Kendle and Mousley (Child support)

[2024] AATA 882

Kendle and Mousley (Child support) [2024] AATA 882 (19 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC026970

APPLICANT:  Mr Kendle

OTHER PARTIES:  Child Support Registrar

Ms Mousley

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  19 February 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – registrable maintenance liability - whether the overseas spousal maintenance liability should have been registered and enforced – liability properly registered and enforced - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This review concerns the registration and enforcement of an [Country 1] court order for the payment of spousal maintenance.

2. On 29 December 2022 the Child Support Registrar received an application from the High Commission of [Country 1] to register an order made on 20 July 2017 in the Family Court, , [Country 1].[1] The order provides for Mr Kendle to pay spousal maintenance of [Country 1 currency] 25,000 per month from 10 October 2014 until the solemnisation of the second marriage of Ms Mousley.[2]

   [1] At folios 35 to 38

   [2] At folio 46

3. On 30 March 2023 Services Australia – Child Support (Child Support) registered the spousal maintenance order, determining that Mr Kendle’s monthly liability was $446.75 AUD and that he also owed [Country 1 currency]  2,464,784,39 ($44,045.69 AUD) in arrears for the period 10 October 2014 to 9 August 2021.[3] 

   [3] At folios 144 to 145

4. Mr Kendle objected to that decision in a timely manner and on 10 October 2023 a Child Support objections officer disallowed his objection.

5. On 27 October 2023 Mr Kendle requested a review of the decision by application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

6. The matter was heard on 14 February 2024. Mr Kendle appeared by MS Teams video. The Child Support Registrar did not elect to appear. The Tribunal attempted to contact Ms Mousley on her nominated telephone number on numerous occasions during the first 15 minutes of the hearing, with no success. It was noted that there was no record of Ms Mousley contacting the Tribunal at any time prior to hearing. After satisfying itself that Ms Mousley did not make herself available for the hearing the Tribunal determined to proceed in her absence. The Tribunal had before it evidence provided by Child Support (folios 1 to 263) and Mr Kendle’s additional documents (marked folios A1 to A43).

7. The Tribunal reached its decision on 19 February 2024.

ISSUES

1. The Tribunal must decide whether or not the order for spousal maintenance (the order) made on 20 July 2017 by the Family Court, , , [Country 1], should be registered and enforced.

2. The relevant law is contained in the Child Support (Registration & Collection) Act 1988 (the Act) and the Child Support (Registration and Collection) Regulations 2018 (the Regulations). 

10.  Section 25 of the Act states that an application may be made to the Child Support Registrar to register a registrable overseas maintenance liability. Such an application may be made by an overseas authority or directly to the Child Support Registrar by the payee.  Section 10 of the Regulations states that a reciprocating jurisdiction includes each country listed in Schedule 2 to the Regulations.

11.  A registrable maintenance liability (as defined in subsection 4(1) of the Act) includes a liability under section 18A of the Act. Subsection 18A(2) states that a liability is a registrable overseas maintenance liability if it is a liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage. Subsection 18A(4) of the Act permits the registration of an amount that was in arrears under such a liability.

12.  Subsection 25(2A) of the Act provides that if one of the parties is a resident of a reciprocating jurisdiction, the Registrar has 90 days to register the liability. Section 26 states that the daily rate payable in relation to the periodic amount, as well as a statement about whether or not employer withholding applies and any other such matters considered necessary or desirable are to be included in the Child Support Register.

13.  Section 30 of the Act states that once registered, a liability under the maintenance order becomes a debt to the Commonwealth. Child Support has responsibility for the recovery of those debts. Paragraph 28(1)(d) of the Act provides that a liability registered under subsection 18A(2) of the Act becomes enforceable from the date on which the application to register the liability is received.

CONSIDERATION

14.  It is not in dispute that Mr Kendle married a Ms [A] in [Country 1] on [date] November 2003.[4] They were divorced in Australia on [date] January 2011, upon Mr Kendle’s application.[5] Mr Kendle is a resident of Australia and Ms [A] resides in [Country 1].[6] The Tribunal finds accordingly.

