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 |
| 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…
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- Case
- [2014] FCCA 1245
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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.
3.
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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