Child Support Registrar and Gillies
[2009] FMCAfam 34
•21 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & GILLIES | [2009] FMCAfam 34 |
| CHILD SUPPORT – Summary dismissal – enforcement of Orders for payment of child support debt – declaration of debt owed and orders made in 2006 for Respondent to make payment – failed to comply – Respondent seeks summary dismissal on basis of res judicata – Order 33 rule 3(9) – open to child support registrar to seek to enforce payment of unpaid order. |
| Child Support (Registration and Collection) Act 1988, ss.3, 104, 105, 113 Family Law Act 1975, s.105 Federal Magistrates Act 1999, s.17A Federal Magistrates Court Rules 2001 |
| Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481 Blair v Curran (1939) 62 CLR 464 Deputy Child Support Registrar v Harrison (1995) 128 FLR 349 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR GILLIES |
| File number: | SYC 1978 of 2008 |
| Judgment of: | Sexton FM |
| Hearing date: | 16 September 2008 |
| Date of last submission: | 16 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 January 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Australian Government Solicitors |
| Respondent: | In person |
THE COURT ORDERS THAT:
The Application in a Case, dated 10 May 2008, filed by the Respondent be dismissed.
The proceedings initiated by the Form 46 summons and Form 45B summons be listed for hearing before me at 10.00a.m. on 29 April 2009 for no longer than half a day.
The Respondent produce to the Exhibits section of this Registry no later than 7 days prior to hearing all documents listed in the Schedule to the Form 45B Enforcement Summons dated 8 April 2008.
The Child Support Registrar be granted leave to inspect the documents referred to in (3) and to photocopy those documents.
Any application for costs of these proceedings be adjourned for hearing before me at 10.00a.m. on 29 April 2009.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Gillies is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1978 of 2008
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR GILLIES |
Respondent
REASONS FOR JUDGMENT
Introduction
The respondent, Mr Gillies, seeks summary dismissal of two summonses filed by the Child Support Registrar on 8 April 2008 for enforcement of a child support debt. Mr Gillies is liable to pay child support for his two children, [X] born in 1993, now 15 years and [Y]born in 1996, now 12 years, and owes substantial arrears.
By a Form 46 enforcement summons dated 8 April 2008, the Child Support Registrar seeks to enforce orders made by Federal Magistrate Halligan on 19 December 2006 in the amount of $65,614.64. By a Form 45B enforcement summons, the Registrar seeks to enforce payment of arrears of child support and penalties which have accrued between 19 December 2006 and 4 April 2008 in the amount of $20,120.51.
On 13 May 2008, Mr Gillies filed an Application in a Case seeking that the Form 45B be dismissed or the proceedings permanently stayed as vexatious, oppressive and an abuse of process and that the Form 46 be struck out, dismissed or permanently stayed as vexatious, oppressive and an abuse of process. Mr Gillies seeks a further order that the Child Support Registrar be restrained from instituting any proceedings against him without leave of the court. In addition, he seeks an order for costs.
Jurisdiction
Under section 113(1) of the Child Support (Registration and Collection) Act 1988 the Child Support Registrar may recover debts due to the Commonwealth under the Act in either a court having jurisdiction for recovery of debts up to the amount of the debt or a Court having jurisdiction under the Child Support (Registration and Collection)Act 1988.
Section 104 confers jurisdiction on the Federal Magistrates Court in relation to matters arising under the Child Support (Registration and Collection) Act 1988.
Short history of enforcement proceedings
Mr W, an officer of the Child Support Agency, sets out a history of prior enforcement proceedings against Mr Gillies in his affidavit sworn 4 April 2008.
a)The Child Support Registrar commenced enforcement proceedings against Mr Gillies on 3 December 2004 at the Local Court – Family Matters in Sydney.
b)On 30 March 2005, her Honour Magistrate Ellis made an order restraining Mr Gillies from disposing of proceeds of sale of two properties.
c)On 19 September 2005, Mr Gillies filed an application for departure from an administrative assessment of child support in the Federal Magistrates Court at Parramatta. On 31 May 2006, her Honour Federal Magistrate Ryan (as she then was) dismissed that application and ordered Mr Gillies to pay the mother’s costs in the sum of $6,885.00.
