MEMBREY & HALL
[2019] FamCA 857
•22 November 2019
FAMILY COURT OF AUSTRALIA
| MEMBREY & HALL | [2019] FamCA 857 |
| FAMILY LAW – OVERSEAS CHILD SUPPORT – order made by City B, USA court in 1982 – child now over 40 years of age – applicant mother in City B, USA case having no connection to Australia – father applying to this court for orders relieving him of his liability to meet the City B, USA court order – matters of private international law considered – child support legislation considered – held, father’s application allowed. FAMILY LAW – INTERNATIONAL LAW – discussion of operation of principles of international law relating to the applicability of provisions of international treaties, once embedded in local domestic law, on the courts of countries that are contracting parties to the international treaties. |
| Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations, 12 December 2002, (entered into force 12 December 2002) Child Support (Assessment) Act 1989 (Cth), ss 3, 4, 5, 18, 19, 24, 163B Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 (Cth) Child Support (Registration and Collection) Act 1988 (Cth), ss 3, 4, 30, 18A, 124A Child Support (Registration and Collection) Regulations 2018, sch 2, reg 5 Child Support Act 1988 (Cth) Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, (entered into force 1 November 2010) Family Law Act 1975 (Cth), ss 66C, 66P, 66S(2), 66W(2), 83(1)(c) 110, 110A, 110B, 124A Family Law Regulations 1984 (Cth), schs 2, 3, reg 36 Family Law Rules 2004 (Cth), r 9.03 Vienna Convention on the Law of Treaties (23 May 1969), art 60 |
| Argentina v Mellino [1987] 1 SCR 536 Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 Banco Nacional de Cuba v Sabbatino (1964) 376 US 398 Buttes Gas and Oil Co v Hammer [1982] AC 888 Cabal v United Mexican States (No 3) (2000) 186 ALR 188 Child Support Registrar & Higgins (2016) 54 Fam LR 275 Daniels v Bell [2007] FamCA 152 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Ex parte Cocks; In re Poole (1882) 21 Ch D 397 Gamogab v Akiba (2007) 159 FCR 578 Goleby & Goleby [2012] FamCA 366 In the Marriage of Lutzke (1979) 5 Fam LR 553 In the Marriage of Vakil (1997) 21 Fam LR 508 Mathieson v Hamilton (2006) 201 FLR 28 McCrea v Minister for Customs and Justice (2004) 212 ALR 297 Mee & Ferguson (1986) 10 Fam LR 971 Mokbel v Attorney-General for the Commonwealth (2007) 162 FCR 278 Naczek v Dowler [2017] FamCA 105 Oetjen v Central Leather Co (1918) 246 US 297 Pitney & Pitney[2018] FamCA 996 R v Schmidt (1987) 33 CCC (3d) 193 Re B & J (1996) 21 Fam LR 186 Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 Underhill v Hernandez (1897) 168 US 250 United Mexican States v Cabal (2001) 209 CLR 165 United States of America v McVey (1992) 77 CCC (3d) 1 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Wreford v Caley (2010) 43 Fam LR 1 |
| CCH Australia, Overseas parent living in Australia (online at 18 November 2019) [21-350] Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, opened for signature 2 October 1973, (entered into force 1 August 1976) His Honour Judge Grant T. Riethmuller & John H Wade, Australian Family Law Child Support Handbook (CCH Australia, 2019) National Interest Analysis (NIA) for the Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations (18 June 2002) [2002] ATNIA 14 |
| APPLICANT: | Mr Membrey |
| RESPONDENT: | Ms Hall |
| FILE NUMBER: | MLC | 13349 | of | 2018 |
| DATE DELIVERED: | 22 November 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 20 March 2019 2 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms C Devine Ms E Heggie |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| RESPONDENT: | In person (by telephone) |
Orders
I discharge the orders made in 1982 in the Family District Court of City B Court, USA, United States of America in proceeding No. .
I otherwise dismiss this proceeding.
Declaration
The amount to be collected by the Department of Human Services (Child Support) by way of enforcement of the Family District Court of City B Court, USA order is set at nil.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Membrey & Hall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 13349 of 2018
| Mr Membrey |
Applicant
And
| Ms Hall |
Respondent
REASONS FOR JUDGMENT
Introduction
By initiating application filed on 20 November 2018, the applicant sought an order discharging orders made in 1982 by the Family District Court of City B Court, United States of America.
The orders made by the City B, USA court were in the nature of child support orders.
The orders related to Mr C born to the applicant and the respondent in 1978, now 41 years of age, married with several children of his own. The applicant and respondent divorced in 1982 and each has since remarried other persons.
On 8 October 2018 the Australian Child Support Agency (“ACSA”) wrote to the applicant after the respondent applied to the Attorney-General City B, USA Child Support Office Central Authority to enforce the order made in 1982. The applicant in this proceeding ascertained that the respondent contended that the sum of (Australian dollars) $62 168.20 was due.
The applicant in this proceeding sought orders in one of several alternative forms. He sought orders –
a)discharging the orders of the City B, USA court made in 1982;
b)alternatively, he said the order of the City B, USA court should be varied so that the amount of child support should be equal to the sum already paid with the consequence that no arrears are owing;
c)alternatively, he said the order of the City B, USA court should be varied so that the amount of arrears in child support is decreased to zero;
d)additionally, the amount to be collected by the Department of Human Services (Child Support) by way of enforcement of the City B, USA order is set at nil.
