Ibsen and Harrison Ibsen
[2012] FMCAfam 1037
•28 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBSEN & HARRISON IBSEN | [2012] FMCAfam 1037 |
| FAMILY LAW – Child Maintenance – Application by the father pursuant to r.36 of the Family Law Regulations to discharge an overseas maintenance order – mother contending that this court either lacks jurisdiction to hear the application or is a clearly inappropriate forum in which to determine the matter. |
| Family Law Act 1975, s.66S Family Law Regulations r.36 |
| Henry v Henry (1996) FLC 92-885 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| Applicant: | MR IBSEN |
| Respondent: | MS HARRISON IBSEN |
| File Number: | NCC 649 of 2011 |
| Judgment of: | Terry FM |
| Hearing date: | 13 April 2012 |
| Date of Last Submission: | 13 April 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 28 September 2012 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor Advocate for the Respondent: | Mr Fox |
| Solicitors for the Respondent: | Attwaters |
ORDERS
That the mother’s application for dismissal of the father’s amended initiating application filed on 1 June 2011 at a preliminary stage is dismissed.
That the matter is adjourned to 4.00pm on 4 October 2012 for further consideration.
IT IS NOTED that publication of this judgment under the pseudonym Ibsen & Harrison Ibsen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 649 of 2011
| MR IBSEN |
Applicant
And
| MS HARRISON IBSEN |
Respondent
REASONS FOR JUDGMENT
Introduction
In September 2008 the Division of Child Support in [W] USA requested the Child Support Agency in Australia to collect arrears of child maintenance and ongoing child maintenance from Mr Ibsen (‘the father”).
The father’s liability arose from orders made on 20 December 2001 by the Superior Court of [W] for [K] County USA.
The father considered that the amount claimed was excessive and he entered into protracted negotiations with the Child Support Agency. The mother eventually made some concessions which resulted in the arrears being reduced and the monthly amount of ongoing child support being reduced, but the father remained dissatisfied.
On 4 February 2011 the Child Support Agency sent the father a letter informing him that he owed $142,928.63 and that they intended to garnish his wages to recover it. He was informed that his employer would make the first deduction of $50.00 from his wages on 7 February 2011 and that a final payment of $28.23 would be deducted on 29 November 2065.
The father will turn 113 in 2065 and he must have been heartened to know that the Child Support Agency had such an optimistic view about his working future. He was obviously disheartened however by its refusal to reconsider its claims against him and on 14 March 2011 he filed an application in the Federal Magistrates Court at Newcastle.
Initially the father sought in effect a variation of the 2001 orders so that the child support payable from time to time was retrospectively adjusted to take account of the parties financial circumstances at various times. However on 1 June 2011 he filed an amended application in which he simply sought to have the 2001 orders discharged.
The mother was served with the father’s application and on 14 October 2011 she filed a response in which she sought the following order:
That the Amended Application filed 1 June 2011 be dismissed, including because the respondent does not admit the jurisdiction of the court.
The parties then asked for some time to have discussions but they did not reach any agreement.
The matter was listed before me on 13 April 2011 to consider the mother’s argument that the father’s application should be dismissed at a preliminary stage, either on the basis that this court did not have jurisdiction to hear and determine it or on the basis that this court was a clearly inappropriate forum in which to determine the dispute.
Documents relied on
The hearing on 13 April 2012 proceeded by way of submissions. Both parties filed written submissions and made some supplementary oral submissions.
The father relied on his Amended Initiating Application filed on 1 June 2011, his Affidavits filed on 14 March 2011 and 1 June 2011 and his Financial Statement filed on 23 May 2011.
The mother relied on her Response filed on 14 October 2011 and the affidavit of her solicitor Gary Fox filed on 14 October 2011.
Background
The father and mother commenced cohabitation in February 1986 and married [in] 1986. They have four children: [W], born [in] 1987 (25), [X] born [in] 1988 (23), [Y], born [in] 1993 (19) and [Z], born [in] 1996 (15).
