Entin & Entin

[2008] FamCA 1079

FAMILY COURT OF AUSTRALIA

ENTIN & ENTIN [2008] FamCA 1079

FAMILY LAW – ORDERS—Agreement made in United Kingdom Court—Power of Registrar to make non-consensual orders non-agency payments under Child Support legislation—Application of the slip rule—Set aside Registrar’s order—Interim injunction to prevent Mother from acting inconsistently with UK orders

APPLICANT: Ms Entin

RESPONDENT: Mr Entin

FILE NUMBER: BRF 6557 of 2008

DATE DELIVERED: 9 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 9 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B A Laurie of Counsel appeared for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Habermann & Associates

SOLICITOR FOR THE RESPONDENT: Ms Awyzio, solicitor of DA Family Lawyers appeared for the Respondent Husband

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Wife be restrained and an injunction issue restraining her from making an application to the Child Support Agency which is inconsistent with her agreement recorded in the Order of the Royal Courts of Justice of the United Kingdom on 19 January 2006 that she would give full credit against maintenance and child support for all sums paid in respect of air fares for contact referred to in that Order and the Orders of Federal Magistrate Slack dated 9 October 2007.

IT IS ORDERED THAT:

1. Paragraph 7(v) of the Order of Registrar McGrath dated 5 July 2006 is discharged.

2. The proceedings be adjourned for case management review to 10.00 am on 23 February 2009 at the Brisbane Registry of the Family Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF6557 of 2008

MS ENTIN

Applicant

And

MR ENTIN

Respondent

REASONS FOR JUDGMENT

1. This matter is anything but straightforward.  The parties are the parents of a young boy, who was born in November of 1999.

2. In January 2006 Sumner J in the Principal Registry of the Family Division in London made orders by consent.  Those orders are annexed to the respondent father's affidavit filed on 10 September this year. 

3. It is a matter of some conjecture on my part, but it appears that the mother had taken the child to the United Kingdom without the permission of the father.  I infer that the father instituted proceedings pursuant to the Hague Convention.  The matter came before Sumner J.  Consent orders were entered into after the parties had attended mediation. 

4. The consent orders are prefaced by a series of recitals.  The memorandum of understanding annexed to the orders would appear to set out the agreement according to various scenarios and it is uncontested, the relevant scenario is Schedule A.

5. The orders in the recitals state:

   "Further and in respect to the father's application to this Court in the Inherent Jurisdiction THIS COURT DECLARED THAT such application constitutes Family Proceedings within the meaning of the Children Act 1989 AND UPON the basis that the parties have reached agreement in mediation in the terms of the memorandum of understanding attached hereto; AND UPON  the basis that the parties agree to cooperate as soon as practicable in the obtaining of an order in like terms to this Order in the Family Court of Australia in Brisbane, and that they will share the cost equally of obtaining such Order.  AND UPON the basis that the mother agrees as follows: ---

   (v)To give full credit against maintenance and child support for all sums paid in respect of air fares for contact referred to in this Order.”

6. I pointed out during the course of submissions that recital (v) is not precisely what was agreed to as set out in the memorandum of understanding.  The memorandum of understanding in paragraphs 4 and 5 says:

   "4. [The husband] agrees that he will cover all travel costs for [the child] plus travel and health insurance.  [The husband] will also cover travel costs for a travelling companion for [the child] until [the child] is old enough to travel as an unaccompanied minor.

   5. [The wife] agrees that she will claim no child support for [the child] from [the husband] whilst [the husband] is covering [the child’s] travel costs.”

7. It may be it is a distinction without a difference because the net effect is the father has received credit for all the travel costs and one balances out the other.  In view of the terms of the memorandum of understanding quoted above I am somewhat puzzled as to why the mother applied for an assessment of child support at all.

8. It is not clear precisely when the mother lodged the assessment for child support, but it appears to have been prior to the time when the matter came before McGrath R in mid-2006.  I am informed from the Bar Table, just as a matter of background interest, that the assessment is in the range $6000 to $8000 a year.  This amount is being expended by the father in travel costs with the consequence the mother is not receiving any support for the child.  However, I note that that is exactly what was agreed to by her as at January 2006 and she further agreed that an order in those terms would be registered in this Court.

9. The matter came before McGrath R in May 2006.  There is no transcript of what occurred on that occasion.  I have differing versions of what transpired depending upon whether I have regard to the affidavit of the wife’s solicitor or the affidavit of Ms B.  Ms B is the sister of the husband.

10. Mr Habermann appeared before the Registrar - the respondent husband was there - in May and made submissions in that the Registrar did not have power to make orders in terms of what eventually were paragraphs 7 and 8 of the amended order.  I will recite those:

    "The mother agrees as follows."

    This is the order that the Registrar had been asked to make, is one of the issues of dispute.

    "The mother agrees as follows:

    To provide the father with a copy of the child's annual school calendar, to provide school reports and photographs, encourage the child to maintain contact and to give full credit against maintenance and child support for all sums paid in respect of air fares for contact referred to in this order."

    That is precisely what the mother had agreed to in the United Kingdom; it is precisely what is contained in the memorandum of understanding and, on my reading, the recital to the Order of Sumner J.

11. Mr Habermann's affidavit at paragraph 9 - this is his affidavit filed on 18 July this year - is in the following terms:

    "On 24 May 2006 I attended at the Family Court before McGrath R upon the further mention of this matter.  Orders were made in similar terms to the Orders made by Sumner J in the UK.  I made certain submissions before McGrath R on that day to vary certain words which appeared in the orders made in the UK in order that the orders could be made."

