Nellums & Clemen (No 2)

Case [2022] FedCFamC1F 801

Federal Circuit and Family Court of Australia

(DIVISION 1)

Nellums & Clemen (No 2) [2022] FedCFamC1F 801

File number(s): BRC 11282 of 2014
Judgment of: CAMPTON J
Date of judgment: 19 October 2022
Catchwords:

FAMILY LAW – CONTRAVENTION – Where the father alleges multiple contraventions of final parenting orders – Where the mother concedes a breach of orders in respect of some of the alleged contraventions but asserts she had a reasonable excuse for doing so – Where the mother failed to establish reasonable excuse – Where a penalty is imposed pursuant to Subdivision F of Division 13A Part VII of the Family Law Act 1975 (Cth) – Where a good behaviour bond is imposed upon the mother for a period of two years – Where the final orders are varied to ensure compliance.

FAMILY LAW – CHILD SUPPORT – Where the mother applies for enforcement of child support arrears – Where the mother’s application was commenced in the Federal Circuit and Family Court of Australia (Division 1) – Where s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) prohibits the institution of child support proceedings in the Federal Circuit and Family Court of Australia (Division 1) – Proceedings transferred to the Federal Circuit and Family Court of Australia (Division 2) pursuant to s 50(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

Legislation:

Child Support (Registration and Collection) Act 1998 (Cth) s 30, 113A

Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 4, 60CA, 60CC, 64B, 65D, 68B, 69DN, 70NAC, 70NAE, 70NAF, 70NBA, 70NEB, 70NEF, 70NFA, 102QB,

Federal Circuit and Family Court of Australia 2021 (Cth) ss 50, 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 14.07

Cases cited:

Cardus & Lavrick [2020] FamCA 579

Daymond & Joslyn [2021] FedCFamC1F 2

Freeman & Freeman (1987) FLC 91-857; [1986] FamCA 23

Hunter & Child Support Registrar [2017] FamCAFC 259

McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62

Sandex & Bondir (No 2) [2017] FamCAFC 130
Division: Division 1 First Instance
Number of paragraphs: 204
Date of hearing: 29 September 2022
Place: Brisbane
The Applicant: Litigant in person
The Respondent: Litigant in person

ORDERS

BRC 11282 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR NELLUMS

Applicant
AND:

MS CLEMEN

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

18 October 2022

THE COURT ORDERS THAT:

1.In relation to the Application-Contravention filed by the father on 6 December 2019, the Court finds that the mother without reasonable excuse:

(a)Contravened Order 3(a)(i) made 1 March 2019 on 15 March 2019;

(b)Contravened Order 3(a)(i) made 1 March 2019 on 14 June 2019.

2.In relation to the Application-Contravention filed by the father on 25 February 2022, the Court finds that the mother without reasonable excuse:

(a)Contravened Order 1(b) made 25 June 2021 on 4 July 2021.

3.Pursuant to s 70NFB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), within…

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Nellums & Clemen (No 2) [2022] FedCFamC1F 801
Case
[2022] FedCFamC1F 801
Decision Date

CaseChat Overview and Summary

In the case of Nellums & Clemen (No 2), the primary issue before the court was the enforcement of a child support arrears order against the father by the mother. The mother sought to directly enforce the payment of outstanding child support arrears pursuant to section 113A of the Child Support (Registration and Collection) Act 1998 (Cth). The father contested the mother's application, arguing that enforcement through the court was not appropriate and that the Child Support Agency should be allowed to handle the collection of the arrears.

The court considered the jurisdictional requirements for child support enforcement applications, the discretion available in enforcing such orders, and the broad enforcement powers vested in the Child Support Agency. The court also noted that the Child Support registrar had the authority to prohibit the father from leaving Australia unless satisfactory arrangements were made for the payment of the child support liability. The court found that there was no evidence that the Child Support Agency had unsuccessfully attempted to enforce the arrears and that there appeared to be a dispute regarding whether the liability for arrears was subject to an administrative review or appeal.

The court rejected the mother's argument that the child would be exposed to an unacceptable risk if he spent time with his father. The court found the mother's assertions regarding the risk to be speculative, fanciful, and lacking evidentiary foundation. The court also considered the child's uncertainty and reluctance towards spending time with his father, but found that there was no evidence of fear or unsafety on the part of the child. The court concluded that both parents were loving and motivated to be part of the child's life, and that the father had taken opportunities to participate in the child's life when they were available to him.

The court did not make a finding as to the mother's standing to enforce the recovery of the child support arrears. However, the court noted that the enforcement power of the court was highly discretionary and may not be exercised in this case. The court directed the parties to refer to specific sections of the Child Support Act and the Family Law Act 1975 (Cth) regarding costs and made no orders for costs at that time. The court expressed hope that the determination would mark the end of the litigation between the parents and allow the child to explore a meaningful relationship with his father.