Other orders proposed in paragraph 3 of the initiating application relied on different statutory provisions that related to the period over which the City B, USA orders operated. He sought orders fixing the amount due under the City B, USA orders.
In very brief summary, the applicant advanced a collection of reasons for the making of the orders he sought. Those reasons included the following –
a)the lapse of 23 years since Mr C turned 18 years of age;
b)the respondent’s omission to pursue whatever remedies she had over a sustained and substantial period of time; and
c)the respondent was actuated by malice in making this application.
In very brief summary, the respondent to this application advanced a collection of reasons for her contention that this proceeding should be dismissed. Those reasons included the following –
a)the Family Court of Australia had no jurisdiction to make orders touching upon or concerning an order of a court of City B, United States of America;
b)the orders of the City B, USA court were extant and unsatisfied; and
c)no order by any court had been made to the effect that sums for Mr C’s child support were otherwise than due and payable.
Synopsis
For the reasons that follow, in my judgment the application to discharge the orders of the Family District Court of City B Court, United States of America made in 1982 filed by applicant on 20 November 2018 is granted.
The history of this litigation
This proceeding was commenced on 20 November 2018. A registrar of this court made an order for the filing and service of affidavits and a response. The registrar otherwise listed the proceeding to the judicial duty list on 20 March 2019. The matter came before me on 20 March 2019. As the respondent took issue with this court’s jurisdiction to hear and determine the case, the respondent participated in that mention by telephone. I ordered each party to file and serve detailed comprehensive submissions on the point of jurisdiction. Each party complied. I ordered the case be tried on a date to be fixed. The date eventually fixed was 2 October 2019. Neither party entered the witness box, each preferring their evidence in affidavits that had been filed by each to stand. The main focus was on submissions. Neither sought to cross-examine the other.
Relevant unchallenged factual history
The applicant was born in the United States of America. He has dual citizenship as an American and Australian. The respondent was born in the United States. She is a citizen of the United States. The applicant and the respondent married in 1975. Their son Mr C was born in 1978. They separated in 1981 when they were living in City B, USA. They divorced in 1982. The applicant stated in his affidavit made 15 November 2018 that consent orders were made by the Family District Court in City B Court, USA in 1982 for –
a)Mr C to live with the respondent;
b)the applicant to spend time with Mr C on two weekends a month and on special occasions; and
c)commencing 1982, the applicant to pay the respondent monthly child support of US$200 and after six months, that increased to US$275.
Several further relevant matters emerged from the applicant’s affidavit made 15 November 2018. They included the following –
a)between 1982 and 1984 the applicant paid the required amount of monthly child support;
b)between 1982 and 1983 the applicant spent time with Mr C twice a month and on special occasions in accordance with the 1982 orders;
c)by agreement with the respondent, upon the applicant’s transfer to City J he spent one weekend per month with Mr C;
d)in 1984 the respondent informed the applicant she was moving with Mr C to City D, USA;
e)between 1984 and January 2017 the applicant did not have any contact with Mr C;
f)the applicant paid the last amount of child support in December 1984;
g)the applicant attempted to ascertain the whereabouts of the respondent and Mr C in 1985 but without success;
h)in 2002 the applicant moved to Australia;
i)in the period when the applicant remained in the United States between 1984 and 2002 the respondent could have made contact with the applicant as he was a relatively high profile personality;
j)since moving to Australia in 2002 the applicant has maintained a social media profile therefore rendering him easy to locate;
k)the respondent has not contacted the applicant since he has been in Australia; and
l)when travelling, at no stage has he been stopped by any immigration official in relation to child support default.
The applicant stated in his affidavit that in January 2017 he received a Facebook message that read “Hi Mr Membrey, I’m not sure if you remember me but I’m your son Mr C”.
The applicant swore that since that date he and Mr C have communicated on a daily basis. The applicant made various statements about Mr C’s life in the United States between 1984 and 2017. In 2017 the applicant travelled to the United States with a view to seeing the child born to Mr C and Mr C’s wife. The applicant swore that he was not challenged by any US immigration authority in relation to unpaid child support. Shortly thereafter the applicant met the respondent in tolerably cordial terms during which, so the applicant said, the respondent expressed her wish to put behind them previous acrimony. That situation did not last long as the respondent thereafter ceased communicating with Mr C, according to the applicant.
The applicant said that in July 2018 he contributed US$20 000 towards Mr C’s purchase of his first home and in November 2018 the applicant contributed a further AUD$16 000 to help Mr C discharge Mr C’s debts.
In a manner more closely resembling a submission than a statement of fact, the applicant said in paragraph 70 of his affidavit that he would have arranged his financial affairs differently had the respondent persisted in her demands for child support payment.
The applicant swore an affidavit on 13 March 2019 in which he deposed to the sum of $6 793.15 being diverted by the Australian Taxation Office (“ATO”) towards meeting the applicant’s extant liabilities for child support. He said he instructed his solicitors to hold that sum and to not appropriate it pending the outcome of this litigation.
