Child Support Registrar and Rosier
[2011] FMCAfam 687
•5 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & ROSIER | [2011] FMCAfam 687 |
| CHILD SUPPORT – Enforcement of child support debt and late payment penalties – where the respondent did not court on the hearing – default of appearance of a party. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.30, 67, 116, 130 Family Law Act 1975 (Cth), s.117 Federal Magistrates Court Rules 2001, r.13.03C |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR ROSIER |
| File Number: | SYC 1696 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 July 2011 |
| Date of Last Submission: | 5 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Nanson |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No solicitor on the record |
ORDERS
As at 5 July 2011 the Respondent owes the Applicant the sum of $17,531.51 (“the child support debt”) consisting of $15,261.05 in arrears of child support and $2,270.46 in late payment penalties (“late payment penalties”).
IT IS ORDERED THAT
The Respondent pay to the Applicant the child support debt of $17,531.51.
The Respondent pay to the Applicant the sum of $3,056.40 toward the Applicant’s legal costs.
The Respondent pay to the Applicant the sum of $20,587.91 (“the 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.
Tax Returns
On or before 1 August 2011, the Respondent lodge with the Australian Taxation Office all outstanding personal income tax returns for the financial years ended 30 June 2007 to 30 June 2010.
Security
Real Property
Until further of the Court or payments of all amounts owing pursuant to these orders, the Respondent is restrained from selling, assigning, transferring, further encumbering or dealing in any way with his interests in the real property at Property C in the State of New South Wales, described in folio identifier [omitted] (“the Property C property”), without the prior written consent of the Applicant.
The Respondent’s interest in the Property C property is charged in favour of the Applicant for the total debt (and the applicant is at liberty to lodge a caveat over the Property C property).
Motor Vehicles
Until further order of the Court or payment of all amounts owing pursuant to these orders, the Respondent is restrained from selling, assigning, transferring, encumbering or dealing in any way with his interest in the following motor vehicles, without the prior written consent of the Applicant:
7.1the Toyota Tarago Wagon (Silver), registration [omitted]
(“the motor vehicles”).
The Respondent’s interest in the motor vehicles is charged in favour of the Applicant for the total debt (and the Applicant is at liberty to secure the interest created by this charge).
Enforcement Orders
If the Respondent fails to comply with paragraph 3 of these orders, or deals with the Property C property or motor vehicles in breach of these orders: then
9.1The total debt will be immediately due and payable.
9.2
The Sheriff of the Supreme Court of the State of New South Wales (“the Sheriff”) and his servants and agents may seize and realise, in accordance with Order 33 Rule 5 of the Family Law Rules 1984 (which applies by virtue of Rule 25B.05 and
Schedule 5 of the Federal Magistrates Court Rules 2001), such of the Respondent’s personal property, not being prescribed personal property, as the Sheriff or his servants or agents may consider sufficient to meet the reasonable costs of the Sheriff and discharge in full all amounts owed by the Respondent under orders of this Court in this proceeding, and, in particular, the Sheriff or his servants or agents may seize and realise any motor vehicles of the Respondent.
9.3For the purpose of carrying into effect these orders, the Respondent shall give the Sheriff, and his servants and agents, peaceful entry to any premises in which personal property of the Respondent is located and shall deliver to the Sheriff, his servants or agents, upon request, the keys to any motor vehicle(s) or other property for which keys are reasonably required for operation or removal.
9.4The Respondent shall, upon the request of the Sheriff, do all acts and execute all documents necessary to transfer to the Sheriff all of the Respondent’s right, title and interest in such of the Respondent’s personal property as the Sheriff or his servants or agents may seize pursuant to these orders.
9.5If the Respondent defaults under the immediately preceding order, the Sheriff is hereby empowered to sign all documents and do all things necessary to transfer to the Sheriff all of the Respondent’s right, title and interest in the personal property seized pursuant to these orders and an affidavit of the Sheriff attesting to the default shall be sufficient proof of the default for the purpose of this order.
