Child Support Registrar and Balzano (No.2)

[2011] FMCAfam 578

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & BALZANO (No.2) [2011] FMCAfam 578

CHILD SUPPORT – Enforcement – contravention of order – sanctions for failure to comply with order – whether imprisonment appropriate – mitigating factor.

Child Support (Registration and Collection) Act 1988, s.116
Family Law Act 1975, ss.112AD, 112AE, 112AF, 112AG

Child Support Registrar & Balzano [2011] FMCAfam 168

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR BALZANO

File Number: SYM 8092 of 2006

Judgment of: Scarlett FM

Hearing date: 7 June 2011

Date of Last Submission: 7 June 2011

Delivered at: Sydney

Delivered on: 8 June 2011

REPRESENTATION

Solicitor for the Applicant: Ms Nanson

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Respondent in person

Solicitors for the Respondent: No Solicitor on the record

ORDERS

1. Allegation 1 of the Amended Contravention Application filed on

   
   

   27 August 2010 is found proved.

2. The Respondent is fined the sum of $1,000.00.

3. The Respondent is to pay the Applicant’s costs fixed in the sum of $15,120.19.

4. The Respondent is in breach of the bond ordered by this Court on

   
   

   24 February 2009.

5. The breach of the above bond is to be reported to Federal Magistrate Donald.

6. Pending payment of the child support debt, the Respondent transfer to the Applicant all his shareholding and any other entitlements held by him in [Balzano] Pty Ltd (CAN [omitted]).

7. Until payment of the total debt, the Respondent be restrained from receiving any funds from his former wife Ms S save to apply such funds in reduction of the total debt.

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Balzano (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYM 8092 of 2006

CHILD SUPPORT REGISTRAR

Applicant

And

MR BALZANO

Respondent

REASONS FOR JUDGMENT

Application

1. The Respondent has been found to have contravened an Order made by the Local Court (Family Matters) on 11^th January 2005.  He was ordered to pay the sum of $59,151.56 and $2,258.56 (Child Support Registrar & Balzano[1]) and did not do so.

   [1] [2011] FMCAfam 168

2. The Applicant Child Support Registrar submits that the appropriate sanction is a sentence of imprisonment for a period of six months or until payment of the remaining sum of $51,410.12 is paid.

3. The Respondent has previously been dealt with for a contravention of that order. On 24^th February 2009 Donald FM found the contravention proved and imposed a penalty by placing the Respondent on a bond in the sum of $2,000.00 without security conditioned upon the Respondent paying the amounts ordered within the period of the bond.

4. As the Respondent did not do so, he is in breach of the bond.

The Relevant Law

1. The sanctions for failure to comply with orders are set out in subsection 112AD(2) of the Family Law Act and consist of:

   a)requiring the person to enter into a bond in accordance with section 112AF;

   b)imposing a sentence by order on the person or making an order directed to the person in accordance with section 112AG;

   c)fining the person not more than 60 penalty units; or

   d)imposing a sentence of imprisonment in accordance with section 112AE.

2. However, the Court must not impose a sentence of imprisonment unless the Court is satisfied that, in all the circumstances of the case, it would not be appropriate to deal with the contravention in a way set out by any other paragraph of subsection 112AD(2).

Conclusions

1. The Respondent has already been dealt with by way of a bond and did not make any payment during the term of the bond, as he was required to do. Accordingly, the imposition of a further bond would be inappropriate.

2. Since the current contravention was found, the Respondent has made one payment of $10,000.00 only.

3. A sentence of imprisonment is a last resort. The fact that one sanction has already been imposed is not of itself sufficient for the Court to be satisfied that it would not be appropriate to deal with the current contravention by any other means except imprisonment. The $10,000.00 payment is, to my mind, a mitigating factor.

4. I am not satisfied that, in all the circumstances of the case, it would not be appropriate for the Court to deal with the contravention in a way specified in any of the other paragraphs of subsection 112AD(2).

5. I propose to impose a fine of $1,000.00, as provided by paragraph  112AD(2)(c) of the Act. The breach of the bond will be reported to the Federal Magistrate who imposed it.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  9 June 2011