HAGGERTY & GABLE
[2011] FMCAfam 28
•24 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAGGERTY & GABLE | [2011] FMCAfam 28 |
| CHILD SUPPORT – Overseas maintenance order made in September 1996 – mother and 17 year old child live in Austria – father’s application to vary Austrian order such that arrears discharged – consideration of regulations 36 and 37 of the Family Law Regulations 1984 – application dismissed. |
| Family Law Act 1975, ss.66S, 66G & 66H Child Support (Registration and Collection)(Overseas-related Maintenance Obligations) Regulations 2000, Reg 5, 11 and Schedule 2 Family Law Regulations 1984 (in force at the date of Service – 7 February 1996) – reg.12 Family Law Regulations1984 (in force at the date of Registration – 26 August 2005) – reg.24A Family Law Regulations1984 (in force at the date of Application – 12 April 2006) – regs.6, 36, 37 & 38 Uniform Civil Procedure Rules 2005 – rr.11A.10 & 11A.12 |
| Dobson & Van Londen [2008] FamCA 1231 |
| Applicant: | MR HAGGERTY |
| Respondent: | MS GABLE |
| File Number: | SYM3904 of 2006 |
| Judgment of: | Sexton FM |
| Hearing date: | 7 October 2010 |
| Date of Last Submission: | 7 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms T. Messner |
| Solicitors for the Applicant: | Hamish Cumming Family Lawyers |
| Respondent: | Self- represented appearing by telephone assisted by an interpreter |
| Solicitors for the Attorney-General’s Department | Australian Government Solicitors |
THE COURT ORDERS THAT:
The Application filed 12 April 2006 be dismissed.
A sealed copy of these orders be forwarded forthwith to the International Division of the Child Support Agency.
IT IS NOTED that publication of this judgment under the pseudonym Haggerty & Gable is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM3904 of 2006
| MR HAGGERTY |
Applicant
And
| MS GABLE |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are brought by the Applicant Father to vary an overseas child maintenance order made by the District Court at [H], Austria in September 1996. The order relates to the parties’ daughter, [X], now aged 17 years, was registered by the Child Support Agency on 26 August 2005, and is enforceable by the Agency from that date. The Father’s Counsel tells the Court that the Applicant seeks orders which would result in a discharge of his child maintenance arrears, and a termination of his maintenance obligations on [X]’s 18th birthday in November 2011.
Background
The Father is aged 54 years and the Mother is 50 years. [X] is their only child.
The parties had a relationship in Austria in 1992-3 when the Father was living temporarily in Austria. The Father left Austria to return to Australia in early March 1993. The Mother planned to follow him to Australia in April 1993 on a 6 month visa with the ultimate intention of living with him in Australia. In April 1993, the Mother found she was pregnant, and therefore remained in Austria to earn money to support the parties’ child. The Father applied for a permit to return to Austria in July 1993, but his application was refused. The Father ceased all contact with the Mother after [X] was born, and the parties have not seen each other again. [X] has not met the Father, nor had any contact with him.
The Father has made the periodic child maintenance payments in accordance with the 1996 Austrian order since October 2005, and continues to make those payments of $235.57AUD monthly[1]. At hearing, Ms Nanson, solicitor for the Attorney-General’s Department advised the Court that those periodic payments had not been transferred to the Respondent Mother. Ms Nanson understood the funds were being held by the Agency pending the outcome of these proceedings. The Mother tells the Court that she has never received any maintenance from the Father, or from the Child Support Agency in Australia, since [X] was born and believes that she may be required to repay any funds received directly to the Austrian Government in repayment of an allowance she has received in lieu of child maintenance.
[1] Exhibit 2
In final submissions, I asked Ms Nanson to provide further details as to what had happened to the funds paid by the Father to the Child Support Agency since 2005. After the hearing, Ms Nanson advised the Father’s legal representative and the Court of the Agency’s position as follows:
a)The Father has met his periodic liability since October 2005, soon after the Austrian orders were registered in Australia.
b)All payments made by the Father to the Child Support Agency prior to 18 July 2007 were transferred to the Austrian Central Authority.
c)On 18 July 2007, the Child Support Agency stopped transferring the payments to Austria because of its interpretation of the stay order made by Federal Magistrate Housego on 11 July 2006. Since then, all payments made by the Father, totalling $ 8,942.00AUD, have been held by the Child Support Agency.
d)The Child Support Agency has re-considered its interpretation of the effect of the 11 July 2006 Orders, given the Father’s view that the stay only applied to enforcement of the arrears owed at the date of registration, and are now expected to transfer the lump sum of $8,942.00AUD to the Mother via the Austrian Central Authority.
e)The Austrian Central Authority has advised the Central Authority in Australia that the Austrian Government will not be seeking reimbursement from the Mother of any amounts received from the Agency.
History of proceedings
Given these proceedings were initiated by the Applicant Father in this Court in April 2006, but not heard until October 2010, I find it appropriate to explain the history.
