Kinross and Kent
[2009] FMCAfam 420
•5 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KINROSS & KENT | [2009] FMCAfam 420 |
| CHILD SUPPORT – Discharge of overseas order. |
| Family Law Act 1975 (Cth) ss.66B, 66C, 66H, 66J, 66K, 66L, 66S Family Law Regulations 1984 regs.36, 37, 38 Child Support (Registration and Collection) Act 1988 (Cth) ss.18A, 25A Evidence Act 1995 (Cth) s.91 |
| Lutzke & Lutzke, (1979) 5 Fam LR 553, (1979) FLC 90-714 Vakil & Vakil, (1997) 21 Fam LR 508, (1997) FLC 92-743 |
| Applicant: | MR KINROSS |
| Respondent: | MS KENT |
| File Number: | PAC 4779 of 2008 |
| Judgment of: | Halligan FM |
| Hearing date: | 1 May 2009 |
| Date of Last Submission: | 1 May 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 5 May 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| Solicitors for the Respondent: | No Appearance |
ORDER
The order made by the District Court of Kosice, Slovak Republic, on
3 November 1997 that the father pay maintenance to the mother for the parties’ child [X] is discharge from the date to which it stands paid.
IT IS NOTED that publication of this judgment under the pseudonym Kinross & Kent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4779 of 2008
| MR KINROSS |
Applicant
And
| MS KENT |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings brought by the father to discharge an overseas child maintenance judgment given by the District Court of Kosice, Slovak Republic on 3 November 1997.
Background
The father is aged 57, the mother 56. They have two children, [Y], born in 1972, and [X], born in 1980. The Slovak order relates only to [X].
In mid 1980, by which time the parents had separated, the father defected from the then Czechoslovakia and after a brief stay in Austria migrated to Australia as a refugee. He became an Australian citizen in 1984.
The Kosice District Court judgment given on 3 November 1997 provides as follows:
“The court has consigned the juvenile [X], born in 1980 to his mother’ care and custody, and obliged by this the child’s father to contribute to his support in the future, exactly since March 7, 1991, with monthly sum in amount of 100,- Austr. dollars. The father shall be obliged to send/transfer that money to the child mother, always till the 30-/thirtieth/day of each month in advance.
Autstanding alimony, that had accrued/arised since its determination on March 7, 1991 up to October 31, 1997 in a total amount of 8,100.-Austr.dol., the child’s father shall be allowed to pay up till the end of the year 1998.” (sic)
It seems from the judgment that under Slovak law, an order for child alimony or maintenance could be backdated for up to three years before proceedings were commenced, that the proceedings were commenced on 7 March 1994, and that the court determined that the father's liability for child maintenance should be backdated for the maximum period to 7 March 1991, giving rise to a debt for arrears of $8,100.
On 2 June 2004, the Child Support (the Registrar) registered the overseas order in respect of arrears only in the sum of $11,200. This is 112 months of child support under the foreign order. Since the liability under that order was to pay $100 per month from 7 March 1991, assuming no payments under the order have been acknowledged in calculating the arrears, the arrears relate to the period from 7 March 1991, when [X] was a month away from turning 11, to July 2000, when [X] was 20.
The father unsuccessfully objected to the Registrar’s decision to register the overseas liability. There has been correspondence between the father's solicitors, the Registrar and the Slovak Central Authority in relation to various objections the father has taken to the attempted recovery of arrears, but the Registrar has maintained registration of the liability, and has been recovering sums in satisfaction of the debt by withholding from the father's social security benefits.
The father maintains that he has paid the maintenance required under the order and that the mother has released him from liability under it, and hence seeks a discharge of the foreign order.
I am satisfied that the mother has been served with the father's documents and with notice of the hearing date. She did not appear and was not represented at the hearing.
The Registrar has been served with the father's application and has taken no part in the proceedings.
The evidence
The Husband's evidence is unchallenged by any contradictor in the proceedings. It is inconsistent in some respects with facts recited in the foreign judgment, particularly in relation to payments of chid maintenance by the father from March 1991 until November 1997, and as to whether the father had any notice of the proceedings in which the foreign order was made.
Evidence of the decision or a finding of fact in an Australian or overseas proceeding, such as the judgment of the Kosice District Court, is not admissible as evidence in these proceedings to prove the existence of a fact that was in issue in those proceedings (s.91, Evidence Act 1995 (Cth)). Thus, the foreign judgment is not evidence of the facts recited in it, including those that may contradict the father's evidence, and hence his evidence is unchallenged in these proceedings. I therefore accept the father's evidence, it not being so inherently improbable or unbelievable as to warrant its rejection.
