DUCKETT & ROBINSON
[2015] FCCA 2275
•11 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUCKETT & ROBINSON | [2015] FCCA 2275 |
| Catchwords: CHILD SUPPORT – Stay – application for stay of administrative assessment – where mother has absconded from Australia with the child – whether payments of child support should be stayed – where order made that child should reside with father in Australia – public policy considerations – whether a party removed the child from Australia contrary to either s.65Y or s.65Z of the Family Law Act 1975 (Cth). |
| Legislation: Child Support (Assessment) Act 1989 (Cth), s.54E Child Support (Registration and Collection) Act 1988, (Cth), ss.104, 111C Family Law Act 1975 (Cth), ss.65Q, 65Y, 65Z, 67Q, 69VA |
| Cases cited: Duckett & Robinson [2015] FCCA 997 Garth & Hope [2011] FMCAfam 41 Jones v Child Support Registrar [2007] FCA 1731 Redmond & Redmond & Ors [2013] FamCAFC 161 Yathopoulos & Komine & Anor [2013] FCCA 267 |
| Applicant: | MR DUCKETT |
| Respondent: | MS ROBINSON |
| File Number: | SYC 5776 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 11 August 2015 |
| Date of Last Submission: | 11 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guterres |
| Solicitors for the Applicant: | Derham Houston |
| Respondent: | No appearance |
ORDERS
UNTIL FURTHER ORDER
The Applicant is granted leave to proceed ex parte.
The administrative assessment of child support no. (omitted) is stayed in respect of the child X born (omitted) 2011.
The collection of ongoing payments of child support and any outstanding arrears of child support in respect of the above administrative assessment is stayed.
The Child Support Registrar is restrained from taking any action to disburse any money currently being held by the Registrar in respect of the above administrative assessment is stayed.
The Applicant is to serve a sealed copy of these Orders upon the Child Support Registrar within seven (7) days.
The Applicant’s costs of this Application are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Duckett & Robinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 577 of 2013
| MR DUCKETT |
Applicant
And
| MS ROBINSON |
Respondent
REASONS FOR JUDGMENT
Application in a Case
The Applicant is the Father of a little boy called X, who is aged 4 years and 7 months. He is seeking a stay of the current assessment of child support relating to the child, even though the child is still in the mother’s care.
The circumstances of the case are unusual, to say the least. The Mother has absconded with the child, originally to (country omitted), but it is now believed that they are in (country omitted). Orders have been made by this Court that:
a)the child should live with the Father;
b)a Recovery Order should issue for the child to be delivered to the Father; and
c)a warrant is to issue for the Mother’s arrest.
Background
The facts are more fully set out in the decision of this Court made on 9th April 2015[1], but the short and relevant facts are that the Father had commenced parenting proceedings on 7th October 2013. Parenting Orders were made by consent on 3rd December 2012 providing for the Father to spend time with the child on Sundays, Fridays and such other times as the parties agreed.
[1] Duckett & Robinson [2015] FCCA 997
Further parenting Orders were made by consent on 17th June 2014, providing that the child would spend further defined time with the Father.
There were concerns expressed about the Mother’s ability to care for the child and, by the time of the final hearing, scheduled to take place from 8th to 10th April this year, the Father was seeking that the child was to live with him.
The Mother failed to attend Court on the first day of the hearing, on 8th April, and it transpired that she had left Australia that day with the child on a flight bound for (country omitted). The Mother gave no warning of her intentions to leave Australia and the evidence was that she had deceived not only the Father but her own sister and her legal advisers as well.
On 9th April 2015, the Court made Orders providing that:
a)the child should live with the Father, who is to have sole parental responsibility for the child;
b)a Recovery Order under the provisions of s.67Q of the Family Law Act 1975 (Cth) was to issue for the recovery of the child and delivery into the care of the Father;
c)a warrant for the arrest of the Mother under s.65Q of the Family Law Act 1975 was to issue for the arrest of the Mother;
d)a declaration was made under s.69VA of the Act that the Applicant was the father of the child; and
e)the Registrar of Births, Deaths and Marriages was ordered to register the name of the Applicant as the child’s father under the provisions of s.19 of the Births, Deaths and Marriages Registration Act (NSW).
