Child Support Registrar and Cadogan
[2010] FMCAfam 406
•29 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & CADOGAN | [2010] FMCAfam 406 |
| CHILD SUPPORT – Enforcement summons – enforcement of child support debt. |
| Child Support (Assessment) Act 1989, s116(2) Federal Magistrates Court Rules |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR CADOGAN |
| File Number: | BRC 10301 of 2009 |
| Judgment of: | Slack FM |
| Hearing date: | 29 January 2010 |
| Date of Last Submission: | 29 January 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 29 January 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Australian Government Solicitor |
The Respondent appeared on his own behalf.
ORDERS
THE COURT DECLARES that there is owing to the Commonwealth in respect of amounts owing under registered maintenance liabilities of the Respondent (inclusive of penalties) the sum of $20,796.05 being $16,526.61 arrears of maintenance and $4,269.44 late payment penalty as at 29 January 2010.
THE COURT ORDERS:
That the Respondent pay the costs of the Applicant in the sum of $2,540.50.
That the Respondent pay to the Child Support Registrar at PO Box 9815, Brisbane in the State of Queensland the amount of $23,336.55 (being the sum of $16,526.61 arrears of maintenance plus $4,269.44 late payment penalties together with the said costs of $2,540.50 (the Debt).
That the Respondent pay to the Child Support Registrar the Debt referred to in Order 2 in cleared funds by way of bank cheque, payment in cash at any Australia Post Office or electronic BPay funds transfer into the Applicant's nominated bank account by no later than 1 March 2010.
That in the event the Respondent is in default of Order 3 the whole of the Debt will become payable to the Child Support Registrar immediately.
That in the event that the Respondent is in default of Order 3 or any other obligations under these orders then:
(a)Pursuant to Order 33, Rule 7 of the Family Law Rules 1984 (which applies by virtue of Rule 25B.05 and Schedule 5 of the Federal Magistrates Court Rules), the Official Receiver for the Bankruptcy District of the State of Queensland whomever that may be from time to time for and on behalf of the Commonwealth of Australia (“Official Receiver”) shall, on being given notice in writing of such default, be appointed statutory trustee and shall be empowered to take possession of and sell the Respondent’s interest in the following real property:
(i)Property E;
(hereinafter the real property listed at 5.1.1 is referred to as "the Property").
That for the purpose of the sale of the Property pursuant to Order 5, the Respondent shall sign all documents and do all things necessary to transfer his interest in the Property to the Trustee to be held on trust for sale and the Property be forthwith sold for the best price reasonably obtainable and the proceeds of sale shall be paid out by the Official Receiver in the following manner and/or priority:
(a)firstly, in payment of all costs, commissions and expenses of the said trust, transfer and sale including all costs charged by the Official Receiver;
(b)secondly, in discharge of any encumbrance over Property E having priority to this Order, and required to be released in order to effect the transfer of the Respondent’s interest in the Property in accordance with Order 5(a);
(c)thirdly, in payment of such sums as are then outstanding to the Commonwealth pursuant to this or any subsequent Order arising out of a registrable maintenance liability of the Respondent;
(d)fourthly, in payment of the remuneration of the Official Receiver or his or her officers as prescribed in Regulation 16.12 of the Bankruptcy Regulations; and
(e)fifthly, the balance of the residue to the Respondent.
That the Respondent be restrained from assigning, transferring, encumbering by mortgage or charge or otherwise dealing with the Property referred to in Order 5 without the consent of the Child Support Registrar or his/her nominee except for the purpose of transferring the Respondent’s interest in the Property in accordance with Order 5.
That the Respondent forthwith upon request of the Applicant sign all necessary documents and do all necessary acts to give effect to the terms of Order 5.
That in the event that the Respondent refuses or neglects to comply with Order 5 then pursuant to section 106A of the Family Law Act 1975, the Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the Respondent and do all acts and things necessary to give validity or operation to all such deeds and documents so as to effect the transfer of the Respondent’s interest in the Property.
That for the purposes of proving default pursuant to Order 8 an affidavit by or on behalf of the Applicant stating that a request has been made in accordance with Order 8 and that the Respondent has refused or neglected to comply shall be conclusive evidence of default for the purposes of this Order.
