BOCK & BOCK

[2008] FamCA 1266

FAMILY COURT OF AUSTRALIA

BOCK & BOCK [2008] FamCA 1266

FAMILY LAW – CHILD MAINTENANCE – application by the husband seeking to have an overseas order for child maintenance varied pursuant to regulation 36 of the Family Law Regulations 1984 (Cth)

FAMILY LAW – CHILD MAINTENANCE – application by the husband seeking that arrears of child maintenance accrued pursuant to an overseas order be discharged and that enforcement of the order be stayed

Family Law Regulations 1984 (Cth) reg 36
Child Support (Registration and Collection) (Overseas-Related Maintenance Obligation) Regulations 2000 (Cth)

APPLICANT: Mr Bock

RESPONDENT: Ms Bock

FILE NUMBER: DNC 163 of 2008

DATE DELIVERED: 4 September 2008

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: STRICKLAND J

HEARING DATE: 4 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Roennfeldt

SOLICITOR FOR THE APPLICANT: Withnalls

COUNSEL FOR THE RESPONDENT: No appearance

IT IS NOTED that publication of this judgment under the pseudonym Bock & Bock is approved pursuant to s 1219(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER:   DNC 163 of 2008

MR BOCK

Applicant

And

MS BOCK

Respondent

EX TEMPORE REASONS

1. This is an application filed by the husband on 14 April 2008 in which he seeks orders that firstly, pursuant to regulation 36 of the Family Law Regulations - and I will summarise - that the order for child maintenance in relation to the children of the marriage, C and R, made in Scotland on 27 July 2005 at the rate of £380 per calendar month be varied so that he, the husband, pays a total sum of 20 Australian dollars per calendar week and that he pay the cost of return air fares and all associated expenses for the two children from Scotland to Australia annually.  Secondly, that the arrears accrued pursuant to that order be discharged, and thirdly that enforcement of that order be stayed.

2. The wife, the respondent to that application, has been served and, in my view, has been given every opportunity to file responding documents and to attend hearings in relation to that application.  The history of that circumstance is as follows:

   2.1On 24 April 2008 the husband’s solicitors sent copies of the Application for Final Orders, the Application in a Case, the affidavit and the financial statement of the husband to the wife in Scotland.

   2.2On 1 May 2008 the matter came before me and I was not satisfied that the wife had been properly served and was aware of the proceedings. Accordingly I made an order during the period of the adjournment and adjourned the matter to 11 June 2008.

   2.3On 1 May 2008 the husband’s solicitors sent copies of the documents filed in Court by email to the solicitors who had previously represented the wife and advised them of the orders made that day.

   2.4On 2 May 2008 the Court sent a letter to the wife that the matter had been listed for a case assessment conference before a Registrar on 3 June 2008.

   2.5On 17 May 2008 the husband’s solicitors received an email from the wife’s previous solicitors advising that they did not have authority to accept service but indicating that the wife had received the Court documents.

   2.6On 3 June 2008 the Court received a facsimile from the wife in which she set out factual material relating to the husband’s affidavit and which she sought be put before the Court.

   2.7On 3 June 2008 the case assessment conference did not proceed and the matter was adjourned to 11 June 2008 when it was next listed before me.

   2.8On 3 June 2008 the Court sent a letter to the wife advising her of the listing on 11 June 2008 and suggesting that she contact solicitors in Darwin to obtain legal advice and indicating that she could attend the hearing by way of telephone link.

   2.9On 5 June 2008 the husband’s solicitors wrote to the wife indicating that they would be seeking an adjournment of the matter on 11 June 2008.

   2.10There was no appearance by or on behalf of the wife at the hearing on 11 June 2008. I made an order continuing the interim order until September 2008 when I anticipated hearing the matter on a final basis, I adjourned the matter to 11 August 2008 before a Registrar to prepare the matter for a final hearing, and I directed the Operations Manager Darwin to send a letter to wife advising her of the adjourned hearing date and of the need to file appropriate responses and a supporting affidavit and to forward with that letter the relevant forms for that purpose.

