Child Support Registrar and White
[2008] FMCAfam 547
•13 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & MR WHITE | [2008] FMCAfam 547 |
| CHILD SUPPORT – Enforcement – child support arrears – Enforcement Summons – respondent failing to attend court – application for enforcement orders in respondent’s absence – whether Federal Magistrates Court Rules 2001, r.13.01A, applies – whether powers under Federal Magistrates Court Rules 2001, Sch.5, O.33 r.3(9) can be exercised in respondent’s absence – oral application for enforcement orders – procedural fairness. |
| Federal Magistrates Court Rules 2001, rr.13.01A, Sch.5, O.33, 3(9) |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR WHITE |
| File number: | PAC 5440 of 2007 |
| Judgment of: | Halligan FM |
| Hearing date: | 13 March 2008 |
| Date of last submission: | 13 March 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 13 March 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Hawkins |
| Solicitors for the Respondent: | No Appearance |
ORDERS
Orders are made in accordance with the Minute of Order, exhibit C.
The applicant's solicitor shall lodge a typescript of exhibit C and the form of order with my associate within seven days.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & White is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5440 OF 2007
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR WHITE |
Respondent
REASONS FOR JUDGMENT
This is the second occasion an enforcement summons against the respondent has come before the Court The matter first came before the Court on 15 November 2007 when the respondent appeared in person. On that occasion orders were made adjourning the matter until today and, amongst other things, providing that the respondent was to provide to the applicant's solicitors copies of his tax returns by no later than 30 December 2007. The solicitor for the applicant advises that this order was not complied with by the respondent.
The orders of 15 November 2007 included provisions, being orders made by consent, which declared the amount of the arrears as at that date in relation to child support and late penalties totalling $37,876.65. The terms agreed to on that occasion also provided that the respondent was to pay to the Child Support Registrar the sum of $50 per fortnight until 30 December 2007 and thereafter $100 per fortnight until the adjourned date towards the arrears. The applicant's costs were reserved. It was noted that the $50 per fortnight and then $100 per fortnight was in addition to the respondent's ongoing liability. Again, the solicitor for the applicant advises the Court that the respondent has not met these payments.
There is no appearance by or on behalf of the respondent today and in those circumstances the applicant seeks orders in terms of a document which has been submitted to me and for identification purposes I have marked as exhibit C. It seeks to declare the current level of arrears in accordance with a certificate of arrears under s.116(2) of the Child Support (Registration and Collection) Act 1988 as at yesterday's date.
I have admitted that certificate in to evidence as exhibit A. The arrears comprise a child support debt of $39,939.63 and penalties of $5,658.48, a total of $45,598.11.
The applicant seeks an order that the respondent pay this sum together with costs, an application being made on the applicant’s behalf for costs assessed in the sum of $2,456.31, within two months. In default of that payment being made I am asked to make an order appointing the Official Receiver in Bankruptcy for New South Wales to seize and sell the respondent's interest in realty at Horsley on the south coast of New South Wales. I am satisfied by title searches that have been provided to me, including exhibit F, that the respondent is the registered proprietor of this property subject to a mortgage to the Commonwealth Bank.
There is no other evidence from the respondent upon which the Court can proceed in determining either the appropriateness of any particular enforcement order against the respondent or any means by which the respondent may make payment of the arrears, he not having appeared before the Court and not having cooperated in provision of information concerning his financial affairs.
The orders that I am asked to make are on an enforcement summons. The enforcement summons is a procedure that is available under the Federal Magistrates' Court Rules 2001, in particular r.25B.05 and the provisions of Order 33 of the now former Family Law Rules 1984, incorporated by reference and set out in Sch.5 to the Rules.
That procedure entails the issue of an enforcement summons, as in this case, and contemplates the attendance of the respondent to be examined in relation to his or her financial affairs prior to the applicant determining the most appropriate form of enforcement order that may be sought.
Under O.33 r.3 sub-r.(9), if a Court is satisfied that a person appearing before it, whether in person or represented by a lawyer, has failed to satisfy an obligation, the Court may make any of the orders or take any of the steps set out in the sub-rule.
A child support debt of the kind I am dealing with here, is included in the definition of obligation for this purpose (Sch.5, O. 33 r.2(a))
O.33 r.3 deals with summary procedures on failure to comply with an obligation. The particular procedure that has been adopted by the applicant in this case is the issue of an enforcement summons under sub-rr.(3) and (4). It is clearly that procedure that is recognised by
sub-r.(9)
It has been put to me in this and another matter of a similar kind before me today that despite the absence of the respondent the Court may nonetheless proceed to make an order of the kind set out in sub-r.(9) in the absence of the respondent. In support of that proposition reliance was placed upon the provisions of r.13.01A of the Federal Magistrates' Court Rules. This rule appears in ch.1, a chapter dealing with rules applicable to all proceedings in the Court. The rule provides, relevantly for current purposes:
If a party to a proceeding is absent from a hearing, including a first Court date, the Court may do one or more of the following:
…
(e) Proceed with the hearing generally or in relation to any claim for relief in the proceeding.
The proceeding constituted by an enforcement summons is an examination of a debtor under an obligation to which O.33 applies.
