Capella and Raines and Anor
[2020] FCCA 984
•20 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAPELLA & RAINES & ANOR | [2020] FCCA 984 |
| Catchwords: CHILD SUPPORT – FAMILY LAW – Mother is primary carer – multi jurisdictional dispute – the Court has jurisdiction to vary orders created in the Family Court of City A – USA is a reciprocating jurisdiction – City A orders are a registered overseas maintenance liability – child maintenance order registered in Australia by the mother – father’s circumstances have changed to justify variation – father unable to pay amount fixed by City A orders – mother seeking order for incarceration of father in City A – mother not filing financial statements. |
| Legislation: Family Law Act 1975 (Cth), ss.66J, 66K, 66S, 110 Child Support (Registration and Collection) Act 1989 (Cth), ss.4, 18A, 30(1) |
| Cases cited: ADG & VO [2007] FMCAfam 818 Child Support Registrar & Higgins and Anor [2016] FamCAFC 2 Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56 Imago & Imago [2010] FMCAfam 411 Klein & Wright [2007] FMCAfam 360 Newbeld & Newbeld [2007] FMCAfam 465 Pitney & Pitney [2018] FamCA 996 |
| Applicant: | MR CAPELLA |
| Respondent: | MS RAINES |
| Intervener: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 329 of 2020 |
| Judgment of: | Judge McNab |
| Hearing date: | 20 April 2020 |
| Date of Last Submission: | 20 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Devine |
| Solicitor for the Applicant: | MST Lawyers |
| The Respondent in Person: |
| Counsel for the Intervenor: | Mr Bishop |
| Solicitor for the Intervenor: | Mills Oakley |
ORDERS
UPON THE RESPONDENT’S UNDERTAKING given in writing in paragraph 24 of his Affidavit filed 15 April 2020, to withdraw his Application to Modify the Child Maintenance order made on 13 December 2018, such Application being filed on 30 May 2019 in the City A Family Court, and on his undertaking through his Counsel to do so within 7 days of these Orders,
Pursuant to regulation 36 of the Family Law Regulations 1984 (Cth), the order made 13 December 2018 in the Family Court of City A in relation to ongoing child maintenance in the sum of US$1,876 payable by the applicant to the respondent for the child, X, born in 2009 (‘the child’), and registered with the Child Support Agents and Services Australia, reference number …, be discharged as and from 1 January 2019.
For the period 1 January 2019 until 22 February 2019, the child maintenance payable by the applicant to the respondent for the child be set at nil.
For the period 22 February 2019 until 1 June 2019, the child maintenance payable by the applicant to the respondent for the child be set at US$864.
That for the period 1 June 2019 until the child turns 18 years of age, in 2027, the maintenance be set at A$375 per calendar month.
IT IS NOTED that publication of this judgment under the pseudonym Capella & Raines & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 329 of 2020
| MR CAPELLA |
Applicant
And
| MS RAINES |
Respondent
| CHILD SUPPORT REGISTRAR |
Intervener
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE – REVISED FROM TRANSCRIPT)
Introduction
The applicant filed an Amended Initiating Application on 15 April 2020 seeking Orders, amongst other things, to discharge orders made in the Family Court of City A on 31 December 2018 (‘the City A Orders’) regarding ongoing child maintenance of his son, X, born in 2009 (‘the child’ or ‘X’). The application was supported by an affidavit in support affirmed on the same day, together with an amended financial statement.
The matter came before this Court for hearing on 7 April 2020 and was adjourned until 9 April 2020. It was subsequently further adjourned until this day, 20 April 2020, with Orders being made for the applicant to file the further material upon which he intended to rely.
This Court has jurisdiction to deal with this application by reason of the operation of regulation 36 of the Family Law Regulations 1984 (Cth) (‘the Regulations’). There are no reasons of forum non conveniens to not proceeding with the hearing. I am satisfied that I have jurisdiction having regard to:
a)the submissions filed on behalf of the father filed 17 April 2020; and
b)the submissions of Mr Bishop, who appeared for the Child Support Registrar to assist the Court on this day;
Background
The background to this matter is set out in the applicant’s affidavit of 15 April 2020 of the applicant that deposes that:
a)he is a 55 year old Country B national;
b)he has lived in Australia since 2017 and has been a permanent resident since 2018;
c)he commenced a relationship with the respondent in 2007 and separated in 2011 when they both resided in Country C;
d)the respondent is the mother of the one child of their relationship, X; and
e)the respondent lives in City A, USA with X.
