CHILD SUPPORT REGISTRAR & LAURIE
[2011] FMCAfam 937
•8 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & LAURIE | [2011] FMCAfam 937 |
| CHILD SUPPORT – Enforcement – child support debt – where Respondent did not file any affidavit or give evidence – certificate under s.116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) is prime facie evidence of the matters stated in the certificate. PRACTICE & PROCEDURE – Whether it is appropriate for the Federal Magistrates Court to appoint a Registrar of the Family Court to execute a deed or instrument under Family Law Act 1975 (Cth) s.106A(1). |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.113, 116 Family Law Act 1975 (Cth), s.117 |
| Conway & Laurie [2003] FMCAfam 159 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR LAURIE |
| File Number: | SYC 1695 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 August 2011 |
| Date of Last Submission: | 2 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Gouliaditis |
| Solicitors for the Applicant: | Australian Government Solicitor |
| The Respondent: | In person |
ORDERS
DECLARATION
As at 2 August 2011 the Respondent owes the Applicant the sum of $21,707.16 (hereinafter referred to as the child support debt) consisting of $19,732.51 in arrears of child support and $1,974.65 in late payment penalties.
ORDERS
The Respondent is to pay to the Applicant the child support debt of $21,707.16.
The child support debt is to be paid to the Applicant within such time as the Court shall further order.
If the Respondent should default in payment of any monies ordered to be paid by these Orders then that amount shall become immediately due and payable.
The Respondent is to lodge with the Australian Taxation Office all outstanding personal income tax returns within such time as the Court shall further order.
Until the Respondent pays all amounts outstanding under these Orders:
(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 C in the State of New South Wales more particularly described in Folio Identifier [omitted] without the prior written consent of the Applicant.
(b)The Respondent’s interest in the said real property is charged in favour of the Applicant for the child support debt and any other monies ordered to be paid by these Orders and the Applicant shall be at liberty to lodge a caveat over the said real property to secure the interest created by this charge.
If the Respondent should default in making any of the payments under these orders or deals with the said real property in breach of the provisions of Order (5) above then the following orders shall take effect:
(a)The Official Receiver or the Sheriff of the Federal Magistrates Court or his or her servants or agents (collectively referred to as the Enforcement Officer), on behalf of the Commonwealth and in accordance with Rule 25B.24 of the Rules, may seize and realise such of the Respondent’s real property, motor vehicles and other personal property, not being prescribed personal property, as the Enforcement Officer may consider to meet the reasonable costs of the Enforcement Officer and discharge in full all amounts owed by the Respondent under the Orders of this Court.
(b)For the purpose of carrying into effect these Orders, the Respondent shall give the Enforcement Officer peaceful entry to any premises in which personal property of the Respondent is located and shall deliver to the Enforcement Officer upon request the keys to any motor vehicle or vehicles or other property for which keys are reasonably required for operation or removal.
(c)The Respondent shall upon the request of the Enforcement Officer do all acts and execute all documents necessary to transfer to the Enforcement Officer all of the Respondent’s right title, and interest in such of the Respondent’s personal property as the Enforcement may seize pursuant to these Orders.
(d)If the Respondent should default under the immediately preceding Order, the Enforcement Officer is hereby empowered to sign all documents and do all things necessary to transfer the Respondent’s interest in the motor vehicle or vehicle or personal property seized pursuant to these Orders to the Enforcement Officer.
(e)The Enforcement Officer shall as soon as reasonably practicable sell the Respondent’s personal property seized pursuant to these orders for the best price reasonably obtainable and shall apply the proceeds of sale in the following order:
(i)In payment of the reasonable costs, disbursements and expenses of the Enforcement Officer including reimbursement to the Applicant for any fees reasonably payable to the Enforcement Officer;
(ii)In discharge of any prior encumbrances on the personal property;
(iii)In payment of such sums as are then outstanding to the Commonwealth pursuant to any Order of this Court in respect of the child support debt and the Applicant’s costs and any registrable maintenance liabilities of the Respondent; and
(iv)In payment of any residue to the Respondent.
(f)The Respondent shall upon the request of the Enforcement Officer sign all documents and produce all relevant Certificates of Title in his possession, custody or control and do all things necessary to transfer to the Enforcement Officer the Respondent’s interest in the said real property.
