Blackmore & Gilroy
[2008] FMCAfam 707
•4 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLACKMORE & GILROY | [2008] FMCAfam 707 |
| CHILD SUPPORT – Overseas maintenance orders made in January 2000 – mother and 17 year old child live in Canada – father’s application to vary Canadian order and to discharge arrears. |
| Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act1988 Child Support (Registration and Collection) Regulations1988 Family Law Act 1975 Family Law Regulations1984 |
| Beck v Sliwka (1992) FLC 92-296 Coon v Cox (1994) FLC 92-464 Ganter v Grimshaw (1998) FLC 92-810 Mee and Ferguson (1986) FLC 91-716 Streets & Streets (1994) FLC 92-509 |
| Applicant: | MR BLACKMORE |
| Respondent: | MS GILROY |
| File number: | NCC 157 of 2007 |
| Judgment of: | Sexton FM |
| Hearing date: | 20 March 2008 |
| Date of last submission: | 20 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2008 |
REPRESENTATION
| Applicant: | Self-represented |
| Respondent: | Self-represented |
| In attendance for Child Support Agency: | Ms Irvine |
THE COURT ORDERS ON A PROVISIONAL BASIS THAT:
The Order of the Unified Family Court, Newfoundland, Canada of
21 January 2000be varied as follows:
(a)For the period 14 October 2001 until 7 August 2002, the father’s liability for child maintenance be set at $184.57CND per month.
(b)For the period 8 August 2002 until 1 February 2006, the father’s liability for child maintenance be set at nil.
(c)For the period 2 February 2006 until 30 June 2006, the father’s liability for child maintenance be set at nil.
For the period 1 July 2006 until [omitted] November 2008 ([X]’s 18th birthday) the father’s application be dismissed.
A sealed copy of these orders be forwarded forthwith to Ms Irvine of the International Division of the Child Support Agency.
The Child Support Agency be granted liberty to apply within 30 days in relation to implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Blackmore & Gilroy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
NCC 157 of 2007
| MR BLACKMORE |
Applicant
And
| MS GILROY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns child maintenance for [X] born in November 1990, now aged 17 years. The parties are [X]’s parents and he is their only child. The father lives in Sydney and is now a permanent resident of Australia. The mother lives in Newfoundland, Canada.
There is no evidence before me as to the background of the parties. Each party was self-represented and adduces minimal evidence. The father appeared in person. The respondent mother attended by telephone from Canada. Ms Irvine from the Child Support Agency’s international division, attended by phone, as an observer.
The applicant father seeks a provisional variation of a child maintenance order made by the Supreme Court of Newfoundland, Unified Family Court, Canada on 21 January 2000 (the Canadian order). The order reads:[1]
That based on an annual salary of $27,000.00 the Respondent shall pay the sum of $240 per month commencing February 1, 2000.
[1] Annexure A to father’s affidavit sworn 17 January 2007
The father was not present or represented at the hearing in Newfoundland, but does not dispute that he was made aware of the Canadian order and substantially complied with the order for most of the period until October 2001.
The father stopped making the periodic child maintenance payments in accordance with the Canadian order in October 2001. Since then, he has paid the following:
a)21 June 2002 $271CND
b)5 July 2002 $271CND
c)12 July 2002 $321 CND
d)7 August 2002 $321 CND
The father has not made any child maintenance payments since
7 August 2002. The mother says she made substantial efforts to locate the father after he stopped meeting his child maintenance obligations and firstly located him in the United Kingdom. The father acknowledged appearing in court in the United Kingdom on a number of occasions when he was living there in 2004/5 in relation to enforcement of the Canadian order. He says it was always his position that he had no capacity to meet the Canadian order, but that to the best of his knowledge, the English Court made no orders in relation to the matter. The mother did not challenge this evidence. The mother later obtained an address for the father in Australia
In March 2006, the Child Support Agency wrote to the father advising him that the Central Authority of Canada had requested the Child Support Agency to register the Canadian order and collect the maintenance from him. The letter states:[2]
[2] Annexure D to father’s affidavit sworn 17 January 2007
We have enclosed a summary of the details that we have registered concerning your case.
