Higgins and Turner and Anor

[2014] FCCA 2635

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIGGINS & TURNER & ANOR [2014] FCCA 2635

Catchwords:
CHILD SUPPORT – Reasons for judgment.

Legislation:  

Family Law Act 1975
Family Law Regulations 1984, regs.36, 38, 38A
Child Support (Registration and Collection) Act 1988

Applicant: MR HIGGINS

First Respondent: MS TURNER

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: MLC 8649 of 2012

Judgment of: Judge Burchardt

Hearing date: 29 September 2014

Date of Last Submission: 29 September 2014

Delivered at: Melbourne

Delivered on: 29 September 2014

REPRESENTATION

Counsel for the Applicant: Mr Hutchins

Solicitors for the Applicant: McBain Lawyers

First Respondent: No appearance

Counsel for the Second Respondent: Mr Maat

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The Registrar of the Child Support Agency be joined as a party to these proceedings. 

2. The arrears of Child Support (including any assessed late payment penalties) said to be owed by the Applicant to the Respondent regarding the child X born (omitted) 2001 (Child Support case reference number (omitted)) be discharged and revoked, the Court having found no arrears exist. 

3. The Child Support Registrar be stayed from enforcing and collecting any Child Support arrears (“any associated late payment penalties”) pending further order of this Court. 

4. The further hearing of this matter be adjourned not before 13 May 2019. 

5. This is a provisional order pursuant to Regulation 36, 38 and 38A of the Family Law Regulations and Article 11 of the Child Support (Reciprocal Agreement with Australia) Order 2000.

6. The Child Support Registrar credit the Applicant with the payments for arrears already made by him against his ongoing Child Support liability.

NOTATION

(A)The Applicant is still obliged to pay his ongoing Child Support liability assessed from time to time but subject to Order 6.

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

.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 8649 of 2012

MR HIGGINS

Applicant

And

MS TURNER

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. On 29 September 2014 I made interim orders in a complicated child support matter.  Although the transcript of the hearing shows that I gave some indication as to why it was that I was making the orders that I did make, no one asked me for extensive reasons.  I understand the matter is now the subject of an appeal.  The Registrar of this Court has requested that I forward reasons for judgment.

2. I have been careful not to read the Notice of Appeal (although a copy was emailed to me for information) lest I fall into the trap of seeking retrospectively to justify myself rather than indicating the thought process that actually led me to make the judgment.  In order to understand the interim orders made, it is necessary to examine the Court file and the way the matter progressed in some detail.

3. On 17 October 2011 the applicant’s then solicitors filed an Application for Final Orders, Application in a Case, Affidavit, Financial Statement, Affidavit of Service, and Acknowledgment of Service in a proceeding issued in the Magistrates’ Court of Victoria.

4. The final orders sought in the application essentially sought that any moneys paid by the applicant to third parties for purposes directly related to the wellbeing of X, born (omitted) 2001, relating to X’s health care and education costs up to $75 per week be credited at an appropriate percentage against any child support payable by the applicant to the respondent.  A further order was sought that the respondent contribute $50 per week towards the applicant’s travel costs to see X and an order that any child support arrears said to be owing be discharged and set at nil;  alternatively, any enforcement be stayed.

5. The orders sought in the Application in a Case were essentially that any obligation on the part of the applicant to pay child support arrears to the respondent be stayed, noting that the applicant was still obliged to pay his ongoing Child Support Assessment of $584 per month.

6. The applicant’s affidavit filed 17 October 2011 in the Magistrates’ Court of Victoria deposed that the applicant and the first respondent were in a de facto relationship between 2000 and 2002, during which time X was born on (omitted) 2001.  The affidavit deposed that X lived with the first respondent in New Zealand, the first respondent being a New Zealand citizen.

7. After the first respondent moved back to New Zealand, approximately 18 months after X’s birth the applicant deposes (at paragraph 4) that he spent:

   “…the next few years regularly paying for the travel and associated costs for X (and more times than not for the respondent to accompany her) backwards and forwards from New Zealand so I could see X. That travel recently stopped due to financial reasons.”

8. The affidavit deposed that the present child support liability of $584 per month and deposed (at paragraph 7):

   “7.     Essentially, the Agency has registered a New Zealand child support liability against me for collection and is collecting that debt on behalf of New Zealand authorities.”

