Child Support Registrar and Balzano
[2011] FMCAfam 168
•8 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & BALZANO | [2011] FMCAfam 168 |
| CHILD SUPPORT – Contravention – where applicant claims respondent contravened orders to pay arrears of child support and late payment penalties – reasonable excuse – whether respondent has made out a reasonable excuse. |
| Family Law Act 1975 (Cth), s.112AC |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR BALZANO |
| File Number: | SYM 8092 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 February 2011 |
| Date of Last Submission: | 8 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dickson |
| Solicitors for the Applicant: | Australian Government Solicitor |
| The Respondent: | In person |
ORDERS
The Respondent did on 11 May 2005 and continuing without reasonable excuse contravene Order 3 made by the Local Court (Family Matters) on 11 January 2005 by failing to pay to the Child Support Registrar the amounts of $59,151.56 and $2,258.56.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Balzano is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA |
SYM 8092 of 2006
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR BALZANO |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Child Support Registrar claiming that the respondent contravened earlier orders to pay arrears of registered maintenance and late payment penalties. The respondent admits the contraventions but claims that he has a reasonable excuse, namely that he cannot afford to pay.
The Alleged Contraventions
There are two contraventions alleged.
The first count claims that the respondent contravened Order 3 made by the Local Court (Family Matters) at Sydney on 11 January 2005 in that he did on 11 May 2005 and continuing without reasonable excuse failed to pay to the Child Support Registrar the amount of $59,151.56 pursuant to Order 2 and the further amount of $2,258.83 pursuant to Order 1.
The second count claims that the respondent contravened Orders 2 and 3 made by Donald FM[1] in the Federal Magistrates Court at Parramatta on 24 February 2009 in that he did on 24 August 2009 and continuing without reasonable excuse failed to pay to the Child Support Registrar the amount of $59,151.56 in accordance with Order 2 of the orders and the further amount of $2,258.83 in accordance with Order 3 of those orders.
[1] Incorrectly described as “FM Donald”
The Relevant Orders
On 11 January 2005, in the Local Court (Family Matters) at Sydney, Mitchell M declared that there was owing to the Commonwealth in respect of amounts owing under registered maintenance liabilities of the respondent the sum of $59,151.56. His Honour then made the following orders:
1. That the Respondent pay to the Child Support Registrar the costs of the Commonwealth fixed in the sum of $2,258.83.
2. That the Respondent pay to the Child Support Registrar the sum of $59,151.56 (being $38,782.55 in arrears of child support, $20,369.01 in late payment penalties).
3. That payment of the amounts payable in orders 1 and 2 herein be paid to the Child Support Agency[2] within 4 months of the date of these orders.
[2] sic
On 24 February 2009, after hearing a contravention application against the respondent in the Parramatta Registry of this Court, Donald FM made the following orders:
1. Allegation 1 of the Contravention Application filed on 9 November 2006 is proved with penalty imposed.
2. The Respondent enter a bond in the sum of $2,000 without security for a period of 6 months conditioned upon the Respondent paying to the Applicant the amounts orders on 11 January 2005 by the Local Court with sum to be paid within the period of the bond.
3. The Respondent pay the Applicant’s costs in the sum of $12,145.00 to be paid within 6 months of today’s date.
Evidence
The respondent admitted the allegations in each of the two counts but claimed that he had a reasonable excuse, which was that he could not afford to pay the money. He elected to give oral evidence.
In his evidence the respondent said that he makes somewhere between $13,000.00 and $25,000.00 per year as a self-employed [omitted], which is shown by his income tax returns. He said that they do not do “big stuff”. It was a simple little business.
In cross examination the respondent agreed that he “had not paid a cent” towards the orders since 2005. He said that he had the capacity to pay the sum of $20,000.00 towards the orders, but he wanted to finish the matter. He said that he had the sum of $10,000.00 in cash available in cash at home. He further said that the amount was still there waiting for the matter to settle, but he would not pay it on account as he did now want to give up his negotiating power.
The respondent said:
I am not going to give up my negotiating power. You’ve had the offer. That’s the offer. I know my ex-wife will accept it.
Counsel for the applicant tendered a transcript of the proceedings before Donald FM, where the respondent told the Court that he had the sum of $10,000.00 available:
Well, I can pay that $10,000 and that’s the best I can do.[3]
[3] Transcript 24.2.2009 page 63
His Honour also noted that the respondent’s present wife could give him an amount of $20,000.00. The respondent said:
She’s willing to do that but it comes to the – she doesn’t want any more of this at all.[4]
[4] Ibid
Submissions
Counsel for the applicant submitted that the respondent had failed to make out a reasonable excuse. He has a capacity to pay but has elected not to do so. The Child Support Registrar cannot negotiate on arrears of child support.