The father gave the date of separation as “approximately mid-June 2001” and the mother did not dispute this. The 20 December 2001 orders record that the parties were divorced on 28 August 2001.
The parties were living in the United States when they separated, but how this came about and for how much of the marriage they lived there is not apparent in any of the documents filed in the current proceedings.
The children remained living with the mother after separation and on 20 December 2001 orders were made by consent by the Superior Court of [W] for [K] County concerning property, spousal maintenance and child support. The orders required the father to pay spousal maintenance for two years and also required him to pay the mother child support of USD$1,500.00 per month for the children.
The orders provided a mechanism for the child support to be adjusted periodically. Each parent was required to provide the other with taxation returns and other financial documents by May 1 each year, and the child support could then be adjusted in accordance with the [W] State Child Support Schedule then in effect. If the parties could not agree on a revised amount they could bring the matter back to court, but if neither party requested a review by June 1 in any year no review was to take place.
At or about the time the orders were made the father left the United States and commenced living in Australia, where he has remained ever since.
[X] came to Australia to live with the father in about 2004 when he was 16, and he has remained here. [W] now also lives in Australia. [Y] and [Z] remain living with the mother in the United States although only [Z] is still under 18.
Apart from a handful of occasions in the first year after separation the father never paid the full monthly amount of child support required by the orders, although he paid something most months until March 2006.
In 2008 at the request of the mother the Division of Child Support in [W] State requested the Child Support Agency in Australia to enforce the orders.
The father raised two concerns about the amount claimed from him.
One was that the orders on their face provided for him to pay $1,500.00 per month without apportioning an amount for each child, and it looked to him as if he had continued to be charged $1,500.00 per month even after [X] came to live with him and even after [W] and [X] turned 18.
The other was that he asserted that he had requested the mother on many occasions over the years to provide him with her taxation returns so that the rate of child support could be reviewed but that she had consistently refused to do so. He said that the mother had returned to work at some point after the orders were made and he claimed that his financial circumstances had declined, and it was his view that a proper examination of the financial documents and a re-calculation of the child support in accordance with them would lead to the conclusion that he had in fact overpaid his child support.
These matters must have been put to the mother because in July 2010 she requested the Division of Child Support in [W] to reduce the arrears by $46,125.00. This was based on a reduction of $375.00 per month (¼ of the total amount) in the child support amount payable for each of [W] and [X] once they turned 18 and a further reduction (¼ of the total amount otherwise payable for that period) to take account of the fact that [X] had lived with the father for eighteen months prior to him turning 18.
The mother also requested the Division of Child Support in [W] to reduce the monthly amount payable to $900.00 per month effective from 1 September 2010. This is more than ½ of the previous total of $1,500.00 per month and represented a payment of $450.00 each for [Y] and [Z] who were both still then under 18.
The issue of whether there should be a retrospective reconsideration of the rate of child support based on the parties comparative financial circumstances after 2001 was not addressed by the mother’s response.
The [W] Division of Child Support advised the Child Support Agency to give effect to what they described as voluntary reductions by the mother and requested it to collect arrears of $142,928.63 and a monthly amount of $450.00 per child. The Child Support Agency then sent the father the letter concerning garnishing his wages, and the father commenced these proceedings.
The jurisdiction argument
The mother’s first argument was that this court argued that this court did not have the jurisdiction to hear and determine the dispute between the parties but this is clearly wrong.
The father’s application is legitimately brought pursuant to R.36 of the Family Law Regulations which provides as follows:
Party in Australia may apply to vary etc overseas maintenance order, agreement or liability
(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.
(2) Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.
(3) An application may be made by:
(a) the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or
(b) the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or
(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4) The law to be applied to determination of an application is the law in force in Australia under the Act.
