SECRETARY OF THE ATTORNEY-GENERAL & VALMAR
[2016] FCCA 1948
•25 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SECRETARY OF THE ATTORNEY-GENERAL & VALMAR | [2016] FCCA 1948 |
| Catchwords: FAMILY LAW – Application to confirm a provisional maintenance order made by Court in the Republic of South Africa – if confirmed maintenance to be collected by Department of Human Services – respondent is Australian citizen – application dismissed – provisional maintenance order does not meet the definition of a maintenance order within the meaning of s.110(1(d) of the Family Law Act 1975 as not “an order or determination that is expressed to continue in force until a day, or for a period, specified in the order or determination…” |
| Legislation: Child Support (Registration and Collection) Act 1988 as amended by the Families, Community Services and Indigenous Affairs Legislation (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth) Child Support (Assessment) Act 1989 (Cth) Family Law Regulations 1984 regs.24A, 28(c), 28(d)(i), 28(d)(ii), 28A(6)(a), 28A(6)(b), 28A(6)(c), 28B(2), 28(1)(a), 28(1)(b), 28(2) |
| Cases cited: Sheppard & Foyle (1984) FLC 91-533 |
| Applicant: | SECRETARY OF THE ATTORNEY-GENERAL’S DEPARTMENT |
| Respondent: | MR VALMAR |
| File Number: | BRC 9939 of 2013 |
| Judgment of: | Judge Purdon-Sully |
| Hearing date: | 25 February 2016 |
| Date of Last Submission: | 25 February 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 25 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Foley (Solicitor Advocate) |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Ms Ann-Marie McDiarmid |
| Solicitors for the Respondent: | Kelly Legal |
ORDERS
That the proceedings before this Court commenced by way of Initiating Application filed on 14 November 2013 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Secretary of Attorney-General & Valmar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 9939 of 2013
| SECRETARY OF ATTORNEY-GENERAL |
Applicant
And
| MR VALMAR |
Respondent
REASONS FOR JUDGMENT
Ex tempore
These are proceedings pursuant to Regulation 28(2) of the Family Law Regulations 1984 (“the Regulations”) instituted by the Secretary of the Attorney-General's Department calling on the respondent, Mr Valmar, to show cause why a provisional maintenance order in favour of X (“X”) born (omitted) 1991, made by a Court in the Republic of South Africa on 23 January 2012, should not be confirmed.
The respondent, Mr Valmar and Ms Valmar are the parents of X. If the South African maintenance order is confirmed then the maintenance payable to X under the order will then be collected by the Child Support Agency in Australia as Mr Valmar is an Australian citizen who resides in (omitted) Queensland.
In these reasons and for ease of reference I shall refer to the respondent as “the father” as Ms Valmar as “the mother”.
Background
The mother and X reside in South Africa.
The father and his current wife and their child reside in (omitted) outside of (omitted) where the father has full-time employment.
The mother and father married on (omitted) 2002. They separated in December 2004. The relationship accordingly had a duration of about two and a half years.
X is the biological child of the mother but not of the father. X's biological father is deceased.
At the date of the marriage of the mother and the father, X was 11 years of age. He was then adopted by the father, the father signing the documents to commence the process on 2 July 2004 on his evidence when X was about 13 years old, that process having not been completed until shortly before the mother commenced divorce proceedings on 11 February 2005, on the evidence of the father.
On 20 July 2006 an order of the High Court of South Africa, which I shall refer to as “the divorce order”, provided inter alia that the father would pay maintenance to the mother in respect of X in the sum of R1500 per month and that X would be retained, at the father's expense, on the father's medical aid.
The father immigrated to Australia on (omitted) 2009 with his wife and daughter. They became Australian citizens on (omitted) 2013.
It is unchallenged that the father paid maintenance for X pursuant to the divorce order until 14 February 2011 - so for a period of about six years.
It is the father's evidence that he ceased paying maintenance as he had become aware that X, who was then 20, was working as a (occupation omitted).
It is also unchallenged that X did not attend university the year following his completion of secondary school in 2009.
Nor does it seem to be contested that on 15 June 2011, the mother wrote to the father informing him that X was working temporarily part-time, that X wanted to study sound engineering and that under South African law he was liable to pay maintenance for X until he completed all of his university studies and was self-supporting.
