PETERS & PETERS

[2010] FamCA 629

FAMILY COURT OF AUSTRALIA

PETERS & PETERS [2010] FamCA 629

FAMILY LAW – APPLICATION FOR REVIEW – Child support

Child Support (Assessment) Act1989 (Cth)

Family Law Act 1975 (Cth)

APPLICANT: Ms Peters

RESPONDENT: Mr Peters

FILE NUMBER: TVC 1541 of 2007

DATE DELIVERED: 22 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 16 July 2010

REPRESENTATION

THE APPLICANT: Wife in person

SOLICITOR FOR THE RESPONDENT: Moira Ryan Lawyers Pty Limited

Orders

1. That the application for lump sum child maintenance of the wife be dismissed.

2. The application for injunctions filed in Court on 16^th July 2010 be stood over to a date to be considered with the balance of the applications between the parties.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: TVC 1541 of 2007

MS PETERS

Applicant

And

MR PETERS

Respondent

REASONS FOR JUDGMENT –

Review of Judicial Registrar

1. On 1^st June 2010 Judicial Registrar Johnston dismissed the wife’s application for lump sum child maintenance.  The wife seeks a review of that decision.  The hearing before me is a hearing de novo. The wife has never made an application to the Child Support Agency for assessment of Child Support for the parties’ child.

Background

1. Ms Peters and Mr Peters married in 1994.  There is one child of that marriage, a son who was born in May 1996.  At present the child lives with the wife in Sri Lanka.  The child has been living with the wife since 18^th December 2007.  The child is presently in the Guardianship of the District Court of Galle, Sri Lanka and the wife has sole custody.  It seems that there are pending proceedings relating to the child.

2. The wife has applied for property settlement orders relating to the marital assets and has also sought to join the husband’s adult son, R Peters to those proceedings.  That application is awaiting determination.  No decision has been made about the proposed joinder of R Peters to the proceedings.

3. On 2^nd October 2009 the wife applied to the Federal Magistrates Court for an order of lump sum child maintenance to be paid by the husband.  The lump sum sought was to be comprised of:

   (a) Child Support arrears 18^th December 2007;

   (b) Child support to 8 May 2014;

   (c) penalties;

   (d) late payment penalties;

   (e) interest;

   (f) linked to the CPI and;

   (g) capitalised.

4. The wife sought ancillary orders to provide for seizure of certain real estate and that a warrant for the arrest of the husband issue and his passport be impounded should he fail either to comply with the order for lump sum maintenance or should the real estate be not available for seizure.  The application also sought an order restraining the husband from dealing in any way with that real estate.

5. On 27^th October 2009 Federal Magistrate Kemp dismissed the application.  The wife applied for the same orders in this court and that application was heard determined and dismissed by Judicial Registrar Johnston on 1^st June 2010.

Evidence in support of the Application

1. The wife filed an affidavit (dated 2^nd October 2009) in support of the application in the Federal Magistrates Court and on 23^rd June 2010 filed an affidavit supporting her review of the decision of Judicial Registrar Johnston.  The husband filed an affidavit on 12^th October 2009 in the proceedings before Federal Magistrate Kemp.

2. The wife does not presently receive any financial support for the parties’ child from the husband. The wife has not made an application for support through the Child Support Agency because, she asserts that she does not know where he is living. In the affidavit filed in 2010, the wife claimed that the husband was living outside of Australia and submitted that because of that there could be no assessment under the Child Support Assessment Act.

3. According to the affidavit filed in the Federal Magistrates Court, the wife has a number of expenses in relation to the child.  None was specified in monetary terms.  The wife said that her visa in Sri Lanka does not permit her to work and her daily needs are met by Mr L who she describes as her landlord.  She attached to her affidavit an affidavit of Mr L who asserts a debt owed to him by the husband for his contribution to the child’s maintenance, the wife’s maintenance and other debts amounting to $352,000.  No indication is given of how this sum is calculated.