The Mother has not returned to Australia with the child since then.
Orders sought
The Father now seeks orders staying the operation and collection of the current assessment of child support in respect of the child, on the basis that the Mother is retaining the child in defiance of an order of this court that the child should be living with him, a state of affairs that has been in force since 9th April this year.
Evidence and Submissions
The Father relies on:
a)his Application in a Case;
b)his affidavit of 28th July 2015; and
c)his affidavit of 10th August 2015.
It is the Father’s evidence that he is currently being assessed to pay the full amount of child support as the mother has the de facto care of the child 100% of the time. Annexed to his affidavit of 28 July is a copy of a Child Support Assessment issued on 22nd May 2015 showing that he is assessed to pay 100% of the child support assessment, namely the sum of $10,017.00 per annum.
Also annexed to the Father’s affidavit are copies of:
a)a letter dated 29th May 2015 from the General Manager, Child Support Smart Centres, acknowledging receipt of his objection to the decision on 21st May 2015 to refuse to reflect that the child was in neither parent’s care from 24th December 2014; and
b)a letter dated 1st July 2015 from the National Manager for Customer Service within the Department of Human Services, acknowledging receipt of his letter of 1st June 2015 to the Minister for Human Services, Senator the Hon Marise Payne.
The letter states, relevantly, that:
On 30 June 2015 the department received information from your solicitor about their[2] intention to file an urgent court application for a Stay Order that would restrain the department from collecting child support pending further order. As a result, the department has decided to temporarily cease collecting child support until the court has considered the application. Monies that have already been remitted by your employer, but not yet disbursed to Ms Robinson, will be held pending the outcome of the court application. It is important that you immediately provide a copy of the order if one is made.[3]
[2] sic
[3] Affidavit of Mr Duckett 28.7.2015 Annexure “C”
In his affidavit of 10th August 2015 the Father set out his belief that the Mother is currently in (country omitted) with the child. He deposed that:
The payee[4] contacted me early on the morning of 6 august from a phone number which I have ascertained to be a (country omitted) mobile number. I the course of the conversation the payee said “I was called by CSA today to … your objection failed …you will have to pay up now”. She also said “I am willing to negotiate custody so that we share” and later “I’m worried about the Feds finding me and taking X”.[5]
[4] i.e. the Respondent mother
[5] Affidavit of Mr Duckett 10.8.2015 at paragraph [6]
The Father also deposed that he spoke to the Respondent’s mother “who has just returned from a visit to (country omitted) where for a few hours she saw the payee and X”.[6]
[6] Ibid at [7]
The Father went on to depose that the Mother had rented out her house in Sydney and, in order to do so, had arranged for her elder son Y to be removed from the property.[7]
[7] Ibid
The Father deposed that his objection to the child support assessment was unsuccessful and a copy of the Objection Decision and the Reasons are annexed to his affidavit at Annexure “C”.
In his submissions on behalf of the Applicant Father, Mr Guterres of counsel referred the Court to the following authorities:
a)Redmond & Redmond & Ors[8];
b)Garth & Hope[9];
c)Yathopoulos & Komine & Anor[10]; and
d)Jones v Child Support Registrar.[11]
[8] [2013] FamCAFC 161
[9] [2011] FMCAfam 41
[10] [2013] FCCA 267
[11] [2007] FCA 1732
Mr Guterres submitted that s.104(1) of the Child Support (Registration and Collection) Act 1988 (Cth) confers jurisdiction on the Federal Circuit Court and, specifically, the Court has jurisdiction to make an order for a stay under s.111C(1)(a) of the Act., there being a proceeding that has been instituted between the parties in the Court and the Court having jurisdiction under the Act.
Further, the Application as drafted does not propose that a stay be limited in any way but if the Court were not minded to consider a stay on those terms, then the Court may consider a stay pending the return of the child to Australia.
