AESCHBACHER & MUHLETALER
[2005] FMCAfam 537
•25 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AESCHBACHER & MUHLETALER | [2005] FMCAfam 537 |
| CHILD SUPPORT – Order made by the Civil District Court of Schwarzenburg in Switzerland – overseas maintenance order. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth), s.66W Family Law Regulations 1984 (Cth), Regs. 36, 38 |
| Roche & Glenn [2002] FAMCA 818; (2002) 30 Fam LR68; FLC 93-123 |
| Applicant: | WALTER AESCHBACHER |
| Respondent: | BRIGITTE RUTH MUHLETALER |
| File Number: | BRM 1508 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 25 August 2005 |
| Date of Last Submission: | 25 August 2005 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 25 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Loomes |
| Solicitors for the Applicant: | Fishburn Watson O’Brien |
| The Respondent: | No appearance |
ORDERS
The order for maintenance made by the Civil District Court of Schwarzenburg in the Republic of Switzerland on 17 August 1994 providing that the applicant pay to the respondent the sum of SEVEN HUNDRED AND FIFTY FRANCS (SFR 750) per month up to and including December 1995 and EIGHT HUNDRED AND FIFTY FRANCS (SFR 850) per month from January 1996 for the maintenance of the child FABIAN MICHAEL AESCHBACHER born 26 January 1987 is discharged with effect from 26 January 2003.
All arrears in respect of the said order are discharged with effect from the date to which they stand paid.
The Respondent is to pay the Applicant’s costs fixed in the sum of $1,330.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
BRM 1508 of 2005
| walter aeschbacher |
Applicant
And
| brigitte ruth muhletaler |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of a child of the marriage to discharge an order made by a Court in Switzerland. The application describes the document as a child support agreement, but in my view it is in fact an overseas maintenance order having been made by the Civil District Court of Schwarzenburg in Switzerland on 17th August 1994.
The father lives in Australia, although the child, who is now an adult, still lives in Switzerland. The child is an Australian citizen and by virtue of the fact that his father is in Australian citizenship and coincidentally I note was born on Australia Day.
In his application filed on 24th March 2005 the father seeks these orders.
(1)That the child support agreement signed between the parties in Switzerland on 17th August 1994 be stayed pending the assessment by this honourable Court.
(2) That the Switzerland child support agreement dated
17th August 1994 be set aside and that the father's child support liability be calculated in accordance with the Act.
I take it that the reference to the Act in fact refers to the Child Support(Assessment) Act 1989. In my view, as I said, this is an overseas maintenance order which has been registered in Australia with the Child Support Agency.
The brief history of the matter is that the father was born in Switzerland on 19th September 1948. He emigrated to Australia in 1970, returned to Switzerland in 1976 and returned to Australia in 1978 and returned to Switzerland in 1980. On 10th May 1986 he married the respondent. There is one child of the relationship to whom I will refer by the initial F, who was born on 26th January 1987. The applicant and the respondent separated in 1992 and were divorced by order of the Civil District Court of Schwarzenburg on 17th August 1994, the same date as the maintenance agreement was entered into.
The father said that at the time of entering into that agreement, which was in fact a consent order, he was earning a significant income and he agreed to pay child support in the sum of 750 Swiss francs per month until December 1995 and that he agreed from 1996 onwards that he would pay at the rate of 850 francs per month. The father deposed that he made that agreement until the child was 20 years of age. I note that the order refers to not an age as such, but
until the son reaches majority unless he starts to earn his own living beforehand.
The father relocated to Australia in October 2001. Prior to this time he deposes that he was paying child support in accordance with that agreement, but at that stage he found difficulty keeping up the payments. He was unemployed for a period of time and remained on Centrelink benefits until December 2004.
He now has obtained employment in Bellingen, New South Wales.
He says that during the period of 25th June 2002 to 8th June 2004 he made payments to the respondent of 3035 francs, which converted to approximately $3,372.00, Australian. From 12th October 2004 until
22 December he made payments directly to the Child support Agency in the sum of $696.65. On 21st January 2005 he received a letter from the Child Support Agency indicating that he owed an amount of $35,705.80 in child support payments.
He has deposed that he has limited financial means and he has described the fact that he purchased a home for himself and he requires extensive and expensive dental work, which he has been reluctant to do. The child holds dual Australian and Swiss citizenship by virtue of his parentage.
The mother despite having been served has filed no documents and has elected not to appear or be represented in these proceedings. Accordingly, the matter has proceeded on an undefended basis.
The father has given evidence by affidavit and orally in the witness box. In the proceedings before me today he told the Court that his son, who attained the age of 18 years on 26th January 2005, had in fact left school at the age of 16 and was earning an income in that he had obtained an apprenticeship. He gave evidence that his son was still engaged in that apprenticeship, for which he adds he is paid.
The consent order, the translation of which is before me, made by the Civil District Court said that the father undertook to pay to the mother maintenance payments in advance every month for the child F in the sum of 750 francs up to and including December 2005 and 850 francs from January 1996 in addition to additional child allowances.
The obligation to pay maintenance continues until the son reaches majority unless he starts to earn his own living beforehand.
In my view this is an overseas maintenance obligation as it is an order for child maintenance made by a Court having jurisdiction in Switzerland. Sub-reg 36(3) of the Family Law Regulations permits an application to a Court having jurisdiction under the Family Law Act for an order discharging, suspending, reviving or varying an order or liability to which the regulation applies.
The applicant being a person against whom the Swiss orders were made is permitted to make this application - see sub-reg 36(3) (b).
Sub-reg 3(c) permits the secretary of the Minister for Foreign Affairs to make an application on behalf of the person for whom benefit the order or agreement was made or for whose benefit the liability was created. In neither case has the mother or the son, who is now an adult, sought the assistance of the secretary of the Attorney-General's Department to contest these proceedings.
Sub-reg 36(4) provides that the law to be applied to determination of an application is the law in force in Australia under the Act, that is the Family Law Act. Reg 38 provides that an order made under reg 38 is provisional if the relevant reciprocating jurisdiction is one on the list contained in that regulation. Switzerland is not on that list.
In my view it is appropriate to apply the law that is in force in Australia. S.66W of the Family Law Act has been amended and the Full Court of the Family Court considered the effect of the amended section in Roche & Glenn (2002) FAMCA 818 (2002) 30 FLR68, FLC 93-123. The Court held that by operation of s.66W if arrears are due under a child maintenance order when the order ceases to be in force the Court has the power in the circumstances outlined in the section retrospectively to discharge or vary the order.
In my view by applying the law of Australia the age when the son reached majority is the age that the son would reach majority in Australia,, namely the age of 18. It is perhaps an academic point in that there is evidence that the son started to earn his own living beforehand when he left school at the age of 16 and commenced earning a paid apprenticeship.
In my view the appropriate date should be, in the absence of further evidence, the date when the child attained the age of 16.I am satisfied, therefore, the maintenance order made by the Civil District Court is no longer in force. I am satisfied that the child has left school, has completed his education as far as school is concerned and has commenced to earn his own living.
In my view it is appropriate to discharge the maintenance order and in my view it is appropriate to discharge the arrears. The fact is that this young man has been out of school for more than two years, he has been working and it is not appropriate that any arrears of child maintenance should be a windfall for the respondent. In any event, the respondent has elected not to contest the proceedings.
It is for these reasons that I intend to make orders discharging the maintenance and discharging the arrears with effect from the date to which they stand paid. I make the following orders.
The respondent is to pay the applicant's costs fixed in the sum of $1,330.00.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 7 October 2005
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