Child Support Registrar and Singleton and Anor
[2011] FMCAfam 936
•8 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & SINGLETON and ANOR | [2011] FMCAfam 936 |
| CHILD SUPPORT – Enforcement – whether proceedings should be transferred to the Family Court of Australia – where property proceedings pending in the Family Court of Australia – child support proceedings are associated matters – where resources of the Federal Magistrates Court insufficient to hear and determine combined property and child support proceedings. |
| Child Support (Assessment) Act 1989 (Cth), s.112 Child Support (Registration and Collection) Act 1988 (Cth), ss.30, 67 and 113 Family Law Act 1975 (Cth), s.33A Federal Magistrates Act 1999 (Cth), ss.19, 39, 40 |
| M v DB (2006) FLC 93-293 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| First Respondent: | MR SINGLETON |
| Second Respondent: | [MR SINGLETON] PTY LTD |
| File Number: | SYC 5388 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 5 and 8 October 2010 |
| Date of Last Submission: | 8 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Connor |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the First Respondents: | Mr Thomas |
| Solicitors for the First Respondents: | King Cain Solicitors |
| Solicitors for the Second Respondents: | No solicitor on the record |
ORDERS
That the Enforcement Summons filed on 26 August 2010 be transferred to the Family Court of Australia at Parramatta to be consolidated with proceedings number PAC 1180 of 2009 pursuant to s.39(4) of the Federal Magistrates Act 1999.
That the First Respondent file and serve a Departure Application together with supporting affidavit material within one (1) month from the date of these Orders.
UNTIL FURTHER ORDER the First Respondent is to pay to the Applicant the sum of ONE THOUSAND DOLLARS ($1,000.00) in reduction of arrears of the First Respondent’s child support liability and late payment penalties on or before 8 December 2011 and on or before the eighth (8th) day of each month thereafter.
The First Respondent is to produce documents in accordance with the above summons to the Applicant’s solicitors within one (1) month of the date of these Orders.
UNTIL FURTHER ORDER the First Respondent is restrained from selling, assigning, transferring, encumbering or dealing in any way with his interest in the real property at Property K in the State of New South Wales, described in Certificate of Title Folio [omitted] except for a purpose that includes paying his child support debt in full or without the prior written consent of the Applicant.
The parties’ costs are reserved.
AND THE COURT NOTES THAT
A.Any monies payable by the First Respondent in compliance with 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 & Singleton and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5388 of 2010
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR SINGLETON |
First Respondent
| [MR SINGLETON] PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Application
This is a summons under the provisions of s.113 of the Child Support (Registration and Collection) Act 1988, which was originally brought by the Child Support Registrar against the First Respondent only. The summons seeks to enforce payment of the amount of $45,661.25, made up as follows:
a)the sum of $38,944.21 for arrears of registered maintenance liabilities under s.30 of the Act; and
b)the sum of $6,717.04 by way of late payment penalties imposed under s.67 of the Act.
On 7th September 2010, on the application of the Applicant, the Second Respondent, the company [Mr Singleton] Pty Ltd, was joined as a party. A number of injunctive orders were made against the First Respondent. The Application was adjourned to 5th October 2010.
On 5th October 2010 Mr Thomas of counsel appeared for the First Respondent. He advised the Court that the First Respondent was a party to property proceedings to be heard for five days in the Family Court of Australia and submitted that there would be sufficient funds coming from those proceedings to meet the child support debt of $45,661.25.
The proceedings were adjourned to Friday 8th October and the First Respondent was ordered to pay the sum of $2,000.00 to the Applicant on or before that date.
On 8th October 2010 the Court heard argument about whether these proceedings should be transferred to the Family Court of Australia at Parramatta for consolidation with proceedings in that Court.
Orders Sought
The First Respondent seeks these orders, which were set out in Short Minutes filed in Court:
1. That the first respondent file and serve a departure application together with supporting affidavit material on or before 29 October 2010.
2. That the enforcement proceedings number SYC 5388 of 2010 be transferred to the Family Court of Australia with a request that they be consolidated with proceedings number PAC 1180 of 2009.
3. That upon the filing of the departure application referred to in order 1 hereof the orders made 7 September 2010 be discharged.
4. That the first respondent pay to the applicant $1,000.00 per month on or before the 7th day of each month pending further order of the court.