    There seems to be a typographical error there.

    "Orders were forwarded to McGrath R on that day in quadruplicate for sealing and issuing."

    And he attaches a letter that he sent dated 24 May and the letter refers to it as being:

    "We enclose herewith in quadruplicate consent orders for sealing and issuing."

    No copy was forwarded to the husband.  It was quite inappropriate that there would ever be communication with the Court without copying in the other side.  The husband for his part was equally guilty in due course because he, when he eventually received a copy of the order, wrote to the Registrar and said:

    "Include paragraphs 7 and 8."

    After a period of time the Registrar did so.

12. Paragraph 12 of Mr Habermann's affidavit says:

    "No order as to travel costs be included Child Support was made in the order of McGrath R on 24 May.  UK orders included travel costs as a non-agency payment of child support and the Child Support Agency in Australia accepted the orders made in the UK.  Therefore, the father's travel costs were included as a non-agency payment of child support.  The mother was required to either make an application to the Child Support Agency for a change in assessment or make an application to the Court to appeal the orders made."

13. Thereafter the parties litigated in the Federal Magistrates Court on issues of property settlement and child related orders.  By consent some of the child related orders were varied.  The father's number of contact visits were reduced.  Instead of being two plus any number of other trips it was resolved to be one trip a year with the father to travel to the United Kingdom and return and then return with the child.

14. Slack FM made orders for property settlement, he made orders varying by consent arrangements for the father to spend time and the circumstances, but he held that he could not interfere with McGrath R's orders and that is set out at paragraphs 66 onwards in Slack FM's reasons for his determination.

15. I do not need to refer in detail to his reasoning process.  Suffice to say the matter was argued before him.  He said at paragraph 70:

    "Any determination as to whether the order was made irregularly should, in my view, be considered and determined by the Family Court, but I do not consider either that I have the power to set aside an order made by a superior Court, even if it were established it was entered irregularly.  The application should appropriately, in my view, be brought in the Family Court."

16. What happened thereafter - and that decision was handed down in October 2007 - the current application was filed on 18 July 2008.  The current application seeks:

    "That O 7 and O 8 of the orders made by McGrath R on 5 July 2006 be set aside."

    I am told that the application is made under the slip rule.  The view that I form is whatever other irregularities there may be attaching to the orders of McGrath R it has got absolutely nothing at all to do with the slip rule.

17. Mr Habermann was contending that regardless of what was agreed to in the United Kingdom the Registrar did not have the power to make the order for non-agency payments.  In my view, it was singularly inappropriate to adopt that line of argument because the parties were legally and honour bound to implement the orders in this jurisdiction of what was agreed to in the United Kingdom.  The obvious solution was to adjourn the matter before a Judge.

18. It is not good enough to come to Court and argue that a Registrar did not have the power.  It is a simple process to simply ask by letter or by request of the Registrar for the matter to be referred to a Judge.  The Judge clearly would have had the power.  If there was a suggestion of no power well then the matter could have been dealt with in an indirect sense by way of injunctions or sending the parties away to the Child Support Agency first and thereafter coming back and this Court making the various orders.

19. So I am left with the orders of 5 July 2006 as being the operative orders.  One course I could adopt is to simply say the application filed by the mother on her behalf is itself irregular in that it is purported to be made under the slip rule, but that is not going to advance the matter very far.

20. I am inclined to treat the matter as an application for review to reconsider the determination of the Registrar at that time.  It may well be that the orders should be set aside.  There was a breach of natural justice that went both ways.  I question whether Mr Habermann should have been making the submissions in terms that he did contrary to the spirit of the agreement reached in the United Kingdom.  I question whether the father is entitled to write to the Registrar in terms that he did without sending a copy to Mr Habermann and I question whether the Registrar should have issued the amended orders without giving Mr Habermann the right to be heard.  That is without even considering whether it is beyond jurisdiction of the Registrar to make the orders.

21. Whatever flaws there be in the existing arrangements to my mind the orders were made as a result of consideration by the Registrar of the issues, there is no typographical error, there is no oversight, there is no omission.  It was simply a matter that each party was contending for different provisions to be inserted in the orders.  I would have thought fundamentally the orders of McGrath R were not consent orders and it is only on that basis that he had the jurisdiction to make the orders.

22. I am informed from the Bar Table, and for present purposes I accept, that the Child Support Agency is powerless to consider any application for variation of the assessment whilst the order is in place, that is for a non-agency payment.  I infer from that that the Child Support Agency does not consider the order in terms of paragraph 7(v) to be beyond jurisdiction.  I note that it is only paragraph 7(v) which is now in issue.  It was in error for the application to seek to discharge the whole of paragraphs 7 and 8.

23. What I propose to do is I will discharge paragraph 7(v) of the order of McGrath R of 5 July 2006. However, what I propose to do is accede to the oral application for a temporary injunction.  I do so on the basis that the matter has been argued before me on a basis that does not address the proper issues.  To my mind how the parties get around this, whether by agreement, going to the Child Support Agency, whatever, if they want to lift the injunction come back and make out a prima facie case that it is appropriate to do so, that the mother's financial circumstances have changed, the father's circumstances have changed, et cetera.  Holistically, the agreement was the matter would be the subject of the jurisdiction of this Court.

24. In the circumstances it would be unconscionable to discharge the orders of McGrath R so the father does not get any credit whatsoever for his travel expenses.

25. So I propose to make an order:

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

26. I will adjourn it till 23 February.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  9 December 2008