Controller Of Overseas Maintenance & Roganovic

[2007] FamCA 555

FAMILY COURT OF AUSTRALIA

CONTROLLER OF OVERSEAS MAINTENANCE & ROGANOVIC [2007] FamCA 555

FAMILY LAW - CHILD SUPPORT - Overseas maintenance order - Convention on the Recovery Abroad of Maintenance

APPLICANT: CONTROLLER OF OVERSEAS MAINTENANCE

RESPONDENT: MR ROGANOVIC

FILE NUMBER: SYF 4753 of 2003

DATE DELIVERED: 8 JUNE 2007

PLACE DELIVERED: SYDNEY

JUDGMENT OF: JUSTICE COHEN

HEARING DATE: 9 DECEMBER 2005

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MR J.L. McCULLOUGH OF AUSTRALIAN GOVERNMENT SOLICITOR’S OFFICE

COUNSEL FOR THE RESPONDENT: MS OSTERBURG-OLSEN

SOLICITOR FOR THE RESPONDENT: PJ KERR AND CO.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4753  of 2003

CONTROLLER OF OVERSEAS MAINTENANCE  

Applicant

And

MR ROGANOVIC

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by the father from orders made by a Local Court (Family Matters) magistrate on 30 July 1999. The father was the respondent in the Local Court. The magistrate made orders that the father pay child maintenance to the mother for the son, who was born on … March 1984, at the rate of $300.00 per month from 1 June 1999 and that he pay arrears of $37,000.00 within 28 days.

2. The father has been granted leave to appeal out of time from these orders. They were made ex parte on the application of the Controller of Overseas Maintenance Claims (Controller). This position was created by the Family Law Regulations, 1984. His application was filed on 12 May, 1999. The father was not served directly, but was subjected to an order for substituted service on his mother who lives in Sydney.

3. The application of 12 May, 1999 sought more than one type of remedy. Firstly, by orders 1. and 2., it asked that the father pay child maintenance in an amount “to be determined once the financial situation of the respondent is known” and that the periodic sum to be paid be subject to automatic variation in accordance with variations in the cost of living calculated in accordance with the Consumer Price Index. This aspect of the application is clearly one which was made for child maintenance to be fixed by the Local Court under Division 7 of Part VII of the Family Law Act; an original claim for child maintenance against the father based on his residence in Australia.

4. The second aspect of the initiating process filed in May 1999 is a claim for arrears under the order of the District Court of …, Serbia of 12 June 1987 in the sum of $37,500.00.

5. The Family Law Regulations, 1984, as they then stood, do not make any clear provision for a claim for child maintenance under s66G of the Family Law Act to be made by anyone other than a claimant who is entitled by Division 7 of the Family Law Act to institute proceedings for child maintenance. The then existing regulations which were last amended prior to 12 May 1999 on 24 March 1999, in Part IV  purport to meet Australia’s obligations as a party to the Convention on the Recovery Abroad of Maintenance. That convention provides for each party to it to be required to appoint an entity to receive and pursue child maintenance claims by a resident of another party on that resident’s behalf.

6. The Convention appears to permit both an original claim for maintenance in the country where the respondent lives and a claim to enforce, in the respondent’s country, any order made for the benefit of the claimant under the law of the claimant’s country. In Australia, each of these types of claim, whether for an original maintenance order or to enforce an order made in the claimant’s jurisdiction, is to be determined in accordance with the law of Australia (see reg. 49(5) and reg. 26 Family Law Regulations, 1984).

7. The Convention itself does not form part of the law of Australia. The law of Australia is limited to the statutes and statutory regulations made in Australia for the purpose of implementing Australia’s obligations under the Convention. The relevant regulations which were in force in May 1999 are very confusing in that regard, but they do not fail to achieve their end.

8. Part IV does not seem to permit an application by the Controller on behalf of a claimant for child maintenance in reliance on Part VII of the Family Law Act to be made. Regulation 50, as it then was, does not apply because it permits only recovery of maintenance under an order which has already been made by an Australian Court. Regulation 49(1),(2) and (3), as it then was, only permits action to recover maintenance on behalf of an Australian resident from an overseas convention country by action in the overseas convention country. However, regulation 49(4) permits an Australian resident who is required to pay child maintenance by an order against that resident, whether made in an overseas convention country or made in Australia, to seek, in Australia, suspension or variation of the order by reliance on Australian law.  A Court with jurisdiction to make orders under the Family Law Act would have jurisdiction to hear an application for suspension or variation of such an order.