In 2012, the applicant entered into an agreement which was signed at the Country C Embassy in Country B, which provided for a monthly payment of €1,600 (‘the Country C Agreement’).[1]
[1] [8] of the applicant’s affidavit of 15 April 2020.
In July 2017, the applicant lodged a modification request in the Country C court to terminate or modify the Country C Agreement, and payments were reduced to €300 per month. A modification hearing was scheduled to occur in April 2018 in Country C.[2]
[2] [9] ibid.
That modification hearing did not proceed as in March 2018 the respondent relocated to City A, USA and the Country C court indicated that it would not proceed whilst the respondent lived in City A, USA.[3]
[3] [10 ibid.
On 13 December 2018, the respondent registered the Country C Agreement in the Family Court of City A and the City A Orders were made registering it on that day. Pursuant to the City A Orders, the sum of US$1,876 was payable by the applicant to the respondent for ongoing child maintenance.[4]
[4] Exhibit C-1 to Mr Capella’s affidavit of 15 April 2020.
The applicant deposes that there was a threat of incarceration due to non-payment of child maintenance as a result of a “wilfulness hearing” which had been scheduled on 13 December 2018. Notwithstanding the financial pressure that the applicant says he was under at that time, he agreed to the modification and to the registration of the Country C Agreement in the City A court and did so when he was legally represented.[5]
[5] [11] - [12] of the applicant’s affidavit of 15 April 2020.
On 4 March 2019, the respondent requested to register the City A Orders with the then Department of Human Services, Child Support Agency Australia (now Services Australia: Child Support Agency) (‘the Agency’).[6]
[6] [13] Ibid.
On 16 August 2019 the Agency wrote to the applicant informing him that the respondent’s request to register the City A Orders had been accepted.[7]
[7] Ibid.
Since the City A Orders were made, there has been a significant change in the applicant’s circumstances, in particular, that his previous employment position became redundant and he has obtained alternative employment. The applicant subsequently made attempts in City A to have the City A Orders set aside or modified because of his change of circumstances.
The applicant’s account of the proceedings in City A is set out in his affidavit at [25]-[29] the provides:
25. At the time of the City A orders on 13 December 2018, I appeared by telephone, and the presiding Magistrate, Magistrate D, advised me to lodge a modification if I could not afford the monthly amount. I did so, although on 1 February 2019, my Modification request was dismissed. I was in receipt of my redundancy notification however that was not to take place until 31 December 2018. Notwithstanding that from 31 December 2018 I would no longer be employed and therefore have no income, Magistrate E who resided over my Modification Petition did not adequately consider that fact, instead stating that at the time of the 13 December 2018 hearing I agreed to the monthly amount and did not offer me an opportunity to speak nor proceed to a hearing. Further, Magistrate E ignored the transcript where Magistrate D counselled me to lodge a modification if I could not afford the amount.
26. In May 2019, the Respondent filed a violation for non-payment which resulted in a Money Judgment Order issued on 5 June 2019. At that hearing, the Magistrate, again Magistrate E inexplicably refused to hear my telephonic testimony nor accept any of my evidence. The Order issued states "after examination and inquiry into the facts and circumstances...the defaulting party not having shown good cause for failure" to pay the full support.
…
27. On 30 May 2019 I lodged a second Modification petition in the Family Court of City A, once it became obvious securing a higher paid job would not be easy and as my financial situation worsened. In addition to the 30 May 2019 petition, I filed two further supporting electronic documentary evidence including an updated Financial Statement filed on 15 August 2019 and 16 September 2019.
28. My modification petition and subsequent electronic testimony was filed on the basis that I am unable to afford the amount of USD$1,876. Child Support in City A is legislated at 17% of my income. Based on the FX rate of $0.65 converting my salary to USD$2,630 per month, USD1$,876 support per month is 72%, 4 times the legislated rate. I cannot afford this amount and be able to support myself.