This case highlights the importance of considering jurisdictional requirements and the appropriate forum for child support enforcement, as well as the broad powers vested in the Child Support Agency in enforcing child support arrears. The court also emphasises the need to consider the child's best interests and the motivations of both parents in making decisions regarding parenting and child support matters.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Both parties, either by way of the documentation filed or in the course of the hearing indicated they would seek costs. No submissions were made as to costs. Orders will be made permitting the parties to make submissions in writing should they consider an order for costs is justified in the circumstances. The parties are directed to the provisions of ss 117(1), 117(2A), 70NFB(1) of the Act. Conclusion as to parenting matters The Court expresses its hope on behalf of X that this determination will now mark the end of the litigation between the parents. It is time for the parents to move on with their lives, and for X to have the opportunity to explore a meaningful relationship with his father. The mother’s enforcement application The mother by way of her Application-Enforcement filed on 1 August 2022 in the FCFCOA (Division 1) (“the mother’s Enforcement Application”) seeks orders to recover arrears of a periodic child support assessment payable by the father in respect of X. Her affidavit filed on 19 September 2022 annexed a certificate issued by the Child Support Agency pursuant to the Child Support (Registration and Collection) Act 1998 (Cth) (“the Child Support Act”). That certificate is prima facie evidence of:(a)The fact of the registration of the Child Support liability payable to the mother by the father; and(b)That the registration of the Child Support liability payable by father is by statutory operation a debt due by the father to the Commonwealth. Hence that mother is not entitled to directly enforce the payment of any amounts due from the father (see s 30 of the Child Support Act); and(c)The sum of $15,953.42 is due and payable by the father by way of arrears of periodic child support as at 15 September 2022. The mother seeks in this case, pursuant to s 113A of the Child Support Act, to directly enforce against the father payment of outstanding arrears of the registered periodic child support. When the matter came before me on 8 August 2022, I provided notice to the mother as to:(a)The requirement for her to comply with ss 30 and 113A of the Child Support Act; and(b)The jurisdictional requirements for child support enforcement applications set out in the FCFCOA Act. On that date I invited the mother to file a Notice of Discontinuance of her Application-Enforcement on a without prejudice basis. She declined to do so. The mother’s affidavit records the forwarding to the Child Support Agency a copy of the orders made on the 8 August 2022 confirming the fact of her filing her application-enforcement of the mother and its listing for hearing on 29 September 2022. I make no finding as to the mother’s standing to enforce the recovery of the arrears of child support. I note that:(a)The enforcement power of the court is highly discretionary and may not be exercised in this case; and(b)The Child Support Act vests the Child Support Agency with extremely broad powers of enforcement for the collection of arrears of child support to both federal and state courts, including those available under the Act and the Rules. The Child Support registrar has the power to prohibit the father from leaving Australia unless satisfactory arrangements have been made for any outstanding child support liability to be wholly discharged by way of a departure prohibition order. The registrar could require the father to provide security for payment of the liability. Importantly the registrar's power to make a departure prohibition order is an administrative act and not the exercise of judicial power (see Hunter & Child Support Registrar [2017] FamCAFC 259). In the event the father attends to spend time with X, such an order may prevent him leaving Australia until the outstanding arrears are satisfied, hence avoiding any further litigation between the parties; and (c)There is no evidence as to any unsuccessful attempts by the Child Support Agency to enforce any unpaid arrears as certified against the father; and (d)There appears some dispute if the liability for arrears remains the subject of an administrative or Administrative Appeals Tribunal review or appeal procedure.

Ratio Decidendi

Legal Principle Established

On the evidence I reject the mother’s case as to X being exposed to an unacceptable risk should he exercise time with his father by way of the regime contained in the orders made 1 March 2019. I find the mother’s case as to risk to be speculative, fanciful and absent evidentiary foundation.Additional considerations I accept that X has expressed uncertainty as to spending time with the father. He reported to Ms M that he was “not sure” how he felt about spending time with his father, as recorded in the Child Inclusive Memorandum dated 25 June 2021. Just over one week later, he was allegedly so anxious to attend time with the father that J Consultancy concluded the scheduled session with him. In September 2022, Ms Egan recorded that: 8.Even if [X]’s father wanted to see him, [X] told me that he would “Probably not want to see him cause he has regularly not come (to visit). He’s not really part of my life”. [X]’s expectations for someone who was ‘part of his life’, was “Checking in every day” and “Spending more time” with him. 9.[X] understood and did not appear to mind that if his father is absent, he would not be involved in important milestones of his life, for example, if he was to have children of his own. 10.[X] was “Not sure” how his mother would feel if he spent time with his father. 11.[X] did not think his father could do anything differently for him to want to see him in the future. [X] said, “He probably wouldn’t have time anyway”. I give the views expressed by X to Ms M reduced weight as to his underlying wish, in circumstances where it is plain that X is uncertain as to how the father fits in to his life and is conflicted as to how he feels about that. There is no evidence that X is fearful of his father or would feel unsafe being in his care. However, I accept and find that X has some reluctance towards spending time with his father. I am satisfied that each of the parties are loving parents who are each highly motivated to be part of X’s life. As explained above, I reject the mother’s assertion that the father is not interested in having a relationship with X. The father has now participated in the Australian proceedings as to X’s parenting since 2014. Notwithstanding the mother’s non-compliance with orders, he has continued to prosecute his application to spend time with X. The father’s capacity to participate in the long-term decisions relating to X and to communicate and spend time with him has been severely constrained over the course of these proceedings. However, I am satisfied on the evidence before me that the father has taken the opportunities to do so when they have been made available to him. Further, there is no evidence that no evidence that the father would not be able to care for X physically and emotionally over the period of time. I accept the father’s evidence and find that he will ensure he is available in Australia to spend time with X in accordance with the regime prescribed by the final orders.