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

1. 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.

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

3. 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.

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

5. 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.

6. 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

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Abani (No.2) 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. This is a matter in respect of which it has a very sad history, where the Child Support Registrar has sought to, as it is entitled to, enforce child support obligations against the respondent. The respondent raised issues relating to the validity of the assessment, issues concerning the former wife’s income and the calculation of the child support as well as seeking to dispute the validity of the child support certificates that have been adduced into evidence.

2. The Court has provided significant accommodation to the respondent over the history of the matter given the sad circumstances in which the home was the subject of a fire and in which the respondent did make a substantial payment at the encouragement of the Court from the proceeds of the insurance funds relating to that fire. That was a significant step taken by the respondent and has been the primary reason why the Court has been so accommodating in respect of the ongoing failure by the respondent to comply with his obligations in relation to child support.

3. The respondent has obviously recently identified the significance of the impact of COVID-19, his difficulties in obtaining employment and his ongoing current state of being in arrears relating to his mortgage. However, he does own a property in respect of which, on a drive-by valuation, it is identified as having a value in the order of $2 million. Mr Abani disputes that the valuation is correct. The valuation, whether correct or not, clearly identifies there is an equity in the property that is available to meet the outstanding obligations in respect of child support.

4. In those circumstances, the Court is satisfied that it is appropriate to make the orders being sought by the Child Support Registrar. The Court is also satisfied that it is appropriate to make the restraining orders identified in respect of that property and a related water licence.

I certify that the preceding four (4) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 10 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 12 February 2021