Child Support Registrar and Cook
[2008] FMCAfam 599
•12 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & COOK | [2008] FMCAfam 599 |
| CHILD SUPPORT – Contravention – reasonable excuse not proved – deliberate fraud or contravention – imprisonment – sentence suspended. |
| Family Law Act 1975, ss.112AA, 112AB, 112AC, 112AD, 112AE Child Support (Assessment) Act1989, ss.3, 4 Child Support (Registration and Collection) Act 1988, s.3 |
| Dobbs & Brayson [2007] FamCA 1261 Elspeth & Peter [2007] FamCA 655 Sahari & Sahari (1976) FLC 90-086 Tate & Tate (2003) FLC 93-138 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR COOK |
| File Number: | SYM 6865 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 28 April 2008 |
| Date of Last Submission: | 28 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2008 |
REPRESENTATION
| Solicitor-Advocate for the Applicant: | Ms Hawkins |
| Solicitors for the Applicant: | Australian Government Solicitors |
| The Respondent: | Self-represented |
ORDERS
That the Respondent did contravene orders made 16 January 2007 without reasonable excuse and the application in this respect is proved.
MR COOK is sentenced to a period of imprisonment for a period of two (2) months, such sentence to be suspended upon the following conditions:
(a)That MR COOK pay the debt due to the Commonwealth in respect of amounts owing under the registered maintenance liability of the Respondent as at 28 April 2008 ($37,369.43) within a period of six (6) months of the making of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Cook is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 6865 of 2006
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR COOK |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter is the hearing of a Contravention Application filed by the applicant, the Child Support Registrar, on 12 November 2007. The respondent is Mr Cook. The applicant alleges that the respondent, without reasonable excuse, failed to pay to the applicant the amounts payable under Order 4 of the Orders made by myself on 16 January 2007. In their entirety those orders state:
THE COURT DECLARES THAT:
1. There is owing to the Commonwealth in respect of amounts owing under the registered maintenance liabilities of the Respondent the sum of $23,213.68 (being $20,394.88 in arrears of child support and $2,818.80 in late payment penalties).
THE COURT ORDERS THAT:
2. That the Respondent pay to the Child Support Registrar the sum of $23,213.68.
3. That the Respondent pay to the Child Support Registrar the costs of the Commonwealth fixed in the sum of $2505.00
4. That payment of the amounts payable in orders 2 and 3 herin[sic] be paid to the Applicant within 150 days.
It should be noted that those orders were made after a hearing, and were not consent orders. On both occasions, i.e. 16 January 2007 and at the current hearing, the applicant was represented by Ms Hawkins from the Australian Government Solicitor and the respondent represented himself. He was assisted by a court-ordered Turkish interpreter.
Background
The respondent is the father of three children, [A] born in1991, [B] born in 1994 and [C] born in 1996. The applicant is responsible for collecting child support for the children on behalf of their mother,
Ms C. A certificate under s.160(2) of the Child Support (Registration and Collection) Act 1988 states that as of 28 April 2008 the respondent owed $37,369.43 in respect of registered maintenance liabilities. In this regard s.116(2) states:
(2) The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified registrable maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.
The certificate in question, which became Exhibit A2 in the proceedings, is thus prima facie evidence of the amount owning by the respondent to the Applicant. In any event the respondent did not seek to challenge this evidence.
The application is governed by Part XIIIA of the Family Law Act – Sanctions for failure to comply with orders and other obligations that do not affect children. The order in question is not a parenting order and so is covered by the definition of “order under this Act” in s.112AA of the Family Law Act.
At the commencement of the matter I formulated the charge and put the same to the respondent through a Turkish interpreter. The respondent indicated to me that he did not make payment in accordance with the order because, in effect, he did not have the capacity to do so. I took this to mean that the respondent believed that he had a reasonable excuse for not complying with the order. I put this to the Respondent, and he agreed. The matter then proceeded on that basis.
Applicable Law
The meaning of contravene an order is set out in s.112AB(1) of the Family Law Act:
(1) A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
The meaning of reasonable excuse is set out in s.112AC(1) and (2) of the Act:
(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 sanctions are set out in s.112AD of the Act:
(1) If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.
(1A) The power given to the court under subsection (1) in respect of a contravention of a maintenance order applies even if the order has been complied with before the matter of the contravention comes before the court.
(2) The sanctions that are available to be imposed by the court are:
(a) to require the person to enter into a bond in accordance with section 112AF; or
(b) to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or
(c) to fine the person not more than 60 penalty units; or
(d) subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.