On 20 September 1996, a judgment was issued by the District Court at [H], Austria declaring the Applicant to be the Father of [X]. A claim for maintenance was allowed in the sum of 2,000 ATS (Austrian shillings) per month which, at that date, was equivalent to approximately $237AUD per month. The Court assessed the Father’s liability on the basis of an income of 16,000ATS or $1,894AUD a month[2]. The Court said the liability would commence from [X]’s date of birth, [omitted] 1993, and continue “until [the child] is able to earn its living on its own.”[3] It is common ground that the Father was not present or represented at the hearing in [H]. In a Certified Translation from the German of a Statement from the [H] District Administrative Authority of the Youth Welfare Office dated 25 May 2007, there is a reference to the original order being varied by the District Court at [H] on 16 January 2006 to 240 Euros a month, dating from 1 January 2005. The Child Support Agency make no mention of a variation of the 1996 order in the material they provided, and in the absence of other evidence that a variation order was made, I have proceeded on the basis that the only relevant order is the order made in September 1996.
[2] Exhibit 3 – Converted as at 20 September 1996 through Exhibit 3
The 1996 Austrian order was registered in Australia by the Child Support Agency with effect from 26 August 2005. At that date, the Agency registered arrears of $32,562.22AUD, and ongoing periodic child support of $235.57AUD per month.
By letter dated 13 September 2005, the Child Support Agency advised the Applicant Father[4] that he had a liability arising under an Order made in an Overseas Reciprocating Jurisdiction, and that collection was first enforceable by the Agency on 26 August 2005. The letter advised that child support was payable for the child [X], the payee was the Respondent Mother and that the amounts payable, “are enforceable until the youngest child reaches the statutory age of 18 or the specified date in the court order or agreement.”
[4] Annexure A of Father’s affidavit sworn 22 September 2010
On 19 October 2005, the Child Support Agency responded to an inquiry from the Father’s solicitors, Mr Hamish Cumming, in similar terms to the letter from the Agency to the Applicant[5].
[5] Annexure C to the Father’s affidavit sworn 22 September 2010
On 12 April 2006, the Father initiated these proceedings seeking an order that, “all the arrears arising from the orders made by the Local Court of [H] on 20 September 1996 to date be discharged.” After a first return date of 6 June 2006, the matter was listed for hearing before Federal Magistrate Housego on 11 July 2006.
On 11 July 2006, Her Honour ordered that the “enforcement of arrears, penalties, interest and other charges are stayed pending the final determination of this matter”, and directed that submissions be filed by 28 July 2006. The Court noted that the “Child Support Agency, with the agreement of the applicant, is to continue to collect ongoing child support.” [I note that on that date, Her Honour marked various documents as Exhibits, including the Judgment of the Local Court at [H], Austria and its Reasons for Decision dated 20 September 1996. With the exception of that document, copies of all other documents exhibited on that date were provided to the Court again in the material filed for this hearing. As this was not brought to my attention at the time of the hearing, for clarity, I have marked the Austrian Judgment and its Reasons for decision, Exhibit 3].
On 20 November 2006, Her Honour adjourned the proceedings for further mention to 20 February 2007 and each party was given liberty to apply on 48 hours notice.
On 20 February 2007, Her Honour again listed the matter for hearing on 10 July 2007. The Mother was directed to file and serve any affidavits, the Father’s legal representative was directed to forward to the mother a copy of any submissions on which the Father wished to rely and the Respondent Mother was directed to file and serve any submissions in reply.
On 10 July 2007, Her Honour again adjourned the proceedings for further mention to 14 September 2007 and ordered that:
a)The Respondent file and serve certified copies of all “documentation purported to be proof of service of any proceedings between the Applicant … and/or Ms Gable…; and
b)……the Respondent…forward certified copies of all alleged correspondence between Ms Gable…in relation to orders, applications for variation, or anything else in respect of maintenance for [X]…
On 14 September 2007, the proceedings were listed for hearing on
23 November 2007.
On 2 November 2007, the Father filed an application to adjourn the hearing on the basis of Counsel unavailability. The Court subsequently vacated the final hearing date of 23 November 2007, and adjourned the matter to 19 February 2008 before me.
On 19 February 2008, the Father advised the Court he would be seeking parentage testing. The matter was adjourned to 20 March 2008 for further mention, and listed for final hearing on 17 October 2008. The legal representative of the Attorney-General’s Department was directed to make all necessary arrangements for the mother to appear by telephone on the adjourned dates and to advise the Court whether or not the mother consented to parentage testing. If the mother did not consent to parentage testing, the Court ordered that any application made by the father for parentage testing be made returnable on the adjourned date. The mother was again directed to file and serve her response and financial statement to the father’s substantive application, and the representative of the Attorney-General’s Department was directed to provide the Court with an affidavit setting out evidence to establish the mother was on notice of the proceedings and to serve a sealed copy of the Orders upon the mother via the relevant Austrian authority. The Court raised an issue as to whether regulation 37 of the Family Law Regulations 1984 applied.