9. The applicant deposed that although he had some contact with X, the first respondent was making this difficult for him, and noted that the first respondent had effectively kept the applicant out of the loop regarding X’s health and education-related issues.  At paragraph 9, the applicant deposed:

   “At the moment, a component of the child support I am paying to the respondent is notionally allocated for X’s dental work and schooling costs and those funds are just not being spent in a way which coincides with X’s best interests (that is, the dental work is not being carried out and other school expenses not being met).”

10. The applicant deposed that this difficulty would be remedied if he was able to pay a proportion of child support to X’s doctors and dentists and her schools. This would have the additional benefit of keeping the applicant informed as to what was actually happening to X in these regards.

11. The applicant also went on to depose that when he exercised his contact with X, he has spent a considerable amount of money on travel costs and sought that the first respondent contribute thereto.

12. He deposed to the necessity for a contribution from the first respondent if he was ever to have a meaningful relationship with X.  He went on to say that all these matters were made more pressing as he understood X had recently left the first respondent’s care and was living some three hours drive away.

13. At paragraph 19, the applicant deposed:

    “19.   I am confident that the documents which will come to light in these proceedings pursuant particularly to the subpoena process (and to a lesser extent, Rule 4.26) will indicate the balance of hardship between the respondent, me and X justifies the court making orders of this type.”

14. The applicant went on to depose to the fact that the first respondent leads a very comfortable life and that, accordingly, there would be little hardship to her if a substitution order and a Family Law Act1975 (“the Family Law Act”) costs order of the type he sought were made.

15. The applicant referred to exhibit WH2 which shows an arrears liability of $23,585 plus penalties.  He deposed at paragraphs 26-28:

    “26.  This debt largely came about due to the fact that for the four years after the respondent and I separated (from 2002 until 2006) I was paying on average $100 per week of child support to her directly (and not through either the Australian or New Zealand Child Support Agencies).  Because these payments were not made through either the Australian or New Zealand agencies, I have been refused “credit” for them – even though it is common ground between the respondent and me that the funds were paid and it was for X’s support.

    27.  When I have raised this “double payment” issue with the Australian Agency I have effectively been told that it is just the New Zealand agency’s “debt collector”. As such, any dispute I have about the substantive debt needs to be taken up with the New Zealand agency.  In 2008 I did this.  I put in an application for a departure with the New Zealand agency. 

    28.  Annexed hereto and marked WH3 is a true copy of the decision, dated 27 March 2008, (the decision) the New Zealand agency made as regards to that.  It will be seen from page 4 of the decision that it is common ground I made direct payments of around $19,000 to the respondent for X’s expenses. If this case runs to trial I shall seek to tender into evidence copies of my own banking documents which substantiate the figure I actually paid was possibly as high as $27,000 over the four years since separation with an additional $18,000 lump sum payment since (on top of the monthly child support).  Whether the amount paid though was $19,000, $27,000 or $45,000, it was significant. 

    Although the New Zealand agency accepted payments of these kinds were made (it called them “undoubtedly commendable”), it refused to give me credit for those payments because such payments were used for X’s “everyday expenses” (see again at page 4 of the decision).  Regardless of how New Zealand law may categorise these payments which I made, I say that for current (enforcement) purposes Australian law should recognise the funds I paid to the respondent for X’s benefit (either $19,000, $27,000 or $45,000) should properly be seen as “child support” in this country.  As such, I say I should be given relief in Australia to the effect that I do not have to pay those monies again.  This is the basis upon which I have sought order 4 in my Form 1 application…”

16. The affidavit relevantly continued by deposing that the applicant did not seek repayment of overpaid moneys and that he could not afford to pay the sum that the agency says he owed.  The affidavit noted that the applicant would continue to pay $584 a month on an interim basis.

17. I note from an annexure H3 that the legislative scheme in New Zealand for the retrospective alteration of child support orders seems somewhat different to that which obtains in this country.

18. The applicant’s Financial Statement showed a weekly income of $1,450 and personal expenditure of $1,230.  The applicant has modest superannuation and very limited property and not insignificant liability.  The liabilities referred to in the Financial Statement do not include the arrears of Child Support.

