Keri and Wilfred and Anor

[2010] FamCA 954

FAMILY COURT OF AUSTRALIA

KERI & WILFRED AND ANOR [2010] FamCA 954

FAMILY LAW – CHILD SUPPORT – International jurisdictions – Case management

APPLICANT: Mr Keri

1^st RESPONDENT: Ms Wilfred

2^nd RESPONDENT: Child Support Registrar

FILE NUMBER: MLC 2255 of 2009

DATE DELIVERED: 12 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Skerlj

SOLICITOR FOR THE APPLICANT: MK Steele & Giammario

COUNSEL FOR THE 1^ST RESPONDENT:

SOLICITOR FOR THE 1^ST RESPONDENT: No Appearance

COUNSEL FOR THE 2^ND RESPONDENT Mr K. Maat

SOLICITOR FOR THE 2^ND RESPONDENT Australian Government Solicitors

Orders

1. That this matter be listed for telephone mention before me on 18 August 2010 at 6.00 pm (Australian Eastern Standard Time ) for the purpose of ascertaining the extent to which the respondent mother will participate in the proceedings.

2. That the mother and the solicitors on the record, Morton Fraser LLP Solicitors,  United Kingdom, participate in the mention by telephone and for that purpose the Court will place a call to +44 … at 6.00 pm (Australian Eastern Standard Time) and the solicitors are to ensure that the line is kept open and available to take calls.

3. That the question of the costs of all parties be reserved.

4. That the reasons for judgment this day be transcribed and when settled copies be made available to the parties.

AND IT IS REQUESTED that my Associate contact the solicitors for the mother as soon as possible to discuss the practicality of the arrangements.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2255 of 2009

MR KERI

Applicant

And

MS WILFRED

1^st Respondent

And

CHILD SUPPORT REGISTRAR

2^nd Respondent

REASONS FOR JUDGMENT

1. This matter comes before me for directions for trial.  The applicant father is not in court, but he is represented by Mr Skerlj of counsel and his instructing solicitor.

2. There is no appearance by or on behalf of the first respondent, notwithstanding that I am assured from the bar table that the mother has notice of the proceedings.  There is a notice of address for service filed on 28 April 2009 by solicitors Morton Fraser LLP of the United Kingdom.  There has been no notice of ceasing to act.  The second named respondent is the Child Support Agency or the Child Support Registrar. 

3. The proceedings are those which are initiated by the father on 22 April 2009, initially in the Federal Magistrates Court, and now transferred to this court.  I now propose to adjourn the matter for mention before me on 16 August 2010 at 6 pm Australian time, which I calculate will be approximately 9 am UK time, and direct that the practitioners for the mother, and the mother, attend that mention and participate by telephone.

4. The purpose of these reasons is to inform the parties of what I see are potential difficulties in the case unless everybody’s role is defined. 

5. The father seeks to vary a child support liability in relation to his sons, J and A, who are now respectively 23 and 21 years of age, and who, as best everyone understands, do not reside in Australia. 

6. The amount of child support sought to be enforced is approximately $106,000 (that is Australian dollars, and, unless I otherwise indicate, all references to currency in these reasons are to the Australian dollar).  Of that sum, some $44,000 is interest and penalties owing to the Child Support Registrar.  That liability arises under the statutory scheme for the assessment and collection of child support, not dissimilar from the scheme which exists in England, as best I understand it.  There are collateral proceedings in Scotland whereby the Scottish authorities are seeking to recover the amount from the father, and have instituted proceedings.  I am informed that those enforcement proceedings in Scotland have been stayed or put on hold pending an outcome of these proceedings in Australia.  That certainly makes sense.

7. On that basis, I understand that the father’s position is not prejudiced, and save to the extent that I make clear that maintenance liabilities are supposed to be paid, and I do not underestimate that the mother might have suffered some hardship because of non-payment of maintenance, neither is anything drastic happening to her at this stage. 

8. The proceedings in Australia brought by the husband involve two aspects.  First, he acknowledges that assessments have been raised against him, and have been recorded as liabilities by the Child Support Registrar.  However, he says that this was done retrospectively, and on the basis of a change in statutory regulations or rules.  Previously, the father was not a payee or liable parent against whom child support could be sought, because he had not, and never had been, a resident of Australia. 

9. In 2000, the Child Support (Assessment) (Overseas Related Maintenance Obligations) Regulations 2000 came into operation, and the effect of that was to enlarge the class of persons from whom child support could be sought to include the parents of children who had been, or who were, resident in Australia at the time the application was made.  It is said that that is the situation here.  At the moment, the two children are not resident in Australia, as best anyone knows.  The mother is thought to be in Scotland, and the father is thought to be in the United Kingdom. 

10. The father challenges the validity of the regulations which were passed in 2000.  I am informed that, pursuant to section 78B of the Judiciary Act, notices were given to the Attorneys-General for the States in Australia, and that no Attorney-General has indicated that he or she seeks to be heard. 

11. The second aspect of the father’s application relates to means and ability to pay child support.  He says that at the time the child support assessment was struck he did not have the ability or the resources to pay the child support for which he was assessed.  He also says that, for some period, he provided the mother and children with support in kind in the nature of accommodation.  Thirdly, he says that he does not now have the capacity to pay the arrears of child support or the penalties.  

12. I will make the date of the mention 18 August, not 16 August, and these reasons should be amended accordingly in paragraphs 1 or 2.  The difficulty which I perceive is that the mother does not appear today at court.  There has been no request by her solicitors in Scotland to appear electronically, and no representation.  The matter was called at the door of the court.  There was no response.  Both of the parties who appear before me today did not expect that there would be any response. 

13. The difficulty is that if the father’s challenge to the child support scheme and the liability per se fails, the court will then have to go on to deal with the father’s application to vary the liability.  I have not recently looked at the Act, but would be very surprised if that does not require leave, because the liabilities are so old.  But if that hurdle is then overcome, there is not going to be anyone in court in Australia to defend or to oppose the relief sought by the father in relation to varying the assessments.  If that is always going to be the case, and there is going to be no opposition to it, it would be better for the public purse and everyone involved in the proceedings in Australia to know now rather than later.  That is, if the mother or her solicitors never intend to oppose the father’s application when it gets down to needs and capacity for child support it’s a matter which everyone should be well aware of going into the litigation rather than waiting until the end.

14. I also want there to be no misapprehension at all that the Child Support Registrar will not run the mother’s case for her in this respect.  The Child Support Registrar is a statutory body that has duties and obligations, and it does no more in court than look after those, or to see that those are fulfilled.  In the course of the enforcement proceedings both here and in England, I anticipate that there will have been information captured about the father’s economic position, financial position, both now and from 2000 onwards.  However, because the Child Support Registrar is not participating in the variation application per se, that information which has been captured will not be given to the mother, will not be accessible to those who advise her, or at least that is what I think is the case, and, more particularly, will not be given to the court or inform the court’s discretion in relation to the variation issue.

15. These are matters which I require that the mother consider and those who advise her consider. I do not think that they are easily expressed in correspondence, and I would prefer that there be some capacity to respond verbally and to field questions.  For that purpose, I will appoint the mention that I have referred to earlier which will be conducted at 6 pm Melbourne time on Wednesday, 18 August 2010.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 July 2010.

Associate: 

Date: