CHILD SUPPORT REGISTRAR & CARPENTER - [2012] FMCAfam 829

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & CARPENTER

[2012] FMCAfam 829

CHILD SUPPORT – Enforcement – child support debt – late payment penalties – where arrears of child support paid prior to the final hearing – delay – where unwarrantable delay in seeking enforcement.

COSTS – Where Applicant seeks costs – whether costs order appropriate – costs do not follow the event in enforcement proceedings.

Child Support (Registration and Collection) Act 1988 (Cth), ss.30, 67, 68, 105, 116
Family Law Act 1975 (Cth) ss.117, 117AB
Federal Magistrates Court Rules 2001 Sch.1

Breen & Breen (unreported) 13 June 1996
Child Support Registrar & Stewart [2010] FMCAfam 38
Davis v Insolvency and Trustee Service Australia (No.1) [2009] FCA 562
Frei & Frei-Suter (unreported) 12 March 1996
Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641; [2001] FamCA 632
The King v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389
Laurie v Child Support Registrar [2009] FamCAFC 183
Mathieson & Hamilton [2006] FMCAfam 238

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR CARPENTER

File Number:

SYC 5036 of 2011

Judgment of:

Scarlett FM

Hearing dates:

15 May & 12 June 2012

Date of Last Submission:

12 June 2012

Delivered at:

Sydney

Delivered on:

14 August 2012

REPRESENTATION

Solicitor for the Applicant:

Ms Jones

Solicitors for the Applicant:

Australian Government Solicitor

Solicitor for the Respondent:

Ms Pilkinton

Solicitors for the Respondent:

Legal Aid NSW

ORDERS

All previous Orders are discharged.
The Court declines to order that the Respondent pay any amount to the Applicant by way of late payment penalties.
The Respondent is to pay the Applicant’s costs fixed in the sum of $1,500.00 by instalments of $60.00 per month, the first payment to be made ONE (1) month from the date of these Orders and monthly thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Carpenter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5036 of 2011

CHILD SUPPORT REGISTRAR

Applicant

And

MR CARPENTER

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Child Support Registrar for a declaration that the Respondent owes an amount of late payment penalties arising from arrears of child support that have since been paid. The Child Support Registrar also seeks an order for costs.

Background

On 19^th August 2011 the Child Support Registrar filed an Application in a Case seeking a direction that the Respondent owed an amount in respect of arrears of child support and late payment penalties as evidenced by a certificate issued under s.116(2) of the Child Support (Registration and Collection) Act 1988. The Application was supported by an affidavit showing that the child support was payable in respect of the Respondent’s daughter who was born [in] 1989.
On 13^th March 2012 the Child Support Registrar filed in court proposed Minutes of Orders Sought seeking a declaration that as at that…

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.

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Details

AGLC: CHILD SUPPORT REGISTRAR & CARPENTER [2012] FMCAfam 829
Case: [2012] FMCAfam 829
Decision Date: 14 August 2012

CaseChat Overview and Summary

The matter before the court involved the Child Support Registrar as the applicant and Mr. Carpenter as the respondent, with the dispute centering on the enforcement of child support debt and the imposition of late payment penalties. The proceedings took place in the Family Court of Australia. The Registrar sought late payment penalties for arrears that Mr. Carpenter had eventually settled before the final hearing but had not paid in a timely fashion. The Registrar also sought an order for costs.

The court had to determine two primary issues: first, whether the Registrar was entitled to late payment penalties despite the payment of arrears before the final hearing; and second, whether an order for costs was appropriate in these enforcement proceedings. The court assessed whether there had been an unwarrantable delay in the Registrar’s enforcement actions, which could impact the imposition of penalties and the award of costs.

The court held that the Registrar’s delay in enforcing the payment of child support was unwarrantable, and therefore, the Registrar was not entitled to late payment penalties. The court further noted that costs typically do not follow the event in enforcement proceedings, but in this instance, it deemed an order for costs appropriate due to the Registrar's failure to act promptly. The court concluded that the Registrar should be compensated for the time and resources expended due to the delay. The court fixed the total costs at $1,500, to be paid in monthly instalments of $60 starting one month from the date of the orders.

Orders

Orders of the court

All previous Orders are discharged.

The Court declines to order that the Respondent pay any amount to the Applicant by way of late payment penalties.

The Respondent is to pay the Applicant’s costs fixed in the sum of $1,500.00 by instalments of $60.00 per month, the first payment to be made ONE (1) month from the date of these Orders and monthly thereafter.

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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