The matter was again before the Court on 20 March 2008, when the proceedings were adjourned to 22 July 2008 for further mention, because the parentage testing issue had not been resolved. On 5 May 2008, the Father filed an application in a case seeking orders for parentage testing. As a result of service difficulties and delays in communication with the Respondent Mother via the relevant Central Authorities, parentage testing was not ordered until 16 September 2008 when the Mother’s consent was given.
By 27 February 2009, when the matter was again before the Court, the parentage testing had still not been undertaken by the Mother and child in Austria.
On 16 April 2009, as a result of the parentage testing[6], the Court declared, pursuant to section 69VA of the Family Law Act 1975, that the Applicant was [X]’s biological Father. The matter was adjourned to 4 November 2009 for further mention, and listed for hearing on
22 April 2010. The Court noted that the practical arrangements for trial would be addressed on the adjourned date, and that the Mother would be required for cross-examination.
[6] Annexure A of Mother’s affidavit filed 16 April 2009
On 4 November 2009, the hearing date was confirmed, and trial directions were made. The Court ordered that Austrian documents provided by the representatives of the Attorney-General’s Department to the father be translated and the mother was granted leave to appear by telephone at the hearing, with all necessary arrangements to be made by the legal representatives for the Attorney-General’s Department
On 22 April 2010, the hearing could not proceed because the Mother could not be contacted by the Court on the number provided by the representatives for the Attorney-General’s Department. The Court noted that the Attorney-General’s Department would confirm on the adjourned date that arrangements had been made for the Mother to attend by telephone at the hearing of the proceedings, and also noted that if the Mother did not appear, the matter was likely to proceed on an undefended basis. The matter was again listed for final hearing on
7 October 2010, and allocated a mention date in August 2010 to ensure that the legal representative for the Attorney-General’s Department had made all necessary arrangements for the Mother to appear by telephone from Austria. The Father was directed to serve the Mother directly with all documents filed in the proceedings, or serve such documents on the Mother via the Attorney-General’s Department if the mother did not file a Notice of Address for Service. The Mother was directed to file and serve an affidavit including details of her financial position from 1993 to date, and [X]’s circumstances from 1993 to the present.
On 19 August 2010, the October hearing date was confirmed and the Mother and the Father were given an extension of time to file and serve any affidavits on which they intended to rely at hearing. The Court noted the advice of the Attorney-General’s Department that the Mother’s contact details in Austria had been obtained.
The Hearing
On 7 October 2010, the Father was represented by Counsel.
Ms Nanson, Solicitor, represented the Attorney-General’s Department. The Respondent Mother attended by telephone from Austria and gave evidence through a German interpreter located in Sydney. At the interpreter’s request, he was excused at approximately 6.30 p.m. when the hearing was underway. An interpreter from Melbourne was appointed to interpret via telephone, and the hearing was finalised late the same evening.
In his initiating Application, the Father sought an order for the discharge of all arrears arising from the Austrian orders prior to the date of registration of the orders. At the commencement of the hearing, the Father’s Counsel submitted, relying on regulations 36 and 37 of the Family Law Regulations 1984, that there were a range of options open to the Court. In final submissions, Counsel said that the Father sought a discharge of arrears presently owed to the Child Support Agency, and a variation of the Austrian order such as to effect a termination of the Order on [X]’s 18th birthday. In written submissions[7], Counsel submits that the discharge of arrears requires a variation of the order that created the liability.
[7] At page 9 of Father’s written submissions
The Mother sought to enforce the order of the Austrian Court and an order that the Father’s application be dismissed.
The Applicant Father relies on his application filed 12 April 2006, his affidavits sworn on 5 May 2008, 21 April 2010 and 22 September 2010 and his Financial Statement sworn on 22 September 2010, in addition to documents tendered and marked as Exhibits. The Respondent Mother relies on her Response filed on 26 April 2007 and her Financial Statements filed on 26 April 2007, 14 April 2008 and 15 April 2010. Ms Nanson relies on the affidavit of Mr McCulloch, solicitor, sworn on 31 August 2007, the affidavit of Ms James, solicitor, sworn on
5 November 2009 and the affidavits of herself and Mr Kristjanson, solicitor sworn on 7 October 2010. In addition, the Court was provided with a bundle of documents (hereinafter referred to as “Documents from the Child Support Agency”) translated from the German language from the [H] District Administrative Authority of the Youth Welfare Office in Austria, sent to the Court via the International Family Law Division in Tasmania. These include a Certified Translation from the German of a Statement from the [H] District Administrative Authority of the Youth Welfare Office.
The evidence
After a sexual relationship with the Mother in Austria, in 1992/3, the Applicant Father left Austria to return to Australia on 2 March 1993. Shortly afterwards, the Mother advised the Applicant that she was pregnant with his child. The Father denies a continuing relationship with the Mother after his departure from Austria. However, the Mother says she was shortly planning a 6 month visit to Australia, by arrangement with the Father, to test the waters for a long term relationship. Those plans changed when she found she was pregnant, but according to the Mother, the parties continued to communicate and made plans for the Father to be at the birth of the baby. When the baby was born, the Father’s sister (with whom the Father had been living) without prior warning, told the Mother that the Father wanted nothing further to do with her or the baby. The Mother says her subsequent efforts to communicate with the Father were unsuccessful. I prefer the Mother’s evidence on this issue. I give considerable weight to the fact that in July 1993, the Father applied, albeit unsuccessfully, for a resident permit for Austria[8], and acknowledged paternity of the child in his application[9].