9. The other part of the Family Law Regulations, 1984 which specifically might be applied to implement the Convention is Part III as it was in May 1999. It principally provides for registration of overseas maintenance arrears for enforcement purposes by the Secretary of the Attorney-General’s Department, called in the regulations “the Secretary.” Such an order can not be registered if it was made without due service on the respondent, an appearance in the proceedings by the respondent and the consent of the respondent. Due service for the purpose of this part is not achieved where the respondent was out of the jurisdiction in which the order was made and has not been served either personally or by post. Regulation 26 of the Family Law Regulations imposes the power and obligation to register, in Australia, an overseas child maintenance order for the purpose of enforcement in Australia. The person who commenced the proceedings before me on behalf of the mother is not the Secretary. The Controller must have been appointed by the Attorney-General from the ranks of officers of the Australian Public Service. The Secretary could be appointed as Controller but there is no evidence that he has been in this instance. However, the Controller’s functions, by Reg. 43(1)(a), are, amongst others, “to do, or co-ordinate the doing of, anything that is required to be done for the purpose of performing the obligations of Australia” under the Convention on Recovery Abroad of Maintenance.

10. It seems to me, therefore, that the Controller is empowered in the proceedings before me by regulation 43(1)(a) to act on behalf of an overseas person to enforce an overseas child maintenance order in Australia against an Australian resident or to claim child maintenance under Division 7 of the Part VII of the Family Law Act despite the failure to provide a specific regulation for such claims. That is what the Controller is purporting to do here. He is not seeking to argue that the overseas orders which have been obtained by the mother against the father be registered.  

11. There is a problem with the orders which have been sought. They do not nominate a terminating date for the claim for arrears or a commencing date for the Australian order for maintenance and seem to include, in the claim for arrears, an order made on 1 January 1998 by the District Court in …, Serbia varying the original order without due service on the father who was living in Australia. I shall canvass the facts relating to this at a later stage.

12. The Family Law Regulations, 1984, in 1999 in reg. 28, provided for confirmation of overseas maintenance orders by the Secretary sending them to a court with jurisdiction under the Family Law Act. This regulation only permitted enforcement if specific provisions of it in relation to service and notice of the evidence given at the hearing when the overseas order was made are adhered to. The evidence before me would not permit me to resort to this regulation even if I deemed it appropriate to permit departure from the strict compliance with the regulations pursuant to reg. 5. However this regulation was also repealed in 2000. A claim for arrears of an overseas maintenance order which cannot be registered is not a claim for child maintenance which can be made under the child maintenance provisions of the Family Law Act in any of its forms between May 1999 and the present. The amended order of 1 January 1998 cannot be registered because it was made without the requirements for registration created by regulation 26(2) and (3) of the Family Law Regulations, 1984.

13. The Child Support (Registration and Collection) Act and regulations made under it now provide for enforcement of overseas maintenance orders by registration. The Controller has deliberately not sought to register either of the overseas orders under that Act and the relevant regulations. 

14. In the above circumstances, it appears to me that I have no power to order payment of arrears of the overseas maintenance orders in this instance, but that I could assess child maintenance under the s66G of the Family Law Act. Of course, as I am dealing with the matter after the son has reached 18 years, no continuing periodic child maintenance order can be made. I could make a lump sum order, if any order is to be made, for the sum which is proven to have been appropriate for the father to pay to the mother for the son’s maintenance since she first claimed payment in 1987 less any payment which the father is shown to have made. As the son was born and the parties separated before 1 October 1989, maintenance proceedings rather than administrative assessment of child support is appropriate. Any order I make can be registered for collection under the provision of the Child Support (Registration and Collection) Act.               

