Child Support Registrar and Sinclair
[2009] FMCAfam 991
•23 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & SINCLAIR | [2009] FMCAfam 991 |
| CHILD SUPPORT – Enforcement – no statutory basis identified for part of debt sought to be recovered. |
| Child Support (Registration and Collection) Act 1988, ss.30, 67 Federal Magistrates Court Rules 2001, Sch.5, O.33 r.2 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR SINCLAIR |
| File Number: | PAC 4050 of 2008 |
| Judgment of: | Halligan FM |
| Hearing date: | 23 July 2009 |
| Date of Last Submission: | 23 July 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 23 July 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Azimi |
| Solicitors for the Respondent: | In Person |
ORDERS
The enforcement summons filed on 21 August 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Sinclair is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4050 of 2008
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR SINCLAIR |
Respondent
REASONS FOR JUDGMENT
This is an enforcement summons filed in August last year by the Registrar against the Respondent seeking to recover child support arrears.
The Registrar sought to proceed with the matter today and relied, by way of proof of the debt sought to be recovered, upon a certificate purporting to set out the amount of the arrears. It says that the arrears are $98,165.14 comprised of child support debt $66,576.03, “consolidated revenue debt $115.11,” and penalties of $31,473.98.
The certificate purports to assert that all three of these sums are payable in relation to a registered maintenance liability under s.30 for the child support debt and s.67 for the penalties of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
Prima facie on the face of the certificate therefore it does not assert a statutory authority upon which it is suggested that the consolidated revenue debt included in the certificate is payable and, more particularly, recoverable, under the rules set out in Sch.5 to the Federal Magistrates Court Rules 2001, under which the proceedings are brought. The obligations recoverable under the Sch.5 rules are not at large, but are limited to the obligations referred to in O.33 r.2 in Sch.5
When I raised this issue with the solicitor for the applicant it was first asserted that the “consolidated revenue debt” was payable under the Registration and Collection Act, and I asked to be taken to the relevant section.
After the matter was stood twice in the list, to enable the solicitor for the applicant to find the relevant section, it was put to me that it was payable under the Act but they could not tell me which section. Ultimately that became an assertion that it was payable under s.30 as part of the child support debt because of certain facts. Those facts are not in evidence before me.
At that stage there is no evidence of the amount of the debt sought to be recovered today and the enforcement summons must fail.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 16 September 2009
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