CHILD SUPPORT REGISTRAR & DAWSON

[2014] FCCA 2124

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & DAWSON [2014] FCCA 2124

Catchwords:
CHILD SUPPORT – Stay –application for stay – enforcement proceedings – adjournment – application for adjournment – where party has brought a departure application in another court.
PRACTICE AND PROCEDURE – Venue – whether Application should be transferred to another Registry – where proceedings in Newcastle, Sydney and Melbourne – where it is preferable that all matters should be dealt with in the one Registry of the Court.

Legislation:

Child Support (Assessment) Act 1989 (Cth), s.116

Child Support (Registration and Collection) Act 1988 (Cth), s.111C

Federal Circuit Court Rules 2001 r.8.01

Cases cited:
Bagala & Bagala [2009] FMCAfam 953

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR DAWSON

File Number: SYC 1928 of 2014

Judgment of: Judge Scarlett

Hearing date: 9 September 2014

Date of Last Submission: 9 September 2014

Delivered at: Sydney

Delivered on: 12 September 2014

REPRESENTATION

Solicitor for the Applicant: Ms Fusitu'a

Solicitors for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: Mr Merewether (agent); Mr Bacon

Solicitors for the Respondent: Manby and Scott

ORDERS

1. The Response filed on 15 August 2014 is dismissed.

2. The Respondent is to file and serve a further Response accompanied by an affidavit setting out the facts upon which he seeks to rely within twenty-one (21) days.

3. The Application is transferred to the Newcastle Registry of the Court to be listed for hearing before Judge Scarlett at 10:00 am on Thursday 16 October 2014.

4. A copy of this decision is to be forwarded to the Registrar of the Melbourne Magistrates’ Court with the request that it be placed on the file FL 23/2014 returnable before the Melbourne Magistrates’ Court at 10.00 am on 18 September 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1928 of 2014

CHILD SUPPORT REGISTRAR

Applicant

And

MR DAWSON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Respondent to an Application in a Case seeking enforcement of arrears of child support and late payment penalties for orders that arrears of child support should not be quantified and the proceedings should be adjourned until after the completion of other proceedings in the Melbourne Magistrates Court.

2. The application is opposed by the Child Support Registrar.

Orders Sought

1. By his handwritten Response filed on 15 August 2014 the Respondent seeks the following orders:

   1.  The Respondent’s Child Support Arrears be quantified once the current proceedings between the Respondent and payee of Child Support (Ms Bolton) are completed. The Respondent thereafter pay those arrears within 90 days.

   2.  The matter be adjourned until the current proceedings between the Respondent and payee of Child Support (Ms Bolton) are completed.

2. The “current proceedings” to which the Respondent refers consist of an Application to the Melbourne Magistrates’ Court seeking a departure order and other orders relating to child support. This Application is returnable on 18 September 2014.

Background

1. The Child Support Registrar filed an Application in a Case on 1 April 2014, accompanied by an affidavit, seeking a declaration that the Respondent owes the Commonwealth of Australia an amount in respect of arrears and late payment penalties (referred to as the “child support debt”) and orders that:

   1.  The Respondent pay to the Applicant the child support debt.

   2.  The Respondent pay to the Applicant a contribution to its costs to be fixed in accordance with Schedule 1 to the Federal Circuit Court Rules 2001.

   3.  The Respondent pay to the Applicant the amounts payable under orders 1 and 2 above (total debt) within 30 days of the date of these orders.

2. The Application was returnable on 13 May 2014.

3. On 9 May 2014, on the application of the Child Support Registrar, an Order was made for substituted service on the Respondent at an address in [M], a suburb of Newcastle, New South Wales.

4. The documents were duly served in accordance with the Order on 30 May 2014.

5. The Respondent filed a Notice of Address for Service on 3 June 2014, giving the address of his solicitors, whose office is in Melbourne.

