Owen and Fraser and Anor

[2014] FCCA 1460

FEDERAL CIRCUIT COURT OF AUSTRALIA

OWEN & FRASER & ANOR [2014] FCCA 1460

Catchwords:
CHILD SUPPORT – Application to discharge order made in June 2007 placing applicant on the Airport Watchlist – whether or not order was an interlocutory or permanent injunction.

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), r.9

Child Support (Registration and Collection) Act 1988 (Cth), ss.72D, 111B

Applicant: MR OWEN

First Respondent: MS FRASER

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: DNC 135 of 2008

Judgment of: Judge Harland

Hearing date: 28 May 2014

Date of Last Submission: 28 May 2014

Delivered at: Darwin

Delivered on: 9 July 2014

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Buchanan

Solicitors for the First Respondent: Connop Barristers & Solicitors

Counsel for the Second Respondent: Mr Foley

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. That Order 4 of the orders made on 21 July 2007 is discharged.

2. That the Court requests that the Australian Federal Police remove the name MR OWEN (also known as MR OWEN) born [in] 1969 from the Watchlist at all points of international arrivals and departures in Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 135 of 2008

MR OWEN

Applicant

And

MS FRASER

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is seeking an order removing him from the Airport Watchlist. The first respondent opposes this. The second respondent neither opposes nor consents to the order. The second respondent provided very helpful written submissions.

2. The issue arises from orders made on 21 June 2007 by Walters FM (as he then was).

3. The first issue this Court has to decide is whether or not Order 4 of the orders made on 21 June 2007 was an interlocutory or permanent injunction. If it was an interlocutory injunction it came to an end when the proceedings were discontinued. If it was a permanent injunction then the Court will need to consider whether or not it should continue or be removed.

4. Order 4 of the orders made on 21 June 2007 reads as follows:

   “Until further order, MR OWEN (also known as MR OWEN) born [omitted] 1969 be restrained from leaving the Commonwealth of Australia, and it is requested that the Marshall and all Officers of the Australian Federal Police do all things necessary to give effect to this Order, including entering the husband’s name – MR OWEN (also known as MR OWEN) born [omitted] 1969 – on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.”

5. The reasons for judgment delivered ex tempore that day do not refer to Order 4. There is a brief reference in the transcript for hearing at page 7 to a restraining order against the applicant and evidence that the applicant had departed Australia twice in 2006.

6. Terry FM (as she then was) made orders on 11 October 2007. Those orders were made by consent. Order 1 of those orders discharged Order 2 of the orders made on 21 June 2007. No mention was made of Order 4. Order 2 and Order 4 were the only two substantive orders made on 21 June 2007. Order 2 restrained the applicant and his wife from dealing with a piece of real property.

7. The applicant had filed affidavits and written submissions. In his written submissions he claims that Walters FM erroneously made Order 4 made on 21 June 2007 under the Family Law Act 1975 (Cth). Nothing I read in the transcript or the judgment for the day supports that submission. The applicant states in his submissions that Ms Buchanan, Counsel for the first respondent had previously submitted that if he made a lump sum payment to reduce the child support debt she would have no objection to the injunction being lifted. He goes on to state that he has not asked the court to determine how much he can or cannot pay. He appears to object to Ms Buchanan taking the approach of trying to use the court order as leverage to enforce debt. He then goes on to talk at great length about his financial circumstances and alleged inability to pay which is what he says that he is not asking the court to adjudicate on.

8. It was not an unreasonable approach for the first respondent to take. After all she has been in the invidious position of not receiving child support payments of any great consequence, which other arenas have determined that she is entitled to, for many years. The applicant was unsuccessful in his application for departure orders before Terry FM in 2009. There were also proceedings before the Social Security Appeals Tribunal in 2012.

9. Ms Buchanan cross-examined the father about his financial circumstances.  The father was very deliberate in his choice of words.  At times he was evasive.  This was particularly the case with respect to his answers about the work tools.  His seeming lack of memory about sales commissions was unconvincing.

10. The second respondent has accurately set out the law as it applied at the time of the 2007 orders. The court had the power to make Order 4 of the orders made on 21 June 2007 either by reason of rule 9(b)(v) of the Family Law Rules 2004 (Cth) or section 111B of the Child Support (Registration and Collection) Act 1988 (Cth).

11. Section 111B(1)(j) states:

    (1)A court's powers under this Act include the power to do all or any of the following:

    (j)  make an order imposing terms and conditions

12. Ms Buchanan submits that a specific order would have needed to have been made removing the applicant form the Watchlist in order for the Australian Federal Police to remove the applicant’s name from this list.  Whilst this is true this does not assist me to determine the issue as to whether the injunction was intended to survive the discontinuance of the enforcement proceedings.

13. Section 72D of the Child Support (Registration and Collection) Act 1988 (Cth) does not apply here as that section empowers the Child Support Registrar, not the court to make a departure prohibition order. It is clear that type of prohibition is designed to encourage any defaulting child support payer to pay the debt or substantially reduce it.

14. Essentially that is the position the first respondent takes.  It is understandable that the first respondent wants the child support debt paid.  It is an important issue of public policy. 

15. The evidence Mr Owen gave about his finances was unsatisfactory but not relevant to the determination of the narrow issue before me. 

16. The issue I have to decide is whether or not the injunction made in 2007 was an interlocutory one or a permanent one. The issue is quite a narrow one. Permanent injunctions are rare. Order 4 was described as being ‘pending further order’ which is used to describe an interlocutory order.

17. It seems likely that the injunction was made in aid of the child support enforcement proceedings which were on foot at that time. Walters FM had the power to make such on order pursuant to section 111B(1)(j) of the Child Support (Registration and Collection) Act 1988 (Cth).

18. If Walters FM intended the injunction to be a permanent one, I would expect it to have been addressed in his reasons for judgment on it as it is an unusual order to make. It also would not have been expressed as being ‘pending further order’. It appears to have been an oversight no to specifically discharge Order 4 as well as Order 2.

19. The debt Mr Owen has owing to the Child Support Registrar is significant even ignoring the penalties and late fees.  This decision does not affect that debt and nor should it.

20. It is open to the Child Support Registrar to make a Departure Prohibition Order under section 72D of the Child Support (Registration and Collection) Act 1988 (Cth) preventing Mr Owen from leaving Australia until he pays his arrears if the Registrar thinks that is warranted.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  9 July 2014