On 25 October 2011, the mother further informed the father that X had been accepted into a (school omitted) in (omitted) and he was to start studying (omitted) the following year, 2012.
Whether X was working in the gap year that he took after he completed his secondary schooling, or what he was doing up until he started his studies is unknown on the evidence.
On 23 January 2012, following application by X, the Court of the Magistrate for the District of (omitted) in the Republic of South Africa (“the South Africa Court”) made a provisional order that the mother pay R762 per month and the father R6,088 per month (or what appears to be the equivalent of about $540 in Australian dollars on today's exchange rate) to the Magistrate (omitted) in favour of X from the date of confirmation of that order.
That order was made provisionally and had no effect unless and until confirmed by a competent Court in Australia and once so confirmed, it would replace the order for maintenance pursuant to the 2006 divorce order.
At the time the provisional maintenance order was made on 23 January 2012 X was nearly 21 years of age.
The provisional maintenance order does not have an end date. Nor is it required to. Under South African law there is no automatic end date or predetermined date upon which such a maintenance order is terminated. The order operates then until circumstances render it unnecessary or unjust.
The father asserts that he was not afforded notice of the 2012 hearing until after the event or the hearing leading up to the making of that order.
X completed two years of study, possibly in 2014, and then commenced full-time work on (omitted) 2015. He now seeks, however, to undertake further study which will take a further three years and result in a Master’s degree.
He otherwise asserts that even if he did not engage in further study he would need financial assistance from his parents, the reason being because he has an old motorbike which needs repairs and that for his existing study loan the mother is already paying the interest with the capital amount not being reduced.
Court history in Australia
By Initiating Application filed by the applicant, the Secretary of the Attorney-General's Department on 14 November 2013, the applicant sought confirmation of the provisional maintenance order.
The father filed a Response on 24 April 2014, amended on 15 January 2016.
Without going into chapter and verse with respect to the history of these proceedings because there were some delays because of material being sent from Australia to South Africa and the applicant awaiting information from the South African court, on 5 May 2014 orders were made by this Court, inter alia, providing that the 2012 provisional maintenance order be remitted to the South African Court and, further, that it be requested that the South African Court take further evidence, such evidence to include evidence as to whether X had commenced or was currently attending university studies and further consider its provisional maintenance order.
The applicant notes in written submissions that in accordance with the usual process for these types of matters, the South African court was to be notified of the orders of this Court dated 5 May 2014 via diplomatic channels.
On 27 May 2014, the applicant sent documents from these proceedings to the Department of Human Services to be forwarded via the Department of Foreign Affairs and Trade to the South African Central Authority.
Those documents are set out in paragraph 28 of the written submissions of the applicant filed on 4 February 2016.
After sending the Court documents to the Department of Human Services, the Secretary of the Attorney-General's Department was not involved further in the process of sending the documents to the South African Central Authority and so the Secretary is unable to verify whether the South African Court received all of the documents.
On or about 30 September 2015 the applicant received documents from the South African Court in response to the matter having been remitted to it.
It appears that on 26 June 2015 there were court proceedings in South Africa when further evidence was taken from X and the mother. The respondent asserts that he was not notified or served with respect to those proceedings.
Those proceedings were then adjourned to 14 August 2015 so as to provide a record to this Court and a further hearing to take place on 14 August 2015 with the provisional maintenance order remaining unchanged however the respondent's evidence is that he was not notified of or served with any documents relating to the hearing on 14 August 2015 and it is unclear whether that hearing took place.
However on or about 30 September 2015, as I said, the applicant received documents from the South African Court in response to the matter having been remitted to it and in the material from the South African court there is a letter from the Chief Magistrate of the South African court dated 9 July 2015 that states, and I quote:
It is requested that this supplementary evidence together with copies of proceedings in both the (omitted) and Brisbane courts be placed before the appropriate court in Australia for renewed consideration of the maintenance order. It is further requested that attention be drawn to the situation that under South African law there is no automatic end date or predetermined date upon which an order of this nature is terminated; rather, the order operates until circumstances render it unnecessary or unjust.
A copy of the ruling judgment which is to this effect is also attached, cited as Minz & Simpson 1991 ALL SA453(A)/1990/4 SA455(A).
