LEAKE & GALVIN
[2011] FMCAfam 650
•30 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEAKE & GALVIN | [2011] FMCAfam 650 |
| CHILD SUPPORT – Enforcement of arrears of child support – whether arrears enforceable – where respondent was not a resident of Australia at the relevant time – resident of China – China not a reciprocating jurisdiction. FAMILY LAW – Maintenance – child maintenance – where applicant seeks retrospective orders – where order for child maintenance cannot be made because an application could properly be made for administrative assessment of child support. SUMMARY DISMISSAL – No reasonable prospects of success – no jurisdiction to make the orders sought. |
| Child Support (Assessment) Act 1989 (Cth), ss.24, 25, 29A,117 Child Support (Registration and Collection) Act 1988 (Cth), s.113A Family Law Act 1975 (Cth), ss.66E, 66G, 66P, 69E Federal Magistrates Act 1999 (Cth), s.17A Child Support (Registration and Collection) Regulations 1988 (Cth), Sch. 2 Federal Magistrates Court Rules 2001, r.13.10 |
| Bemert & Swallow [2009] FamCA5 Bigg v Suzi (1998) FLC 92-799 Lindon v Commonwealth (No.2) (1996) 136 ALR 251; 70 ALJR 541 |
| Applicant: | MS LEAKE |
| Respondent: | MR GALVIN |
| File Number: | MLC 3127 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 October 2010 |
| Date of Last Submission: | 29 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Dr Ingleby |
| Solicitors for the Applicant: | Forte Family Lawyers |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | DGB Lawyers |
ORDERS
The Application filed on 7 April 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Leake & Galvin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MLC 3127 of 2010
| MS LEAKE |
Applicant
And
| MR GALVIN |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant Wife, by her Amended Application filed on 28th October 2010, seeks, by way of an interim order, an injunction restraining the Respondent Husband from selling, encumbering, furthering or in any way dealing with a property at [H], New South Wales.
The Applicant seeks extensive final orders.
First, she seeks orders that the Respondent pay to her arrears amounting to $67,133.04 under child support departure orders made in the Family Court of Australia at Melbourne on 26th July 2004.
However, if the Applicant is wholly or partly unsuccessful in obtaining that order, she seeks for child maintenance in respect of the parties’ son [X], who was born [in] 1994 until he attains the age of 18 years or completes his secondary education. The orders that the Applicant seeks are that the Respondent pay:
a)a monthly amount of $1,908.25;
b)all school and tuition fees at [G] School, Kula Lumpur, Malaysia;
c)all school and tuition fees at [K] School, New South Wales;
d)book, stationery and other expenses; and
e)reasonable school uniform and sporting requisites.
In the alternative, the Applicant seeks payment of the above amounts from another date that the Court deems appropriate.
The Applicant seeks an order that the Respondent should reimburse her for the sum of $23,867.55 which she has paid to [K] School for Terms 3 and 4 in 2009 and Term 1 in 2010.
The Applicant further seeks an order that the Respondent make payments to 7 July 2010 (sic) as follows:
a)the sum of $3,000.00 per month;
b)all school and tuition fees for the child’s attendance at [K] School;
c)reasonable expenses for books, stationery and extra-curricular expenses; and
d)reasonable expenses for school uniforms and sporting requisites.
The Applicant seeks that these payments be secured by a charge over the [H] property.
The Respondent seeks an Order for summary dismissal of the Application
Background
The parties were married [in] 1993 in Kuala Lumpur, Malaysia. They separated [in] 1999 and were divorced on 3rd September 2001.
There is one child of the marriage, [X], who was born [in] 1994. He is now 17 years old. He lives with the Applicant and attends [K] School.
The Applicant is a permanent resident of Australia. The Respondent is an Australian citizen who lives and works in Shanghai, in China.[1]
[1] Affidavit of Ms Leake 1.4.2010 at paragraph [4]
The Applicant commenced proceedings in the Family Court at Melbourne in 2002. On 26th July 2004 Guest J made orders by consent to resolve the proceedings between the parties.
Those orders provided that the child [X] would live with the Applicant, who at that time was living in Malaysia and would spend time with the Respondent.
Order 16 made by the Court provided for a departure from the administrative assessment of child support in these terms:
That the child support assessment as from 22nd July 2004 be departed from as from 22nd July 2004 until [X] attains the age of eighteen years or ceases his secondary education ((whichever shall be the later) AND the husband do pay for [X]’s support:-
(a)The sum of $AUS$1,798.00 per calendar month, payable in advance on the 6th day of each calendar month;
(b)All school and tuition fees of [X] at [G] School, Kuala Lumpur, Malaysia, such fees to be paid a term in advance; and
(c)All reasonable school book, stationery and computer requisites together with all reasonable extra curricular activities expenses (including golf, taekwondo, swimming, athletics and guitar); and
(d) Reasonable school uniform and sporting requisite expenses.