19. I note that affidavits of service both of the first respondent and the Child Support Registrar (“the Registrar”) are executed and it would appear that the respondent was served by email.  I note that on 19 January 2012 his Honour Magistrate Wilson made orders which inter alia stayed any obligation on the part of the applicant to pay arrears of Child Support.

20. The matter was then transferred to the Federal Circuit Court and on 8 November 2012 came before Hughes FM, as her Honour then was.  The orders made reveal that the proceeding was adjourned till 31 January 2013 because the applicant wanted to obtain further legal advice and assistance.

21. On 31 January 2013 the Court as presently constituted made an order permanently staying the enforcement of the Child Support arrears, noting that the applicant was required to pay on an ongoing basis as assessed.  Liberty was reserved to the first respondent to apply because she was not at Court.

22. The applicant changed solicitors and on 14 May 2013 filed an Application in a Case seeking that the order made in January 2013 be rectified so as to comply with regulations 36, 38 and 38A of the Family Law Regulations 1984 (“the Family Law Regulations”).

23. That Application was supported by an affidavit sworn by the applicant’s new solicitor.  At paragraph 3, Mr McBain deposed:

    “3.    Shortly after 5 April 2013, my client, MR HIGGINS, received a letter from Mr D, General Manager, (omitted) Centres advising that the Order made by Federal Magistrate Burchardt was of no effect on the basis that it does not state that it is a Provisional Order and further because the Order has not been confirmed by a Court in New Zealand. 

    4. This was in breach of Regulation 38 and 38A of the Family Law Regulations 1984.”

24. The affidavit continued (at paragraph 6):

    “6.  On 30 April 2013 Mr D forwarded a further letter to my client advising him that his wages had been garnished in payment of the sum of $76,625.75.”

    The affidavit sought rectification of the order as a provisional order in order to avoid a miscarriage of justice.  On 21 May 2013 and in an endeavour to make the orders previously made effective, I acceded to the applicant's application.  It should be noted that both in the orders originally made in January, and the orders made in May, I acceded to the position expressly sought by the solicitor for the applicant.

25. On 11 August 2014, the applicant filed another Application in a Case seeking that the Final Order made 31 January 2013 be reinstated, that the garnishee order made in favour of the Victorian Child Support Agency in the sum of $76,625.75 be revoked, and that the Registrar be joined as a party.  The Application further sought the return of tax refunds the agency had collected and costs.

26. Mr McBain's affidavit in support filed on 11 August 2014 set out the difficulties that had emerged from alleged incorrect advice that the first order should be made a provisional order rather than a final order, and the complications of dealing with the relevant authorities in New Zealand.  But the rectification of the orders made was sought. Notice of the proceedings was given to the Registrar, who appeared through counsel on the 29 September 2014 and the transcript is on the Court file.  The transcript confirms that the orders that I earlier made that there be nil arrears, followed a hearing where the applicant gave evidence (which evidence is not on the Court file) and had produced documents which I had read.  It was the applicant's position that the order I first made was in fact sufficient.

27. The Registrar submitted that it would be very difficult to resolve the matter.  The transcript speaks for itself.  What will emerge from the transcript is that I was of the clear view that the applicant, so to speak, had all the merit and that I was seeking to find a practical way of giving effect to that conclusion.

28. In the end I acceded to the submissions of the applicant and made the orders that the applicant sought.  I made it clear that I was going to accede to the orders sought, which were submitted to be within power, and leave it to an appellate process to correct if necessary.

29. Put shortly, I was then of the view that the applicant had made out his case on the facts.  Doubtless the transcript of the proceeding which led me to that point of view will be made available to the Appeal Court.  I was of the view that there was sufficient force in the submissions made by the applicant as to the utility and lawfulness of the orders that I was making, and I made them accordingly.

30. Any endeavour to expand these reasons for judgment beyond that admittedly somewhat short form expression runs every risk of creating reasons that were not in my mind at the time.  Self-evidently I will not do so.  I thought it was invidious that the applicant be the subject of garnisheeing in circumstances where I was quite satisfied he had no debt.  In the ultimate that was the reason for my decision. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  14 November 2014