(2A) The court must not impose a sentence of imprisonment on the person under paragraph (2)(d) in respect of a contravention of a maintenance order unless the court is satisfied that the contravention was intentional or fraudulent.
(3) An order under subsection (1) may be expressed to take effect immediately, or at the end of a specified period or on the occurrence of a specified event.
(4) Where a court makes an order under subsection (1), the court may make such other orders as the court considers necessary to ensure compliance with the order that was contravened.
In this case the applicant asked that the respondent be sentenced to imprisonment, but that the sentence be suspended on conditions that the respondent pay the debt due. Accordingly, the relevant provision in this regard is s.112AE(1)-(8):
(1) A sentence of imprisonment imposed on a person pursuant to paragraph 112AD(2)(d) shall be expressed to be:
(a) for a specified period of 12 months or less; or
(b) for a period ending when the person:
(i) complies with the order concerned; or
(ii) has been imprisoned pursuant to the sentence for 12 months or such lesser period as is specified by the court;
whichever happens first.
(2) A court shall not sentence a person to imprisonment pursuant to paragraph 112AD(2)(d) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2).
(3) If a court sentences a person to imprisonment pursuant to paragraph 112AD(2)(d), the court shall:
(a) state the reasons why it is satisfied as mentioned in subsection (2); and
(b) cause those reasons to be entered in the records of the court.
(4) The failure of a court to comply with subsection (3) does not invalidate a sentence.
(4A) A court that sentences a person to imprisonment under paragraph 112AD(2)(d) may:
(a) suspend the sentence upon the terms and conditions determined by the court; and
(b) terminate a suspension made under paragraph (a).
(5) A court, when sentencing a person to imprisonment under paragraph 112AD(2)(d) may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (6) after he or she has served a specified part of the term of imprisonment.
(6) A bond for the purposes of subsection (5) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.
(7) Without limiting the circumstances in which a court may discharge an order under section 112AK, a court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.
(8) To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 112AD(2)(d) for a failure to make a payment under a maintenance order does not affect the person's liability to make the payment.
The Evidence
The applicant’s evidence consisted of an affidavit of Ms H filed
12 November 2007together with Exhibit A2. There was no challenge to this evidence.
The respondent gave evidence in person, through an interpreter. He also relied on a financial statement sworn on 18 December 2006, and his 2006 Individual Tax Return.
The first document indicates a weekly income from the business of the applicant known as [X] in the sum of $19,071 yearly. In the document the applicant deposes to spending $3,300 each month on rental, to owning a 1988 Toyota vehicle valued at $800 and to paying child support in the sum of $21 weekly. He also deposed to owing income tax for 1 July 2006 in the amount of $20,559, and owing $21,503 tax from the previous year. In Part IV, dealing with average weekly expenses he deposes to the following:
Food $80.00
Gas $90.00
Electricity $75.00
Telephone $50.00
Petrol $ 40.00
Other than as set out above the financial statement says nothing else.
The 2006 tax return of the respondent discloses a taxable income of $19,071 derived from gross business income of $185,239. Accordingly he claims $166,168 as expenses, or 89.7 percent of his gross business income.
His evidence in chief was, in short, that the respondent considered himself as facing bankruptcy and did not have the money to pay the debt. He has been actively trying to sell the business by advertising it in a Turkish newspaper, originally asking for $200,000 in 2001-2002, but now he would accept $20,000 to $30,000 if someone offered him that amount. He said he was behind on his rent. When I asked him how much cash he had in his wallet he produced $1,000 in $50 notes, and explained he had borrowed it from a friend to pay rental on the shop.
The respondent was cross examined by Ms Hawkins for the applicant and the following relevant points emerged from the respondent’s evidence:
a)He lives on the premises where the business is conducted.
b)He has a girlfriend who sometimes assists in the business.
c)He pays money directly to his children in the sum of about $70 per week.
d)The business has been operated by him for about seven years.
e)It operates 9am to 11pm weekdays, 9am to 2am on weekends.
f)He has had a bad experience with the media to which he attributes his financial difficulties.
g)He pays $130 per week to occupy a room in the building.
h)The 2006 tax return was the last one he has lodged.
i)The business pays all his personal expenses.
j)He pays some of his girlfriend’s personal expenses from the business as part of her remuneration for working there.
k)He was last at [Y] Casino two or three months prior to the hearing, but has been there maybe ten times this year, just to get rid of stress.
l)When he goes to [Y] he spends between $20-$50 each time, at most $100.
m)He sends money overseas, e.g. last month $300 to a friend who is in hospital.
n)He owns property in Turkey including a flat and an interest in land.
