Kelly and Marlowe and Anor (SSAT Appeal)
[2011] FMCAfam 1162
•3 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KELLY & MARLOWE & ANOR (SSAT APPEAL) | [2011] FMCAfam 1162 |
| CHILD SUPPORT – Appeal from SSAT – interpretation of orders – use of extrinsic evidence – phrase “for the foreseeable future”. |
| Child Support (Registration and Collection) Act 1988, ss.3(1), 4, 18A(1), 25, 110B Administrative Appeals Tribunal Act 1975, s.44 |
| Servos v Repatriation Commission (1995) 56 FCR 377 John Tarrant “Construing Undertakings and Court Orders” (2008) 82 ALJ 82 |
| Applicant: | MS KELLY |
| First Respondent: | MR MARLOWE |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | HBC 125 of 2011 |
| Judgment of: | Baker FM |
| Hearing date: | 5 August 2011 |
| Date of Last Submission: | 5 August 2011 |
| Delivered at: | Hobart |
| Delivered on: | 3 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Finch |
| Solicitors for the Applicant: | Hobart Community Legal Service |
| Counsel for the first Respondent: | [Mr Marlowe] in person by way of telephone link |
| Counsel for the second Respondent: | Ms Bell |
ORDERS
The Amended Notice of Appeal filed on 8 July 2011 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kelly & Marlowe & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 125 of 2011
| MS KELLY |
Applicant
And
| MR MARLOWE |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal pursuant to s.110B of the Child Support (Registration and Collection) Act 1988 (“the Act”) from a decision of the Social Security Appeals Tribunal (“SSAT”) made on 13 January 2011. The SSAT affirmed a decision by the Child Support Registrar (“CSR”) not to register as a registrable maintenance liability the payment of school fees by the first respondent pursuant to an international court order.
Background facts
The applicant and the first respondent are the separated parents of the children [X] born [in] 1995, [Y] born [in] 1986 and [Z] born [in] 1999 (“the children”).
On 19 April 2008 the applicant and the children emigrated from the United Kingdom (“UK”) to Australia. The children were enrolled in private schools, [S] School and [H] School. The first respondent paid 75% of the children’s school fees from 16 June 2008 until the end of 2009. The first respondent lives in the United Kingdom.
A consent order was made on 8 July 2002 in the UK. Paragraph 3 of the order provided that:
3. As and from the date of this Order the Respondent do pay or cause to be paid to the Petitioner for the benefit of the children of the family namely [X] (DOB [1995]), [Y] (DOB [1996]), and [Z] (DOB [1999]) until they attain the age of 17 years or cease full-time secondary education if later or further Order periodical payments of an amount equivalent to the school fees but not the extras in the school bills at the school the said children shall from time to time attend. And it is further directed that the school fees shall be paid to the Bursar as agent for the Petitioner and the receipt of that payee shall be a sufficient discharge.
The consent order was varied on 13 July 2006 by the [P] County Court as follows:
(1) The order made by consent and dated 3 July 2002 is varied as follows:-
In respect of paragraph 3, and on the basis that the Petitioner Mother will (a) maintain the children’s attendance at [P] School for the foreseeable future, and (b) will make up the balance of the school fees, the order is varied so that the Respondent father shall from the commencement of the Autumn school term 2006 contribute 75% of the school fees, but not the extras. That paragraph of the order is otherwise not varied so that the mechanics of the payments remain unchanged.
(2) No order as to costs.
In May 2008 the Child Support Agency (“CSA”) accepted an application from the applicant for the administrative assessment of child support payable by the respondent.
On 11 November 2009 the applicant sought to have the UK court orders registered with the CSA, and to have outstanding amounts payable under the order collected.
On 30 November 2009 the CSA informed the applicant that the court order relating to the payment of school fees was not registrable, and that the spouse maintenance order was a registrable liability.
On 23 February 2010 the solicitor for the applicant wrote to the Agency, requesting further consideration of the refusal to register the part of the court order relating to the school fees. On 13 April 2010 a request for an extension of time was made and the extension was granted to the applicant on 14 April 2010.
On 20 August 2010 the objection was disallowed. The Objection Officer explained that, because the order directed that the school fees were to be paid to the bursar of the school as an agent for the applicant rather than to the applicant directly, the order was not registrable.
On 21 September 2010 the applicant applied to the SSAT for a review of the decision to refuse to register the order as a maintenance liability. Evidence was given by both parties at the hearing before the SSAT. I have not been provided with a transcript of the hearing.
