Child Support Registrar and Simmons - [2014] FCCA 1245

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & SIMMONS

[2014] FCCA 1245

Catchwords:
CHILD SUPPORT – Enforcement – arrears of child support – where respondent claimed to have sold his interest in real estate – where respondent claimed to have sold his interest in a partnership – where respondent claimed to hold property in trust for his brothers and sisters – no evidence of trust deed – where respondent relied on a purported contract of sale – clear evidence that title to the real estate was not transferred – where respondent has not filed an income tax return since 1995 – no satisfactory explanation for failure to file income tax return.

Legislation:

Child Support (Assessment) Act 1989 (Cth) s.58

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

Real Property Act 1900 (NSW), s.46
Federal Circuit Court Rules 2001 Part 25B

Cases cited:
Bauer & Becker [2009] FMCAfam 480
Cantrell & Jennings [2009] FMCAfam 229
Child Support Registrar & Rawlings & Anor [2013] FCCA 370
Hacherl & Berrios [2010] FMCAfam 668
McColl & McColl [2013] FCCA 736

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR SIMMONS

File Number:

SYC 6064 of 2013

Judgment of:

Judge Scarlett

Hearing date:

10 June 2014

Date of Last Submission:

10 June 2014

Delivered at:

Sydney

Delivered on:

18 June 2014

REPRESENTATION

Counsel for the Applicant:

Ms Fusitu'a

Solicitors for the Applicant:

Australian Government Solicitor

The Respondent:

In person

DECLARATION

As at 10 June 2014 the Respondent owes the Applicant the sum of $50,231.43 (child support debt) consisting of $27,489.45 in arrears of child support and $22,741.98 in late payment penalties.

ORDERS

The Respondent is to pay to the Applicant the child support debt of $50,231.43 within 60 days from the date of these Orders.
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, encumbering or dealing in any way with his interest at Property W in the State of New South Wales, being the whole of the land in Certificate of Title Lot [omitted] in Deposited Plan [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 in this charge.
(c)The Respondent is restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the 1997 Holden [vehicle details omitted] 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.
If the Respondent defaults in making any of the payments ordered to be paid under these Orders or deals with any of the personal…

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: [2014] FCCA 1245
Decision Date: 18 June 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Scarlett considered a dispute between the Child Support Registrar, as applicant, and Mr. Simmons, the respondent, concerning a significant child support debt. The core of the matter was the enforcement of this debt against the respondent.

The court was required to determine the extent of the respondent's liability for the outstanding child support and the appropriate measures to secure payment of this debt. This involved considering the respondent's assets and the applicant's entitlement to take steps to ensure the debt was satisfied.

Judge Scarlett ordered the respondent to pay the full child support debt of $50,231.43 within 60 days. To secure this payment, the court imposed restraints on the respondent dealing with his interest in specific real property and a vehicle, charging these assets in favour of the applicant. The applicant was granted liberty to lodge a caveat over the real property and an encumbrance over the personal property. The orders stipulated that any default in payment or breach of the dealing restrictions would render the total outstanding debt immediately due and payable, with the applicant empowered to pursue enforcement through relevant Federal Circuit Court Rules.

Orders

Orders of the court

The Respondent is to pay to the Applicant the child support debt of $50,231.43 within 60 days from the date of these Orders.

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, encumbering or dealing in any way with his interest at Property W in the State of New South Wales, being the whole of the land in Certificate of Title Lot [omitted] in Deposited Plan [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 in this charge.

(c) The Respondent is restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the 1997 Holden [vehicle details omitted] 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.

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 outstanding shall be immediately due and payable.

THE COURT NOTES THAT 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).

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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