Benbow and Rosa and Anor
[2017] FCCA 2042
•31 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENBOW & ROSA & ANOR | [2017] FCCA 2042 |
| Catchwords: CHILD SUPPORT – Where the father has made an application pursuant to Reg. 36 of the Family Law Regulations to have a child support order made by the District Court in Hong Kong discharged – where the mother seeks to have the application stayed or dismissed on the basis that the Australian court is a clearly inappropriate forum – where the mother bears the onus and cannot establish that it would be vexatious or oppressive to her if the proceedings continued. |
| Legislation: Child Support (Registration & Collection) Act 1988 (Cth), ss.18A, 30 |
| Cases cited: Henry & Henry (1996) FLC 92-685 |
| Applicant: | MR BENBOW |
| First Respondent: | MS ROSA |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | NCC 955 of 2016 |
| Judgment of: | Judge Terry |
| Hearing date: | 2 December 2016 |
| Date of Last Submission: | 2 December 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 31 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | Baker Love Lawyers |
| Counsel for the First Respondent: | Mr Bateman |
| Solicitors for the First Respondent: | Harris Freeman Lawyers |
| The Second Respondent: | No appearance |
ORDERS
The respondent’s interim application to have the applicant’s further amended initiating application filed on 3 August 2016 dismissed or permanently stayed is dismissed.
The matter is adjourned to 9.30am on 6 September 2017 for further consideration.
IT IS NOTED that publication of this judgment under the pseudonym Benbow & Rosa & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 955 of 2016
| MR BENBOW |
Applicant
And
| MS ROSA |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Mr Benbow has applied pursuant to Regulation 36 of the Family Law Regulations for an order discharging an order made by the District Court of the Hong Kong Special Adminstrative Region on 17 July 2014 which requires him to pay child support of HKD15,000.00 per month to Ms Rosa for the parties children [X] and [Y].
Mr Benbow has only ever voluntarily made 3 part-payments pursuant to the order and as at December 2016 he owed arrears of AUD92,000.00.
Although Mr Benbow’s application was headed “Variation of Maintenance Order”, he in fact sought to have the order discharged “with effect from the date to which same presently stands paid”.
Ms Rosa has filed a response in which she seeks an interim order that the application be dismissed or permanently stayed on the basis that the Federal Circuit Court of Australia is a clearly inappropriate forum.[1]
[1] This was Ms Rosa’s case as set out in her written submissions and as argued. The only order she sought in her further amended response filed on 2 September 2016 was that the application be summarily dismissed.
The Child Support Registrar, who is responsible for enforcing the order in Australia, is the second respondent in the proceedings.
The Child Support Registrar was represented at the mention on 7 September 2016 when the matter was adjourned to 2 December 2016 for hearing of Ms Rosa’s interim application. An order was made giving the Child Support Registrar liberty to file submissions in respect of the forum issue if they wished but they did not do so and did not appear on 2 December 2016.
The evidence
The hearing on 2 December 2016 proceeded by way of submissions.
Mr Benbow relied on his further amended initiating application filed on 3 August 2016, his affidavit and financial statement filed on 22 April 2016 and his written submissions filed on 21 October 2016.
Ms Rosa relied on her response to the further amended initiating application filed on 2 September 2016, her affidavit filed on 19 July 2016 and her written submissions filed on 18 November 2016.
Background
Mr Benbow and Ms Rosa are both Australian citizens but they met overseas in the 1990’s when Mr Benbow was living and working in Hong Kong and Ms Rosa was living and working in (country omitted) and they lived overseas for the entirety of their relationship.
The parties were married in Hong Kong in (omitted) 1998. Mr Benbow said that initially he continued to live primarily in Hong Kong and Ms Rosa primarily in (country omitted) but that in about 2003 they commenced living together in Hong Kong. Ms Rosa said that the parties commenced living together in Hong Kong upon their marriage. Nothing turns on which is correct.
During their relationship the parties adopted three children, [Z] born (omitted) 1999, [X] born (omitted) 1999 and [Y] born (omitted) 2004.
The parties separated in 2010 and soon afterwards Ms Rosa commenced proceedings in the District Court in Hong Kong for a property settlement, child support orders and parenting orders.
The children all initially lived with Ms Rosa and spent time with Mr Benbow but on 25 April 2013 Mr Benbow relocated to Australia with [Z] and he and [Z] have lived in Australia ever since.
