CHILD SUPPORT REGISTRAR & STEWART - [2015] FCCA 1662

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & STEWART

[2015] FCCA 1662

Catchwords:
CHILD SUPPORT – Enforcement – arrears of child support – late payment penalties – where respondent failed to appear – where respondent failed to file a Response or an affidavit.

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

Legislation:

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

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

Cases cited:
Bixby & Bixby [2015] FCCA 816

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR STEWART

File Number:

SYC 279 of 2015

Judgment of:

Judge Scarlett

Hearing date:

16 June 2015

Date of Last Submission:

16 June 2015

Delivered at:

Sydney

Delivered on:

16 June 2015

REPRESENTATION

Solicitor for the Applicant:

Ms Taah

Solicitors for the Applicant:

Australian Government Solicitor

Respondent:

No appearance

DECLARATION

As at 16 June 2015 the Respondent owes the Applicant the sum of $69,193.99 (“child support debt”) consisting of $59,359.69 arrears of child support and $9,834.30 in late penalties.

ORDERS

The Respondent is to pay to the Applicant the child support debt of $69,193.99.
The Respondent is to pay to the Applicant’s costs fixed in the sum of $6,073.08.
The Respondent is to pay to the Applicant the sum of $75,267.07 (“total debt”) comprising the child support debt as declared above and the Applicant’s legal costs as follows:
(a)Instalment payments of $1,000.00 per month for 6 months commencing on 16 July 2015;
(b)The balance of the total debt within 30 days after the final monthly instalment payment.
Until Further Order of the Court or payment in full of the total debt the following provisions apply:
(a)The Respondent is restrained from selling, assigning, transferring, further encumbering or dealing in any way with his interest in the real properties at:
(i)Property W in the State of New South Wales being the land comprised in Certificate of Title Folio (omitted);
(ii)Property R in the State of New South Wales being the land comprised in Certificate of Title Folio (omitted)
(“real property”), without the prior written consent of the Applicant.
(b)The Respondent’s interest in the real property is to be 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.
(c)The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the following personal property:
(i)a (omitted) motor cycle ((omitted)) registration number (omitted) ((omitted) Motor Cycle) VIN (omitted);
(ii)a (omitted) Caravan ((omitted)) registration number (omitted) ((omitted) Caravan) VIN (omitted);
(iii)a (omitted) box trailer registration number (omitted) (Box Trailer) VIN (omitted)
(iv)a (omitted) Toyota (omitted) ((omitted)) registration number (omitted) (Toyota (omitted)) VIN (omitted);
(v)a Ford (omitted) ((omitted)) registration number (omitted) (Ford (omitted)) VIN (omitted);
without the prior written consent of the Applicant.
(d)The Respondent’s interest in his personal…

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: [2015] FCCA 1662
Decision Date: 16 June 2015

CaseChat Overview and Summary

This matter concerned an application by the Child Support Registrar against Mr. Stewart regarding significant arrears of child support. Mr. Stewart failed to appear at the hearing and did not file a response or affidavit. The court was therefore required to determine the extent of the child support debt and the appropriate orders for its recovery.

The primary legal issue before Judge Scarlett was the enforcement of child support arrears and the imposition of late payment penalties. The court also considered an application for costs. The court's reasoning focused on the undisputed child support debt and the need to ensure its payment. Given the respondent's failure to appear or provide any defence, the court proceeded to make orders based on the evidence presented by the applicant.

The court ordered Mr. Stewart to pay the declared child support debt of $69,193.99. In addition, the court ordered Mr. Stewart to pay the applicant's costs fixed at $6,073.08. The total debt of $75,267.07 was to be paid by way of monthly instalments of $1,000.00 for six months, with the balance due within 30 days of the final instalment. To secure this debt, the court imposed charges over Mr. Stewart's interests in specified real and personal properties and restrained him from dealing with these assets without the applicant's consent. Default in payment or breach of the restraint provisions would render the total debt immediately due and payable, with the applicant at liberty to pursue enforcement under the Federal Circuit Court Rules.

Orders

Orders of the court

The Respondent is to pay to the Applicant the child support debt of $69,193.99.

The Respondent is to pay to the Applicant’s costs fixed in the sum of $6,073.08.

The Respondent is to pay to the Applicant the sum of $75,267.07 (“total debt”) comprising the child support debt as declared above and the Applicant’s legal costs as follows:

(a) Instalment payments of $1,000.00 per month for 6 months commencing on 16 July 2015;

(b) The balance of the total debt within 30 days after the final monthly instalment payment.

Until Further Order of the Court or payment in full of the total debt the following provisions apply:

(a) The Respondent is restrained from selling, assigning, transferring, further encumbering or dealing in any way with his interest in the real properties at:

(i) Property W in the State of New South Wales being the land comprised in Certificate of Title Folio (omitted);

(ii) Property R in the State of New South Wales being the land comprised in Certificate of Title Folio (omitted)

(“real property”), without the prior written consent of the Applicant.

(b) The Respondent’s interest in the real property is to be 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.

(c) The Respondent is hereby restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the following personal property:

(i) a (omitted) motor cycle ((omitted)) registration number (omitted) ((omitted) Motor Cycle) VIN (omitted);

(ii) a (omitted) Caravan ((omitted)) registration number (omitted) ((omitted) Caravan) VIN (omitted);

(iii) a (omitted) box trailer registration number (omitted) (Box Trailer) VIN (omitted)

(iv) a (omitted) Toyota (omitted) ((omitted)) registration number (omitted) (Toyota (omitted)) VIN (omitted);

(v) a Ford (omitted) ((omitted)) registration number (omitted) (Ford (omitted)) VIN (omitted);

without the prior written consent of the Applicant.

(d) The Respondent’s interest in his personal property is to be charged in favour of the Applicant for the total debt and the Applicant is at liberty to lodge an encumbrance over the personal property to secure the interest created by this charge.

If the Respondent defaults in making any payments ordered to be paid under these Orders or deals with any of the personal property or real property in breach of these Orders the amount of the total debt will be immediately due and payable.

AND THE COURT NOTES THAT

A. Any monies payable by the Respondent in accordance with 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 personal property or real property in breach of these Orders then the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 including Subdivision 25B.2.3 – Enforcement warrants and Subdivision 25B.2.4 – Third Party Debt Notice.

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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