Rowley-Abney and Rowley

[2010] FMCAfam 1201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROWLEY-ABNEY & ROWLEY [2010] FMCAfam 1201

FAMILY LAW – Application to set aside child support assessment based on U.K. Court order. 

Family Law Act 1975, s.14

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Applicant: MR ROWLEY-ABNEY

Respondent: MS ROWLEY

File Number: MLC 8174 of 2010

Judgment of: Burchardt FM

Hearing date: 20 October 2010

Date of Last Submission: 20 October 2010

Delivered at: Melbourne

Delivered on: 20 October 2010

REPRESENTATION

Counsel for the Applicant: Mr J. Cantwell

Solicitors for the Applicant: Hogg & Reid

The Respondent: No appearance

ORDERS

1. The matter be adjourned to this Court for Ruling on 21 October 2010 at 9.15 am. 

2. The application filed 1 September 2010 be otherwise dismissed. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 8174 of 2010

MR ROWLEY-ABNEY

Applicant

And

MS ROWLEY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the husband, as I shall refer to him, seeks a stay of the payment of child support and arguably spousal maintenance pending trial.  I will refer to the parties as husband and wife although they are divorced, it would seem twice over, not as a discourtesy but because it is simpler and because most of the events with which we are concerned took place when they were still married.  The facts are unusual if not extraordinary. 

2. The first question that arises is whether the Court has jurisdiction to entertain the application.  I am clear that it does.  The husband is resident in Australia; he is a [occupation omitted] and he expects to stay here once his qualifications as a paediatrician are finally concluded.  He is seeking a stay of a child support assessment dated

   
   

   16 June 2010.  I am inclined to accept Mr Cantwell’s submission that that child support assessment is wrong on any view because the sums ordered in England which gave rise to that assessment included not just a payment for the children but also a payment for spousal maintenance to the wife, and it seems clear that those have been mixed up. 

3. However, it is in my view clear that there is jurisdiction.  Regulation 36(1)(b) of the Family Law Regulations sets the scene inasmuch as the regulation relevantly applies to an overseas maintenance entry liability or a registered maintenance liability.  It seems clear from the Child Support Agency’s documentation exhibited to the husband’s affidavit that this is a child support maintenance liability.  It may even be a maintenance entry liability, but it certainly seems clear that it is one or the other, if not both.  Regulation 37(1)(a), (b) and (c) are all, in my opinion, as Mr Cantwell submits, satisfied.  I will explain why in more detail in due course, but it is clear that the applicant husband is a person against whom an overseas maintenance order was made and who is liable to make payments because of such a liability, as mentioned in regulation 36(1)(b).  It is clear that he did not have relevant notice of the proceedings giving rise to the order and it is equally clear that this application was made within six months after the husband was given notice that the order was enforceable in Australia. 

4. The facts of the matter are convoluted.  The husband and wife were both born in Sri Lanka and are citizens of that country, so are their two daughters, now aged 18 and 12.  The eldest daughter lives in England, but it would appear not with the mother; the younger daughter lives in England with the mother.  The husband and wife married in 1992.  In 2002 the husband went to England for postgraduate training and it seems from his affidavit that in 2003, the wife and two children followed.  Towards the end of September 2008, as the husband puts it in his affidavit, he announced that the marriage was over and returned to Sri Lanka.  He says he left the United Kingdom on 11 October 2008. 

5. Shortly thereafter on 20 October 2008, the husband issued an application for divorce in Sri Lanka.  That application also included application in relation to what one might describe as financial matters, such as spousal maintenance and child support.  The applicant has deposed that any application for divorce in Sri Lanka necessarily and always raises all matters as to property and children.  There is no contrary affidavit material before me, and it is certainly the case that the Sri Lankan Court went on to deal with the question of the financial disposition between the parties. 

6. The wife was served with the application and notwithstanding that on

   
   

   9 December 2008 she filed her own application for divorce in the [omitted] County Court in the United Kingdom.  She did not reveal the existence of the Sri Lankan proceedings.  It is questionable whether a fair reading of her application indicated in terms that she was seeking financial relief.  Counsel for the applicant is right to point to certain sections in that application which clearly, one would have thought, should have been marked, but were not. 

7. The husband was not served.  In fact, the wife took steps to ensure the documentation was served at a [workplace] where he had formerly worked, notwithstanding that on the husband’s case – and it seems to be correct for reasons I will come to – that the wife knew he had left Britain permanently by that stage.  In fact, her application suggested that her husband was still ordinarily resident in the United Kingdom.  This seems to me to have been a wilful untruth, and I notice in the judgment of Holman J, given on 26 April 2010, at paragraph 6, his Lordship doubted that that was in fact the case.  He said:

   “In the light of the facts that I have already recited it is, to say the least, doubtful whether the husband was indeed still currently habitually resident in England and Wales on 9 December 2008.”

   With respect, I would entirely endorse that observation.  I note, however, that the application was still deemed valid under United Kingdom law. 

8. It is not necessary, and indeed it would be scarcely possible, to give a full account of the Sri Lankan and English proceedings.  It is fair to say in general terms that the husband prosecuted his case diligently in Sri Lanka with the active participation and opposition of the wife, who was fully represented up until the last hearing in Sri Lanka.  That led to orders in Sri Lanka in respect of the divorce and child support in December 2009.  No order was made for what the Court referred to as alimony. 