9.6The Sheriff shall, as soon as reasonably practicable, sell the Respondent’s personal property seized pursuant to these orders, for the best price reasonably obtainable and shall apply the proceeds of sale in the following order:
9.6.1.first, in payment of the reasonable costs, disbursements and expenses of the Sheriff or his servants or agents, including to the Applicant for any fees paid to the Sheriff (“the Sheriff fees”);
9.6.2.second, in discharge of prior encumbrance on the personal property;
9.6.3.third, in payment of such sums as are then outstanding to the Commonwealth pursuant to any order of this Court in respect of the child support debt and the applicant’s costs; and
9.6.4.fourth, in payment of any residue to the Respondent.
9.7Pursuant 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 Magistrates Court Rules), the Official Receiver on behalf of the Commonwealth (“the trustee”) is hereby appointed trustee for the sale of the Respondent’s interest in the Property C property.
9.8The Respondent shall, upon the request of the trustee, sign all documents and produce the relevant Certificate of Title in his possession, custody or control and do all things necessary to transfer to the trustee the Respondent’s interest in the Property C property.
9.9If the Respondent defaults under the immediately preceding order, a Registrar of the Federal Magistrates Court of Australia shall be and is hereby 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 Property C property to the trustee.
9.10The Respondent shall give the trustee vacant possession of the Property C property within 30 days of the date of defaulting on payment under these orders.
9.11The trustee shall, as soon as reasonably practicable, sell the Respondent’s interest in the Property C property for the best price reasonably obtainable and shall apply the proceeds of sale in the following order:
9.11.1.first, in payment of all costs, commissions and expenses of the said trust, transfer and sale including all costs incurred by the said trustee:
9.11.2.second, in discharge of any encumbrance upon the Property C property;
9.11.3.third, in payment of the total sum referred to in order 3 herein; and
9.11.4.fourth, in payment of any residue to the Respondent.
The parties have liberty to restore the matter to the Court list upon
7 days’ notice in respect of compliance with these orders.
The summons filed on 18 March 2011 be removed from the active pending cases list.
THE COURT NOTES THAT
A.Any monies payable by the Respondent pursuant to these orders are in addition to his ongoing liability to pay child support as assessed or varied from time to time.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Rosier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1696 of 2011
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR ROSIER |
Respondent
REASONS FOR JUDGMENT
Application
This is a summons issued under s.130 of the Child Support (Registration and Collection) Act 1988 whereby the Child Support Registrar claims that the respondent owes a child support debt and penalties for late payment.
The child support debt was said to be $13,709.03 as at 16th March 2011 and penalties under s.67 of the Act amounted to $1,845.37. Section 67 provides for a penalty for late payment of the child support debt.
The summons was originally returnable on 3rd May 2011 but, due to difficulty in serving the summons, the Child Support Registrar applied for an order for substituted service, which was granted.
The return date for the summons was adjourned to 7th June 2011. The Respondent attended Court on that day but did not consent to orders sought by the Child Support Registrar that he should pay the amount of the child support debt and the late payment penalties.
The matter was listed for a defended hearing on 5th July 2011 at 12 noon.
The Respondent did not attend Court at 12 noon, or at all. The matter was called at 12:35pm and there was no answer to the call. No message was received from the Respondent or anyone on his behalf advising that he was hindered, delayed or prevented from attending Court due to illness, injury or any other emergency.
The Child Support Registrar sought to proceed with the hearing.
Default of Appearance of a Party
Rule 13.03C sets out what the Court may do if a party to a proceeding is absent from a hearing. Subrule 13.03C(1) provides at paragraph (e) that the Court may:
proceed with the hearing generally or in relation to any claim for relief in the proceeding.
The Child Support Registrar has tendered a Certificate under sub-section 116(2) of the Act, showing that an amount of $17,531.51 is now due and payable by the respondent and remains unpaid as at
4th July 2011, made up of:
a)Child support debt $15,261.05; and
b)Penalties $2,270.46.
A declaration will be made that the Respondent owes the sum of $17,531.51 to the Applicant Child Support Registrar.
The Applicant seeks an order for costs against the Respondent. The amount sought, according to the scale provided in Schedule 1 of the Rules, is $3,056.40.
I am satisfied that an order for costs is appropriate in the circumstances under the provisions of s.117(2) of the Family Law Act 1975. The amount of $3,056.40 is an appropriate figure.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 July 2011
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