On 17 July 2014 the family law proceedings ended part way through a trial when orders were made by consent which provided inter alia for the following:
a)[X] and [Y] to live with Ms Rosa in Hong Kong.
b)Mr Benbow to pay Ms Rosa periodical child support of HKD $15,000.00 per month commencing on 1 August 2014 for each of [X] and [Y] until each child completed their secondary education.
c)A division of cash and other assets by way of property settlement which involved Mr Benbow making a lump sum payment to Ms Rosa.
Mr Benbow alleged that he misunderstood the orders when he signed them and thought that the lump sum payment covered his responsibility for child support. He said that it was his understanding that the payment broke down into a lump sum for the support of [X], a lump sum paid for the support of [Y] and a lump sum cash settlement payment to Ms Rosa. He said that he became aware of his mistake the following day and wrote a letter to the Judge but he was unsuccessful in preventing the court making the orders and discovered that the only way to correct the error was by appeal and the appeal process was too costly.
Ms Rosa denied that there was any mistake with the consent orders or that child support was meant to be subsumed into the order for payment of a lump sum. She alleged that Mr Benbow represented to her that he intended that some of the money to which he was entitled pursuant to the property settlement orders would be left in Hong Kong so that he could draw down on it to make the monthly payments.
Mr Benbow made three part payments under the child support order drawing on his share of the property settlement money but his last payment was in October 2014.
On 16 February 2015 Mr Benbow filed an application in the District Court of Hong Kong to vary downwards or discharge the child support order.
In or around March 2015 Ms Rosa made an application to the Child Support Registrar in Australia to register and enforce the order and on 2 April 2015 she was advised that her application was successful.
On 15 April 2015 the Child Support Registrar wrote to Mr Benbow asking him to pay arrears of $34,285.46 and ongoing child support of $4,908.00 per month.
On 13 May 2015 Mr Benbow lodged an objection to the child support assessment being registered in Australia on the basis that he was challenging it in Hong Kong and on other grounds. His objection was disallowed on 22 August 2015.
On 16 December 2015 Mr Benbow’s application to the Hong Kong Court was dismissed for want of prosecution and he was ordered to pay Ms Rosa’s costs.
Mr Benbow made no payments under the order after it was registered in Australia and on 10 March 2016 a Departure Prohibition Order was made against him.
On 22 April 2016 Mr Benbow filed his application pursuant to Reg. 36 and he presses for it to be heard.
Mr Benbow submitted that he had an arguable case to have the orders discharged. In his supporting affidavit in addition to protesting about the circumstances in which the Hong Kong orders were made he alleged that his financial circumstances had changed significantly since the orders were made. He said that a farm he purchased in (omitted) New South Wales had not done well and that he had suffered multiple fractures to both ankles while working on the farm and as a result was incapacited for both farm work or off-farm work.
Mr Benbow said that he had now sold the farm and had used the proceeds of $554,081.00 to invest in the property owned by his partner Ms L where he and [Z] were residing.
Mr Benbow said that he had no income at present as he was unfit to work and at age 64 was ineligible for the age pension.
Mr Benbow said that it was relevant that he had the care of [Z] and was solely supporting her. He applied for a child support assessment in respect of [Z] in 2015 but Ms Rosa was assessed to pay nil child support as she had no Australian income.
Mr Benbow alleged that Ms Rosa was in a strong financial position in terms of both income and property ownership and that [X] was working casually and earning income in Hong Kong.
The law concerning the enforcement of overseas maintenance orders in Australia
The order made by the District Court in Hong Kong is a registrable maintenance liability as defined in s. 18A of the Child Support (Registration & Collection) Act (“the Collection Act”). Pursuant to s. 30(1) of the Collection Act amounts payable pursuant to the order, including arrears, are debts due to the Commonwealth and the Child Support Registrar is entitled to collect them.
The order is also a registered overseas maintenance liability as defined in reg. 24 of the Family Law Regulations and pursuant to Reg. 36(2) of the Family Law Regulations a party in Australia may apply to have the order varied, discharged, suspended or revived.
Reg. 36(4) provides that the law to be applied in determination of such an application is the law in force in Australia under the Family Law Act. The relevant provision of the Family Law Act in this particular case is S.66S which provides in part as follows:
(1) This section applies if:
(a)there is in force an order (the first order ), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):
(i) made by a court; or
(ii) registered in a court; and
(b)a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.
