Child Support Registrar and Leigh - [2008] FMCAfam 1424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & LEIGH

[2008] FMCAfam 1424

CHILD SUPPORT – Enforcement – Child Support arrears and penalties – order for sale of real estate – costs.

Child Support (Registration and Collection) Act 1988 (Cth) s.116
Child Support (Assessment) Act 1989 (Cth) ss.3, 4
Partition Act 1869 (Tas)
Family Law Act 1975 (Cth) s.118
Federal Magistrates Court Rules 2001 (Cth) Schedule 1

Hendy v Deputy Child Support Registrar (2001) 27 FamLR 641

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR LEIGH

File Number:

HBC 431 of 2007

Judgment of:

Roberts FM

Hearing date:

14 November 2008

Date of Last Submission:

14 November 2008

Delivered at:

Launceston

Delivered on:

14 November 2008

REPRESENTATION

Counsel for the Applicant:

Mr Boughton

Solicitors for the Applicant:

Australian Government Solicitor

The Respondent was not represented by a lawyer.

ORDERS

That it is declared that as at 14 November 2008 the respondent MR LEIGH owes the applicant CHILD SUPPORT REGISTRAR on behalf of the Commonwealth the sum of $38,045.08 (“the Child Support debt”) consisting of $31,306.17 in arrears of Child Support and $6,738.91 in late payment penalties.
That on or before the close of business on 12 December 2008 the respondent must pay to the applicant the sum of $47,476.08 (“the total debt”) comprising as follows:
(a)The Child Support debt declared above;
(b)The sum of $1,125.00 being costs ordered to be paid pursuant to an Order of this Court on 18 September 2008;
(c)The sum of $8,306.00 being costs of and incidental to the Enforcement Summons issued 28 March 2007.
That the respondent is hereby restrained from dealing with in any way with his interest in the real property situated Property D in Tasmania more particularly described in Certificate of Title Volume [1] Folio [1] and Volume [2] Folio [1] (“the D property”) unless and until the total debt is paid.
That in the event that the respondent defaults in paying the total debt in compliance with these Orders on or before 12 December 2008 the Official Receiver of the Bankruptcy District of Victoria and Tasmania (“the Trustee”) is hereby appointed Trustee for the sale of the D property pursuant to Order 33 Rule 7 of the Family Law Rules 1984 (which applies by virtue of Rule 25B.05 and Schedule 5 of the Federal Magistrate Court Rules 2001).
That the respondent shall upon the request of the Trustee sign all documents and provide all relevant Certificates of Title in his possession custody or control and do all things necessary to transfer his interest in the D property to the Trustee.
That if the respondent does not comply with the preceding Order hereof a Registrar of the Federal Magistrates Court of Australia shall be empowered pursuant to Section 106A of the Family Law Act 1975 to sign all documents and do all things necessary to transfer the respondent’s interest in the D property to the Trustee.
That if the respondent defaults on payment under these orders he is to do all within his…

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: [2008] FMCAfam 1424
Decision Date: 14 November 2008

CaseChat Overview and Summary

The case involves the Child Support Registrar, acting on behalf of the Commonwealth, and Leigh, who is in dispute over child support arrears and penalties. The matter was heard in the Family Court of Australia. The Registrar sought a declaration that Leigh owed a certain amount in child support arrears and penalties, and applied for enforcement orders to recover the debt, including a sale of Leigh's property if the debt remained unpaid.

The court had to determine whether Leigh owed the declared amount and whether enforcement orders, including the sale of his property, were justified. This involved assessing the evidence provided regarding the child support arrears and the enforcement of penalties, as well as considering Leigh's financial circumstances and ability to pay.

The court found that Leigh indeed owed the specified amount in child support arrears and penalties. It concluded that Leigh's financial situation did not provide a reasonable prospect of him being able to pay the debt voluntarily within a reasonable time. Therefore, the court issued comprehensive enforcement orders, including a declaration of the debt, a deadline for payment, and provisions for the sale of Leigh's property if the debt was not paid by the specified date. The court also appointed a trustee to handle the sale of the property and outlined the order in which the proceeds of the sale would be applied.

In conclusion, the court ordered Leigh to pay the total debt by a specified date, restrained him from dealing with his interest in the property until the debt was paid, and authorised the sale of the property if the debt remained unpaid. The proceeds of the sale were to be applied in a prescribed order to cover costs, encumbrances, the outstanding debt, and any remaining amount to Leigh. The court also granted the Registrar the liberty to apply if the sale proceeds were insufficient to cover the debt and costs.

Orders

Orders of the court

That it is declared that as at 14 November 2008 the respondent MR LEIGH owes the applicant CHILD SUPPORT REGISTRAR on behalf of the Commonwealth the sum of $38,045.08 (“the Child Support debt”) consisting of $31,306.17 in arrears of Child Support and $6,738.91 in late payment penalties.

That on or before the close of business on 12 December 2008 the respondent must pay to the applicant the sum of $47,476.08 (“the total debt”) comprising as follows:

(a) The Child Support debt declared above;

(b) The sum of $1,125.00 being costs ordered to be paid pursuant to an Order of this Court on 18 September 2008;

That the respondent is hereby restrained from dealing with in any way with his interest in the real property situated Property D in Tasmania more particularly described in Certificate of Title Volume [1] Folio [1] and Volume [2] Folio [1] (“the D property”) unless and until the total debt is paid.

That in the event that the respondent defaults in paying the total debt in compliance with these Orders on or before 12 December 2008 the Official Receiver of the Bankruptcy District of Victoria and Tasmania (“the Trustee”) is hereby appointed Trustee for the sale of the D property pursuant to Order 33 Rule 7 of the Family Law Rules 1984 (which applies by virtue of Rule 25B.05 and Schedule 5 of the Federal Magistrate Court Rules 2001).

That the respondent shall upon the request of the Trustee sign all documents and provide all relevant Certificates of Title in his possession custody or control and do all things necessary to transfer his interest in the D property to the Trustee.

That if the respondent does not comply with the preceding Order hereof a Registrar of the Federal Magistrates Court of Australia shall be empowered pursuant to Section 106A of the Family Law Act 1975 to sign all documents and do all things necessary to transfer the respondent’s interest in the D property to the Trustee.

That if the respondent defaults on payment under these orders he is to do all within his power to give the Trustee vacant possession of the

D property within 30 days of such default.

That the Trustee shall as soon as reasonably practicable sell the respondent’s legal and equitable interest in the D property for the best price that can be reasonably obtained and shall apply the proceeds of sale in the following order:

(a) firstly, in payment in payment of costs, commissions and expenses of the said transfer and sale including all costs incurred by the Trustee or his servants or agents;

(b) secondly, in discharging any prior encumbrance on the titles to the D property;

(c) thirdly, in payment of all such sums that are then outstanding to the Commonwealth pursuant to any Order of this Court in respect the total debt; and

(d) fourthly, in payment of any residue to the respondent.

That the applicant has liberty to apply in the event that the proceeds of sale of the D property are insufficient to discharge the total debt and any costs otherwise incurred as a result of these Orders.

10.

That until further Order or until the total debt is paid in full the respondent’s interest in the D property remains charged in favour of the applicant for the full amount owing and the applicant is at liberty to retain any existing Caveat secured over the title to that property.

Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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