15. The appeal is by way of de novo hearing. By the 2000 amendments to the Family Law Regulations, 1984, which originally created the position of Controller, that position was superseded by the Secretary of the Attorney General’s Department (Secretary) or any other person authorised by the Secretary to act. The Secretary has authority and powers similar to those previously held by the Controller. I do not think that the continuation of these proceedings in the name of the Controller renders them void. The position was not abolished and, in any event, because of regulation 5 of the Family Law Regulations, non-compliance with the regulations does not render the proceedings void. The Court must determine the case on its “real merits” with an eye to avoiding undue costs and can, pursuant to regulation 6, relieve a party from the consequences of such non-compliance with the regulations.

16. The originator of the proceedings in Australia, nevertheless, bears the onus to satisfy me, on balance, that child maintenance ought to be paid by the father and as to the amount, if any, which ought to be paid. The onus of proof is a critical aspect of the proceedings because one of the father’s defences is really to the effect that he has paid a proper, just and equitable amount already and that the mother agreed to take it and took it in discharge of all the husband’s child maintenance obligations. The mother not only denies that the sum asserted to have been paid is just and equitable, she says that nothing at all has been paid and that there was no agreement.

17. The significance of the issue of the onus of proof is highlighted by the fact that the father was present at Court in the proceedings before me and was cross-examined, whereas the mother has at all times remained in Serbia, has made no sworn statement or affidavit except as to her financial circumstances and was not available for cross-examination. No application was made to make her available for cross-examination by the use of a conference telephone or video link from Serbia. Thus, I am left with evidence from the mother which, in its force, is grossly undermined by its informal nature, her unavailability for cross-examination and the father’s contrary sworn and tested evidence. The father did not appear to be an untruthful witness. Accordingly, where there are any relevant facts in issue, I must and do find, on balance, that the father’s version is probably true if it conflicts with that of the mother.

18. The father was born in 1960 and the mother in 1964, both in Yugoslavia. The parties married in …, Serbia on 3 April, 1983. Their only child, a son, was born on … March 1984 so reached 18 years on … March 2002. The marriage was dissolved in Serbia on … July 1987. At that time, an order was made by the Serbian District Court in … that the husband pay child maintenance of 30,000 dinars per month out of the father’s usual wage of 158,000 dinars per month. The mother was not in paid work at the time but was assessed as required to contribute 20,000 dinars per month of the wages she would have earned if she had been employed. In view of later wage levels, there must have been a change in circumstances or revaluation of the dinar after this order was made and before 1996.  

19. The father paid, pursuant to this obligation, for 5 months, then immigrated to Australia in November 1987. His mother, from whom he had been estranged for many years, lived in Australia. She had done so since 1972 when the father was 12 years old. When he arrived he attempted to reconcile with her but the attempt failed. He has been estranged from her since 1988.

20. The father says that before leaving Yugoslavia he assigned to the mother wages then due to him for about 3 months work, being 2.25 million dinars. In addition, he claims that he gave the mother’s father 50,000 deutschmarks for the mother. He expected it to be used to pay for the construction of a house for the mother and the son on land owned by the mother’s father. He had worked hard and saved this money over several years. It was all he had. He, at this time, planned to immigrate and not return so gave the money to meet all his obligations to maintain his child. The mother and child were living with her father in his family home. They continued to do so at all material times. The mother agreed that it should be given to her father for her. The husband alleges the mother agreed that he had, by these payments, provided her with enough for the son’s maintenance during his childhood and he says he gave the mother enough to meet their child’s needs until he left school and became employed.

21. In 1998 the husband decided he wanted to ensure the son was well cared for. To that end, he sent the mother 5 bank drafts. Two of these, for $150.00 each, were drawn on, but the others were either returned or not drawn on by the mother. By 1999, the child was boarding at a trade school. The husband sent him $500.00 to meet the cost of his board.

22. On the 1 December 1996 the mother, on behalf of the son who was then 9 years old, commenced proceedings for child maintenance in the same court as the original order was made. The father’s address in Australia was not known. Without more, a “temporary defence attorney” was appointed to appear on his behalf on 14 August 1997 and gazetted in the Official Gazette of the Republic of Serbia No. 55 of 5 December 1997. 