Mr C made an affidavit on 13 November 2018. The affidavit was prepared by the applicant’s solicitors. In that affidavit Mr C stated several important things, namely –
a)he was 40 years of age when he made the affidavit;
b)he was married with a child;
c)he had some general recollection of his parents’ separation;
d)in 1984 or thereabouts he lived with his maternal grandparents in Suburb K, City L;
e)he was transported from City B, USA to City L by his maternal grandmother and his maternal aunt both of whom flew to City B, USA and then the three travelled to City L;
f)from 1984 until the end of 1989 he did not have any communication with his mother and his maternal grandparents cared for Mr C on a full time basis;
g)in his assessment Mr C’s maternal grandparents were well off and his mother did not provide her parents with funds to support Mr C when Mr C lived with his maternal grandparents;
h)in the latter half of 1989 the respondent emerged in City L with her then boyfriend and moved into her parents’ home for a few weeks;
i)in early 1990 Mr C moved into an apartment with his mother in the Suburb D, City E area of City E, where he stayed for a few months;
j)in mid 1990 the respondent and her current husband moved into a different apartment and Mr C lived with them sharing a room with the respondent’s husband’s son;
k)the respondent eloped and married her current husband in Country M in the latter half of 1990;
l)between 1990 and 1994 Mr C lived with the respondent and her husband in a house in Suburb G, City E;
m)the respondent’s husband constructed a large house in Suburb F, City E in 1994;
n)the respondent and her husband arranged for Mr C’s name to be changed to the respondent’s husband’s surname when Mr C was 15 (other documentation in this case revealed that by order of a judge of the Family Court of the Fifth Judicial Circuit Mr C’s name was changed in 1995);
o)Mr C changed his own surname to that of the applicant 22 years later in 2017;
p)when Mr C lived with his mother and her husband he (Mr C) wanted for nothing;
q)in 2017, Mr C arranged a family gathering in City N to celebrate the birth of his son to which the applicant was invited, since which the respondent has not spoken to Mr C; and
r)the applicant gave Mr C AUD$16 000 in 2018 and a further AUD$20 000.
The issues raised in this case
Certain unusual features emerged in this case. The first related to Mr C’s age and the application of child support legislation to a person who has been an adult for more than 22 years. The second related to the paucity of the evidence to the effect that any order of the City B, USA court had been in fact registered in Australia. The third related to the absence of any involvement in this case of the Child Support Registrar. The fourth related to the fact that the mother had not pressed for many years for the enforcement of orders she said had not been honoured by the husband. And finally, the fifth unusual feature of this case was the father’s application for an order, from an Australian court, relieving him of a lawful obligation that was imposed by a foreign court. Each calls for separate consideration, which I have done below.
Several other relevant issues emerged. They included the following –
a)as mentioned in paragraph 4 above, on 8 October 2018 ACSA wrote to the applicant in consequence of the respondent applying to the Attorney-General City B, USA Child Support Office Central Authority to enforce the 1982 order of the City B, USA court;
b)as mentioned in paragraph 17 above, the ATO diverted the sum of $6 793.15 towards meeting the applicant’s liabilities for child support; and
c)as mention in paragraph 12(l) above, the applicant has travelled into and out of the United States as well as into Australia and he has not been stopped or questioned about his payment of sums due on account of child support.
It is peculiar that the Child Support Registrar has not become involved in this case, especially where ACSA has become involved and also the ATO was involved.
Based on the respondent’s present position as revealed by her affidavit material, the applicant is concerned about at least three matters. They are –
a)despite the lapse of so many years since the City B, USA court made the child support orders in 1982 and despite the fact that the respondent has not actively pursued the applicant seeking payment thereof, the respondent now wants the sums outstanding paid;
b)additionally, the respondent wants not only arrears paid but additionally a further $200 000 in relation to hospitalisation costs and “years of dental and medical expenses”; and
c)the respondent now raises allegations that the applicant has engaged in fraud.
Thus, according to the applicant, after years of this episode being dormant, the respondent now wants to agitate for the payment of all sums payable (plus arrears even though they may be statute-barred), plus a further $200 000 plus fraud allegations. The applicant’s approach in seeking the orders outlined in paragraph 5 above are better understood in that context.
The respondent’s evidence
The respondent relied on a collection of affidavits she and others made, mainly in December 2018. It is necessary to go to each. Some were the subject of responding affidavits from the applicant and Mr C. None of the deponents who made affidavits in support of the respondent gave viva voce evidence before me. The respondent herself prepared all affidavit material of the various deponents on whose evidence she relied. At the foot of each affidavit, whether made by her or otherwise, the respondent wrote in the space for her contact address “None – I have no ties to Australia – I am an American citizen”. At the foot of her affidavit made 7 February 2019 the respondent additionally wrote at the foot “US citizen – no ties to Australia – under cover of Family Law Rule 9.03 – objection to jurisdiction”.