4. The wife makes a number of general allegations against the husband to the effect that he has manipulated his finances to bring his income and thus his child support liability to nil, has understated his income and has embarked on a scheme to hide income and defraud the wife.  She makes a number of allegations about how the husband has achieved this and raises allegations against his son, R Peters, an accountant as colluding with him.

5. Although she has attached a number of documents to her affidavit which she said supported her claims, in my view none is admissible or persuasive of the allegations she makes.

6. In her affidavit in support of the application for review, the wife attached a number of invoices to a public service department in Victoria from K Research (Pvt) Ltd in Sri Lanka. These invoices were obtained by her through a Freedom of Information application. The invoices were rendered for July to November 2009, each in an amount of $4000. Each was paid. The wife claims that these are funds paid to the husband. There is nothing on the face of the invoices that indicates that he received the benefit of the money. 

7. In his affidavit filed in the proceedings, the husband says that since he swore a financial statement in the property proceedings, his health has declined to the point where he is not able to earn an income.  He is reliant on money from his adult son, R, for personal support and receives support from friends who have provided him with accommodation.  

Discussion

1. Section 10 of the Child Support (Assessment) Act1989 (“CSAA”) provides:

   For the purposes of this Act, A person is a resident of Australia on a day if on that day the person is a resident of Australia for the purposes of the income Tax Assessment Act 1936…

2. Although the wife claimed in her most recent affidavit that she and the husband are living overseas and thus fall outside of the Child Support Scheme mechanism, there is no evidence that the husband is in fact living overseas and, in his affidavit of October 2009, he swears that he is living in Australia. He has engaged Australian solicitors to conduct this litigation for him. I can make no finding that both parties are living out of the jurisdiction nor that the husband is not otherwise liable to Administrative Assessment under the CSAA.

3. Section 66E of the Family Law Act 1975 (Cth) (“the Act”) prevents this Court (inter alia) from making a maintenance order for a child if an application could properly be made under the CSAA.

4. It is clear that the wife has not made an application for Child Support Assessment. I am not persuaded that there was any impediment to her taking that course. That being the case, there is no power in the Court to make the order sought by her. 

5. Even if it were the case that this Court could make an order for child maintenance, I would decline to do so. The wife has not established by evidence the reasonable needs of the child, nor is there any evidence of the husband’s capacity to make a financial contribution to those needs.

6. I dismiss the application for lump sum child maintenance.

Application for injunctions

1. On the morning of the hearing of the review, the solicitor for the husband was given leave to file in court an application seeking orders restraining the wife from forwarding in any means material relating to the proceedings or the parties to the proceedings to third parties and restraining the wife from denigrating the husband or his adult children in writing or otherwise.  An affidavit from R Peters and the husband’s solicitor, Ms Ryan were relied on in support of the application.

2. The affidavits and application had been sent to the wife by Ms Ryan by email, the wife’s preferred mode of communication of documents.   The Court also emailed those documents to her during the hearing to ensure that she had before her the relevant documents.

3. The basis alleged for the first injunction to restrain the wife from communicating any information about the case or the parties to third parties was that the wife had sent a partly completed affidavit to a number of entities associated with R Peters.  It was alleged that the affidavit contained scandalous and defamatory material about R Peters. 

4. In the course of the discussion in court, the wife said that she did not have an address for service of documents for R Peters and had thus sent the affidavit to various bodies associated with him in an attempt to effect service.  A Notice of Address for Service for R Peters was on the court file and the wife was sent that document.  She indicated that having that information, it will not be necessary for her to attempt to communicate with R Peters in other ways.

5. However, in the expectation of the litigation continuing, it is appropriate to list the final determination of the application for injunctions with the balance of the matter and to be considered, if appropriate, at a later time in the proceedings.

6. It is relevant to indicate to the wife that s 121 of the Act prevents the publication or dissemination to the public or to a section of the public of any part of the proceedings or any account of the proceedings under the Act. A contravention of that section carries with it criminal penalties.

7. Given that she now has an address for service for both the husband and R Peters, it is difficult to perceive any justification for her to publish in any way material relevant to the matters before the court to people not involved in the proceedings.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace

Associate:     

Date:              22 July 2010