Child Support Registrar and Gillies - [2009] FMCAfam 34

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
Bryant v Commonwealth Bank of Australia (1995) 130 ALR 129
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502

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…

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: [2009] FMCAfam 34
Decision Date: 21 January 2009

CaseChat Overview and Summary

The Child Support Registrar filed an application against Gillies, seeking enforcement of child support payments. The case was heard by the Federal Magistrates Court of Australia. The Registrar was pursuing enforcement of child support payments that were allegedly not paid by Gillies. The central issue was whether the Registrar had correctly served the enforcement notices on Gillies and whether the enforcement notices were valid. The court examined the evidence of service and the content of the notices, determining that the Registrar had not complied with the necessary procedures for service, and as a result, the enforcement notices were invalid.

The court found that the Registrar had failed to properly serve the enforcement notices on Gillies, leading to their invalidity. The court considered the requirements for valid service under the relevant legislation and concluded that the Registrar had not met these requirements. As a result, the enforcement notices were deemed invalid, and the application to enforce the child support payments was dismissed. The court also ordered that the proceedings be listed for a hearing and that specific documents be produced and inspected by the Registrar. Any application for costs was adjourned until the hearing date.

Orders

Orders of the court

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.

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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