CHILD SUPPORT REGISTRAR & THORPE

[2014] FCCA 564

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & THORPE [2014] FCCA 564

Catchwords:
CHILD SUPPORT – Enforcement – Child Support Debt – where Respondent failed to attend Court.

COSTS – 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, rr.13.03C, Part 2, Schedule 1

Applicant: CHILD SUPPORT REGISTRAR

Respondent: MR THORPE

File Number: SYC 6440 of 2013

Judgment of: Judge Scarlett

Hearing date: 11 March 2014

Date of Last Submission: 11 March 2014

Delivered at: Sydney

Delivered on: 11 March 2014

REPRESENTATION

Solicitor for the Applicant: Mr James

Solicitors for the Applicant: Australian Government Solicitor

The Respondent: No appearance

DECLARATION

As at 11 March 2014 the Respondent owes the Applicant the sum of $25,504.24 (Child Support Debt) consisting of $19,228.85 in arrears of child support and $4,275.39 in late payment penalties.

ORDERS

1. The Respondent is to pay to the Applicant the Child Support Debt of $23,504.24.

2. The Respondent is to pay to the Applicant’s costs fixed in the sum of $2,845.00.

3. The Respondent is to pay to the Applicant the sum of $26,349.24 (the Total Debt) comprising the Child Support Debt and the Applicant’s legal costs within 60 days of the date of these Orders.

4. On or before 30 April 2014 the Respondent is to lodge with the Australian Taxation Office all outstanding personal income tax returns for the financial years ended 30 June 2009 to 30 June 2013.

5. Until further order of the Court or payment in full of the Total Debt the following provisions are to apply:

   (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 R in the State of New South Wales, described in Certificate of Title Folio (omitted) (the 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 restrained from assigning, transferring, further encumbering or dealing in any way with his interest in the Toyota (model omitted) sedan registration number (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.

6. If the Respondent defaults in any way 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, the amount of the total debt then outstanding will be 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 personal property or 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 Federal Circuit 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 & Thorpe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6440 of 2013

CHILD SUPPORT REGISTRAR

Applicant

And

MR THORPE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case seeking a declaration that the Respondent owes the Applicant, the Child Support Registrar, the sum of $23,504.24 consisting of $19,228.85 in arrears of child support payments and $4,275.39 in late payment penalties. The Registrar also seeks orders for payment of the child support debt and an order for costs.

2. The Respondent has not attended Court, even though he was served with the documents on 24^th January 2014 in accordance with an Order for Substituted Service made on 20^th January 2014. The Registrar relies on an affidavit to that effect from Rebecca Jones, solicitor, affirmed on 11^th March 2014.

3. In her affidavit Ms Jones also deposes to a telephone conversation with the Respondent on 31^st January, in which she spoke to him about the hearing before the Court today.

4. Despite this, the Respondent has not attended Court, nor has he sent any message explaining that he has been delayed, hindered or prevented from attending Court due to illness, injury or other emergency.

5. Due to the Respondent’s unexplained absence from the hearing, the Court has decided to proceed with the hearing generally, under the provisions of Rule 13.03C(1)(e).    

Hearing

1. The Registrar relied on:

   a)the affidavit of Ms R of 30^th October 2013;

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

   c)a 6 page Child Support Payer Transaction Statement for the period 2^nd April 2003 to 10^th March 2014.

2. The certificate under s.116(2) shows a total amount of $23,504.24 as due and payable at today’s date, made up of the Child Support debt of $19,228.85 and penalties of $4,275.39.

Conclusions

1. The Registrar has established that the Respondent owes the sum of $23,504.24, including late payment penalties. I propose to make a declaration to that effect.

2. Orders will also be made to enforce the payment of the outstanding amount.

Costs

1. The Registrar seeks an order for costs in the sum of $2,845.00. The Respondent has been wholly unsuccessful in these proceedings (Family Law Act 1975 (Cth)) and it appears that this is a matter where a costs order is warranted. The amount sought is in accordance with the scale of costs in Part 2 of Schedule 1 of the Rules and it appears to be an appropriate amount to order.

2. The Respondent is to pay the Child Support Registrar’s costs fixed in the sum of $2,845.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  21 March 2014