Blizzard and Camoes - [2017] FamCA 67

FAMILY COURT OF AUSTRALIA

BLIZZARD & CAMOES

[2017] FamCA 67

FAMILY LAW – CHILD SUPPORT – Stay application relating to collection of money due under assessment – where the payer is the father – where the mother is over-holding the children in Country I – where the father is the parent entitled to all of the time of the children by virtue of an order – where the mother’s circumstances in Country I are impecunious – where the court has discretion – where stay is appropriate.

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

Blizzard and Camoes[2015] FamCA 1090

APPLICANT:

Ms Blizzard

RESPONDENT:

Mr Camoes

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8891

2013

DATE DELIVERED:

3 February 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

3 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Swart

SOLICITOR FOR THE APPLICANT:

Robinson Gill

COUNSEL FOR THE RESPONDENT:

Ms Sweeney

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

COUNSEL FOR THE CHILD SUPPORT REGISTRAR:

Ms Wong

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the application in a case filed on 22 December 2016 be adjourned to a date to be fixed.
That judgment is reserved.
That the amended response filed by the respondent electronically on 1 February 2017 be further amended to include as final orders ought, paragraph 6 and 7 of the interim orders sought in that document.
That the interim orders sought by the father by way of the amended response filed 1 February 2017 and the interim orders sought by the mother by way of the reply filed 2 February 2107 are both dismissed.
Pursuant to s 111C(3) of the Child Support (Registration and Collection) Act1988 (Cth) the relevant assessment of child support and the collection process thereunder are stayed until further order of the court.
That the costs of all parties of this day are reserved to be determined at trial.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That paragraph 5 of the orders made on 23 December 2016 is extended such that the issue is to be determined at trial.
ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 20 April 2017 subject to any part heard case as a two day case.
The evidence in chief of all witnesses shall be given by affidavit.
TIMETABLE:
By 4 pm on 3 April 2017 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought; and
(b)all affidavits of evidence to be relied upon.
The applicant pay all required court fees by 4 pm on 3 April 2017.
By 4 pm on 17 April 2017 the respondent file and serve upon all other parties:
(a)an amended response setting out with precision the orders to be sought; and
(b) all affidavits of evidence to be relied upon.
By 4 pm on 19 April 2017 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.
Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

SUBPOENAE

All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.
By 4 pm on 19 April 2017 all parties file electronically to … a case outline in one document setting out:
(a)     the outline of the issues in dispute;
(b)     the list of the affidavits to be read;
(c)     a concise set of orders to be sought;
(d)     the list of objections to evidence requiring a ruling;
(e)     a list of assets and liabilities.
AND THE PARTIES SHOULD NOTE:
A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.
B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8891 of 2013