[8] Annexure A of affidavit of James McCulloch filed 31 August 2007 – Folio 34
[9] Annexure B of affidavit of Lynette James sworn 4 November 2009
In May 1994, the Applicant Father received a request to attend the Austrian Consulate in Melbourne in relation to [X]’s birth. According to a letter from the Austrian Consulate in Melbourne to the [H] District Authority in Austria (undated)[10], the Applicant Father contacted the Consulate and agreed to an interview. However, he did not attend on the appointed day and engaged a firm of solicitors. On 27 June 1994, Gibson and Gibson, solicitors advised the Austrian Consulate in Melbourne to correspond with the Applicant only through their offices[11].
[10] Annexure A of affidavit of James McCulloch filed 31 August 2007 – Folio 33
[11] Annexure A of affidavit of Lynette James sworn 4 November 2009
On 7 February 1996, the Applicant Father was personally served by the Sheriff’s Office of the Supreme Court of Victoria, with a Summons and Statement of Claim (in the German language) from the [H] District Court, Austria, dated 4 August 1995, including a Certified Translation in the English language, naming him as the Defendant and the Respondent Mother as the Plaintiff in a “Paternity and Maintenance suit” and stating that the matter would be heard on 1 March 1996 at 10 a.m. in the [H] District Court, Austria[12]. At the time of service, the Applicant Father acknowledged that he was the named Defendant. The Father says he could not afford to travel to Austria for the hearing. He did not contact the Court or take any steps to be heard in the proceedings, at that time, or any time subsequently.
[12] Annexure A of affidavit of James McCulloch filed 31 August 2007 - Folios 50 and 62
On 28 January 1998, the [H] District Authority in Austria, informed the Austrian Consulate in Melbourne that an order had been made against the Applicant, enclosing the terms of the order and a copy of the decision. In September 1999, the Austrian Consulate wrote to the [H] District Authority to advise the material had been sent to the Applicant Father twice, but he had not contacted the Consulate[13].
[13] Annexure A of affidavit of James McCulloch filed 31 August 2007 – Folio 37
The Father’s evidence as to his financial circumstances. In his affidavit sworn in September 2010, the Father details his income and child support obligations for his two children [Y], born [in] 1986 and [Z], born [in] 1989, from the time of [X]’s birth to the present. I find his income each year was as disclosed in his Notices of Taxation Assessment for the financial years 1993 – 2009[14].
[14] Exhibit 1
a)1993 financial year: taxable income $41,745
b)1994 financial year: taxable income $42,404
c)1995 financial year: taxable income $40,390
d)1996 financial year: taxable income $41,912
e)1997 financial year: taxable income $41,027
f)1998 financial year: taxable income $42,222
g)1999 financial year: taxable income $45,029
h)2000 financial year: taxable income $46,426
i)2001 financial year: taxable income $28,221
j)2002 financial year: taxable income $33,572
k)2003 financial year: taxable income $19,929
l)2004 financial year: taxable income $17,547
m)2005 financial year: taxable income $41,100
n)2006 financial year: taxable income $55,046
o)2007 financial year: taxable income $73,370
p)2008 financial year: taxable income $73,915
q)2009 financial year: taxable income $59,689
r)I accept the Applicant’s evidence that he is presently earning $80,000 per annum.
On the basis of this evidence, I am satisfied that at the time of the Austrian order in September 1996, the Applicant was earning an income well in excess of the income on which he was assessed to pay child maintenance by the Austrian Court. I am also satisfied that overall, his income has increased, rather than decreased, over time.
I am unable to make precise findings as to his child support obligations for his children [Y] and [Z] from 1993, on the evidence available. I am provided with a bundle of child support assessments and a child support transaction statement for the period 1 January 1990 to 22 April 2010, but I am unable to reconcile the assessments with the transaction statement, and was not assisted by Counsel to do so. The Applicant deposes to paying child support by way of private agreement to his first wife before reconciling with her at the end of 1993. He adduces no independent evidence of what he paid. He deposes to separating from his first wife finally, in 1999, and to paying child support by way of private arrangement as well as by way of assessment for [Y] and [Z] after separation. He adduces no evidence of payments made by way of assessment, and no such payments are disclosed in the Transaction Statement provided by the Child Support Agency for that period[15]. The Applicant says he lived with another woman, Ms H and her two children aged 4 and 3 years for the period 1999-2001 and supported them financially. There is no suggestion that he had any legal obligation to do so. In 2001, the Father separated from Ms H and changed his occupation. According to the Child Support Transaction Statement for the period, the Father paid a total of $868.80 in child support in the 2001 financial year for [Y] and [Z]. Inexplicably, the amounts recorded in the Transaction Statement bear no relation to the Agency assessments included in Exhibit 2. In 2003, the Applicant met his present wife, Ms J. His income during 2003 and 2004 dropped significantly. He says he provided financial support for two of his partner’s three children, though does not suggest he had any legal obligation to do so. The Transaction Statement does not disclose any child support payments for [Y] and [Z] between 30 November 2000 and 3 June 2004, despite the assessments for that period. From October 2005, the Applicant commenced payments to the Agency for [X]’s support in the sum of $235.57 a month. The Transaction Statement from the Agency discloses total payments of $1388.73 (excluding adjustments made by the Agency) in the 2005 financial year for [Y] and [Z]’s support[16]. In 2006, the Father married his present wife. As already noted, he continued to make monthly payments for [X] of $235.57 from October 2005 to the present. By 2006, he was no longer paying child support for [Y] or [Z]. While I am unable to make precise findings on the issue, I am not persuaded the Applicant was making payments in child support for [Y] or [Z] of a significant or exceptional kind.