Soon after arriving in Australia in 1980, the father commenced work as an electrician. In 1997, when the order was made by the Kosice District Court, the father worked for a computer installation company. From 2000, pain in the father's left knee prevented him working as an electrician as he could not stand for long periods. In 2007 he was diagnosed with a hernia, for which he underwent surgery in February 2008. He was unable to work after the operation and received social security benefits subsequently. While he is currently seeking employment, he has not found any, and remains in receipt of social security benefits.
From shortly after his arrival in Australia in 1980, the father regularly contributed to the support of his son. From 1991, when the liability under the foreign order commenced, until April 2000 when [X] turned 20, the father sent international money orders to the mother in the Slovak Republic approximately every two months for amounts from $300 to $500. The money orders were made out in [X]’s name. From time to time the mother thanked the father for these moneys. The father is certain the amounts he sent between 1991 and April 2000 were more than $1200 per annum, the amount payable under the foreign order.
The husband said he was not a party to the proceedings that resulted in the order he seeks to discharge. This is not correct as is plain from the foreign judgment. However, the father had no notice of the proceedings that resulted in the order under which the arrears arose.
In 1999, the mother rang the father asking for money to help pay debts. The father told the mother he would send her some extra money but only once and she would have to “sign something saying that I have been paying child support for [X]”. Soon after he sent an international money transfer to the mother for $1,000, and subsequently he received a statement signed by the mother, dated 2 June 1999, stating that the mother as of 1 June 1999 “cease(d) exaction of child support for my son [X] from the child’s father”. It refers to a “final judgment in the name of the Slovak republic registered under number Nc [1]”. This is the number on the judgment of the Kosice District Court. The document proceeds, stating that the mother “abandon(s) the claim for arrears of child support payments, payable in accordance with the court decision, that the amount from of 7 March.1991 to 31 May 1999 to $10 000 / ten thousand Australian dollars / as well as future predetermined monthly payments of $100.00 / one hundred / Australian dollars” (sic).
This document is somewhat puzzling. All the father asked for was an acknowledgment that he had been paying child support. If he had been paying child support of at least the amount payable under the Kosice District Court order, there could have been no arrears. But in the document the mother abandoned arrears of $10,000, which is the total amount that would have fallen due under the Kosice District Court orders up to the date of the document. Despite this, bearing in mind that the document is a translation, that it appears to have been prepared without professional legal involvement, and that the mother has not put evidence before this court to contradict the father's evidence, I accept the father's evidence.
By letter dated 16 September 2004, the Child Support Agency (CSA) notified the father that on 2 June 2004 it had registered the Slovak liability in relation to arrears of $11,200. By then, [X] was 24.
On 16 November 2004, the NSW Legal Aid Commission (LAC) as solicitor for the father objected to the decision to register the Slovak order, on the bases that-
a)the father did not know of the order;
b)the father had paid regular amounts for the maintenance of their son from 1980 up to April 2000; and
c)the information provided by the CSA did not specify the period to which the arrears related or the period of operation of the order under which the arrears were said to arise, and did not enable the father to determine the correctness or otherwise of the alleged arrears, or to properly challenge either the alleged arrears or the registration of the liability. The objection requested this information from the CSA, noting that a copy of the order had already been sought unsuccessfully from the CSA, whose officers had suggested they did not have a copy of the order.
The CSA notified the father's solicitor of the rejection of his objection by letter dated 14 December 2004. The way this letter dealt with the father's objection is troubling. It failed to address all the objections raised by the father. However, such issues do not arise for further consideration or determination in these proceedings.
It seem that the LAC continued to pursue the matter on behalf of the father with the CSA subsequently, but there is no evidence of the further representations made on behalf of the father or of any responses until 2007.
On 8 March 2007, the CSA wrote to the LAC replying to a letter dated 18 August 2006 and enclosing correspondence received from the Slovak Central Authority. The CSA letter advised that the father's contentions that he had complied with his obligations under the Slovak order were put to the Slovak Central Authority, which did not accept his contentions, and that the CSA was obliged to collect the arrears.
On 14 August 2007, the LAC wrote on behalf of the father to the Slovak Central Authority pressing the father's version of events, including in relation to the suggested agreement by the mother to forego maintenance, and the father's contentions of having met his proper financial obligations. An issue also had arisen as to whether [X], now an adult, wanted the arrears enforced or not. There is no evidence of any response from the Slovak Central Authority.
On 8 July 2008, the CSA wrote to the father’s solicitors advising that it had written to the Slovak Central Authority in January 2008 about the father's child support liability but had not received any response.
On 15 September 2008, in response to a request for the information, the CSA advised the father's solicitor that the total amount owing by the father under the registered overseas obligation at 15 September 2008 was $15,088, comprising arrears of $9,799.34 and late payment penalties of $5,288.66.
