Child Support Registrar and Hartwell - [2019] FamCA 279

FAMILY COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & HARTWELL

[2019] FamCA 279

FAMILY LAW – CHILD SUPPORT – Where Application by Child Support Registrar seeking the Respondent pay child support arrears – Where order made on 17 September 2018 that any application made by the Respondent to adjourn the trial due to medical incapacity be brought no later than 1 February 2019 – Where the Respondent provided reports from his medical specialists, but no application was made – Where no appearance from Respondent – Where court proceeded with the hearing – Where decision of whether or not to adjourn proceedings remains with the Judge – Where court satisfied that the child support debt and penalties claimed under the certificate are due by the Respondent – Where Respondent has no ‘right’ to choose whether to be subject to the obligations imposed by the Child Support Scheme – Where orders made for enforcement as sought by the Registrar –Where order for costs.

Judiciary Act 1903 (Cth) ss 78B
Child Support (Registration and Collection) Act 1988 (Cth) ss 116
Commonwealth Powers (Family Law – Children) Act 1986 (NSW) ss 3
Taxation Administration Act 1953 (Cth)
Family Law Act 1975 (Cth) ss 117
Family Law Rules 2004 (Cth) r 1.04, 1.07, 1.08, 20.07

Strahan & Strahan [2019] FamCAFC 31
Decker v Hopcraft [2015] EWHC 117

Thurston & Thurston (No 2) [2012] FamCAFC 222

Union Steamship Company of Australia v King (1988) 166 CLR 1

APPLICANT:

Child Support Registrar

RESPONDENT:

Mr Hartwell

FILE NUMBER:

BRC

5033

2014

DATE DELIVERED:

3 May 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns via video link to Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

1 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Del Villar

SOLICITORS FOR THE APPLICANT:

Australian Government Solicitor

THE RESPONDENT:

No appearance

Orders

The Respondent pay the Applicant the sum of $70,657.30 (“the Child Support Debt”), being a registered maintenance liability of $30,885.46 in arrears of child support and $39,771.84 in late payment penalties as evidenced by a Certificate issued under s 116(2) of the Child Support (Registration and Collection) Act 1988.
The Respondent pay the Applicant the Child Support Debt within 90 days of the date of these orders.
The Respondent pay the Applicant’s costs to be agreed and if not agreed to be taxed (“the Costs”).
Pending full payment of the Child Support Debt and the Costs:
4.1pursuant to order 2 of these orders made by Judge Spelleken of the Federal Circuit Court in these proceedings on 23 July 2014, the Respondent continue to be restrained, without the prior written consent of the Applicant, from selling, assigning, transferring, encumbering by mortgage or charge or dealing in any way with his interest in:
4.1.1the real property at “E Street, Suburb F in the State of New South Wales,” more particularly described as Lot … in Deposited Plan … Parish of …, County of … contained in Certificate of Title Folio …86 registered in the name of the Respondent (“the Real Property”).
4.2the Applicant…

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: [2019] FamCA 279
Decision Date: 3 May 2019

CaseChat Overview and Summary

The matter before Tree J concerned an application by the Child Support Registrar against Mr Hartwell. The dispute centred on a significant outstanding child support debt, which included arrears and late payment penalties, as evidenced by a certificate issued under the *Child Support (Registration and Collection) Act 1988*. The Registrar sought orders for the payment of this debt and for the preservation of certain assets.

The court was required to determine the quantum of the child support debt, including arrears and penalties, and to make orders for its recovery. Furthermore, the court needed to consider whether to continue an existing injunction restraining the respondent from dealing with his interest in a specific property, and to make further orders to facilitate the enforcement of the debt.

Tree J ordered the respondent to pay the applicant the sum of $70,657.30, representing the total child support debt. This amount was to be paid within 90 days. The court also ordered that the respondent pay the applicant's costs. Crucially, pending full payment of the debt and costs, the respondent was restrained from selling, assigning, transferring, encumbering, or otherwise dealing with his interest in the real property located at "E Street, Suburb F in the State of New South Wales." The applicant was granted liberty to serve these orders on the property's mortgagee and any other interested parties. The orders stipulated that if the respondent defaulted on payments or breached the restraint on the property, the entire outstanding debt would immediately become due and payable. The court also noted that any monies paid were in addition to ongoing child support liabilities and that failure to comply with the orders could lead to further enforcement action, including contempt proceedings.

Orders

Orders of the court

The Respondent pay the Applicant the sum of $70,657.30 (“the Child Support Debt”), being a registered maintenance liability of $30,885.46 in arrears of child support and $39,771.84 in late payment penalties as evidenced by a Certificate issued under s 116(2) of the Child Support (Registration and Collection) Act 1988.

The Respondent pay the Applicant the Child Support Debt within 90 days of the date of these orders.

The Respondent pay the Applicant’s costs to be agreed and if not agreed to be taxed (“the Costs”).

Pending full payment of the Child Support Debt and the Costs:

4.1 pursuant to order 2 of these orders made by Judge Spelleken of the Federal Circuit Court in these proceedings on 23 July 2014, the Respondent continue to be restrained, without the prior written consent of the Applicant, from selling, assigning, transferring, encumbering by mortgage or charge or dealing in any way with his interest in:

4.1.1 the real property at “E Street, Suburb F in the State of New South Wales,” more particularly described as Lot … in Deposited Plan … Parish of …, County of … contained in Certificate of Title Folio …86 registered in the name of the Respondent (“the Real Property”).

4.2 the Applicant is at liberty to serve a copy of these orders on the mortgagee, Australian and New Zealand Banking Group, and any other person who claims an interest in the Real Property.

If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with the Real Property in breach of these orders, the amount of the total debt then outstanding shall be immediately due and payable.

Otherwise all extant applications are dismissed, and the matter is removed from the list of active pending cases.

AND THE COURT NOTES THAT:

A. Any monies payable by the Respondent pursuant to these orders are in addition to the ongoing liability to pay child support as assessed or varied from time to time.

B. If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with the real or personal property in breach of these orders, the Applicant may proceed to enforce the total debt then owing in accordance with Chapter 20 of the Family Law Rules 2004.

C. If the Respondent neglects or refuses to comply with or disobeys their obligations under these orders, the Respondent may be liable to an order for costs, sequestration of property, punishment for contempt or such other order as the Court considers appropriate.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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