Dove and Tolmay and Anor
[2017] FamCAFC 253
•24 November 2017
FAMILY COURT OF AUSTRALIA
| DOVE & TOLMAY AND ANOR | [2017] FamCAFC 253 |
| FAMILY LAW – APPEAL – CHILD SUPPORT – Leave to appeal – Where the father appeals orders dismissing his application for a permanent stay of the enforcement of a registered maintenance liability within the meaning of the Child Support (Registration and Collection) Act 1988 (Cth) – Application of regulations 36-39 of the Family Law Regulations 1984 (Cth) discussed – Whether the Federal Circuit Court or the Family Court have jurisdiction or power to grant a permanent stay – Application for a permanent stay incompetent – Leave to appeal refused. |
| Child Support (Registration and Collection) Act 1988 (Cth) Family Law Regulations 1984 (Cth) |
| Brown v The Child Support Registrar (2006) 206 FLR 380 Child Support Registrar & Higgins and Anor (2016) FLC 98-069 Child Support Registrar v Vladimir and Anor (2017) 317 FLR 377 |
| APPELLANT: | Mr Dove |
| FIRST RESPONDENT: | Ms Tolmay |
| SECOND RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | MLC | 600 | of | 2016 |
| APPEAL NUMBER: | SOA | 25 | of | 2017 |
| DATE DELIVERED: | 24 November 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ryan, Aldridge & Bennett JJ |
| HEARING DATE: | 3 October 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 March 2017 |
| LOWER COURT MNC: | [2017] FCCA 474 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bacon |
| SOLICITOR FOR THE APPELLANT: | Manby & Scott Lawyers |
| THE FIRST RESPONDENT: | No appearance |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Tran |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mills Oakley |
Orders
The application for leave to appeal be dismissed.
The father pays the costs of the Child Support Registrar as agreed or assessed within one month of agreement or assessment, whichever applies.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dove & Tolmay and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 25 of 2017
File Number: MLC 600 of 2016
| Mr Dove |
Appellant
And
| Ms Tolmay |
First Respondent
And
| Child Support Registrar |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 4 April 2017, Mr Dove (“the father”) seeks leave to appeal orders which dismissed his application for a permanent stay of the enforcement of a registered maintenance liability, payable by him. The application is opposed by the Child Support Registrar. The first respondent mother (“the mother”) has not, at any stage, participated in the proceedings.
Background
The father and the mother lived in New Zealand and were in a de facto relationship which ended in 1998. They have one child, who was born in 1998. The first respondent and the child live in New Zealand. The father moved to Australia in 2000 where he has continued to reside.
The father is liable to pay child support in respect of the child pursuant to a New Zealand Inland Revenue Child Support Assessment. The New Zealand child support scheme operates so that a New Zealand government agency pays the assessed amount to the parent entitled to receive child support and recovers the amount paid from the person liable to pay child support. Thus, the liable parent is indebted to the New Zealand Inland Revenue. None of the amount in issue in these proceedings is payable to the mother. This no doubt explains her lack of interest in the proceedings and why the relevant agencies are keenly interested in and affected by proceedings which may affect the child support liability.
Australia and New Zealand are parties to an “Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance” (“the Australia-New Zealand agreement”), the terms of which have been incorporated into the laws of each country and which relevantly provide for mutual co-operation between the signatory countries in the collection and payment of monies in relation to child support.
Thus, in accordance with the Child Support (Registration and Collection) Act 1988 (Cth) (“Collection Act”) in August 2013 the New Zealand Inland Revenue requested the Child Support Registrar to register the father’s New Zealand liability for collection in Australia. The Child Support Registrar accepted this request and the liability was registered on 16 August 2013. The liability is categorised under the Collection Act as an “agency reimbursement liability”. Upon registration, the New Zealand liability also became a registered maintenance liability and by operation of s 30(1) of the Collection Act the amounts owing by the father became debts due to the Commonwealth of Australia. By letter dated 29 August 2013, the Child Support Registrar notified the father at his nominated address (Child Support Help Australia Pty Ltd) that he was required to pay child support to the Australian Child Support Agency. If the father had grounds to object to the decision to register, by s 81(3) of the Collection Act, he had 90 days within which to object. It would seem no objection was lodged against the decision.
As at 2 February 2017, the amount owing by the father to the Commonwealth was $124,024.04. This amount includes late payment penalties (s 67 of the Collection Act), the Australian component of which would not be remitted to New Zealand.
Without notice to the Child Support Registrar, an application was filed by the father on 15 June 2015 in the Melbourne Magistrates’ Court to discharge the New Zealand child support liability and to permanently stay enforcement. We pause to observe that there can be no doubt that the Child Support Registrar was an interested party who should have been given notice of the application and made a party to the proceedings. In any event, by then, the Child Support Registrar had commenced collection of periodic payments from the father (through his employer) in accordance with Part IV of the Collection Act.
The application to discharge the child support liability invoked Part 111 Div 2, in particular regulations 36 – 39, of the Family Law Regulations 1984 (Cth) (“the Regulations”). These provisions form part of a suite of provisions which give effect to the Australia-New Zealand agreement and enable a person in the position of the father to apply in Australia for an order pursuant to regulation 36 “discharging, suspending, reviving or varying” the child support liability. At the commencement of the hearing before the primary judge, the father abandoned his application to discharge the liability and the application proceeded on the basis that the father only sought a permanent stay. That is to say, the stay was not pursued in aid of a primary cause of action (pursuant to the Regulations or otherwise); it was the action.
