Child Support Registrar and Costa - [2004] FMCAfam 728

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & COSTA

[2004] FMCAfam 728

CHILD SUPPORT – Enforcement – payment of significant amount of unpaid child support.

Child Support (Registration & Collection) Act 1988 (Cth), s.116(2)

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR COSTA

File No:

NCM 5255 of 2001

Delivered on:

24 August 2004

Delivered at:

Parramatta

Hearing dates:

21 August 2003 & 24 August 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Bateman

Solicitors for the Applicant:

Australian Government Solicitors

The Respondent:

In person 2003, no appearance 2004

ORDERS

That the Respondent pay to the Child Support Registrar the costs of the Commonwealth fixed in the sum of $6,665.00.
That the Respondent pay to the Child Support Registrar the sum of $112,903.59 being $83,802.99 for arrears of maintenance and $29,100.60 for late payment penalties.
That payment of the amounts payable in orders 1 and 2 herein be paid to the Child Support Registrar within 2 calendar months of the date of these orders.
That in the event that the Respondent is in default of payment in accordance with order 3 herein, Mr W (‘the Trustee’) shall be appointed, for the seizure and sale of the Respondent’s interest in real property situated at [C] in the State of Queensland, being Lot [omitted] (‘the property’), pursuant to Order 33, Rule 7 of the Family Law Rules.
That for the purpose of sale pursuant to Order 4 herein, the Respondent shall within 14 days of being so requested in writing by the Trustee 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 applied:
(a)firstly, in payment of all costs, commissions and expenses of the said trust transfer and sale including all costs incurred by the said Trustee;
(b)secondly, in discharge of any encumbrance by the said Trustee;
(c)thirdly, in payment as to his/her share of the balance of proceeds remaining, to the other tenant in common owner of the property (‘the other owner’);
(d)fourthly, in payment of the total sum referred to in Orders 1 and 2 herein; and
(e)fifthly, in payment of the residue to the Respondent.
That in the event that the Respondent is in default of Order 4 herein, the Trustee shall be empowered to sign all documents and do all things necessary to transfer the Respondent’s interest in the property into the name of the Trustee.
That the Respondent be restrained from assigning, transferring, encumbering or otherwise dealing with the property except for the purpose of transferring his interest in the property to the Trustee in accordance with Order 4 herein, or, otherwise at the discretion of the Trustee.
That the Respondent’s interest in the property be charged with the debt set out in Orders 1 and 2 thereof, until that debt has been paid in full.
That the Applicant 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, and also to seek further orders in execution of the debt herein in the event that the debt is not able to be satisfied out of the sale of the real property in Order 4 herein.
It is ordered that until further order or the debt under these orders is paid in full, or with the written consent of the Child Support Registrar, the Respondent Mr Costa, be and is hereby restrained from making any application to withdraw any monies from any superannuation fund which he has an interest.
I certify for counsel in respect of costs.
I grant liberty to apply on 7 days’ notice.
I require a transcript of my reasons for decision.
The Application is removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Costa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

NCM 5255 of 2001

CHILD SUPPORT REGISTRAR

Applicant

And

MR COSTA

Respondent

REASONS FOR JUDGMENT

The proceedings before the Court are proceedings brought by way of an enforcement summons by the applicant Child Support Registrar. The Child Support Registrar seeks to enforce the payment of a significant amount of unpaid child support. As at today's date there is evidence from the applicant Child Support Registrar that an amount of child support totalling $83,802.99 is outstanding. The evidence also indicates that late payment penalties totalling $29,100.60 are outstanding as at today's date. This brings a total of $112,903.59.
The proceedings have had a long history. They relate to child support for three children, two of whom have now reached adulthood. [X] was born [in] 1984, [Y] was born [in] 1985 and [Z] was born [in] 1998. On a date in 1990, on an unknown date to the applicant, the father entered into a de facto relationship with a lady called Ms M. The order that is of relevance to these proceedings is an order for child maintenance which was made on 9 January 1991. The order was set in the sum of $60 per child per week making a total of $180 per week. On 21 February 1991 the liability of the respondent father to pay the amounts under the order was registered with the Child Support Agency. The father, or the respondent and his brother and their father entered into a lease agreement for real estate in [C] in the State of Queensland. That real estate consisted of some 22.6 hectares. In 1992 the father and

