CHILD SUPPORT REGISTRAR & ABANI (No.2) - [2020] FCCA 3381

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & ABANI (No.2)

[2020] FCCA 3381

Catchwords:
CHILD SUPPORT – Application to enforce child support obligations – whether an equity in property that is available to meet the outstanding obligations in respect of child support – restraining orders made in respect of that property and a related water licence – application allowed.

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR ABANI

File Number:

SYC 314 of 2018

Judgment of:

Judge Street

Hearing date:

10 December 2020

Date of Last Submission:

10 December 2020

Delivered at:

Sydney

Delivered on:

10 December 2020

REPRESENTATION

Solicitors for the Applicant:

Ms A Zinn via Microsoft Teams
Mills Oakley

The Respondent appeared in person via Microsoft Teams

ORDERS

The Respondent pay to the Applicant the sum of $25,259.72 (the child support debt), being a registered maintenance liability of $23,916.20 in arrears of child support and $1,343.52 in late payment penalties.
The Respondent pay to the Applicant costs fixed in the sum of $7,753.50 (the costs).
The Respondent pay to the Applicant the sum of $33,013.22 (the total debt), consisting of the child support debt and the costs, within 90 days of the date of these orders.
Orders 3 and 4 of the Orders made on 15 May 2018 be discharged.
Pending full payment of the total debt:
(5.1) The Respondent is restrained from assigning, transferring, further encumbering or dealing in any way with their interest in the following real property without the prior written consent of the Applicant:
(a)B Street, Town C, New South Wales, more particularly described in Certificate of Title Folio ...as Lot ... in Deposited Plan ...
(5.2) The Respondent’s interest in the real property be charged in favour of the Applicant for the total debt.
(5.3) The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with their interest in the following water access licence without the prior written consent of the Applicant:
(a)Water access licence more particularly described in Certificate of Title Folio ...
(5.4) The Respondent’s interest in the water access licence be charged in favour of the Applicant for the total debt.
If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with any of his real or personal property in breach of these orders, the amount of the total debt then outstanding shall be immediately due and payable.

THE COURT NOTES THAT:

A.Any monies payable by the Respondent pursuant to these orders are in addition to the ongoing liability to pay child support as assessed or varied from time to time.
B.If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with the real or personal property in breach of these orders, the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 (including certain provisions of Subdivision 25B.2.3 – Enforcement warrants and/or 25B.2.4 – Third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 3381
Decision Date: 10 December 2020

CaseChat Overview and Summary

The matter before Judge Street concerned an application by the Child Support Registrar to enforce child support obligations against Mr. Abani. The dispute centred on whether Mr. Abani possessed an equity in certain property and a related water licence that could be used to satisfy outstanding child support liabilities. Restraining orders were sought in respect of this property and water licence.

The court was required to determine if the Child Support Registrar could obtain orders restraining Mr. Abani from dealing with his interest in a specified property and a water access licence, and whether these interests could be charged in favour of the Registrar to secure payment of the outstanding child support debt and associated costs.

Judge Street reasoned that the Registrar had established a sufficient basis to justify the imposition of restraining orders and charges over Mr. Abani's property and water licence. The court applied principles relating to the enforcement of child support obligations, recognising the need to secure payment of arrears and penalties. The court ordered Mr. Abani to pay a total sum of $33,013.22, comprising child support arrears and costs, within 90 days. Pending full payment, Mr. Abani was restrained from assigning, transferring, or encumbering his interest in the specified real property and water access licence, and these interests were charged in favour of the Registrar. The court also noted that any monies payable were in addition to ongoing child support liabilities and that the Registrar could enforce the debt in accordance with the Federal Circuit Court Rules if default occurred.

Orders

Orders of the court

The Respondent pay to the Applicant the sum of $25,259.72 (the child support debt), being a registered maintenance liability of $23,916.20 in arrears of child support and $1,343.52 in late payment penalties.

The Respondent pay to the Applicant costs fixed in the sum of $7,753.50 (the costs).

The Respondent pay to the Applicant the sum of $33,013.22 (the total debt), consisting of the child support debt and the costs, within 90 days of the date of these orders.

Orders 3 and 4 of the Orders made on 15 May 2018 be discharged.

Pending full payment of the total debt:

(5.1) The Respondent is restrained from assigning, transferring, further encumbering or dealing in any way with their interest in the following real property without the prior written consent of the Applicant:

(a) B Street, Town C, New South Wales, more particularly described in Certificate of Title Folio ...as Lot ... in Deposited Plan ...

(5.2) The Respondent’s interest in the real property be charged in favour of the Applicant for the total debt.

(5.3) The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with their interest in the following water access licence without the prior written consent of the Applicant:

(a) Water access licence more particularly described in Certificate of Title Folio ...

(5.4) The Respondent’s interest in the water access licence be charged in favour of the Applicant for the total debt.

If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with any of his real or personal property in breach of these orders, the amount of the total debt then outstanding shall be immediately due and payable.

THE COURT NOTES THAT:

A. Any monies payable by the Respondent pursuant to these orders are in addition to the ongoing liability to pay child support as assessed or varied from time to time.

B. If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with the real or personal property in breach of these orders, the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 (including certain provisions of Subdivision 25B.2.3 – Enforcement warrants and/or 25B.2.4 – Third party debt notice).

C. The Applicant proposes to lodge a caveat to protect the interest created in the real property by these orders.

D. The Applicant proposes to lodge a registration on the Personal Property Securities Register to protect the interest created in the personal property by these orders.

Date of order: 10 December 2020

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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