The issues identified for decision by the Tribunal were:
·Whether the UK order dated 8 July 2002 and varied on 13 July 2006 is an overseas maintenance liability; and if so,
·whether that liability should be entered on the Child Support register.
The Tribunal affirmed the decision of the Registrar.
At paragraph 26 the SSAT stated:
Since July 2002 there has been a court order in place addressing the payment of school fees for the children. Under that order [Mr Marlowe] was originally required to “pay an amount equivalent to the school fess but not the extras in the school bills at the school the children shall rime (sic) to time attend.” The order was not specific about what school the children were to attend for the order to apply. In 2006 the order was varied and now provides that [Mr Marlowe] is liable to pay 75% of the school fees “…on the basis that [Ms Kelly] maintains the children’s attendance at [P] School for the foreseeable future…” The Tribunal considered that the change in wording of the order was significant. Prior to 2006 it was more generally worded, but from 2006 linked [Mr Marlowe]’s liability to pay part of the school fees to the attendance of the children at a particular school.
At paragraph 27 the SSAT found:
Having considered the terms of the order, as amended in 2006, the Tribunal considered the wording of the UK court order and concluded that its meaning is clear – that is [Mr Marlowe] is only liable to pay 75% of the children’s school fees while they attend [P] School. It is not disputed that the children no longer attend [P] School and therefore the Tribunal determined that the UK court order as it relates to school fees does not give rise to a liability for [Mr Marlowe] to make payments for those fees. As a consequence, the Tribunal conclude that the UK court order, in so far as it related to school fees, is not an overseas maintenance liability as no ‘liability’ arises while the children are not attending [P] School.
The SSAT therefore found that there is no overseas maintenance liability while the children are not attending [P] School. It concluded that there is not a registrable overseas maintenance liability pursuant to s.18A of the Act and there is no registered maintenance liability able to be entered on the Register by virtue of s.25 of the Act. As there was no liability capable of being registered, any application for registration must be refused.
The applicant filed a Notice of Appeal on 17 February 2011 and an Amended Notice of Appeal on 8 July 2011.
The grounds of appeal are:
Ground of Appeal 1: That the SSAT erred in law in finding that the orders of the [P] County Court dated 8 July 2002 and varied on 13 July 2006 did not give rise to a liability for [the first respondent] to pay school fees for the children whilst they did not attend the [P] School.
Ground of Appeal 2: That the SSAT erred in law by failing to correctly interpret s.25 of [the Act] by concluding that the aforementioned United Kingdom court orders were not a registrable overseas maintenance liability.
Relevant statutory provisions
The Act makes provision for the collection of certain periodic maintenance payments, and for other purposes. The principal objects are set out in s.3(1). They are, to ensure:
(a) That children receive from their parents the financial support that the parents are liable to provide; and
(b) That periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis; and
(c) That Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
“Overseas maintenance liability” is defined in s.4 of the Act as a liability that arises under:
(a) a maintenance order made by a judicial authority of a reciprocating jurisdiction; or
(b) a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction; or
(c) a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction.
“Reciprocating jurisdiction” is defined in s.4 of the Acts as a foreign country; or part of a foreign country that is prescribed by the regulations to be a reciprocating jurisdiction. The UK is a reciprocating jurisdiction.
Section 4 of the Act provides that a “registrable overseas maintenance liability” means a registrable overseas maintenance liability mentioned in s.18A of the Act.
Section 18A(1) of the Act provides that:
A liability is a registrable overseas maintenance liability if it is:
(a) A liability of a parent or step-parent of a child to pay a periodic amount for the maintenance of a child; and
(b) An overseas maintenance liability.
Pursuant to s.110B of the Act, this is an appeal by the applicant on a question of law.
Submissions of the applicant
Counsel for the applicant submitted that:
·The varied order dated 13 July 2006 should be construed in conjunction with the consent order dated 8 July 2002.
·The consent order made on 8 July 2002 established a liability for the first respondent to pay the children’s school fees from the date of the order until the children attain the age of 17 years or cease full-time secondary education.
I note that the 2002 consent order established a liability for the first respondent to pay the school fees from the date of the order until the children attain the age of 17 years or cease full-time secondary education if later “or further Order” (my emphasis).
·Paragraph 1(a) of the 2006 order should be construed in the light of the intention of the parties for their children to be educated at a private school for their entire education.
·The proceedings leading to the making of the 2006 order were in respect of the first respondent’s financial incapacity to pay. The proceedings were unrelated to any particular private school. The first respondent consented to reducing his liability to pay private school fees from 100% of the school fees to 75%.
I note, however, that the 2006 order was not expressed to be a consent order. It was made after hearing evidence from the parties.