[4] At folio 58

[5] At folios 130 to 131

[6] At folio 128 Mr Kendle submits that Ms [A]is a registered [Occupation 1] in India

15.  The Tribunal finds that an order was made for spousal maintenance (the order) [in] the District Court in [Country 1], on 20 July 2017 which requires Mr Kendle to pay [Country 1 currency] 25,000 per month from 10 October 2014.[7] The Tribunal notes that an ex-parte order was issued on 4 October 2016.[8] Therefore, the Tribunal accepts Mr Kendle’s submissions that he was not aware of the order made on 20 July 2017 until contacted by Child Support by letter dated 30 January 2023.[9]

[7] At folios 40 and 46

[8] At folio 40

[9] At folio 120

16.  On 20 December 2022 the High Commission of [Country 1] sought the registration and enforcement of the order[10] and also confirmed that the order continues to be effective and enforceable.[11] As outlined above, the Act requires the Child Support Registrar to register overseas maintenance liabilities arising in reciprocating jurisdictions outlined in Schedule 2 to the Act. [Country 1] is a reciprocating jurisdiction outlined in this Schedule.

[10] At folio 35

[11] At folio 37

17.  Upon being advised of the application to register the spousal maintenance order, Mr Kendle wrote to Child Support on 10 February 2023, relevantly stating:[12]

…

On the face value, it appears as though Ms Mousley obtained the court order by deception /dishonesty or fraud without providing all the necessary facts and documents to the court including the divorce order and property settlement documents and documents showing that she is a registered [occupation] ([Occupation 1]) in [Country 1].

It was all over for me after the divorce in 2010 as I had no children from the marriage. It has been nearly 13 years since I got divorced and I don't remember much. I'm old and I'm suffering from many medical problems.

I'll appreciate it if you ignore her application based on the [Country 1] Court order which she apparently obtained by dishonesty/fraud or deception and I know nothing about the order to date.

More so, I'm not sure of any Australian law that allows spouse maintenance after more than 10 years of the divorce and the property settlement in Australia.

[12] At folio 128

18.  In a letter dated 13 March 2023[13] Mr Kendle acknowledged that he and “Ms Mousley” were now divorced and submitted that in his view, this was the end of the matter. He provided various documents along with his letter, including correspondence from Ms [A]’s solicitor[14] and an apprehended violence order dated 27 July 2009.[15]

[13] At folios 137 to 138

[14] At folio 141

[15] At folios 139 to 140

19.  On 16 April 2023 Mr Kendle wrote to Child Support and asserted that the spousal maintenance order was invalid as the [Country 1] court had no jurisdiction to make a spousal maintenance order, as the divorce took place in Australia.[16] In part, Mr Kendle relied on Note 1 to the Certificate of Divorce[17] which requires a party to apply to:

If a party to the marriage proposes to make an application to a court exercising jurisdiction under the Family Law Act 1975 as to property or as to the maintenance of that party, such an application must be made within 12 months from the date upon which this divorce order takes effect. After that time such an application cannot be made without first obtaining the leave of the court to do so.

[16] At folios 151 to 155

[17] At folio 157

20.  On 5 May 2023, in a contact with a Child Support Officer, it is recorded that Mr Kendle confirmed that he and  “Ms Mousley” were married in [Country 1] and divorced in Australia.[18] In a contact dated 2 June 2023 Mr Kendle claimed to have never been married to the woman identified in the order and that he was a victim of identity theft by “scammers”.[19] He went on to state that the address listed in the order does not exist. The contact goes on to record Mr Kendle advising:[20]

Mr Kendle explained he was registered by his father’s name in school and he has provided a copy of this documentation as the name on the court orders is different to his actual name. Mr Kendle stated he was never married to this woman, and doesn’t know who her father is as he would know this detail if he was married to her.