Ms M commenced to run a business trading as "[A] Company". On 11 August 1992 orders were made by the Family Court of Australia at Newcastle relating to a property settlement between the respondent father and the mother in these proceedings. She received a total of $30,615 and the parties retained their interest in other assets.
On 25 November 1993 the Family Court of Australia at Newcastle made a declaration that arrears of child support in the sum of $19,598.24 were outstanding. On 16 December of that year an order was made restraining the father until further order from the signing, transferring, encumbering or otherwise dealing with the property in [C]. The following day consent orders were made in the Family Court for the father to pay to the mother the sum of $30,615 by way of property settlement together with interest of $4368.55, together with costs assessed in the sum of $2500.
On 19 August 1994 orders were made in the Family Court of Australia in Newcastle discharging arrears of child support in favour of the father. Those areas came to some $14,146.75. On some date in 1994 it appears that the father and his partner purchased some real estate in Property S for $125,000. On 7 May 1997 the father and Ms M obtained an advance of some $300,000 from the National Australia Bank at [M].
The orders for child maintenance were varied by consent on

26 May 1997
. Orders were made at the Local Court of New South Wales at [M] providing that the order for maintenance was to increase to $100 per child per week and that the amount of child support would increase to $133 per child per week once the father settled his worker's compensation claim or 8 October 1997 arrived, whichever should first occur.
On the evidence of the father he received a sum of $240,000 from his worker's compensation claim late in 1997. On 26 June 1999 the father took voluntary redundancy from the [M] Company. From 1 July of that year the father received a redundancy payment from the [M] Company in the sum of $71,840. Out of that amount he paid the sum of $9188 to the Child Support Agency. He has made other payments and had about $56,000 left.
In July 2000 the father and his partner sold the property in Property S and on his evidence each of them received the sum of $25,000.00. On 11 July 2000 the father's arrears of child maintenance payment had amounted to $20,671.86 together with penalty for late payment.
On 1 July 2001 the father had received a superannuation payout in the sum of $70,764.97. He received $21,741 of that by cheque and the balance was placed into a rollover fund. By 30 June 2001 the father was in arrears to the sum of $47,540.01. The father had applied to the Local Court at [M] for a variation of the child maintenance orders. That application had first been made on 11 August 1999, it appeared then it was discontinued but at some stage at the beginning of 2002 it was apparently revived and on 22 March of that year it was transferred to the Family Court at Newcastle.
The Family Court transferred proceedings to the Federal Magistrates Court at Newcastle. The father's application to vary the child maintenance order was dismissed on 5 July. On 10 April 2003 the Child Support Registrar was seeking payment of arrears of $71,899.68 and late payment penalties of $14,904.18. This amount totalled $86,803.86. An enforcement summons was issued returnable on

21 May 2003
. On that date the Court made directions in relation to the summons and the matter came back before the Court on 11 June.
The father had failed to comply with the directions made by the Court so further directions were made. On 11 August 2003 the father filed a financial statement in the form of a form 17. On 18 August that year the Court listed the matter for hearing. By that stage the arrears had reached $76,19.07, late payment penalties of $19,273.07, that was a total of $95,292.24.
The matter came on for hearing on 21 August 2003. That hearing took place in the Newcastle Registry before me. Mr Bateman appeared for the applicant, oral evidence was taken from the father and the matter was adjourned part heard.
The matter has come back to Court today and in fact it was listed for hearing part heard today and there were some difficulties in obtaining hearing dates at the Newcastle Registry, so it made the listing of the matter more difficult than it otherwise might have been. Eventually I took the decision that the matter could continue to be heard in Parramatta where Court space was available.
On 12 July 2004 the Court notified both the solicitor for the applicant, Mr McCullough, and I understand counsel for the applicant

Mr Bateman by telephone, of the date and venue for hearing. The respondent was not legally represented. A search of the file revealed that he had not filed a notice of address for service. The associate dealing with the matter was unable to find from the file a current telephone number for the respondent. What she did do however was arrange to forward a letter to the respondent at his address advising him of the adjourned date and place. That letter, dated Monday,

