Child Support Registrar and Rae

[2016] FCCA 190

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & RAE [2016] FCCA 190

Catchwords:
CHILD SUPPORT – Enforcement – application for enforcement of arrears of child support and late payment penalties – where there was no appearance by or on behalf of the respondent – where application listed for undefended final hearing.
COSTS – Application for costs – where respondent wholly unsuccessful – order for costs.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), s.116

Family Law Act 1975 (Cth), s.117
Federal Circuit Court Rules 2001, r.13.03C, Sch.1, Part 2

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR RAE

File Number: SYC 3028 of 2011

Judgment of: Judge Scarlett

Hearing date: 2 February 2016

Date of Last Submission: 2 February 2016

Delivered at: Sydney

Delivered on: 2 February 2016

REPRESENTATION

Solicitor for the Applicant: Ms Taah

Solicitors for the Applicant: Australian Government Solicitor

Respondent: No appearance

IT IS DECLARED THAT as at 2 February 2016 the Respondent owes the Applicant the sum of $17,071.18 (child support debt) consisting of $13,678.94 in arrears of child support and $3,392.24 in late payment penalties.

ORDERS

1. The Respondent is to pay to the Applicant the child support debt of $17,071.18.

2. The Respondent is to pay to the Applicant the sum of $3,631.40 toward the Applicant’s legal costs.

3. The Respondent is to pay to the Applicant the sum of $20,702.58 (total debt) comprising the child support debt as declared above and the Applicant’s legal costs within 60 days from the date of these Orders.

4. On or before 15 March 2016 the Respondent is to lodge with the Australian Taxation Office all outstanding personal income tax returns for the financial years ended 30 June 2008 to 30 June 2015.

5. Until further Order of the Court or payment in full of the total debt the following provisions apply:

   (a)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, described in Certificate of Title Folio (omitted) (real property) without the prior written consent of the Applicant.

   (b)The Respondent’s interest in the real property is charged in favour of the Applicant for the total debt and the Applicant is at liberty to lodge a caveat over the real property to secure the interest created by this charge.

   (c)The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with his interest in his personal property without the prior written consent of the Applicant.

   (d)The Respondent’s interest in his personal property is charged in favour of the Applicant for the total debt and the Applicant is at liberty to lodge an encumbrance over the personal property to secure the interest created by this charge.

6. If the Respondent defaults in making any of the payments ordered to be paid under these Orders or deals with any of the personal property or real property in breach of these Orders, the amount of the total debt then outstanding shall be immediately due and payable.

AND THE COURT NOTES THAT

1. Any monies payable by the Respondent under these Orders are in addition to his ongoing liability to pay child support as assessed or varied from time to time.

2. If the Respondent defaults in making any of the payments ordered to be paid under these orders or deals with any of the personal property or real property in breach of these Orders the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 including Subdivision 25B.2.3 – enforcement warrants and/or Subdivision 25B.2.4 – Third Party Debt Notice.   

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Rae is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3028 of 2011

CHILD SUPPORT REGISTRAR

Applicant

And

MR RAE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Child Support Registrar for enforcement of arrears of child support and late payment penalties. The Application was opposed by the Respondent on the basis that he had come to an arrangement with the payee that he would make non-agency payments directly to her to pay her rent.

2. The Respondent filed a Response and an affidavit on 17 July 2015. He had previously filed a Financial Statement on 13 July 2015. At the time he was represented by Legal Aid NSW.

3. On 19 October 2015 Legal Aid NSW filed a Notice of Intention to Withdraw as Lawyer. The Respondent has had no legal representation since that date, nor has he attended Court.

4. The Application was listed for an undefended hearing, initially on 10 November 2015 and then today.

5. There has been no appearance by or on behalf of the Respondent, nor has there been any explanation provided as to his absence. Accordingly, a decision was made to proceed with the hearing generally in the Respondent’s absence in accordance with Rule 13.03C.    

Evidence and Submissions

1. The Applicant relied on the following:

   a)the affidavit of Ms R of 31 March 2015;

   b)a Certificate under sub-section 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth); and

   c)a Child Support Payer Transaction Statement for the period 17/09/2001 to 01/02/2016.

2. The Applicant also relied on the oral evidence of Ms C, who gave evidence that she had familiarised herself with the details of the affidavit of Ms R.

3. The Certificate under sub-section 116(2) shows that an amount of $17,071.18 remains unpaid, made up as follows:

   a)Child support debt $13,678.94; and

   b)Late payment penalties $3,392.24.  

4. These figures are supported by the Child Support Payer Transaction Statement and the oral evidence of Ms C.

5. The Applicant also seeks an Order for Costs in the sum of $3,631.40 in accordance with Part 2 of Schedule 1 of the Rules, being the scale costs of $3,367.5 plus disbursements of $263.90.

Conclusions

1. The absence of the Respondent is unexplained. In the circumstances, I am satisfied that the Applicant has made out a case that the Respondent owes an amount totalling $17,071.18. I will order accordingly.

2. The Applicant seeks an order for costs against the Respondent. I am of the opinion that there are circumstances that justify the making of an order for costs against the Respondent, noting that he has been wholly unsuccessful in the proceedings (see Family Law Act 1975 (Cth), s.117 (2A)(e)).

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  5 February 2016