[15] Exhibit 2
[16] Exhibit 2
The Applicant says he presently lives in rental accommodation with his wife sharing the rent of $380 a week. The Applicant and his wife are both in employment, his wife on an annual income of approximately $62,000. The Applicant’s wife owns a property at [P], from which she derives income. As at September 2010, the Applicant deposes to owning assets valued at approximately $13,000, liabilities of approximately $78,000 and superannuation entitlements of approximately $113,370[17]. The Applicant’s liabilities include a loan secured by way of mortgage on the [P] property, but I note that he does not currently make payments on that loan and has no legal interest in that property. I accept the Applicant’s claim that he is of modest means.
[17] Father’s Financial Statement filed 23 September 2010
The Mother’s evidence
. The Mother says she is self-employed in a small business, [omitted]. Her income varies according to the available work, and she has significant business expenses. She receives
240 Euros a month from the Government, made up of family allowance of 189 Euros a month, and a payment from the Government in lieu of child maintenance. According to her Financial Statement filed in April 2010, her expenses are modest and in excess of her income, as she also deposed in her Financial Statements filed 2 and 3 years earlier. The Mother tells the Court that she has a net 1,000 Euros a month to meet hers and [X]’s expenses which include food, clothing, insurances, including medical insurance, [X]’s education expenses and their entertainment. I accept the Respondent Mother’s evidence that she spends her whole income each month and has no savings. I accept that she has been even worse off in the past and there have been periods when she has relied on her father to pay for wood for heating the home. The Mother has a 50% share in a home owned by her and her brother and a 10 year old Ford Falcon. She has no superannuation, but pays insurance to provide for an old age pension, and to provide a contribution towards [X]’s university education. At the time of hearing, she had not received any maintenance from the Father for [X]. I am satisfied the Mother is struggling financially.
In relation to [X]’s circumstances, I accept the Mother’s evidence that [X] is currently in the second year of a five year course, and will do her entrance examinations for university in 4 years time.
Legal principles
The Applicant relies on regulation 36 and regulation 37 of the Family Law Regulations 1984. I deal with the facts of the case as they apply to each Regulation in turn.
The Child Support (Registration and Collection)(Overseas-related Maintenance Obligations) Regulations 2000 (“hereinafter referred to as the Repealed Regulations”) were repealed on 19 July 2007, and incorporated into the Child Support (Registration and Collection) Act 1988. In this case, because the Regulations were repealed after the registration of the Austrian order in August 2005, the repealed Regulations will apply. His Honour Justice Le Poer Trench J said in Dobson & Van Londen (2008):[18]
…The use of the Child Support (Registration and Collection) Act 1988 to address overseas maintenance liabilities is not intended to be retrospective. Therefore, the now repealed Child Support (Registration and Collection)(Overseas-related Maintenance Obligations) Regulations 2000…can be assumed to govern the registration of the overseas maintenance liabilities prior to 20 July 2007.
[18] [2008] FamCA 1231 at paragraph 550
Regulation 36(2) of the Family Law Regulations 1984 provides that a liable parent may apply to a court having jurisdiction under the Family Law Act 1975, for an order discharging, suspending, reviving or varying an order, agreement or liability to which the Regulation applies. Regulation 36 applies to a registered maintenance liability[19]. Regulation 11(1) of the repealed regulations defines a registrable maintenance liability as a liability of a parent of a child to pay a periodic amount for the maintenance of the child, when it is an overseas maintenance liability, which includes arrears arising under such a liability[20]. Regulation 5 of the repealed regulations defines an overseas maintenance liability as a liability which arises under a maintenance order made by a judicial authority of a reciprocating jurisdiction. Austria is a reciprocating jurisdiction prescribed by Schedule 2 of the repealed regulations. The Applicant Father’s liability is therefore a registrable maintenance liability, and under regulation 24A of the Family Law Regulations 1984 [21] is a “registered maintenance liability”.
