Child Support Registrar and Thurber
[2013] FCCA 417
•30 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & THURBER | [2013] FCCA 417 |
| Catchwords: CHILD SUPPORT – Enforcement – child support debt – non-agency payments – prescribed non agency payments. COSTS – Order for costs – Respondent wholly unsuccessful. |
| Legislation: Family Law Act 1975 (Cth) s.117 Federal Circuit Court Rules 2001 r.25B.11 |
| Hacherl & Berrios [2010] FMCAfam 668 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR THURBER |
| File Number: | SYC 5104 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 14 May 2013 |
| Date of Last Submission: | 14 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | Damian Gordon (until 5 February 2013) |
ORDERS
THE COURT DECLARES THAT
As at 14 May 2013 the Respondent owes the Applicant the sum of $44,575.56 (child support debt) consisting of $32,465.92 in arrears of child support and $12,109.64 in late payment penalties.
ORDERS
The Respondent is to pay to the Applicant the child support debt of $44,575.56.
The Respondent is to pay the Applicant’s costs fixed in the sum of $3,545.40.
The Respondent is to pay the sum of $48,120.96 (total debt) comprising the child support debt as declared above and the Applicant’s costs within six (6) months 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 hereby restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the real property situate and known as Property C in the State of New South Wales more particularly described in Certificate of Title Folio Identifier [omitted] without the prior written consent of the Applicant.
(b)The Respondent’s interest in the said real property is to be charged in favour of the Applicant for the total debt and the Applicant is at liberty to lodge a caveat over the said real property to secure the interest created by this charge.
(c)The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with his interest in his personal property, including but not limited to:
(i)A 2005 Holden Rodeo motor vehicle registration number [omitted]; and
(ii)A 2009 Isuzu D-Max Utility registration number [omitted].
(iii)The Respondent’s interest in his personal property is to be charged in favour of the Applicant for the total debt and the Applicant is at liberty to lodge an encumbrance over the said personal property to secure the interest created by this charge.
If the Respondent defaults in making any payments under these Orders or deals with any of the personal property or real property in breach of these orders the following Orders will take effect:
(a)The total debt will be immediately due and payable;
(b)The Official Receiver, the Sheriff of the Federal Circuit Court, and their servants and agents shall be appointed as Enforcement Officers;
(c)As provided by rule 25B.11(a) an Enforcement Officer shall seize and sell under an Enforcement Warrant such of the Respondent’s real property and personal property, not being prescribed personal property, as the Enforcement Officer may consider sufficient to meet the reasonable costs of the Enforcement Officer and to discharge in full all amounts owed by the Respondent under these Orders.
AND THE COURT NOTES THAT
A. Any monies payable by the Respondent as required by 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 & Thurber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5104 of 2012
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR THURBER |
Respondent
REASONS FOR JUDGMENT
Application
The Child Support Registrar has applied to enforce the payment of a child support debt totalling $44,575.56, made up of arrears of child support of $32,465.92 and late payment penalties of $12,109.64.
The Child Support Registrar also seeks an order for costs in the sum of $3,545.40.
The child support liability claimed is in respect of two children from two different relationships:
a)[X], who was born [in] 1998; and
b)[Y], who was born [in] 2010.
Orders sought
The Child Support Registrar seeks orders that:
a)The Respondent should pay the child support debt, including late payment penalties, and costs within 90 days;
b)The Respondent should lodge with the Australian Taxation Office his outstanding personal income tax returns for the financial years ending 30 June 2006 to 30 June 2012; and
c)The Respondent should be restrained from assigning, encumbering or disposing with his interest in certain real property in [C], New South Wales;
d)The Respondent should be restrained from assigning, encumbering or disposing of a motor cycle, a Holden Rodeo motor vehicle and an Isuzu utility vehicle;
e)The Respondent’s interest in the real estate should be secured by a caveat over the title; and
f)The Respondent’s interest in the motor vehicles should be charged in favour of the Child Support Registrar and an encumbrance may be lodged to secure the charge.