The father does not include the enclosure in the annexures to his affidavit. However, according to the Canadian Debtor Statement of Account annexed to the father’s affidavit, the father owed $16,576.00CND in child maintenance arrears as at 28 September 2007. As at February 2008, the mother says and I accept, the father owed arrears of $17,776 CND.
The father relies on his application filed 18 January 2007 in Newcastle, his affidavits sworn 17 January 2007 and 5 February 2008, and the affidavit of his present wife, Ms B sworn 5 February 2008. The respondent mother relies on her Amended Response filed
11 March 2008and her affidavit sworn 4 March 2008. Neither party filed a Financial Statement.
In March 2007, the Federal Magistrates Court in Newcastle suspended the operation of the Canadian order and stayed the enforcement of any arrears. In June 2007 at Newcastle, Federal Magistrate Brown made final orders on an undefended basis that the father pay child maintenance based on an annual income of $11,955 in the 2006 financial year, and discharged the arrears of child maintenance arising from the Canadian order. That order was confirmed in Canada, which is the reason the Debtor Statement of Account does not include details beyond October 2007. However, on 31 October 2007, Federal Magistrate Coakes at Newcastle set aside the 6 June 2007 orders because it came to the Newcastle registry’s attention that the mother had filed responding material prior to the hearing of 6 June 2007, but the documents had not reached the court file. The matter was then transferred to this court in Sydney for directions and hearing.
As already noted, as far as the Canadian authorities are concerned, the father has no present arrears of child maintenance as a result of the court order of 6 June 2007. Ms Irvine from the Child Support Agency tells the Court that the Agency has not forwarded the provisional order of October 2007 (setting aside the June 2007 order) to the Canadian authorities, awaiting the outcome of this hearing. Therefore, as far as the Child Support Agency records in Australia are concerned, the father has no arrears and no periodic maintenance to be collected.
The father asks this Court to discharge the whole of the arrears and to vary the Canadian order such that his liability for child maintenance be assessed in accordance with the Child Support Agency’s assessment formula. The mother wants the father’s application dismissed and the arrears paid in full.
Legal principles
Section 18A of the Child Support (Registration and Collection) Act1988 defines registrable overseas maintenance liability as a liability of a parent of a child to pay a periodic amount for the maintenance of the child, and an overseas maintenance liability. Section 4 of the Act defines overseas maintenance liability as a maintenance order made by a judicial authority of a reciprocating jurisdiction. Newfoundland, Canada is a reciprocating jurisdiction prescribed by Schedule 2 of the Child Support (Registration and Collection) Regulations 1988. The father’s liability is therefore a registrable overseas maintenance liability.
Regulation 36 of the Family Law Regulations1984 applies to an overseas maintenance entry liability or a registered maintenance liability. The Regulation applies to the Canadian order. Under regulations 36(2) and 36(3)(b), the applicant father can bring an application to this court for an order discharging, suspending, reviving or varying a liability to which the Regulation applies. The application is determined under the Family Law Act 1975.[3]
[3] Regulation 36(4) and Regulation 3(1)
An order made under Regulation 36 is provisional because Canada is a reciprocating jurisdiction under Regulation 38(1). This means such an order is of no effect unless it is so expressed and unless and until it is confirmed (either with or without modification) by a competent court of Canada in which the overseas maintenance order affected by the provisional order was made. If the Canadian Court confirms the order (with or without modification) the order has effect in Australia as confirmed.[4]
[4] Regulations 38A to 39 of the Family Law Act 1975
Child maintenance orders are governed by Division 7 of Part VII of the Family Law Act 1975. Section 66S deals with modification of child maintenance orders. Section 66S(2) provides that a Court may discharge the first order if there is just cause for doing so, or suspend the operation of the order in whole or in part for a fixed time or until the happening of a future event, or subject to subsection (3), vary an order so as to increase or decrease any amount ordered to be paid by the order or in any other way.
Section 66S(3) provides that 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, the circumstances of the child, the person liable to make payments or the person entitled to receive the payments, have changed so 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; or
c)If the order was made by consent – that the amount ordered to be paid is not proper or adequate; 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.
