b)Property L, being the land referred to in Folio Identifier [omitted] (“[L] property”).
Order that the Applicant be entitled to register a caveat against the Respondent’s interest in the [S] property and the [L] property to secure the said charges.
Order that the Respondent be restrained from encumbering or further encumbering, or from increasing any debt secured by the existing mortgages over the [S] property and the [L] property, or joining or consenting to a co-owner encumbering or further encumbering, or increasing any debt secured by existing mortgages secured over the [S] property and the [L] property.
Order that the Respondent advise the Applicant, or the Applicant’s solicitor, in writing within 48 hours of:
(a)The Respondent entering into a contract for sale of the [S] property or the [L] property and at that time provide to the Applicant or her solicitor a full copy of the contract for sale of the relevant property; and
(b)Arrangements being made to complete the sale of either of those properties, including the date, time and place for completion of the sale.
Order that if at the date of completion of the sale of either of the [S] property or the [L] property the Respondent still owes any amount to the Child Support Agency for child support payable under the Assessment the Respondent shall do all acts and things and sign all documents required to direct payment by the purchaser of the said property of a bank cheque to the “Registrar Child Support Agency” out of the monies to be paid by the purchaser and had that cheque to the representative of the Applicant’s solicitor on completion.
Order that the Respondent file and serve a Financial Statement within 21 days.
The Application is adjourned to Tuesday 14 May 2013 at 10:00am for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Campano & Tenuta is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7486 of 2012
| MS CAMPANO |
Applicant
And
| MR TENUTA |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of two children for enforcement of payment of an amount of a child support liability under a child support assessment. The Applicant seeks orders entitling her to lodge a caveat over the title to two properties which the Respondent owns at [S] and [L], New South Wales.
At the time proceedings were commenced on 13th December 2012 the amount of the child support debt was $42,330.44. It has now risen to $45,572.90.
Although the Application and supporting affidavit were served on the Respondent on 15th February 2013, he has not filed any Response or affidavit, nor has he attended Court.
Background
The parties were married [in] 1998 and separated in January 2000. They were divorced on 25th February 2003.
There are two children of the marriage who were born [in] 1999. The children live with their mother and spend time with their father on alternate weekends and during the school holidays.
The child support liability relates to the two children.
The Applicant gave notice to the Child Support Agency on 14th November 2012 in accordance with s.113A of the Child Support (Registration and Collection) Act 1988 that she intended to institute proceedings for the recovery of the debt due under the child support liability. The following day she obtained a certificate under sub-section 116(2) of the Act showing that the child support debt stood at $42,330.44 as at that date.
The Applicant instituted proceedings by filing an Application in a Case and an affidavit sworn on 11th December 2012.
The documents were served on the Respondent by a Licensed Process Server on 15th December 2013.
The return date of the Application is 12th March 2013. No documents have been filed by the Respondent and he did not attend Court.
Evidence
The Applicant attended Court on 12th March, represented by
Mr O’Brien of counsel. The Respondent’s name was called three times outside the Court at 10:12am and again at 11:00am. There was no answer to the call.
The Applicant sought to proceed with the hearing and relied on the following:
a)her Application;
b)her affidavit; and
c)a certificate under sub-section 116(2) dated 12th March 2013 showing that the sum of $45,572.90 was due and payable.
The Applicant gave oral evidence affirming the truth of the contents of her affidavit. She said that she had searched real estate Websites relating to the Respondent’s property at Property L, noting that it was listed for urgent sale at a price of $270,000.00.
Conclusions
The Respondent should have filed and served a Response and an affidavit stating the facts relied on within fourteen days of the Application having been served upon him, that is, by 1st March 2013 (Rules 4.03, 4.05). He should also have filed and served a Financial Statement (Rule 24.02). He has not done so.
As a result of his failure to file a response or other required documents, the Respondent is in default (Rule 13.03A). Consequently, the Court may give judgment or make any other order against him (Rule 13.03B).
The Respondent is in default of appearance. He has not appeared, nor has he sent any message to say that he has been hindered, delayed or prevented from attending Court for any reason. Because of the Respondent’s failure to attend Court, the Court may proceed with the hearing generally (Rule 13.03C).
Consequently, the Applicant has given evidence and I am satisfied that I should make the orders sought in her Application. The Orders will be made until further order and the Application will be adjourned to Tuesday 14th May 2013.
If the Respondent wishes to be heard or to make an application to set aside the decision under the provisions of Rule 16.05 he would be well advised to attend Court on the next occasion.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 18 March 2013
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