In my view there cannot be a hearing of the enforcement summons in the absence of the respondent, since the respondent is an integral part of the examination process and in fact it cannot happen in his or her absence.In any event, I am not satisfied there is any “claim for relief” within the meaning of r.13.01A under an enforcement summons. There is no claim for relief specifically made in the summons. The enforcement summons is a remedy designed to address the situation of a person entitled under an obligation which is not being met, particularly where they may have some difficulty in identifying the particular financial resources or assets of a person with a liability under the obligation.
It enables the person entitled under the obligation to seek satisfaction of the obligation by bringing the liable person before the Court, requiring him or her via the enforcement summons to bring various documents as may be specified in that summons to Court for inspection, and by cross-examining the liable person on oath or affirmation in relation to his or her financial circumstances.
It is in those circumstances that the wording of O.33 r.3(9) is to be understood and in my view makes sense. Where the best method of recovery of an obligation which is not met is less than clear because of uncertainty about the liable person’s financial circumstances, the framing of the orders cannot usefully occur until the end of the cross-examination under the enforcement summons, and that is clearly what the procedure under O.33 r.3(9) contemplates.
In my view, r.13.01A in its terms cannot apply to the enforcement summons procedure, because the hearing contemplated by the enforcement summons cannot proceed without the respondent, and there is no claim for any specific relief made in the enforcement summons. However, if I am wrong on that point, in my view the particular provisions of O.33 r.3 prevail over the general provisions of r.13.01A, and whether or not the Court has power to make orders under that rule falls to be determined on a construction of that rule.
The question then arises, can the procedure provided for under
O.33 r.3(9) be used where there is no appearance by or on behalf of the respondent? In my view it cannot. The prefatory words to sub-r.(9) in my view are clear and there are two parts to it. One is, satisfaction that the person has failed to satisfy an obligation. The other is, that the liable person appears before the Court either in person or is represented by a lawyer.If it was the intention of the Rules that in fact the Court could proceed to entertain an oral application under O.33 r.3(9) on an enforcement summons in the absence of the respondent or a representative for the respondent, in my view the rule would not have included the words
“appearing before it whether in person or represented by a lawyer”. The rule would merely have said, “If a Court is satisfied that a person has failed to satisfy an obligation, the Court may…”. I cannot ignore the words of the rule. In my view those words must be given effect.
I construe the rule to mean that, where the respondent does not appear on the enforcement summons, then orders cannot be made under that particular rule.
The position is a little less clear in a situation such as this, where the matter has been before the Court twice. On one occasion the respondent appeared. Today, the second occasion, the respondent has not appeared. It may be open to argue that the prefatory phrase in
sub-r.(9) may not be appropriately limited to the occasion when the Court is actually asked to make the order, but that particular point has not been ventilated before me and I take it no further. I leave it as a moot point.
Where the respondent does not attend court on an enforcement summons, the applicant may nonetheless seek enforcement orders by way of an oral application. In seeking to proceed in this fashion, the applicant must demonstrate procedural fairness has been afforded to the respondent.
In this particular case the respondent clearly knows that the applicant is seeking to recover the money owed from the respondent.
The respondent appeared on the first occasion at Court. The respondent undertook to make payments in reduction of the arrears and acknowledged the amount of the arrears. The respondent then clearly knew that this matter was one in relation to enforcement.
Further, the respondent knew from the enforcement summons that one of things that might happen on an enforcement summons was the type of order that I am now asked to make, namely, an order that in default of payment of the amount of money within a specified period of time that his interest in realty be seized and sold in satisfaction of the debt. That much is stated on the face of the enforcement summons.
Further, I am satisfied that the solicitor for the applicant, prior to the first return date, in correspondence to the respondent indicated an intention to seek an order if the matter was not otherwise compromised including a provision that in default of payment of the arrears within an appropriate period specified realty be sold in satisfaction of the debt.
Further, I am satisfied that when the matter was before the Court in November, the first date at Court, there was discussion between the solicitor for the applicant and the respondent in which the solicitor for the applicant went through with the respondent the provisions of the order entailing a possible sale of his realty.
In those circumstances, in my view, it would not be a denial of procedural fairness to the respondent to permit an oral application to be made at this point of the proceedings for orders in terms of exhibit C. As I say, the respondent is fully aware of the arrears, perhaps not of the precise current amount of them as at today, but acknowledged the substantial part of those arrears on the first Court date.
The respondent acknowledged an obligation to pay by consenting to orders that he would in fact make periodic payments in reduction of the arrears, payments he has failed to make. I am satisfied that the respondent was aware that the applicant, absent a satisfactory agreement with the respondent, would be seeking orders of the kind now pressed.
The respondent knew that the matter was listed today, as he was at Court when the adjournment was made until today. In those circumstances, I repeat, I am satisfied there can be denial of procedural fairness to the respondent in my proceeding to deal with the application in his absence.
I am otherwise satisfied as to the amount of the arrears, that the respondent is unlikely to pay voluntarily, in fact has not paid despite an order that he make payments in reduction of the arrears, that he has an interest in realty, that there is no evidence of any other property or resources against which recovery might be levied, and that it is appropriate to make the enforcement order sought.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 4 June 2008
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