CALDRON & EADLER
[2020] FCCA 1818
•7 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALDRON & EADLER | [2020] FCCA 1818 |
| Catchwords: CHILD SUPPORT – Application to suspend child support order made ex parte in Country B – applicant seeking revised assessment calculated in accordance with Australian legislation – consideration of Court’s power given reciprocal legislation – orders made in accordance with submissions of the Child Support Registrar. |
| Cases cited: Child Support Registrar & Higgins & Anor [2016] FamCAFC 2 |
| Applicant: | MR CALDRON |
| Respondent: | MS EADLER |
| Amicus Curiae: | CHILD SUPPORT REGISTRAR |
| File Number: | DGC 51 of 2020 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 3 July 2020 |
| Date of Last Submission: | 3 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 7 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | Not applicable |
| Counsel for the Child Support Registrar: | Mr Bishop |
| Solicitors for the Child Support Registrar: | Mills Oakley |
IT IS NOTED that publication of this judgment under the pseudonym Caldron & Eadler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 51 of 2020
| MR CALDRON |
Applicant
And
| MS EADLER |
Respondent
And
| CHILD SUPPORT REGISTRAR |
Amicus Curiae
REASONS FOR JUDGMENT
Introductory
On 9 January 2020, the applicant Mr Caldron filed an Initiating Application seeking a variation order relevantly “amending current arrears in accordance to my current financial obligations”. He also requested “a stay order until such variation order has been finalised”.
Mr Caldron has been self-represented at all times and his affidavit filed in support of his application deposed that he received a letter on 29 July 2019 from the Department of Human Services. That letter is appended to his affidavit and notifies Mr Caldron that there had been an application to enforce a Court order for child support made in Country B on 10 May 2019 relating to child support for X. Also appended was the Order from the City C, Country B Court made on 10 May 2019 requiring Mr Caldron to pay monthly child support for X, born in 2014, in the sum of EUR 320. The affidavit also deposed to and annexed a further correspondence from the Department informing Mr Caldron that the application for child support had been accepted and the first payment would be $1,178.67 to be paid by 7 September 2019. Regular payments would be $499.14 per month.
The affidavit went on to assert at paragraphs 5 and 6:
5. I am seeking a variation order for child support to incorporate my dependents, finances and expenses as the current order was made without my knowledge and in my absence.
6. I am also seeking any necessary adjustments made to my current arrears for child support as these payments were accruing from 20 June 2019 and I was only notified at my current address on 29 July 2019. I only received a letter regarding outstanding payments issued on 11 September 2019.
Mr Caldron also filed a Financial Statement on 9 January 2020. This deposed to average weekly income of $903.55 and total personal expenditure of $1,206.88.
Mr Caldron also filed relevantly an affidavit of service on Ms Eadler by email noting that his application and supporting documentation have been received. It should be noted, not surprisingly perhaps, that this document was not served in conformity with the Family Law Regulations which require service under the Hague Convention as to service.
On the first return date of 16 March 2020, I made an order requesting that the Child Support Agency be represented on 21 April 2020 and although there was a slight glitch, the Child Support Registrar has in the fullness of time forwarded some extremely helpful written submissions as to the matter to which I will return.
On 15 May 2020, Mr Caldron filed a further affidavit. It is clear from the terms of the additional matters asserted in the affidavit that Mr Caldron had in the meantime been made aware of the relevant reciprocating legislation in this country and in Country B because the forms of orders he sought were now significantly amended.
I note that at paragraph 9, Mr Caldron deposed:
9. According the Department of Human Services, Child Support, my income tax for year ending 2019 (Exhibit E) reflects the following child support payable to Ms Eadler:
Per year: $1,314.00
Per month: $110.00
Per fortnight: $50.00
Per week: $25.00
He goes on to assert that the resulting figure would be $1,314.00 per year. He deposed at paragraph 10 that the figures he inserted were based on the child support formula being Exhibit F.
I note that the documents annexed to the affidavit, including Mr Caldron’s tax return, correspondence from the Child Support Agency and an extract from the Child Support Estimator, appear to establish beyond question that the assessed amount pursuant to the Australian Child Support Estimator would be indeed $110.00 per month.
Once again it would seem that these were posted to the respondent Ms Eadler in Country B. Finally, Mr Caldron has filed an amended application on 18 May 2020 seeking a provisional child support variation order without any greater detail as to what is sought.
The Child Support Registrar has filed extremely helpful written submissions through its solicitor Mr Bishop. These set out the statutory scheme in relation to overseas maintenance orders. The submissions refer to the relatively recent case of Child Support Registrar & Higgins & Anor [2016] FamCAFC 2 and the Full Court’s explanation of the legislative framework in that case. That case, which arose from an appeal in which I made the cardinal mistake of giving the applicant what he wanted, shows the limitations of the Court’s powers in cases such as these. Perhaps the most important aspect of the decision is that any order made in this jurisdiction must in these circumstances be expressed to be provisional only and subject to further review in the country of issue in this case Country B.
I note that the Child Support Registrar took no position as to whether the orders sought by the Applicant, as a matter of merit so to speak, should or should not be made.
When the matter came before the Court, Mr Caldron, who remained self-represented, informed the Court that he had only received correspondence from the Department in 2019. He had no idea there were any orders and did not receive any correspondence from the mother. He had investigated and discovered that the amount he ought to pay pursuant to the Child Support Estimator was $110.00 per month. He is providing for two other children, D aged 1 and E aged 4, who live with him and his partner. His partner is unemployed but his own income is as it was sworn in January 2020. The order made in Country B was without his knowledge. He spoke to Ms Eadler on 29 May 2020 and told her about his application and said that she had said to him that that was fine as long as it aligned with his circumstances. He assured the Court that they are on speaking terms.
Mr Bishop who appeared on behalf of the Child Support Agency confirmed again that the Child Support Agency took no position as to the merits or otherwise of the application but confirmed that any order made would need to be made consistent with its international status.
This is an unusual matter and indeed an unusual judgment as a result. The fact is that Mr Caldron has annexed materials to his affidavit which appear to me to establish beyond question that the amount he should be paying pursuant as it were to the Australian assessment is $110.00 per month. I note that any order I make will be provisional and may be the subject of dispute in Country B when the matter is referred back to that country. Assuming that what Mr Caldron says is correct, it would appear to be not likely to be the subject of dispute, although of course that would be a matter for the City C, Country B Court.
In these circumstances, I propose to make orders giving effect to the application for a provisional order varying the City C, Country B Court order so that Mr Caldron’s child support is assessed at $110.00 per month. Mr Bishop has kindly offered to engross an appropriate set of orders in the event that this was the Court’s conclusion and I request that that be done.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 7 July 2020
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