[1A and 1B omitted]
(2)In any other case, the court may, by order:
(a)discharge the first order if there is just cause for so doing; or
(b)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c)if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or
(d)subject to subsection (3), vary the order:
(i) so as to increase or decrease any amount ordered to be paid by the order; or
(ii) in any other way.
(3)The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:
(a)that, since the order was made or last varied:
(i) the circumstances of the child have changed so as to justify the variation; or
(ii) the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or
(iii) the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or
(iv) in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such as to justify the variation; or
(b)that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or
(c)if the order was made by consent--that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or
(d)that material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.
[(4) – (6) omitted]
(7)An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.
(8)If an order (the subsequent order ) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.
(9)If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.
(10)For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).
(11)The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.
However although this court clearly has the power to deal with Mr Benbow’s application, reg. 38(1) of the Family Law Regulations provides that an order under reg. 36 is provisional only if the relevant reciprocating jurisdiction is one of the jurisdictions named in the regulation and the Hong Kong is one of those jurisdictions.
Regulation 38A provides that if a provisional order is made it is of no effect unless and until it is confirmed (either with or without modification) by a competent court of the reciprocating jurisdiction.
Therefore if I make an order varying or discharging the Hong Kong orders the matter will be referred to the Hong Kong court and that court may not confirm the order.
An example of this happening is referred to in Salisbury & Landell,[2] a matter I dealt with in 2011. The father was obliged to pay child maintenance pursuant to an order made in Canada. He fell into arrears and when the Child Support Registrar was asked to enforce the order in Australia he made an application to a Local Court in NSW pursuant to reg. 36 to have the arrears discharged. The Local Court made an order in the absence of the mother discharging arrears. The order was sent to Canada and was not confirmed by the Canadian Court. The matter returned to Australia for enforcement and came before me when the father made a second reg. 36 application.
[2] Salisbury & Landell [2012] FMCA fam 240
Is there room for a forum non conveniens argument in an overseas maintenance matter?
The first question which needs to be asked is whether there is room for a forum non conveniens argument when an application is made pursuant to reg. 36.
In Rogers & Rogers, a first instance decision by O’Loughlin J, Counsel for the husband, who was resisting an argument by the wife that the husband’s application for variation of an overseas maintenance order should be stayed and he should be compelled to bring proceedings in Canada, submitted that it was open to question whether the doctrine of forum non conveniens had a place in cases involving applications to vary an overseas maintenance orders. O’Loughlin J said as follows:
…it was submitted on behalf of the husband that there should be no room for the principles involved in the concept of forum non conveniens to operate in cases involving the application of reciprocal arrangements for recognition and enforcement of overseas maintenance orders. It was submitted that those arrangements reflect an agreement between countries about how they should recognise each other’s maintenance orders, how they should enforce those orders and how they should vary each other’s orders through their respective court systems. It is further submitted that the forum test has been evolved to deal with determining jurisdiction between competing courts rather than cooperative courts the latter being reflective of the arrangements. It was further submitted that the husband’s legal representatives have been unable to find any cases where the forum test has been applied to any matter involving the reciprocal overseas maintenance legislation, let alone successfully….
In response to this the wife’s counsel submitted that the arrangements between reciprocating jurisdictions did no more than provide jurisdiction so that proceedings under the overseas maintenance legislation were therefore no different from any other proceedings and that therefore, the principles of forum non conveniens applied.
In his judgment O’Loughlin J did not express a concluded view and determined the application on other grounds but said that he wondered whether there remained scope for a submission that Australia was an inappropriate forum when the application was for an order under reg. 36.
Mr Benbow’s counsel drew my attention to Rogers & Rogers but did not press me to find that there was no room for the forum non conveniens doctrine in an overseas maintenance case, and as I observed in Howarth & Howarth & Anor(No.2) a decision I handed down recently I find the submission by the wife’s counsel in Rogers & Rogers to the effect that reg. 36 does no more than confer jurisdiction persuasive and am of the view that there does remain room in matters of this kind to consider whether the court in Australia is a clearly inappropriate forum. [3]
[3] Howarth & Howarth & Anor(No.2) [2017] FCCA 1949
Matters to be taken into account in determining the forum non conveniens argument
There are a number of High Court decisions dealing with the issue of when it may be appropriate for a court in Australia which has jurisdiction to decline to exercise it because it is a clearly inappropriate forum.