Background
The Child Support Registrar commenced proceedings by filing an Application in a Case and a supporting affidavit on 28 August 2012. The Application was returnable on 9 October 2012.
After some difficulty was experienced in serving the Respondent, the Child Support Registrar mentioned the matter by consent on 13 November 2012. Mr Damian Gordon, solicitor of Brisbane, filed a Notice of Address for Service on behalf of the Respondent. Interim Orders were made by consent, providing that:
a)The Application would be adjourned to 12 February 2013 for further mention;
b)The Respondent was to file and serve a Response, and affidavit and a Financial Statement by 11 December 2012;
c)The Respondent was to provide evidence of any non-agency payments by 11 December 2012;
d)The Applicant Child Support Registrar was given leave to file an affidavit in response by 8 January 2013;
e)The Respondent was to make payments towards the child support debt as follows:
i)$1,000.00 by 11 December 2012; and
ii)$2,000.00 by 11 January 2013; and
f)The Respondent was restrained from selling or otherwise dealing with the real estate at [C] and the motor vehicles.
On 5 February 2013 the Respondent filed a Notice of Address for service, giving a postal address in Queensland. He filed an affidavit on 6 February 2013.
The Respondent attended Court by telephone on 11 February, when the Application was listed for final hearing to take place on 14 May 2013.
The Respondent subsequently filed a Financial Statement on 30 April. He attended Court in person on 14 May 2013 for the final hearing.
Evidence and Submissions
The Child Support Registrar relied on the following documents:
a)The affidavit of Ms G of 27 august 2012;
b)The supplementary affidavit of Ms G of 7 May 2013;
c)A certificate under sub-section 116(2) of the Child Support (Registration and Collection) Act 1988 dated 14 May 2013;
d)A Child Support Payer Transaction Statement issued 14 May 2013;
e)Proposed Minutes of Order; and
f)A copy of a letter to the Respondent dated 10 May 2013, showing a recalculation of the amount of child support for the child [X].
The deponent, a Litigation Officer in the Department of Human Services, was not required for cross-examination.
The Respondent relied on the following:
a)His affidavit of 6 February 2013; and
b)His Financial Statement 30 April 2013.
The Respondent was not required for cross-examination.
It is the Child Support Registrar’s evidence that the Respondent’s child support liability for the child [X] commenced on [omitted] 1998, the date of her birth, and was registered for collection on that same date.
The child support liability for the child [Y] commenced on 8 June 2011 and was registered for collection on that date.
The Certificate under s.116(2) shows that an amount of $44,575.56 was due and payable by the Respondent on 14 May 2013, made up as follows:
a)Child support debt $32,465.92; and
b)Penalties $12,109.64.
The Child Support Payer Transaction Statement tendered in evidence covers the period 31 January 1998, when the Respondent had a nil balance, to 14 May 2013. Total debits over the period amount to $69,250.47 and total credits over the period amount to $24,405.71.
The letter dated 10 May 2013 from the Child Support Registrar shows that the Respondent’s income was adjusted as a result of the Respondent having submitted his income tax return for the 2011-2012 tax year. As a result, his child support liability for the periods 1 august 2012 to 13 February 2013 and 14 February 2013 to 31 October 2013 was recalculated from $428.83 per month for each period down to $105.75 per month for each period. Those adjustments are reflected in the Child Support Payer Transaction Statement tendered in evidence. The final page of the Payer Transaction Statement shows three credits being entered as a result of the changes on 10 May 2013, in the amounts of $2,907.72, $327.66 and $655.32. The change to the amount of child support led to a remission of a penalty for an amount overdue on 13 May 2013 in the sum of $120.48.
In his affidavit of 6 February 2013, the Respondent deposed that he contacted the mother of the child [X] in 2009 and first met the child in company with her mother in July 2009. He spent time with the child on a number of occasions but the relationship seems to have become distant.
The Respondent deposed that early in 2010 he decided to make contributions towards the child’s support, as he had accepted that [X] was in fact his daughter, notwithstanding the fact that his name had not been entered on the child’s birth certificate. He deposed that he provided money direct to the mother and agreed that he would pay the child’s school fees at a Catholic School in country New South Wales.
