Child Support Registrar and Jones
[2011] FMCAfam 1479
•6 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & JONES | [2011] FMCAfam 1479 |
| CHILD SUPPORT – Enforcement – child support debt – where respondent sought to challenge paternity of child – DNA test. |
| Child Support (Registration and Collection) Act 1989 (Cth) ss.30, 111C Family Law Act 1975 (Cth) ss.69W, 69X |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR JONES |
| File Number: | SYC 423 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 December 2011 |
| Date of Last Submission: | 6 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Nanson |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Solicitor for the Respondent: | Mr Cumming |
| Solicitors for the Respondent: | Hamish Cumming Family Lawyers |
THE COURT DECLARED;
As at 5 December 2011 the Respondent owes the Applicant the sum of $31,265.72 (‘child support debt’) consisting of $28,469.33 in arrears of child support and $2,796.39 in late payment penalties.
THE COURT ORDERS THAT:
Order 3 of the Orders made on 3 May 2011 be set aside.
Order 4 of the Minutes of Consent orders being Exhibit 1 of the orders made on 7 June 2011 be set aside.
The Respondent pay to the Applicant the child support debt of $31,265.72.
The Respondent pay to the Applicant the sum of $4,202.40 toward the Applicant’s legal costs.
The Respondent pay to the Applicant the sum of $35,468.12 (‘total debt’) comprising the child support debt as declared above and the Applicant’s legal costs within 90 days from the date of these orders.
Tax Returns
On or before 6 March 2012, the Respondent lodge with the Australian Taxation Office all outstanding personal income tax returns for the financial year ended 30 June 2010.
Security
Until further order of the Court or payment in full of the total debt the following provisions apply:
Real property
7.1 The Respondent is restrained from selling, assigning, transferring, further encumbering or dealing in any way with his interest in the real property at Property C in the State of new South Wales more particularly described in Certificate of Title Folio Identifier [omitted] (‘real property’) without the prior written consent of the Applicant.
7.2The Respondent’s interest in the real property be charged in favour of the Applicant for the total debt (and the Applicant be at liberty to lodge a caveat over the real property to secure the interests created by this charge).
Personal property
7.3The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with his interest in his personal property, including but not limited to:
(a)the 2007 Toyota Hilux 4 Utility (Grey), Registration [omitted]
(b)the 2009 BMW X6 M Station Wagon (Blue) Registration [omitted]
(‘personal property’) without the prior written consent of the Applicant.
7.4The Respondent’s interest in his personal property be charged in favour of the Applicant for the total debt (and the Applicant be at liberty to lodge an encumbrance over the personal property to secure the interest created by this charge).
Enforcement Orders
If the Respondent defaults in making any of the payments under these orders or deals with any of the personal property in breach of these orders the following orders shall take effect:
8.1The total debt shall be immediately due and payable.
8.2The official Receiver, the Sheriff of the Federal Magistrates Court, and their servants and agents shall be appointed as Enforcement Officers.
8.3Pursuant to rule 25B.11(a) of the Rules an Enforcement officer shall seize and sell under an Enforcement Warrant such of the Respondent’s real property and personal property, not being prescribed personal property, as the Enforcement Officer may consider sufficient to meet the reasonable costs of the Enforcement officer and to discharge in full all amounts owed by the Respondent under the orders of this Court.
The Application to be removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Jones is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 423 of 2011
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR JONES |
Respondent
REASONS FOR JUDGMENT
The Applicant has commenced proceedings by way of summons seeking to recover a child support debt under s.30 of the Child Support (Registration and Collection) Act 1988.
The amount sought relates to arrears of child support owing to one
Ms L for the support of a child of the relationship.
Background
The Respondent filed an Application in a Case on 31st March 2011 seeking orders that:
a)A parentage testing order be made under the provisions of s.69W of the Family Law Act requiring a parentage testing procedure be carried out on the Respondent, Ms L and the child;
b)That pursuant to s.69X(3)(b) of the Act each person provide a bodily sample for the purpose of the parentage testing procedure;
c)That pursuant to s.69X(4) of the Act each party pay their own costs of the parentage testing procedure;
d)That a stay of enforcement of the child support proceedings be made under s.111C(3) of the Child Support (Registration and Collection) Act.
The Respondent affirmed an affidavit on 30th March 2011 in which he expressed doubt that he was the child’s father.
The parentage testing procedure took place on 19th July 2011. The DNA Parentage Testing Procedure Report prepared by Silbase Genetics dated 2nd August 2011 is annexed to an affidavit of Angela Nanson, solicitor, affirmed on 19th September 2011.
The Report states that:
The calculated Paternity Index of 625,658 means that MR JONES is 625,658 times more likely to be the father of [X][1] than an unrelated man chosen at random from the Australian Caucasian population.
In this case, the Relative Chance of Paternity is 99.9998%.[2]
[1] The child’s name is not published for privacy reasons
[2] Affidavit of A. Nanson 19.9.2011 Annexure “A”
The Respondent’s then solicitors (his second) withdrew as his lawyer.
The Child Support Registrar sought to proceed with the Enforcement Summons.
On 30th November 2011 the Respondent’s next solicitor, Mr Cumming, filed a Notice of Withdrawal As Lawyer.
The application was listed for hearing on 6th December 2011. On that date, Mr Cumming appeared as amicus curiae and advised the Court that his former client did not quibble with the figures but sought a further period of 60 days to pay the child support debt.
Mr Cumming told the Court that the Respondent had said that he would not be able to file his outstanding income tax returns for the years 1992, 1993 and 1997 as he no longer had the necessary documents.
Mr Cumming also said that the Respondent had told him that he no longer had two motor vehicles, a Toyota Hilux utility and BMW X6M station wagon in respect of which the Child Support Registrar sought orders. The vehicles had been the subject of finance agreements and have both been sold.
Conclusions
The Child Support Registrar has satisfied the Court that the Respondent owes a child support debt of $31,265.72 consisting of $28,469.33 in arrears of child support and $2,796.39 in late payment penalties.
The Child Support Registrar also seeks an order for costs calculated according to Schedule 1 in the Rules. The amount sought is $4,202.40. I am satisfied that this is a proper matter for a costs order and I am also satisfied that the sum of $4,202.40 is an appropriate figure.
Orders will be made accordingly.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM.
Date: 13 January 2012
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