Child Support Registrar and Ayton

[2017] FCCA 780

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & AYTON [2017] FCCA 780

Catchwords:
CHILD SUPPORT – Application for enforcement of child support debt – whether Court should make a declaration in light of the debt – whether the respondent should have a pseudonym – application allowed.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), ss.104, 110X, 113

Federal Circuit Court Rules 2001 (Cth), Part 25B
Real Property Act 1900 (NSW), ss.3, 105

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR AYTON

File Number: PAC 4395 of 2016

Judgment of: Judge Street

Hearing date: 20 April 2017

Date of Last Submission: 20 April 2017

Delivered at: Sydney

Delivered on: 20 April 2017

REPRESENTATION

Solicitors for the Applicant: Ms B Rayment
Mills Oakley Lawyers

Solicitors for the Respondent: The Respondent appeared in person.

THE COURT DECLARES THAT:

The Respondent owes the Commonwealth of Australia the sum of $34,920.12 (the Child Support debt) being a registered maintenance liability of $31,562.83 in arrears of child support and $3,357.29 in late payment penalties.

ORDERS

1. The pseudonym in proceedings PAC4395/2016 is no longer required and the Respondent is to be known in these proceedings by his full name, MR AYTON.

2. The Respondent pay to the Applicant the Child Support Debt.

3. The Respondent pay to the Applicant a contribution towards its costs fixed in the sum of $3,413.00 (the ‘Costs’)

4. The Respondent pay to the Applicant the Child Support Debt and the Costs being the total sum of $38,333.12 (the total debt) by 4 May 2017.

5. The interlocutory Order 1 made on 27 March 2017 is continued to facilitate the enforcement of these orders against the real property of the Respondent.

6. Grant liberty to the Child Support Registrar to apply for an issue of warrant of possession on 2 days’ notice in respect of the property being Property I, NSW, (omitted) and on 2 days’ notice other orders for enforcement.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 4395 of 2016

CHILD SUPPORT REGISTRAR

Applicant

And

MR AYTON

Respondent

REASONS FOR JUDGMENT

1. This is an application for enforcement of child support maintenance under s.104 of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”). On 27 March 2017, the Court made orders standing the matter over for hearing today as well as granting interlocutory injunctive relief restraining the respondent from assigning, transferring, further encumbering, or dealing in any way with the property known as Property I, NSW, being the land described in Certificate of Title as (omitted) of Deposited Plan (omitted), without the prior written consent of the applicant. I am satisfied this Court has jurisdiction under s.104 of the Act in respect of these proceedings under s.113 of the said Act.

2. At the commencement of the hearing, the Court explained to the applicant that the Child Support Registrar was moving for final orders in relation to the amount outstanding. The respondent indicated that he needed an interpreter, and an interpreter was provided, notwithstanding that the respondent has been in Australia for 17 years. The respondent identified that he proposed to pay by instalments and wanted more time.

3. No objection was taken to the affidavit of Ms M of 13 September 2016, which identifies a very substantial period over which the respondent has failed to pay child support maintenance as well as identifying the respondent’s interest in the said land. A certificate was tendered and marked “exhibit A” from the business records of the Child Support Registrar identifying the payment history and the current balance outstanding.

4. Nothing was said by the respondent that provides any reason why the Court should not make a final declaratory order as sought by the Child Support Registrar. Whilst the respondent asked for further time to pay and an extension of the date for payment, it is a matter for the Child Support Registrar what indulgence the Child Support Registrar is willing to provide to the respondent. The Child Support Registrar indicated that if the respondent makes genuine steps to make real payments, as suggested in the amount of $6,000.00 per month, and complies with ongoing obligations, the Child Support Registrar may be willing not to take further steps for enforcement.

5. The Court has been informed that a caveat has been lodged on the property by the Child Support Registrar. It is not necessary for this Court to determine whether at this stage the Child Support Registrar has a caveatable interest on the property. Clearly such a caveatable interest will arise once a warrant for possession is issued. The Court is satisfied that a warrant for possession under Part 25B of the Federal Circuit Court Rules 2001 (Cth) is within the meaning of “writ” identified in s.105 of the Real Property Act 1900 (NSW), as defined in s.3 of the same act.

6. I am satisfied that this is a case where there is an amount outstanding by the respondent for child support maintenance in the sum of $34,920.12, being a registered maintenance liability of $31,562.83 in arrears of child support and $3,357.29 in late payment penalties. I am satisfied that this is an appropriate matter in which to make a declaration in respect of that debt. I am satisfied this is an appropriate matter in which to order the payment of that debt by the respondent to the applicant.

7. I am satisfied this an appropriate matter in which to order the respondent to pay the applicant’s costs fixed in the sum of $3,413.00. I am satisfied this an appropriate matter in which to order that the child support debt together with costs, totalling $38,333.12, should be paid by 4 May 2017.

8. I am satisfied that it is appropriate in the circumstances, notwithstanding the declaration, to continue the interlocutory Order 1 that was made on 27 March 2017 in order to protect and facilitate enforcement of these orders against the real property of the respondent. I am also satisfied it is an appropriate matter, given the evidence before the Court, in which to grant the Child Support Registrar liberty to apply for a warrant of possession on two days’ notice in respect of the said real property.

9. The Court notes that the Court was informed that it is only the respondent who occupies the said premises. The Court also notes that attention was drawn to s.110X of the Act. I am satisfied that the proceedings for enforcement brought before this Court are not designated proceedings in relation to which there should be some pseudonym in respect of the identity of the respondent.

10. For these reasons I am satisfied it is appropriate to make the orders sought in the short minutes of order provided by the applicant to the Court, together with a further Order 6 granting liberty to the Child Support Registrar to apply on two days’ notice for the issue of a warrant of possession in respect of the real property, being Property I, NSW, (omitted).

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  4 May 2017