Harris and Vernon

[2016] FCCA 358

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRIS & VERNON [2016] FCCA 358

Catchwords:
FAMILY LAW – Child support – application to set aside overseas child support agreement – non-compliance with requirements of Regulations – dismissed.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)

A v Hayden (1984) 156 CLR 532
B v J (1996) FLC 92-716

Applicant: MR HARRIS

Respondent: MS VERNON

File Number: MLC 5600 of 2013

Judgment of: Judge McGuire

Hearing date: 18 February 2016

Date of Last Submission: 18 February 2016

Delivered at: Melbourne

Delivered on: 8 April 2016

REPRESENTATION

Counsel for the Applicant: Mr Bacon

Solicitors for the Applicant: Manby & Scott Lawyers

Counsel for the Respondent: Ms Buchanan

Solicitors for the Respondent: James McDermott

ORDERS

1. The amended initiating application filed 9 November 2015 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5600 of 2013

MR HARRIS

Applicant

And

MS VERNON

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Harris seeking the following orders:

   (1) Pursuant to Reg 36 of the Family Law Regulations 1984 (Cth) Orders 3.3 and 3.6 of the Marital Settlement Agreement dated 6 May 2013, be set aside.

   (2) Within 14 days of the making of these Orders, the mother do all things and sign all documents necessary to make an application to the Department of Health and Human Services (Child Support) in Australia to enable an administrative assessment of child support to issue for the child X, born (omitted) 2007.

2. The applicant relies on his affidavit sworn 12 August 2015, the contents of which are read into evidence.

3. The response filed 19 January 2016 seeks orders in the following terms:

   (1) The court finds it does not have jurisdiction to hear the application and accordingly dismisses the application.

   (2) If the court finds it has jurisdiction, that it refuse the application in its entirety.

4. The response is accompanied by an affidavit of Ms Vernon, sworn 21 December 2015.

5. On 6 May 2013 the parties entered into a Marital Settlement Agreement in (country omitted).  That agreement provided, inter alia, that the applicant pay to the respondent an amount of $2000 per month from 15 May 2013 and for a period of 24 months for the support of their child, X. Thereafter, the agreement provided for child support to be payable by the husband to the wife in an amount of (omitted) $1182 per month.

6. The parties had previously married in (omitted) Australia in (omitted) 1999. They moved to the (country omitted) to live in 2002. X was born on (omitted) 2007.  The parties separated in February 2012.  The applicant moved to live in Australia in February 2012. The respondent mother and X have continued to live in (country omitted).

Applicant’s Case

1. The applicant says that his obligation to pay child support for X should be determined according to Australian law, and in particular, the provisions of section 66 of the Family Law Act 1975 (Cth) (as amended). The applicant says that he has a right to bring his case pursuant to Regulation 36(4) of the Family Law Regulations 1984 and that this statutory right cannot be ousted or waived as being bad for public policy reasons. The applicant, in this respect, refers to clause 30 of the Marital Settlement Agreement which states:

   The parties agree that the jurisdiction for this matter shall remain in (country omitted) and that the Husband shall not, under any circumstances, attempt to modify any of the provisions of this agreement, including the parenting plan, in any court of any other jurisdiction, including but not limited to Australia.

2. The applicant supports his argument with authority from the High Court in A and Others v Hayden and Others (1984) 156 CLR 532, 533 where Mason J says:

   The court will not lend its aid to the enforcement of a contractual obligation of confidentiality undertaken by the Commonwealth, the effect of which would be to obstruct the administration of the criminal law, because to do so would be contrary to public policy.

3. Counsel for the applicant also refers me to the judgment of Fogarty J in B v J (1996) FLC 92-716 at pp 8 and 9, where His Honour states:

   However, I should say that it is, in my view, untenable to suggest that an otherwise liable parent may contract out of liability for child support, or that an otherwise entitled parent may waive a “right” to assistance for the support of his or her child.  It is well established that statutory rights granted to individuals which rest upon wider principles of public policy may not be waived. As Dawson J said in Brown v The Queen (1986) 160 CLR 171 at 208, a statutory right or benefit may only be waived if it is “a personal or private one and (it) must not rest upon public policy or expediency”.

