Perron and Bird
[2014] FCCA 1315
•25 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PERRON & BIRD | [2014] FCCA 1315 |
| Catchwords: CHILD SUPPORT – Overseas child maintenance order – application for a stay of collection. |
| Legislation: Child Support (Registration and Collection) Act 1988, ss.18A, 111C |
| Badgery & Child Support Registrar & Anor [2013] FCCA 1727 Vaters & Kantner [2011] FMCAfam 303 |
| Applicant: | MR PERRON |
| Respondent: | MS BIRD |
| File Number: | NCC 1237 of 2014 |
| Judgment of: | Judge Terry |
| Hearing date: | 18 June 2014 |
| Date of Last Submission: | 18 June 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 25 June 2014 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Wallace |
| Solicitors for the Applicant: | Ramsland Laidler |
| Solicitor Advocate for the Respondent: | Mr Bithrey |
| Solicitors for the Respondent: | Catherine Henry Partners |
ORDERS
The father’s application filed on 16 May 2014 is dismissed.
The matter is adjourned to 4.00pm on 26 June 2014 for further consideration of the mother’s application for costs.
IT IS NOTED that publication of this judgment under the pseudonym Perron & Bird is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1237 of 2014
| MR PERRON |
Applicant
And
| MS BIRD |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Perron & Ms Bird married in (omitted) 2001. They have two children, X born on (omitted) 2003 and Y born on (omitted) 2005.
The mother was born in the United States. The parties married in the United States and lived there after their marriage and the children were born in the United States.
In September 2006 the parties moved to Australia. They subsequently separated and in April 2009 the mother returned to the United States with the children. Since then the mother and the children have lived continuously in the United States and the father has lived continuously in Australia.
On 28 September 2011 parenting and child support orders were made by consent in the 19th Judicial Circuit Court, (omitted) County. The orders provided for the mother to have custody of the children and for the father to pay child support of $1,000.00[USD] per month.
The father said that he paid this amount regularly. The mother alleged that he missed many payments. For the purposes of this decision nothing turns on which version of events is correct.
In 2013 the mother filed an application in the Circuit Court in (omitted) seeking reconsideration of the amount of child support.
The father was served with the mother’s documents by a process server on 15 August 2013.
On 21 August 2013 the father sent the mother an email confirming that he had received the documents. He went on to say that her financial demands were unrealistic, that he would no longer be paying her any money and that he would “sign the children over to her.”[1]
[1] Annexure B to the mother’s affidavit filed 12 June 2014. There was no cross-examination at the hearing on 18 June 2014 but I would have expected the father to indicate it if he contested the validity of such an important email.
The father did not file any documents in response to the mother’s application and failed to appear in court in (omitted) and on 7 October 2013 an order was made in his absence requiring him to pay child support of $1,539.00 per month.[2]
[2] This was the figure the mother gave. The father said the figure was $1,622.00 per month. Neither party made clear whether they were talking about USD or AUD and there is probably a conversion issue but the exact amount the father is required to pay is not important for this decision
The mother sought assistance from the relevant authority in (omitted) to enforce the order and it was forwarded to the Child Support unit of the Department of Human Services in Australia.
On 9 May 2014 the Child Support unit wrote to the father informing him that they had been asked to enforce the order and asking him to contact them.
The father received the letter on 15 April 2014 and on 16 May 2014 he filed an application in this court seeking the following:
1. The Application is heard urgently and on short notice
2. Orders made on 7 October 2013 in the United States of America, Case Number (omitted) BE STAYED.
3. That pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 the collection of child support payable by MR PERRON to MS BIRD for X, born (omitted) 2003 and Y, born (omitted) 2005 pursuant to Orders made on 7 October 2013 in the United States of America and without my knowledge of the proceedings be stayed pending final determination of these proceedings.
On 12 June 2014 the mother filed a Response seeking that the father’s application be dismissed.
The matter came before me on 18 June 2014 and each solicitor made submissions in support of their client’s proposed outcome.
