R and R
[2001] FMCAfam 193
•24 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
R & R [2001] FMCA fam 193
OVERSEAS MAINTENANCE ORDER – Application for variation – provisional order made – Part III, Family Law Regulations 1984 – In the marriage of Gleeson (1996) FLC 92-654.
| Applicant: | T R |
| Respondent: | J L R |
| File No: | ZB 4146 of 2001 |
| Delivered on: | 24 September 2001 |
| Delivered at: | Brisbane |
| Hearing Date: | 24 September 2001 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Solicitors for the Applicant: | Applicant appeared in person |
| Solicitors for the Respondent: | There was no appearance by the Respondent |
ORDERS
That there be a provisional order as follows:
(a)That the operation of the order made in the R County Court on
21 June 1989 be suspended between 1 June 1998 and 1 November 1998.(b)That the FATHER pay child maintenance calculated at the rate of $80.00 per week per child from 1 November 1998 to 30 June 2001.
(c)That the FATHER pay child maintenance calculated at the rate of $100.00 per week for the youngest CHILD, A, from 1 July 2001.
(d)That in accordance with the order made 21 June 1989, the operation of the order cease upon the CHILD, A, reaching the age of 17 years.
(e)That the outstanding arrears be recalculated in accordance with rate of child maintenance ordered, after allowance for all payments made by the FATHER including payments from income tax refunds.
That this order be forwarded to the Registrar of this Court so that Regulation 29 of the Family Law Regulations 1984 (Part III – Overseas orders) is complied with.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE
ZB 4146 of 2001
T R
Applicant
And
J L R
Respondent
REASONS FOR JUDGMENT
I have before me a matter of R. The history of this matter is that the father brought an application in the Family Court of Australia on
7 December 2000 seeking a variation of a maintenance order. The maintenance order which he seeks to vary is an order made in the R County Court, England, on 21 June 1989 (hereinafter called “the said order”). The respondent to the application is the father's former wife, J L R, who filed a response to the application on 29 January 2001. I am satisfied she was served with the application seeking variation.
Subsequently, the matter was transferred by the Family Court of Australia to this Court by order of Registrar Dittman made 12 April 2001. After initially perusing the material on the file, I made an order in chambers on 25 June 2001 requiring the parties to produce further documentation. In response to that direction, the father filed a further affidavit on 11 September 2001 and the mother, although not filing an affidavit, forwarded to the Court a letter dated 10 July 2001, the letter and its contents being marked exhibit 1 for the purposes of these proceedings.
The history of the matter can be simply stated. The father is the father of the children M G R born 29 May 1984 and A N R born
6 June 1986. The father immigrated to Australia in May 1998 having remarried in 1997. This new relationship has resulted in a child, M V R, being born on 14 October 1995. He says, and I accept, that at the time he left England he was not in arrears under the said order. This is as much accepted by the mother as can be identified from the affidavit she filed in earlier proceedings in the R County Court in which she identifies arrears commencing from 1 May 1998.
There was an attempt by the father to vary the order, he having commenced proceedings in the R County Court in 1999. The mother provided me with a copy of all that material, including an order of District Judge A. Thomas made 23 September 1999 when he ordered that the application of the father be dismissed, the father not appearing. The father, in his evidence before me today, indicated that he was not aware it was necessary for him to appear.
The difficulties which the father experiences arise from:
a)the current exchange rate operating between the Australian and English currencies. The order made in 1989 of 400 pounds a month computes to an amount of approximately $1200 per month;
b)the fact that he says his income is substantially less in real terms than it was at the time that he left England and when the order was made.
As a result of these difficulties, including a period of unemployment when he first arrived in Australia, arrears under the order have continued to amount. The father says that he commenced paying maintenance of $100 per week approximately 18 months ago and that is all that he can afford to pay. Any variation proceedings brought in Australia can only be brought provisionally as a result of the operation of Part III of the Family Law Regulations 1984. I have received evidence from the mother, but, of course, the father was not the subject of cross-examination. A transcript of his evidence will be available to the mother, however, as will all documents comprising part of our Court file.
In respect of his application for variation, the father relies upon his oral evidence today, his application for variation of maintenance filed 7 December 2000, and the further brief affidavit he filed on
11 September 2001. If I was to find that a variation is warranted, that provisionally can be made, but until the provisional order is confirmed the original order from the original jurisdiction remains in force. In essence, the father says that although he is not in a position to challenge the wife's needs, making the comment, however, that he felt she was "well off," his real basis for variation arises from his change of circumstances in moving to Australia, the exchange rate difficulties, and the reduction in his income.
I am satisfied that, on the evidence, the father's income has been:
(a)essentially from 1 May 1998 to 1 November 1998, nil;
(b)for the balance of the year to 30 June 1999, A$20,654 gross;
(c)for the year ended 30 June 2000, A$41,994 gross;
(d)for the year ended 30 June 2001, A$41,750 gross.
In essence, this computes to an approximate gross weekly income from 1 November 1998 to the current time of $800 per week. The father, in his affidavit filed 11 September 2001, acknowledged that from 4 July 2001 he has received a pay increase to an amount of $46,280 per annum or $890 per week.
When considering the father's capacity to pay, I have taken into consideration the expenses set out in his application for variation of maintenance which he estimated to be for himself, $371 per week, for his wife, $192 per week, and for his infant child, $167 per week. There was no evidence before me as to any capacity to earn an income available to his wife. Nonetheless, considering all the circumstances, I am prepared to accept that this capacity to pay child maintenance or to support his children can be calculated as follows (to 30 June 2001)
Father’s Gross Income $800.00
Less
Father’s Expenses $371.00
Wife’s Expenses $192.00 $563.00
Nett available for children $237.00
Say $240.00 per week
It is my view that during the period to 30 June 2001 that his three children should have been treated equally. As a result, the provisional order which I propose to make will reflect that my calculation of the amount which the father ought to have paid towards the maintenance of his children in England is from 1 November 1998 an amount of $80 per week per child. Because of the increase in wage which he has received from 1 July 2001, I believe that the amount payable from that date for the youngest child in England, A (reflecting that the order of the R County Court expires upon the children attaining the age of 17 years) should be increased from $80 per week to $100 per week.
It follows, therefore, that I propose to make an order to reflect these reasons, and it is clear that it is a provisional order only and will have to go back to England where it will be finally determined. To assist the Registrar of this Court, I propose that the Registrar forward to the Secretary, as provided for in Part III, the particulars referred to by Graham J in his decision of In the marriage of Gleeson (1996) FLC 92-654. The order that I propose to make is provisional only and I will order as follows:
(1)that there be a provisional order as follows:
(a)the operation of the order made in the R County Court on 21 June 1989 be suspended between 1 June 1998 and
1 November 1998;(b)that the father pay child maintenance calculated at the rate of $80 per week per child from 1 November 1998 to 30 June 2001;
(c)that the father pay child maintenance calculated at the rate of $100 per week for the youngest child, A, from
1 July 2001;(d)that in accordance with the order made 21 June 1989 the operation of the order cease upon the child reaching the age of 17 years;
(e)the outstanding arrears be recalculated in accordance with the rate of child maintenance ordered after allowance for all payments made by the father including payments from income tax refunds;
(2)That this order be forwarded to the Registrar of this Court so that Regulation 29 of the Family Law Regulations 1984 (Part 3, Overseas Orders) is complied with.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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