The NSW Attorney General has now commenced proceedings against the father in the NSW Supreme Court under the Evidence on Commission Act 1995 (NSW) to take evidence from the father in relation to an application by the mother to the Kosice District Court for alimony from the father in the sum of $1,000 per month. The NSW Crown Solicitor has advised the father's solicitor that the summons was issued at the request of the Kosice District Court pursuant to the Convention between the United Kingdom and Czechoslovakia regarding Legal Proceedings in Civil and Commercial Matters.
The father is in a precarious financial position. He receives social security payments of $199 per week, and is paying $60 per week in personal loan repayments and has a minimum repayment on his credit card debts of $177, which I will treat as being a monthly obligation, or about $41 per week. He claimed mortgage repayments of $105 per week, but disclosed not mortgage debt, so I will ignore that claimed expense. He owns the unit he lives in, which he believes is worth $205,000, and owes the bank $15,000 on a personal loan and has credit card debts of $16,500. He owes strata levies of $2,600. His only other assets are a motor vehicle worth $3,000 on which he pays registration fees averaging $7 per week, and he owns the contents of his unit, worth $4,000. Thus, the husband has only about $90 per week to pay for his food, clothing, medical expenses, household supplies, entertainment, repairs and maintenance on his unit and its contents, and maintenance, repairs and running expenses on his motor vehicle.
The applicable law
Under ss.18A and 25A of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), the Registrar may register under that Act certain overseas maintenance obligations, rendering them payable to the Commonwealth and recoverable and enforceable in Australia by the Registrar. There is no contention that arrears under the Slovak order were not registrable under the Registration and Collection Act.
Under reg.36, Family Law Regulations 1984 (the Regulations), the court may discharge, suspend, revive or vary an overseas maintenance obligation that is registered by the Registrar. The law to be applied in determining whether to do so is the law in force in Australia under the Family Law Act 1975 (reg.36(4)).
Where the obligation under the registered overseas obligation is to pay child support or child maintenance, the application to discharge, suspend, revive or vary is governed by s.66S, Family Law Act, which provides that the Court may discharge an order “if there is just cause for so doing” (s.66S(2)(a)), and the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable) of Division 7, Part VII of the Family Law Act (s.66S(10)).
The meaning of the phrase “just cause”, albeit in the context of s.83 of the Act in relation to the discharge of a spouse maintenance order, was considered by Lindenmayer J in Lutzke & Lutzke, (1979) 5 Fam LR 553, (1979) FLC 90-714. His Honour said (Fam LR at 559-560, FLC at 78,832):
“In my opinion, however, the words ‘just cause’ are not used in any broad general sense, nor are they intended to import any abstract notions of justice, ‘Palm tree’ or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a ‘cause’ for discharge of an existing maintenance order will be a ‘just cause’ only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is ‘right’ or ‘proper’ that the order should be discharged.”
This statement by Lindenmayer J was approved by the Full Court of the Family Court of Australia (Fogarty, Lindenmayer and Moore JJ) in Vakil & Vakil, (1997) 21 Fam LR 508, (1997) FLC 92-743, coincidentally a case involving an application to discharge or vary on overseas spouse maintenance order under Reg.36 as it then was. Their Honours said (Fam LR at 525-6, FLC at 84,021):
“5.23 … (W)e think that the above-quoted dicta of Lindenmayer in Lutzke (supra), which appear to have received no judicial criticism over the last eighteen years, probably define the concept with as much precision as it is possible to give it in this context. Thus we conclude that, having regard to the current wording of s.83(7) (supra), the question whether there is ‘just cause’ for discharging an order, including one made in a reciprocating overseas jurisdiction and registered in Australia under the Regulations, is to be determined as an exercise of judicial discretion by reference to notions of what would be regarded as ‘right’ and ‘proper’ in Australia, having regard (inter alia) to the provisions of ss.72 and 75 of the Act. However, we are of the view that the effects of s.83(7) is not such as to preclude regard also being paid to provisions of the Act other than ss.72 and 75, to the extent that they may be considered relevant in the circumstances of a particular case, and that may include, for example, s.81 and s.43(a).”
In determining whether to make an order, and if so what order, the Court is required by s.66H (in Subdivision D) to –
(a) consider the financial support necessary for the maintenance of the child, in accordance with s.66J; and
(b) determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings in accordance with s.66K.
The objects of the child maintenance provisions of the Family Law Act and the principles underlying them, which must be taken into account when considering the child’s necessary financial support and in determining the level of the parents’ contributions to that support, are set out in Subdivision B, and are as follows, so far as they are presently relevant –
“66B Objects
(1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Division include ensuring:
(a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b) that parents share equitably in the support of their children.
66C Principles—parents have primary duty to maintain
(1) The parents of a child have, subject to this Division, the primary duty to maintain the child.
