ORZEL & ORZEL

[2015] FCCA 1941

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORZEL & ORZEL [2015] FCCA 1941

Catchwords:
FAMILY LAW – Maintenance – child maintenance – application for variation of overseas child maintenance order – where order made by court in [Europe] – where order made in the absence of the Applicant – Convention on Recovery Abroad of Maintenance – no appearance by or on behalf of the Respondent.

Legislation:

Family Law Act 1975 (Cth)

Family Law Regulations 1984 (Cth), reg.36
Federal Circuit Court Rules 2001, r.13.03C

Applicant: MR ORZEL

Respondent: MS ORZEL

File Number: SYC 2069 of 2015

Judgment of: Judge Scarlett

Hearing date: 14 July 2015

Date of Last Submission: 14 July 2015

Delivered at: Sydney

Delivered on: 14 July 2015

REPRESENTATION

Applicant: In person

Respondent: No appearance

ORDERS

1. The Order of the District Court of [European location omitted] made 8 December 2011 is varied so as to provide that for any time that the Applicant Father is in receipt of a Centrelink benefit being any income tested pension or benefit and including the New Enterprise Incentive Scheme the annual rate of child maintenance payable to the Respondent mother for the child [X] born on [omitted] 2002 is set at NIL with effect from the date of commencement of the liability on 18 December 2009.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2069 of 2015

MR ORZEL

Applicant

And

MS ORZEL

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for variation of an order for child maintenance made by a Court in [Europe] in respect of the Applicant’s son, who lives in [Europe] with his mother. The variation sought by the Applicant is that the rate of maintenance should be set at nil at all times when the Applicant is in receipt of Centrelink benefits by way of an income tested pension or benefit.

Background

1. The Applicant Father was born in [Europe] on [omitted] 1968. The Mother was born on [omitted] 1967, also in [Europe].

2. The parties commenced to live together on 10^th July 2002 and were married on [date omitted] that year. They separated on 12^th December 2002 and were divorced on 14^th July 2004.

3. There is one child of the marriage, [X], who was born in Australia on [omitted] 2002. [X] lives with his mother in [Europe] and has done so since the Mother and child returned to [Europe] after the parties separated.

Procedural History

1. The Mother applied to the District Court of [European location omitted] in 2011 for an order for maintenance in respect of the child and obtained a judgment in that Court on 8^th December 2011. The Court ordered that the Applicant should pay maintenance in the sum of 1,700.00 [currency omitted] per month, with effect from 18^th December 2009.

2. The Applicant Father was not present in court. A translation of the Opinion of the Court shows that a copy of the suit was served on the guardian ad litem representing the father on 13^th May 2011.

3. On 20^th March 2012 the District Court in [Europe] forwarded to the Child Support Agency in Hobart copies of the judgment and other relevant documents under the provisions of the Convention on the Recovery Abroad of Maintenance signed in New York on 24^th June 1956.

4. The Applicant commenced proceedings in this Court on 2^nd April 2015, seeking to vary the Orders so as to provide that the rate of maintenance payable should be reduced to nil at such times as he is in receipt of an income tested pension or benefit from Centrelink.   

5. The Application was returnable on 12^th May 2015. There was no appearance by or on behalf of the Respondent, although the Applicant had filed an affidavit of service dated 30^th April 2015 in which he deposed that the Respondent had been served on 7^th April 2015 in [Europe]. The Applicant was directed to file and serve a Financial Statement within 21 days.

6. When the matter came back to Court, there was no appearance by or on behalf of the Respondent. I elected to proceed with the matter generally under rule 13.03C.

Evidence and Submission

1. The Applicant relied on his affidavit of 2^nd April 2015 and his financial statement. He gave short oral evidence.

2. It is the Applicant’s evidence that he has lived in Australia since 1980. He met the Respondent when she was on holiday in Sydney in about 2002. They had a brief relationship. The Respondent returned to [Europe] but later telephoned him to say that she was pregnant. The Respondent returned to Australia and the parties were married. The child [X] was born on [omitted] 2002.

3. The parties separated in December 2002. The Respondent returned to [Europe] with the child early the next year and has remained living there ever since. The Applicant complains that he has been denied any contact with the child.

4. It is the Applicant’s evidence that he has had some financial reverses since July 2009, involving his having to go onto either NEIS (New Enterprise Incentive Scheme) or Newstart. He calculates that the maintenance order costs him about $AUD500.00 per month. He has annexed to his affidavit copies of relevant documentation showing Centrelink payments, including NEIS payments.

The Relevant Law

1. Australia and [European country omitted] are both parties to the Convention on the Recovery Abroad of Maintenance signed at New York on 24 June 1956.

2. The Applicant has applied to vary the order under the provisions of Regulation 36 of the Family Law Regulations 1984, which provides at 36(2) that:

   Application may be made to a court having jurisdiction under the act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.

3. The Applicant has standing to apply under subregulation 36(3) which provides:

   An application may be made by:

   (a)the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or

   (b)the person against whom the order was made or the person who is liable to make payments because of the agreement or liability; or

   (c)the Secretary, on behalf of a person mentioned in paragraph (a) or (b).          

Conclusions

1. I am satisfied on the Applicant’s written and oral evidence that it is appropriate to grant his Application and make orders of the type that he seeks. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 July 2015