The respondent made two affidavits on 17 December 2018, one as to substantive matters, the other as to service issues. It is convenient to first address the respondent’s affidavit made 17 December 2018 in which she deposed to substantive matters. In essence, she stated –
a)process in this court had not been properly served on her by being personally handed to her in accordance with the Hague Convention or City L laws;
b)she and her present husband had been married for almost 29 years;
c)she did not consent to this court exercising jurisdiction in this case;
d)she married the applicant in 1976 having graduated from high school in 1975 as an 18 year old;
e)the applicant had very little involvement with Mr C during his marriage to the respondent;
f)in 1982 the respondent and Mr C moved to City L from City B, USA;
g)in 1984 the respondent and Mr C moved back to City B, USA until 1987 during which the respondent took Mr C to visit the applicant’s parents on a regular basis;
h)in 1987 the respondent and Mr C moved back to City L;
i)in 1987 the respondent opened a business in City E which she operated until 1994;
j)a warrant was issued for the applicant’s arrest by reason of his failure to pay child support amounts;
k)in 1987 Mr C was hospitalised for 45 days in respect of which the respondent paid all hospital expenses;
l)the respondent and her current husband married in 1990;
m)in 1991 the applicant telephoned the respondent to inform her that he was in the process of divorcing a woman he had married in the Country H;
n)in 1994 Mr C indicated a wish to change his surname to that of his mother’s then husband;
o)in 1997 Mr C enlisted in the public service but was later discharged;
p)Mr C has married three times and has two children with his first wife;
q)according to the respondent, Mr C has “discarded” the respondent (her word);
r)the respondent and Mr C did not have a relationship between 2005 and 2016 when Mr C notified the respondent that his marriage with his second wife was ending;
s)on 14 February 2017 the respondent located the applicant by electronic search as she said the applicant owed her money and she wanted it (her words);
t)Mr C is a drug addict who presently works in a nightclub;
u)the respondent described the event arranged by Mr C to celebrate the birth of his son as a “baby auction” that the applicant “won” (her words in paragraph 29 of her affidavit);
v)the respondent will request the State of City B, USA to increase the amount due on account of child support by a further $200 000 in relation to hospitalisation costs and years of dental and medical expenses (her words); and
w)the respondent said the applicant has engaged in fraud.
In her second affidavit made on 17 December 2018 the respondent commenced her affidavit by objecting to the jurisdiction of this court and by asserting that the court in City B, USA was the appropriate court.
The respondent’s current husband made an affidavit on 17 December 2018 stating he picked up a package left on the street in a wet paper box. No doubt with a view to showing that the respondent was not properly served, the respondent relied on the affidavit of another person who deposed on 17 December 2018 to a process server not approaching or handing the respondent court documents. The respondent’s granddaughter made an affidavit, the salient portion of which was a statement that at no time was her grandmother approached by a process server or handed documents.
In her affidavit made 7 February 2019, the respondent stated she and the applicant had been divorced for 37 years. She again objected to the jurisdiction of this court. She stated she had not travelled to Australia. She recorded the text of emails she sent to the applicant’s solicitor on 12 December 2018 in which she asserted that the sum of US$149 812.39 was outstanding in child support. She purported to set out the provisions of a treaty between Australia and the United States of America that she termed “Enforcement of Maintenance Support Obligations”.[1]
[1] Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations, signed 12 December 2002, [2002] ATS 24 (entered into force 12 December 2002)
Mr C replied to some of the assertions made by the respondent. Apart from certain alterations to dates in the 1980s to which he had earlier referred, he denied any addiction to drugs and he admitted to having worked in the entertainment industry for 13 years.
The applicant also replied to the respondent’s affidavit material in his affidavit made 31 January 2019. Relevantly synthesised, he stated –
a)he is currently being supported by his wife;
b)by way of submission he made an observation about the permissible methods of sending court documents internationally pursuant to the 1965 Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters[2] done in the Hague;
c)he disputed the respondent’s contentions that she had not been properly served with process originating in this court; and
d)otherwise he denied the majority of the assertions made by the respondent especially attempts in 1990 to contact the respondent and Mr C.
[2] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, (entered into force 10 February 1969)
The amended initiating application
On 21 December 2018 the applicant filed an amended initiating application in which he deleted part 3, interim or procedural orders sought.
Written submissions
On behalf of the applicant, Ms Catherine Devine of counsel addressed me on 20 March 2019. She told me enough about the factual and legal complexities of this case that I decided that I required the parties to file detailed and comprehensive written submissions, which the parties did. It struck me that issues of private international law were likely to arise, especially in relation to the justiciability of a proceeding in an Australian federal court in which orders were sought altering in some way an order of a foreign court over which, on one analysis, Australia’s jurisdiction may have been tenuous.