   2.11On 12 June 2008 the Operations Manager Darwin sent a letter to the wife advising her of the orders and enclosing the appropriate forms for her use. The letter also indicated she would need to attend on the adjourned hearing date but she could do so by telephone link if necessary. The letter also advised the wife that if she did not attend the hearing at least by telephone then orders may be made in her absence.

   2.12On 12 June 2008 the Court received an email from the wife indicating that she had received notice of the hearing only that day and enquiring if there was another hearing. The Court responded to that email and attached a copy of the letter sent that day together with the relevant forms for use by the wife.

   2.13On 6 August 2008 the Court received an email from the wife advising that she had contacted lawyers in Darwin but due to financial restrictions she was unable to pay for legal help or to lodge any papers. She concluded by indicating that she would leave the matter in the hands of the Judge.

   2.14The wife failed to attend the hearing before the Registrar on 11 August 2008 even by telephone. The Registrar made orders though for the filing of affidavits with a view to the final hearing taking place in September 2008 before me.

   2.15On 14 August 2008 the husband’s solicitors sent a letter to the wife advising of the orders that were made including the listing of the matter at a callover on 26 August 2008.

   2.16On the same date the husband’s solicitors sent a copy of the letter sent to the wife to her previous solicitors.

   2.17On 15 August 2008 the husband’s solicitors sent an email to the wife attaching the letter sent on 14 August 2008.

   2.18On 26 August 2008 the matter was listed for final hearing on 1 September 2008 and the Operations Manager Darwin was directed to send an email to the wife advising her of that listing.

   2.19On 26 August 2008 the Operations Manager Darwin sent an email to the wife advising her that the matter was listed for hearing on 1 September 2008 and indicating again that she could attend that hearing by way of telephone link. She was requested to provide a telephone number for this purpose.

   2.20On 27 August 2008 the husband’s solicitors sent an email to the wife also advising of the orders made on 26 August 2008.

   2.21On 29 August 2008 the wife sent an email to the Court advising that she would not be taking part in the hearing and requesting to be advised of the outcome in due course.

3. In these circumstances I determined to proceed with this hearing in the absence of the wife.  Unfortunately though not only has she chosen not to make any submissions, but she has chosen not to file any documents.

4. In terms of the documents that the husband has filed that are before me, of course, there is his application which I just referred to.  There is an affidavit filed on 14 April 2008 in support of that application.  There is a financial statement filed on the same date.  Next there is his affidavit filed on 22 August 2008 and then finally his affidavit filed on 3 September 2008.

5. In relation to the question of a stay of the enforcement of the order, the husband filed a separate application in a case seeking such an order.  That application came before me on 1 May 2008 and I made an order for a stay.  I continued that order on 11 June 2008.

6. The catalyst to the application, as I understand it, was the Child Support Agency in this country indicating that they were intending to enforce payment of the maintenance including arrears that had accumulated. 

7. The history of the proceedings in Scotland is that the wife made an application for child maintenance and on 1 June 2005 the husband received a letter from Scotland to appear in court on 15 June 2005.  He had just returned to Australia after having visited his children in Scotland.  He notified his lawyers in Perth of that letter.  He then received notification on 28 June 2005 that the matter had been adjourned to 27 July 2005.  The husband understood that his lawyers in Perth had briefed agents in Scotland to appear on his behalf at the hearing.  However, he eventually received a letter from his lawyers in Perth on 4 August 2005 which advised him that despite their best efforts they had been unable to obtain timely representation for him in Scotland and that orders had been made in his absence that he pay £380 per month in child maintenance.