9. The Court’s judgment was translated into English on 3 January 2010 and sent to England where it was known, albeit by what one may describe as back door information, that a hearing was posited for January 2010.  On 11 January 2010 various orders were made.  The husband knew that interim spousal maintenance had been sought, as is apparent from paragraph 31 of his affidavit.  But when he received a letter from the court manager of the Court in England, which is exhibit ARA6, he was informed that a decree nisi was pronounced and that there would be a hearing on 26 February 2010 at the Principal Registry of the Family Division in High Holborn in London.  However, no mention was made whatever of the orders which it now appears clear were made by Robinson J on 11 January 2010. 

10. On 11 January 2010 the decree nisi was made and the husband was ordered to pay £400 per month for the children and £400 for the wife for spousal maintenance, such payments to commence on 1 October 2008.  Neither of those orders have any finite quality to them and it is to be presumed that according to those terms, they will go on for the rest of the lives of all three people concerned. 

11. The husband sought to challenge the divorce aspect of the matter only, as that was all he then knew about.  The matter, as foreshadowed, went to his Lordship Holman J on 22 February 2010.  Holman J’s decision makes no mention whatever of the spousal maintenance or child support orders made by Robinson J on 11 January 2010.  If one looks at exhibit ARA12, which is another letter from the court manager to the husband following the hearing, once again, although there is reference to the possibility of applying to Holman J to set aside the order or seeking leave to appeal, there was no mention made whatever of the fact that there were extant spousal maintenance and child support orders. 

12. The husband says – and on an interim basis, I accept – that he simply gave up at that point because he was concerned only with the divorce, which would come to fruition one way or the other, whether pursuant to the Sri Lankan or English orders in any event, as is deposed at paragraph 39 of his affidavit.  I say I accept this on an interim basis; I should point out I have no affidavit material from the wife that might seek to contradict what is put.  Then, in June 2010, the husband received documentation from the Child Support Agency pursuant to which of course by now there was a substantial liability.  Only on

    
    

    23 July 2010 did the husband receive copies of the orders made on

    
    

    11 January 2010 by Robinson J. 

13. Putting the matter somewhat in the round, the husband says first, that the Sri Lankan orders were determinative; they were first in time and they were made following contested proceedings.  I note that it would appear that the High Court did not apparently, at least fully, share that view, but it is not clear to me how much Holman J knew about the Sri Lankan property orders when the matter was heard on 22 February.  There is certainly no mention of those matters in his Lordship’s judgment.  The second thing that the husband says is that child support should be stayed pending further determination by this Court. 

14. Albeit that the orders with which we are concerned are orders of an Australian authority, the Child Support Agency, these are simply made as a result of international cooperation with the British counterpart, which goes under the acronym of REMO and those arrangements are only extant because of the orders made in England by Robinson J.  In effect, the husband seeks to compel the wife to litigate here the propriety of the orders made in England and/or the effect that should be given to the Sri Lankan orders made. 

15. That is the background of the matter.  I have arrived at the following conclusions.  First, it is clear that the husband should be given a chance to be heard.  Orders were made in January 2010; it is clear he was not served and it appears to me, at least, that this was deliberate – by the wife.  The question is where should he be heard.  This brings one to the authority of the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. In that case, which involved proceedings in New South Wales and in Missouri in the United States, the High Court relevantly held, certainly by the majority:

    i)that the act on which the company relied for its cause of action was committed in Missouri, and thus the tort, if there were one, was committed there.  Accordingly, even if the matter were to be litigated in Australia, the accountant would only be liable if he were liable under the law of Missouri.

    ii)on the ground that New South Wales was clearly an inappropriate forum in which to permit the action to proceed, and by Toohey J that Missouri was the more appropriate forum

    iii)that Mason CJ, Brennan, Deane, Dawson and Gaudron JJ further held “A defendant will ordinarily be entitled to an order for a stay or the dismissal of an action if he persuades the local court that, having regard to the circumstances of the particular case and the availability of a foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the matter, it is a clearly inappropriate forum for the determination of the dispute.  The question whether the local court is a clearly inappropriate forum requires attention to be directed to the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum.”

16. Here, of course, the wife has not pressed arguments such as those that were considered in Voth, but in the circumstances she undoubtedly would if she were here.  She has been served but I can understand why she has not appeared, and I would express some concern at the scope of the litigation.  An indefinite order is a worrying feature of the orders made in England, but the actual sum of £800 a month, at current exchange rates, is a lot but it is not gigantic.  The husband is a [occupation omitted]; he is a well-qualified [occupation omitted] who is in the process of getting yet better well-qualified. 

17. I have come to the view, notwithstanding the submissions to the contrary, that the husband should litigate in England.  It is the English Court’s order that he seeks to set aside.  This Court is not an appropriate forum for the consideration of this matter.  First, it is not this Court’s order that I am concerned with.  Secondly, the wife lives in England, has never lived here and has no connection with Australia whatsoever; the husband lived there from 2002 to 2008 and had a measure of connection with it.  He is wealthier than the wife, more probably than otherwise, and unlike her, would be able to afford to litigate in the United Kingdom whereas she would be hard-pressed, one would assume, to litigate here.  

18. The Court has power under s.14 of the Family Law Act 1975

    
    

    (“the Act”) to make orders subject, and I quote:

    “…on such terms and conditions as the Federal Magistrates Court thinks just.”

19. I am going to grant a stay of the current child support payments for an initial period of two months, provided that the husband undertakes to institute proceedings in the United Kingdom to set aside the orders made by Robinson J on 11 January 2010, and to prosecute the same diligently thereafter.  I would be minded to direct service of these Reasons for Judgment, once they are engrossed, and certainly in any event and in the meantime, the application, the affidavit and these orders, and I will give a return date of two months, at which time I will consider the possibility of an extension if it is sought and if it is appropriate. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date:  20 October 2010