In Henry & Henry, a case in which a wife had filed matrimonial proceedings in Monaco and was seeking to prevent the husband continuing divorce proceedings in Australia, the majority of the High Court said as follows about the test to be applied:
In Voth this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of ''seriously and unfairly burdensome, prejudicial or damaging'', or, vexatious in the sense of ''productive of serious and unjustified trouble and harassment''.[4]
[4] Henry & Henry (1996) FLC 92-685, Voth & Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538, Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
In the recent decision of Kent & Kent the Full Court referred with approval to a summary by O’Reilly J in Whung & Whung & Anor of the non-exhaustive list of matters property to be taken into account when considering whether the Australian Court was a clearly inappropriate forum which she derived from consideration of the High Court cases. The list was as follows:
1.No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
2. If both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.
3. It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
4. Other considerations include the order in which the proceedings were instituted.
5. Other considerations include the stage which the proceedings have reached.
6. Other considerations including the costs that have been incurred.
7. It will be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.
8. It will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.
9. It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”
(Emphasis in original)[5]
[5] Kent & Kent (2017) FamCAFC 157
The matters referred to at points 2 to 9 above are helpful but the most important is the last which derives from the observation of the majority in Henry & Henry. After setting out a list of matters which might properly be taken into account in such a case they said as follows:
The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.[6]
[6] Henry & Henry (1996) FLC 92-685
Mr Benbow’s submissions
It was Mr Benbow’s case that there were relevant matters which meant that the court in Australia might decide to vary or discharge the Hong Kong orders and that he should not be denied the opportunity to pursue his application in Australia. He submitted that Ms Rosa could not demonstrate that it would be oppressive or vexatious to her if the proceedings continued in Australia.
Mr Benbow said that the matters which favoured the proceedings continuing in the Australian court were:
a)Documents had been filed here in support of his reg. 36 application and legal costs has been incurred. These costs would be thrown away if the proceedings had to be abandoned and he had to start all over again in Hong Kong.
b)The parties were both Australian. He had lived here since 2013 and Ms Rosa had purchased property here although she continued to reside in Hong Kong. Ms Rosa would not be disadvantaged by language or unfamiliarity with the foreign legal system if she had to take part in proceedings in Australia.
c)His state of health and his capacity to work were a big part of his case and evidence about his health would be provided by professionals in Australia.
d)Ms Rosa was free to travel to Australia and take part in the proceedings here if she wished. He on the other hand was the subject of a Departure Prohibition Order and could not travel to Hong Kong. He did not have the HKD92,000.00 required to clear the debt, and in order to have the Departure Prohibition Order lifted he would have to appeal the decision to the Federal Circuit Court, in which case he would have to establish that the Registrar had made an error of law or an error of principal in making it or had not taken into account a relevant consideration, and he would be unlikely to be able to meet those requirements. Alternatively he could request a Departure Authorisation Certificate and if that was refused appeal the refusal to the Administrative Appeals Tribunal.
e)His resources as disclosed in his financial statement were much more limited than Ms Rosa’s making it more onerous for him if the proceedings had to take place somewhere other than where he lived.
f)Weight should be given to the fact that he was endeavouring to use a procedure put into place by agreement between Hong Kong and Australia pursuant to the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.
Ms Rosa’s submissions
Ms Rosa’s submissions were as follows:
a)The District Court in Hong Kong made the child support orders in the first place and clearly had the jurisdiction to hear and determine an application to vary or discharge them.
b)The court in Australia could not finally determine the dispute between the parties. Proceedings would need to be brought in Hong Kong to confirm the order. Ms Rosa’s counsel conceded that this was not determinative of the forum non conveniens issue but submitted that it was a powerful factor to be considered in determining whether Australia was a clearly inappropriate forum. If the proceedings took place in Australia the parties would incur costs both here and in Hong Kong in finalising the proceedings. If the proceedings took place in Hong Kong only one set of costs would be incurred.