4. His Honour’s observations in B v J (supra) can be distinguished factually where it is obvious and proper that public policy dictates that parties not contract out of rights where the public purse might be affected.  The factual platform now before me is altogether different.  Nevertheless, by implication, counsel argues that public policy demands that children’s needs in the form of child support be properly met in accordance with the abilities of those parents to meet those needs.  It follows that, on the applicant’s argument, clause 30 of the Marital Settlement Agreement as set out above is contrary to public policy in that it purports to oust the court’s proper jurisdiction in respect of child support issues.

5. Counsel for the applicant relies on a statutory right in the applicant to bring an application pursuant to Regulation 36 of the Family Law Regulations 1984. That regulation states under the heading “Party in Australia may apply to vary etc overseas maintenance order, agreement or liability”:

   36(1)  This regulation applies to:

   (a) an overseas maintenance order or agreement registered in a court before 1 July 2000; and

   (b) an overseas maintenance entry liability or a registered maintenance liability.

Respondent’s Case

1. The respondent argues that the application now before the court be dismissed on a number of grounds. Firstly, counsel argues that the parties have contracted pursuant to section 30 of the Marital Settlement Agreement to utilise the jurisdiction of the (country omitted). I understand this to be an argument that this is a contractual agreement between the parties of a private nature and not impacted by public policy. A similar argument may be mounted in respect of that part of clause 30 which states that “...the Husband shall not, under any circumstances, attempt to modify any of the provisions of this agreement, including the parenting plan, in any court of any other jurisdiction, including but not limited to Australia.” Thirdly, the respondent argues simply that Regulation 36 of the Family Law Regulation is not available to the applicant given that he does not satisfy the criteria of subparagraphs (1)(a) or (b).

Consideration

1. I will deal firstly with the applicant’s argument in respect of Regulation 36 not being available to the applicant.

2. Subparagraph (1)(a) does not apply given the chronology.

3. There is no evidence before me that the maintenance liability in the form of and incorporated in the Marital Settlement Agreement has been registered.

4. Regulation 24A assists with the definition of “overseas maintenance entry liability” as meaning “an overseas maintenance entry liability included in the Child Support Register under section 25A of the Child Support (Registration and Collection) Act 1988”. 

5. Section 25A of the Child Support (Registration and Collection) Act 1988 states under the heading “Inclusion of certain liabilities in the Child Support Register”:

   (1) A payee may apply to the Registrar for entry, in the Child Support Register, of the particulars of an overseas maintenance liability that is not a registrable overseas maintenance liability.  (2) An application must be made in the manner specified by the Registrar. (3) In the absence of an application made in accordance with subsection (2), a document or documents given by the payee may be taken to be an application for entry of the particulars of an overseas maintenance liability if the Registrar is satisfied that it is appropriate to do so.  (4) The Registrar must, within 90 days after receiving an application, enter the particulars of the liability in the Child Support Register if the Registrar is satisfied that to do so would be consistent with the international maintenance arrangement on which the payee relies. (5) The Registrar may refuse to register a maintenance assessment, order or agreement issued, made or registered in a foreign country that is a party to an international treaty and that is prescribed by the regulations if the payee is habitually resident in that country.  (6) For the purposes of this Act, a decision made under this section is taken to be a decision in relation to a registrable maintenance liability.

6. There is no evidence that the applicant has registered or attempted to register the agreement. The criteria of regulation 24A and section 25A of the Child Support (Registration and Collection) Act 1988 have not been complied with.  It is, of course, a matter for this applicant as to whether or not he completes the registration process.  There may be obligations that arise from such a process that are not attractive to him. In any event, I note that he is represented by solicitors who practice widely in the field, and I can only assume that he is fully aware of his options in this respect. However, it is clear that, given that the criteria of regulation 36(1) are not satisfied, then this applicant cannot have the benefit of regulation 36(2) in respect of making any application.  It follows that his application must be dismissed accordingly, and I need not therefore address the other interesting arguments set out above.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 8 April 2016