The respondent has a capacity to make a part payment and the applicant does not need to demonstrate that the respondent could have paid the whole amount outstanding in one payment.
The respondent said that;
a)He only has $10,000.00;
b)He would have to borrow $20,000.00; and
c)He wants the matter finished.
He further said that he believed that a figure of $30,000.00 was reasonable to settle the matter.
Conclusions
The respondent has admitted both of the contraventions alleged but claimed a reasonable excuse, that he cannot afford to pay. The respondent is not legally represented. The Court must be satisfied that the contraventions alleged have been properly made out, because an admission cannot cure a defect in the allegation.
The first count alleges that on 11 May 2005 and continuing the respondent failed to pay the sums of $59,151.56 and $2,258.83 as required by Order 3 made by the Local Court.
The allegation is correct in form. The Orders made by the Local Court on 11 January 2005 provided that:
a)The respondent pay the sum of $2,258.83 by way of costs (Order 1);
b)The respondent pay the sum of $59,151.56 by way of arrears of child support and $38,782.55 by way of late payment penalties (Order 2); and
c)The respondent pay those amounts within 4 months (Order 3).
Quite clearly, there is a contravention of Order 3, in that the respondent has admitted that he did not pay those amounts by 11 May 2005, which is the time prescribed by Order 3. I find that contravention established.
The second count alleges that on 24 August 2009 and continuing the respondent failed to pay the amount of $59,151.56 in accordance with Order 2 of the orders made by the Federal Magistrates Court and the further amount of $2,258.83 in accordance with order 3 of the Federal Magistrates Court Orders.
However, that is not what the respondent was required to do by those Orders. Order 2 made by Donald FM required the respondent to enter into a bond for a period of six months on condition of his “paying to the Applicant the amounts ordered on 11 January 2005 by the Local Court with such sum to be paid within the period of the bond”.
It appears that on 24 August 2009, which is six months after the respondent was ordered to enter into the bond, he had not paid the amounts ordered by the Local Court. That does not constitute a breach of an order; it is, strictly, a failure to comply with a condition of the bond. That bond has now expired.
Further, Order 3 made on 24 February 2009 did not require the respondent to pay the sum of $2,258.83. The order required the respondent to pay the applicant’s costs in the sum of $12,145.00 within six months, that is, by 24 August 2009.
Notwithstanding the respondent’s admission, the second count is defective and I am not prepared to find that particular contravention established.
However, the respondent has claimed that he has a reasonable excuse for the contravention of the Orders made by the Local Court. He has not established a reasonable excuse.
Contravention proceedings in respect of financial maters are governed by part XIII of the Family Law Act 1975. Section 112AC of the Act gives the meaning of a reasonable excuse. It provides:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).
(2) A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
The definition in subsection (2) is not exclusive, as subsection (1) makes clear. In this case, the respondent cannot claim that he did not understand the obligations imposed by the order made by the Local Court, because he had already been the subject of a contravention application in respect of that very order heard on 24 February 2009.
The excuse that the respondent proffers is that he cannot afford to pay the amount required by the order, but he has already agreed that he has not paid any part of the outstanding amount at all since the order was made on 11 January 2005. It has been established that the respondent has the sum of $10,000.00 in cash available to him, and that he had that amount on 24 February 2009.
The only excuse that he gives for not making that payment in reduction of the amount outstanding is that he does not want to give up his bargaining power. That is not a reasonable excuse; it is a deliberate decision not to pay.
Similarly, it was established in the proceedings before Donald FM in 2009 that the respondent had the capacity to obtain the further sum of $20,000.00 from his current wife. In his evidence before this Court the respondent admitted that he has the capacity to obtain a further sum from his present wife and he submitted that, in his view, $30,000.00 constituted a reasonable amount to settle the claim.
The respondent has not established a reasonable excuse. He has made it quite plain that he has a capacity to obtain a total of $30,000.00 at short notice, but he has refrained from making any payment at all in order to maintain what he considers to be his negotiating power.
That is clearly not a reasonable excuse.
I am satisfied that the first count of the contravention application has been made out. The respondent has without reasonable excuse contravened Order 3 of the Orders made by the Local Court (Family Matters) at Sydney on 11 January 2005 in that he did on 11 May 2005 and continuing fail to pay to the Child Support Registrar the amounts of $59,151.56 and $2,258.83 as required by Order 3.
The second count has not been made out.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 8 March 2011
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