CHILD SUPPORT REGISTRAR & EDGAR

[2014] FCCA 832

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & EDGAR [2014] FCCA 832

Catchwords:
CHILD SUPPORT – Enforcement of child support – arrears of child support – where respondent did not attend Court.

COSTS – Application for costs – circumstances that justify an order for costs.

Legislation:

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

Family Law Act 1975 (Cth), s.117
Federal Circuit Court Rules 2001 Rule 13.03C

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR EDGAR

File Number: SYC 7634 of 2013

Judgment of: Judge Scarlett

Hearing date: 15 April 2014

Date of Last Submission: 15 April 2014

Delivered at: Sydney

Delivered on: 15 April 2014

REPRESENTATION

Solicitor for the Applicant: Ms Cowden

Solicitors for the Applicant: Minter Ellison Lawyers

The Respondent: No appearance

THE COURT DECLARES THAT

As at 14 April 2014 the Respondent owes to the Applicant the sum of $43,330.50 (Child Support Debt) consisting of $32,493.27 in arrears of child support and $10,837.23 in late payment penalties.

ORDERS

1. The Respondent is to pay to the Applicant the Child Support Debt.

2. The Respondent is to pay the Applicant’s costs fixed in the sum of $3,430.80.

3. The Respondent is to pay to the Applicant the amounts payable under Orders (1) and (2) above (the Total Debt) within sixty (60) days of the date of these Orders.

4. Until further Order of the Court or payment in full of the Total Debt:

   (a)The Respondent is restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the real property at Property G in the State of New South Wales more particularly described in Certificate of Title Volume (omitted) (the Real Property) without the prior written consent of the Applicant; and

   (b)The Respondent’s interest in the Real Property is charged in favour of the Applicant for the Total Debt and the Applicant is at liberty to lodge a caveat over the Real Property to secure the interest created by this charge.

5. 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 then outstanding will become immediately due and payable.

AND THE COURT NOTES THAT

A.  Any monies payable by the Respondent under 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 Rules including Subdivision 25B.2.3 – Enforcement warrants, and/or Subdivision 25B.2.4 – Third Party Debt Notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7634 of 2013

CHILD SUPPORT REGISTRAR

Applicant

And

MR EDGAR

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case by the Child Support Registrar to enforce payment of a child support debt owing by the Respondent. The Registrar also seeks an order for costs.

2. The Respondent has not attended court.

Background

1. The Application was filed on 20^th December 2013 and was returnable on 28^th December 2014. There was no appearance by the Respondent on that date as the Registrar had not been able to serve the documents on the Respondent. The Registrar brought an application in a Case seeking orders to dispense with personal service on the Respondent on condition that:

   a)sealed copies of the relevant documents should be delivered to the Respondent’s address; and

   b)a short SMS message should be sent to the Respondent’s last known mobile telephone advising him of the next hearing date.

2. The Application was supported by an affidavit of Mr W, a solicitor employed by the solicitors for the Registrar, setting out the efforts made to contact the Respondent and serve documents upon him.

3. The Orders were made in those terms on 28^th January and the Application was adjourned to 11^th March 2014.

4. There was no appearance by the Respondent on 11^th March 2014. The Registrar tendered an affidavit by Mr W sworn that same day in which he deposed that he had complied with the Orders of 28^th January 2014. In particular, at paragraph [11] of his affidavit, Mr W set out an account of a telephone conversation he had had with the Respondent on 6^th March. In the course of that conversation Mr W suggested to the Respondent that he should attend court on 11^th March.

5. There was no appearance by or on behalf of the Respondent on 11^th March 2014. An order was made that the Respondent should file and serve a Response, a Financial Statement and an affidavit in support within 14 days and the Application was listed for undefended hearing on 15^th April 2014 at 10:00am.

6. There was no appearance by or on behalf of the Respondent on 15^th April 2014. The Respondent did not file a Response or a Financial Statement or an affidavit.

7. In the circumstances, being satisfied as to service and that the Respondent had received sufficient notice, I decided to proceed with the hearing generally under the provisions of Subrule 13.03C(1)(e).    

Evidence and Submissions

1. The Registrar relied on the following:

   a)the affidavit of Ms V, a Litigation Officer in the Child Support Services within the Department of Human Services, affirmed on 18^th December 2013;

   b)a Certificate under s.116(2) of the Child Support (Registration and Collection) Act 1988 (Cth);

   c)a Minute setting out the proposed orders; and

   d)a schedule of costs.

2. Ms V gave oral evidence in which she affirmed the contents of her affidavit. She deposed in her affidavit that the Respondent had a registered liability for collection of payments in respect of two children who were born on (omitted) 1994 and (omitted) 1996. The older of the two children is now 19 years of age and will turn 20 on (omitted) this year. The younger child is aged 17 years and 6 months.

3. The liability arose from an assessment registered for collection by the Registrar from 4^th February 2000 to 17^th May 2000 and from 12^th July 2001 to the present time. At the time, the register showed that the Respondent owed $30,849.46 by way of arrears and $9,830.56 for late payment penalties.

4. The Respondent’s current monthly liability stands at $422.42.

5. By 14^th April 2014, the day before the hearing, according to the Certificate under s.116(2) tendered in evidence, the Respondent’s child support debt had increased to $32,493.27 and late payment penalties had increased to $10,837.23.

Conclusions

1. The Registrar has shown that the Respondent owed a total amount of $43,330.50 as at 14^th April 2014. He has an interest in real property at Property G against which the debt may be secured and I propose to order accordingly.

2. The Registrar seeks an order for costs in accordance with Schedule 1 to the rules in the amount of $3,430.80. The question of costs is regulated by the provisions of s.117 of the Family Law Act 1975 (Cth). In my view, there are circumstances that justify the making of an order for costs in favour of the Registrar and I propose to order that the Respondent should pay the Registrar’s costs on a party and party basis in the sum of $3,330.80, calculated in accordance with Part 2 of Schedule 1 to the Rules.

3. I will allow 60 days to pay.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 24 April 2014