·The words in the 2006 order “…the Petitioner mother will (a) maintain the children at [P] School for the foreseeable future”, created a condition.
·That condition has been fulfilled, as the applicant did maintain the children at [P] School for the foreseeable future – the “foreseeable future” being from the date of the varied order until April 2008. Because the condition has been fulfilled, the first respondent is required to pay 75% of the school fees, regardless of which school the children attend.
·The first respondent’s payment of the school fees to Tasmanian private schools supported that argument.
·Paragraph 3 of the consent order made on 8 July 2002 and paragraph 1 of the order made on 13 July 2006 by the [P] County Court constitute a registrable maintenance liability and should be registered pursuant to s.25 of the Act.
Submissions of the first respondent
The first respondent sought an order that the appeal be dismissed.
He submitted that his liability to pay school fees was specifically subject to the children being “maintained at [P] School for the foreseeable future.” He submitted that his liability to pay the school fees should be construed in the context of the whole of the order made on 8 July 2002, and subsequently varied on 13 July 2006. He referred to paragraph 5 of the 8 July 2002 order which states that:
The sums referred to in paragraph 3 above, be reduced pro tanto by any sums payable as child support maintenance in respect of the children.
This consent order made 8 July 2002 did not provide for periodic child support and school fees to be concurrently payable.
Submissions of the second respondent
Counsel for the second respondent submitted that;
·Paragraph 3 of the consent orders would, on the face of it, be a registrable maintenance liability, and as such be registrable pursuant to s.25 of the Act.However, the order made on 13 July 2006 by the [P] County Court states that the liability that arises under the consent order is varied such that the liability continues “on the basis” that the “petitioner mother will maintain the children’s attendance at [P] School for the foreseeable future…”
·When the children are not attending the requisite school nominated under the orders, no liability arises and therefore there is no liability which is capable of being registered. There is no registrable maintenance liability to be entered on the register by virtue of s.25 of the Act.
·There is nothing ambiguous about the 2006 order. The words, “foreseeable future,” in the order enable parties to apply for a variation of the order and seek to have it registered. The current order does not create a liability and is not capable of registration.
Extrinsic evidence
Both parties participated in the hearing before the SSAT and gave evidence. The SSAT had before it the relevant records prepared by the Agency pursuant to s.95(3) of the Act and documents provided by both parties.
Counsel for the applicant submitted that the order made in 2006 is ambiguous and that extrinsic evidence should be admitted to assist an interpretation of the order. She submitted that leave should be granted to the applicant to rely upon her affidavits filed 8 July 2001 and 29 July 2011, which include evidence relating to the intention of the parties and the first respondent’s change of assessment application to the Registrar.
Counsel for the second respondent opposed the granting of leave. She submitted that the applicant’s affidavit material sought to raise additional evidentiary matters which were not before the Tribunal. She relied upon the authority of Servos v Repatriation Commission.[1]
[1] (1995) 56 FCR 377
The first respondent sought to rely on his affidavit filed 15 July 2011, which includes evidence about the intention of the parties and about events which occurred after the 2006 order was made.
In support of the applicant’s submission to rely on further evidence, Counsel relied upon the decision of Watanabe & Watanabe (SSAT Appeal).[2] In that decision, Slack FM discussed the use of extrinsic material in the interpretation of orders and referred to an article, “Construing Undertakings and Court Orders” by John Tarrant. [3]
[2] (2009) FMCAfam 671
[3] (2008) 82 ALJ 82
I have read the article. Mr Tarrant refers to two lines of authority on how courts interpret orders and undertakings. The first line of authority suggests that an ambiguity must first be identified in the order before resort is had to the judgment. The second line suggests that regard must always be had to the judgment when construing a court order, and it is not necessary to identify ambiguity. If there is an ambiguity that cannot be resolved by reference to by both the order and the judgment, it is appropriate to consider extrinsic evidence to resolve the ambiguity.[4] The learned author examined the relevant cases to show that the second line of authority has emerged as the preferred approach.[5] In some cases there will not be a judgment and the court will need to look to other material to construe the order. Such materials include affidavits and pleadings.
[4] Op Cit (2008) 82 ALJ 82 at 91
[5] See: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; and, Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1
The applicant sought leave to rely on further evidence of her affidavit filed 8 July 2011 to demonstrate that the first respondent sought a variation of the 2002 order because of his financial incapacity and change of circumstances. I note that this evidence was before the SSAT.[6]
[6] Reasons for Decision at paragraph 19
The applicant sought to rely on the written narrative statements of the parties made for the proceedings before the [P] County Court. The reasons for the judgment of the [P] County Court were not before the Tribunal, and they were not before me. It was not made clear to me if there had been a judgment. I consider that the varied order made in 2006 is clear and unambiguous. There is no need to consider the extrinsic material of the narrative statements.
