Daniels & Bell

This matter came before Finn, Warnick and May JJ on appeal from a decision of the Federal Magistrate. The appeal concerned the power of the Child Support Registrar to issue an enforcement summons. The appellants argued that the Federal Magistrate erred in finding that such power existed.

The primary legal issue before the Full Court was whether the Federal Magistrate had the power to issue an enforcement summons under Order 33 Rule 2 of the Family Law Rules, given the nature of the liability sought to be enforced. Specifically, the appellants contended that the Federal Magistrate inconsistently characterised the liability as both arising from a court order and a registered maintenance liability, and that the former characterisation was incorrect for the purposes of issuing an enforcement summons.

The Court noted that the Federal Magistrate, Baumann FM, had considered decisions such as *Deputy Child Support Registrar v [K]* and *Deputy Child Support Registrar v The Public Trustee*, which indicated that Order 33 did not provide a remedy for enforcing debts due to the Commonwealth under a registered administrative assessment. However, Baumann FM distinguished the present case, finding that the liability arose from a court order exercising powers under the *Family Law Act 1975*. He relied on *Harrison* (1996) FLC 92-256, which suggested that a reference to "the Act" in Order 33 Rule 2(6) could include authorisation for the registrar to recover monies arising from non-payment of registrable maintenance liabilities. Baumann FM concluded that power did exist to issue the enforcement summons. The Court observed that the appellants' written submissions accepted the liability was a registered maintenance liability, which was also unarguably one that arose from a court order (save for penalties).