Ms Blizzard

Applicant

And

Mr Camoes

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

There is pending before the court an application by Ms Blizzard (“the mother”) for final orders relating to the children of her relationship with Mr Camoes (“the father”). The children are aged eight and five respectively.
By an order of the court made on 8 December 2015, the mother had the primary daily responsibility for the care of the children and the father was to spend time with them from Thursday through to Tuesday in alternate weeks.
The relevant orders were changed in 2016 when the mother sought and was given permission, to travel overseas to Country I with the children.
The significant (and perhaps unusual feature) of the latter orders is that they provided that if the mother did not return to Australia, the father was entitled to collect the children and they were to reside with him until further order.
The mother has not returned to Australia and, despite a vague assertion that she has not defied the order of the court because the father has not gone to Country I “to collect” them, the children should be in the father’s care. I say it is a vague assertion because it is not explicitly stated whether, if the father went to Country I, the mother would give him the children in any event.
Indeed, there are now extant “Hague Convention” proceedings underway triggered by the father. As best I can discern, the mother’s “defence” to that forum dispute is that she will face financial difficulties if she returns to Australia. Just when the issue in Country I will be determined remains unclear because, although the father’s request was accepted on 22 December 2016, there has since been an invitation for him to attend “mediation” which he rejected. His rejection is apparently (and understandably) on the basis of the very nature of the orders of this court.
Two matters are therefore immediately before the court. First, there is the mother’s outstanding application for parenting orders which seem to have, as their underlying premise, that she be allowed to relocate with the children to Country I. Secondly, there is a child support issue. It is the second of those issues which is the main (but not only) focus of these reasons.
As part of the parenting orders of 8 December 2015, the court also refused the mother’s request to relocate with the children to Country I. That decision was not appealed. Thus, the mother is seeking to again litigate that issue. However, there was also a property order made on that day and by virtue of the parenting orders, the mother received a greater portion of the parties’ assets. (For the finer details of the outcome, see Blizzard and Camoes [2015] FamCA 1090 and the unreported decision in the same matter [2017] FamCA 8).
The father now seeks to set aside the 2015 property orders. His amended response filed 1 February 2017 did not seek that final relief but his counsel (Mr Sweeney) sought to include what was patently clear from his proposed interim orders also as final orders. Over opposition (but only on a technical basis) I granted that application to vary the form. Obviously it is not the form that matters but that the responding litigant is aware that the relief is being sought. Importantly, it is the relevant jurisdiction and power in play at the time of the making of any orders that is critical. The mother was therefore aware of the probability (or should have contemplated) that the interim relief would also be sought on a final basis. It matters little here.
It was conceded by counsel for the father that the court did not currently have a basis to grant his proposed relief to set aside the property orders (said to be based on s 90SN(1)(d) of the Family Law Act 1975 (Cth) (“the Act”)) because no change of the parenting orders could be currently made with the “Hague Convention” proceedings pending. It may also be (and it was not argued) that the 2016 orders of Senior Registrar FitzGibbon provide the legitimate basis to deal with a s 90SN proceedings because the children should, by virtue of those orders, be in the father’s care.
Turning then to what was before the court on 3 February 2017, it should be noted that at the conclusion of the hearing, I pronounced the orders which are set out at the commencement of these reasons and said that I would give written reasons later. These are those reasons.
Counsel was briefed for the Independent Children’s Lawyer. He did not take an active part in the proceedings because there were no children’s issues at play.
Counsel was also briefed for the Child Support Registrar but she advised that in respect of the discrete issue under s 111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth) she had no submission to make.
Counsel for the father simply sought two orders. The first of those was to set the substantive parenting and property proceedings down for trial and secondly, a stay under s 111C(3) of the relevant Act just mentioned.
Counsel for the mother did not oppose the first of the two orders sought by counsel for the father but indicated she had no instructions. Indeed, it may be a moot point because the mother has indicated that she is not (at least at this stage) intending to return to Australia but also because there are proceedings in Country I in whatever form they take. I see no reason why the parenting proceedings in this case should not be quickly listed for final hearing because of my assumption that, as the “Hague Convention” proceedings in Country I relate to the question of forum, they would normally be dealt with expeditiously. Subject to that, this court is ready to hear such a parenting dispute if the forum is decided to be Australia. Secondly, for the reasons that follow, the mother’s financial position is said to be dire and consequently adversely affecting the children and that needs to be remedied quickly.
I turn then to the second issue which relates to the stay of the child support matter.
It is not relevant but there is an extant child support assessment between the parties. It is not entirely clear to me how that assessment has been made but attached to the mother’s affidavit is a copy of an assessment that runs from 1 December 2016 to 29 April 2017. It requires the father to pay a monthly sum of $1013.50. That is based (according to the form), on the father’s 2016 taxable income of $92,701. It seems however that during the 2016 year, the father took some form of lump sum payment from his employment and that may have distorted his true income position. Be that as it may, he has now filed a financial statement which indicates that he is earning about $80,000 per year.
The same assessment showed that the mother’s percentage of time with the children was 65 per cent and obviously, the father’s was 35 per cent. An examination of the judgment of the court in 2015 would indicate that that assessment derives from the court’s determination of the time that each parent was to spend with the children.