Findings from the evidence
The totality of the evidence and my observation of the respondent giving his evidence leads me to find, in each case beyond a reasonable doubt that:
a)The respondent has not been frank in his financial disclosure to the applicant or to the Court.
b)The business operated by him pays for the vast majority of his personal and living expenses.
c)He has assets in Turkey that he has not disclosed.
d)He has frequented [Y] Casino at least ten times this year.
e)He deals primarily in cash.
f)He has had, at all relevant times, a capacity to at least service the debt to the applicant and, probably, to have paid it in accordance with the original orders made.
g)He was unable to establish the existence of debts to which he refers.
I find that the applicant has established its case against the respondent beyond a reasonable doubt. The respondent has not established, on the balance of probabilities, that he has a reasonable excuse. His cavalier, indifferent attitude about the debt and these proceedings cannot, in my opinion, and based on my observation of him, be explained by his inability to understand or speak English.
Appropriate sanction
Ms Hawkins submits that the most appropriate sanction in this case is a suspended sentence of imprisonment because:
a)A financial bond or a fine is inappropriate in a case where the respondent has had so long to comply with a financial order and has failed to do so, and has been less than frank in his disclosure to the applicant and the court.
b)The additional sentencing alternatives available under s.112AG are not available in New South Wales.
I agree with Ms Hawkins. Whether the rationale for a sanction in a case like this is individual and general deterrence, or retribution, or compensation, the sanctions referred to above would, in my opinion, achieve nothing. Financial incentives or penalties seem to make no difference to the respondent. Indeed Exhibit A2 indicates that $6,866.64 of the amount due is a late payment penalty that could have been avoided by payment in a timely fashion.
The remaining sanction to consider is a suspended sentence of imprisonment. Section 112AD(2) provides that I must not impose such a sentence unless I am satisfied that “the contravention was intentional or fraudulent”. I am left in no doubt, indeed beyond a reasonable doubt that the contravention was intentional. The respondent made no effort whatsoever to demonstrate that it was unintentional. He made not the slightest effort to pay even modest amounts to the applicant. He was prepared to pay money to his children direct, and for the benefit of his girlfriend, and expend money at [Y] Casino, and remit funds overseas on occasion, but paying child support arrears was not a priority for him. He has attempted to organise his financial affairs in a manner that clouds the reality of his personal income. The facts make it possible for me to conclude that the contravention was intentional.
In my opinion a suspended term of imprisonment is intrinsically appropriate in this case, and it is not the result simply because the other alternatives were excluded: Dobbs & Brayson [2007] FamCA 1261 at paragraph 81. Imprisonment is a serious matter and to be invoked as a last resort: Sahari and Sahari (1976) FLC 90-086 at 75,406. The responsibility to pay child support is an important one. The Child Support (Assessment) Act1989 creates important and onerous duties in s.3, and sets out the context of these duties by way of the objects of the legislation in s.4, and in s.3 of the Child Support (Registration and Collection) Act1988. The importance of the child support duty and the cavalier approach of the respondent in this case makes it one of those perhaps rare cases where:
a)Punishment needs to be individual deterrence for the respondent, and
b)Punishment needs to provide general deterrence for other recalcitrant child support payers, and
c)Punishment needs to be of a standard so that society feels there has been retribution.
See generally Dobbs & Brayson at paragraphs 81-91 and Tate & Tate (2003) FLC 93-138; Elspeth & Peter [2007] FamCA 655. I therefore conclude that other sanctions are not appropriate (s.112AE(2)) for the reasons that I have set out in this judgment (s.112AE(3)).
Having regard to the size of the debt I regard imprisonment for a term of two months as appropriate. It is a sufficiently significant denial of the respondent’s liberty to achieve both individual and general deterrence. It also meets the public interest in retribution. I believe this period is proportionate to the offence in question.
However I suspend the sentence for six months to enable the respondent to pay the amount due to the applicant. If he pays the amount at any time before the expiration of six months the respondent will not have to serve any term of imprisonment. I regard six months as a more than adequate time for the respondent to so order his affairs as to raise the money in question. He could, for example, attempt to realise his assets in Turkey, or he could attempt to sell the business with renewed vigour. The period in question allows him time to do these, and other things, in order to raise the money in question.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 11 June 2008
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