[18] At folio 189

[19] At folio 201

[20] At folio 202

21.  In a letter dated 24 May 2023 Mr Kendle stated that he had initially received the court order and notes that it is in the name of “Ms Mousley”, daughter of [Mr B]. He stated that he has never met or married “Ms Mousley” or met her father. He went on to state that his former wife is [Ms A], whereas the court order only refers to “first name”, who he claims is “the other identity”.[21] He went on to state that his father’s details as outlined in the first page of the order are incorrect, as is the spelling of his father’s village. He concludes from this that he is not the respondent identified in the order. Furthermore, he states that the order states that he is an [Country 1] resident and citizen, which is not correct.

[21] At folio 203

22.  Mr Kendle’s evidence to the Tribunal can be summarised as follows. He is the victim of a sophisticated fraud. Child Support have assisted in perpetrating the fraud, causing him emotional and financial distress by failing to undertake necessary identity checks that he has consistently requested. Mr Kendle confirmed that he has not taken any steps to challenge the basis of the order in [Country 1]; he cannot afford to do so, asking who would pay his bills whilst he travels to [Country 1] to commence such an action. As to the letter sent to the High Commission of [Country 1] by Mr [C], lawyer,[22] he believes that a member of his family contacted this lawyer to advocate on his behalf, but denied that he has ever engaged a lawyer to challenge the order. His family members simply provided him a copy of the letter and he cannot comment further.

[22] At folios 223 to 224

23.  Mr Kendle stated that he has never met the applicant of the spousal maintenance petition and certainly was never married to that person. He has requested that Child Support provide the passport of the person referred to in the order. Whilst he concedes that the petitioner has the same first name as his former wife, he alleges that as the surname of the petitioner  - Mousley[23] - is different to his former wife’s name – [Ms A] - as listed on the marriage certificate[24], and is consistent with her surname noted on the divorce affidavit[25] and the divorce order.[26] He is adamant that the petitioner and his former wife are not the same person. He states that without the provision of proof of identity of the petitioner, it is unconscionable that the order be registered. Moreover, the court order refers to the petitioner as a housewife, when his former wife is a [Occupation 1]. Mr Kendle stated that he was unable to confirm whether the date of birth of Ms Mousley, as set down by the High Commission,[27] was correct. He can only recall that she was about 12 years his junior.  

[23] At folio 47

[24] At folio 58

[25] At folios 178 and 179

[26] At folios 156 to 159

[27] At folio 36

24.  Mr Kendle outlined various other discrepancies statement of facts outlined in the order. He pointed out that the ceremony was said to have taken place at [a city],[28] whereas the marriage certificate correctly states that it took place in [a city].[29] He went on to state that the marriage certificate is “suspicious”, as it is not court certified. Later in the hearing Mr Kendle confirmed that he was given a copy of the same certificate when the divorce took place but maintained that the certificate in evidence was suspicious as it was not court certified. Mr Kendle also stressed that the documents apparently provided by his former wife are not court certified either, instead a lawyer simply endorsed them. He invited the Tribunal to doubt their veracity on this basis.[30]. Mr Kendle also pointed out that the marriage certificate lists his father as [name] and his father-in-law as [name][31] whereas the order lists his father as [different name] and the father of the petitioner as [Mr B].[32] He submits that this proves that it is a case of mistaken identity. He also invited the Tribunal to consider the differences in the signature of his former wife on the marriage certificate with that on her affidavit to the Family Court of Western Australia[33] and that of the undertaking to provide the order.[34]

[28] At folio 41

[29] At folio 58

[30] At folios 79 to 91

[31] At folio 58

[32] At folio 40

[33] At folio 180 and

[34] At folio 59

25.  Mr Kendle also stated that he has never held an [Country 1] passport numbers [number] as outlined in the application for registration and enforcement of the orders.[35] At hearing he confirmed that his Australian passport number was in fact [the same number], though he did not accept that this may be a mere error on the part of High Commission in stating this was his [Country 1], rather than Australian, passport number.

