Aliyev & Higashi
[2024] FedCFamC1F 182
•20 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aliyev & Higashi [2024] FedCFamC1F 182
File number: SYC 3392 of 2020 Judgment of: HARPER J Date of judgment: 20 March 2024 Catchwords: FAMILY LAW – CHILD SUPPORT – Where father’s Amended Initiating Application dismissed for non-compliance with Court orders – Where mother sought orders for enforcement of child support assessment – Where father is resident overseas and has no assets or income in Australia against which a child support debt could be enforced by the Registrar of Child Support – Enforcement orders required to enable mother to recover debt overseas – Orders made that father pay arrears in child support – Where parties have engaged extensively with Services Australia and their review process – Where the requirement for service of the Registrar of Child Support dispensed with – Where it is just and equitable and otherwise proper to make an order for lump sum child support payments in lieu of periodic payments. Legislation: Child Support (Assessment) Act 1989 (Cth) ss 79, 117, 123(1)(b), 123A
Child Support (Registration and Collection) Act 1988 (Cth) ss 113, 104
Evidence Act 1995 (Cth) ss 91,157
Family Law Act 1975 (Cth) Pt VII, s 117(1)
Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (Cth) rr 1.13, 1.31, 11.27
Cases cited: Ainsworth v Burden [2005] NSWCA 174
Caffyn & Caffyn [2021] FedCFamC1F 68
Nevins & Urwin (2022) FLC 94-084; [2022] FedCFamC1A 57
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 18 March 2024 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Kelly Solicitor for the Respondent: Derham Houston Lawyers ORDERS
SYC 3392 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALIYEV
Applicant
AND: MS HIGASHI
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1.By no later than 19 April 2024 , pursuant to s 113 of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”) the Applicant Father (“the father”) pay to the Respondent Mother (“the mother”) or as she may direct in writing, the sum of $62,716 being the arrears of child support in relation to X born 2016 (“the child”).
2.By no later than 19 April 2024, pursuant to s 123(l)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) father pay child support to the mother by way of a lump sum payment in the amount of $10,485.
3.Pursuant to s 123A(3) of the Assessment Act the payment pursuant to Order 2 hereof shall be credited 100 per cent against the administrative assessment of child support for the period 1 April 2024 to 31 August 2024.
4.Commencing on 1 September 2024 and on 1 September every subsequent year up to and including 1 September 2033 the father pay child support to the mother by way of a lump sum payment in the amount of $30,000 (“the payment”), pursuant to s 123(1)(b) of the Assessment Act.
5.Pursuant to s 123A(3) of the Assessment Act the payment pursuant to Order 4 shall be credited 100 per cent against the administrative assessment of child support for the period from 1 September in the year it is payable to 31 August the following year.
6.By no later than 17 April 2024, each party do all acts and things and sign all documents as may be required to give effect to these orders.
7.In the event either party refuses to execute, neglects to execute or defaults in the execution of any deed, document or instrument necessary to give effect to these orders, then a Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the defaulting party and do all acts and things to give validity and operation to the deed, document or instrument upon the Registrar being provided with the verification of such refusal or failure by way of affidavit.
8.Pursuant to r 1.31(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the requirements of r 1.13 are dispensed with.
9.The mother serve a sealed copy of these orders on the Registrar of Child Support, as soon as practicable.
10.The father pay the mother’s costs of and incidental to these proceedings fixed in the sum of $5,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aliyev & Higashi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are parenting proceedings pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant father (“the father”) and the respondent mother (“the mother”).
The parties entered into final parenting orders on 5 September 2023 concerning the parties’ only child, X, born 2016 (“the child”). However, those orders did not finalise issues of child support. Order 32 of the 5 September 2023 orders was in the following terms:
32.The matter remains listed for Compliance and Readiness hearing before the Honourable Justice Campton on 11 March 2024 as to unresolved child support matters only.
Notations B and C provided as follows:
B. Contentious issues pertaining to child support remain to be determined by the Court, including as to the liability of the father for and the quantification of any child support arrears. These issues are unlikely to be determined by the Court until a date after 11 March 2024, when the matter is listed for Compliance and Readiness hearing before Justice Campton.
C. Each parent today has confirmed their intention that the time which the child spends with the father in accordance with these orders will not be disrupted by child support issues. As at today’s date, neither party is aware of and neither proposes to pursue any enforcement measures which might impact the father’s entry into or exit from Australia.