5. That the first respondent produce documents in accordance with the summons served on him in these proceedings, to the Australian Government Solicitor by close of business on 19 October 2010.
6. The first respondent hereby charges his interest in property proceedings number PAC 1180 of 2009 in favour of the applicant herein in an amount equal to the amount payable to the Child Support Agency by him from time to time, but not exceeding an amount of $43,000.00.
7. That the first respondent serve a copy of these orders on the other party in proceedings number PAC 1180 of 2009.
8. That the first respondent pay to the applicant such amount as may be found to be owing to the applicant after the hearing of the departure application referred to in order 1 hereof within 90 days of delivery of judgment or filing Terms of Settlement in proceedings number PAC 1180 of 2009.
9. That upon compliance by the applicant[1] with order 8 hereof the charge referred to in order 6 hereof be discharged.
10. That the parties have liberty to restore the matter to the list on 14 days notice to the court and other parties.
11. That this matter be adjourned to 2 November 2010 in the Federal Magistrates Court at Sydney.
12. That upon compliance by the first respondent with order 1 hereof, the listing on 2 November 2010 in the Federal Magistrates Court at Sydney be vacated.
13. The applicant’s costs of this application be reserved.
[1] This appears to be a typographical error, and what is meant is “First Respondent”
Notations
14. The court notes that applicant[2] intends to file a departure application from his child support assessment in the Family Court of Australia at Parramatta.
[2] This also appears to be a typographical error
The Applicant seeks the following orders set out in a document entitled “Proposed Minutes of Orders”:
Interim Payments
1. The First Respondent pay the amount of $1,000.00 by 7 November 2010 and continuing on the 7th day of each month.
Security
Real property
2. Until further order of the Court, the First Respondent is restrained from selling, assigning, transferring, encumbering or dealing in any way with his interest in the real property at Property K in the State of New South Wales, described in Certificate of Title Folio [omitted] (“the Property K property”), except for a purpose that includes paying his child support debt in full or without the prior written consent of the Applicant.
Motor vehicles
3. Until further order of the Court, the First Respondent is restrained from selling, assigning, transferring, encumbering or dealing in any way with his interest in the following motor vehicle, without the prior written consent of the Applicant:
3.1 the 2003 [vehicle omitted], registration [omitted]; and
3.2 the [vehicle omitted], registration [omitted], (“the motor vehicles”).
4. The First Respondent produce documents, in accordance with the summons to the Australian Government Solicitor by 12 noon on 19 October 2010.
5. The Applicant’s costs be reserved.
6. The summons filed on 26 August 2010 be adjourned until 2 November 2010.
AND THE COURT NOTES THAT
A. Any monies payable by the First Respondent pursuant to these orders are in addition to his ongoing liability to pay child support as assessed or varied from time to time.
Submissions
Counsel for the First Respondent submitted that his client did not care whether the enforcement proceedings stayed in this Court or were transferred to the Family Court. The child support debt had been reduced by $2,000.00, as a cheque for that amount had been handed over on that day.
The First Respondent offered a charge, but not over a specific asset or enforceable by a caveat. Mr Thomas, who appeared for the First Respondent, referred to the decision of the Full Court of the Family Court in M v DB[3] and submitted that there was no evidence that the First Respondent was involved in any scheme to minimise his capacity to pay child support.
[3] (2006) FLC 93-293
It was further submitted that the proposed Departure Application was yet to be drafted and filed. As to the Applicant’s wish for security,
Mr Thomas submitted that it was an abuse of power to seek security over all the First Respondent’s assets and one property would be sufficient.
Counsel for the Applicant Child Support Registrar, Mr Connor, in a written submission, noted that, for the purposes of these proceedings:
a)The First Respondent is the payer of child support;
b)The payee is Ms Singleton; and
c)The First Respondent is liable to pay child support in respect of two children, namely [X] (19 years – born [in] 1992) and [Y] (13 years born [in] 1998) of a liability, the start date of which was 3rd March 2006.
