Vickery and Hudson and Ors
[2012] FMCAfam 412
•15 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VICKERY & HUDSON & ORS | [2012] FMCAfam 412 |
| CHILD SUPPORT – Enforcement – interim orders – jurisdiction – Federal Magistrates Court of Australia is a clearly inappropriate forum – where Family Court in Hawaii has previously ruled on the same issue – res judicata. |
| Child Support (Assessment) Act 1989 (Cth), ss.99, 100 Child Support (Registration and Collection) Act 1988 (Cth), ss.18A, 25, 30 Family Law Act 1975 (Cth), ss.66S, 110 Federal Magistrates Act 1999 (Cth), s.10 Family Law Regulations 1984 (Cth), regs.3, 24A, 25, 36, 38 |
| Cosgrove & Cosgrove (1996) FLC 92-700 Henry v Henry (1996) 20 Fam LR 171; FLC 92-685 Klein & Wright [2007] FMCAfam 360 Lutzke & Lutzke (1979) FLC 90-714 Newbeld & Newbeld and CSR & Newbeld [2007] FMCAfam 465 Vakil and Vakil (1997) FLC 92-743 Voth v Manildra Flour Mills (1990) 171 CLR 538 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance adopted at The Hague on November 23, 2007 |
| Applicant: | MR VICKERY |
| First Respondent: | MS HUDSON |
| Second Respondent: | CHILD SUPPORT AGENCY |
| Third Respondent: | CHILD SUPPORT AGENCY, STATE OF HAWAII |
| File Number: | SYC 2003 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 February 2011 |
| Date of Last Submission: | 8 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Le |
| Solicitors for the Applicant: | Le Vaccaro Lawyers |
| Counsel for the First Respondent: | In person (by telephone) |
| Solicitors for the First Respondent: | No Solicitor on the Record |
| Counsel for the Second and Third Respondents: | Excused |
| Solicitors for the Second and Third Respondents: | No Solicitor on the Record |
ORDERS
Order No. (1) made on 4 May 2010 staying the enforcement by the Child Support Agency of the Orders of the Family Court of the First Circuit in the State of Hawaii in matter FC-P No. [omitted] for payment of child support is discharged.
The Application filed on 1 April 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Vickery & Hudson & Ors. is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2003 of 2010
| MR VICKERY |
Applicant
And
| MS HUDSON |
First Respondent
| CHILD SUPPORT AGENCY |
Second Respondent
| CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAII |
Third Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a child who is the subject of an order for child support made by a Court in the United States of America to discharge all existing liabilities for child support and have this Court make an assessment of child support under the provisions of the Child Support (Assessment) Act 1989 (Cth).
The Applicant claims that this Court has jurisdiction to make those orders. The First Respondent (who will be referred to as “the Respondent” for convenience), who is the child’s mother, submits that the Court does not have jurisdiction and the jurisdiction remains with the Court in Hawaii that made the Order.
Orders Sought
In his Application filed on 1st April 2010 the Applicant seeks the following order:
That all liabilities for payment of child support by the applicant to the Respondent Mother be discharged, and that an alternative assessment of the Applicant’s child support liabilities be determined by the Court under applicable Australian laws in the event that results of DNA tests satisfy the Court that the Applicant is the father of the child.
The Father no longer presses his claim for DNA testing.
The Mother, in her Response filed on 7th October 2010, states:
Respectfully, I object to the request to modify the child support obligation.
The Second and Third Respondents, have not sought to participate in the proceedings other than to abide the outcome of the Application.
Background
The background facts are set out in a written submission filed on behalf of the Father.
The Applicant and the Respondent met in December 2004 in Hawaii, whilst the Applicant was there on holiday. The Applicant lives in Australia. The Respondent is a resident of Hawaii.
The parties had a sexual relationship over a period of about five days. On [date omitted] 2005 the Mother gave birth to a child, who lives with her.
The Father concedes that in early 2009 he received a number of documents from the Family Court of the First Circuit of the State of Hawaii relating to proceedings commenced by the Child Support Enforcement Agency, State of Hawaii as plaintiff. The Mother and the Father were named as defendants.
