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 |
| 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
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- Case
- [2016] FCCA 2078
- Decision Date
CaseChat Overview and Summary
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
1.
The Respondent pay to the Applicant the Child Support Debt (in the sum of $181,461.33) within 60 days.
2.
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”).
3.
The Receiver’s remuneration be fixed in accordance with the fee scheduled to be provided with the Receiver’s consent to act.
4.
The Receiver not be required to provide any security.
5.
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.
6.
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.
7.
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).
8.
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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