CHILD SUPPORT REGISTRAR & AUSTEN - [2012] FMCAfam 331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & AUSTEN

[2012] FMCAfam 331

CHILD SUPPORT – Enforcement – child support debt – application in a case – where application for determination filed after enforcement proceedings commenced – exercise of discretion.

COSTS – Whether a costs order should be made – considerations.

Child Support (Assessment) Act 1989, ss.98S, 112, 118
Child Support (Registration and Collection) Act 1988, s.116
Family Law Act 1975, s.117
Federal Magistrates Court Rules 2001, r.25B

Bagala & Bagala [2009] FMCAfam 953
Hendy v Deputy Child Support Registrar [2001] FamCA 632; (2001) 27 Fam LR 641

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR AUSTEN

File Number:

SYC 5417 of 2011

Judgment of:

Scarlett FM

Hearing date:

10 April 2012

Date of Last Submission:

10 April 2012

Delivered at:

Sydney

Delivered on:

15 May 2012

REPRESENTATION

Solicitor for the Applicant:

Mr Nguyen

Solicitors for the Applicant:

Australian Government Solicitor

Solicitor for the Respondent:

Mr Bye (appeared pro bono)

Solicitors for the Respondent:

BIC Legal

ORDERS

THE COURT DECLARES THAT

As at 10 April 2012 the Respondent owes the Applicant the sum of $13,563.71 (‘child support debt’) consisting of $10,984.90 in arrears of child support and $2,578.81 in late payment penalties.

THE COURT ORDERS THAT

The Respondent is to pay to the Applicant the child support debt of $13,563.71 within three (3) months of the date of these Orders.
The Respondent is to pay to the Applicant the sum of $2,250.00 toward the Applicant’s legal costs within six (6) months of the date of these Orders.
On or before 15 June 2012 the Respondent is to lodge with the Australian Taxation Office all outstanding personal income tax returns.
Until further order of the Court or payment in full of the total debt including costs the following provisions apply:
(a)The Respondent is restrained from selling, assigning, transferring, further encumbering or dealing in any way with his interest in the real property at Property T in the State of New South Wales described in Certificate of Title Folio [omitted] (‘real property’) without the prior written consent of the Applicant.
(b)The Respondent’s interest in the real property is to be charged in favour of the Applicant for the total debt and the Applicant is to be at liberty to lodge a caveat over the real property to secure the interest created by this charge.
(c)The Respondent is restrained from selling, assigning, transferring or dealing in any way with all shares in which he holds a legal or beneficial interest including but not limited to the shares held by the Respondent in [A] and [I] ([I]) (‘personal property’) without the prior written consent of the Applicant.
(d)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 to be at liberty to lodge an encumbrance over the personal property to secure the interest created by this charge.
If the Respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CHILD SUPPORT REGISTRAR & AUSTEN

Details

AGLC: CHILD SUPPORT REGISTRAR & AUSTEN [2012] FMCAfam 331
Case: [2012] FMCAfam 331
Decision Date: 15 May 2012

CaseChat Overview and Summary

The matter before the court involved an application by the Child Support Registrar for enforcement of a child support debt against the respondent, Austen. The Registrar sought to enforce a child support debt amounting to $13,563.71, including arrears and penalties, and requested an order for costs. The court was required to determine whether the Registrar could make a costs order and if so, what amount was appropriate. The Registrar also sought enforcement orders against the respondent's property to secure the debt.

The court considered the discretion available under the relevant legislation and case law to determine whether a costs order should be made. It assessed the nature of the application, the conduct of the parties, and the necessity and proportionality of the costs. The court found that the Registrar's application was reasonable and that the respondent's conduct warranted an order for costs. The court then determined the appropriate amount, considering the complexity of the case and the need to deter similar conduct in future.

The court granted the Registrar's application and ordered the respondent to pay the child support debt and legal costs. It restrained the respondent from dealing with specified property without consent and authorised the seizure and sale of the property if the respondent defaulted. The court also removed the application from the list of cases awaiting finalisation.

Orders

Orders of the court

THE COURT DECLARES THAT

As at 10 April 2012 the Respondent owes the Applicant the sum of $13,563.71 (‘child support debt’) consisting of $10,984.90 in arrears of child support and $2,578.81 in late payment penalties.

THE COURT ORDERS THAT

The Respondent is to pay to the Applicant the child support debt of $13,563.71 within three (3) months of the date of these Orders.

The Respondent is to pay to the Applicant the sum of $2,250.00 toward the Applicant’s legal costs within six (6) months of the date of these Orders.

On or before 15 June 2012 the Respondent is to lodge with the Australian Taxation Office all outstanding personal income tax returns.

Until further order of the Court or payment in full of the total debt including costs the following provisions apply:

(a) The Respondent is restrained from selling, assigning, transferring, further encumbering or dealing in any way with his interest in the real property at Property T in the State of New South Wales described in Certificate of Title Folio [omitted] (‘real property’) without the prior written consent of the Applicant.

(b) The Respondent’s interest in the real property is to be charged in favour of the Applicant for the total debt and the Applicant is to be at liberty to lodge a caveat over the real property to secure the interest created by this charge.

(c) The Respondent is restrained from selling, assigning, transferring or dealing in any way with all shares in which he holds a legal or beneficial interest including but not limited to the shares held by the Respondent in [A] and [I] ([I]) (‘personal property’) without the prior written consent of the Applicant.

(d) 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 to be 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 under these Orders or deals with any of the personal property or real property in breach of these Orders then the following Orders shall take effect:

(a) The total debt consisting of the child support debt and the legal costs shall be immediately due and payable.

(b) The Official Receiver, the Sheriff of the Federal Magistrates Court and their servants and agents shall be appointed as Enforcement Officers.

(c) As provided by rule 25B.11(a) of the Rules 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 the orders of this Court.

The Application is removed from the list of cases awaiting finalisation.

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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