Vaters and Kantner and Anor - [2011] FMCAfam 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VATERS & KANTNER & ANOR

[2011] FMCAfam 303

CHILD SUPPORT – Child maintenance – overseas order – matters which may be taken into account in application for variation or discharge – exercise of discretion.

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (Canada), s.3
Family Law Act 1975, Pt VII, VIII, ss.66, 66B, 66C, 66D, 66J, 66K, 66S
Family Law Regulations 1984, rr.36, 37

Lutzke and Lutzke (1979) FLC 90-714; 5 Fam LR 553

Mathieson v Hamilton [2006] FMCAfam 238; 201 FLR 28; [2006] FLC 98-032

Wreford v Caley [2010] FamCAFC 21; (2010) 238 FLR 88; (2010) 43 Fam LR 1

Applicant:

MR VATERS

First Respondent:

MR KANTNER

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLC 5781 of 2010

Judgment of:

Riethmuller FM

Hearing date:

8 February 2011

Date of Last Submission:

8 February 2011

Delivered at:

Melbourne

Delivered on:

13 May 2011

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch of Counsel

Solicitors for the Applicant:

Carew Counsel Pty Ltd

Counsel for the First Respondent:

There being no appearance by or on behalf of the First Respondent

Solicitors for the First Respondent:

The First Respondent is self-represented

Counsel for the second Respondent:

Mr Maat

Solicitors for the second Respondent:

Australian Government Solicitors

ORDERS

The application to discharge or vary the Orders of the Supreme Court of British Columbia, Canada be dismissed.
The collection of child support and the enforcement of any arrears of child support for [X] born [in] 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.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 5781 of 2010

MR VATERS

Applicant

And

MR KANTNER

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

The applicant father applies, pursuant to regs.36 and 37 of the Family Law Regulations 1984, to discharge an overseas maintenance order. The application was served on the Child Support Registrar (‘CSR’) and the respondent mother, Ms Kantner. The mother attended an interlocutory hearing by telephone and subsequently filed written material. Unfortunately, she did not file any financial material. As a result the decision I must make pursuant to the Regulations is in the absence of any information from the mother with respect to her financial circumstances either during the period of the child’s minority or currently.
The father filed an affidavit setting out his current financial circumstances. However, the affidavit only provided limited material relating to his finances during the relevant years in which the orders were operative.
The matter has a long and difficult history. The parties were married in December 1983 and separated in December 1990. At the time that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCAfam 303
Decision Date: 13 May 2011

CaseChat Overview and Summary

Vaters and Kantner and Anor involves a dispute over child support orders made in Canada, which the applicants seek to have recognised and enforced in Australia. The application was brought before the Family Court of Australia, seeking to discharge or vary the child support orders made by the Supreme Court of British Columbia, Canada, and to stay the collection and enforcement of any arrears of child support. The applicants, Vaters and Kantner, argue that the orders should not be recognised or enforced in Australia due to various grounds, including a change in circumstances and the best interests of the child.

The legal issues before the court were whether the Australian court had the jurisdiction to discharge or vary the Canadian child support orders, and if so, whether it was appropriate to do so given the circumstances of the case. The court also needed to determine whether it was in the best interests of the child to stay the collection and enforcement of child support in Australia pending any proceedings in Canada. The applicants argued that the Australian court should not enforce the Canadian orders due to a change in circumstances and the need to consider the child's best interests. The respondents contended that the Australian court should recognise and enforce the Canadian orders, as there were no grounds to discharge or vary them.

In its reasoning, the court noted that the Family Law Act 1975 (Cth) provided for the recognition and enforcement of foreign child support orders in Australia. However, the court also had the discretion to decline to enforce an order if it was satisfied that to do so would be unjust. The court found that there were no grounds to discharge or vary the Canadian orders, as the applicants had not demonstrated a significant change in circumstances or that it was in the best interests of the child to do so. However, the court considered it appropriate to stay the collection and enforcement of child support in Australia for 45 days to allow for any proceedings to be commenced in Canada. If proceedings were filed in Canada within 45 days, the stay would continue until three months from the date the proceedings were filed in Canada to discharge or vary the child maintenance orders.

In conclusion, the court dismissed the application to discharge or vary the Canadian child support orders and to stay the collection and enforcement of child support in Australia. However, it did order that the collection and enforcement of child support be stayed for 45 days, or until three months from the date proceedings were filed in Canada if proceedings were commenced within 45 days. This decision ensures that the child support orders made in Canada are recognised and enforced in Australia, while also allowing for any proceedings in Canada to be considered.

Orders

Orders of the court

The application to discharge or vary the Orders of the Supreme Court of British Columbia, Canada be dismissed.

The collection of child support and the enforcement of any arrears of child support for [X] born [in] 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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