d)On 12 September 2006, the enforcement proceedings were transferred from the Local Court – Family Matters to the Federal Magistrates Court at Parramatta.
e)On 19 December 2006, the Federal Magistrates Court made a declaration that as at 18 December 2006 Mr Gillies owed $59,995.48 in arrears of maintenance and late payment penalties under registered maintenance liabilities, and ordered Mr Gillies to pay that sum in addition to an order for costs of the Commonwealth fixed in the sum of $5,619.16 within 28 days of order. Mr Gillies was examined by the Child Support Registrar’s legal representative at that hearing.
f)Mr Gillies did not comply with those orders. On 28 February 2007, the Child Support Registrar filed an Application for Contravention of the orders made by Federal Magistrate Halligan on 19 December 2006.
g)On 13 February 2008, the Child Support Registrar withdrew the contravention application and the contravention proceedings were discontinued. The court made no findings on that application.
The issue
The question before the court is whether Mr Gillies has established grounds for the summary dismissal of both or either summons.
Relevant law – summary dismissal
Section 17A of the Federal Magistrates Act 1999 provides that the Federal Magistrates Court may give summary judgment in a matter where it is satisfied that a proceeding or part of a proceeding has no reasonable prospects of success. The proceeding does not have to be hopeless or bound to fail for it to have no reasonable prospect of success[1].
[1] Section 17A(3)
Rule 13.10 of the Federal Magistrates Court Rules 2001 provides that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Rule 13.11(3) provides:
If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
(a) that any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and
(b) that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.
Relevant law - enforcement
The Federal Magistrates Court Rules 2001 incorporate Order 33 of the former Family Law Rules 1984[2]. Order 33 sets out an enforcement procedure which requires the respondent named in the summons to attend court to be cross examined in relation to the obligation alleged in the summons. Order 33 (3)(1) provides:
[2] Schedule 5
If a person fails to satisfy an obligation, a person seeking to enforce the obligation may file an affidavit requesting the issue of:
(a) in relation to a debt due to the Commonwealth:
(i) a notice in accordance with Form 45A; or
(ii) a summons in accordance with Form 45B; or
(b) in any other case:
(i) a notice in accordance with Form 45; or
(ii) a summons in accordance with Form 46.
Form 46 – Enforcement Summons
Section 105 of the Family Law Act 1975 provides that all decrees made under the Family Law Act 1975 may be enforced by a court having jurisdiction under that Act. Section 105 of the Child Support (Registration and Collection) Act 1988 provides, inter alia, that the Family Law Act 1975 applies to proceedings under the Child Support (Registration and Collection) Act 1988 as if a decree made in the proceedings were made under that Act.
The Child Support Registrar, by filing an affidavit requesting the issue of a Form 46 – Enforcement Summons, seeks to enforce orders made by Federal Magistrate Halligan of this court on 19 December 2006. His Honour made a declaration on that date, as sought by the Child Support Registrar, that Mr Gillies owed arrears of child support and late payment penalties amounting to $59,995.48. His Honour ordered those amounts to be paid, in addition to costs, within 28 days of order which imposed an obligation on Mr Gillies to pay $65,614.64 in total.
Mr Gillies concedes that he did not comply with the Court’s orders.
Mr Gillies acknowledges that the amounts ordered remain unpaid.
Paragraph 2 of the Form 46 – Enforcement Summons states that payments under the order of 19 December 2006 “are in default or in arrears of the amount of $65,614.64” at this date [being 8 April 2008]. The summons requires Mr Gillies to attend court to be orally examined and sets out the court’s powers to make orders for enforcement.
Mr Gillies submits that the Child Support Registrar cannot re-open a case that has already been brought to judgment. He submits that the Registrar, not having appealed the decision of 19 December 2006, and having subsequently withdrawn an Application for Contravention of those orders against him, cannot now initiate further enforcement proceedings to re-litigate the same issues addressed in the proceedings heard and determined on 19 December 2006. Mr Gillies relies on the High Court decision of Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 in support of his submission.