6. On 10 June 2014 Orders were made that the Respondent was to file and serve any application and affidavit within 28 days and the Application was adjourned to 15 July 2014 for further mention.

7. On 2 July 2014 the Respondent filed an Application in the Melbourne Magistrates’ Court, accompanied by an affidavit. The Respondent to that Application is the payee of child support, Ms Bolton. The Application is returnable on 18 September 2014.

8. On 15 July 2014 the Respondent was ordered to file and serve a Response, a Financial Statement and an affidavit outlining the facts on which he sought to rely within 21 days. The Application was adjourned to 9 September 2014 for further mention.

9. On 15 August 2014 the Respondent filed a Response, a Financial Statement dated 22 July 2014 and an affidavit affirmed on 22 July 2014.

10. The Respondent’s adjournment application was argued on 9 September 2014.

Evidence and Submissions

1. The Respondent relied on his affidavit of 22 July 2014, to which he had annexed a copy of an affidavit affirmed on 1 July 2014 and filed at the Melbourne Magistrates’ Court the following day.

2. The solicitor for the Child Support Registrar tendered a copy of the Respondent’s Initiating Application filed in the Melbourne Magistrates’ Court.

3. The oral submissions were relatively simple and admirably concise. Mr Merewether, solicitor, who appeared as agent for the Respondent’s Melbourne solicitor, Mr Bacon, submitted that the Respondent’s Application to the Melbourne Magistrates’ Court should be heard first, as it sought orders with a retrospective effect, which would considerably affect the arrears of child support sought by the Child Support Registrar.

4. Ms Fusitu’a, solicitor, who appeared for the Child Support Registrar, submitted that there were, as a result of the Respondent’s Application to the Melbourne Magistrates’ Court, three separate sets of proceedings, in Melbourne, in Sydney and in the Newcastle Registry of the Federal Circuit Court. Ms Fusitu’a further submitted that there was no valid application on foot which would affect the application brought by the Child Support Registrar. The Respondent had had ample opportunity to argue his application to vary the child support and the matter in this Court should proceed without delay.

5. Ms Fusitu’a also told the Court that the Respondent resided in the Newcastle area and the only connection with Melbourne was that was where the Respondent’s solicitor carried on his practice. The proceedings in the Newcastle Registry of this Court were proceedings under the Family Law Act 1975 (Cth). The Respondent is apparently represented by another solicitor in those proceedings.

6. Whilst Mr Merewether did not have instructions as to why the Respondent had brought his Application in Melbourne, Ms Fusitu’a said that she had spoken to his principal on the telephone and had received the advice that he was unable to file either in the Sydney Registry or the Newcastle Registry. It would have been necessary to file an Amended Application in Newcastle, but the Respondent had other representation.

The Application to the Melbourne Magistrates’ Court

1. In his Application filed on 2 July 2014, the Respondent seeks the following orders:

   Final orders sought

   1.  From the date of these orders and until a final child support terminating event occurs in relation to the child [X] (born [omitted] 2003) ([X]) any monies paid by the applicant to third parties for purposes directly related to [X]’s dental, healthcare and educational costs (up to $100 per week) be credited at an appropriate percentage against any child support otherwise payable by the applicant to the respondent regarding [X].

   2.  The respondent contribute $50 per week toward the applicant’s travel contact costs with [X].

   3.  The applicant be declared to have had a lawful duty to maintain Ms J and her infant son [name omitted] from 1 May 2012 onwards and that duty be duly quantified.

   4. Any leave required to be given in these proceedings for them to proceed (within the Child Support Agency) under s 112 Child Support (Assessment) Act (or otherwise) be so given.

   5. Any further order [whether under the Family Law Act, Child Support Assessment or otherwise] required to do justice between the parties.

   6.  The respondent pay the applicant’s costs of and incidental to these proceedings.

   Interim or procedural orders sought

   1.  Pending the final outcome of these proceedings, the applicant’s obligation to pay child support (including arrears) to the respondent regarding [X] be stayed to the extent that that sum exceeds $100 per week in total.