The 2001 order is current as one of the parties children is still under 18, and law to be applied in determining the father’s application is contained in the Family Law Act and the section of the Act which applies to this matter is s.66S which provides as follows:
66S [Modification of child maintenance orders]
(1) This section applies if:
(a) there is in force an order (the first order ), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):
(i) made by a court; or
(ii) registered in a court; and
(b) a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.
(1A) With the consent of all the parties to the first order, the court may, subject to section 111AA, make an order:
(a) discharging the first order; or
(b) suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c) if the operation of the order has been suspended under paragraph (b) or (2)(b)--reviving its operation wholly or in part; or
(d) varying the order:
(i) so as to increase or decrease any amount ordered to be paid by the order; or
(ii) in any other way.
(1B)However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child's parents to maintain the child.
Note: For the duty of a parent to maintain a child, see section 66C.
(2) In any other case, the court may, by order:
(a) discharge the first order if there is just cause for so doing; or
(b) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c) if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or
(d) subject to subsection (3), vary the order:
(i) so as to increase or decrease any amount ordered to be paid by the order; or
(ii) in any other way.
(3) 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:
(i) the circumstances of the child have changed so as to justify the variation; or
(ii) the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or
(iii) the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or
(iv) in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such 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 (this is expanded on in subsections (4) and (5)); or
(c) if the order was made by consent--that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); 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.
(4)In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5)The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or last varied having regard to a change in the cost of living.
(6)In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made.
(7)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.
(8)If an order (the subsequent order ) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.
(9)If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.
(10) For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).
(11) The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.
The clearly inappropriate forum argument
The mother’s second argument was that this court was a clearly inappropriate forum in which to deal with the dispute and that I should therefore in the exercise of my discretion dismiss the father’s application and effectively compel him to commence proceedings in the Superior Court of [W].
The mother’s solicitor referred me to Voth v Manildra Flour Mills Pty Ltd. In that case the High Court had before it an appeal by an accountant who was resident in Missouri USA against the refusal by the NSW Court of Appeal to stay proceedings brought against him in NSW by companies who were incorporated in and resident in NSW. The accountant argued that a court in Missouri was a more appropriate forum in which to hear the dispute than the Supreme Court of NSW.
Mason CJ, Deane, Dawson & Gaudron JJ said that the test to be applied was whether the court in NSW was a clearly inappropriate forum, and not whether the court in Missouri was a more appropriate forum. They said that:
The question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of proceedings in the selected forum rather than on the need to make a comparative judgment between forums.[1]
[1] Voth v Manilda Flour Mills Pty Ltd [1990] HCA 55 at paragraph 36
In that case after setting out the factors in favour of a stay and the factors against the High Court determined that the Supreme Court of NSW was a clearly inappropriate forum and they granted the stay, effectively compelling the companies to commence proceedings in Missouri if they wanted to commence proceedings at all.
The mother’s solicitor also referred me to Henry v Henry[2] a High Court decision in a family law matter. The issue in that case was whether proceedings commenced in Australia should be stayed on the basis that the court in Australia was a clearly inappropriate forum. The High Court said as follows:
Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.
Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.[2]Henry v Henry[1996] 185 CLR 571 paragraphs 35 & 40
The mother’s solicitor argued that applying the principals set out in those cases to the facts in the current case established that the Federal Magistrates Court in Australia was a clearly inappropriate forum in which determine the child support dispute.
He argued that the matter had a natural connection with the USA. The mother lived and had always lived in the USA and the youngest child, for whom she was still entitled to receive child support, also still lived there. The Superior Court of [W] had dealt with the child support dispute between the parties before and was the obvious court to deal with it again. Implicit in these submissions was that the mother was entitled to have her child support assessed in accordance with the law of the place in which she lived.
The mother’s counsel submitted that it would very likely be less expensive for the mother if proceedings were conducted in the USA, although the mother did not provide any evidence on this point.
He submitted that the father had participated in proceedings in the USA before and would not find proceedings there daunting or intimidating.
Finally the mother’s solicitor submitted that there was a juridical advantage to the mother of which she should not be deprived in the matter being dealt with in the court in [W].