[35] At folio 37

26.  Mr Kendle states that the order states that his address is [address].[36] In support he provided an electricity account for the period 9 April to 9 June 2016 which lists the supply address as [address]. Mr Kendle maintained that this too supports his contention that it is a case of mistaken identity.

[36] At folio 40, noting that the Tribunal does not have the benefit of the unredacted order

27.  Mr Kendle also asserts that the court order is not enforceable or current as it predates the reciprocal arrangements between Australia and [Country 1] by one year.[37]

[37] At folio A28

28.  The Tribunal addressed each of Mr Kendle’s contentions in turn.

The order is not enforceable in Australia

29.  Mr Kendle submits that the documents received from the High Commission and the Central Authority do not state that the order is current and enforceable.[38] Further, Mr Kendle asserts that the order is not enforceable as it predates the Regulations, which were made on 15 March 2018.[39]

[38] At folio A14

[39] At folios A14 and A20

30.  The Tribunal finds that it is incorrect to state that [Country 1] was only a prescribed reciprocating jurisdiction from 2018 and not before. The Child Support (Registration & Collection) Regulations 1988, which immediately preceded the current Regulations, also listed [Country 1] as a reciprocating jurisdiction in the period prior to and upon the making of the order.

31.  The Tribunal also finds that [name], Under Secretary to the Government of [Country 1], declared on 25 November 2022 that the order “continues to be effective and enforceable”.[40] Without any evidence to contradict this declaration, the Tribunal finds accordingly.

Mr Kendle had no knowledge of the order made on 20 July 2017

[40] At folio 37

32.  It is clear that the spousal maintenance proceedings occurred in Mr Kendle’s absence.[41] In the reasons for decision it was noted that Mr Kendle “failed to appear before the court in person or through any attorney”.[42] The Tribunal accepts that Mr Kendle was not aware of Ms Mousley’s application for a spousal maintenance order and its grant.

[41] At folio 40

[42] At folio 44

33.  Whilst the Tribunal accepts that Mr Kendle may not have been aware of the proceedings or the order, this does not mean that the Registrar may refuse to register or enforce it. Certainly, there is no provision in the Act or Regulations that would permit the Registrar to refuse to register a maintenance liability on this basis.  

Child Support has not required the petitioner of the order to provide proof of identity

34.  In his written submissions and his testimony to the Tribunal Mr Kendle insists that Child Support has failed to undertake due diligence by not confirming the identity of the petitioner of the order and, in particular, to confirm that the petitioner is his former wife.

35.  The Tribunal finds that there is no requirement outlined in the Act or Regulations requiring Child Support to confirm the identity of the person located in the reciprocating jurisdiction. The Act and Regulations simply states that the Registrar must be satisfied that the registrable overseas maintenance liability is a liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage and the person is a resident of the reciprocating jurisdiction.

36.  On balance, the Tribunal is satisfied that the petitioner is Mr Kendle’s former wife. Whilst there are some discrepancies in the spelling of Ms Mousley’s name and that of Mr Kendle’s father and former father-in-law as well as location of the wedding ceremony, the Tribunal is not persuaded that these establish that the petitioner is a person unknown to Mr Kendle. In fact, Mr Kendle’s initial submissions to Child Support accepted that this was the case and this remained his view for at least six months after being advised of the order by Child Support. It was only in May 2023 that he first submitted that that the petitioner and his former wife were not the same person.

37.  The Tribunal is satisfied that Ms Mousley is a resident of [Country 1]. Such confirmation was provided in the correspondence received from the High Commission of [Country 1].[43] In his own submissions Mr Kendle has also asserted that his former wife is a resident of [Country 1].

Mr Kendle is not the respondent listed in the order

[43] At folio 36

38.  Mr Kendle submits that he is not the same Mr Kendle against whom the order was made. He bases this largely on the discrepancy between his father’s name as listed on the order, which differs to his father’s name as outlined on the marriage certificate, which he states is correct.

