JOVANIC & MYER

[2015] FamCA 674

FAMILY COURT OF AUSTRALIA

JOVANIC & MYER [2015] FamCA 674

FAMILY LAW – CHILD SUPPORT – Arrears – application by the mother pursuant to s 113A Child Support (Registration and Collection) Act 1988 (Cth) to recover debt owed by the husband – interim orders made that the father pay the full amount of Child Support owing

FAMILY LAW – COSTS – Application by the mother for costs in a fixed sum – circumstances justifying departure from the general rule that each party bear their own costs – where the mother has been entirely successful in her application – where the father has produced no evidence as to his financial circumstances – where the mother is in receipt of Centrelink benefits

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Jovanic

RESPONDENT: Mr Myer

FILE NUMBER: MLC 9008 of 2014

DATE DELIVERED: 2 June 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goldthorp

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. That pursuant to Rule 20.03 of the Family Law Rules 2004 the respondent pay the amount of $38,751.39 or such greater amount as may be owing by the respondent at the date of payment, being the amount owed by the respondent for a Child Support liability for the applicant is the payee, Child Support Agency case number 812 692 704 550.

2. That pursuant to s 111F of the Child Support (Registration and Collection) Act 1988 the payment of the amount in Order 1 be made to the Child Support Registrar within 28 days.

BY CONSENT

1. The respondent be and is hereby restrained from encumbering or further encumbering or from increasing the level of debt over the property at B Street, Suburb C in the State of Victoria.

BY THE COURT

1. That the respondent pay the Applicant’s costs of this day fixed in the sum of $1,540, such sum to be paid within 30 days.

BY CONSENT

1. That the father within 14 days comply with his discovery obligations as set out in paragraph 11 of the Orders made in this Honourable Court dated 5 May 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jovanic & Myer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9008 of 2014

Ms Jovanic

Applicant

And

Mr Myer

Respondent

REASONS FOR JUDGMENT

1. I have before me today the mother’s application to seek orders pursuant to section 113A of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Child Support (Registration and Collection) Act”).  The application is commenced by way of an Amended Initiating Application filed on behalf of the mother on 22 April 2015.  That application is supported by an affidavit of the mother filed the same day.  In addition, I have been referred to an annexure to an affidavit of the mother filed on 1 June 2015. 

2. The father has filed a Response to Initiating Application on 30 April 2015.  That response is supported by an affidavit filed on behalf of the father on 26 May 2015. 

3. The father has today appeared unrepresented, his solicitors having recently ceased to act.  In the circumstances, at the callover of the matter, I indicated to the parties that I would stand the matter down to enable the father to attend upon the duty lawyer present at Court to obtain advice as to how the matter would likely proceed, and to assist the father in presenting his case.  The father availed himself of that opportunity, and the matter was stood down for a period of approximately an hour.

4. I was informed at the commencement of the hearing that the father has, in fact, attended upon the duty lawyer and that he was ready for the application to proceed. 

5. The background to the matter is as follows. The parties commenced cohabitation in about October of 2003, and separated in February of 2011.  There are two children of the relationship, D, who is aged six, and E who is aged four.  D is at school, and E is attending preschool.  Both children live with the mother and spend time with the father, pursuant to interim orders made by the Court.

6. The parties have already had a number of attendances at Court in relation to interim issues, most recently on 5 May 2015 when interim parenting orders were made by Senior Registrar FitzGibbon. There are also financial proceedings before the Court;  the  mother seeks property orders. 

7. The application before me today is that I make an order pursuant to s113A of the Child Support (Registration and Collection) Act that the father pay the arrears of child support which have accrued.  I have been provided with a copy of a letter dated 21 April 2015, which evidences that the Registrar of the Child Support Agency has been given notice of the intention of the mother to commence these proceedings to recover the child support debt.  That letter will remain on the Court file and be marked with the letter A. 

8. I have also been taken to two certificates issued by the Registrar of the Child Support Agency, confirming the quantum of the child support liability. Annexure SKJ27 of the mother’s affidavit filed 22 April 2015 is a certificate provided by the Child Support Agency, pursuant to s 116(2) of the Child Support (Registration and Collection) Act.  That certificate confirms that the child support debt, as at 24 March 2015, was then $35,974.34. 