Mr Connor submitted that the issues before the Court were:
a)What the Court, charged with the hearing and determination of the Enforcement Summons, can or should do with the Enforcement Summons, having been informed by Counsel for the First Respondent that there are relatively complex property proceedings in the Parramatta Registry of the Family Court, to be fixed for hearing at some time in 2011, and having been further advised that it is the intention of the First Respondent to file and serve an Application for Departure which could have the effect, if successful, of reducing but not cancelling the First Respondent’s child support liability, which, at or around the time of filing of the Enforcement Summons, amounted to arrears of $38,944.21 and late payment penalties of about $6,717.04;
b)That is, whether the Enforcement Summons is able to be transferred and whether it should be transferred, to the Family Court of Australia to a hearing yet to be fixed in the Parramatta Registry of that Court, or whether it should remain before the Federal Magistrates Court;
c)If the Enforcement Summons is transferred to the Family Court, what is the jurisdiction or power of the Federal Magistrates Court:
i)to continue the injunctions or orders granted by this Court on 7th September 2010; and
ii)to make other appropriate orders pending the disposal of the Enforcement Summons and/or the property proceedings in the Family Court;
d)Other issues, including but not limited to:
i)whether the Enforcement Summons is an “associated matter” to an Application for Departure and/or property proceedings;
ii)whether the Departure Application is in fact going to be heard and determined by the Family Court at the time of the hearing of the property proceedings given the lateness of such proposed application and possible objections by other parties;
iii)whether the First Respondent may be able to “piggy back” the Application for Departure on the property proceedings subject to other considerations;
iv)whether leave would be granted pursuant to s.112 of the Child Support (Assessment) Act 1989, having regard to the fact that the First Respondent appeared to be seeking to depart from an assessment older than 18 months; and
v)Whether, by dint of the continued application of the old Rule 33, the Applicant Child Support Agency loses the benefit of provisions relating to enforcement.
Conclusions
Section 19 of the Federal Magistrates Act 1999 provides that proceedings must not be instituted in the Federal Magistrates Court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court or the Federal Court. The converse can be found in s.33A of the Family Law Act 1975. In each case, there are exceptions, being:
a)Proceedings for dissolution of marriage; and
b)Proceedings under Division 13A of Part VII of the Family Law Act 1975: or
c)Proceedings under Part XIII or XIIIA of the Family Law Act 1975.
In my view, those exceptions do not apply.
The phrase “associated matter” is usually given a fairly wide meaning.
Counsel for the Applicant drew the Court’s attention to the provisions of s.79(4)(g) of the Family Law Act 1975, which says:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 39 of the Federal Magistrates Act 1999 is relevant, in that it provides for discretionary transfer of proceedings from the Federal Magistrates Court to the Federal Court or the Family Court. Subsection 39(4) provides:
In deciding whether to transfer a proceeding to the Family Court under subsection (10, the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
The purpose of s.19 of the Federal Magistrates Act 1999 and s.33A of the Family Law Act 1975 is to avoid multiplicity of proceedings. There are already property proceedings between the First Respondent and his former wife about adjustment of their property interests pending in the Family Court. I am satisfied that proceedings for enforcement of a child support debt, involving an application for orders securing that debt over assets in the name of the First Respondent, and a Departure Application by the First Respondent in respect of child support concerning the children of the parties marriage, are associated matters for the purposes of s.19(1) of the Federal Magistrates Act 1999.
It follows that the proceedings before this Court should be transferred to the Family Court of Australia, Parramatta Registry, for consolidation with those proceedings. As counsel for the First Respondent has told the Court, the property proceedings are estimated to require five days to hear. The addition of child support matters would be likely to extend that time. The resources of the Federal Magistrates Court are insufficient to hear the combined property and child support proceedings.
Subsection 19(3) provides that:
If:
(a) proceedings are instituted in the Federal Magistrates Court in contravention of subsection (1); and
(b) the proceedings are subsequently transferred to the Federal Court or the Family Court:
the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.
In transferring a proceeding to the Family Court, the Federal Magistrates Court has the power under subsection 39(5) to make such orders as it considers necessary pending the disposal of the Federal Court or the Family Court, as the case requires.
It is appropriate to make interim orders to cover the situation until the Family Court is in a position to finalise the matters. There is no issue that the First Respondent should continue to pay the sum of $1,000.00 per month to the Child Support Registrar in reduction of the child support debt, in addition to the payments required in respect of his ongoing liability.
There should be some security in respect of the outstanding child support debt. I agree with the submission of counsel for the First Respondent that security over both the First Respondent’s real estate and motor vehicles is more than sufficient for a liability of $43,000.00 or less. I am of the view that security over the real estate in Property K would be sufficient, in the terms of the order proposed by the Applicant.
The parties’ costs will be reserved.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 4 October 2011
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