In addition, Mr Gillies submits that it is not open to the Registrar to bring any other matters relating to the period dealt with in the proceedings finalised in December 2006, before the court in these proceedings. He relies on the High Court decisions of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Bryant v Commonwealth Bank of Australia (1995) 130 ALR 129 and Blair v Curran (1939) 62 CLR 464.
Ms Hawkins for the Child Support Registrar relies on the authority of Deputy Child Support Registrar v Harrison (1995) 128 FLR 349 to submit it is open to the Registrar “to continue chewing on the fruit until it has been devoured.”[3] Harrison’s case addressed the question of whether the Family Court could enforce a judgment debt of a State Local Court registered under the Child Support (Registration and Collection) Act 1988 for monies due under a stage 1 maintenance order, or whether, as held by the primary Judge in that case, such enforcement must be limited to debts for which judgment in the State Court had not already been obtained. On appeal, it was held by the Full Court that the Child Support Registrar may seek to enforce any unpaid portion of a judgment debt obtained in a State Court for monies due under a registered stage 1 maintenance order, that relates to arrears of maintenance, (but not penalties and costs), by means of a Form 46 Summons in a court exercising Family Law Act jurisdiction. The question in Harrison’s case is therefore a different one from the question in the present case. In the present case, the order sought to be enforced is an order of the Federal Magistrates Court concerning payment of a debt due to the Commonwealth for unpaid child support, including penalties and costs.
[3] At 361
As already noted, this court has a discretion to enforce its own orders. This court may enforce its own order by any means specified in Order 33, as set out in Schedule 5 of its Rules. Order 33 rule 3(9) provides:
If a court is satisfied that a person appearing before it, whether in person or represented by an order, has failed to satisfy an obligation, the court may:
(a)order the payment of the amount found to be owing under the obligation; and
(b)enforce the obligation by any of the following means:
(i)a garnishment order under rule 4;
(ii)an order under rule 5 for the seizure and sale of personal property belonging to the person;
(iii)an order under rule 6 that the estate of the person be sequestrated;
(iv)an order under rule 7 for the sale of an interest in real property belonging to the person;
(v)any order it considers necessary to enable enforcement of the obligation or to prevent the dissipation of property or the wasting of assets.
I find Mr Gillies’ submissions misconceived. The Child Support Registrar is not in this case seeking to do what the Deputy Taxation Commissioner sought to do in Chamberlain’s case. In Chamberlain’s case, a taxpayer received assessments totalling $255,579.20 and did not pay them. By mistake, a writ issued in the sum of $25,577.92, being exactly 10% of the sum owed. A judgment was entered for this sum, with costs. When the mistake was realised, a further writ issued for the balance of the debt. The High Court held no action could be brought for the balance of the debt while the original judgment stood because the cause of action upon which the Commissioner relied had merged as long as that judgment stood and ceased to exist.
Consistent with the principle in Chamberlain’s case, the Child Support Registrar in this case would not be able to seek another declaration as to the amount owed by Mr Gillies to the Commonwealth under registered child support liabilities for the period covered by the declaration made by this Court in December 2006, nor would the Registrar be able to seek another order for the payment of arrears and penalties for which there is already an existing order. However, that does not mean it is not open to the Registrar to seek to enforce orders of this court by any of the means available to the court under Order 33 rule 3(9). The order for payment has been made against Mr Gillies. Mr Gillies has not paid in accordance with that order. The Registrar can ask the court to enforce the obligation by any one of those means available to the court and can continue to do so until the order is paid. This is what the Registrar properly seeks to do by way of the Form 46 Enforcement Summons.
Mr Gillies claims the Registrar’s actions are vexatious and an abuse of process. In support of his claim, Mr Gillies complains that the Registrar filed an Application for Contravention in relation to the December 2006 orders, and later withdrew the application because the Registrar believed he would not succeed. He deposes to Mr McCulloch, solicitor for the Child Support Registrar, telling him the Agency will continue to litigate until the debt is repaid unless Mr Gillies could come to some arrangement with Ms S, the payee. Mr Gillies asks the court to conclude that the Registrar is bringing these proceedings for some improper motive.