(g)If the Respondent should default under the immediately preceding Order a Registrar of the Federal Magistrates Court of Australia shall be and is empowered pursuant to section 106A of the Family Law Act 1975 to sign all documents and do all things necessary to transfer the Respondent’s interest in the said real property to the Enforcement Officer.
(h)An affidavit by or on behalf of the Applicant stating that a request has been made in accordance with Order (6)(f) and that the Respondent has refused or neglected to comply shall be conclusive evidence of default for the purposes of this Order.
(i)The Respondent shall give the Enforcement Officer vacant possession of the said real property within thirty (30) days of the date of being so requested by the Enforcement Officer in writing sent by ordinary post to the Respondent’s address for service.
(j)If the Respondent fails to give the Enforcement Officer vacant possession the Enforcement Officer is empowered to enter the said real property for the purpose of changing the locks, removing the Respondent’s personal property for safekeeping and if necessary to evict the Respondent and any other occupants.
(k)The Enforcement Officer shall as soon as reasonably practicable sell the Respondent’s interest in the said real property for the best price reasonably6 obtainable and shall apply the proceeds of sale in the following order:
(i)In payment of all costs, commissions and expenses of the said trust, transfer and sale including all costs incurred by the Enforcement officer;
(ii)In discharge of any prior encumbrances on the said real property;
(iii)In payment of such sums as are then outstanding to the Commonwealth pursuant to any order of this Court in respect of the child support debt and any costs that may be awarded to the Applicant; and
(iv)In payment of any residue to the Respondent.
The parties have liberty to restore the matter to the Court list upon seven (7) days’ notice in respect of compliance with these Orders.
AND THE COURT NOTES THAT
A.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 & Laurie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1695 of 2011
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR LAURIE |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant Child Support Registrar has issued an enforcement summons under the provisions of s.113 of the Child Support (Registration and Collection) Act 1988, seeking to recover an unpaid child support debt now amounting to $19,732.51 and penalties amounting to $1,974.65. The Applicant seeks orders that the Respondent pay those sums, totalling $21,707.00, as well the sum of $2,978.50 towards the Applicant’s legal costs.
The Respondent attended Court on 7th June 2011 and advised that he did not consent to the orders. The Summons was listed for final hearing on 2nd August 2011 and the Respondent was directed to file a Response and an affidavit in support within 28 days, but did not do so.
The Respondent attended Court on 2nd August and made a submission as to why the orders should not be made. The Respondent was not legally represented.
Evidence
The Child Support Registrar relies on three affidavits affirmed by one Ms N, a Litigation Officer in the Child Support Agency, affirmed:
a)17 March 2011;
b)27 May 2011; and
c)12 July 2011.
The Child Support Registrar also tendered a certificate under sub-section 116(2) of the Child Support (Registration and collection) Act 1988, in which it was certified that amounts totalling $21,707.00 are due and payable by the Respondent and remained unpaid as at 2 August 2011 in respect of registered maintenance liabilities, made up as follows:
·Child support debt $19,735.51;
·Penalties of $1,974.65.
In her affidavit of 17 March 2011 Ms N deposed that the Respondent had a child support liability in respect of his children [X], who was born [in] 1998, and [Y], who was born [in] 2000. The liability arose from an assessment that commenced on 14 February 2003 and was registered by the Child Support Agency that same day.
Ms N deposed that the Respondent’s current monthly liability is $513.50.[1]
[1] Affidavit of Ms N 17.3.2011 at paragraph [6]
A certificate under sub-section 116(1) of the Child Support (Registration and Collection) Act 1988 was annexed to the affidavit.[2]
[2] Ibid Annexure “A”
In her affidavit of 27 May 2011 Ms N set out the results of a number of searches that she had conducted as to real estate held in the Respondent’s name. She also set out the result of a search of the records of the Australian Taxation Office which she had conducted, showing that the Respondent had submitted a personal income tax return for the financial year ended 30 June 2009, in which he declared that:
a)His main salary or wage occupation was as Company Director;
b)He had a total income of $59,850.00; and
c)He had a taxable income of $58,880.00[3]
[3] Affidavit of Ms N 27.5.2011 at paragraph 10
Ms N deposed that she had conducted searches of the records of the Australian Securities and Investment Commission in relation to the Respondent. The results of her searches showed that the Respondent was the sole director, secretary and shareholder of the following companies:
a)[K] Pty Limited;
b)[T] Pty Limited; and
c)[Laurie] Pty Limited.