The applicant sought leave to rely on her affidavit filed 29 July 2011 to demonstrate the intention of the parties during the marriage and since separation to educate the children privately. When construing consent orders, extrinsic evidence of the direct evidence of the parties’ intentions, or the intentions of their legal practitioners, is generally inadmissible.[7] In any event, I note that evidence was already before the SSAT that the first respondent wanted to pay for the children’s education.[8] The applicant also sought to refer to the decision of Senior Case Officer H dated 20 February 2009, which she annexed to the affidavit. This decision was referred to in an objection decision made by the first respondent to the decision, which was before the SSAT – see “C1”at pages 105-108
[7] I Limited & Chester and Ors (2010) FLC 93-456
[8] Reasons for Decision at paragraph 18
The applicant sought leave to rely on evidence that the children have been enrolled in [S] School and the [H] School, and that the first respondent paid 75% of the school fees for [S] School and the [H] School from 16 June 2006 until the end of 2009. Once again, this evidence was before the SSAT.[9]
[9] Reasons for Decision at paragraph 20
The applicant further sought leave to rely on evidence of the common intention of the parties after the variation order was made. I am not persuaded that a court is permitted to look to the behaviour of parties after an order is made in order to assist it in interpreting that order. The phrase, “for the foreseeable future”, was imposed by a judicial officer. It was not formulated by the parties, and any views held by the parties about that phrase are therefore irrelevant to an interpretation of those orders.
As I have indicated, I consider that the 2006 order is clear and unambiguous. I do not grant the applicant leave to rely on the above evidence. Accordingly, I do not grant leave for the applicant to rely upon the affidavit filed 29 July 2011, or upon her the affidavit filed 8 July 2011.
I likewise do not grant leave for the first respondent to rely upon his affidavit filed 15 July 2011.
Was there error on a question of law?
Paragraph 3 of the consent order made on 8 July 2002 provided for payment by the first respondent of the children’s school fees until they attain the age of 17 years or cease full-time secondary education if later or further order.
The further order made by the [P] County Court on 13 July 2006 varied paragraph 3 of the 2002 consent order. This variation was made after the first respondent sought a variation due to his financial incapacity to pay the [P] School fees.
The applicant submitted that, by the applicant maintaining the children’s attendance at [P] School for the foreseeable future, she has fulfilled a condition, which meant that the first respondent was required to contribute 75% of the school fees, at whatever school the children attend.
This interpretation would mean that after the applicant has maintained the children for a period of time at [P] School, she could remove them and enrol them in a more expensive school, with the first respondent being required to pay 75% of those fees. This interpretation would mean that the first respondent would be required to pay 75% of the fees at whatever school the children attend.
I consider that the SSAT was correct in its interpretation that the change in the wording of the order was significant. The words, “at the school the said children shall from time to time attend,” were included in the 2002 order. These words were not included in the 2006 order. The court specified the [P] School in the order. It was a condition for the payment of 75% of the fees by the first respondent that the children remain at that school for the foreseeable future.
In contrast, the varied order provided, “In respect of Paragraph 3 …that paragraph of the order is otherwise not varied so that the mechanics of the payments remain unchanged,” to make it clear the last sentence of paragraph 3 of the 2002 order was not varied, namely “And it is further directed that the school fees shall be paid to the Bursar as agent for the petitioner and the receipt of that payee shall be a sufficient discharge”.
The conditions for payment of 75% of the fees by the first respondent are that, (a) the children be maintained at [P] School for the foreseeable future and (b) the mother make up the balance of the fees.
The word “liability” is not defined in the Act. The SSAT had regard to rules of statutory interpretation and to the definition in the 5th Edition of the Macquarie Dictionary, in which it states a “liability” is “an obligation, especially for payment; debt or pecuniary obligations (opposed to asset).”
I consider that the reasoning of the SSAT was correct, namely that where the children are not attending the [P] School no liability arises. There is no liability which is capable of being registered. The SSAT correctly found that “there is no overseas maintenance liability in this case whilst the children are not attending [P] School.”
I am not satisfied that the SSAT made an error of law when it concluded that there is not a registrable overseas maintenance liability pursuant to s.18A of the Act and there is no registrable maintenance liability to be entered on the Register by virtue of s.25 of the Act.
The applicant has failed to establish any error of law and the appeal is dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Baker FM
Date: 3rd November 2011
5
2