Absent an application in accordance with regulation 36 the Regulations for an order to discharge, suspend or vary the liability, the question for Judge Williams was whether there was another source of power which could in some fashion support the application by the father for a permanent stay.
The primary judge considered a plethora of provisions of the Collection Act, the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”), the Family Law Act 1975 (Cth) (“Family Law Act”), the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court Rules 2001 (Cth) presented on behalf of the father as conferring jurisdiction and power for the relief sought, as well as whether there was inherent jurisdiction, before determining that neither the Federal Circuit Court nor the Family Court had jurisdiction or power to grant the relief sought and that the application was, in effect, incompetent. Her Honour was entirely correct. Lest it be misunderstood, we do not suggest that the scope for a court to interfere with the New Zealand assessment is any broader than that contained in the Regulations.
Discussion
As stated by the primary judge, the legal issues raised before her on behalf of the father were recently considered by the Full Court in Child Support Registrar & Higgins and Anor (2016) FLC 98-069 (“Higgins”). Her Honour’s decision is consistent with Higgins and, for the father to succeed before us, it was necessary for him to establish that on its facts, Higgins could be distinguished from this case, or, it was wrongly decided.
In Higgins the Full Court described the operation in Australia of the Australia-New Zealand agreement thus:
40. The legislative framework just described gives rise to the following propositions relevant to the father’s application, the orders made by his Honour, and the issues central to the appeals before this Court:
·The father was entitled to make an application to an Australian court of competent jurisdiction for an order in respect of his child support obligations in New Zealand;
·However, when reg 36 applies, as it does here, any such application must be restricted to orders “discharging, suspending, reviving or varying” his registered maintenance liability;
·If the orders sought by the father meet that description, the court nevertheless cannot “determine” that application. Rather, the court’s only power is to make orders which are “provisional” and any such orders made must be expressed to be so;
·In making provisional orders of the type to which the Regulation applies, the court must apply the law of Australia;
·If a provisional order is made, it has no force or effect unless and until it is confirmed by a court of competent jurisdiction in New Zealand;
·The New Zealand court may, according to the law of New Zealand, modify the provisional Australian order (or not) as that court might decide;
·Only if the New Zealand court confirms the provisional order does it have force and effect in Australia; and
·As a consequence, any effect upon the amount, terms and recoverability of the registered maintenance liability, otherwise particularised in the Australian Child Support Register, is dependent, ultimately, upon the terms of the confirmatory New Zealand order.
(Footnotes omitted) (our emphasis)
Far from distinguishing Higgins or suggesting that it was wrongly decided, counsel for the father said that the Full Court in Higgins “was at pains to point out that an Australian court cannot vary or permanently stay a New Zealand assessment”, which, it was submitted “is undoubtedly correct”. However, that proposition was said not to apply to the question of enforcement within Australia of an “agency reimbursement liability”. The argument being, that the enforcement of child support debts does not affect the underlying assessment. Thus, in relation to the New Zealand assessment, although it remains operative, the Family Court and Federal Circuit Court and such other courts conferred with jurisdiction under the Family Law Act, the Assessment Act and the Collection Act, were said to have an uncontained jurisdiction over enforcement of the assessment within Australia. As is apparent from the second and final points of [40] in Higgins that proposition should not be accepted.
Further, the use of a stay order made in Australia that could operate permanently to prevent the enforcement of a registered overseas maintenance liability to which regulations 36-39 apply was specifically considered and rejected in Child Support Registrar v Vladimir and Anor (2017) 317 FLR 377 (“Vladimir”). As the Full Court explained in Vladimir at [56]-[61] an order of that type is beyond power. We agree.
It follows that we reject the argument advanced by counsel for the father that the decision of the Full Court in Brown v The Child Support Registrar (2006) 206 FLR 380 (“Brown”) is authority for the proposition that the Federal Circuit Court (or Family Court) has jurisdiction to make the permanent stay sought. It is the case that in Brown the trial judge ordered a permanent stay of part of the New Zealand child support liability said to be owed, however, the judge did not identify the source of power for that order and the decision is only explicable on the basis that this amount was “not vigorously pressed”. Although that order was amended on appeal the amendment did no more than reflect the parties’ agreement as to its operative dates.
Otherwise, the Full Court in Brown dismissed the application for a permanent stay in relation to an amount which was contentious. This was done on the basis that it accorded with the intention of the trial judge. In so doing the Full Court expressly stated that it was thus unnecessary to address “the issue of whether such relief is indeed available in such proceedings” [50]. Brown is a case that turns on its own facts and, unlike this case, the proceedings involved more than a stand-alone application for a permanent stay.
Conclusion & Costs
The application for leave to appeal will be dismissed. The decision is neither attended by sufficient doubt to warrant it being reconsidered by the Full Court nor was it established that substantial injustice would result if leave were refused, supposing the decision to be wrong.
In the event the father was unsuccessful, the Child Support Registrar applied for the father to pay its costs. The father’s application was devoid of merit and presented without proper regard to recent and binding authority. The Child Support Registrar has incurred costs unnecessarily and, even if the father is of modest means, and an order for costs would occasion some financial discomfort, an order that he pays the costs of the Child Support Registrar should be made.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Bennett JJ) delivered on 24 November 2017.
Associate:
Date: 24 November 2017
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