[19] Regulation 36(1) (b)
[20] Regulation 11 (4)
[21] As they were at the date of registration in August 2005
When an application is made under regulation 36 of the Family Law Regulations 1984, the application is determined under the Family Law Act 1975.[22]
[22] Regulation 36(4) and Regulation 3(1)
Child maintenance orders are governed by Division 7 of Part VII of the Family Law Act 1975. Section 66S deals with modification of child maintenance orders. Section 66S(2) provides that a Court may discharge the first order if there is just cause for so doing, or suspend the operation of the order in whole or in part for a fixed time or until the happening of a future event, or subject to subsection (3), vary an order so as to increase or decrease any amount ordered to be paid by the order or in any other way. Section 66S(7) provides that an order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.
In the present case, the Applicant Father does not seek to discharge or suspend the order. He seeks to vary the order such that his arrears to the date of registration are discharged, and such that his liability ceases on [X]’s 18th birthday in November 2011.
Section 66S(3) provides that the court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:
a)That since the order was made or last varied, the circumstances of the child, the person liable to make payments or the person entitled to receive the payments, have changed so as to justify the variation; or
b)That since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing; or
c)If the order was made by consent – that the amount ordered to be paid is not proper or adequate; or
d)That material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.
If the court is satisfied that one of the section 66S(3) conditions is satisfied, section 66G provides that the court may make such child maintenance order as it thinks proper. The Court must consider the financial support necessary for [X]’s maintenance and then determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of [X] that should be made by each of the parties to the proceedings.[23]
[23] Section 66H
An order made under regulation 36 is final in Australia because Austria is not referred to in regulation 38(1). This means that if an order is made, the Child Support Agency will vary the register to give effect to the final court order.
The onus is on the Applicant Father to prove his case. The Applicant Father does not seek to discharge the 1996 order, because he asks that the order stand from the date of registration in August 2005 until [X]’s 18th birthday. By his application, the Father seeks to vary the order. By seeking a discharge of the arrears accrued as a result of the 1996 order, until the date of registration of the order in August 2005, the Applicant is seeking a decrease in his liability to Nil per month from November 1993 until August 2005. The Respondent Mother makes no application for an increase in the amount payable under the order.
I find that the only subparagraph of section 66S(3) which requires consideration in this case, is subparagraph (a). In relation to the other subparagraphs, the order was not made by consent (subparagraph (c)), the Father adduces no evidence as to a change in the cost of living since 1996 (subparagraph (b)), and the Applicant does not submit that material facts were withheld from the Court when the order was made (subparagraph (d)).
In relation to subparagraph (a) of section 66S(3), the Applicant does not seek to establish that either [X]’s or the Respondent’s circumstances have changed so as to justify a decrease in the amount payable under the 1996 order. In any event, I am satisfied, on the evidence of the Respondent Mother outlined earlier in these Reasons, that the Respondent Mother and [X] have lived modestly, relying to an extent on Government benefits, and at times on the Mother’s father for financial support. I find no change in their circumstances since the order was made, such as to justify a decrease in the amount payable by the Applicant Father.
Has the father established a change of circumstance since the making of the Austrian order such as to justify a decrease in the child maintenance he has been ordered to pay?
In relation to any change in the Applicant Father’s circumstances, his Counsel submits that the Father is unable to establish a change in circumstances since the order was made, because at the time of the hearing in September 1996, the Austrian Court had no knowledge of the Father’s circumstances and relied on “pure speculation” as to his financial position. I am not persuaded this is the case. It is clear from its Reasons for Decision[24] that the Austrian Court accepted the evidence of the Mother that the Father was a [omitted] by profession, earned approximately 16,000ATS per month, (or $1,895AUD per month) and had an obligation to care for two children from his earlier marriage, aged 8 and 10 years. The Court was satisfied (and there is no challenge to this fact in these proceedings) that the parties had spent time living together, that the Mother was a credible witness, and that she had knowledge of the Applicant’s financial and personal circumstances. The Court applied a formula which required the Applicant to pay 13% [16% less 3% for his dependent children = 13%] of his income in child maintenance for [X]’s support.
[24] Exhibit 3
In these proceedings, the Applicant Father adduces evidence of his taxable income in each financial year from 1993 to 2009[25] and deposes to a salary of $80,000 per annum in 2010. In the 1997 financial year, he had a taxable income of $41,027AUD, equivalent to $3,418.91AUD or 27,054.00ATS a month[26], considerably more than the amount found by the Austrian court to be his income for the purpose of assessing his liability at that time. The Father’s income from 1993 – 1996 was higher than in the 1997 financial year, except in the 1995 financial year when it was only marginally lower. Since 1997, the Father has continued to earn an amount in excess of the $1,895AUD a month, with the exception of the 2003 and 2004 financial years, when he earned $1660.75AUD [2003] and $1,462.25AUD [2004] a month. Even if inflation were taken into account, since the 2005 financial year, the Applicant has earned in excess of the $1,895AUD a month found to have been his income by the Austrian court. Presently, on an income of $80,000 a year, if the same percentage of 13% of income were applied, his liability would be $866 a month, rather than $235 a month. The Father’s evidence does not establish that his child support obligations after 1996 for [Y] and [Z] changed in such a way as to justify a decrease in the amount payable under the 1996 order.
