Child Support Registrar and Garaty - [2016] FCCA 2078

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & GARATY

[2016] FCCA 2078

Catchwords:
CHILD SUPPORT – Enforcement – debt to the Commonwealth of Australia – discretion to enforce – discretion not to enforce Child Support considered – application dismissed.

Legislation:

Child Support (Registration and Collection) Act 1988, pt.VA, s.116(2).

Federal Circuit Court Rules 2001 r. 25B.54.

Cases cited:

Jones & Dunkel (1959) 101 CLR 298
Mathieson & Hamilton [2006] FMCAfam 238
Oxenham & Oxhenham [2008] FamCAFC 199
Wreford & Caley [2010] FamCAFC 21

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR GARATY

File Number:

MLC 1897 of 2014

Judgment of:

Judge Stewart

Hearing date:

13 April 2016

Date of Last Submission:

13 April 2016

Delivered at:

Melbourne

Delivered on:

12 August 2016

REPRESENTATION

Counsel for the Applicant:

Ms Devine

Solicitors for the Applicant:

Hunt & Hunt

Solicitors for the Respondent:

Mr Bacon of Manby & Scott Lawyers

ORDERS

The Respondent pay to the Applicant the Child Support Debt (in the sum of $181,461.33) within 60 days.
Pursuant to Rule 25B.54 of the Federal Circuit Court Rules2001, a receiver be appointed to the Respondent’s income and personal property (“the Receiver”).
The Receiver’s remuneration be fixed in accordance with the fee scheduled to be provided with the Receiver’s consent to act.
The Receiver not be required to provide any security.
The Receiver be authorised to:-
(a)exercise all available rights in order to collect and sell the Respondent’s personal property, including exercising any director and shareholder rights in relation to the ordinary shares held by the Respondent in any company;
(b)extinguish any liability held by any secured creditor to property held by companies to which the Respondent is a member; and
(c)immediately thereafter, apply the proceeds from the sale of any personal property held to:-
(i)the total debt;
(ii)its remuneration; and
(iii)the remainder to the Respondent.
The Receiver shall submit accounts to the following parties each three months:-
(a)the solicitors for the Applicant by ordinary pre-paid post;
(b)the solicitors for the Respondent by ordinary pre-paid post;
(c)any of the companies (being (omitted) Pty Ltd ACN, (omitted) Pty Ltd ACN, (omitted) Pty Ltd ACN, (omitted) Pty Ltd ACN and (omitted) Pty Ltd ACN) in which the Receiver has exercised rights by ordinary pre-paid post to their registered office; and
(d)the Principal Registrar of the Melbourne Registry of the Federal Circuit Court of Australia for placement on the Court file.
If the Respondent defaults in making any of the payments ordered to be paid under these orders, deals with any of the personal property in breach of these orders or otherwise breaches any of these orders, the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 (including but not limited to subdivision 25B.2.3 enforcement warrants).
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Garaty

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.

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Details

Case: [2016] FCCA 2078
Decision Date: 12 August 2016

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Stewart presided over a matter involving the Child Support Registrar as the applicant and Garaty as the respondent. The dispute concerned a significant child support debt owed by the respondent.

The court was required to determine the appropriate orders to ensure the recovery of the outstanding child support debt. This included considering the appointment of a receiver to manage the respondent's assets and income for the purpose of satisfying the debt.

Judge Stewart ordered the respondent to pay the total child support debt of $181,461.33 within 60 days. To facilitate recovery, the court appointed a receiver to the respondent's income and personal property. The receiver was authorised to collect and sell the respondent's personal property, including exercising director and shareholder rights in companies where the respondent held shares, and to extinguish liabilities of secured creditors to property held by those companies. The proceeds from any sale were to be applied first to the total debt, then to the receiver's remuneration, with any remainder to be paid to the respondent. The receiver was also directed to submit accounts quarterly to the solicitors for both parties, specified companies, and the Principal Registrar of the Federal Circuit Court. The court further ordered that if the respondent defaulted on payments or breached the orders, the applicant could enforce the debt in accordance with Part 25B of the Federal Circuit Court Rules. All extant applications were dismissed, and the matter was removed from the court's pending cases list.

Orders

Orders of the court

The Respondent pay to the Applicant the Child Support Debt (in the sum of $181,461.33) within 60 days.

Pursuant to Rule 25B.54 of the Federal Circuit Court Rules 2001, a receiver be appointed to the Respondent’s income and personal property (“the Receiver”).

The Receiver’s remuneration be fixed in accordance with the fee scheduled to be provided with the Receiver’s consent to act.

The Receiver not be required to provide any security.

The Receiver be authorised to:-

(a) exercise all available rights in order to collect and sell the Respondent’s personal property, including exercising any director and shareholder rights in relation to the ordinary shares held by the Respondent in any company;

(b) extinguish any liability held by any secured creditor to property held by companies to which the Respondent is a member; and

(i) the total debt;

(ii) its remuneration; and

(iii) the remainder to the Respondent.

The Receiver shall submit accounts to the following parties each three months:-

(a) the solicitors for the Applicant by ordinary pre-paid post;

(b) the solicitors for the Respondent by ordinary pre-paid post;

(c) any of the companies (being (omitted) Pty Ltd ACN, (omitted) Pty Ltd ACN, (omitted) Pty Ltd ACN, (omitted) Pty Ltd ACN and (omitted) Pty Ltd ACN) in which the Receiver has exercised rights by ordinary pre-paid post to their registered office; and

(d) the Principal Registrar of the Melbourne Registry of the Federal Circuit Court of Australia for placement on the Court file.

If the Respondent defaults in making any of the payments ordered to be paid under these orders, deals with any of the personal property in breach of these orders or otherwise breaches any of these orders, the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 (including but not limited to subdivision 25B.2.3 enforcement warrants).

All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

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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