8. He has annexed the letters that he received in that regard to his affidavit of 14 April 2008 and they tell me that firstly that his own solicitor in Perth was attempting to arrange law firms in Scotland to appear on the husband’s behalf at the hearing, but that was unsuccessful.  They eventually corresponded with the solicitors for the wife advising them that the husband intended to defend the matter, but as they had been unsuccessful in briefing an agent the husband was seeking a further adjournment to engage counsel. Apparently the wife's solicitors refused to agree to that adjournment, and indeed there is a letter from the wife's solicitors which confirms that they opposed any motion for adjournment.  They say they showed the presiding Sheriff a copy of the e-mail requesting the adjournment, that the Sheriff was satisfied that the wife had tolerated enough delay in the matter and it needed to be brought to a conclusion, and the order was made in the husband's absence.

9. Now I understand that not only was the order made in the husband's absence, but it was made without any documentation before the court in Scotland as to the husband's circumstances and, in particular, what he says was the arrangement that he had with his wife, namely, that in lieu of him paying maintenance and allowing the wife to relocate to Scotland with the children he would pay the cost of flights and the expenses of initially him visiting the children in Scotland, but ultimately having the children come out to Australia to spend time with him.

10. The husband has not made any payments pursuant to the order that was made in Scotland, but as the Child Support Agency in this country is able to do, they have taken his last tax refund of $600 to be put towards payment of the arrears that have accumulated.

11. I have received today a letter from the Child Support Agency dated 3 September 2008 which tells me that on 28 September 2006 the order made in Scotland was registered with the Child Support Agency.  It was registered pursuant to the Child Support (Registration and Collection) (Overseas-Related Maintenance Obligation) Regulations 2000 and as a result of that registration, the Child Support Agency then commenced to issue child support assessments requiring payment on a monthly basis of the amount that the husband was liable to pay pursuant to the Scottish order converted, obviously, to Australian currency.

12. The husband did not make any payments in pursuance of those assessments and, as I say to repeat, the Child Support Agency took his tax refund in about August last year.  Early this year they indicated that they would be instituting proceedings to enforce that order.  That then led to the husband filing the application that is now before me.

13. The current position with arrears is that as at 22 August 2008 they totalled $34,290.09 and I would understand that that is after taking into account the tax refund.  There are penalties added to that figure and those penalties total $6,299.67.

14. The husband's application seeks an order based on regulation 36 of the Family Law Regulations 1984.  That provides as follows:

    36Party in Australia may apply to vary etc overseas maintenance order, agreement or liability

    (1)This regulation applies to:

    (a)an overseas maintenance order or agreement registered in a court before 1 July 2000; and

    (b)an overseas maintenance entry liability or a registered maintenance liability.

    (2)Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.

    (3)An application may be made by:

    (a)the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or

    (b)the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or

    (c)the Secretary, on behalf of a person mentioned in paragraph (a) or (b).

    (4)The law to be applied to determination of an application is the law in force in Australia under the Act.

15. Now pausing there, the first question is whether this a registered maintenance liability, and it clearly is.  That is confirmed by the letter from the Child   Support Agency which tells me that the order was registered on 28 September 2006 pursuant to the then operative regulations.  I should note that in between the time of that registration and now, there have been changes made to the Child Support legislation incorporating the previous regulation which applied to these matters, and thus that Child Support legislation now governs the registration of orders made overseas.

16. Now as far as the Child Support Agency is concerned, that legislative change has not affected the status of the registration of the order. For the purposes of this case I do not need to digress into that area, but it is an interesting area, and I have some views about it. I am not necessarily convinced that what the Child Support Agency have said about it is correct but, regardless of that, if one looks at the definitions in the Family Law Regulations, for example the definition in regulation 24(A) of “registered maintenance liability” provides that it means a registerable maintenance liability under – and I will paraphrase it – the pre-existing regulations. Thus I do not need to go any further than that. The Child Support Agency can tell me that the order was registered under the previous regulations. It therefore can be defined as a registered maintenance liability for the purpose of the Family Law Regulations and accordingly regulation 36 applies to this liability, and the husband can make the application that he has in the form that he has.

17. I note that I have not been able to conclude my ex tempore remarks. I propose to conclude those remarks at 9:30am on Wednesday 10 September 2008 and I adjourn further consideration of these proceedings to that date and time.

I certify that the preceding 17 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 4 September 2008.

Associate