Discussion
The order made by the Circuit Court of (omitted) is a registrable overseas maintenance liability as defined in s.18A of the Child Support (Registration and Collection) Act 1988. The Child Support unit has been asked to register and enforce it and they are likely to enforce it by garnishing the father’s wages.
The father seeks to prevent this by obtaining one or other of the stays he has sought.
I do not have the power to stay the order made by the Circuit Court in (omitted); only the court which made the order can do that. The only valid application before me is the application for a stay pursuant to s.111C of the Child Support (Registration and Collection) Act 1988.
S.111C provides as follows:
Stay orders
(1) This section applies if a proceeding has been instituted:
(a) in a court having jurisdiction under this Act; or
(b) before the Registrar under Part VII; or
(c) before the SSAT under Part VIIA; or
(d) under Part 6A or 7 of the Assessment Act.
(2) A party to the proceeding may, subject to the Family Law Act 1975:
(a) in the case of a proceeding instituted in a court--apply to that court for an order under this section; or
(b) otherwise--apply to a court having jurisdiction under this Act for an order under this section.
(3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
(4) The court may, by order, vary or revoke an order made under subsection (3).
(5) An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for:
(i) such period as is specified in the order; or
(ii) if no period is specified--until a decision of the court, the Registrar or the SSAT determining the proceeding becomes final.
A stay order made pursuant to s.111C(3) would prevent the Child Support unit collecting child support from the father pursuant to the (omitted) order. The problem for the father however is that I agree with the view expressed by Judge Scarlett in Badgery & Child Support Registrar & Anor[3] that a stay is intended to be a temporary measure until other proceedings of the kind referred to in s.111C(1) are resolved and if there are no proceedings of that kind on foot the court does not have the power to grant a stay pursuant to s.111C, and there are no such proceedings on foot in this case.
[3] Badgery & Child Support Registrar & Anor[2013]FCCA1727
An application for a stay is of course a proceeding instituted in the court having jurisdiction under the Child Support (Registration and Collection) Act 1988 but it would be a nonsense if an application for a stay could by itself found an application to make a temporary stay order.
A case which might at first glance seem to help the father is Vaters & Kantner. In that case Reithmuller FM (now Judge Reithmuller) made an order staying the collection of child support in respect of a Canadian order for a period of time to allow the father to pursue variation or discharge of the order in Canada. The order he made was as follows:
The collection of child support and the enforcement of any arrears of child support for [X] born 25 April 1986 be stayed for 45 days, and in the event proceedings are commenced in Canada within 45 days, until the expiration of 3 months from the date the proceedings are filed in Canada to discharge or vary the child maintenance orders.
This case does not assist the father however.
Judge Reithmuller made this order at the end of the hearing of an application to vary or discharge the Canadian order pursuant to Reg. 36 & 37 of the Family Law Regulations. He dismissed that application and indicated that the appropriate course was for the applicant to pursue variation or discharge of the order in Canada.
It is tolerably clear from the decision that a stay order had been made earlier in the proceedings and reasonable to assume that it had been made at a time when the application pursuant to Reg. 36 & 37 was on foot, and the order made by Judge Reithmuller simply extended the operation of the stay for a further period of time.
The father could make an application pursuant to Reg 36 of the Family Law Regulations for the (omitted) order to be varied or discharged but he has not done so. His solicitor indicated during submissions that he was unlikely to do so and was considering the alternative option of applying to the Circuit Court in (omitted) for reconsideration of the order.
This would be the appropriate thing for the father to do, not only because if he made a Reg. 36 application he might be met with an application for it to be dismissed because the court in Australia was a clearly inappropriate forum but because the father needs to deal with the matter in the United States and obtain an order which will be recognised in the United States if he wants to be able to freely travel in and out of the United States in the future.
There is no application before this court or before the Registrar or the SSAT which would give me the power to make a stay order pursuant to s.111C and I intend to dismiss the father’s application.
The mother made an application for costs in her response. No submissions were made about this issue on 18 June 2014. I will list the matter before me at 4.00pm on 26 June 2014 so that the parties’ solicitors can make brief submissions about this issue before its determination.
For all of the above reasons the orders of the court are set out at the beginning of this judgment.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 25 June 2014
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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