[25] Exhibit 1
[26] Converted as at 1 July 1998 through
On the basis of these factual findings, I am not satisfied the Applicant Father has shown a change in his circumstances from September 1996 such as to justify a variation in the Austrian child maintenance order. The Applicant’s case must therefore fail on the basis of regulation 36.
Counsel for the Applicant submits that Regulation 37 of the Family Law Regulations 1984 applies in this case, and the Court should exercise its discretion to vary the Orders such that the arrears which accrued between November 1993 and August 2005 be discharged, and to limit the time frame of the order.
Regulation 37 applies to an application made under regulation 36 (1) if:
a)the applicant is a person against whom an overseas maintenance order was made or the person liable to make the payments because of a liability mentioned in regulation 36(1)(b); and
b)the applicant did not have notice of the proceedings giving rise to the order or liability, did not appear in those proceedings and did not consent to the making of the order or to the creation of the liability; and
c)the application is made within six months after the applicant was given notice that the order or liability is enforceable in Australia.
Regulation 37(2) provides that on the hearing of the application the applicant may raise any matter that the applicant could have raised under Part VII or Part VIII of the Act if the proceedings giving rise to the order or liability had been heard in Australia. This means the Court would consider all the available evidence and decide what each party’s contribution to [X]’s support should be.
In relation to subparagraph (a) of regulation 37, the Applicant is liable to pay maintenance under the Austrian Order.[27] In relation to subparagraph (c) the Applicant Father was given notice that the order was enforceable in Australia by letter from the Child Support Agency dated 13 September 2005. While the Father’s Counsel contends that the Court should not be satisfied that the Applicant was on notice of the enforceability of the order or liability until he received a copy of the Orders and Reasons for Decision in October 2005, I do not accept this submission. The terms of subparagraph (c) are quite clear and the Agency met the requirements of subparagraph (c) in its letter to the Applicant of 13 September 2005. I find that the Father’s Application, filed on 12 April 2006 was made almost one month outside the 6 month statutory time limit provided in regulation 37(1)(c)[28]. Although regulation 6(1) gives the Court a discretion as to whether or not to relieve a party from the consequences of non-compliance, I find it unnecessary to consider that issue, given my decision in relation to subparagraph (b).
[27] Regulation 37(1)(a)
[28] As at date of application in April 2006
In relation to subparagraph (b), there is no dispute that the Father did not appear in the Austrian proceedings and did not consent to the making of the order of September 1996. The question here is whether the Applicant was on notice of the proceedings. Counsel for the Applicant Father concedes that the Father was served with the Summons initiating the Austrian proceedings in early February 1996, but contends that the Court should not be satisfied that the Father was “on notice” as contemplated by the regulation.
I am satisfied that the question of notice, as referred to in Regulation 37(1)(b), is a question of fact. I therefore find it appropriate to consider the whole of the factual circumstances, substantially undisputed, leading up to the commencement of the Austrian proceedings. Contrary to his Counsel’s submission, I am not persuaded the Applicant was ever in doubt about [X]’s paternity. As earlier noted, I accept the Mother’s evidence that the Applicant planned to return to Austria in mid-1993, to be with her for the birth of the baby and was in communication with her until the time of [X]’s birth. I also accept the Father’s evidence that he was separated from his then wife, and the Mother’s evidence that the parties were at least contemplating a future together at the time the Father left Austria to return to Australia. In addition, I give weight to the contents of the Father’s application to the Austrian Government for a residence permit in July 1993, in which he acknowledged that the Respondent Mother was pregnant with his child. I find no merit in Counsel’s submission that because the Mother would have been 3 weeks pregnant when the Applicant left Austria, it was understandable that the Applicant doubted his paternity. By his own admission, the Applicant had been living with the Mother until the approximate time of his departure in early March 1993, attempted to return to Austria during 1993 and continued to communicate with the Mother from Australia until that time.
It is not in issue that the Applicant Father was aware the Austrian Consulate sought to interview him about [X]’s birth in mid-1994. While the Father claims to have been advised by his solicitor not to attend the Consulate for interview, that does not alter the fact that the Applicant was aware a child for whom he shared responsibility had been born in Austria to the Respondent Mother. I accept the Mother’s unchallenged evidence that the Applicant Father chose not to communicate with her after the birth of the baby, and obstructed her efforts to make contact with him. I accept her evidence, again unchallenged, that the Father chose to keep his contact details from her.
