CHILD SUPPORT REGISTRAR & BANCROFT - [2016] FCCA 2053

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & BANCROFT

[2016] FCCA 2053

Catchwords:
CHILD SUPPORT – Enforcement – Child Support Debt – Application to enforce arrears of child support – child support agreement – where Respondent claims agreement signed under duress – where original hard copy of agreement could not be located – where no application made to set aside agreement.

COSTS – Application for costs – where Respondent wholly unsuccessful.

Legislation:

Child Support (Assessment) Act 1989 (Cth) s.136

Child Support (Registration and Collection) Act 1988 (Cth) ss.105, 116

Family Law Act 1975 (Cth) s.117
Federal Circuit Court Rules 2001 Part 2, Sch.1

Cases cited:
Child Support Registrar & Kanavos (2011) 44 Fam LR 422; [2010] FamCAFC 244
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123; [2005] FamCA 158
Hendy v Deputy Child Support Registrar (2001) 164 FLR 236; 27 Fam LR 641; [2001] FamCA 632
Laurie & Child Support Registrar [2009] FamCAFC 183
Penfold v Penfold (1980) 144 CLR 322
Penman & Child Support Registrar & Anor [2013] FCCA 632

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR BANCROFT

File Number:

SYC 2338 of 2014

Judgment of:

Judge Scarlett

Hearing dates:

11 November & 9 December 2014

Date of Last Submission:

9 December 2014

Delivered at:

Sydney

Orders pronounced:

24 June 2015

Delivered on:

13 July 2016

REPRESENTATION

Solicitor for the Applicant:

Ms Fusitu'a

Solicitors for the Applicant:

Australian Government Solicitor

Respondent:

In person

DECLARATION

As at 9 December 2014 the Respondent owes the Applicant Child Support Registrar the sum of $25,171.90 (hereinafter referred to as the child support debt) consisting of $22,061.41 in arrears of child support and $3,110.49 on late payment penalties.

ORDERS

The Respondent is to pay to the Applicant the child support debt of $25,171.90.
The Respondent is to pay to the Applicant the Applicant’s legal costs fixed in the sum of $6,036.00.
The Respondent is to pay to the Applicant the sum of $31,207.90 (hereinafter referred to as the total debt) comprising the child support debt as set out in Order 1 above and the Applicant’s legal costs within three (3) months of the date of these Orders.
Until further Order of the Court or payment in full of the total debt the following will 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 N in the State of New South Wales, being the whole of the land in Certificate of Title Folio (omitted) (hereinafter referred to as the 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 at liberty to lodge a caveat over the title to the real property to secure the interest created by this charge.
If the Respondent defaults in making any of the…

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 & BANCROFT

Details

AGLC: CHILD SUPPORT REGISTRAR & BANCROFT [2016] FCCA 2053
Case: [2016] FCCA 2053
Decision Date: 13 July 2016

CaseChat Overview and Summary

The Child Support Registrar, as applicant, sought to enforce a child support debt against the respondent, Mr. Bancroft. The dispute concerned arrears of child support, with the respondent claiming the relevant child support agreement was signed under duress. The original hard copy of the agreement could not be located, and no application had been made to set aside the agreement. The matter came before Judge Scarlett.

The court was required to determine whether the child support debt was enforceable, particularly in light of the respondent's claim of duress and the absence of the original agreement. Additionally, the court considered an application for costs made by the applicant.

Judge Scarlett reasoned that the respondent's claim of duress was not a defence to the enforcement of the debt, especially as no application had been made to set aside the agreement. The court found the respondent to be wholly unsuccessful in his defence.

The court ordered the respondent to pay the child support debt of $25,171.90 and the applicant's legal costs fixed at $6,036.00, totalling $31,207.90. This total debt was to be paid within three months. Until payment or further order, the respondent was restrained from dealing with his interest in a specified property in New South Wales, and his interest in that property was charged in favour of the applicant to secure the total debt. The applicant was at liberty to lodge a caveat over the property. The court noted that these payments were in addition to ongoing child support liabilities and that default in payment or breach of the property orders would render the total debt immediately due and payable, with the applicant at liberty to enforce the debt under the Federal Circuit Court Rules 2001.

Orders

Orders of the court

The Respondent is to pay to the Applicant the child support debt of $25,171.90.

The Respondent is to pay to the Applicant the Applicant’s legal costs fixed in the sum of $6,036.00.

The Respondent is to pay to the Applicant the sum of $31,207.90 (hereinafter referred to as the total debt) comprising the child support debt as set out in Order 1 above and the Applicant’s legal costs within three (3) months of the date of these Orders.

Until further Order of the Court or payment in full of the total debt the following will 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 N in the State of New South Wales, being the whole of the land in Certificate of Title Folio (omitted) (hereinafter referred to as the 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 at liberty to lodge a caveat over the title to the real property to secure the interest created by this charge.

If the Respondent defaults in making any of the payments ordered to be paid under these Orders or deals with any of the real property in breach of these Orders the amount of the total debt is to become immediately due and payable.

AND THE COURT NOTES THAT

A. Any monies payable by the Respondent in accordance with these Orders are in addition to his ongoing liability to pay child support as assessed or varied from time to time.

B. If the Respondent defaults in making any of the payments ordered to be paid under these Orders or deals with any of the real property in breach of these Orders the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 including Subdivision 25B.2.3 – enforcement warrants and Subdivision 25B.2.4 – Third Party Debt Notice.

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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