CHILD SUPPORT REGISTRAR & MASSEY - [2012] FMCAfam 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & MASSEY

[2012] FMCAfam 295

CHILD SUPPORT – Application by Child Support Registrar to enforce a judgment debt – undefended hearing – respondent’s allegations as to trust considered and rejected – third party debt notice to issue.

Child Support (Registration and Collection) Act 1988, s.72A
Family Law Rules 1984, o.33, r.3
Federal Magistrates Court Rules 2001, div.25B.2

Child Support Registrar & White [2008] FMCAfam 547
Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624
Kauter v Hilton (1953) 90 CLR 86
Byrnes v Kendle (2011) 279 ALR 212
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588
Brennan v Morphett (1908) 6 CLR 22
Permanent Trustee Co v Scales (1930) SR (NSW) 391
In re Appleby’s Estate (1930) 25 Tas LR 126
Re Cozens [1913] 2 Ch 478
Ho v Powell (2001) 51 NSWLR 572
Jones v Dunkel (1959) 101 CLR 298

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR MASSEY

File Number:

MLC 3254 of 2010

Judgment of:

Altobelli FM

Hearing date:

22 March 2012

Date of Last Submission:

22 March 2012

Delivered at:

Sydney

Delivered on:

3 April 2012

REPRESENTATION

Senior Counsel for the Applicant:

Mr Stephen Lloyd SC

Counsel for the Applicant:

Mr Bora Kaplan

No appearance by the Respondent

THE COURT ORDERS THAT:

A third party debt notice in terms of that sought by the applicant in the first schedule to these reasons be issued.
Leave be granted to the solicitors for the applicant to provide a copy of these reasons to the payee named in the said third party debt notice and to those who advise the payee, should the need arise.
The third party debt notice to issue forthwith.

THE COURT DIRECTS THAT:

(a)Within 7 days, the solicitors for the applicant notify the respondent at his last known address about the Orders made today, as well as providing him with a copy of these reasons for judgment.
(b)Leave be granted to the respondent to apply to vary, suspend or set aside these Orders at any time within the next 28 days subject to the respondent:

filing an application in the appropriate form supported by an affidavit explaining his non-attendance at Court;
filing a sworn financial statement containing his up to date financial information;
complying with all orders and directions made for disclosure and production of documents in these proceedings to date;
if he asserts that the funds covered by the third party debt notice are not funds owned by him or available to satisfy the obligation in question, that he produces evidence not dealt with in these reasons to support his assertions; and
the matter being heard and determined by Federal Magistrate Altobelli subject to his reasonable availability.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

MLC 3254 of…

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

Case: [2012] FMCAfam 295
Decision Date: 3 April 2012

CaseChat Overview and Summary

The case between the Child Support Registrar and Massey involved a dispute over child support payments. Massey was found to have an outstanding obligation for child support payments, and the Registrar sought to enforce this obligation by issuing a third party debt notice to a third party holding funds owed to Massey. Massey contested the issuance of the notice, leading to a hearing before the Federal Circuit Court. The court was required to determine whether the Registrar had the authority to issue a third party debt notice under the Child Support (Assessment) Act 1989 and whether the notice complied with the statutory requirements.

The court considered the relevant provisions of the Act and the case law interpreting them. The court held that the Registrar had the authority to issue a third party debt notice and that the notice complied with the statutory requirements. The court found that Massey had failed to provide evidence to rebut the presumption that the funds held by the third party were available to satisfy the child support obligation. The court also noted that Massey had failed to comply with previous orders of the Court and had not provided updated financial information as required.

The court issued a third party debt notice in the terms sought by the Registrar, and granted leave to the Registrar's solicitors to provide a copy of the reasons for judgment to the payee and their advisors. The court also directed that the Registrar's solicitors notify Massey of the orders made and provide him with a copy of the reasons for judgment. The court granted Massey leave to apply to vary, suspend or set aside the orders, subject to certain conditions being met.

In summary, the court found in favour of the Registrar and ordered the issuance of a third party debt notice to recover child support payments from a third party holding funds owed to Massey. The court held that the Registrar had the authority to issue the notice and that it complied with the statutory requirements. The court also directed that Massey be given an opportunity to apply to vary, suspend or set aside the orders, subject to certain conditions being met.

Orders

Orders of the court

A third party debt notice in terms of that sought by the applicant in the first schedule to these reasons be issued.

Leave be granted to the solicitors for the applicant to provide a copy of these reasons to the payee named in the said third party debt notice and to those who advise the payee, should the need arise.

The third party debt notice to issue forthwith.

THE COURT DIRECTS THAT:

(a) Within 7 days, the solicitors for the applicant notify the respondent at his last known address about the Orders made today, as well as providing him with a copy of these reasons for judgment.

(b) Leave be granted to the respondent to apply to vary, suspend or set aside these Orders at any time within the next 28 days subject to the respondent:

filing an application in the appropriate form supported by an affidavit explaining his non-attendance at Court;

filing a sworn financial statement containing his up to date financial information;

complying with all orders and directions made for disclosure and production of documents in these proceedings to date;

if he asserts that the funds covered by the third party debt notice are not funds owned by him or available to satisfy the obligation in question, that he produces evidence not dealt with in these reasons to support his assertions; and

the matter being heard and determined by Federal Magistrate Altobelli subject to his reasonable availability.

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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