In this case, the father seeks to decrease the amount of child maintenance he pays. He asks to pay approximately $27AUD per month, an amount he understands he would be required to pay if his liability were assessed by the Child Support Agency in Australia from the time he commenced earning income. He relies on s.66S(3)(a)(ii) to submit that his circumstances have changed since the making of the Canadian order such as to justify a decrease in the amount he has been ordered to pay.
The onus is on the applicant father to prove his case.
If the court is satisfied one of the s.66S(3) conditions is satisfied, s.66G provides that the court may make such child maintenance order as it thinks proper. The Court must consider the financial support necessary for [X]’s maintenance and then determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of [X], that should be made by each of the parties to the proceedings.[5]
Has the father established a change of circumstance since the making of the Canadian order such as to justify a decrease in the child maintenance he has been ordered to pay?
[5] Section 66H
I accept the following facts asserted by the father and not challenged by the mother.
a)The father was living and working in Canada when the Canadian order was made in January 2000 and was able to meet his child maintenance obligations in accordance with the Canadian order at that time.
b)The father was “laid off” from his employment in Canada as an unskilled worker in October 2001.
c)The father relied on unemployment benefits of a total of $13,320CND between 28 October 2001 and 6 July 2002. He received an income of $370 gross a week, compared to the $519 gross a week he was earning at the time the order was made[6].
[6] Annexure C of father’s affidavit sworn 5 February 2008
d)Although the father says he advised the Newfoundland Support Enforcement Agency and the mother about this change in his circumstances, he did not seek to vary the January 2000 Canadian order.
e)The father arrived in Australia on 14 June 2002 to join his then partner (his present wife) who was, by then, 8 months pregnant with his son [Y], who was born in July 2002. The father arrived in Australia on a visitor’s visa.
f)The father was required to leave Australia on a number of occasions after June 2002 because of his visitor visa status. He spent approximately 8 months in the United Kingdom at the invitation of his father in 2004/5. He did not undertake employment and was supported by his wife and father during the whole of this period.
g)The father was not permitted to work in Australia until he was granted a work visa in November 2005 and he was reliant on his wife for his financial support during the period June 2002 until February 2006.
h)In the 2006 financial year, the father earned gross income of $11,955AUD.
i)The father is an unskilled worker. Presently he is employed as a casual steelworker.
j)The father lives with his wife and their 5 year old son, [Y]. The father’s wife has 3 daughters aged between 9 and 13 years who spend time with them. It is not clear from the evidence how much time the wife’s daughters spend in the father’s household.
k)In March 2008, after an assessment arranged by his pre-school, [Y] was diagnosed with Asperger’s Disorder.[7] [Y] has behavioural problems and at times, has to be collected early from school.
l)The father and his wife are living in [omitted], near Newcastle, in housing provided by the Department of Housing of New South Wales.
m)The father is presently earning approximately $27,000 a year.[8]
n)The father has recently borrowed $20,000 to meet [X]’s return airfare to enable [X] to have a holiday with him and his family in Australia, and to buy an 8 year old, 7 passenger car to manage these arrangements with [X].
o)The father has no other assets.
[7] Exhibit 2 - psychologist report dated 14 March 2008
[8] Annexure H to father’s affidavit sworn 5 February 2008
On the basis of these factual findings, I am satisfied the father has shown a change in his circumstances from October 2001, sufficient to justify a variation in the Canadian child maintenance order. I am therefore required to assess the child maintenance payable by the father from the time father’s circumstances changed.
The first step is to determine [X]’s needs.[9]
[9] Mee and Ferguson (1986) FLC 91-716.
[X]’s reasonable needs
In considering the financial support necessary for [X]’s maintenance, s.66J provides that the court must have regard to [X]’s age, the manner in which he is being educated and trained, and in which the parties expected him to be educated and trained, and any of his special needs. [X] was 9 years of age when the Canadian order was made in January 2000. The father says [X] has not spent face to face time with him in the last 7 years although [X] was due to arrive for a 3 week holiday with the father at the time of hearing. The Canadian court ordered the father to pay $240CND a month from 1 February 2000. The father says he had borrowed the return airfares for [X] of nearly $3,000. There is no other evidence before me as to [X]’s circumstances or as to [X]’s needs from the date of order to the present time.
