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

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

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

3. 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.

4. 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.

5. 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 279 of 2015

CHILD SUPPORT REGISTRAR

Applicant

And

MR STEWART

Respondent

REASONS FOR JUDGMENT

Application in a Case

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 on the hearing. He did attend Court on 14 April 2015, when orders were made that he was to file and serve a Response, and affidavit outlining the facts on which he sought to rely and a Financial Statement by 2 June 2015. He did not file any documents.

3. In view of the unexplained failure of the Respondent to attend Court, 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 J of 25 March 2015;

   b)the affidavit of Ms J of 30 March 2015;

   c)a Child Support Payer Transaction Statement dated 15 June2015; and

   d)a Certificate under Sub-section 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) dated 15 June 2015.

2. Ms J gave short oral evidence.

3. The Certificate under s.116(2) shows that amounts totalling $69,193.99 were outstanding as at 15 June 2015. This amount consisted of a child support debt of $59,359.69 and penalties of $9,834.30.

Conclusions

1. The Registrar has shown that the Respondent owed a total amount of $69,193.99 as at 15 June 2015. The liability arose in respect of payments of child support for the Respondent’s daughter, who was born (omitted) 1999. He has an interest in real estate at Property W and Property R and owns a number of motor vehicles.

2. The Registrar also seeks an order for costs in accordance with Schedule 1 to the rules in the amount of $6,073.08. This is slightly higher than usual, as one of the disbursements being sought is the sum of $1,818.00 owing to Meher Gavan of Counsel. This liability arose from the need to bring an urgent interlocutory Application which was heard in my absence by Her Honour Judge Henderson on 31 March 2015. In my view, there are circumstances that justify the claim for counsel’s fees in this instance (see Bixby & Bixby[1]).

   [1] [2015] FCCA 816

3. I am of the opinion that there are circumstances that justify the Court in making an order for costs against the Respondent in the sum of $6,073.08.

4. I will allow time to pay the debt as submitted by the Child Support Registrar.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  18 June 2015