39.  The Tribunal notes that the request for registration set down the sources of identification relied upon, including a copy of Mr Kendle’s Australian passport,[44] his Australian citizenship certificate,[45] his Medicare card,[46] and his business card.[47] At hearing Mr Kendle confirmed that the copy of the Australian passport was a true copy of his own passport. The Tribunal accepts that Child Support’s Policy and Fraud Division also undertook its own investigations and confirmed that the order was genuine[48] and undertook a search of the Australian Taxation Office database, confirming that Mr Kendle is the only person in Australia who shares his name and date of birth.[49]

[44] At folio 51

[45] At folio 52

[46] At folio 54

[47] At folio 55

[48] At folio 208

[49] At folio 209

40.  The Tribunal concludes on the basis of the identification documents provided by the High Commission of [Country 1] and the searches undertaken by Child Support that the Mr Kendle referred to in the order is the same Mr Kendle against whom Child Support has enforced the maintenance order.

The order was secured by deception or fraud

41.  Mr Kendle alleges that the order was secured by deception and/or fraud. In particular, he states that Ms Mousley did not provide a copy to the Court of the divorce order.[50] This may well be the case, as in the reasons for decision Magistrate Kendle refers to Ms Mousley as Mr Kendle’s “legally wedded wife”[51] and “it is moral and legal obligation of respondent to look after and maintain his wife”.[52] However, the Tribunal does note that the Court refers to section 125 of the Code of Criminal Procedure 1973[53] which stated that:  

‘Wife’ includes a woman who is legally married to her husband or who has been divorced by or has been divorced from her husband and has not remarried.[54] 

The Tribunal is not persuaded that the reference to the petitioner as Mr Kendle’s wife establishes that the order was secured by deception or fraud.

[50] At folio 128

[51] At folio 46

[52] At folio 48

[53] At folio 50

[54] At folio 50

42.  In any event, it is not for the Tribunal to go behind the order. Mr Kendle is at liberty to challenge the order by instigating proceedings in [Country 1]. Alternatively, Mr Kendle can seek to vary or discharge the orders in the Family Court of Australia and, if successful, seek confirmation of the amended order in the [Country 1] courts. The Tribunal notes that Mr Kendle has consistently received this advice from Child Support[55] and instigated proceedings in the Magistrates Court of Western Australia sometime before 29 August 2023.[56]

Ms Mousley does not require spousal maintenance

[55] For example, at folio 145

[56] At folios A2 to A3

43.  Mr Kendle states that around the time the order was made, his former wife was in fact working as [Occupation 1] and therefore did not require any financial support from him. Further, he states that she continues to work as a [Occupation 1] in [Country 1]. He states that had the Court understood this, it never would have granted the petition.

44.  The Tribunal finds that whether or not Ms Mousley’s circumstances are such that she actually required or continues to require financial support from Mr Kendle is not a relevant consideration in determining whether to register and enforce the maintenance liability. The Act or Regulations do not require the Child Support Registrar to be satisfied that there is a need for financial support before registering or enforcing an order.

Conclusion

45.  It is clear that Mr Kendle has found the registration and enforcement of the order traumatic and stressful.[57] No doubt, the enforcement of the order has had significant financial consequences for him. Nevertheless, on the evidence before it the Tribunal is satisfied that Mr Kendle is the respondent referred to in the order and Ms Mousley is “Ms Mousley’s first name” referred to in the same order. The order requires the payment of spousal maintenance and, consistent with its obligations under the reciprocal arrangement between [Country 1] and Australia, the Child Support Registrar has correctly and lawfully registered and enforced the order.

[57] At folio 237

46.  The Tribunal is satisfied that the order of 20 July 2017 is a registrable maintenance liability which was properly registered and enforced on 30 March 2023.

DECISION

The decision under review is affirmed.