The court may have regard to any relevant findings of published research in relation to the maintenance of children. Neither party adduced evidence of published research as to the costs of children living in Canada. There is no evidence before me to relate the published research in Australia concerning the costs of children to the costs of children in North America. There is therefore no evidence before me as to [X]’s needs.
The mother says she was married until separation from her second husband in 2003, but adduces no evidence as to her financial circumstances between 2001 and 2007. The mother gave limited oral evidence at hearing as to her current financial position.
How should the parties share equitably in the support of [X]?
The objects and principles of Division 7, Part VII of the Act are set out in sections 66B, 66C and 66D. Section 66S(10) provides that, to the extent applicable, the court must have regard to these objects. The principal object of the Division, as in the Child Support (Assessment) Act 1989, is to ensure that children receive a proper level of financial support from their parents, that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents and that parents share equitably in the support of their children. Parents have the primary duty to maintain their child and that duty is not of lower priority than the duty of the parent to maintain any other child or child of another person. That duty has priority over all commitments of the parent other than commitments necessary to enable that parent to support himself or another person or child that parent has a duty to maintain, and is not affected by the duty of any other person to maintain the child.
Section 66S(7) provides that 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.
I find it convenient to consider 4 separate periods since the father’s circumstances changed in October 2001. Firstly, the period from the date of the father’s application for unemployment benefits until he made his last payment under the Canadian order on 7 August 2002. Secondly, the period from when the father lived in and out of Australia and was not in paid employment from 8 August 2002 until 1 February 2006. Thirdly, the period from 1 February 2006 until 30 June 2006, when the father started working in Australia and fourthly, the period from 1 July 2006 until November 2008 when [X] will turn 18 years.
a)14 October 2001 to 7 August 2002.
i)
As already noted, after a two week waiting period, the father was in receipt of unemployment benefits of $370CND a week during the 36 week period from 28 October 2001 to
6 July 2002. This weekly amount is 71.3% of his weekly income (based on an annual income of $27,000CND) as it was at the time the Canadian order was made in January 2000.
ii)I find from the Debtor Statement of Account from Canada[10], that the father paid a total of $1,184CND in child maintenance between 28 October 2001 and 7 August 2002. If the father had paid child maintenance in accordance with the Canadian order, he would have, according to the Debtor Statement of Account, paid $2,400CND during this period. I am therefore satisfied that the father paid less in this period than the amount ordered. If he had paid 71.3% of the ordered amount he would have paid $1,711.20CND for that period or $184.57CND per month, when calculated on an annual basis.
[10] Annexure B to father’s affidavit sworn 5 February 2008
iii)I am satisfied the father had the capacity to meet child maintenance during this period of $184.57CND a month. Although I have no evidence as to the mother’s financial position during this period, given the decision of the Canadian court in January 2000, I am satisfied the father should pay this amount. This means the father will be in arrears of child maintenance for this period.
b)8 August 2002 to 1 February 2006.
i)The father’s unchallenged evidence is that he was unemployed during the period August 2002 to 1 February 2006. His son [Y] was born in July 2002 and became an additional dependent. The father was living in and out of Australia as a result of his visa status, and had no right to work in Australia. He first obtained paid employment again in February 2006. The father’s wife confirms that she supported the father during this period.
ii)The mother says she separated from her second husband in 2003, but adduces no other evidence as to her financial circumstances during this period.
iii)I am not satisfied the father had the capacity to make any contribution towards [X]’s support during this period.
c)2 February 2006 to 30 June 2006.
i)The father has been employed in Australia since February 2006. As already noted, the father earned $11,955 in the 2006 financial year. He was responsible, at least in part, for the support of [Y].
ii)Neither party adduces evidence as to the mother’s financial circumstances during this period.
iii)I am not satisfied the father had the capacity to contribute towards [X]’s support during this period.
d)1 July 2006 to 21 November 2008, [X]’s 18th birthday.