Accordingly, there remained to be determined the parties’ respective applications regarding child support.
On 30 August 2023, Rees J listed the child support issues for final hearing in a rolling list commencing on 11 March 2024. Her Honour also made directions for the parties to file and serve one affidavit upon which they proposed to rely at the final hearing. On 8 February 2024 Curran J ordered the mother to file and serve an Amended Response by no later than 22 February 2024, and the father to file and serve an Amended Initiating Application by no later than 29 February 2024. On 1 March 2024, Curran J again ordered the father to file an Amended Initiating Application.
The father currently lives in the United Kingdom. He filed an Amended Initiating Application on 4 March 2024. The orders sought by him in that application are as follows:
1.That pursuant to Australian Government Services Child Support form CS1970 Special Circumstances Part B Reason 1, any arrears of child support in relation to [the child] payable by [the father] to [the mother] as at the date of this application are subject to deductions to reflect [the father’s] travel and accommodation expenses etc required to spent time with [the child] as well as Child Supervision costs in accordance with all Court Orders made, subject to receipts. Additionally these deductions would also apply to any future amounts claimed as applicable with receipts.
2.That [the mother] fully comply with the Court Parenting Consent Orders already made, recognising that ongoing child support matters are not a reason to fail to comply with parenting consent Orders made.
3.That the consent orders made relating to increased access time for future visits are not dependant on whether [the child] decides to stay overnight with [the father] or not.
4.That [the mother] pay [the father’s] costs of and incidental to these proceedings, which have been necessary to obtain Court parenting consent orders to gain access to [the father’s] daughter [the child].
(As per the original)
On 22 February 2024 the mother filed a Fourth Amended Response, seeking orders for the payment of the outstanding arrears pursuant to s 113 of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Collection Act”) and for the future child support payments to be paid by way of lump sum payments rather than periodic payments pursuant to s 123(1)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). The full detail of the orders sought by the mother are set out in Annexure “A” to this judgment.
DISPOSITION
The father's application can be dealt with shortly. He failed to comply with any of the directions made by Rees J and Curran J. Accordingly, it is open to the Court to dismiss his Initiating Application for non-compliance pursuant to r 11.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (Cth) (“the Rules”). Furthermore, even a cursory consideration of the orders sought by the father demonstrate that they do not engage any jurisdiction of this Court. He did not explain how a child support form CS1970 empowered the Court to make any of the orders sought by him. He did not point to any other source of jurisdiction. His Amended Initiating Application will be dismissed.
Arrears
Turning then to the mother’s Fourth Amended Response she seeks first an order by this Court for payment of outstanding arrears which have accrued pursuant to administrative assessments made by the Registrar of Child Support being the Chief Executive of Services Australia (formerly the Child Support Agency) (“Services Australia”). At the date of hearing there was no dispute that the arrears totalled $62,716. The mother gave evidence that the father had made no payment of child support since 10 October 2021. The father himself conceded he had made no payments for about two years. He gave no evidence explaining this default.
I note here also that the father conceded in open court that he was happy to pay the existing assessment subject to receiving a credit for certain off-setting costs, such as travel to Australia, being taken not account. These appear to have been the object of his Amended Initiating Application, which as stated above I will dismiss. Despite stating he is prepared to make this payment, he has failed to pay even what he says he is prepared to pay.
I accept there is force in the mother’s concern that the father will continue to dissemble about meeting, and is likely to fail to meet, child support obligations unless he is subject to the compulsion of a court order.
The mother looks to this Court for enforcement although in the first instance it should be Services Australia that take steps to collect arrears of child support. The position here is complicated by the fact that the father lives in the United Kingdom. The mother tendered evidence which showed that the question of collection of arrears had been referred by Services Australia to the competent authority in the United Kingdom (Exhibit 1, p.2). Services Australia advised the mother on 8 December 2022 that they had been informed that a maintenance order had been registered in the United Kingdom requiring the father to pay Services Australia $2063.50 per month in child support and GBD10,293.4 in arrears (Exhibit 1, p.2). It was the mother’s case that since at least April 2022 nothing had been recovered. She contended that if this Court made an order for the payment of arrears, the mother herself could take steps to have it registered in the United Kingdom and could initiate enforcement there.