The Respondent sets out in his affidavit details of the payments he has made:
13. $350 for the month of February 2010 (Child Support)
14. $700 for the month of March and April 2010 (Child Support)
15. $350 for the month of May 2010 (Child Support)
16. $700.00 for the month of May (School Fees)
17. $1486.00 for the month of August 2011 (School Fees)
18. $1486.00 for the month of October 2011 (School Fees)
19. $3,424.00 for the month of January 2013 (School Fees).[1]
[1] Affidavit of Mr Thurber 6.2.2013 at paragraphs [13]-[19]
The Respondent attached to his affidavit copies of Internet Online Banking and Debit Card Purchase showing the payments that he claims.
The Respondent also set out in his affidavit matters concerning his son [Y]. He concedes that he is the child’s father.
The Respondent deposed that [Y]’s mother left the parties’ home with the child on 3 September 2010, apparently without leaving a forwarding address. He commenced legal proceedings seeking first of all a location order and then a recovery order. Litigation is continuing.
The Respondent describes the steps he has taken to pay child support to the child’s mother, a Ms W:
34. 3rd July 2011 text message to Ms W asking if [Y] required anything, she was also told she could keep the clothes [Y] was returned to her care in.
35. 17th July 2011 another text message was sent to Ms W saying that I was concerned about [Y]’s health and hygiene and that if she couldn’t afford washing powder and clothes for him to let me know and I am happy to help out with his needs. If she required anything for him to please let me know.
36. Letter dated 25th October 2011 “I have offered your client help in providing my son new clothes, washing powder or any other requirements she needs.
37. I had to pay $700 towards relocating the child’s belongings and the flights for the child to return to the Gold Coast.
38. On the 15th April 2011 an amount of $251.00 was transferred to Ms W nominated bank account (Bank statements attached) for the cost of the flight to have my son returned to the Gold Coast.
39. On the 20th April 2011 an amount of $700.00 was transferred to Ms W’s nominated bank account for the Removal cost to relocate [Y]’s belongings.
40. Ms W claims that I have not contributed to [Y]’s maintenance whilst in her care; however a number of offers have been presented to Ms W offering assistance, these offers have never been taken up.
41. To dater I have incurred cost over $56,000.00 in legal fees and losses of income, enabling me to spend time with my son.
42. I have attached Bank statements outlaying charges (attachment 4).
43. An email was sent to Ms W on 26 November 2012 (attachment 5) offering payments for Child support.
44. Ms W did not accept the proposal.[2]
[2] Affidavit of Mr Thurber 6.2.2013 at [34]-[44]
The Supplementary affidavit of Ms G sets out the results of her investigations of the matters raised by the Respondent in his affidavit.
As to the Respondent’s claims of having made payments to Ms W on 15, 20 and 21 April 2011, Ms G deposed that on 22 February 2013 she had a telephone conversation with Ms W, who “did not agree that there was a mutual intention that the payments be in complete or partial satisfaction of an amount payable for child support for [Y]”.[3]
[3] Affidavit of Ms G 7.5.2013 at [7]
On 25 March 2013, the Child Support Registrar made a Non Agency Payment Decision in respect of the following payments claimed by the Respondent:
a)15 April 2011 – payment for flights $250.00
b)20 April 2011 – payment for relocation of belongings $700.00
c)21 April 2011 – payment for flights $208.00.
All of those payments were disallowed as non agency payments for the reason “no mutual intention”.[4]
[4] Ibid Annexure “B”
Ms G deposed that she had made inquiries about the seven payments claimed by the Respondent to have been made as non agency payments for the child [X] between February 2010 and January 2013, as set out in paragraphs 13 to 19 of the Respondent’s affidavit.
The following payments claimed by the Respondent were disallowed as non agency payments as they had already been credited against the Respondent’s child support liability in 2010 and 2011:
a)$350.00 on 18 February 2010;
b)$700.00 on 31 March 2010;
c)$350.00 on 5 May 2010;
d)$700.00 on 12 May 2010.