In her further supplementary affidavit affirmed 12 July 2011 Ms N affirmed that on 27 February 2006 a decision was made by a Delegate of the Child Support Registrar in respect of the Respondent’s child support income amount for the periods 1 February 2006 to 30 June 2007 and 1 July 2007 as follows:
(a) for the period 1 February 2006 to 30 June 2007 the Respondent’s child support income amount was increased to $130,767.00; and
(b) for the period 1 July 2007 to 31 October 2008 the Respondent’s child support income amount was increased to the relevant child support income amount.
Ms N affirmed that on 30 March 2006 the Registrar received an Objection to the decision, lodged by the Respondent, and on 5 June 2006 the objection was disallowed.[4]
[4] Ibid at [5]
Ms N also affirmed that on 20 February 2009, a decision was made by a Delegate of the Applicant[5] changing the administrative assessment of child support and making a determination that for the period 1 November 2008 to 30 November 2010 the Respondent’s adjusted taxable income was to be set at $699,533.00 per annum. A copy of the Decision is annexed to the affidavit.[6]
[5] The affidavit says “Respondent” but that is clearly an error
[6] Affidavit of Ms N 12.7.2011 Annexure “D”
Ms N deposed:
As at the date of affirming this my affidavit, I say no objection to the 2009 decision has been lodged by the Respondent with the CSA.[7]
[7] Ibid at [8]
Ms N went on to depose that from 30 November 2010 to the date of her affidavit the Respondent’s child support liability has been assessed on his 2009 and 2010 income tax returns as follows:
from 1.12.2010 to 31.12.2010 – an annual rate of $5,910, based on an income amount of $58,880 (2009 Taxable income)
from 01.01.2011 to 03.05.2011 – an annual rate of $6,046 based on an income amount of $60,160 (2010 Taxable income)
from 04.05.2011 to 31.03.2011 – an annual rate of $6,688 based on an income amount of $60,169 (2010 Taxable income)[8]
[8] Ibid at [9]
Ms N was not required for cross-examination on her affidavits.
The Respondent did not file any affidavit or lead any evidence.
Submissions
The Respondent submitted that his time with the children was decided by this Court in 2003. I note that on 9 April 2003 I made orders after an interim hearing between the parties, who were both represented, that the Respondent’s two children should spend time with him from
9:00 am on Sunday until 12 noon on Tuesday in each week, for three hours on the children’s birthdays and at such other times as the parties agreed (Conway & Laurie[9]). He told the Court that it was a hard situation operating a business and having the care of his children three days a week.
[9] [2003] FMCAfam 159
The Respondent referred to the assessment made on 20 February 2009 that his adjusted taxable income was to be set at $699,533.00 and said that he did not earn that figure. He noted that his assessment had since gone back to $60,000.00 odd.
The Respondent told the Court that he had “objected and objected” but he had not gone through “the right mechanism”. He appealed to the Social Security Appeals Tribunal but was told that his appeal was out of time.
The Respondent submitted that his child support assessment for the relevant period should be reviewed. He had consistently earned about $60,000.00 per annum and the assessment of his adjusted taxable income of $699,533.00 in 2009 was “unfair and unjust”.
The Respondent further submitted that he did not have the capacity to pay the amount sought, as he had loan repayments to make. He had used up all his savings to buy a house. He still paid rent to the business. His children are with him three days a week, from Sunday to Tuesday. He said that his child support payments should be about $530.00 per month.
The Respondent claimed to have been overcharged and said that he seeks a refund of $57,000.00.
Mr Gouliaditis, who appeared for the Child Support Registrar, submitted that the s.116(2) certificate set out statutory debts that were properly raised. Some were objected to and some were not. It was the Respondent’s responsibility to seek review of those decisions to which he objected at the time they were made and not ignore them.
It was further submitted that the Respondent has sufficient funds to meet the debt. The Respondent had not filed any evidence about the profits of his business.
Mr Gouliaditis submitted that there were two questions to be considered:
a)Question 1 – whether there was sufficient evidence to overcome the prima facie evidence of the debt set out in the s.116(2) certificate; and
b)Question 2 – whether it was appropriate to make the enforcement orders sought.
It was submitted on behalf of the Child Support Registrar that the answers to the above questions were:
a)Question 1 – No
b)Question 2 - Yes
The Respondent sought an adjournment to bring some evidence, which was refused.