9. Annexure SKJ8 to the mother’s affidavit filed 1 June 2015 provides another certificate issued by the Child Support Agency pursuant to s 116(2) of the Child Support (Registration and Collection) Act.  That certificate confirms that as at 29 May 2015, the child support debt of the father was $38,751.34. 

10. The mother’s position is put simply: there has been a child support liability of the father since her original application for an assessment, which was made approximately six months following the parties’ separation in 2011.  The father’s child support liability was assessed and has continued since that date.  In November 2013, the mother requested the Child Support Agency to commence collecting the child support from the father on her behalf.  That action was taken, she says, due to the father’s failure to properly disclose his true financial circumstances. 

11. Since the Child Support Agency has been engaged to collect the child support liability, the arrears have commenced accruing.  She says the father has been represented in the proceedings since they commenced in October 2014.  He has been on notice as to the mother’s position with respect to child support, and the application of the mother to seek payment of the debt since April 2015.  The father has done nothing to actively oppose or seek to amend the quantum of arrears.  He has not sought a discharge of the arrears.  He has sat on his hands.

12. The mother says that her financial circumstances are strained.  She has only Centrelink benefits as her source of income.  She is reliant on payment of child support to be able to properly provide for the parties’ two young children. 

13. In opposing the application, the father’s case is that he is in straightened financial times.  He is unable to work due to a departure prohibition order that has been obtained by the Child Support Agency.  As a result, he is unable to travel to Country F for work. 

14. The father has not filed any recent financial material which would assist me in assessing his position.  He has not filed any application either in this Court or to the Child Support Agency which would indicate he is actively seeking to address the outstanding issue in relation to the debt. 

15. The father in his submissions before me conceded that the current assessment, being the sum of $1,388.50, was appropriate.  The father conceded that he did not seek to challenge the quantum of that child support liability.  Further, the father conceded that that amount was an appropriate amount of child support, historically.  He conceded that he did not challenge his liability in respect of the debt. 

16. I am satisfied, having regard to that history, that the orders sought by the mother in paragraphs 1 and 2 of the minute of order that has been prepared on her behalf today are appropriate orders of this Court.  Accordingly, I will make orders in the terms of paragraphs 1 and 2 of the minute of orders prepared on behalf of the mother. 

17. Further, the parties have reached agreement in relation to some injunctions related to a property in B Street, and in relation to issues around the father’s disclosure.  I will make the orders set out in that minute, being at paragraphs 3 and 5.  They will be orders by consent. 

18. I have a further oral application made on behalf of the mother. That is an application pursuant to s 117 of the Family Law Act1975 (Cth) (“the Act”) that the father pay the mother’s costs, fixed in the sum of $1540, that being the brief fee for counsel appearing on behalf of the mother this day. The father opposes that application, although he concedes that in circumstances where the mother has succeeded in her application it is likely that a costs order may be made.

19. Section 117(1) of the Act provides that the general rule is that each party to proceedings under this Act shall bear his or her own costs. Section 117(2) provides that if the court is of the opinion that there are circumstances that justify the making of a costs order, subject to subsection (2A) and the applicable rules of court, the court may make such order for costs as it considers appropriate.

20. Section 117(2A) of the Act sets out the matters to be taken into account in determining whether or not a costs order should be made. Those matters include the financial circumstances of each of the parties. I have already noted that the position of the mother is that she is in receipt of Centrelink benefits. That is her only source of income. I have no current evidence before me as to the father’s financial circumstances, albeit that the mother in her affidavit deposes that as at 2013, the father’s income was substantial and in excess of $400,000 per annum.

21. Neither party to the proceedings is in receipt of legal aid.  The conduct of the parties is a matter relevant.  The father has not put any material before the Court which may have assisted me in determining the matter.  It is evident from the material filed by or on behalf of the mother that she has sought to comply with the rules of Court in prosecuting her application. 

22. The mother has been wholly successful in her application before the Court.  In the circumstances, I am satisfied that it is appropriate that an order for costs be made.  I am further satisfied that the amount sought on behalf of the mother is an appropriate amount, having regard to the rules of Court.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 June 2015.

Associate: 

Date: 2 June 2015