That the Respondent shall give the Official Receiver vacant possession of the Property within 30 days of the date of defaulting on payment under these orders.
That the Respondent's interest in the Property is charged in favour of the Applicant for the total Debt set out in Order 2 (and the Applicant is at liberty to lodge a caveat over the Property to secure the interests created by this charge).
That a Warrant for the Seizure and Sale of Personal Property issue but lie in the Registry pending notification of the Respondent being in Default pursuant to Order 3 herein (in that the Respondent has not paid the Debt pursuant to Order 3 herein by 11 January 2010 directing the Marshal of the Family Court of Australia (“the Marshal”), and his servants and agents, may forthwith seize and realise, in accordance with Order 33 Rule 5 of the Family Law Rules 1984 (which applies by virtue of Rule 25B.05 and Schedule 5 of the Federal Magistrates Court Rules), such of the Respondent’s personal property, not being prescribed personal property, as the Marshal or his servants or agents may consider sufficient to meet the reasonable costs of the Marshal and discharge in full the amounts owed by the Respondent under these orders, and, in particular, the Marshal or his servants or agents may seize and realise the Respondent’s vehicles, including but not limited to:
(a)a 1941 Indian motorcycle, Registration [omitted] registered in the name of the Respondent; and
(b)a 1984 BMW motorcycle, Registration [omitted] registered in the name of the Respondent;
(hereinafter the vehicles referred to above are jointly referred to as the "Motor Cycles")
That for the purpose of carrying into affect these orders, the Respondent shall give the Marshal, and his servants and agents, peaceful entry to any premises in which personal property of the Respondent is located and shall deliver to the Marshal, his servants or agents, upon request, the keys to the vehicle(s).
That the Respondent shall, upon the request of the Marshal, do all acts and execute all documents necessary to transfer to the Marshal all of the Respondent’s right, title and interest in such of the Respondent’s personal property as the Marshal or his servants and agents may seize pursuant to these orders.
That if the Respondent defaults under the immediately preceding order, the Marshal is hereby empowered to sign all documents and do all things necessary to transfer to the Marshal all of the Respondent’s right, title and interest in the personal property seized pursuant to these orders.
That the Marshal shall, as soon as reasonably practicable, sell the Respondent's personal property seized pursuant to these orders, for the best price reasonably obtainable and shall apply the proceeds of sale in the following order:
(a)first, in payment of the reasonable costs, disbursements and expenses of the Marshal or his servants or agents, including reimbursement to the Applicant for any fees paid to the Marshal;
(b)second, in discharge of any prior encumbrances on the personal property;
(c)third, in payment of such sums as are then outstanding to the Commonwealth pursuant to any order of this Court in respect of the child support debt and the Applicant's costs and any registrable maintenance liabilities of the Respondent; and
(d)fourth, in payment of any residue to the Respondent.
That the Commonwealth, as Applicant, shall be at liberty to recover any outstanding sum at law, in equity or by statutory enactment.
That both the Applicant and the Respondent be at liberty to apply herein with respect to the terms and conditions and execution of the sale and the implementation of these Orders generally.
That the Motor Cycles be charged with the Debt set out in Order 2.
That the Applicant shall have the sole discretion as to the order of sale priority of the Property and the Motor Cycles.
THE COURT NOTES:
That the Respondent acknowledges that the Debt referred to in Order 2 of these Orders is not attributable to the Respondent’s ongoing child support liabilities payable after the date of these orders and that the Respondent must comply with such obligations under relevant child support legislation in addition to the Debt noted in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Cadogan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 10301 of 2009
| CHILD SUPPORT REGISTRAR |
Applicant
and
| MR CADOGAN |
Respondent
REASONS FOR JUDGMENT
This application is before the Court by way of an enforcement summons in which the Child Support Registrar seeks the enforcement of registered maintenance liabilities in the sum of $20,796.05, being $16,526.61 arrears of maintenance, and $4269.44 late payment penalty, as alleged as at 29 January 2010.
The respondent, who appears in person, challenges the amount of the debt on the basis, as I understand his case, that he, in fact, had paid moneys in accordance with an agreement that he had with the payee mother of the children, and that those moneys were not properly credited to the child support liability. In particular, he points to two payments made by him and he, in that regard, refers to the affidavit of Ms C, filed on 9 December 2009. The relevant paragraph is contained at paragraph 35.