In this case the Child Support Enforcement Division of the Office of the Attorney-General of the State of City B, USA has been involved in assisting the respondent since 2018. The applicant did not seek orders enjoining that entity from undertaking its work in City B, USA. No doubt that was for the very good reason that according to principles of international law, especially the doctrine of non-adjudication, courts of one country will not sit in judgment on the acts of the government of another done within its own territory. As Gordon J pointed out (when her Honour was sitting as a single judge of the Federal Court of Australia prior to her Honour’s elevation to the High Court of Australia) in Mokbel v Attorney-General for the Commonwealth[3] the principle of non-adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by a country to the laws and institutions of another. The rule has been expressed by the House of Lords in Buttes Gas and Oil Co v Hammer[4] and in Royal Government of Greece v Governor of Brixton Prison,[5] by the Supreme Court of the United States of America in Underhill v Hernandez,[6] Oetjen v Central Leather Co[7] as well as in Banco Nacional de Cuba v Sabbatino.[8] It has also been expressed in Canadian decisions including United States of America v McVey,[9] R v Schmidt[10] and Argentina v Mellino.[11] In Australia the point has been repeatedly embraced in such High Court decisions as Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd[12] and Voth v Manildra Flour Mills Pty Ltd.[13] In the Federal Court the point was followed in cases such as Gamogab v Akiba,[14] McCrea v Minister for Customs and Justice,[15] Cabal v United Mexican States (No 3)[16] and Todhunter v Attorney-General (Cth).[17]
[3] (2007) 162 FCR 278
[4] [1982] AC 888
[5] [1971] AC 250
[6] (1897) 168 US 250
[7] (1918) 246 US 297
[8] (1964) 376 US 398
[9] (1992) 77 CCC (3d) 1
[10] (1987) 33 CCC (3d) 193
[11] [1987] 1 SCR 536
[12] (1988) 165 CLR 30
[13] (1990) 171 CLR 538
[14] (2007) 159 FCR 578
[15] (2004) 212 ALR 297
[16] (2000) 186 ALR 188
[17] (1994) 52 FCR 228
The applicant’s contentions placed reliance on several Australian legislative enactments. They were –
a)the Family Law Act (especially ss 66C, 66P and 66W);
b)the Child Support (Registration and Collection) Act; and
c)the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations.
The respondent relied on the Family Law Rules to maintain her argument that she challenged this court’s jurisdiction.
The legislative scheme for enforcing overseas maintenance orders
Australian law relating to child support is less than straightforward. So that the respondent might better understand these reasons and the rationale underpinning them, it struck me that some explanation of the legislative framework in relation to Australian child support law was required. The detail in the following two paragraphs has been derived from one of the leading text books on child support.[18]
[18] His Honour Judge Grant T. Riethmuller & John H Wade, Australian Family Law Child Support Handbook (CCH Australia, 2019) 2-155
In the late 1970s, issues relating to the payment of maintenance (also known as child support) for children not living with both parents created a significant social problem. Those problems included (but were not limited to) –
a)orders where the prescribed amounts were extremely low, often $15 to $20 per week;
b)inflation that outstripped the real value of the orders with the consequential practical obstacles and inconvenience of the need for updating the prescribed amount by returning to court;
c)up to 40% of maintenance orders were not complied with;
d)the rapid escalation in rates of divorce;
e)the increase in recipients of single parent pensions;
f)the increase in child poverty; and
g)the blow-out in federal welfare payments.
Pursuant to a departmental enquiry, in 1983 the Attorney-General’s Department recommended the establishment of a government agency to be known as the National Maintenance Agency. The government of the day rejected the recommendation. Two years later in 1985 a recommendation was made by a specialist body of family law practitioners about child support. That recommendation did not receive acclaim. The following year the Full Court of the Family Court in Mee & Ferguson[19] decided a child support case and set out a number of considerations that it said should be taken into account in making an appropriate maintenance or child support order. Legislative reform then followed in 1987 with the passing of the Child Support Act 1988 that came into operation on 1 June 1988 and with the enactment of the Child Support (Assessment) Act 1989 that came into operation on 1 October 1989.
[19] (1986) 10 Fam LR 971
Section 3 of the Australian Child Support (Assessment) Act (“CSAA”) imposes upon the parents of a child the primary duty to maintain the child. It is not possible for a person to contract out of his or her obligations under the CSAA nor can a person be estopped from claiming child support, a proposition decided in Re B & J.[20] As s 4 of the CSAA provides, the principal object of that Act is ensuring that children receive a proper level of financial support from their parents. A relevant issue in this case was the applicability of the CSAA to a “child” having regard to the fact that Mr C is currently over 40 years of age. The definition of “child eligible for administrative assessment” illuminates the point under s 5, as does s 24, because in both sections the eligible “child” must be under 18 years of age and must be an Australian citizen or present or ordinarily resident in Australia on the day the application for child support is made. Section 18 provides that the CSAA only applies to what are termed “eligible children” meaning, from s 19, a child born on or after the commencing day of the CSAA, namely in 1989. Mr C was born prior to that day. Prima facie, the CSAA does not therefore apply as he is not an eligible child.
[20] (1996) 21 Fam LR 186
In Australia, the tandem legislation to the CSAA is the Child Support (Registration and Collection) Act 1988 (“CSRCA”). It commenced operation on 1 June 1988. The CSRCA makes provision for the collection and enforcement of child support liabilities. Under the provisions of the CSRCA, various statutory personalities were created including the Child Support Registrar. In overview, CSRCA established a legislative regime pursuant to which the holder of a “registrable maintenance liability” (as defined in the Act) became entitled to register the liability with a statutory agency called the Child Support Agency. Once registered, amounts payable became debts due to the Commonwealth of Australia under s 30 of the CSRCA. The CSRCA provided for two circumstances in which a person otherwise required to meet his or her liability under the Act might be relieved of that liability, namely –
a)where the payer had become unemployed and was in receipt of unemployment benefits; and
b)where the child is no longer lived with the payee of the liability.
