VERNON & RICH
[2015] FCCA 352
•20 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VERNON & RICH | [2015] FCCA 352 |
| Catchwords: CHILD SUPPORT ̶ Whether a registered maintenance liability of a child maintenance order made in a reciprocating jurisdiction should be discharged ̶ whether there is just cause for discharging the maintenance order when the mother and children are resident in the Netherlands ̶ whether the mother can apply for administrative assessment of child support in Australia ̶ whether the husband can apply from Australia for variation of the Netherlands order. |
| Legislation: Child Support (Registration and Collection) Act 1988 (Cth), s.18A Child Support (Assessment) Act 1988 (Cth), ss.25, 29B, 30B |
| Applicant: | MR VERNON |
| Respondent: | MS RICH |
| File Number: | DGC 1740 of 2008 |
| Judgment of: | Judge Phipps |
| Hearing date: | 19 June 2014 |
| Date of Last Submission: | 19 June 2014 |
| Delivered at: | Dandenong |
| Delivered on: | 20 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dwyer |
| Solicitors for the Applicant: | Perry Weston |
| The Respondent: | There being no appearance for the Respondent |
ORDERS
The application filed 4 October 2013 is dismissed.
That paragraph 1 of the order made 14 April 2014 is discharged.
That the collection of amounts due for payments of maintenance for the children [X] born [omitted] 2004 and [Y] born [omitted] 2010 ordered by Roermond District Court Netherlands on 18 July 2012 and registered with the Registrar of Child Support be stayed until 21 April 2015.
That a copy of this order be sent to the Registrar of Child Support.
IT IS NOTED that publication of this judgment under the pseudonym Vernon & Rich is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1740 of 2008
| MR VERNON |
Applicant
And
| MS RICH |
Respondent
REASONS FOR JUDGMENT
The applicant father applies to set aside an overseas maintenance order registered in Australia under the Child Support (Registration and Collection) Act 1988 (Cth). The Roermond District Court of the Kingdom of the Netherlands made the order on 18 July 2012 requiring the father to pay €175 each month for each of his two children. The liability is a registrable maintenance liability under s.18A of the Child Support (Registration and Collection) Act 1988 (Cth) and was accepted for collection by the Child Support Registrar in September 2012. The Netherlands is a reciprocating jurisdiction.
The husband’s application has been served on the wife. She has not filed a response or affidavit but has responded by email. She opposes the application in the sense that she is not receiving any payment from the father in Australia and wants to receive payment.
The husband was born in Australia and is a resident of Australia. The mother was born in the Netherlands and lived in the Netherlands prior to moving to Australia in about 2001. The parties commenced living together in 2002, married in the Netherlands on [omitted] 2003 and separated, again in the Netherlands in 2011. There are two children of the relationship, [X] born [omitted] 2004 and [Y] born [omitted] 2010.
The parties and the children lived in Victoria until moving to the Netherlands in 2010. The father did not obtain employment in the Netherlands. According to the father their marriage broke down irretrievably in early 2011 and he returned to Victoria in August 2011. He said he could not remain living in the Netherlands. He was not entitled to obtain employment and was relying on financial support from his parents and family in Australia.
The mother applied for orders in the Roermond District Court which on 18 July 2012 made interim children’s orders as well as the maintenance order. The court made final children’s orders on 21 November 2012. Under those orders the children live with the mother in the Netherlands and have weekly contact with their father through web cam and Skype and contact when the father is in the Netherlands by agreement.
The Roermond District Court’s reasons for judgment shows that it used the husband’s income in Australia before moving to the Netherlands. It was AUD $26,160.89 per year and, the Roermond District Court, using an exchange rate of one euro equals AUD 1.25 calculated €1744 net monthly. The court noted that he pays AUD 150 bed and board with his parents and had not handed over any documents as evidence of further expenses. Consequently, the Roermond District Court fixed maintenance at €175 per month for each child. When registered in Australia this payment was $614.06 per month.
The husband says in his affidavit that prior to leaving Australia he had a [omitted] business, [omitted] Pty. Ltd. He said he had contracts with the company’s [omitted] to provide work and services on large property development subdivision projects. He says that he has used his best endeavours since returning to Australia to re-establish his business. His taxable income in 2012 was $15,000 and in 2013, $20,000.
The power to discharge, suspend revive or vary is in r.36 of the Family Law Regulations 1984 (Cth). It provides:
(1) This regulation applies to:
(a) an overseas maintenance order or agreement registered in a court before 1 July 2000; and
(b) an overseas maintenance entry liability or a registered maintenance liability.
(2) Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.
(3) An application may be made by:
(a) the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or
(b) the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or
(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4) The law to be applied to determination of an application is the law in force in Australia under the Act.
Under the definitions for Part III Div 2 of the Family Law Regulations 1984 (Cth) a “registered maintenance liability” is a registrable maintenance liability under s.18A of the Child Support (Registration and Collection) Act1988 (Cth).