2. The Respondent, in his affidavit, deposes that:

   4.  I have brought these proceedings principally to seek a child support substitution order regarding [X].

   5.  I am currently obliged to pay child support for [X] pursuant to a Child Support Agency (the Agency) assessment dated 25 February 2014.[1]

   [1] Affidavit of Mr Dawson 1.7.2014 being Annexure “[1]” to affidavit of Mr Dawson 22.7.2014 filed in these proceedings

3. Later in his affidavit, at paragraphs [21] and [22], the Respondent deposes:

   21.    The respondent[2] has enrolled [X] in a school some 45 minutes (34) km away from where I reside. This has meant that I have been forced to spend large sums of money on travel costs in properly maintaining contact with [X].

   22. I also so seek in this case that Family Law Act orders be made which will have the respondent contribute to those costs so as to enable me to travel and maintain my relationship with [X]. About 20,000 km per annum are travelled.[3]

   [2] i.e. Ms Bolton

   [3] Affidavit of Mr Dawson 1.7.2014 being Annexure “[1]” to affidavit of Mr Dawson 22.7.2014

Issues

1. In my view, there are two issues to be decided:

   a)Whether the proceedings in this Court should be adjourned, in effect stayed, until the completion of the proceedings in the Melbourne Magistrates’ Court; and

   b)If not, what is the proper venue for the proceedings in this Court.

Whether there should be an adjournment

1. The Application by the Child Support Registrar was commenced on 1 April 2014, although the documents were not served on the Respondent until 30 May 2014. The Respondent commenced the proceedings in the Melbourne Magistrates’ Court over a month later, on 2 July 2014.

2. What the Respondent is seeking to do in his proceedings in the Melbourne Magistrates’ Court is to bring about a retrospective variation of arrears of Child Support Assessment.

3. In Bagala & Bagala[4] Riethmuller FM[5] considered a situation where the Child Support Registrar filed an enforcement summons on 2 March 2009 seeking to recover a child support debt and the Applicant filed an application for Departure order on 26 March 2009 seeking to discharge the arrears of child support. It can be seen that the facts are similar, except that in Bagala both proceedings were in the one Court, not in separate courts.

   [4] [2009] FMCAfam 953

   [5] As His Honour then was

4. In his decision, His Honour referred at [20] to the object of s.4(2)(c) of the Child Support (Assessment) Act which seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised.

5. His Honour went on to find:

   The applicant had real opportunities, prior to the Child Support Registrar filing the enforcement summons, to seek a review of his child support liability. He chose not to do so and has not provided any evidence of a reasonable excuse for not doing so.[6]

   [6] [2009] FMCAfam 953 at [22]

6. The same observation can be made in the present case. The Respondent has only brought his Application to the Magistrates’ Court once the Child Support Registrar commenced these proceedings for enforcement of arrears. There is no evidence of a reasonable excuse for the Respondent’s delay.

7. The Application to the Magistrates’ Court appears to be problematic for another reason, which could, in my view, render it vulnerable to an application for summary dismissal. The Respondent is applying to the Magistrates’ Court for an order for departure from an administrative assessment of Child Support in circumstances that do not meet the requirements of s.116(1) of the Child Support (Assessment) Act.

8. Whilst it may be argued that s.116(1)(b) should apply, such an argument would appear to me to be problematic.

9. S.116(1)(b) of the Act permits an application to a court for a departure order if:

   (b)     both of the following apply:

   (i)     the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;

   (ii)     the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case;

10. There is no such application pending in the Melbourne Magistrates’ Court. However, there are applications pending in the Newcastle and Sydney Registries of the Federal Circuit Court as to parenting and child support matters respectively, a fact which the Respondent has omitted to mention in his affidavit in support of his application to the Magistrates’ Court.