So it appears as though the South African court took further evidence from X and the mother on or about 26 June 2015 but what happened on 14 August 2015 is unclear. As I mentioned earlier it is the father's evidence that he was not involved in that process and was not informed about the hearing on 26 June 2015 or 14 August 2015.
In the context of the confirmation hearing in an Australian court with respect to the provisional maintenance order made by the South African court, the father is able to raise any ground of opposition that he could have raised either in South Africa or if the proceedings leading to the making of the provisional maintenance order had been heard in Australia.
The respondent’s case
The father's case can be summarised as follows:
a)Firstly, that the Court has no jurisdiction to confirm, discharge or dismiss the South African provisional maintenance order because it is not a maintenance order within the meaning of section 110(1)(d) of the Family Law Act 1975 (“the Act”) as amended. It is his case that the definition requires such an order to, inter alia, have an end date and as the South African order is not expressed to continue until a day or a period specified in the order, a fact highlighted by the South African court, then the order of the South African court is outside the definition of section 110 of the Act and the application of the Secretary must be dismissed.
b)Secondly, if the Court is satisfied that it does have jurisdiction, the Court should discharge the order, inter alia, for reasons of procedural fairness and the father not being able to engage in the South African process, the paucity of evidence produced by X to support his case and discharge the onus on him, the indeterminate nature of the order and by reference to the relevant legal principles under Australian law for the making of an order for adult maintenance, the order should not be confirmed as in Australia the father would have no liability to support X and, further, in the circumstances it would be just and reasonable to discharge the South African order.
The applicant’s case
The applicant appeared to concede the respondent’s first submission and that it was open to this Court to find that the South African maintenance order did not meet the definition of maintenance order under section 110 of the Act. However, it was submitted that in the circumstances where under South African law there is no automatic end date with orders of this nature, and the Court under South African law is not required to specify an end date, and where the intent of the regulations is to give effect to Australian’s obligations to register maintenance orders from reciprocating jurisdictions and is designed to accommodate orders of that type made by the South African court, then the Court should not adopt a technical black letter-of-the-law approach to the interpretation of section 110.
It is Mr Foley's submission that it would be unfortunate if the Court found it had no jurisdiction because in the circumstances it may not end the matter and it would result in further delay for all concerned and a dismissal of the application would mean that the 2006 divorce order would still be operational.
If the Court, however, is satisfied that it does have jurisdiction then the applicant submits that there is no cause to discharge the South African order and that the order should be confirmed but with a modification allowable under regulation 28A(6)((a) such that the father be ordered to pay X maintenance in the amount of R6,088 per month or the equivalent in Australian dollars from 23 January 2012 being the date that the provisional order was made until 15 February 2015, being the date that X commenced full-time employment.
Pursuant to Regulation 28B(2), the Court is also able to then set a time frame for payment of this amount by the father with the Court to further order that the payment be satisfied by way of instalments.
On the variation then proposed by the applicant, the father would be required to pay to X the sum of R225,256 (being 37 payments at R6,088 per month) which converted to Australian dollars if you use the exchange rate today, it seemed to be conceded would be about AUD$20,000.
The applicant submits, inter alia, that that payment would then satisfy X's reasonable maintenance needs from 14 February 2011, when the father stopped paying under the divorce order, to the date that X obtained full-time work having proper regard to the matters under section 66L(2) of the Act in circumstances where the Court would find that it was necessary for X beyond age 18 years to complete his education in sound engineering.
The applicant further submitted that given X’s age it would be unnecessary or unjust for the provisional maintenance order to operate beyond the date that X commenced full-time employment and to undertake a further course of three years of study. It would be a matter for X to fund this further study should he decide to proceed with it.
I am only summarising the submissions. As I said, they were fulsomely canvassed in written and oral submissions, and my summary probably does not do the submissions justice, however I have had regard to two lots of written submissions by the respondent and the applicant's written submissions and the further detailed oral submissions received from the parties.
Material considered
In considering this matter I have had regard to the material upon which each party relies as detailed in written submissions and as canvassed during the oral submissions.
I do not propose to respond to every submission made however, in reaching my decision I have considered all submissions.
Legal principles
Turning then to the preliminary issue, with respect to the scheme of registration of overseas orders I had reference over the luncheon break to a helpful overview in the CCH Family Law Practice, Volume 2 at 55-600 et seq. If it is the case that either party wish to comment on my understanding of the scheme, then I shall afford them an opportunity to do that because I did not raise it during the course of oral submissions.
