CHILD SUPPORT REGISTRAR & ABANI

[2019] FCCA 3308

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & ABANI [2019] FCCA 3308

Catchwords:
CHILD SUPPORT – Application in a case seeking to join the mother of the children and for an order extinguishing the child support debt – application in a case is misconceived and not within the timeframe the subject of the orders – application in a case dismissed – subpoenas set aside – application to enforce child support obligations – adjournment granted.

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR ABANI

File Number: SYC 314 of 2018

Judgment of: Judge Street

Hearing date: 18 November 2019

Date of Last Submission: 18 November 2019

Delivered at: Sydney

Delivered on: 18 November 2019

REPRESENTATION

Counsel for the Applicant: Ms R Graycar

Solicitors for the Applicant: Mills Oakley

The Respondent appeared in person

ORDERS

1. The proceedings are adjourned part heard to 2 April 2020 at 9:30am.

2. The application in a case filed by the respondent on 28 October 2019 is dismissed.

3. The subpoenas issued by the Court at the request of the Respondent to The Manager, D Company, E Company and Ms Abani dated 4 November 2019 and 8 November 2019 are set aside.

THE COURT NOTES THAT:

1. No further adjournment in respect of the final hearing is likely to be entertained in the absence of exceptional circumstances.

2. The interlocutory restraining orders made by Judge Henderson on 15 May 2018 remain in place.

Date of order: 18 November 2019

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 314 of 2018

CHILD SUPPORT REGISTRAR

Applicant

And

MR ABANI

Respondent

REASONS FOR JUDGMENT

1. These are proceedings brought by the Child Support Registrar under the Child Support (Registration and Collection) Act 1988 (Cth) seeking enforcement of outstanding child support payable by the respondent in respect of his five children.

2. The mother of the five children still currently has outstanding an amount of $8,238.60. There have been no payments made by the respondent since a large sum was paid in June of 2019.

3. The matter was before the Court and the subject of orders on 14 June 2019 and on 2 August 2019.

4. The applicant filed an application in a case seeking to join the mother of the children, and asking the Court for an order extinguishing the child support debt. The Court accepts the submissions of Ms Graycar of counsel on behalf of the applicant that the provisions of the Child Support (Assessment) Act 1989 (Cth) have no application to the Child Support (Registration and Collection) Act 1988 (Cth) in respect of the purported application in a case, and that the application in a case is misconceived. It is also not within the timeframe the subject of the orders. Accordingly, the Court has dismissed the application in a case.

5. The subpoenas on their face do not identify documents relevant to the issue of enforcement in respect of the respondent at the suit of the applicant. The Court is satisfied that the subpoenas do not seek any relevant document and are, as such, on their face, an abuse of process and should be set aside.

6. The Court raised with the respondent the question of his current financial position, and whether he had been able to obtain employment, and what had happened with the business that he had conducted. In the course of so doing, the respondent identified that he is taking steps to try and finalise the business, which appears to have in part been transferred to a family member, and that he has been making applications to try and obtain employment. The respondent indicated that there is a chance that he may be in a better position financially and able to resolve the small amount in terms of potential substantial liabilities that are currently outstanding.

7. The respondent is alive to the fact that there are late payment penalties, all of which at the moment have been waived in respect to the debt. If those penalties are reintroduced, the debt becomes significantly larger. It is very much in the respondent’s interests to ensure that he does take steps, both to meet current obligations in respect of the child support payments that are due and payable to his ex‑partner, and that he also takes other steps to prioritise paying out the substantive balance of the child support debt as promptly as possible so as to avoid those further penalties and to minimise the prospect of being in a position where the Court is required to crystallise the liabilities and facilitate steps to permit enforcement against the respondent.

8. Ms Graycar opposed the adjournment, identifying the absence of any payment since June 2019, that the applicant was still able to make mortgage payments and that there may be little utility in standing the matter over, as well as identifying the history of the matter.

9. Whilst there is considerable force in the submissions of Ms Graycar, this Court does still take into account the very substantial payment that was made in June 2019 and it is taking that into account which motivates the Court, as well as what was said by the respondent, to give a further brief period to the respondent to try and put his affairs into order so that he can attend to the outstanding payment.

10. That period of time is not intended to be one that is spent pursuing disputes with the Child Support Registrar or the tribunals but rather to get the respondent in a position of employment and into a better financial position and get assistance if he has to from his family to meet the outstanding debt so that these proceedings and this enforcement action are brought to an end.

11. The issue of the costs of the respondent is one in respect of which the Court can both fix the costs and provide a substantial period of time for payment. The Court is not likely to do that unless the child support debt has been paid in full.

12. It is very important that the respondent understands that, despite his disagreement with the assessments that are being imposed. The applicant has an actual current and enforceable liability that is likely to be crystallised in these proceedings. It is very much in his interest to try and resolve the matter, with assistance if necessary, so that there is finality and he is free of the further prospect of additional costs in these proceedings. Compounding the applicant’s financial position may make it more difficult for him. Particularly if he became a bankrupt to obtain employment his industry quite apart from other opportunities of employment that hopefully he is pursuing.

13. But the Court does expect, no matter how hard, that the ongoing liabilities, which are not substantial in amount, will be met between now and the adjourned date. If there has been no payment between now and then, it is highly likely that the Court will look carefully at the issue of the consequences that should flow in respect to the orders being sought by the respondent in respect of arrears and penalties.

I certify that the preceding thirteen (13) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 November 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 21 February 2021