A person who is liable to meet child support payments must pay the assessed amount to the Child Support Agency which in turn pays the prescribed sum to the payee. If a child support debt remains unpaid, the Child Support Registrar has power to commence a proceeding in court to enforce the debt.
It is necessary to go to the detail of the child support legislation.
Section 3(1) of the CSRCA sets out the objects of the Act. The reference in s 3(1)(c) to international agreements or arrangements is a reference to maintenance obligations arising under various treaties into which Australia has entered.
On 20 June 1956 the United Nations Convention on the Recovery Abroad of Maintenance[21] (colloquially given the acronym “UNCRAM”) was done in New York. Australia is a Contracting Party to UNCRAM. It aimed to overcome the legal and practical difficulties involved in the establishment of claims for maintenance abroad where reciprocal arrangements did not exist. UNCRAM became part of Australia’s domestic legislation as schedule 3 to the Family Law Regulations.
[21] Convention on the Recovery Abroad of Maintenance, opened for signature 17 May 1955, 268 UNTS 3 (entered into force 25 May 1957)
On 1 February 2001 Australia became a Contracting State to the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.[22] The other signatories to that convention were mainly European countries with which Australia had no reciprocal arrangements.
[22] Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, opened for signature 2 October 1973, (entered into force 1 August 1976)
Australia and various States of the United States of America enjoyed arrangements that were extraneous to any treaty providing for the establishment and enforcement of child support and spousal maintenance liabilities. In 2002 the Australian Government published a National Interest Analysis[23] in relation to a proposed Agreement Between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations. Certain aspects of the national interest analysis call for attention. Paragraph 4 was in the following terms –
[23] National Interest Analysis (NIA) for the Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations (18 June 2002) [2002] ATNIA 14
Summary of the purpose of the proposed treaty action and why it is in the national interest
4.The purpose of the Agreement is to provide reciprocal arrangements between Australia and the USA for establishing and enforcing child support and spousal maintenance liabilities. It will benefit Australian children and their parents by facilitating the payment of child support and spousal maintenance.
One of the benefits of that agreement lay in its national application to the whole of the USA rather than only to certain states of the USA. Paragraphs five to eight of the national interest analysis gave the background in the following terms –
Reasons for Australia to take the proposed treaty action
5.The Agreement will benefit Australia by providing for treaty obligations with the whole of the USA. Currently, non-treaty arrangements exist between Australia and some individual States of the USA for the establishment and enforcement of child support and spousal maintenance liabilities.
6.These previous arrangements with individual States were devised on the basis that all maintenance liabilities were in the form of orders made, or agreements registered, by a court. Replacement of these arrangements is appropriate since they are unsuited to the current situation in Australia in which maintenance ordered by a court is gradually being replaced by administrative assessments of child support that are issued by the Child Support Agency (which is an agency of Australia's Department of Family and Community Services).
7.Thus a major benefit of the Agreement to Australian recipients of child support is that the Agreement provides for the reciprocal enforcement of administrative assessments of child support as well as enforcement of court orders and registered agreements.
8.Another benefit of the Agreement is that it will assist Australian parents by providing for the appointment in the USA of a federal Central Authority. The Central Authority will have responsibility for coordinating action by US State government agencies on requests by Australian claimants for assistance in obtaining child support and spousal maintenance. In the past Australian courts and claimants have been concerned about wide variations in the effectiveness of laws and procedures in US States for obtaining maintenance.
The national interest analysis addressed the way the agreement was intended to operate. Specifically, it addressed the portions of the agreement that required Australian law to make provision for the recognition and enforcement of child support and spousal maintenance decisions of judicial and administrative authorities of the USA. The provisions of the national interest analysis were in the following terms –
Obligations
9.The Agreement requires that Australian law provide for the recognition and enforcement of child support and spousal maintenance decisions of judicial and administrative authorities of the USA. In addition the Agreement requires the recognition and enforcement of registered maintenance agreements (agreements made between parents and lodged with a court or with the Child Support Agency). A similar obligation will be imposed on the USA in respect of recognition and enforcement of Australian decisions in the USA (Article 7).
10.The Agreement obliges each country to appoint a Central Authority which will take responsibility for coordinating all agencies (Article 3) and will take follow up action on all maintenance cases referred for enforcement (Article 5).
11.A Central Authority (or other designated public body) will be obliged to transmit applications and supporting documents to the Central Authority in the other country (Article 4). Authorities in both countries will be obliged to take all appropriate steps to recover monies payable under maintenance and child support liabilities (Article 5). Any monies collected are to be paid to the Central Authority of the other country for payment to the claimant or for other disbursement in accordance with the laws of that country. This is to be free of charge to claimants (Article 6).
12.The Agreement also requires the recognition of parentage determinations or, in the absence of recognition, requires that steps be taken on behalf of the parent to establish parentage (Article 7).
13.In carrying out their tasks under the Agreement the Parties must provide each other with assistance and information within the limits of their respective laws (Article 4).
The machinery provisions for the implementation of the agreement were set out in paragraphs 14 and 15 of the national interest analysis. Those paragraphs were as follows –
Implementation
14.The Agreement will be implemented in Australia by the Child Support Agency, which will administratively enforce USA child support assessments, court maintenance orders, registered agreements and penalties. The Agency will also send applications for recognition and enforcement of Australian liabilities to the USA Central Authority, which will pass the liabilities to US State judicial and administrative authorities for enforcement.