i)The father adduces no evidence of his earnings in the 2007 financial year. As already noted, the father is presently earning approximately $27,000 a year and has one other dependent child, [Y], a child with special needs. In the absence of any other evidence, I base my analysis of the father’s financial position on his evidence relating to the current period. Using the Australian Taxation Office tax tables, the father is currently earning approximately $444 per week after tax. The father adduces no evidence of his current expenses and no evidence as to what proportion of household expenses are met by his present wife. The father says he is living in Department of Housing accommodation.
ii)Neither party adduces evidence as to the mother’s financial position in the 2007 financial year. In oral evidence, the mother says that she earns an annual gross salary of $45,000CND which is equivalent to $46,206.60 a year in Australian dollars on the present exchange rate. She says she receives $862CND per month in child maintenance for [X] from her second husband. She says she owns a modern home with approximately $8,000 net equity but has no other assets of significance. Using the Australian tax scale, the mother is earning approximately $694 per week after tax. There is no evidence before me as to the period during which the mother has earned this salary. The mother has no other dependent children.
iii)As already noted, there is no evidence before me as to [X]’s expenses.
iv)The father adduces no evidence as to his expenses for himself or as to whether he must provide any financial support to his wife. The father has a present income of $444 net a week. This income is almost the same as was his income at the time the Canadian order was made. The father says he has financial responsibility for his son, [Y]. If I assume the father must support himself, his wife, his son [Y] and [X], and I divide $444 between 4 people, each would have $111 a week, or an average of $481 a month.
I reject the father’s request for the court to set his liability for child maintenance by assessing his liability as though it were being assessed under the Australian child support formula. The authorities make clear the court is not required to do so. The CCH Handbook provides a useful summary of the case law on this issue. In Streets & Streets[11] the Full Court applied the majority decision in Beck v Sliwka[12] where it was held that, in cases where the issue is the capacity of the payer to make an equitable contribution to the costs of the children, it is not unreasonable to have regard to the Child Support (Assessment) Act 1989 formula in determining the amount of an order under Stage 1. In Coon v Cox[13] his Honour Chief Justice Nicholson held that it was open for the Court to have regard to what would be payable under the Child Support (Assessment) Act1989 but that the formula in no way controlled the matter in proceedings under the Family Law Act. In Ganter v Grimshaw[14] the child support formula was considered to be only a guide. The father had two children from a former relationship and one child and step-child in his current marriage. The Full Court held that the trial judge erred in using the child support formula as the starting point, rather than a final check, in determining the liability of the father for child maintenance. The Full Court held that strict adherence to s.66C(2) and s.66K(4)(a) (which oblige the court to disregard the mother's pension) would result in an injustice to the father, but a similar injustice was imposed on the mother by adopting the child support formula. The only equitable way, the court said, was to divide the father's available income (less expenses) by four.
[11] (1994) FLC 92-509
[12] (1992) FLC 92-296
[13] (1994) FLC 92-464
[14] (1998) FLC 92-810
Under Australian child support legislation an income of $11,955 a year, with one additional dependent child, would have required the father to pay child support of $333 a year in 2006.[15] An income of $26,930 a year, with one additional dependent child, would have required the father to pay child support of $333 a year in the 2007 calendar year if the mother’s income were disregarded. Child support assessments in Australia take into account that children are spending time with the paying parent. The formula varies according to how much time a child is spending with the paying parent. In this case, [X] has not spent any time with the father for the past 7 years, with the exception of a holiday of 3 weeks he was about to spend with the father at the time of hearing. The mother has taken almost the whole of the responsibility for [X]’s financial and emotional support. In these circumstances, I find a significant injustice would be imposed on the mother if I assessed the father’s liability on the basis of the Australian child support formula.
[15] Annexure G of father’s affidavit sworn 5 February 2008
I am satisfied the only equitable way to do justice to each party in relation to this period is to divide the income available to the father by four. As this amount is well in excess of the amount ordered by the Canadian court, I find no basis to vary the Canadian order for the period 1 July 2006 until November 2008 when [X] attains 18 years.
On the basis of the limited evidence before me, I am satisfied the orders I have made are proper in all the circumstances.
I certify that the preceding 33 paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 4 July 2008
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