Order 19 of the consent orders provided that:
The periodic sum specified in paragraph 16(a) hereof be varied annually in accordance with any positive movement in the
Consumer Price Index for Australia as published by the Australian Government Statistician for the preceding financial year, the first such adjustment to take place on 1st July 2006.
The consent orders were registered with the Child Support Agency.
The Applicant deposes that at the time the orders were made she and the child were living in Kuala Lumpur and the Respondent was still living in Shanghai.[2]
[2] Affidavit of Ms Leake 1.4.2010 at [16]
The Applicant and the child [X] relocated from Kuala Lumpur to Australia on 13th October 2009 and are residing in Sydney.[3]
[3] Ibid at [18]
The Applicant deposed that the Respondent had paid all of the child’s school fees at the [G] School from 2000, when the child commenced at the school, until September 2008. She stated that she ensured that the school fees were paid from September 2008 until July 2009.[4]
[4] Ibid at [20]
The Applicant kept the child at the [G] School until July 2009, when Year 10 in the Malaysian school year concluded. She then moved to Australia and the child commenced Year 11 in Sydney at the beginning of the 2010 school year.
The Respondent remained living in China.
The Child Support Agency wrote to the Applicant on 17th June 2008. The letter stated:
We are writing to advise you that the Child Support Agency (CSA) has reassessed the amount of child support you are to receive from Mr Galvin due to a change in the care arrangements for your child.
What this means for you
·
Mr Galvin is no longer required to pay child support from
19 July 2007for [X] because is no longer a resident of Australia
· Your previous child support amount for the above period was AUD$1,908.25 per month
· Your changed child support amount for the above period is AUD$0.00 per month.[5]
[5] Ibid Annexure SG7
The Applicant deposed that she telephoned the Child Support Agency and was told that because China is not a reciprocal jurisdiction for the purposes of child support the Agency had no power to make the Respondent pay child support. Although the Applicant said that the Respondent had been living out of Australia 1993 and had been making payments since 2004, the Child Support Agency regarded those payments as voluntary.
The Applicant wrote to the Child Support Agency on 11th August 2008, enclosing a copy of the Orders made by the Family Court on 26th July 2004 and saying:
At paragraph 16, the Court makes Orders departing from a child support assessment made on 22 July 2004. The order is to continue until such time [X] turns 18 old or ceases his secondary education. Neither of those events have happened and consequently, the child support amount payable by my former husband ought to continue, adjusted for changes in the consumer price index.[6]
[6] Affidavit of Ms Leake, 1.4.2010 at Annexure SG8
The Child Support Agency closed its file in about April 2009.[7]
[7] Ibid at [29]
The Applicant deposes that the Respondent stopped making periodic payments in August 2008 and stopped paying the child’s school fees at that same time. The Applicant deposes that the Respondent did not pay for various extra curricular expenses between October 2004 and June 2007. He did not pay other expenses in July and September 2007.
The Applicant calculates that the Respondent owes her a total amount of $67,133.04 for arrears under the Orders. She also states that the child is attending [K] School since he has been living in Sydney and she calculates that she has paid out a total amount of $23,867.55 to meet the child’s education, tuition and associated expenses to attend [K] School. She states that she seeks an order that the Respondent reimburse her for that amount.
The Applicant also estimates that the child’s fees to complete year 12 will amount to $26,092.00.
The Applicant sets out in her affidavit details of the Respondent’s living arrangements since 1993:
Mr Galvin lives and works in Shanghai. He worked for [omitted] in Shanghai from 1993, except for approximately 9 months from December 1997 when he was posted to Malaysia, and he was retrenched around September 1998. He returned to Australia immediately to seek employment which he obtained with [L] Pty Ltd (“[L]”). He was posted back to Shanghai in December 1998 and continued to work for [L]…
To the best of my knowledge and belief, Mr Galvin is employed at [S] Ltd located at [address omitted], Shanghai in China…[8]
[8] Affidavit of Ms Leake 1.4.2010 at [55]-[56]
These proceedings were commenced at the Melbourne Registry of the Court on 7th April 2010.
The Respondent filed a response and supporting affidavit on 17th May 2010. In his response he sought an order that the venue of the proceedings be changed to Sydney and that the substantive application should be dismissed. On that date, Hartnett FM made orders by consent transferring the proceedings to the Sydney Registry of the Court.
There is no issue that the Respondent has returned to Australia to live. It is, I understand, common ground that after the Respondent returned to live permanently in Australia he applied for an assessment of Child Support and that is still in existence.