12 July 2004 said:
Your matter has been listed before Federal Magistrate Scarlett on Tuesday 24 August 2004 at 10am for final hearing at Parramatta.
The letter was on Court letterhead, it gave the Court's telephone number, fax number, internet address and the street address of the Parramatta Registry of the Federal Magistrates Court. The letter appears not to have been returned unclaimed, there is no unclaimed letter on the Court's file.
I am of a view that a letter forwarded to a respondent in rural New South Wales on 12 July provides ample notice of a hearing to take place on 24 August in Parramatta. The applicant's solicitor, presumably from more abundant caution, forwarded a letter to the respondent on 19 August. That day I note from the calendar was a Thursday, that letter was sent by express post so it should have been received on the Friday, 20th. The letter referred to the issue of two subpoenas and contained copies of those subpoenas. The letter went on to say in paragraph 3, and I note the wording was typed in bold:
As you will have been advised by the Court the hearing of the matter is to resume in the Parramatta Registry of the Court on 24 August 2004.
The letter went on to again give the address of the Court and in paragraph 4 went on to say:
Please note therefore that you are to attend the Court at 10 am on 24 August 2004.
What happened however is that the respondent or a person purporting to be the respondent telephoned the Court yesterday, 23 August. He told the member of the Court staff to whom he spoke that he was unable to attend Court today as he had been given insufficient notice and it was also indicated to me that he did not know where Parramatta was. I find this latter comment rather surprising as Parramatta is one of the oldest settled areas since the colony of New South Wales was formed and it is by now a not insignificant local government area. It is surprising that someone who lives at either [M] or [S] in New South Wales would be unaware of the location of Parramatta.
On 23 August the respondent ordered a letter by fax to the Court with copies to the applicant's counsel and the applicant's solicitor. Part of that letter says:
I have in my possession now, today 23 August 2004, at 2 pm after mail service an express document stating that I am required to be in Parramatta Court tomorrow, 24 August 2004 at 10 am. I received this document by express post today with no prior notice that this matter was to be heard tomorrow, not to mention the fact it was even being transferred from Newcastle Court to Parramatta. I have been left in a position with less than 24 hours notice and five hours of travel time to reach the destination. Therefore I am requesting that you see clear to an adjournment where protocol requires some form of notice.
As I indicated earlier I was not prepared to adjourn the matter. I am satisfied the respondent should have been made aware of the time and place of the hearing within the time it takes for delivery of ordinary mail which would be a day or two after 12 July. It is also a matter that I would not accept without a reasonable explanation as to why it was that a letter sent by express post from Sydney to a street address in [S] on Thursday, 19 August, should not have arrived until after 2 pm on the Monday. It is my understanding that express post is an overnight service and that it is surprising to say the least that the letter took so long to arrive.
The respondent was called at 10.40am and he did not appear. He was called again at 11.42 am, he still had not appeared. I took the decision at that stage that the matter should proceed, the respondent had been given ample notice in my view and he had elected not to attend. Accordingly the matter has proceeded.
I have had tendered to the Court today and marked as exhibit 5 a certificate under subsection 116(2) of the Child Support Registration Collection Act 1988. That certificate shows that an amount of child support totalling $83,802.99 and late payment penalty totalling $29,100.60 is due and payable by the respondent and remains unpaid as at today. The certificate goes on to say that this total amount of $112,903.59 is payable to the Commonwealth in relation to a registrable maintenance liability under s.30 of the Child Support Registration Collection Act.
I have also had tendered a State tenure search from the Queensland Department of Natural Resources and Mines, Queensland, showing that the respondent holds a one third interest in a registrable lease in the Shire of [C] in the State of Queensland expiring on 31 December 2011. I have read the respondent's financial statement in which he indicates that he has little income or assets and I have compared that to material that was produced on subpoena from Mr C and Company, accountants at [S], including financial statements for the [A] Company and [business omitted] for the year ended 30 June 2003.
I have further had the opportunity to peruse material produced on subpoena from the National Australia Bank, [M], including a business file and interview record showing assets including real estate that the applicant claims to own showing the loan he has been able to obtain.
The subpoenaed material tells a significantly different story from that which appears in the respondent's financial statement. I am satisfied the respondent's financial statement gives an inaccurate account of the respondent's income and assets. It appears to me that the respondent does have assets available to him which could well be utilised to liquidate the outstanding child support debt and late payment penalties.
It would appear to me that the most appropriate course is to make an order as suggested by the applicant that the respondent pay the amounts here and that there should be a default order which would include a provision for sale of the respondent's interest in the real property situated at [C] in the State of Queensland. I propose to make the orders that are sought; these orders are set out in a well prepared and detailed summary of argument that has been prepared by the applicant. The orders that I seek to make are set out at the commencement of this judgment.
As to the question of costs, it seems to me that these proceedings arise out of non payment of a registered maintenance liability and the maintenance liability is a Court order that has not been complied with. That is clearly a matter that can be taken into account under the provisions of s.117(2A) and it seems to be appropriate in the circumstances. I do propose to make an order for costs and I look at the memorandum that has been prepared according to the Court scale set out in the Federal Magistrates Court Rules 2001. The figures that describe professional costs show the lump sums as set out in stage 1A and stage 7 of the schedule attached to the Federal Magistrates Court Rules and include an allowance for travel for some two hours and I note that the applicant's counsel has had to travel from Newcastle where he normally practises and I can take judicial notice of the distance between the City of Newcastle and Parramatta.
I now note disbursements that have been particularised and in my view they are appropriate. This is a matter where I consider there should be an order for costs.
The orders that I will make are those set out at the commencement of this judgment.
I remove the application from the list of cases awaiting finalisation.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 22 December 2004