Ms Hawkins submits the court should disregard Mr Gillies’ assertion about ‘admissions’ made by the Registrar at the time the Contravention Application was withdrawn, because there is no transcript before the court, the application was withdrawn and no findings were made by the court in relation to that application. I accept this submission and give no weight to Mr Gillies’ assertions on this point.
As submitted by Ms Hawkins, “vexatious” is defined in the decision of Attorney-General (NSW) v Wentworth[4]:
Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
[4] (1988) 14 NSWLR 481 at 491
I find no basis for Mr Gillies’ submission that the enforcement proceedings are vexatious, oppressive or an abuse of process. On the contrary, I find the Child Support Registrar brings these proceedings for an entirely proper purpose about a very serious matter. Parents have a primary obligation to support their children. The Registrar seeks to enforce payment of a very substantial debt owed to the Commonwealth in relation to child support which Mr Gillies has been ordered to pay, and which he has not paid. Section 3 of the Child Support (Registration and Collection) Act1988 sets out the principal objects of that Act. Those objects are that children receive financial support from their parents in accordance with the payer’s liability on a regular and timely basis. I have regard to the following remarks of the Full Court in Harrison’s case [5]:
The scheme of the legislation is designed to provide the maximum capacity to the agency to ensure that child support or maintenance due and payable is in fact collected where possible. Subject to the usual law applicable to abuse of process, the legislature has provided a scheme enabling proceedings for the recovery of a debt to be taken in either a court exercising civil jurisdiction or in the Family Court, or both. So long as the debt remains unrecovered steps may be taken for its enforcement … the provisions of O 33 r 2(11) and (12) alert the court to a possibility of abuse of process and guard again the risk of collecting the same debt twice.
The essential aspect of the scheme provided by the Child Support (Registration and Collection) Act, the Child Support (Assessment) Act 1989 and the Rules, is to ensure the collection of the debt by whatever enforcement provisions are available.
[5] At 360
Form 45B Summons – Child Support
I have already referred to s.113 of the Child Support (Registration and Collection) Act 1988 which provides the legislative basis for the Child Support Registrar to recover debts due to the Commonwealth under that Act.
The Child Support Registrar, by filing an affidavit requesting the issue of a Form 45B – Summons – Child Support, seeks to recover an amount of $11,696.24 by way of arrears of child support, and $8,424.27 by way of late payment penalties, being a total of $20,120.51 accrued from 19 December 2006 to 4 April 2008. This is the period commencing from the date of the earlier order made by this court, the subject of the Form 46 enforcement summons.
Mr Gillies deposes to the issues raised by the Registrar in the proceedings before the court in 2006 “appear to form the basis of these proceedings.” Mr Gillies submits that this summons includes, at least in part, penalties and interest which relate to the original debt and the costs he was ordered to pay by order of 19 December 2006. Mr Gillies alleges the proceedings are therefore vexatious and an abuse of process and should be dismissed. Mr Gillies does not refer to any figure or statement in the summons itself to support his submissions, nor does he explain how the court might draw such a conclusion.
Ms Hawkins says that the amounts sought in the Form 45B enforcement summons relate only to the period from 19 December 2006 and that Mr Gillies’ claim otherwise is wrong. Ms Hawkins says the late payment penalties of $8,424.27 have been calculated from the debt which has accrued since 19 December 2006 and the Form 45B summons does not include the order for costs of 19 December 2006.
I accept Ms Hawkins’ submission that the sole purpose of the Form 45B child support summons is to enforce the liability which has accrued since 19 December 2006 to the date of the summons, in accordance with Order 33 of Schedule 5 of the Federal Magistrates Court Rules. I accept that Mr Gillies has not sought to change the assessment for the period after the December 2006 order was made, and that the debt is therefore unchallenged. I accept that the debt relates to child support for
Mr Gillies’ two children who are both under the age of 18.
Conclusion
As I am satisfied it is open to the Child Support Registrar to seek to enforce orders made by this Court on 19 December 2006, and to recover a debt due to the Commonwealth under the Child Support (Registration and Collection) Act 1988 in accordance with the applicable Rules of this court relating to enforcement, I have dismissed Mr Gillies’ application for summary dismissal of the Form 46 and Form 45B summonses, and have listed the matters for hearing.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 21 January 2009
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