On 5th July 2010 the application was listed for hearing on 29th October 2010 on the question of summary dismissal.
Submissions
Mr Maurice of counsel, who appeared for the Respondent, submitted that the order sought by the Applicant are both incompatible and misconceived, in that:
a)Arrears of child support cannot accumulate if a person does not have an obligation to pay; and
b)An application for child maintenance cannot be made.
Because, as he submits, the application is fundamentally flawed, it should be summarily dismissed.
In support of the application for summary dismissal, the Respondent relies on the decision of Watts J in Bemert & Swallow[9], where his Honour summarised the general test at [126] et seq.
[9] [2009] FamCA 5
Mr Maurice submitted that it is a serious matter to deprive a person of access to the courts of law and, to secure such relief, the party seeking summary dismissal must show that it is clear on the face of the opponent’s documents that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
The Respondent submits that:
a)To be eligible and required to pay Child Support a person living outside Australia must be an Australian resident, as defined in the Tax Act, or live in a Reciprocating Jurisdiction. If not, the person seeking child support must apply for child maintenance under the Family Law Act.
b)The Respondent was not an Australian resident during the time that the Applicant claims that arrears of Child Support were accruing, which was accepted by the Child Support Agency.
c)It was only when the Respondent returned to Australia and applied for an assessment of child support that the Child Support Agency opened a new file.
d)An order for child maintenance can only be made if an administrative assessment of child support could not be made on the date that the order is sought (Family Law Act 1975, s.66E).
e)The Court cannot make an order for child maintenance retrospectively.
f)The Applicant has not given notice to the Child Support Agency of her intention to enforce purported arrears of child support as required by s.113A of the Child Support (Registration and Collection) Act 1988 (Cth).
g)Order 10 of the Amended Application is “an extraordinarily punitive enforcement provision” that would deprive the Respondent of his family home if he were to fall behind on one payment of child support.
h)Order 11 of the original application seeks injunctions which the Court has no power to make.
Counsel for the Applicant, Dr Ingleby, conceded that counsel for the Respondent had correctly stated the law relating to summary dismissal (see Lindon v The Commonwealth (No 2)[10], also Bigg v Suzi[11]). However, he submitted that this was not a case where the Applicant lacks a reasonable cause of action.
[10] (1996) 136 ALR 251; 70 ALJR 541
[11] (1998) FLKC 92-799
The intention of s.66E of the Family Law Act 1975 is to ensure that Child Support is dealt with under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 if the relevant sections of those Acts apply at that time. If the Child Support (Assessment) Act does not apply then the Family Law Act 1975 does. Section 69E of the Family Law Act 1975 sets out the requirements for instituting proceedings under the Act in relation to a child.
Subsection 69E(1) states (relevantly):
(1)Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day; or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; …
The term “relevant day” is defined by paragraph (2)(a):
if the application instituting the proceedings is filed in a court – the day on which the application is filed; …
Dr Ingleby submitted that there was no doubt that the child [X] was an Australian citizen on the date that the application was filed. I note that the child’s father, the Respondent, was also an Australian citizen on the date that the application was filed.
Counsel for the Applicant also drew the Court’s attention to the provisions of s.66A of the Family Law Act 1975, situated in Division 7, which deals in Subdivision C with the relationship between Division 7 and the Child Support (Assessment) Act 1989.
It was submitted that there cannot be a vacuum. What would happen when the Child Support (Assessment) Act 1989 does not apply? Should the Applicant then have applied for child maintenance when the Respondent was outside Australia? As soon as the Respondent became resident in Australia again the Applicant would lose the right to make an application for maintenance.
This, he submitted, was a serious argument which of itself justified the matter going to a final hearing.
In reply, counsel for the Respondent submitted that the subject of section 66E of the Act is the Court’s jurisdiction to make an order, “at that time”.
The Relevant Law
The power of the Federal Magistrates Court to make an order summarily dismissing a proceeding come from the Court’s own Act, the Federal Magistrates Act 1999. Subsection 17A(2) provides that:
(2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
Subsection (3) defines what is meant by “no reasonable prospects of success”:
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospects of success.
Rule 13.10 of the Federal Magistrates Court Rules 2001 provides in subrule 13.10(a) that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim for relief;…
Clearly, when considering an application for summary dismissal, the Court must have regard to the principles set out in Lindon v The Commonwealth (No.2).[12]
[12] supra
The Applicant seeks first of all to enforce arrears of child support under Order 16 made by the Family Court on 26th July 2004. It need hardly be said that this order is an order for child support under the provisions of s.117 of the Child Support (Assessment) Act 1989. It is an order of departure from administrative assessment of child support.