29. A Modification Hearing was scheduled to occur in City A in July 2019. At the Respondent's request, the modification matter in City A was adjourned until 21 October 2019, some 5 months after my initial application. During the delay, the Respondent filed a Motion to Dismiss.
30. The City A Orders were registered with the Agency in Australia on 16 August 2019.
31. At the 21 October 2019 hearing in City A, the presiding Magistrate declined to allow me to participate by telephone. Around 29 October 2019, my attorney received an order in favour of the Respondent's Motion to Dismiss. My attorney informed me she believed the decision was in error and subsequently filed an objection.
32. In the orders of 21 October 2019, I was also ordered to pay Respondent's legal fees, amounting to some AUD$10,000 (converted from USD). My then attorney lodged an objection to this also but the Respondent continues to pressure me to immediately pay in full, including this in her subsequent violation claim in the Family Court of City A. The most I can afford towards the legal fees is $50 per month which I am diligently paying.
33. On 3 November 2019, Respondent lodged a further violation for non-payment of child maintenance. This was initially heard on 3 December 2019 where Respondent requested the matter proceed to a "wilfulness" hearing, requesting I be incarcerated. On 3 January 2020, after taking up 8 nights parenting time in City A with our son, I attended the wilfulness hearing.
34. Due to my inability to afford legal representation, I represented myself, and submitted comprehensive evidence including my payslips, banking statements and job search data to the Court. The presiding Magistrate refused to accept my payslips as evidence, saying they were only in Country B when they were in both Country B and English, and proceeded to make an order that I pay the full amount each month, an additional USDI0,000 and be incarcerated for 6 months. This matter has been adjourned until 21 April 2020. A transcript of that hearing is available if required but has not been annexed to this Affidavit due to length.
35. On 6th March 2020 I received news that Judge F, of the Family Court of City A found Magistrate E’s reasons for dismissing my modification to be in error. Judge F’s order states that the 29 October 2019 dismissal orders are vacated and the orders for the USD6,000 costs award is also vacated. As at 15 April 2020 the matter was to be restored to the list.
36. Notwithstanding that I have made this application in Australia, and that I was successful in my objection to the October 2019 hearing, the Respondent still seeks that I be incarcerated at the hearing on 21 April 2020.
37. I have applied to the National Australia Bank for a loan for $10,000 but was rejected due to my low income and lack of any assets. I am unable to meet payment in accordance with the orders made on 3 January 2020 in City A and anticipate there will be an order for my incarceration made on 21 April 2020 in City A if my application to this Court is not successful.
I note that in the hearing before the presiding Magistrate on 3 January 2020, the transcript of the hearing (which was submitted by the mother) shows that the Magistrate refused to accept into evidence the applicant’s pay record from the Country B Embassy on the grounds that the document was not translated. The Magistrate seems to have done this as a result of a submission from the wife’s counsel as the document is plainly in Country B and English and clearly pertains to his wages.[8]
[8] Transcript of Support Proceeding at Family Court of the State of City A, page 27.
In early December 2019, the applicant received a before tax bonus of approximately $3,474 which he used to pay the full monthly support of $2,506.34 on 5 December 2019 through the Agency. The applicant deposes that the respondent denied receiving these monies and the presiding magistrate in City A on 3 January 2020 ‘refused to accept [his] printout evidence from the Agency’.
In January 2020, the applicant’s wife paid the full child support amount of $2,056.34 on the applicant’s behalf. The applicant says that this was ‘in order to attempt to avoid my feared incarceration at the hearing on 3 January 2020 in City A’.
The applicant has proffered an undertaking to discontinue his objection proceedings in City A which was the subject of Judge F’s order on 29 October 2019.
Orders sought
The applicant seeks Final Orders that:
1. Pursuant to Regulation 36 of the Family Law Regulations 1984, the order made 13 December 2018 in the Family Court of City A in relation to ongoing child maintenance in the sum of $1,876 USD payable by the Applicant to the Respondent for the child X born in 2009 (‘the child’) and registered with the Child Support Agency, Services Australia, reference number …, be discharged as and from 1 January 2019.
2. For the period 1 January 2019 until 22 February 2019 the child maintenance payable by the Applicant to the Respondent for the child be set at nil.
3. For the period 22 February 2019 until 1 June 2019 the child maintenance payable by the Applicant to the Respondent for the child be set at $965.44 AUD.
