D and L
[2003] FMCAfam 147
•15 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & L | [2003] FMCAfam 147 |
| CHILD SUPPORT – Child maintenance – application for stay – applicant in ill health. PRACTICE AND PROCEDURE – Stay application – lack of jurisdiction – inappropriate to apply for stay when application to modify maintenance order sought. |
Family Law Act 1975, ss.45, 66S
| Applicant: | PVD |
| First Respondent: | LL |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File No: | PAM 1064 of 2001 |
| Delivered on: | 15 April 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 8 April 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant in person | By his Litigation Guardian |
| Solicitor for First Respondent: | Ms Timbs, Legal Aid Commission |
| Solicitor for Second Respondent: | Mr McWhinney |
ORDERS
MN is appointed litigation guardian for the applicant for the purpose of these proceedings.
The application filed 25 February 2003 for a stay of collection by the second respondent of payments of child maintenance is dismissed.
The application is removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1064 of 2001
| PVD |
Applicant
And
| LL |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application
This matter came before the Court on 8 April. I heard submissions from the applicant or on behalf of the applicant. I heard submissions from Ms Timbs for the first respondent and Mr McWhinney for the second respondent.
The applicant applies for the following orders:
a)That MN be appointed litigation guardian for the applicant for the purpose of these proceedings; and
b)That the Court make an order staying the collection by the second respondent of amounts of child maintenance due by the applicant and payable out to the first respondent who is the mother of the child, the subject of these proceedings.
The first respondent opposes the orders. Originally, she sought to change the venue of these proceedings from Parramatta to Newcastle, but she abandoned that request and proceeded to take part in the hearing of the proceedings of Parramatta. The second respondent, the Child Support Registrar, did not seek any orders, and was prepared to submit to any orders made by the Court. Mr McWhinney for the second respondent made certain submissions about aspects of the proceedings.
Neither of the respondents sought to challenge the application to appoint a litigation guardian. Ms Timbs for the first respondent sought clarification of the application, which was said to be for an indefinite stay.
The parties commenced cohabitation in 1984 and separated on
30 September 1989. There is one child of the relationship, DL who was born on 15 March 1986. The child D resided with the first respondent mother from the time the parties separated until December 1991. On that date the Local Court of New South Wales made an order that the child should reside with the applicant father. That state of affairs continued until 8 February 2000 when the Family Court of Australia at Sydney made orders that the child should reside with the mother. The child still resides with the mother. He is currently in year 12 at high school.
On 23 January 1995 the Family Court made an order that the first respondent should pay maintenance for the child in the sum of $70 per week, commencing on 9 February 1995. For reasons not completely explained, when the Family Court ordered on 8 February 2000 that the child should reside with the mother, no order was made to vary the earlier maintenance order. Consequently, the second respondent, the Child Support Registrar, remained unaware that the child no longer resided with the father.
On 25 October 2001 this Court made an order discharging the maintenance order with effect from 8 February 2000.
On 26 November 2001 the parties consented to an order being made that they should undergo DNA testing for the purpose of ascertaining the paternity of the child. The parentage testing procedure report dated 31 December 2001 did not exclude the applicant as the father of the child, and in fact the probability that the applicant was regarded as the child's father was placed at "greater than 99.999 per cent".
On 12 February 2002 after a defended hearing, I made orders to the following effect:
a)The father, who is the applicant in this case, is to pay child maintenance to the mother in the sum of $70 per week.
b)
I also made orders restraining the mother from taking action to enforce the payment of any arrears of maintenance whilst there remained any arrears of maintenance from the period prior to
8 February 2000.
The applicant has re-partnered. The first respondent has not.
The applicant has brought these proceedings as a result of his being diagnosed with non-Hodgkins malignant lymphoma. He has had to undergo surgery and his treating general medical practitioner has expressed the opinion that the applicant is not capable of representing himself at present. He is currently unable to work, it is alleged.
The applicant contends that the first respondent is precluded by the orders of 12 February 2002 from claiming any ongoing maintenance until the arrears from the earlier period are paid in full. He seeks a stay of the order for ongoing child maintenance for an indefinite period.
Ms Timbs, for the first respondent mother, argues that a stay is not the appropriate procedure. If anything, there should be an application to vary the current order. The respondents do not oppose an order that Ms N should be appointed as the applicant's litigation guardian. The first respondent does not press her application that these proceedings should be transferred to the Newcastle registry of the Court. She asks that the application should be dismissed.
Ms N, the applicant's proposed litigation guardian, submits that the applicant does not feel that he owes the first respondent mother any money because she owes him money for maintenance from 1995 to 2000 when the child was in his care. He does not believe that any further amounts of maintenance can be collected by the first respondent until the old maintenance debt has been paid as set out in paragraph 12 above.
In reply to the submission that the application should not be for a stay but for variation of the maintenance, Ms N stated that the applicant seeks in effect to vary the maintenance payable to nil. It is costing him a lot more to have treatment for his cancer at the moment, she says.