It is the Applicant’s evidence that the Respondent made periodic payments of child support under that Order until July 2008, and that he ceased making other payments under that Order in August 2008. with the exception of what the Applicant described as a “shortfall in monthly payments from July 2006 to June 2007 totalling $858.96”[13], the balance of the amount of $67,133.04 claimed by the Applicant refers to a period from July 2007 on.
[13] Affidavit of Ms Leake 1.4.2010 at [31]
On the Applicant’s evidence, the Child Support Agency had advised her in writing on 17th June 2008 that the Respondent was no longer required to pay child support from 19th July 2007.[14] It is common ground that that the Respondent was not a resident of Australia at that time. He was residing in China and, on the Applicant’s evidence, had been residing in China since December 1998.[15]
[14] Ibid at Annexure SG7
[15] Ibid at [55]
On 19th July 2007 the child was an eligible child who was under the age of 18, not a member of a couple, and was an Australian citizen (Child Support (Assessment) Act 1989, s.24). The Respondent was not a resident of Australia at the time (s.25(d)). The Respondent was a resident of China, and had been since December 1998 (s.29A).
The person by whom child support is payable must be an Australian resident or a resident of a reciprocating jurisdiction (s.29A). The reciprocating jurisdictions are set out in Schedule 2 of the Child Support (Registration and Collection) Regulations 1988. The People’s Republic of China is not a reciprocating jurisdiction under the Regulations.
Whilst there was an order made on 26th July 2004, that order cannot continue to impose a liability to make payments of child support once it has been established that the person liable was neither a resident of Australia nor a resident of a reciprocating jurisdiction.
The Applicant has claimed an amount of $858.96 as representing a shortfall on payments between July 2006 and June 2007, a period of time before 19th July 2007, the date that the Child Support Agency determined was the date from which the Respondent was no longer liable to pay child support. However, on the Applicant’s own evidence, the Respondent was a resident of China between July 2006 and June 2007, so no liability arises for that period.
As the Respondent had no child support liability within the period claimed by the Applicant, it follows that there is no basis to make Order 1 sought by the Applicant in her Amended Application.
In Order 2, the Applicant seeks, in the alternative to order 1, an order for child maintenance, under the provisions of sections 66G and 66P of the Family Law Act 1975.
Section 66G gives the Court power, subject to Division 7 and section 111A of the Act, to make such child maintenance order as it thinks proper.
Section 66P sets out the types of child maintenance orders the Court may make, including by way of a lump sum, or by weekly, monthly, yearly or other periodic amounts.
The order sought is a retrospective order for a closed period, from
19 July 2007 until the making of order 4 sought by the Applicant. The Court has no power to make retrospective orders. The Court’s jurisdiction to make an Order is only enlivened by the making of an application to the Court. I am not of the view that the date of the Amended Application is the operative date. The relevant date is the date of commencement of proceedings. The Application was first before the court on 17th May 2010.
Section 66E of the Family Law Act 1975 forbids the making of a child maintenance order if an application could properly be made at that time under the Child Support (Assessment) Act 1989 for administrative assessment of child support. It appears to be common ground that the Respondent returned to Australia on 4th May 2010, so it would appear that an application could properly have been made for an administrative assessment of child support with effect from that date.
Order 2 must fail.
Order 3 seeks that the Applicant be reimbursed for the sum of $23,867.55 that she paid for school and other fees to [K] School “for terms 3 and 4 in 2009 and term 1 in 2010”. This is clearly an application for a retrospective order for child maintenance for a closed period in the past. The Court has no jurisdiction to make such an order.
Order 3 must fail.
Order 4 seeks an order for child maintenance for the child “from the date of these orders to 7 July 2010”. This may be an error, but no effort was made to correct the error at the hearing and it is not for the Court to guess what date the Applicant means. In any event, the Court has no jurisdiction to make an order for child maintenance as the child and both parents are residing in Australia.
Orders 5 to 14 of the final orders sought are all intended to be ancillary to the orders for enforcement of arrears of child support or the various applications for child maintenance made by the Applicant, all of which are to be dismissed because they have no reasonable prospects of success.
The interim application for an injunction restraining the Respondent from selling, encumbering or otherwise dealing with the [H] property is intended to provide security for the payment of the arrears and future payments that the Applicant has claimed. In the circumstances, there is no basis for making that order.
The application was misconceived. The Applicant sought orders in respect of what she claimed were arrears of child support, for retrospective orders for child maintenance, and ongoing orders for child maintenance that the Court is specifically forbidden from making by s.66E of the Family Law Act 1975.
As all of the orders sought are orders which the Court has no jurisdiction to make, I am satisfied that the Applicant has no reasonable prospect of successfully prosecuting the Amended Application or any part of it.
Accordingly the Application (as amended) will be dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 29 June 2011
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