CHILD SUPPORT REGISTRAR & BAYAN
[2012] FMCAfam 1188
•8 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & BAYAN | [2012] FMCAfam 1188 |
| CHILD SUPPORT – Enforcement – respondent seeks legal advice – no advice taken – adjournments given – final decision. |
| Family Law Act 1975, s.117 Child Support (Registration & Collection) Act 1988, s.116 |
| Hendy v Child Support Registrar & Webb (2001) 164 FLR 236 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR BAYAN |
| File Number: | BRC 9310 of 2011 |
| Judgment of: | Coates FM |
| Hearing date: | 4 May 2012 |
| Date of Last Submission: | 4 May 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 8 November 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Australian Government Solicitor |
| Solicitors for the Respondent: | Self represented |
THE COURT DECLARES:
(A)That as at 8 November 2012 the Respondent owes the Applicant the sum of $19,845.03 (“child support debt”) consisting of $16,099.82 in arrears of child support and $3,745.21 in late payment penalties.
THE COURT ORDERS ON A FINAL BASIS:
That the Respondent pay to the Applicant the child support debt of $19,845.03.
That the Respondent pay to the Applicant the sum of $3,884.50 towards the Applicant’s legal costs.
That the Respondent pay to the Applicant the sum of $23,729.53 (“total debt”) comprising the child support debt as declared above and the Applicant’s legal costs by no later than 8 December 2012.
Security
That until further Order of the Court or payment in full of the total debt the following provisions apply:
Real property
(a)The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the real property at Lot [omitted] and situated at Property C in the State of Queensland (“real property”) without the prior written consent of the Applicant.
(b)The Respondent’s interest in the real property be charged in favour of the Applicant for the total debt.
Personal property
(c)The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the following personal property:
(i)2005 Homemade Box Trailer, Registration Number [omitted]; and
(ii)1990 Brooker Open Dinghy Runabout (Silver), Registration Number [omitted].
(‘personal property’) without the prior written consent of the Applicant.
(d)The Respondent’s interest in the personal property be charged in favour of the Applicant for the total debt.
Enforcement Orders
That 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 the following Orders shall take effect:
(a)The total debt 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)Pursuant to 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.
That the Applicant’s costs of and incidental to the matter in the sum of $3,884.50 be paid by the respondent.
IT IS NOTED:
(A)That any monies payable by the Respondent pursuant to 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 & Bayan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 9310 of 2011
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR BAYAN |
Respondent
REASONS FOR JUDGMENT
The Child Support Registrar seeks a declaration that the Respondent owes the sum of $19,845.03 by way of child support, consisting of $16,099.82 in arrears of child support and $3,745.21 in late penalty payments.
A costs order is also sought of $3,884.50.
The total debt is $23,729.53.
I have adjourned this matter on three occasions so the Respondent could obtain legal advice.
The Respondent appeared on the last occasion, 22 March 2012, unrepresented, and without having received legal advice as far as I could ascertain.
The thrust of his submission in opposition to the enforcement action by the Child Support Registrar was to seek an order that the Child Support Registrar recalculate a child support debt on the basis that the Respondent was willing to pay the debt, but not the figure alleged by the Child Support Registrar.
The Respondent did not suggest what the debt was.
I am satisfied that I have extended to the Respondent all of the time necessary for him to obtain and receive legal advice and to take what action he deems necessary, in filing materials, about his case.
I am satisfied that pursuant to a certificate issued under s.116 of the Child Support (Registration & Collection) Act 1988, that such represents prima facie the debt.
I am satisfied on reading the Affidavit of Ms J, public servant, filed 18 October 2011, that:
a)Child support was due for two children born [in] 1994 and [in] 1996;
b)The liability arose from the stage two assessment in respect of child support payable by the Respondent;
c)The liability commenced 30 April 1996 and was registered for collection with the Child Support Agency on 12 June 2007 and collection continued privately to 11 June 2007;
d)The Respondent’s current monthly liability is $385.33;
e)The Applicant is entitled to proceed with the enforcement obligation.
The Affidavit reveals a letter of demand and that the Applicant will claim costs pursuant to the letter of demand at the enforcement proceedings – which means that the Respondent has had notice of all that is being sort.
I am satisfied that the Respondent, on the material and references in the Affidavit owns a property described in certification of title reference [omitted].
I am satisfied that the property is encumbered with a mortgage, with Credit Union Australia, and I am also satisfied as to debts under that mortgage in the sum of $133,385.89 and $30,952.08. The Affidavit of Ms J also reveals personal property by way of some motor vehicles – a trailer and a runabout.
The respondent did not give evidence that he did not own the property I have referred to.
Although the Affidavit refers to the Respondent’s salary coming from working as an [omitted] under a business name [Mr Bayan], it is accepted that that the Respondent is on a disability pension due to back injuries received during an altercation with a man.
I am also satisfied that the Registrar, through Ms J has produced a true copy of a payer transaction statement of child support.
The Respondent had difficulty in understanding the proceeding and what avenues are open to him. That is why I allowed adjournments to get legal advice.