Since these proceedings were commenced in this Court prior to 1 September 2021, this Court retains jurisdiction pursuant to s 104 of the Collection Act, despite reference to this Court being removed from s 104 by amendments made in 2021 (see Nevins & Urwin (2022) FLC 94-084).
A payee of a child support liability may sue to recover a child support debt (s 79 of the Assessment Act; s 113 and s 113A of the Collection Act). This Court may make an order for payment, which can then be enforced, pursuant to those sections.
While there was no evidence concerning the process of enforcement in the United Kingdom, I accept that the mother should have the opportunity to take whatever steps in the United Kingdom that an order for payment from this Court would make available to her. The father made no submission which even arguably suggested why such an order should not be made. In those circumstances I am satisfied that it is appropriate to make an order regarding arrears as sought by the mother.
Non-periodic lump sum child support
The mother then seeks orders for non-periodic child support, in two amounts. The first amount is $25,000 to be paid within 28 days and pursuant to s 123A of the Assessment Act, and to be credited against the father’s liability under the existing administrative assessment for the period 1 September 2023 to 31 August 2024. The second amount is $30,000 to be paid on 1 September 2024, and on 1 September on each subsequent year until the child turns 18. The recurrent lump sum payment of $30,000 is to be set off against the father’s liability under the existing administrative assessment for the period 1 September in the year it is payable until 31 August the following year.
The Court has power to order non-periodic lump sums of child support in favour of a carer entitled to child support pursuant to s 123A of the Assessment Act. The mother is such a carer. The Court must be satisfied it would be “just and equitable as regards the child, the carer entitled to child support and the liable parent” and “otherwise proper” to make the order, the amount of the lump sum “equals or exceeds the annual rate of child support payable for the child under the administrative assessment” (s 123A(1)(c)). The order must “specify that the lump sum payment is to be credited against 100%, or another specified percentage that is less than 100%, of the amounts payable under the liability” (s 123A(3)(b)).
The existing administrative assessment issued on 1 March 2024 for the assessment period 1 January 2024 to 30 June 2024 calculated the annual amount of child support payable by the father to the mother to be $25,169, being $2,097.42 per month.
Subsections 123A(5), (6), (7) and (8) of the Assessment Act provide:
(5)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(6)In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(7)In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(8)Subsections (4), (5), (6) and (7) do not limit the matters to which the court may have regard.
It is unnecessary to set out in full the provisions of ss 117(4), 117(5), 117(6) and 117(7) of the Assessment Act. I have considered the matters specified therein. Bearing in mind the father filed no evidence or financial statement in accordance with the Court’s directions, it is only necessary to record the following matters.
The mother’s Financial Statement filed on 15 March 2024 shows she holds property valued at $1,695,904 and superannuation of $468,656. Her liabilities are $566,282. Her weekly income is $2,190 and her weekly expenses are $3,038.
The mother is currently employed as an administrator and in her final year of study for a postgraduate qualification.
As noted, the father gave no evidence of his assets or financial position in compliance with court orders. It was clear he understood the nature of the mother’s application for lump sum child support. The mother claimed in her evidence that he holds extensive property and valuable motor vehicles in the United Kingdom. Since this is the only evidence before the Court, I infer that the father has substantial assets in the United Kingdom.
The mother also provided evidence that the Administrative Appeals Tribunal assessed the father’s adjusted taxable income for the period 1 July 2021 to 31 December 2023 to be $275,027. I can receive this as evidence in a public document that is a judgment of a fact not in issue (s 91 and s 157 of the Evidence Act 1995 (Cth); Ainsworth v Burden [2005] NSWCA 174 at [109]; Caffyn & Caffyn [2021] FedCFamC1F 68 at [36]–[50]). She also gave uncontested evidence of the father’s expenditure on travel and expensive art works.
The child attends a private school and has no income or financial resources of her own.
The mother argued that the order for a lump sum payment each year will remove the difficulty of attempting to recover arrears in the future or enforce an order for periodic payments, in light of the father’s history of recalcitrance in payment. The existence of the substantial arrears and the attitude of the father to the determination of these proceedings as they relate to child support leads me to infer it is likely he will continue to be noncompliant.
The mother gave evidence that:
Having an order for lump sum child support will enable me to have certainty of payment and will mean that I do not have to wait and wonder if payment will be made each month. It will enable me to plan properly for [the child’s] care, education and extracurricular activities. Currently I can't commit to any extracurricular activities for [the child], […] and I am worried that she will fall behind her peers and have reduced opportunities due to my strained financial position and lack of child support from [the father].