15.No additional legislation is required to implement the Agreement. Provisions to implement the Agreement are already in force under the Child Support (Assessment) Act 1989 (section 163B), the Child Support (Registration and Collection) Act 1988 (section 124A) and the Family Law Act 1975 (sections 110-110B and 124A).
In this case counsel for the applicant in written submissions dated 23 April 2019 contended that the orders of the City B, USA court made in 1982 were an “overseas maintenance liability” for the purposes of the definition of that phrase in s 4 of the CSRCA. That term is defined as follows –
“overseas maintenance liability” means 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.
Counsel for the applicant said the City B Court order was a “maintenance order” as defined in subsection 4(a) of the definition. That construction was in contradistinction to the City B Court order being a “maintenance agreement” as defined or a “maintenance assessment” as defined. There was no doubt the City B court was a “judicial authority”. Whether the City B court was a “judicial authority of a reciprocating jurisdiction” depended on whether the United States of America was a “foreign country” prescribed by the regulations to be a reciprocating country. Counsel for the applicant in this case submitted that it was. In her written submissions Ms Devine contended that regulation 5 of schedule 2 to the Child Support (Registration and Collection) Regulations 2018 identified the United State of America as a “reciprocating jurisdiction”. Ms Devine contended the affidavit material of the applicant revealed the following –
a)on or about 17 October 2018 the applicant received a letter from ACSA, the letter being dated 8 October 2018;
b)on telephoning ACSA the applicant was told that the sum of $62 168.20 Australian dollars was allegedly owing; and
c)as this was an international collection case, the applicant could not apply for a stay.
Ms Heggie of counsel (who appeared before me on 2 October 2019 in place of Ms Devine) submitted that the orders of the City B, USA court were properly characterised as an “overseas maintenance liability” for the purposes of s 4 of the CSRCA. She said the City B, USA orders were a “registrable maintenance liability for the purposes of s 18A of the CSRCA” and that upon registration of those orders the amount recorded in the orders became a debt due to the Commonwealth of Australia, amenable to collection by ACSA. Ms Heggie contended that the applicant was entitled to make his application in this litigation by virtue of regulation 36 of schedule 2 of the Family Law Regulations.
I agree.
That regulation enabled the applicant to apply to this court for an order (among others) discharging or varying a liability to which the regulation applied. The regulation also enabled the person against whom the order was made (the applicant in this case) to apply and regulation 36(4) provided that the law to be applied “is the law in force in Australia under the Act”. Reference there to “the Act” was reference to the Family Law Act, as was held in Child Support Registrar & Higgins.[24]
[24] (2016) 54 Fam LR 275
In my view, Ms Devine’s contentions about the legislative regime that makes provision for the bringing of this application were correct. This application was properly brought in accordance with that regime. This proceeding has been properly and regularly commenced.
Before passing on from the minutiae of the regulations, it is relevant to make a further observation about the fact of registration of the overseas order, in this case the order of the City B, USA court. In this proceeding a degree of imprecision emerged in the evidence about whether and if so when the order of the City B, USA court was, in fact and in law, registered in Australia. No document was exhibited to the applicant’s affidavit material demonstrating that the order of the City B, USA court was registered in Australia. Yet that will not be determinative of the fate of this application because authority in this court has held that it is sufficient that the relevant order is capable of being registered even if not actually registered. That much was the upshot of Naczek v Dowler.[25]
[25] [2017] FamCA 105 (especially at [24] – [29])
The relevant criteria to be shown
The applicant in this case correctly relied on regulation 36 as the source of my power to make the order he sought for the discharge of the orders made by the City B, USA court. Regulation 36(2) provides that a person who meets the criteria in regulation 36(3) may apply to the Family Court of Australia for an order discharging the order to which regulation 36 applies, relevantly here, the City B, USA court order of 1982. Section 66S(2) of the Family Law Act confers power on this court to discharge the City B court order only “if there is just cause for so doing.”A considerable volume of decided cases has emerged about the phrase “if there is just cause for so doing” in s 66S(2). The phrase “just cause” has been the subject of decisions in the context of applications for the discharge of maintenance applications under s 83(1)(c) of the Family Law Act, an earlier iteration of the substance of s 66S. The phrase “just cause” is not defined in the Family Law Act, a point observed by Lindenmayer J in In the Marriage of Lutzke.[26] There, his Honour held that 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. In In the Marriage of Vakil[27] the Full Court (Fogarty, Lindenmayer & Moore JJ) held that the expression “just cause” was to be determined as an exercise of judicial discretion by reference to notions of what would be regarded as right and proper in Australia. There, the Full Court adopted the observations of Sir George Jessel MR in Ex parte Cocks; In re Poole[28] where the Master of the Rolls held that just cause meant “substantial reason must be shown.”