Further, in order to assist the Respondent, I ordered that an outline of submissions be filed on the part of the Applicant so that the Respondent could understand the matter he was facing.
Not only am I satisfied that the outline correctly states the law, but it is in line with submissions of Mr F., solicitor for the Child Support Registrar, that there is no power for the Court to order a recalculation of the debt under an enforcement proceeding and that the Respondent could have made, but has not made, an application for a departure. Nor has there been any application for external or internal review. Even if the Respondent had taken steps regarding departure or review, that does not prevent the court from making the enforcement orders if such is the decision of the court.
I was also taken to evidence of contact between the Child Support Registrar’s staff and the Respondent by way of telephone calls and I was told that on several occasions the Respondent had become angry with the Child Support Agency staff and had used intemperate language. This was put only in the context that attempts to negotiate with the Respondent previously were thought to be unsuccessful because of his attitude and that may well indicate any future attempts to negotiate with him.
Of particular importance in this case are the enforcement rules under the Federal Magistrates Court Rules 2001, wherein r.25B.2 allows for enforcement proceedings of enforceable obligations and states the general enforcement powers, including the seeking of an order declaring the total amount owing under an obligation.
The rules allow for the sale and seizure of real and personal property or an order for attachment of earnings and debts.
The difficulty for the Respondent is conducting a case whereby he could oppose the enforcement application.
The inescapable fact is that he was granted adjournment to attend to his legal advice so he would be in a position to state his case.
The Respondent produced some documents which are irrelevant to the proceedings, although that can be understood from the point of view that he said he is willing to pay what he owed, but that the Child Support Agency would not listen to him with regard to the amount of care he provided to the children as against the mother of the children. However, he also said that the Court made parenting orders whereby the mother was given 70 percent of the care of the children when he opposed all care of the children by her. This appears to be irrelevant to the orders being sought against him and again I make reference to the Child Support Registrars view of trying to negotiate with him.
It is always difficult in trying to determine matters when a person is not represented and the Court can only go so far in assisting a party, being careful not to overstep a line which goes from assistance to a party to actually putting a case for that party.
That is because the two parties before the Court have each to be treated fairly and each have the right to have their cases determined, not only according to law, but on an application of the law based on the facts.
Where a party cannot appreciate or understand what the law pertaining to a particular subject matter is, then the Court may and often will take time to understand the case, but it cannot make a decision merely based on what a party believes would be just and fair. That is the case here. The Respondent states that he is willing to pay child support, but his view of what is just and fair did not accord with the evidence of the debt, and is not supported be relevant and admissible legal or factual submissions. This is also not a case that failure to understand the case is because of an incapacity suffered by the respondent.
That is why I granted so many adjournments, to allow him to obtain legal assistance.
That being the case, I cannot order, because I have no power to do so, the Child Support Registrar to recalculate the figures that the Respondent claims are incorrect.
I find that the certificate issued under s.116 is correct as to the debt and I will make the declaration to that effect.
The penalties as calculated are applicable and the Respondent must pay those as well.
Now to costs.
Section 117 of the Family Law Act1975 is applicable and there must be circumstances for me to conclude that a costs order is justified in the matter.
In my view, a costs order is justified on the basis that these proceedings are being conducted at public expense and could have been avoided if the Respondent had taken earlier actions for a departure order or made other relevant submissions to the Child Support Agency with regard to the debt which is before the Court.
The submissions of the Child Support Registrar refer to Hendy v Child Support Registrar & Webb (2001) 164 FLR 236 where the Full Court confirmed the reasons of Justice Jordan in awarding costs to the Child Support Registrar in enforcement summons proceedings. In that matter, these proceedings were treated as civil proceedings where the unsuccessful party usually bears the costs and simply because there is a lack of evidence showing that the unsuccessful party cannot at the time pay the costs does not mean a costs order will not be ordered against that party.
Jordan J said this:
“These proceedings should more properly perceived as being civil proceedings between the Commonwealth as a third party and the respondent as a citizen, rather than between parties to a marriage or parties to a relationship covered by the general philosophy of the Family Law Act, which is to effect that each party bear their own costs.”
He went on to say that it would be inappropriate if the tax payer was required to bear the entire burden of this exercise.
Lastly, the submissions I ordered to be filed by the solicitors for the Registrar set out all of the remedial actions the Respondent could have taken in regard to child support, as well as setting out the law to be applied, including the principal objects of the Child Support (Registration & Collection) Act 1988. I was satisfied that the Respondent was served with a copy of the submissions and it would serve no purpose to repeat the submissions and all of the law now, but I do need to state that the Respondent made no relevant submission despite having a full statement of what these proceedings are about.
I have also taken into account each sub-section under s.117(2A), and find that the respondent is on a disability payment, he is not receiving legal aid, he has not taken advantage of the adjournments to seek proper legal advice and he knew the outcome should he fail to address the legal issues.
On that basis, I will make the costs orders sought.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Coates FM
Associate:
Date: 8 November 2012
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