Connolly and Scaife and Anor

[2016] FCCA 1519

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONNOLLY & SCAIFE & ANOR [2016] FCCA 1519

Catchwords:
CHILD SUPPORT – STAY – Application for Stay – Orders made in Canada – application for stay of orders made by the Ontario Court Provisional Division pending final determination of the proceedings – where final relief sought under Family Law Act 1975 (Cth) s.66S – where substantive proceedings in Ontario were settled – no further need for stay – Application dismissed.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), ss.80, 111C

Family Law Act 1975 (Cth), s.66S

Applicant: MR CONNOLLY

First Respondent: MS SCAIFE

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 5926 of 2014

Judgment of: Judge Scarlett

Hearing date: 7 December 2015

Date of Last Submission: 7 December 2015

Delivered at: Sydney

Delivered on: 22 June 2016

REPRESENTATION

Solicitor for the Applicant: Mr Manning (until 22 March 2016)

Solicitors for the Applicant: Manning Lawyers Pty Ltd (until 22 March 2016)

Solicitor for First Respondent: Ms McLeod

Solicitors for First Respondent:	Farrar, Gesini & Dunn
Counsel for the Second Respondent:	Mr Kaplan
Solicitors for the Second Respondent:	Mills Oakley Lawyers

ORDERS

1. Order 1 made on 9 December 2014 staying the enforcement by the Child Support Registrar of Orders made by the Ontario Court of Justice on 5 March 1997 is discharged.

2. The Amended Initiating Application filed on 9 October 2015 seeking Interim and Final Orders is dismissed in its entirety.

IT IS NOTED that publication of this judgment under the pseudonym Connolly & Scaife & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5926 of 2014

MR CONNOLLY

Applicant

And

MS SCAIFE

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for a stay of collection of child support payments made by the Ontario Court of Justice on 5^th March 1997. On 30^th May 2014 the Child Support Registrar accepted an application by the Family Responsibility Office of Ontario, Canada, to register a debt of $79,692.36 for arrears of child support.

2. On 9^th December 2014 an Order was made staying the enforcement of the child support order until further Order.

Background

1. The Applicant and the First Respondent are respectively the Father and Mother of two children who were born on (omitted) 1993 and (omitted) 1994. The Mother and the two children all resided in Canada.

2. On 5^th March 1997 the Ontario Court of Justice made orders requiring the Applicant to pay to the First Respondent money by way of child support.

3. On 30^th May 2014 the debt of $79,692.36 was registered with the Child Support Registrar, the Second Respondent. The Applicant objected under the provisions of s.80 of the Child Support (Registration and Collection) Act 1988 (Cth) but the objection was disallowed on 25 February 2015.

4. On 23^rd September 2014 the Applicant filed an Initiating Application, seeking a stay of enforcement until further order and as a final order a permanent stay. The Applicant deposed in his supporting affidavit of 22^nd September 2014 that the older child has in fact been living in Australia with him since approximately 2012.

5. The Applicant also deposed that on 22^nd September 2014 he had applied to the Social Security Appeals Tribunal (now the Administrative Appeals Tribunal) for a review of the decision of the Child support Registrar.

6. The Applicant further deposed that he was seeking legal advice in Canada with a view to varying or setting aside the Child support Order of 5^th March 1997.

7. On 26^th August 2015 the Administrative Appeals Tribunal set aside the decision of the Child Support Registrar and remitted the matter to the Registrar for reconsideration in accordance with the direction that the child support debt should be recalculated disregarding any liability for the older child with effect from 10^th March 2009 (a date when the child commenced living independently from the mother).

8. On 9^th October 2015 the Applicant filed an Amended Initiating Application seeking interim and final orders.

9. The Interim Order sought was:

   That pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 the collection of child support payable by the Applicant to the Respondent for the children X born (omitted) 1993 and Y born (omitted) 1994 made on 5 March 1997 in the Ontario Court Provisional Division be stayed pending final determination of these proceedings.

10. The Amended Application also sought the following final orders:

    1. That pursuant to Section 66S of the Family Law Act 1975 the Ontario Court Provincial Division Order, Court File Number 38/97 dated 5 March 1997 is suspended.

    2. That in the alternative to order 1 above, the Ontario Court Provincial Division Order, Court File Number 38/97 dated 5 March 1997is retrospectively discharged as at the date it was made.      

The Hearing

1. The Application for the Stay until further Order was heard on 7^th December 2015.

2. The Applicant relied on two written submissions, dated 13^th October and 9^th November 2015, contending that the Court did have jurisdiction to grant a stay under s.111C of the Child Support (Registration and Collection) Act.

3. The First Respondent relied on a written submission dated 3^rd November 2015, to the effect that the Court did not have power to grant a stay under s.111C(1)(a) where there is no “proceeding” under the Child Support (Registration and Collection) Act or Parts 6 or 7 of the Child Support (Assessment) Act 1989 (Cth).  

4. The First Respondent also submitted that s.66S of the Family Law Act 1975 (Cth) could not apply, as it refers to a variation of a maintenance order, which was not what the applicant was seeking or entitled to seek.

5. The Second Respondent relied on a written submission also dated 3^rd November 2015 to the effect that the Court had no power to grant a stay under s.111C of the Registration and Collection Act.

6. Judgment was reserved.

The Minutes of Settlement

1. On 3^rd March 2016 the Applicant and the First Respondent, each of whom was represented by a lawyer in Toronto, entered into Consent Orders by means of a document entitled “Minutes of Settlement”, which effectively settled the child support matter on a final basis. The Minutes provide as follows:

   1. The Respondent, Mr Connolly, will make payment, without conditions, in the amount of $48,000.00 to the Applicant, Ms Scaife, in full and final satisfaction of all claims for child support, both past, ongoing, retroactive and prospective, and in full and final satisfaction of all costs, including all legal fees, incurred by the Applicant, Ms Scaife, in seeking enforcement of child support, both in Canada and Australia.

   2. The aforesaid payment will be made in full no later than March 9, 2016.

   3. The Applicant, Ms Scaife, will advise the Family Responsibility Office that the Respondent, Mr Connolly’s, obligations  for child support are terminated and will direct the Family Responsibility Office to clear their records and release the Respondent, Mr Connolly, from any past, ongoing, retroactive and prospective obligation for child support and costs.

   4. The Applicant, Ms Scaife, shall defray any university expenses for Y, whether past, ongoing, retroactive and prospective, without contribution from the Respondent, Mr Connolly, and will hold him harmless in that regard.

   5. The parties agree that the application of the Guidelines in all the circumstances would result in an amount of child support that is inequitable and that the parties’ child support arrangement is reasonable and meets the objectives of the Guidelines.

Conclusions

1. The parties have not entered into any Consent Orders in this Court resolving the issues between them but the settlement of the substantive proceedings in Canada has a profound effect on these proceedings. The Application for a Stay in this Court was brought by the Applicant to preserve his position until the outstanding child support matter was resolved. This has now occurred.

2. It is no longer appropriate for the interim Stay Order of 9^th December 2014 to remain in place. As the child support proceedings in Canada have been finalised and there are no longer any arrears, nor is there any ongoing liability to pay child support, there is now nothing to be stayed.

3. Similarly, the interim and final orders sought in the Amended Application can be of no effect whatsoever as there is no ongoing child support liability or any arrears of child support.

4. The earlier stay Order will be discharged. The Application for interim and final Orders will be dismissed. The Application will be removed from the list of Cases Awaiting Finalisation.       

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 22 June 2016