Ms G then set out in her affidavit how she had made inquiries of [X]’s mother about the payments claimed by the Respondent as payments for the child’s school fees in the following amounts:
a)$1,486.00 on 12 August 2011;
b)$1,486.00 on 7 October 2011; and
c)$3,424.00 on 4 February 2013.
Ms G deposed that on 21 February and 7 March 2013 she had telephone conversations about those payments with [X]’s mother, who “did not agree that there was a mutual intention that the payments made for school fees be in lieu of child support for [X]…”[5]
[5] Supplementary Affidavit of Ms G 7.5.2013 at [11]
Whilst the payments were not accepted as non agency payments under s.71 of the Child Support (Registration and Collection) Act, because of the lack of mutual intention, they were accepted as Prescribed Non Agency Payments (PNAPs) under s.71C of the Act.
Ms G advised the Respondent of this decision in her letter of 25 March 2013:
The payments made for child [X][6]…on 7 October 2011, 12 August 2011 and 4 February 2013 have been credit[7] to your case as Prescribed Non Agency Payments (PNAP). This means you now have a PNAP credit of $6,396.00 sitting on your account that can be potentially applied on an ongoing basis against your monthly child support liability if you meet the grounds for doing so.
Therefore, in any month in which you pay 70% of your liability on time, the remained of the liability will be paid from your PNAP credit account until this credit is used up…
Your current monthly liability in your case with ([X]’s mother) is $428.83. The monthly amount you may (have) to pay in the future may change.[8] However, while it is $428.83 if you pay 70% of this amount, being $300.19, each month by the 7th day of the month, then we can credit $128.64 from your PNAP towards your monthly liability.[9]
[6] The child’s surname has not been published
[7] sic
[8] There is evidence that the amount has changed. The letter dated 10 May 2013 tendered in evidence shows that the monthly amount payable has been varied downwards from $428.83 per month to $105.75 per month with effect from 1 August 2012, based on the Respondent’s 2011-2012 income tax assessment.
[9] Supplementary Affidavit of Ms G 7.5.2013 Annexure “A”
The Respondent told the Court that he had in fact lodged his income tax returns for the income tax years from 2008 to 2012 and he believed that they had been lodged. Ms Taah, who appeared for the Child Support Registrar, conceded that this was so.
The Respondent took exception to the fact that the Child Support Registrar had not specifically told him that [X] was his daughter, without explaining why that was relevant. He also said that he and [X]’s mother had verbally agreed that he would pay her $350.00 per week.
He further said that he had engaged in a long drawn out legal battle to spend time with his son [Y] and had expended approximately $60,000.00 in legal costs. He conceded that he had not been making payments for the support of the child.
The Respondent told the Court, without explaining why, that he did not believe that children benefited from having child support paid through the Child Support Agency.
The Respondent set out at paragraphs [23] to [25] of his affidavit, under the heading “Summary” matters that he considered should be taken into account in respect of his child support liability for [X]. He further set out at paragraphs [45] to [47], also under the heading “Summary”, matters that he considered should be taken into account in respect of his child support liability for [Y].
The Respondent also told the court that the motor cycle over which the Child Support Registrar sought to place an encumbrance was not in fact his, but his father’s.
He also set out his expenses and liabilities, as follows:
a)$25,000.00 personal loans
b)$36,000.00 ATO
c)$849.00 monthly repayments – D-Max utility
d)$2,500.00 monthly repayments – lease real property.
e)$3,000.00 monthly living expenses.
The Summary at paragraphs [23] to [25] of the Respondent’s affidavit will be considered as a submission. He states:
23. I wish to continue the financial support throughout [X]’s schooling, and contribute towards any Medical needs or costs she requires.
24. I will be providing a Trust Account for [X] in the future, another goal I wish to achieve, enabling [X] a head start for ones future.
25. I have only know of my daughter and had contact with her for three short years, I feel I have (adequately) provide the financial support that is required of me, given the circumstances and that the Fathers name does not register on the Birth certificate.[10]
[10] Affidavit of Mr Thurber 6.2.2013 [23]-[25]
The Summary at paragraphs [45] to [47] of the Respondent’s affidavit will also be considered as a submission. He states:
45. I wish to provide financial contributions for [Y], as my previous proposal (attachment 5).
46. I do not wish in dealing with CSA as one can appreciate my past experience.
A) Receiving abusive phone calls demanding payments.