[26] (1979) 5 Fam LR 553
[27] (1997) 21 Fam LR 508
[28] (1882) 21 Ch D 397
In Daniels v Bell,[29] the Full Court addressed the phrase “just cause” but in the context of s 66W(2). The Full Court held that the relevant point in time at which just cause had to be shown was the time when the court was considering varying a maintenance order, at the time of the hearing. In the subsequent Full Court decision of Wreford v Caley,[30] a differently constituted Full Court adopted the observations in Daniels v Bell as well as the decision of a magistrate in Mathieson v Hamilton[31] where the magistrate made observations about factual matters which may – repeat, may – go to establishing “just cause.” For my part, I take the view that it is dangerous to prescribe anything akin to a checklist when seeking to elucidate factual circumstances that may or may not, on the facts of any particular case, go to what is a wholly discretionary question. In my view, safer resort is to be had in 19th century chancery jurisprudence adumbrated by Sir George Jessel MR that just cause equates to substantial reasons being shown. Helpful as may be the indicators adopted by the Full Court in Wreford v Caley, in and of themselves, none are determinative where circumstances exist that cumulatively will or will not amount to just cause. In Goleby & Goleby[32] reference was made to the court’s unfettered discretion when considering the enforcement of arrears of maintenance or child support obligations.
[29] [2007] FamCA 152
[30](2010) 43 Fam LR 1
[31](2006) 201 FLR 28
[32][2012] FamCA 366
The decision in Pitney & Pitney[33] is of relevance in that Forrest J was there concerned with an application to discharge child maintenance orders made by a court of the United States of America. His Honour made the relevant orders. His Honour made those orders notwithstanding the fact that United States courts do not normally recognise variations ordered by Australian courts to liabilities originating in the United States.[34]
[33][2018] FamCA 996
[34] CCH Australia, Overseas parent living in Australia (online at 18 November 2019) [21-350]
Just cause in this case
In my view, just cause has been shown in this case to make an order for the discharge of the applicant’s liability arising out of the City B order. I say that for the several reasons that follow –
a)Mr C is well into his adulthood;
b)the applicant’s liability to meet Mr C’s maintenance lapsed upon Mr C attaining his majority;
c)the applicant has already made significant financial contributions to Mr C’s personal circumstances;
d)the respondent could have but failed to pursue the applicant in respect of the City B, USA orders for most of Mr C’s life;
e)Mr C, on his own evidence, enjoyed a standard of living in his childhood in which he did not want for anything;
f)the respondent’s pursuit of the applicant to make payments in accordance with the City B, USA court order has been actuated by the relatively recent events following Mr C’s reconnection with the applicant and after the respondent formed the view that the respondent was scorned by Mr C; and
g)the claim for hospital costs is without foundation, it is unquantified with any precision, it goes beyond the City B orders and it is ambit in nature.
In her written submissions the respondent placed reliance on various propositions of constitutional law of the United States of America. Several things must be said about those submissions. First, the respondent gave no details in any affidavits filed by her that she had legal training or qualifications to enable her to make submissions about law that is foreign to Australian law, namely, submissions concerning constitutional law of the United States of America. That put the respondent in a category of deponent to which the High Court directed observations in Dasreef Pty Ltd v Hawchar.[35]
[35] (2011) 243 CLR 588
Next, ordinarily propositions or legal principles of constitutional law of the United States of America are of limited utility when deciding a matter of Australian family law. While I have read and considered the respondent’s propositions on point, I was not persuaded by them.
Another matter that emerged from the respondent’s submissions related to the provisions of legislation in the United States of America having no parallel in Australia, namely, the Deadbeat Parents Punishment Act. That legislation has a particular utility in the United States. Its terms in the context of the social environment of the United States are well known there. In Australia, all aspects of child maintenance are governed by the combined application of the enactments recorded in paragraph 34 above. Interesting as it was to learn of the provisions of the Deadbeat Parents Punishment Act, the provisions of that Act do not apply to this case nor do those provisions bind me.
Last, the respondent was forceful in her contentions that nothing an Australian court can say, do or order in this case will alter the fact that the particulars of the City B court order are currently extant and need to be honoured. I readily accept that to the lay observer it would seem a real curiosity that a court in Australia could make an order destroying the operation of an order made by a court of the United States. After all, in the usual course of events and as a matter of international law, the decisions of courts of one sovereign state are normally limited in their application to that particular sovereign state. However, in matters of international treaties of the sort to which Australia and the United States entered on child maintenance as recorded above and which have since been enshrined in local domestic law by enactment, the reciprocal nature of those laws becomes immediately apparent. In that eventuality the regime to which each country has bound itself by treaty becomes embedded into the local fabric of the laws of each contracting country to the treaty. In the case of child support legislation, the United States and Australia by international treaty agreed that each would enact laws in identical terms. The power of the courts of one of those countries to make orders discharging earlier orders of the other country was specifically agreed. That agreement was enshrined in legislation in each other’s jurisdiction. Specifically, these orders are to be recognised in the United States in the same way as corresponding orders made by an American court for the discharge of orders originally made in this country would be given effect. That is consistent with the obligations of countries which are signatories to international treaties, as was espoused by the High Court of Australia in United Mexican States v Cabal.[36] In reference to treaty obligations and citing Article 60 of the Vienna Convention on the Law of Treaties (23 May 1969), the plurality of the court in Cabal said the following[37] –
If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty.
[36](2001) 209 CLR 165
[37] [1974] 1155 UNTS 331
Conclusion
In my view, orders should be made as are pronounced above.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 22 November 2019.
Associate:
Date: 22 November 2019
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