4. For the period 1 June 2019 until the child turns 18 years of age (30 May 2027) the child maintenance be set at $375 AUD per calendar month.
The applicant also sought Interim or procedural Orders that included that the respondent serve a sworn financial statement and provide full disclosure relating to her financial position with 14 days.
Jurisdiction
The following is submitted on behalf of the father:
a)The City A Orders are an overseas maintenance liability for the purposes of section 4 of the Child Support (Registration and Collection) Act 1989 (Cth) (‘CRSC Act’) as they are ‘a maintenance order made by a judicial authority of a reciprocating jurisdiction’.
b)The United States of America (‘USA’) is a reciprocating jurisdiction as set out within Schedule 2 of the Regulations. Pursuant to reg 38(2) of the Regulations, any order made by the Family Court of Australia will be a final order.
c)The City A Orders are a registrable maintenance liability as defined in section 18A of the CSRC Act 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’.
d)The City A Orders have been registered, and pursuant to section 30(1) of the CSRC Act the amounts payable pursuant to those Orders are debts due to the Commonwealth of Australia and the Child Support Registrar is entitled to collect them.
e)Section 110(2)(c) of the Family Law Act 1975 (Cth) (‘the Act’) provides the Court with the following power for ‘the making of orders…for the variation, discharge, suspension or revival of maintenance orders registered in accordance with regulations under this section’.
f)The City A Orders are a registered overseas maintenance liability as defined in reg 24A of the Regulations, namely ‘a registrable maintenance liability under section 18A of the Child Support (Registration and Collection) Act 1988’.
g)Pursuant to reg 36 of the Regulations, a party in Australia may apply to have the orders varied, suspended, revived, or discharged. That regulation reads as follows:
Party 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.
The Court accepts that it has jurisdiction to make the Orders sought by the father. The correctness of the submissions is confirmed by Full Court authority in the Family Court of Australia which considered reg 36 in two reported decisions, being Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56 (‘Vladimir’) and Child Support Registrar & Higgins and Anor [2016] FamCAFC 2 (‘Higgins’).
The Family Court of Australia has varied American overseas maintenance orders pursuant to regulation 36 in Pitney & Pitney [2018] FamCA 996. Justice Forrest discharged an American child maintenance order on the father’s application. In so doing, the Family Court:
a)set out the regulation 36 requirements;
b)considered the definition of a ‘registered maintenance liability’ pursuant to reg 24A of the Regulations and ‘registrable maintenance liability’ pursuant to section 18A of the CSRC Act; and
c)confirmed that the USA is a reciprocating jurisdiction for the purposes of the CSRC Act.
In being satisfied that the American orders were orders to which reg 36 applies, the Court stated that at [10]:
[…] The American orders provide that the Applicant is liable to pay periodic maintenance for his children and is also liable to pay a periodic amount for the maintenance of his former wife. Accordingly, the Applicant’s liability is a “registrable overseas maintenance liability” for the purposes of s 18A of the Registration Act and is, accordingly, a “registered maintenance liability” to which reg 36 of the Regulations applies.
As can be seen, reg 36 provides for an application to be made to a court of competent jurisdiction for an order “discharging, suspending, reviving or varying an order or liability” to which the Regulation applies. The Applicant is a person “against whom the order was made” within the meaning of reg 36(3). Accordingly, he may make the application.
As can also be seen, reg 36(4) provides that the law to be applied “to determination of an application is the law in force in Australia under the Act.” Reference to “the Act” is clearly reference to the Family Law Act 1975 (Cth) (“the Act”), so it is to the provisions of the Act that one must turn in order to determine an application brought pursuant to reg 36. As there are two relevant parts to the City B Court’s orders – one creating child support liability and the other creating spousal maintenance liability - there is a need to determine what is “the law in force in Australia under the Act” that governs the determination of the application to discharge the City B Court’s orders.
In ADG & VO [2007] FMCAfam 818, a variation of a child maintenance order made in Texas was made. The Court found, after review of the relevant legislative provisions, that the Federal Circuit Court had the power to vary the order pursuant to reg 36 as the Texan order was ‘an overseas maintenance entry liability or a registered maintenance liability’ and the father was a party in Australia making the application.