B) Assessment of income on historical tax returns.
C) Threats of a caveat over my fathers property which was left in my name after the separation of my Mother and Father.
D) Securing personal property of my Fathers, not mine.
47. Evidence of all the above can be produced upon request.[11]
[11] Affidavit of Mr Thurber 6.2.2013 [45]-[47]
The Respondent did not produce any of the evidence referred to in paragraph [47] of his affidavit.
Conclusions
The action against the Respondent by the Child Support Registrar stems from two separate administrative assessments of child support, in respect of two children from two different relationships. The Respondent has not objected to the Registrar’s decision to accept the applications by the mothers of the two children for administrative assessment of child support under s.30 of the Child Support (Assessment) Act 1989 (Cth).
It will not avail the Respondent to complain that his name does not appear on [X]’s birth certificate or that the Registrar has not specifically told him that he is [X]’s father. Had he doubted that he should pay child support for [X], he could have made an application under s.107 of the Child Support (Assessment) Act for a declaration that he should not be assessed in respect of the costs of the child because he is not a parent of the child. He did not do so.
The duty of parents to maintain their children is set out in s.3 of the Child Support (Assessment) Act, which provides:
(1) The parents of a child have the primary duty to maintain the child.
(2) Without limiting subsection (1), the duty of a parent to maintain a child:
(a) is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i) himself or herself; and
(i) any other child or another person has a duty to maintain; and
(c) is not affected by:
(i) the duty of any other person to maintain the child; or
(ii) any entitlement of the child or another person to an income tested pension, allowance or benefit.
The child support assessments in respect of the children [X] and [Y] have each been registered for collection by the Registrar and thus, under s.30 of the Child Support (Registration and Collection) Act, are debts due to the Commonwealth.
The Respondent seems to be unable or unwilling to accept that the child support payable in respect of each child is to be paid to the Child Support Registrar and not to the payee direct. The Respondent’s submission that he does not wish to deal with the Child Support Agency, as se tout in paragraph [46] of his affidavit, is misconceived.
It is not optional. The Respondent cannot “opt out” of the collection scheme because he does not like dealing with the Child Support Registrar. If he chooses to make payments directly to the payee he cannot expect to be given credit against his child support liability unless:
a)the payee agrees that the payment should be regarded as a non agency payment under s.71 of the Child Support (Registration and Collection) Act; or
b)the payment is of a type that is regarded as a prescribed non agency payment under s.71C of the Act.
The Registrar has tendered a Certificate under the provisions of s.116(2) of the Child Support (Registration and Collection) Act stating that as at 14 May 2013 the amount of $44,575.56 is due and payable in relation to a registrable maintenance liability under ss.30 and 67 of the Act. The mere production of such a certificate in accordance with s.116(2) is prima facie evidence that the Respondent owes the amounts specified in the certificate.
In respect of his liability under assessment relating to [X], the Respondent claimed that he made two payments of $350.00 and two payments of $700.00 directly to the payee, [X]’s mother.
Annexures “D” and “E” are copies of letters dated 21 March 2011 and 24 February 2010 advising the Respondent that non agency payments had been credited against his child support liability for [X].
The letter of 21 March 2011 advises the Respondent that payments totalling $2,300.00 were credited against his liability for [X]. That total credit is reflected as “Private Payment Credited” on 21 March 2011 in the Child Support Payer Transaction Statement.
Similarly, the letter of 24 February 2010 advises the Respondent that a payment of $350.00 on 19 February 2010 and two payments of private school fees, each of $108.00, on 28 January and 11 February 2010, were credited as non agency payments. Those amounts total $566.00 and a this amount is reflected as “Private Payment Credited” on 24 February 2010 in the Child Support Payer Transaction Statement.