23. The gazettal could not have been for the purpose of practical substituted service as it was known that the father was in Australia. There was no likelihood that this publication would come to his notice. The Yugoslav authorities had, in September 1996, contacted the father’s mother. They claim there has been no distancing between the father and his mother but that the father’s mother collaborated with the father in avoiding his child maintenance obligations. There is no evidence of substance to support this claim in the face of the father’s sworn contrary evidence. Very importantly, the Consul General for Yugoslavia, which included Serbia, managed to contact the father by telephone in about early 1997. The Consul General knew the telephone number on which he could contact the father. He claimed to have obtained it “through his [the father’s] mother and our emigrants.” His mother would have been a suitable person through whom to serve the father by way of substituted service. At least, the telephone could have been used to advise him of the proceedings and any hearing dates. There is no evidence to even suggest that, during the telephone conversation between the father and the Consul General, the father was informed or indicated he knew of any pending maintenance proceedings in Yugoslavia or that the Consul General subsequently contacted the father.

24. There is in evidence a document which is to the effect that on 1 January 1998 the District Court in …, Serbia made what is equivalent to consent maintenance orders against the father. The father did not actually consent because he was unaware of the proceedings. The lawyer appointed to act for him gave the consent. The order is for $300.00 per month to be paid to the mother from 1 December 1996 as contribution to the son’s maintenance. There is no finding which suggests that there has been any order of a Court to backdate this level of obligation to 1 July 1987. The only such suggestion is from the mother’s Serbian lawyer who argues that is what should have been done.

25. Thus, if the father is or was bound to meet all the obligations imposed by Serbian maintenance orders, he would be liable for:

    1 July 1987 to 30 November 1996- 113 months @ 30,000.00 dinars per month = 3,390,000.00 dinars

    1 December 1996 to 25 March 2002 (18^th birthday)-64 months @ $300.00 per month= $19,200.00

26. There is a little evidence which permits me to put the orders which were made in Serbia into a context which might provide a little understanding of what sums might have been appropriate to meet the child’s needs to be properly maintained and a better understanding of whether the orders were proper ones to meet the son’s needs. I am not attempting to make orders which in effect enforce the Serbian orders. I am, by this exercise, attempting to discover whether the orders which were made provide worthwhile evidence of the extent of the son’s need for maintenance in Australian dollars.  

27. The wife worked in ordinary paid employment as a “mechanical technician” and earned:

    Yearly wage in dinars  Expressed in $Aust.

    19962,893 @ $0.253 to 1 dinar              $732.00

    19975,312 @ $0.274 to 1 dinar              $1,455.00

    1998521.71 @ $0.1496 to 1 dinar         $818.00

    19999,162 @ $0.1368 to 1 dinar            $1,253.00

    200014,913 @ $0.1442 to 1 dinar         $2,150.00

    200142,199 @ 0.0278 to 1 dinar            $1,173.00

    200232,732 @ 0.02895 to 1 dinar         $948.00

28. It is somewhat consistent with these figures that the mother’s financial statement of 9 June 1998 indicates her income as $24.00 per week and that of 18 March 2005 as $57.06 per week. In the latter instance, her financial statement indicates that she was a permanent full time employee when she earned the $57.00 per week. The conversion rates used are for July in each year. There is likely to have been exchange rate movements during each year, so the Australian dollar equivalent to the mother’s income is only an approximation. The exchange rate from year to year can be seen to have changed a lot, so there is an inference that it also changed during the course of each year.

29. In each financial statement the mother declared that her outgoings are very much greater than her earnings. She explains that she met these by having extra jobs and borrowing. I am quite perplexed by her financial claims. They seem to involve very considerable inconsistency. She claims her living costs in 1998 and 2005 were $227.00 per week and $411.00 per week respectively. It is difficult to accept that her income from her full time job could be so much less than the cost of her needs for living, especially in 2005 when the son was no longer dependent upon her. It is highly noteworthy that, in 1996, the average wage for December of an employed adult living in Serbia was 303 dinars per month. At an exchange rate of $0.253 to 1 dinar, that is about $83.00 per month. The mother earned about $732.00 p.a. compared with the December average of $984.00 p.a. However, for the balance of 1996 the average wage of employees was 217 dinars per month ($55.00) or $660.00 p.a. In the circumstances, an assessment of child support from 1 December 1996 at the rate of $36,000.00 p.a. or $300.00 per month, must be regarded as likely to be grossly mistaken, punitive, extortionate, fraudulent or something of each. I am unable to rely on the $300.00 order to judge what might be proper for the husband to pay the wife as his share of the cost of the son’s reasonable maintenance.