(2) Without limiting the generality of subsection (1), the duty of a parent to maintain a child:
(a) is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the parent has a duty to maintain; and
(c) is not affected by:
(i) the duty of any other person to maintain the child; or
(ii) any entitlement of the child or another person to an income tested pension, allowance or benefit.”
Under reg.38, an order to discharge, suspend, revive or vary an overseas maintenance obligation is provisional if the relevant reciprocating jurisdiction is one of those specified in the regulation. The Slovak Republic is not specified in reg.38, and hence any order I may make will be final (subject to the parties’ rights of appeal to the Full Court of the Family Court of Australia).
Discussion
There is no evidence to enable the Court to properly assess the financial support necessary for [X]’s maintenance. There is no evidence on which the Court could assess his proper needs at any relevant time, and there is no evidence on which the court could determine his income, earning capacity, property and financial resources during the relevant period, which appears to be from 7 March 1991 to mid 2000.
This is not evidence the father is in a position to provide. The mother or the child, considering he is now well and truly an adult, could provide that evidence, but neither has done so.
It was submitted on behalf of the father that I should determine the child’s proper needs at the amount specified in the foreign order, namely $100 per month. However, that would presume that either the mother was unable, or was not required under Slovak law, to contribute to the child’s support, and that the father was found to have the financial capacity to fully meet all the child’s reasonable needs. There is no basis in the judgment of the Kosice District Court to accept that this is the case.
Doing the best I can on the evidence, I find that the child’s proper needs during the relevant period were no less than $100 per month, and the evidence does not establish whether the child had any income, earning capacity, property or financial resources during the relevant period.
Similarly in determining the financial contribution or respective financial contributions that should be made by the parents towards the financial support necessary for [X]’s maintenance, there is no evidence of either parent’s income, earning capacity, property and financial resources and commitments necessary to support themselves and any other person they have a duty to maintain during the relevant period. While the father gave evidence of employment during the relevant period, he gave no evidence of his actual financial circumstances. There was no evidence about the mother's circumstances at all.
In relation to the part of the relevant period after [X]’s 18th birthday, there is no evidence of the matters referred to in s.66L.
It was submitted on behalf of the father that the court should be satisfied there is just cause to discharge the foreign order on four grounds, namely:
a)The father has paid child maintenance directly to the mother at a rate equal to or above the amount required under the order;
b)There was a significant delay in the making of the maintenance order, with the order not made until after the child turned 18. There was a further delay of more than five years before the order was registered in Australia;
c)The father was not a party to proceedings for making the order and had no notice of the orders;
d)The father does not have a financial capacity to meet the current arrears or penalties under the orders.
In relation to point b), the order was made on 3 November 1997, when [X] was 17. But in any event, I do not consider delay in registration in Australia per se is a just cause to discharge the order. The submission begs the question what delay becomes sufficient to warrant a finding of just cause. If a limitation period for registration is appropriate, in my view it is for the legislation to establish it. However, delay with other facts may amount to a just cause.
In relation to point c), the father was a party to the proceedings in which the order was made. However, the admissible evidence before me establishes that he did not know of the proceedings in which the order was made. I am not satisfied that ignorance of the proceedings that resulted in the order per se is a just cause, unless perhaps an application is made under reg.36 within six months after notice of registration in Australia. Reg.37 deals specifically with an application under reg.36 where the applicant had no knowledge of the proceedings in which the foreign order was made, and impliedly imposes a limitation on this argument. Again, the lack of knowledge of the proceedings with other facts may nonetheless provide just cause, if the application is made more than six months after notice of registration in Australia.
I am satisfied that points a) and d) do provide just cause to discharge the order. The admissible evidence before me satisfies me that it is more likely than not that the father paid the mother or, in the later part of the relevant period, the child, amounts at least approximating the liability under the foreign order. I am therefore satisfied that the arrears sought to be recovered under the order do not exist in the amount claimed, if at all.
If there is some part of the liability under the foreign order outstanding, the father's financial circumstances as disclosed in his financial statement indicate that he does not have any capacity to pay it.
In the circumstances of this case, I am satisfied that the payments the father has made to the mother, his impecunious current financial circumstances, when taken in conjunction with the long delay in registration of the overseas obligation, demonstrate just cause for discharging the overseas order.
Decision
I will therefore grant the father's application in relation to the discharge of the foreign child maintenance order.
However, the father in addition seeks a declaration that he has “no further or outstanding maintenance liability to the Respondent in relation to the marriage or children of the parties”. This declaration goes well beyond the case presented on behalf of the father in relation to child maintenance. It would extend to the subject matter of the proceedings for alimony for the mother pending in the Kosice District Court and in relation to which the NSW Attorney-General has commenced proceedings in the NSW Supreme Court to take evidence on commission from the father. There is no basis advanced for this declaration, it was not addressed in submissions on behalf of the father, and I am not prepared to make it.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 5 May 2009
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