A recent decision of Justice Wilson in Membrey & Hall [2019] FamCA 857 canvasses the history of child maintenance relations between Australian and the USA. His Honour set out the legislative scheme for enforcing overseas maintenance orders particularly relating to the USA. His Honour found, following previous decisions of the Full Court and the Family Court, that:
a)the USA orders were properly characterised as an ‘overseas maintenance liability’ for the purposes of section 4 of the CSRC Act;
b)the USA Orders were a ‘registrable maintenance liability’ for the purposes of section 18A of the CSRC Act; and
c)upon registration of those orders the amount recorded in the orders became a debt due to the Commonwealth of Australia, amenable to collection by the Agency;
d)the Applicant was entitled to make his application to discharge the USA Orders pursuant to regulation 36 of the Regulations; and
e)the law to be applied is the law in force in Australia under the Act, being the Family Law Act 1975 (Cth.).
The applicant noted the Federal Circuit Court (and the Federal Magistrates’ Court) has varied American child maintenance orders pursuant to reg 36 in three other decisions.[9]
[9] Klein & Wright [2007] FMCAfam 360; Imago & Imago [2010] FMCAfam 411; Newbeld & Newbeld and CSR & Newbeld [2007] FMCAfam 465.
The Child Support Registrar also confirmed in submissions that this Court has jurisdiction to make the Orders sought.
The applicant’s evidence about his finances
The child support history which is annexed to the applicant’s affidavit provides that he has, since 2017, paid $26,086 as payments in respect of liabilities arising from child maintenance.
The applicant deposes at [44]–[51] of his affidavit that:
a)he was made redundant on 31 December 2018 and was unemployed for almost two months until 22 February 2019;
b)since the end of February 2019, he has been employed at the Employer G in Melbourne;
c)from the end of February 2019 until the end of May 2019, his salary at the Employer G was A$3,696 per month;
d)from about 1 June 2019 he received a salary increase which increased the monthly salary to A$4,074 per month;
e)in December 2019 he received a bonus of A$3,474;
f)his taxable income from his previous employment was $130,000 per annum;
g)his total taxable income is now approximately A$52,000 per annum;
h)he sought better paying jobs in Australia but was unable to obtain alternative employment; and
i)he has sought to change parenting access to occur in Australia, but that has been refused, and that in order to spend time with his son and take up his annual 45 nights of parenting time involve significant travel costs.
At [52] he states that:
52. Due to the financial stress I have been facing and the difficulties I was experiencing maintaining contact with our son, I suffered a breakdown in around 14 November 2019. I sought medical assistance on 15 November 2019 and was diagnosed with severe depression by my GP, put on a Mental Health Plan and referred to a psychologist.
I accept the father’s evidence which supports a finding that he is unable to maintain the payments which were fixed by City A Orders.
The mother’s submissions
The mother, who appeared on her own behalf on each of the occasions the matter has been listed, stated in very clear terms today and each time she appeared that she did not intend to file any material with this Court. In particular, she refused to file any sworn financial statement relating to her financial position.
The mother made submissions regarding the financial position of the father and his partner, in particular making reference to the husband taking a holiday to City H and residing in an apartment in Suburb J (an affluent suburb of Melbourne).
The respondent did not accept that the Australian Court held any jurisdiction to deal with a matter that was before the City A court, claimed that the application was an abuse of process and vociferously objected to the Court dealing with the matter. Whilst she filed no application to restrain this Court from dealing with the matter, the mother did email documents to the Court including a transcript of the City A proceedings on 3 January 2020 and a copy of the decision of Judge F of the Family Court of City A, USA.[10]
[10] Referred to at [35] of the applicant’s affidavit of 15 April 2020.
There is no utility in adjourning this application for a further final hearing in circumstances where the mother has made it absolutely apparent that she does not intend to file any further material such as would change the Court’s view as to the merits of the application.
The mother made submissions this day that the City A Order is not an American order but is, in fact, a Country B order. That submission is incorrect. The order has been registered in City A and the applications made by the mother in relation to the order were made in City A.
The mother has not filed evidence before the Court in relation to the circumstances of the child.
Consideration
The father has, by his evidence, established that the obligations created by the City A Orders are not maintainable by him and ought to be discharged for the reasons set out in the application and the submissions. The Court is satisfied that the sums sought in the Orders proposed by the applicant are appropriate, having regard to the evidence that has been filed regarding the applicant’s income.
It is appropriate for the Court to make these orders in circumstances where the mother has made repeated attempts to have the father dealt with by way of orders for incarceration in City A. Whilst she states that she is only interested in collecting child support, the overwhelming emphasis in the submissions that she has made to this Court is that the courts in the USA have jurisdiction to jail and will jail, and it is plain that this is a result that she is seeking, given that she has sought orders for that to occur on a number of occasions.
Sections 66J and 66K
I have regard to the matters in sections 66J of the Act which provides:
Matters to be taken into account in considering financial support necessary for maintenance of child
(1) In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:
(a) the matters mentioned in section 66B; and
(b) the proper needs of the child (this is expanded on in subsection (2)); and
(c) the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).
(2)In taking into account the proper needs of the child the court:
(a) must have regard to:
(i) the age of the child; and
(ii) the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and
(iii) any special needs of the child; and
(b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.
(3)In taking into account the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and
(ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit.
(4) Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
I also have refer to section 66K of the Act which stipulates:
Matters to be taken into account in determining contribution that should be made by party etc.
(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:
(a) the matters mentioned in sections 66B, 66C and 66D; and
(b) the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and
(c) the commitments of the party, or each of those parties, that are necessary to enable the party to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(d) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and
(e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.
(3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.
(4) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:
(a) any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and
b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
(5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:
(a) by way of lump sum payment; or
(b) by way of transfer or settlement of property; or
(c) in any other way.
(6) Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
I note the following from [44] of the applicant’s submissions:
a)X is 10 years old, attends a public school, has no special needs and no capacity to derive income.
b)The father is unaware of whether or not X has any assets held in his name.
c)The father’s application seeks to pay child maintenance at the highest level that he can afford. The sums proposed by the applicant are appropriate levels of payment as supported by the child support tables annexed to the Child Support (Assessment) Act 1989 (Cth).
d)The father and the mother’s income should both be taken into account in determining the support level for the child X. While the father has provided his current income, the mother has refused to provide any information about her financial circumstances.
e)Regarding the mother’s submissions about the applicant’s affluent lifestyle and his spouse’s financial position, section 66K(4)(b) of the Act provides that the Court must disregard the financial circumstances of any person who does not have a duty to maintain the child. The fact that the applicant has a wife who has income is not relevant to the consideration of the Court. I do not find that there has been any non-disclosure on the part of the applicant.
f)There is evidence of the father’s attempt to provide for his son and to obtain alternative employment at a higher income level than he is currently receiving.
g)I also note that the costs associated with the father spending time with the child are high.
h)The father has no capacity to meet any lump sum for arrears and has made appropriate arrangements with the Services Australia Child Support Agency to pay the same.
Section 66S
Section 66S of the Act provides the following:
…
(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.
…
The Court is satisfied that:
a)pursuant to section 66S(2)(d) of the Act, the City A Orders should be varied in the ways set out in [42] of the applicant’s submissions;
b)pursuant to section 66S(3) of the Act, the applicant’s circumstances have changed so as to justify the variation; and
c)pursuant to section 66S(3)(a)(iii), since the City A Orders were made, it is possible that the mother’s circumstances may have changed so as to justify the variation. The father gave evidence of the mother’s overseas travel in 2019 at [62] of his affidavit and I also refer to the mother’s failure to provide financial information in these proceedings.
For those reasons, the Court will make orders in the terms sought by the applicant.
The Court has considered the submissions made by the wife. Many of those submissions were based on a misunderstanding of Australian law.
I do not find that there is any evidence that the father has understated his financial resources in making the application stated.
The application is not an abuse of process particularly given that the making of the Orders is subject to the undertaking given by the father that he will discontinue the review proceedings that he initiated in City A, USA. Further, the wife did not file an application for the Australian proceeding to be stayed. No cogent submission was made that the Australian Courts are a clearly inappropriate venue.
The mother made a deliberate forensic decision not to file evidence in this Court regarding matters going to the exercise of the Court’s discretion.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 28 April 2020
0
7
3