There is no doubt that those percentages are no longer applicable for two obvious reasons. First, the children are in the mother’s care in Country I for 100 per cent of the time. The second however is that pursuant to the orders of this court made in 2016, by virtue of the mother not having returned to Australia, the children should be entirely in the father’s care for 100 per cent of the time. No “contact” time was made in favour of the mother if that particular order was triggered. Thus, the mother is not entitled to time with the children.
It is that conflictual scenario that gives rise to a dispute about whether the court should make an order under the Child Support (Registration and Collection) Act 1988 to stay that relevant assessment.
In her affidavit affirmed in Country I on 1 February 2017, the mother made reference to the assessment but then set out her dire financial position both in respect of capital and income. To support the “defence” to which I earlier referred in relation to the “Hague Convention” proceeding, at [8] the mother said, referring to her previous life in Australia:
I had to live with the children on $350 per week. I had to make humiliating requests for food for the children and I at several church pantries in 2016 in order to be able to feed the children during the time the father did not pay any child support and even after.
The mother said she was now living solely off the generosity of her parents who were modest pensioners. They had lost money as a result of the actions of the father in relation to a debt. I am not sure that I can take that matter into account having regard to the fact that the property matters were litigated before the court and are now res judicata.
The mother’s position by way of a reply filed 2 February 2017 was simply that the father’s response both as to interim and final orders, should be dismissed. Her financial statement in support of that showed that she had no income at all but expenses of $550 per week.
Section 111C(3) of the Child Support (Registration and Collection) Act only applies if a proceeding has been instituted in a court having jurisdiction under that Act. That has occurred here regardless of whether there had been final relief sought or not.
Section 111C(2) provides that in the event that proceedings are instituted in a particular court, the application for the stay can be made to that court.
Section 111C(3) provides:
Pending the hearing and final determination of the proceedings, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
It was submitted for the mother that it was not desirable to make an order staying the assessment here because she was in difficult financial circumstances in Country I and obviously had to care for and feed the children. It was observed that her funds had been frozen by an order that I made in December 2016 and to which I have earlier referred. That order was based upon the father’s proposed application to vary the property orders because he anticipated he would have the children living with him rather than with the mother. It was submitted that the fundamental point was that the whole purpose of child support was to support children and that by obvious inference, regardless of what the mother had done, she still had the care of the children and they should not be disadvantaged accordingly. In my view, the fundamental flaw in that submission is that her dire financial circumstances arise because of her own choice to defy the court order and not return the children to their father. A cursory examination of the father’s financial circumstances indicates that he could clearly support them here in Australia if they were in his care.
Counsel for the father submitted that if the stay was not granted and the child support continued to be collected and paid to the mother in Country I, she had no incentive to hasten the forum proceedings in Country I nor to return to Australia at all.
As I have indicated, counsel for the Child Support Registrar remained silent on the whole issue. It is unnecessary for me to set out why in allowing the mother to take the children to Country I in 2016, the self-executing order was put in place. It was asserted at that time however that the mother had health problems. From what I have been told, nothing about health concerns forms the basis for her proceedings in Country I. It is significant that the mother’s affidavit only affirmed a few days ago indicates that her whole argument is about financial matters and her difficulties in supporting herself let alone the children in Australia. It is not appropriate that I make any comment on what a Country I court will do but it must be understood that these issues were canvassed and determined by the court in December 2015 and were not subject to any appeal. The orders made in 2016 were self-executing such that the children were to live with the father if the mother did not return.
Returning then to the child support issue, the relevant legislation gives no guide as to how the court is to exercise its discretion. Nothing in the legislation would suggest that the court should only grant a stay in exceptional circumstances. Clearly, the focus of the legislation is on the financial support of children regardless of the rights or wrongs of the parental action and one could envisage a situation in which a stay might be refused even though a party was over-holding the children inappropriately. However, in my view, the bona fides of an applicant is a relevant consideration. Not only is the mother’s current financial position of her own making but it could be remedied simply by her returning the children to the father. She could do that by returning to Australia or indeed indicating publically that if he went to Country I, the children would be handed to him. In the exercise of discretion in relation to any stay similar to injunctive relief, the balance of convenience is a factor. The mother could clearly return to Australia to ameliorate her own dilemma. Specifically in this case, after a contested parenting proceeding in 2015 under which the court decided it was in the best interests of the children for them to live with her, the 2016 proceeding altered that radically such that they were to live with the father and no time was set for the mother.
It is difficult to see that the mother is acting bona fides in relation to the child support issue. That is so because of her default, her defence to the “Hague Convention” proceedings, the creation of the problem being her own making and the fact that she is putting the children through the stress of proceedings where the very nature of the order of 2016 is that the children should be living with their father.
Accordingly, I consider it is desirable that the child support assessment, as it currently stands, including any arrears thereunder, should not be enforced notwithstanding the money is unashamedly designed for the support of the children. I agree entirely with the submission of counsel for the father that if that assessment and collection continued, the mother would have no desire to ameliorate her own financial dilemma. No doubt, what she is doing is a matter that may be relevant for consideration under s 60CC(3) of the Family Law Act in relation to parental responsibility in the future parenting proceedings.

I certify that the preceding Thirty Two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 February 2017.

Associate:

Date: 9 February 2017