The 2001 orders made provision for the rate of child support to be reviewed each year provided that certain steps were taken and further provided that
if neither party requests a review in writing by June 1 of that year no review shall take place.
The submissions made on the mother’s behalf suggest that she intends if she can to rely on this provision to prevent a reconsideration of the rate of child support for any year prior to 2012. In his case outline the mother’s solicitor submitted that this provision in the order amounted to:
a foreign lex causae or in effect a local law such that it would likely be applied against the applicant and in favour of the respondent if issues were determined in [W], and that is a basis on which this court would find ‘oppressive’ and/or ‘vexatious’ within the relevant meaning, and so stay or dismiss the proceedings.(original emphasis)
The strongest argument on the mother’s side is the natural connection the child support proceedings have with the USA, but there are two particular matters which to my mind establish that the advantages of the matter proceeding in Australia outweigh any disadvantages.
First, any order made will have to be enforced in Australia, and an order made by the Australian court in respect of the child support issue will be final, as the USA in not a country in respect of which Australia can only make provisional orders varying or discharging overseas child maintenance orders.
The Australian court is best placed to finally resolve the controversy because its orders will be binding in Australia and Australia is the place in which the orders will need to be enforced. If further orders are made in the USA and the orders are again transmitted to Australia for enforcement then the father could again apply under R.36 to vary or discharge those orders.
Second, the mother made it clear that if the matter was heard in [W] she intended if she could to rely on provisions in the 2001 order to prevent the father obtaining a reconsideration of the child support for any year prior to 2012.
It would be unjust to deny the father an opportunity to argue that the rate of child support for earlier years should be varied in circumstances where there is some reason to believe that the mother was unco-operative in the past in providing taxation returns to allow a yearly review to take place, and I say this because the mother’s solicitor did not dispute in his affidavit the father’s claim that he had requested these documents in vain.
It would also be unjust to shut the father out of a say about the rate of child support for all years prior to 2012 in circumstances where the mother has apparently arbitrarily taken it upon herself to increase the rate of child support for the children then under 18 from 2010 onwards and has requested the Child Support Agency to enforce this decision.[3]
[3] Respondents written submissions paragraph 3
In Voth & Manildra Flour Mills the accountant from Missouri who was ultimately successful in obtaining a stay of the proceedings commenced against him in NSW offered an undertaking that he would not seek to rely on a limitation bar which might have been open to him in proceedings in the United States.
Whether the father will ultimately obtain any significant variation of the 2001 orders cannot be known at this stage, but based on the evidence both parties have produced about their income for the years 2002 to the current time the father does on the face of it appear to have an arguable claim for some relief in the form of a re-consideration of the yearly rate of child support payable by him both retrospectively and for the future.
The mother bears the onus of establishing her case for dismissal of the father’s application and I do not consider that she has discharged that onus and established that the disadvantages of the proceedings continuing here outweigh the advantages, or that it would be seriously and unfairly burdensome, prejudicial or damaging to her or vexatious in the productive of serious and unjustified trouble and harassment for her if the proceedings are allowed to continue here.
The mother will not be able to rely here on a complete bar to the court reconsidering the child support rate historically, but this court has a discretion as to whether to vary or discharge a child maintenance order and the mother will not be prevented from raising arguments in this court based on laches for example.
The mother is a citizen of an English speaking country and there was nothing to suggest that she would be unable to participate on an equal footing with the father if proceedings took place in Australia. Given the nature of the proceedings it is likely that she will be able to successfully apply to give evidence at a hearing by way of video link or even by telephone.
Finally it is apparent from a consideration of the contents of the 2001 USA order and the provisions of the Family Law Act that the law in both places is based on the premise that each of the child’s parents should make a contribution to their support in accordance with the child’s needs and the parents’ means.
I therefore intend to dismiss the mother’s application and to list the matter for mention so that further directions can be made concerning the hearing of the father’s substantive application.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 28 September 2012