The paragraph acknowledges that there was a payment of $700 made on 16 November 2006 and a payment of $5,000 made on 1 December 2005. It appears, from the affidavit that those moneys in particular were not credited towards child support and a reason is given in respect of those. The respondent, therefore, challenges the amount that is said to be owing with respect to the debt.
By way of some history, this matter came before the Court on 9 December 2009 and the respondent, at that stage, had only recently been served with the summons and the matter was adjourned to today’s date to enable him to obtain some legal advice if he chose to do that and to also put whatever material he wanted to put before the Court in relation to the application.
The applicant has today filed a certificate pursuant to section 116(2) of the Child Support (Assessment) Act 1989, (hereafter “the Assessment Act”), in which it is said that the amounts claimed are owing and, of course, that is prima facie evidence of the existence of the debt. The applicant seeks to proceed with the hearing. As I understand the respondent’s position, it is either that there ought to be some further hearing with respect to the size or amount of the debt that ought be recovered against him; or that the debt should be reduced; or I should exercise my discretion to not enforce the debt, insofar as at least, moneys that have been paid by him under the terms of an agreement with the mother that were not credited by the Child Support Agency with respect to the moneys that he says were, in fact, paid for child support.
In this matter, I have determined that I should proceed to determine the application. The position is that the respondent’s claims, with respect to the debt or the moneys that were paid with respect to child support even on his case, arise in 2006 and 2005. He puts no evidence before me of any action taken either via the Child Support Agency to object to the decision of the agency in relation to those particular amounts that were paid by him; nor, as I understand it, has there been any action or application brought in relation to the mother’s position, insofar as any agreement is concerned.
I should also indicate that no evidence has been filed by the respondent in relation to this particular issue today, notwithstanding that there has been an adjournment in this matter to enable him to do so.
In the circumstances, I am persuaded that the evidence of the certificate is the only real evidence that I have in relation to this matter. There is nothing of substance that contradicts the amount of the debt that is said to be owing.
Whilst it may be that there is a dispute between the respondent and the payee mother in relation to whether all of this debt ought be paid by way of child support, I am satisfied that the Child Support Registrar has, to the best of their ability, complied with the terms of the legislation in relation to the debt. The debt is now said to be owing to the Commonwealth. If the respondent has any claim with respect to the mother, then he may or may not be able to continue to pursue that claim.
In this matter I am persuaded, because there is no evidence to the contrary, that the certificate is prima facie evidence of the debt and that I should accept the amount of the debt owing. I also am not persuaded that, even though I may have a discretion to not enforce the entire debt, that I should exercise that discretion.
My reasons for that are, that although I accept that it appears on the face of the documents, and this seems to be accepted by the Agency, that moneys were paid by the respondent by way of child support direct to the mother, they were not credited against his liability.
Nevertheless, it seems to me that there has been plenty of opportunity for the respondent since 2005 to take some action in relation to that particular matter and there is no evidence of any action taken insofar as I am aware, to rectify the situation. In those circumstances, I am not persuaded that I should exercise my discretion.
Insofar as the orders that are sought by the applicant, I am persuaded that I ought make the declaration that is sought namely, that there is owing, with respect to registered maintenance liabilities, the sum of $20,796.05 being made up of $16,526.61 arrears of maintenance, and $4,269.44 late payment penalties.
I am also satisfied that the provisions for the payment of the debt are appropriate in the circumstances. The respondent will be allowed some time in which to make the payment. Other than that, there is provision for the enforcement of the debt with respect to action to be taken against some of the property of the respondent, and I am satisfied that, as best I can be, that he is the registered proprietor of that property.
I am also satisfied that in this circumstance it is appropriate to make an order for costs.
The applicant has been put to the costs of these proceedings to recover the debt. It has now been outstanding for a significant period of time, and I am satisfied in those circumstances, that the applicant ought not to have been put to those costs. The costs themselves appear to be reasonable, and within the framework of the Federal Magistrates Court Rules in relation to costs, and I will make the order in terms of Order 1.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 29 January 2010
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