The law dealing with the enforcement of overseas maintenance orders is contained in Division 1 of Part XIIIAA of the Act which deals with International Conventions, International Agreements and International Enforcement.
Section 110 of the Act defines a “maintenance order” under section 110(1).
Section 110(2) provides that Regulations may be made in relation to enforcement of overseas maintenance orders made in reciprocating jurisdictions. There is no issue that South Africa is a reciprocating jurisdiction as listed in Schedule 2 of the Regulations.
The substantive provisions to do with the system of registration of overseas maintenance orders and agreements with the Child Support Agency and the subsequent enforcement and variation of those are further contained within:
a)the Child Support (Registration and Collection) Act 1988 as amended by the Families, Community Services and Indigenous Affairs Legislation (Child Support Reform Consolidation and Other Measures) Act 2007,
b)the Child Support (Registration and Collection) Regulations 1988, and
c)the Family Law Regulations.
Regulation 24A provides for the purposes of Part III of the Regulations, the Part that deals with the registration of overseas orders, “maintenance order” has the same meaning as it section 110(1) of the Act.
Regulation 28 of the Regulations provides for the confirmation of provisional maintenance order made in a reciprocating jurisdiction.
Regulation 28 applies to a maintenance order if:
a)made in the reciprocating jurisdiction (Reg 28(1)(a)) and
b)the order has no effect under the law of that jurisdiction unless and until it is confirmed by a court outside that jurisdiction (Reg 28(1)(b)) and
c)where the Secretary has been provided with certain information - which I do not need to detail (Reg 28(c)) and
d)there are reasonable grounds to believe that the respondent, that is the payer under that order is ordinarily resident in, present in or proceeding to Australia (Reg 28(d)(i)) and the order will have effect under the law of the overseas jurisdiction if it is confirmed by a court having jurisdiction under the Act (Reg 28(d)(ii)).
CCH notes that because the Regulations currently do not allow for enforcement of overseas maintenance liabilities as defined by the Child Support Act but refer to repealed regulations which seems to be the case in these proceedings before me, the proceedings may be taken on behalf of the person who benefits from the order by the Secretary of the Attorney-General's Department who performs that function on behalf of the person seeking to enforce the maintenance order. I did raise this with Mr Foley and he clarified that that was the position in the sense that the Secretary has to undertake this role.
The Secretary then must make an application to the Court and call upon the respondent payer, to show cause why that order should not be confirmed.
It is then open to the respondent to raise at the hearing in this Court any ground of opposition that he could have raised in the original jurisdiction or any ground of opposition that he could raise at the proceedings leading to the making, if the order had been heard in Australia.
Pursuant to Regulation 28A(6), the Court in this jurisdiction then may confirm the provisional order either with or without modification (Reg 28A(6)(a), discharge the provisional order either with or without modification (Reg 28A(6)(b)), or adjourn the proceedings and remit the provisional order to the Court that made it with a request that that court take further evidence and further consider its provisional order (Reg 28A(6)(c)).
It was the latter course that this Court adopted last year by the order made on 5 May 2014.
Once a decision is made by this Court the Secretary then, notifies the overseas court of the Australian court's decision to confirm or discharge or to vary the order.
If the provisional order is confirmed, then it is enforceable in Australia and any moneys owing become a debt due to the Commonwealth and can be enforced by the Child Support Registrar under the provisions of the Child Support (Assessment) Act 1989, including the power, for example, to deduct payment from the payee's employer.
Findings
I accept the submission of Ms McDiarmid, Counsel for the father, that the Court is unable to confirm the 2012 provisional maintenance order of the South African Court because it does not meet the definition of a “maintenance order” under section 110(1)(d) of the Act which defines a “maintenance order” as follows:
“an order or determination (however described) with respect to the maintenance of a child who has attained the age of 18 years, being an order or determination that is expressed to continue in force until a day, or for a period, specified in the order or determination, where the provision of maintenance for the child is necessary to enable the child to complete a course of study, vocational training or an apprenticeship or to continue his or her education in any other way, or because the child is mentally or physically handicapped;
I so conclude. This is because the provisional maintenance order of the South African Court cannot be described as an order or determination that is expressed to continue in force until a day or for a period specified in the order or determination.