Mr Guterres submitted that these factors weigh in favour of a stay of the administrative assessment:
a)the Mother’s conduct in removing the child from the country and therefrom the jurisdiction of the Court;
b)the Mother is currently able to claim a benefit from one legislative scheme whilst deliberately frustrating another legislative scheme under the Family Law Act 1975;
c)the ongoing collection of child support is assisting the Mother in avoiding the jurisdiction of the Court by providing her with continuing funds;
d)the decision to reject the Father’s objection is flawed in that the decision maker failed to have regard to or failed to give sufficient weight to the Mother’s actions in absconding with the child and also the relevant guidelines as required by s.54E of the Child Support (Assessment) Act 1989 (Cth);
e)the continuing payment of child support will have an ongoing impact on the Father’s financial circumstances in the context of the proceedings as a whole;
f)whilst the granting of a stay may cause hardship for the Mother and the child, no significant weight should be placed on this consideration in the absence of any evidence from the Mother;
g)the application is brought on a bona fide basis and there is no material delay in bringing the application as the objection was only made on 6th August;
h)the Father is likely to face future costs including those associated with locating the child overseas;
i)there is an apparent lacuna in the legislation in regard to the situation in which the father finds himself; and
j)the justice and equity of the circumstances make it desirable to grant a stay of the administrative assessment of child support.
Conclusions
The situation is clearly an unusual one and it is hardly surprising that there are no reported cases directly on point. The authorities cited by counsel for the Applicant all deal with the power of the Court to make a stay order and the circumstances in which such an order should be made, but they do not touch on a situation where the child has been removed from the mother by a process of deception whilst there are ongoing parenting proceedings.
The decision by the Department of Human Services not to allow the father’s objection has only recently been received on 6August 2015, and he is presumably going to take the next step in the objection process, which is to seek a review of the decision by the Administrative Appeals Tribunal. I note that he was advised in the letter of 6th August 2015 that:
There is no timeframe to request a review of a care percentage decision with the AAT. However, if you do not do so within 28 days from the date you receive this letter and the original decision is changed, we may only be able to make the change to your assessment from the date you requested the review.[12]
[12] Affidavit of Mr Duckett 10.8.2015 Annexure “C”
Clearly, an application to the Administrative Appeals Tribunal to review the decision on the objection would be a ground of itself to support a stay under s. 111C of the Child Support (Registration and Collection) Act.
However, as Mr Guterres submitted in his oral submission to the Court, there is a strong public policy reason why a stay should be granted. The child is in the care of the mother contrary to a decision of the Court. An order was made that the child should live with the father and that he should have sole parental responsibility for the child. A Recovery Order has been issued for the recovery of the child and a warrant has been issued for the mother’s arrest.
Subsection 65Y(1) provides that:
If a parenting order to which this subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).
Subsection (2) provides that a person may take the child out of Australia either with the written consent of each person in whose favour the order was made or in accordance with an order of a court, either under Part VII of the Family Law Act or the law of a State or Territory.
At the time the mother removed the child from Australia, there were parenting Orders in force and there is no evidence that the mother either had the written consent of the father or that this Court or any other court had made an order permitting her to do so.
Further, it is the fact that there were parenting proceedings pending. Subsection 65Z(1) of the Act provides that:
If proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending, a person who is a party to the proceedings, or who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as mentioned in subsection (2).
Again, Subsection 65Z(2) provides that a person may take the child out of Australia either with the written consent of each other party to the proceedings or in accordance with an order of a court, either under Part VII of the Act or under a law of a State or Territory.
Again, there is no evidence that either of the exceptions under s.65Z(2) applied when the Mother removed the child from Australia.
In the face of what appears to have been an offence by the Mother in removing the child from Australia contrary to the provisions of ss.65Y and 65Z of the Family Law Act, public policy requires that the Court should stay the operation of a child support assessment that is funding or assisting to fund the mother’s continuing breach of the law and continuing refusal to comply with Orders of this Court.
It is clear that a stay should be granted. Obviously, it cannot be a final order, and the father has quite properly brought this Application by way of an Application in a Case. Accordingly the Orders staying the operation of the Child Support Assessment, the collection of ongoing payment and arrears, if any, and the disbursement of any money currently being held, should be Orders until further order.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 20 August 2015
0
5
4