(Affidavit of the mother filed 8 March 2024, paragraph 77)
I am satisfied that in light of the duty of the father to maintain the child, the income and financial resources of both parents and the absence of hardship to the father if the proposed orders are made, and the likely hardship to the mother if they are refused, it is just and equitable and otherwise proper for orders broadly as sought by the mother to be made. I am satisfied that they comply with the requirements of s 123A of the Assessment Act.
However, one problem is that the amount of arrears, $62,716 covers the period from October 2021 until the date of hearing. This means that it overlaps by about seven months with the period claimed to be covered by the first lump sum order for $25,000, which is intended to be credited against an entire year, that is, the period from 1 September 2023 until 31 August 2024. The mother did not address this in her evidence or proposed orders. In my view the first proposed order for a lump sum should be limited to the period from 1 April 2024 ending on 31 August 2024, or five months. According to the existing assessment, the monthly rate is $2,097 payable by the father. I propose to make the lump sum order reduced to an amount equivalent to five times $2,097 or $10,485 (rounded) in order to avoid the possibility of double recovery by the mother.
The mother did not give any direct evidence or argument in support of the lump sum figure of $30,000, sought until the child turns 18, although she loosely connected it with likely increases in future administrative assessments. However, the father said nothing about it, or the proposed period of nine years over which the mother’s argues it should be paid. For those reasons I will accept the figure of $30,000. It is open to the father to apply pursuant to s 129 of the Assessment Act modify or discharge the orders I will make, in the event he contends there is a proper basis to do so in the future.
I note that under r 1.13(4) of the Rules the Child Support Registrar is to be served with an application made under the Assessment Act. There was no evidence the mother had served the Registrar. However, the father took no point about this and in the circumstances, I see no reason to conclude compliance with this rule is essential, or that the interests of justice require compliance. I dispense with compliance with r 1.13 pursuant to r 1.31(1).
Subject to the matters discussed in these reasons, I will make orders as broadly proposed by the mother in her Fourth Amended Response.
The mother sought costs of her application for child support. She engaged solicitor and counsel. As pointed out the father did not engage in any meaningful way with the Court process. I consider this is a circumstance justifying a departure from the position set forth in s 117(1) of the Act and an order for costs in the mother’s favour. She provided no evidence of her costs but in by reference to the Court’s scales of costs I consider a fixed sum of $5,500 is appropriate.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 19 March 2024
ANNEXURE A: ORDERS SOUGHT BY THE MOTHER
1. That pursuant to section 113 of the Child Support (Registration and Collection) Act 1988 ("CSRCA") the applicant pay the sum of $60,744.94 being the arrears of child support in relation to [X] born […] 2016 payable by the applicant to the respondent as at the date of this application.
2. That pursuant to section 123(l)(b) of the Child Support (Assessment) Act 1989 ("CSA Act") the applicant pay child support by way of a lump sum payment in the sum of $25,000 within 28 days of the date of order.
3.That pursuant to section 123A(3) of the CSA Act the payment pursuant to order l hereof shall be credited 100% against the administrative assessment of child support for the period 1 September 2023 to 31 August 2024.
4. That pursuant to section 123(l)(b) of the Child Support (Assessment) Act 1989 ("CSA Act") the applicant pay child support by way of a lump sum payment in the sum of $30,000 ("the payment") on 1 September 2024 and on 1 September each subsequent year until the child turns 18.
5. That pursuant to section 123A(3) of the CSA Act the lump sum payments pursuant to order 3 hereof shall be credited 100% against the administrative assessment of child support for the period from 1 September in the year it is payable to 31 August the following year.
6. That within 28 days of the day of order, each party do all acts and things and sign all documents as may be required to give effect to these Orders.
7. That in the event either party refuses to execute, neglects to execute or defaults in the execution of any deed, document or instrument necessary to give effect to these Orders, then the Registrar of the Court shall be appointed pursuant to section I 06A of the Family Law Act to execute such deed, document or instrument in the name of the defaulting party and do all acts and things to give validity and operation to the deed, document or instrument upon the Registrar being provided with the verification of such refusal or failure by way of affidavit.
7. That the Applicant pay the Respondent’s costs of and incidental to these proceedings.
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