For the second respondent, the Child Support Registrar, Mr McWhinney submitted that the problem for the applicant in enforcing an order where the applicant was the payee from 1995 onwards was that the child support agency had agreed to an application that from 1997 there should be a non-enforcement period because of the first respondent's low income. Whilst that liability was not being enforced, it was not on the Child Support Agency's book. The Agency actually did do an offset on the first respondent's liability because of the debt in the sum of $5788.
As a result of those two matters the Child Support Agency has on its books a debt for the applicant, but not for the first respondent. There may be a private debt still owing for the previous Court order, but there is no legal nexus between the two, he suggests.
Mr McWhinney further submitted that the applicant is actually seeking a variation of his current maintenance, but his actual application does not show that. He queried whether there was any jurisdiction for the Court to give the applicant exactly what he was asking for in his application, namely a stay.
For the first respondent, Ms Timbs submitted that the liability for the first respondent to pay maintenance to the applicant from 1995 was registered for collection by the Child Support Agency. There was no significant payment made until June 1997, and therefore a debt of $5778 to the Child Support Agency, or more correctly, the Commonwealth, arose.
On 13 June 1997 the Child Support Agency started the low income non-enforcement period, which ran until 7 February 2000, the day before the child returned to reside with his mother, the first respondent. As a result no payments were payable to the Child Support Agency although they would still be payable to the applicant.
The applicant's liability to pay child maintenance arose from
8 February 2000, which is the date the child commenced to reside again with the first respondent. It was not until 25 October 2001 that the earlier maintenance order was discharged, backdated to
8 February 2000. It was not until 12 February 2002 that an order was made requiring the applicant to pay child maintenance in the sum of $70 per week. It was not until October 2002 that this order was put into action by the Child Support Agency.
As at October 2002 the amount owed by the applicant in respect of the current order was $9667. The earlier amount of $5778 owed by the first respondent to the applicant was credited against the arrears owed by her. As a result of that offset, the amount of $3889 remained owing by the applicant to the Commonwealth. Ms Timbs told the Court the figure is currently over $4800.
Ms Timbs went on to submit that the application should be for variation of the current maintenance order of $70 per week, which is being collected monthly. If the application depends on the applicant's financial statement to provide reasons for the stay, there are no details of his income. An application for a stay is not an appropriate way to enforce payment of any arrears of maintenance.
There are basically two reasons why a Court exercising jurisdiction under the Family Law Act would order a stay of the execution or operation of an order:
c)pending the hearing of an appeal, and I refer to Order 32 rule 4 of the Family Law Rules; and
d)pending the determination of other proceedings in another Court,
Pursuant to section 45 of the Family Law Act. There is no power to order a stay under the Child Support (Registration and Collection Act) 1988 and I am not of the view that the power given to the Court to enforce a stay under the Child Support (Assessment) Act is applicable in this case.
If the application is, in reality, an application to modify the maintenance order made on 12 February 2002, section 66S of the Family Law Act would apply. The applicant must seek an order either discharging the current order, or an order suspending its operation wholly or in part, either until further order or until a fixed time or the happening of a future event. The Court must not vary the order to either increase or decrease the amount payable unless the applicant can show that the circumstances of the child or the person liable to make the payments, or the person entitled to receive the payments under the order have changed to such an extent to justify the variation.
There are no grounds for ordering a stay of the execution or operation of the order. The application is misconceived. There is no appeal pending, nor are there any proceedings in any other Court. If the application is to be treated as an application to vary the existing order, it is deficient in a number of vital areas. There do not appear to be any grounds to discharge the order as the subject child is still at school and under the age of 18 years. There is no allegation that the mother's circumstances have changed to any significant degree. What is being relied upon is a change in the circumstances of the applicant.
What the applicant should have provided was medical evidence about the extent of his incapacity, including a prognosis as to the length of time, which is expected to expire before he will be able to return to work, if at all. He should also have produced evidence about his current income and current outgoings. There is some information in his affidavit of 28 March 2003, but it is far from sufficient. The affidavit annexes a lot of material that is irrelevant, including a copy of an application filed in the Burwood Local Court on 14 August 1995, and copies of Court orders from 1995 to 1998.
The affidavit also annexes a copy of a letter dated 6 February 2003 from the Commonwealth Ombudsman to the applicant. This letter would have been quite helpful except for the fact that the applicant only annexed a copy of the first page of that letter. What the first page of the letter does show is that the Child Support Agency requested the applicant's employer to deduct the current maintenance liability from his salary, which is what is being done.
There is no breach of Order 2 of 12 February 2002, which restrained the first respondent from taking proceedings for enforcing the payment of any arrears of maintenance, because there are no such proceedings. There is only a garnishment order to collect the current liability. The applicant has not shown sufficient evidence to enable the first respondent to know the case that she is required to meet.
If the applicant wishes to proceed, he should file an application to vary the order, setting out precisely the variation that he seeks. He should accompany that with an affidavit from himself or by his litigation guardian on his behalf. If he wishes to bring medical evidence he should file an affidavit by the medical practitioner concerned. Finally, he should file a financial statement in accordance with form 17 showing his income and outgoings.
The applicant has failed to show that he has a prima facie case. The application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 1 May 2003
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