Conclusions
The Child Support Registrar has relied on three affidavits and a certificate under the provisions of sub-section 116(2) of the Child Support (Registration and Collection) Act 1988. That sub-section provides:
The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified registrable maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.
The Respondent has not challenged that certificate.
The matter was before the Court on 7 June 2011 when the Respondent indicated that he did not consent to the orders sought by the Child Support Registrar. The matter was listed for hearing on 2 August 2011 and the Respondent was directed to file and serve a Response and an affidavit within 28 days. He did not do so within 28 days, by 5 July 2011, or at all. He attended court empty-handed on 2 August and made a submission from the bar table.
In the absence of evidence from the Respondent, the certificate under sub-section 116(2) must be accepted as evidence that the Respondent owed the sum of $21,707.16 as at 2 August 2011.
The Child Support Registrar relied on three affidavits by Ms N, an officer of the Child Support Agency who deposed that she is authorised to make affidavits on behalf of the Child Support Registrar. Ms N was not required for cross-examination and no affidavit has been filed on behalf, setting out any evidence in support of his contentions. It follows that Ms N’s affidavit evidence must be accepted.
There is evidence that the Respondent lodged an objection to the decision of the 27 February 2009 setting the Respondent’s child support income amount for the periods 1 February 2006 to 30 June 2007 and 1 July 2007 to 31 October 2008.[10] That objection was disallowed.
[10] Affidavit of Ms N 12.7.2011 at [4] and [5]
There is no evidence that the Respondent lodged any objection to the decision of the delegate on 20 February 2009 determining his adjusted taxable income at the surprisingly high figure of $699,533.00 per annum.[11] The Respondent apparently let this assessment stand.
[11] Ibid at [7] and [8]
The Respondent has not provided any evidence in support of his claim that he has been overcharged and is entitled to a refund of $57,000.00. He has not provided any details as to how that amount has been calculated.
The Respondent has not filed any application in this Court in respect of his claims to have been wrongly assessed for child support.
It follows that the claim by the Child Support Registrar has been made out.
The Child Support Registrar seeks a declaration that the Respondent owes the Child Support Registrar the sum of $21,707.16 consisting of $19,732.51 in arrears of child support and $1,947.65 in late payment penalties. That declaration will be made.
The Child Support Registrar seeks orders for:
a)Payment of the child support debt of $21,707.16;
b)Costs in the sum of $2,978.50, calculated in accordance with the Court Scale;
c)Payment of the above amounts within 30 days;
d)The total debt becoming immediately due and payable if the Respondent defaults;
e)The Respondent to lodge with the Australian Taxation Office all outstanding personal income tax returns on or before 2 September 2011;
f)A restraint on the Respondent from dealing with his interest in real property at Property C;
g)A charge in favour of the Applicant Child Support Registrar over the Respondent’s real property; and
h)Various enforcement orders to be carried out by the Official Receiver or the Sheriff on behalf of the Commonwealth in relation to seizing the Respondent’s real property, motor vehicles and other personal property.
Whilst orders will be made in respect of payment of the outstanding amounts with appropriate security, there are some matters upon which the Court will hear submissions, or further submissions, from the Respondent.
One order that will not be made in its present terms as the Applicant’s proposed Order 7.7, which says:
If the Respondent defaults under the immediately preceding order, a Registrar of the Family Court of Australia shall be and is hereby empowered pursuant to section 106A of the Family Law Act 1975 to sign all documents and do all things necessary to transfer the Respondent’s interest in the real property to the Enforcement Officer.
In my view, it is inappropriate for the Federal Magistrates Court to make an order under s.106A appointing a Registrar of another Court, namely the Family Court of Australia, to carry out a function. True it is that sub-section 106(1) provides that “the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was give”, but in my view the words “an officer of the court” refer to an officer of the Federal Magistrates Court, such as a Registrar, rather than an officer of the Family Court of Australia.
A Registrar of the Family Court may be an “other person”, but there does not seem to be any good reason why this Court should look past its own Registrars when making an order under s.106A.
I am prepared to order that a Registrar of the Federal Magistrates Court of Australia should be appointed under s.106A.
The Court will consider the question of costs, which is governed by section 117 of the Family Law Act 1975.
The Court will hear submissions from the parties on the question of the time allowed to pay the amount to be paid, and any costs.
The Court will hear submissions from the parties on the question of the time to be set for the lodging of all or any of the Respondent’s outstanding personal income tax returns.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 4 October 2011
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