Submissions on behalf of the husband then referred to Pt VII Div 7 of the Family Law Act 1975 (Cth), the provisions which apply to child maintenance orders, this being the law referred to in r.36(4). The submissions refer to ss.66F to 66K & 66P and submitted that the Court should order that the registered liability should be discharged and the parties directed to apply for administrative assessment under the Child Support (Assessment) Act 1988 (Cth).
Section 25 of the Child Support (Assessment) Act 1988 (Cth) provides that a parent of a child may apply to the Registrar for administrative assessment of child support. Section 29B makes provision for application by a parent who is a resident of a reciprocating jurisdiction. Section 29B applies to the mother in this case. Section 30B says that if there is a registered maintenance liability the Registrar may determine that the application is taken not to have been properly made, in other words refuse the application. Therefore, the mother could apply for administrative assessment but the registrar might refuse the application.
The objects of the child maintenance provisions in to Pt VII Div 7 are contained in s.66B. They are:
(1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Division include ensuring:
(a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b) that parents share equitably in the support of their children.
In his affidavit the husband says that he cannot afford to travel to the Netherlands or retain lawyers in the Netherlands. He does not speak Dutch and so cannot make his own application.
The father does not have to make application in the Netherlands. Regulation 18 of the Child Support (Registration and Collection) Regulations 1988 (Cth) provides:
1) If, under a law of a reciprocating jurisdiction, a person claims to be entitled to variation of a registered maintenance liability of a kind mentioned in section 18A of the Act, the person may apply to the Registrar to have a claim for variation transmitted to an overseas authority of the reciprocating jurisdiction.
(2) The Registrar must take, on behalf of the person making the application under subregulation (1), any action required to be taken, for the purposes of an international maintenance arrangement with the reciprocating jurisdiction, to seek the variation.
(3) The Registrar must not take any action under subregulation (2) unless satisfied that the claim is in accordance with the international maintenance arrangement.
The father has a remedy in Australia, that is to make application in Australia to the Registrar of Child Support to have a claim for variation transmitted to the overseas authority. The Registrar is then obliged to take any action required to be taken to seek the variation.
While the father may be at a disadvantage in Australia in applying for a variation of an order made in an overseas court he is not at such a disadvantage as the mother. He can make application from Australia to the overseas court using the international maintenance arrangement with the reciprocating jurisdiction, in this case the Netherlands. The mother does not have that facility. The application has been made against her in an Australian court. She must supply an address for service in Australia and a telephone number during which she can be contacted during business hours. Rule 6.01(3) of the Federal Circuit Court of Australia Rules 2001 (Cth) provide:
An address for service:
(a) must be an address in Australia; and
(b) must include a telephone number at which the party may be contacted during normal business hours; and
(c) may include a fax number or an email address for the party.
The Court might dispense with this rule and might be able to make arrangements for the mother to appear by telephone, but that has not happened, and it is understandable that the mother has not made application for this to happen.
The financial material before the court comes from the father’s side only. There is nothing in admissible form about the mother’s finances or the circumstances of the children, particularly the mother’s ability to support the children. Therefore, the court has no evidence about many of the circumstances it is required to take into account in determining whether there should be a discharge or variation of the order.
The power to discharge a maintenance order in this case is contained in s.66S(2)(a) of the Family Law Act 1975 (Cth). The court may, by order, discharge the maintenance order if there is just cause for so doing. The father is applying for discharge of the maintenance order.
I do not consider that there is just cause for discharging the maintenance order. The matters I consider to be relevant in making this determination are:
a)the father can make application in Australia to an Australian authority for a variation of the overseas order;
b)the mother, who has the full-time care of the children and most of the financial responsibility for them does not have the assistance of a Netherlands authority in opposing the application in this Court in Australia;
c)the father’s application is for an order that would result in maintenance of the children being assessed pursuant to Australian law. The children live in the Netherlands. Australia, by recognising the Netherlands as a reciprocating country pursuant to international convention has recognised that the child-support laws of the Netherlands are to be enforced in Australia;
d)in determining whether there is just cause for discharging the overseas maintenance liability I must take into account the provisions of s.66B of the Family Law Act 1975 (Cth). The question of adequate support for the children is best determined in the children’s country of residence;
e)while I do not have evidence of the law of the Netherlands relating to child maintenance, I do have the reasons of the Roermond District Court. The court recognised that it made its decision on limited information and made an assumption that the husband’s income in Australia would return to the level it had been at before he left for the Netherlands. Therefore, if the husband can establish to the Netherland’s Court’s satisfaction that the assumption was not met there are reasonable grounds for the Netherlands Court to vary its order. The husband has a reasonable avenue for putting his financial position before that court. Because the mother and the children are in the Netherlands she will be able to put her financial position and the children’s circumstances before the Netherlands court. The Netherlands court will be in a much better position to determine proper maintenance for the children than this court.
I am not satisfied there is just cause for discharging the order. The application is dismissed.
I will order a stay on collection of payments by the Registrar of Child Support until 21 April 2015 to permit the father to make application through the Registrar of Child Support to the Netherlands authority.
I will direct that a copy of this order is sent to the Registrar of Child Support.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Phipps
Associate:
Date: 20 February 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Stay of Proceedings
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Jurisdiction
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Appeal
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