A letter to the Respondent dated 19 April 2010 advises him of a general payment of $700.00 on 31 March 2010 being credited against his child support liability for [X]. This payment is also reflected in the Child Support Payer Transaction Statement on 19 April 2010.
The Respondent asserted in his affidavit that he had made four payments totalling $2,100.00 either directly to the payee or on the child’s behalf between February 2010 and May 2011. The evidence is that he was in fact credited with payments totalling $3,566.00 between 24 February 2010 and 21 March 2011, significantly more than he has claimed.
The two payments of $1,486.00 and one payment of $3,424.00 paid by the Respondent directly to [X]’s school were not allowed as non agency payments because the child’s mother did not agree that there was a mutual intention that the payments would be in complete or partial satisfaction of the Respondent’s child support liability.
However, because the Respondent had been able to provide evidence of payments directly to the child’s school, these payments were credited as prescribed non agency payments.
I am satisfied that the Respondent has received the appropriate credit for the payments he has made in respect of [X].
As to the Respondent’s liability for child support for [Y], he claimed amounts for flights on two occasions in April 2011 and $700.00 as a payment for relocation of the child’s belongings. These were not accepted as non agency payments because the payee did not agree that those amounts should be set off against the Respondent’s child support liability.
The Respondent concedes that he has not otherwise made child support payments for his liability for [Y]. It is not at all relevant that the Respondent claims to have paid $56,000.00 or $60,000.00 in legal costs in respect of his parenting litigation against [Y]’s mother. That does not in way meet the Respondent’s child support obligation.
Nor, too, does it meet a child support obligation to make offers of washing powder to the mother, or to offer that she can keep the clothes that the child has been wearing.
The Respondent complains at paragraph [40] of his affidavit that:
Ms W claims that I have not contributed to [Y]’s maintenance whilst in her care; however a number of offers have been presented to Ms W offering assistance, these offers have never been taken up.[12]
[12] Affidavit of Mr Thurber 6.2.2013 at [40]
The fact is that on his own evidence, the Respondent has not paid child support for his son. He has not, as the child mother has complained, contributed to [Y]’s maintenance whilst in the mother’s care.
Offers of clothes and washing powder, or vague offers of assistance in the future should it be required, do not come near meeting a parent’s primary duty to support his child, as set out in s.3 of the Child Support (Assessment) Act.
If a person obliged to pay child support which is being collected by the Child Support Registrar wishes to establish that he or she is entitled to a credit for a payment either directly to the payee, a “non agency payment”, it is necessary to show that the payment complies with the requirements of s.71 of the Child Support (Registration and Collection) Act, which provides:
71. Subject to section71D, if:
(a) the payee of an enforceable maintenance liability receives from the payer an amount intended by both the payer and the payee[13] to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period; and
(b) the payer or the payee applies to the Registrar to have the amount received by the payee treated as having been paid to the Registrar;
the Registrar shall, in spite of section 30, credit the amount received by the payee against the amount payable under the enforceable maintenance liability.
[13] Emphasis added
It is clear that both parties must intend that the payment should be regarded as child support. It is not sufficient for the payer to make a payment and ask that it be treated as child support, unless the other party agrees.
Without a mutual intention, a payment directly to the payee instead of to the Registrar will not be classified as a non agency payment and credited against the payer’s child support liability.
A prescribed non agency payment is one where a payment is made not to the Registrar but for the benefit of the child under certain circumstances prescribed by regulation 5D of the Child Support (Regulation and Collection) Regulations 1988. As will be seen from a reading of s.71C(1), such a payment does not act as a complete credit, but only as to 30% of the ongoing liability:
(1) If:
(a) the payer of an enforceable maintenance liability in relation to a payment period or initial period has made one or more payments to the payee of the liability, or to another person; and
(b) the payment is a payment of the kind specified in the regulations: and
(c) the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and
(d) the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment applies:
then the Registrar must, despite section 30, credit the excess amount mentioned in paragraph (c) against the amount payable under the payer’s liability for the period, up to a maximum of 30% of the amount payable.