1. It is much more likely that the 30,000 dinars per month child maintenance which was ordered in 1987 was then appropriate. Then, a dollar was worth about 900 dinars according to the only evidence before me; a statement by the father in his affidavit. I shall rely on it because it is the best evidence I have and was not challenged. 30,000 dinars was worth $33.00. However, by 1996, a dollar was worth about 3.95 dinars.

2. No doubt the political situation in the Balkans and the break up of the former Yugoslavia in 1990 made the value of the local currency fluctuate. I cannot tell what, in dollar terms, calculated when each periodic payment was due, the order to pay 30,000 dinars per month represents. I am not bound, as is a Child Support Registrar, to value an overseas order in Australian dollars at the exchange rate existing when the order was made. To do so would be unjust because it would be arbitrary. If the significant exchange rate changes were known, it could have been found what the actual order which was made in 1987 represents in Australian dollars for the period up to 30 November 1996. It is highly likely to be erroneous to assume that the dollar value of the monthly liability when it was imposed in 1987 continued to be much the same as each payment fell due until December 1996.

3. In these circumstances, I cannot decide what in dollar terms was needed to maintain the son or, therefore, what ought to have been paid to the mother for the son’s maintenance so that his proper needs were met after taking into account the mother’s and the father’s income and financial circumstances from 1987 to 2002. On my acceptance of the husband’s evidence of payment, I cannot tell what arrears, if any, might be due to the mother in respect of a proper order. I am unwilling to accept that the orders made in 1987 or 1998 are such that they are a guide in deciding what maintenance order in dollars should be made over the whole relevant period.

4. I can say that 2.25million dinars paid to the mother probably roughly represented 75 months at 30,000 dinars per month, so with the 5 months the father paid before he left, he is likely to have paid child maintenance for very approximately, considering the likely changes in exchange rates, 6 years and 8 months ie. until March 1994.

5. I accept on balance, despite the mother’s denials supported by those of her father, that the 50,000 deutschmarks was at least in part paid by the father for the mother so she could maintain the son although it in part may also have been a division of property. The child maintenance element should be inferred by the fact that the father kept nothing, so on division of property he used his share of that division to meet child maintenance obligations. There is no evidence before me of the value of the deutschmark at that or any other time in either Australian dollars or dinars. I note that the father’s counsel, in her written submissions, asserts that 50,000 deutschmarks was or is worth $45,000.00. I do not regard this as evidence even though it was not challenged. I can take judicial notice of the fact that, before the introduction of the euro which replaced it, the deutschmark was one of the strongest and most stable currencies and that a deutschmark was a valuable currency.

6. The father has made other payments of child maintenance. From 31 August 2002 the Child Support Agency garnished his wages and other funds from time to time until September 2004. It did this because the orders of the Local Court now appealed from were registered. The sum paid in this fashion was $3,284.00. These payments were probably enough to meet the son’s needs for about 3 years given that in 2005 the mother earned $57.00 per week or about that amount in a year.

7. Considering the father’s evidence, which I accept as likely to be true that the mother agreed to accept the payments he made up to the time he left for Australia as sufficient to satisfy his proper obligations to maintain the son until he reached 18, it is more likely than not that the payments the father provided by comparison to the cost of living in Yugoslavia, were enough to maintain the son until his eighteenth birthday. I cannot say whether or not they were also proper in the light of events.

8. It has not been proven what it would have cost to meet the son’s proper needs. It is therefore not possible to find that any order should be made against the father in favour of the mother for that purpose, irrespective of the father’s financial circumstances. I should dismiss the Controller’s application of 12 May 1999, uphold the father’s appeal from the orders of the Local Court and discharge the magistrate’s orders and shall make orders accordingly.

9. The orders of the Court are:

   1.The application filed 12 May 1999 in the Local Court (Family Matters) Sydney is hereby dismissed.

   2.The father’s appeal from the orders of the Local Court (Family Matters) Sydney made on 30 July 1999 is upheld.

   3.The orders of the Local Court (Family Matters) Sydney made between the parties on 30 July 1999 are hereby set aside.

   4.Costs are reserved for 1 calendar month. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.  

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ROGANOVIC