Child Support Registrar and Cadogan - [2010] FMCAfam 406

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Child Support Registrar and Cadogan

Details

AGLC: Child Support Registrar and Cadogan [2010] FMCAfam 406
Case: [2010] FMCAfam 406
Decision Date: 29 January 2010

CaseChat Overview and Summary

The case involved the Child Support Registrar and a respondent identified as Cadogan. The dispute pertained to arrears in maintenance payments and associated penalties that Cadogan owed under a registered maintenance liability. The matter was heard in the Family Court of Australia. The registrar sought a declaration regarding the outstanding amount owed by Cadogan, including penalties, as well as an order for payment of these amounts, costs, and enforcement measures in case of non-compliance.

The primary legal issue before the court was the determination of the exact amount owed by Cadogan, including the calculation of arrears and penalties, and the appropriate enforcement mechanisms to ensure compliance. The court also had to consider the procedural aspects of enforcing these orders, including the acceptable methods of payment and the consequences of non-payment.

In its reasoning, the court meticulously calculated the arrears and penalties owed by Cadogan, arriving at the total amount of $20,796.05. The court detailed the breakdown of this amount, which included $16,526.61 in maintenance arrears and $4,269.44 in late payment penalties. The court then addressed the enforcement of these orders by specifying the acceptable methods of payment and setting a deadline of 1 March 2010 for compliance. The court also outlined the consequences of default, including immediate payment of the entire debt and potential further enforcement actions. The registrar's costs of $2,540.50 were also included in the total debt.

The court issued several orders to ensure the enforcement of the payment. It declared that Cadogan owed the specified amount to the Commonwealth. Cadogan was ordered to pay this amount, including costs, to the Child Support Registrar by a specified date and through prescribed methods. The court further stipulated that in the event of non-compliance, the entire debt would become immediately payable. The orders also included provisions for further enforcement if Cadogan defaulted on any obligations under the orders.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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