If there was any doubt in that regard it was confirmed by the letter from (omitted), Chief Magistrate of the South African Court dated 9 July 2015, inter alia that “under South African law there is no automatic end date or predetermined date upon which an order of this nature is terminated..”
I accordingly dismiss the application by the Secretary to confirm the provisional maintenance order made on 23 January 2012 by the Court of the Magistrate for the District of (omitted) in the Republic of South Africa.
This is not a situation where the Court can conclude that this is a mere technicality. It is a matter that goes to the heart of this Court's power to do what it is being asked to do, namely to confirm and then vary a maintenance order on application by the Secretary.
There is no maintenance order properly defined within the meaning of the Act, a definition that carries over to the regulations which enables the Court to do what it is being asked to do.
Nor is it a matter that can be rectified in my view solely by reference to the intent of the Act. The intent of the legislation is clear. Notwithstanding one of the objects for example, of the Child Support (Assessment) Act 1989 being to give effect to Australia's obligations under international arrangements in relation to maintenance obligations arising from, for example, a family relationship, parentage or marriage, the Court must still have the necessary jurisdiction.
What is clear, in my respectful view, is that the Regulations and possibly the provisions of the Act may need to be reconsidered. For example, there appear to be specific provisions introduced to recognise specific arrangements between Australia and New Zealand and United States petitions, the former by agreement between the two governments, the text of which is annexed to the Child Support regulations and the latter dealt with by specific regulation, Regulation 28C, for example, under the Regulations, dealing specifically with United States petitions, with respect to the duty of support and also by way of a specific provision in section 110(2)(e) of the Act.
Having made that determination, it is not necessary for me to consider the other submissions that were made with respect to the provisional maintenance order in the event that I found that I did have jurisdiction.
However, without dealing with the submissions in any detail, I accept the submissions of Ms McDiarmid with respect to the matters of procedural fairness, which are in my view, ultimately not remedied by the father being heard in these proceedings. It is fundamental to our system of justice that persons who are made the subject of obligations under an order have an opportunity to respond, test evidence and be heard before those orders are made.
There is no evidence before the Court challenging the evidence of the father that he was not made aware of the 2012 hearing and had not been served with X's material in relation to that application, until after the order was made. Nor was it challenged that he was not afforded an opportunity to participate in the 2015 hearing.
I further accept that under Australian law it is difficult to see how an order could be made for the father to contribute to X's desire to engage in postgraduate studies or for further support given X’s age, the fact that he is in full-time employment and that he has qualifications. Sensibly the Secretary was not seeking that outcome in any event.
I thank Mr Foley and Ms McDiarmid for their careful preparation of this matter. Neither were able to refer me to any authorities on point. My research over the luncheon break was unable to locate any decision other than a decision of Sheppard & Foyle (1984) FLC 91-533 which concerned a provisional order for the payment of maintenance of an ex-nuptial child however it did not assist the issues in this case.
Ms McDiarmid referred the Court to the Full Court decision of Everett & Everett [2014] FamCAFC 152 (May, Strickland and Tree JJ). Whilst not specifically on point, on her submission it reinforced the underpinning values of the scheme of the Act with respect to protection from an indefinite time frame for the payment of maintenance and was relevant to the definition of a “maintenance order” under section 110 of the Act and which distinguished Australian law from South African case law.
Whilst both parties acknowledge the paucity of evidence before the South African Court and the difficulties that that presented this Court in its determination had it found jurisdiction, it is not necessary for me to address that given my ruling. However, I place on record my appreciation for the preparation of this matter by both the applicant and at respondent. It was most helpful to me.
I also thank Mr Foley and Ms McDiarmid for making themselves available to take judgment so late in the day. I was conscious that the father was present today, having flown down from (omitted). It was important, in my view, given the fact that this matter has been in my docket since late 2013 - and there were reasons for the delay which is all set out in the material – however it was important in my view for the respondent in the circumstances, to hand down the decision today and also important for the applicant who will relay to the South African Court my determination today for the decision to be handed down expeditiously.
I shall publish my reasons so they can be provided to the South African Court as the Secretary is required to do. That, of course, leaves, as I understand it, the 2006 divorce order still in place which requires the respondent to meet obligations under that order. It will be a matter for the respondent to take advice from his legal representatives with respect to what, if anything, he should do in relation to that.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully.
Date: 25 February 2016
0