On 7 February 1996, the Father was personally served with documents translated from the German language, which state the nature of the claim, the orders proposed, the location of the court and the listing date at the [H] District Court on 1 March 1996. Counsel for the Applicant submits that the notice “…was entirely inadequate, and cannot be regarded as notice in the legal sense.”[29] In particular, Counsel submits[30] that:
a)Documents served upon the Applicant on 7 February 1996 did not bear the Court seal of an Austrian Court in breach of regulation 12 of the Family Law Regulations 1984.[31]
b)The service did not follow proper procedure at the outset and was contrary to the convention of which Austria is a party. Counsel does not identify the convention she refers to.
c)Documents served on the Applicant on 7 February 1996 did not provide the Applicant with adequate notice of the proceedings, listed on 1 March 1996, 21 days later.
d)Rule 11A.10 of the Uniform Civil Procedure Rules 2005 places restrictions on entering default judgment following service abroad if the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings. “Sufficient time” means 42 days.
e)The Court made no further attempt after 7 February 1996 to contact the Applicant Father about the status of the proceedings. The Father was therefore denied any right to set aside the orders as he would have been under the Uniform Civil Procedures Rules 2005 [r.11A.12].
f)The Austrian Court has not provided evidence that they attempted to contact the Applicant’s solicitors in Australia, despite the Austrian consulate in Melbourne being on notice of a request that they do so.
g)In oral submissions, Counsel additionally contends that the Summons personally served on the Father refers to the [H] District Court, while the Judgment refers to the [H] Local Court which caused the Applicant confusion.
[29] At page 10 of the Father’s written submissions
[30] At page 10 to 11 of the Father’s written submissions
[31] As at date of service in February 1996
I am not persuaded by these submissions that the Father was not on notice of the proceedings in Austria and could not have taken steps to have been heard in the proceedings had he chosen to do so. I find that by the time of service of the initiating documents on 7 February 1996, the Father was aware his child had been born and was aware the Austrian authorities had sought to interview him about his obligations for the child. He had already retained solicitors. I make these further findings:
a)Regulation 12 of the Family Law Regulations 1984[32] is irrelevant. It applied[33] to documents being transmitted to a foreign jurisdiction for service in that jurisdiction, not to documents being served in Australia in relation to proceedings in overseas countries.
[32] As it applied in February 1996
[33] In operation in February 1996 but since repealed
b)The Uniform Civil Procedure Rules 2005 have no application in this case.
c)As already noted, counsel for the Father did not identify the service convention to which she referred in her written submissions. If she is referring to The Hague Convention on the Service Abroad of Judicial Extrajudicial Documents in Civil or Commercial Proceedings 1965, the Convention was not in force in Australia until 1 November 2010, and in any event, Austria is not a party to the convention. The Convention therefore does not apply.
d)I do not accept that an Austrian Court would have prevented the Applicant from appearing by telephone on 1 March 1996, or would not ensure that the Applicant was afforded procedural fairness, had the Applicant chosen to participate in the proceedings.
e)
After being served with the documents on 7 February 1996, the Applicant took no steps to seek an adjournment or to participate in the proceedings in any way. I am not satisfied in a period of
21 days, he did not have an opportunity to enter an appearance.
f)The evidence does not establish that the solicitors retained by the Applicant in June 1994, were aware of the [H] Court proceedings.
g)I am not satisfied anything turns on the fact that the Summons referred to the [H] District Court while the Judgment was issued by the [H] Local Court. The same reference number, 5C 8/95 g, appears on both documents.
Counsel argues that the Applicant was not on notice of the orders until 2005, and without a copy of the orders, the Applicant could not have known where or to whom he was to pay the amount ordered. While this submission could only be considered if I were satisfied that regulation 37 applies, it would make no difference to the outcome. As already noted, in early 1998, the [H] District Authority sent a copy of the orders and judgment to the Austrian Consulate in Melbourne to forward to the Applicant Father. I am satisfied on the basis of the correspondence between the [H] District Authority and the Consulate in Melbourne that attempts were made to contact the Father to provide him with a copy of the judgment and orders. I do not accept criticism of the Austrian Court’s approach when, despite being personally served with initiating process, and being aware of [X]’s birth, the Father adduces no evidence of any steps taken by him, either by communication with the Respondent Mother, the [H] Court or the Austrian Consulate in Melbourne, to ensure he was kept fully informed of the status of the proceedings.
Conclusion
I have determined that regulation 37 does not apply. I have determined that on a consideration of the Applicant’s circumstances since 1996, there is no basis for a variation of the 1996 order, by way of a decrease in the amount payable. Had regulation 37 applied, this court would have been required to consider [X]’s needs, and to consider an equitable sharing between the parties in [X]’s support, having regard to the objects and principles of Division 7, Part VII of the Act. Having regard to the Applicant’s financial circumstances since [X] was born, as outlined earlier in these Reasons, it is likely any variation would have resulted in an increase, rather than a decrease in the Applicant’s liability. It is also probable that the expiry date for the order would have been extended to accommodate [X]’s future educational needs. Although there have been fluctuations in the Applicant’s income between 1993 and 2010, and inflation must be factored in, the trend overall, has been upward. In 1996, when the Austrian order was made, the Applicant was earning almost double the income used by the Austrian Court for the Applicant, to calculate his liability. As at today, the Applicant is earning a significantly higher amount and if the same Austrian formula was applied again to his present income, his liability would be greater.
It follows that the Application will be dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 24 January 2011
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