11. I am not satisfied that this Court should adjourn the Application before it, which was commenced well prior to the Application to the Magistrates’ Court, to await the outcome of proceedings which appear to me to be inherently problematic. The Respondent has not, in his Response filed on 15 August 2014, raised any defence to the Registrar’s claim that an amount of money is owed by way of a child support debt.

12. The application for adjournment, or a stay, will therefore be refused.

The Venue of the Proceedings

1. The current situation is that there are three proceedings involving the various parties in two different courts in three different cities. The Respondent is involved in all of them.

2. The proceedings are as follows:

   a)There are parenting proceedings between the Respondent and Ms Bolton in the Newcastle Registry of this Court (file No. NCC 3698 of 2007) listed for final hearing on 7 and 8 October 2014;

   b)This application between the Child Support Registrar and the Respondent in respect of child support payable to Ms Bolton; and

   c)The Respondent’s Application to the Melbourne Magistrates’ Court which has a first return date of 18 September 2014.

3. Clearly, this Court has no power to make any procedural orders in respect of the proceedings of the Magistrates’ Court. However, the Magistrates’ Court may, if it considers it appropriate to do so, transfer the Application before it to the Federal Circuit Court.

4. Rule 8.01 applies to transfer of proceedings to another registry of the Court. Sub-rule 8.01(2) requires the Court to have regard to:

   a)The convenience of the parties; and

   b)The limiting of expense and the cost of proceedings; and

   c)Whether the matter has been listed for final hearing; and

   d)Any other relevant matter.

5. It would appear to be clear that the convenience of the parties would best be met by transferring this Application to the Newcastle Registry of the Court. Ms Bolton, the payee entitled to child support, resides in [omitted], New South Wales. The nearest Registry to her address would be Newcastle.

6. Although the Respondent gives his address in his Application to the Melbourne Magistrates’ Court as “C/O [omitted], Melbourne Vic 3000”, that is his address for service in those proceedings. The Respondent lives near Newcastle. The nearest Registry to his address is Newcastle.

7. The Child Support Registrar is a part of the Department of Human Services, which is an agency of the Commonwealth Government. I see no great inconvenience to the Child Support Registrar for these proceedings to be conducted where both the liable parent and the payee reside.

8. It would, in my view, limit expense and the cost of the proceedings for all proceedings in this Court to be heard in Newcastle.

9. This application has not been listed for final hearing, but it soon will be. As it turns out, I am scheduled to sit at the Newcastle Registry of the Court in the week commencing Monday 13 October. Whilst there are no dates available in my docket in the Sydney Registry prior to the end of the year, it would be possible to list this Application for hearing before me in Newcastle during the week of 13 October.

10. This would achieve the result of bringing this Application to Court for a final hearing at an early date.

11. I propose to list the Application before me in Newcastle in the week commencing Monday 13 October 2014, with a view to its being heard during that week at a time and on a day convenient to the parties. I have now heard short submissions from the parties’ legal representatives on that subject and I note that Ms Fusitu’a, for the Child Support Registrar, will be unable to attend in Newcastle on 14 and 15 October.

12. It is entirely a matter for the Melbourne Magistrates’ Court as to the way in which it proposes to deal with the Application returnable before it on 18 September. However, as courts should act in aid of each other, I propose to direct that the Registrar should forward a copy of this Decision and these Orders to the Melbourne Magistrates’ Court with a request that the decision should be placed on the Court file for the assistance of the learned Magistrate of that Court.

13. If the Melbourne Magistrates’ Court deems it appropriate to transfer the Application to the Federal Circuit Court, I would suggest, with respect, that the appropriate Registry would be Newcastle.

14. As neither Order sought in the Response filed on 15 August 2014 will be granted, it follows that the Response will have to be dismissed. I will allow the Respondent a further period of 21 days to file a fresh Response to the Application and, if it should be considered necessary, a further affidavit.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 12 September 2014