The payments specified in the regulations are clearly payments for the benefit of the child or for the carer of the child. Regulation 5D provides that:
For paragraph 71C(1)(b) of the Act, specified payments are payments of the following kinds:
(a) child care costs for the child who is the subject of the enforceable maintenance liability;
(b) fees charged by a school or pre-school for that kind;
(ba) amounts payable for uniforms and books prescribed by a school or pre-school for that child;
(c) fees for essential medical and dental services for that child;
(d) the payee’s share of amounts payable for rent or a security bond for the payee’s home;
(e) the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;
(f) the payee’s share of repayments on a loan that financed the payee’s home;
(g) costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.
Thus, where a person has a prescribed non agency payment credit, what that person must is continue to meet the ongoing child support payments so as to offset 30% of each payment against the PNAP credit.
I am satisfied that the Respondent has been given the appropriate non agency payment and prescribed non agency payment credit and that all payments he has made have been correctly dealt with by the Registrar.
The Respondent has complained at paragraph [46](b) of his affidavit that his income has been assessed on “historical tax returns”. If by this he means that his income was assessed on the basis of an income tax return he submitted prior to 2008, he has only himself to blame. It is a fact that the Respondent himself told the Court that he had submitted his income tax returns for the tax years ending 2008 to 2012 only about a week or so before the hearing. Parties cannot be allowed to rely upon their own dilatory behaviour in not lodging their income tax returns when required (see Hacherl & Berrios[14]).
[14] [2010] FMCAfam 668 at [41] per Roberts FM
The Respondent takes offence at [46](c) and (d) of his affidavit at the Child Support Registrar’s:
C) Threats of a caveat over my Fathers property which was left in my name after the separation of my Mother and Father.
D) Securing personal property of my Fathers, not mine.[15]
[15] Affidavit of Mr Thurber 6.2.2013 at [46]
The Respondent claimed at paragraph [47] of his affidavit that:
Evidence of all the above can be produced upon request.
However, he produced no evidence in support of these assertions at the hearing. In my view, the failure of the Respondent to produce this evidence without explanation leads to the inference under Jones v Dunkel[16] that such evidence would not have assisted his case any further.
[16] (1959) 101 CLR 298
The affidavit of Ms G of 27 August 2012 shows that searches that she conducted or caused to be conducted revealed that:
a)the title to the land in [C] stands in the names of Mr T and the Respondent as tenants in common, with the Respondent having a one quarter share;[17]
b)the Respondent is the registered owner of:
i)Hellbound motor cycle registered no. [omitted];
ii)Holden Rodeo light commercial vehicle registered no. [omitted];
iii)Isuzu D-Max light commercial or van registered no. [omitted];
iv)Kenworth truck registered no. [omitted]; and
v)Heavy trailer [omitted].[18]
[17] Affidavit of Ms G 27.8.2012 at [16], Annexure “E”
[18] Ibid at [21], Annexure “H”
If the Respondent sought to claim that he did not have an interest in those vehicles or that he did not have a beneficial interest in the real estate, it was incumbent upon him to adduce that evidence. He did not.
I am satisfied that there is evidence that the Respondent has assets sufficient to meet the amounts claimed.
The Child Support Registrar seeks an order for costs. It appears clear that, applying the provisions of s.117(2A) of the Family Law Act 1975 (Cth), that:
a)The Respondent is not impecunious;
b)Neither party is in receipt of a grant of legal aid; and
c)The Respondent has been wholly unsuccessful.
This is an appropriate case for an order to be made that the Respondent should pay an amount towards the Registrar’s costs. The amount sought is $3,545.40 which appears to be an appropriate amount.
I propose to make the Orders sought in the Registrar’s Proposed Minutes of Orders, except for the order that the Respondent lodge his income tax returns for the financial years ending 30 June 2008 to 30 June 2012 with the Australian Taxation Office. It appears that he has now done that, albeit only very recently and months after the proceedings against him were commenced.
It also seems to be of little use to place an encumbrance over the motor cycle.
I will take into account the Respondent’s evidence as to his liabilities and allow some time to pay.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 30 May 2013
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Charge
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Injunction
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Costs
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Breach
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