c)Mr Benbow had not adequately explained why he abandoned the proceedings he commenced in Hong Kong in March 2015 save for saying that they were difficult to manage from a distance, he had difficulty obtaining legal representation and he was precluded from leaving Australia by the Departure Prohibition order. He would need to take part in proceedings in Hong Kong in due course in any event because any orders made here would have to go before the Hong Kong court for confirmation.
d)Mr Benbow was able to afford legal representation in Australia so he could not strongly argue that he could not afford it in Hong Kong and he could apply to have the Departure Prohibition Order lifted.
e)Ms Rosa had incurred costs as a result of the proceedings in Hong Kong and Mr Benbow had been ordered to pay her costs and had not done so. It would be oppressive to require her to incur further costs taking part in proceedings in Australia.
f)The parties both had a strong connection with the foreign forum given that they married in Hong Kong and lived there throughout their marriage.
Discussion
Mr Benbow & Ms Rosa lived in Hong Kong either for all or most of their marriage, they raised their children there, they invoked the jurisdiction of the Hong Kong legal system to resolve their dispute about child custody, property and child support when their marriage ended and they settled their dispute by consent orders made in Hong Kong in 2014.
I am troubled about whether Mr Benbow might face a hurdle bringing proceedings in Hong Kong when he abandoned the proceedings he commenced in 2015 but neither party referred to this in submissions and there is no doubt that the Hong Kong court has jurisdiction to hear an application to vary or discharge the 2014 orders.
The connection between the parties and their marriage and Hong Kong, and the fact that the court in Hong Kong has jurisdiction to deal with the dispute, strongly suggests that the court in Hong Kong is the appropriate forum in which to resolve the dispute.
However that is not the test; the test is whether the Australian court is a clearly inappropriate forum.
There are no proceedings on foot in Hong Kong and Mr Benbow has commenced proceedings in Australia under a regulation which specifically confers jurisdiction on this court to consider an application to vary, discharge, suspend or revive an overseas maintenance order.
In Rogers & Rogers O’Loughlin J (who dismissed the wife’s application for a stay of proceedings in Australia) considered this a powerful factor in favour of not staying the Australian proceedings. He said as follows:
Another relevant matter in my view, is the fact that the husband is endeavouring to use the court process specifically put in place under arrangements between his country of residence and the wife’s country of residence to provide an accessible orderly way for resolving the very sort of international maintenance dispute in which they are involved.
It is true that any order made by this court will have to be confirmed by the Hong Kong court before it is effective, but it cannot be assumed that the Hong Kong court will refuse to recognise an order made after both parties have taken part in a hearing, and the mere fact that the orders of this court will need to be confirmed in Hong Kong because of a reciprocal agreement between two countries does not make this court a clearly inappropriate forum. If it did then Reg. 36 could never be used in a case where the Australian court could only make provisional orders and the forum non conveniens argument was raised, which would be a nonsense.
It would be more convenient for Ms Rosa if the proceedings were heard in Hong Kong. She would not have to instruct solicitors in another country, she would not have to incur costs in attending a hearing in another country, and she would not be faced with one set of proceedings here and another set of proceedings in Hong Kong for confirmation or otherwise of the Australian order.
However Mr Benbow’s evidence, which Ms Rosa did not seek to contradict, suggests that she is in a sufficiently strong financial position to enable her to properly take part in proceedings in Australia. She will also not be disadvantaged by language or unfamiliarity with the legal system if she has to take part in proceedings in Australia.
There was no evidence that Ms Rosa had pursued the costs order made in Hong Kong or about how much the costs were likely to be and it is therefore difficult for me to assess the impact on Ms Rosa of having been obliged to be a party to proceedings which were abandoned in Hong Kong.
Ms Rosa did not submit that she would be forensically disadvantaged by the proceedings taking place in Australia rather than Hong Kong.
As already observed in the end the issue is not whether the Hong Kong court is an appropriate forum to resolve the dispute or even whether it is a more appropriate forum. The issue is whether this court is a clearly inappropriate forum and in my view Ms Rosa has not discharged the onus of establishing that it is, in other words establishing that it would be oppressive and vexatious or seriously damaging or prejudicial to her if the proceedings which have been properly brought here pursuant to arrangements which are in place by agreement between Hong Kong and Australia continued here.
I intend to dismiss Ms Rosa’s interim application and list the matter for mention at 9.30am on 6 September 2017 so that directions can be made for the hearing of Mr Benbow’s application.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 31 August 2017
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