The Father chose not to respond to the documents.
The proceedings were heard before her Honour Judge Martell on 24th April 2009. The Father did not appear and was not represented. The Mother attended Court and consented to the orders sought by the Child Support Enforcement Agency.
On 8th May 2009 the Court delivered a Judgment of Paternity and made Orders to the following effect:
a)The Applicant was found to be the natural father of the child.
b)A new Certificate of live Birth was to be issued showing the Applicant as the legal and natural father.
c)Legal custody of the child was granted to the Mother. There was to be no visitation by the Father “until moved upon”.
d)The Father was ordered to pay child support in the sum of $1,870.00[1] per month, with the first payment to be made by the last day of May 2009.
e)The Father was ordered to pay the sum of $80,410.00 as arrears of child support for the period October 2005 to April 2009, to be paid at the rate of $130.00 per month from May 2009.
[1] All figures are in US dollars
In August 2009 the Father received notification of acceptance by the Child Support Agency, the Second Respondent, of an application by the Mother to collect child support payable to her. In the letter from the Child Support Agency dated 31st July 2009, the Father was informed that:
· Your first payment will be $106,616.25[2] and should be paid by 7 September 2009
· Your regular payment will be $2,266.63 per month[3]
[2] Australian dollars
[3] Affidavit of Mr Vickery 1.4.2010 Annexure “A”
Perhaps not surprisingly, the Father commenced proceedings in this Court on 1st April 2010, seeking Orders for DNA testing to determine paternity and a stay of payments until further order.
On 4th May 2010 an order was made staying the enforcement of the orders of the Family Court for payment of child support until further order.
The parties underwent DNA testing on 22nd June 2010 and on or about 29th June DNA results from Laboratory corporation of America concluded that the Father could not be excluded as the child’s biological father with a probability of paternity being 99.99% as compared to an untested unrelated man of the Caucasian population.
On 23rd August 2010 the Mother filed a Motion to Enforce Hawaii’s Jurisdiction and Judgment of Paternity in the Family Court of the First Circuit of the State of Hawaii, supported by an affidavit. The Motion was returnable on 4th November 2010 before her Honour Judge Ryan.
On 4th November 2010 the Family Court made the following Orders:
1. Based on the court’s congested paternity calendar, as well as the issue of service, the court will continue the mater until 02 December 2010, Thursday at 1:30 pm (HST).
2. The parties are ordered to appear.
3. The Court gives leave to Defendant Vickery to appear by telephone.
4. Plaintiff’s counsel will submit a telephone card and cover letter which will list Australia’s Federal Magistrate’s telephone number and facsimile number as soon as practicable before the 02 December 2010 hearing
On 2nd December 2010, Judge Martell in the Family Court made the following Orders:
1. 3 calls were made for Defendant Mr Vickery and there was no response.
2. Defendant Mr Vickery was properly served and he is defaulted for today’s hearing.
3. Hawaii retains jurisdiction over child support, custody and visitation of the parties’ minor son [X] (dob: [omitted] 2005), defendant Hudson and Defendant Vickery.
4. Defendant Hudson’s Motion is granted and Defendant Vickery’s child support obligation remains at $1,809.00 per month commencing May 1, 2009.
5. The Judgment of Paternity filed on May 8, 2009 in the Family Court of the First Circuit remains in full force and effect.
6. Defendant Vickery’s arrearages remains at $80,410.00 for the period October 1, 2005 – April 30, 2009 and shall continue to be liquidated at $130.00 per month.
7. Under Hawaiian law, child support may not be retroactively modified.
On 7 December 2010 this Court ,made the following Orders:
1. The parties are to file and serve written submissions in respect of the question whether the Federal Magistrates Court has jurisdiction to entertain an application to vary orders made in Hawaii by 31 January 2011.
2. The Application is adjourned to 8 February 2011 at 11:30 am for further mention before Federal Magistrate Scarlett in Court 7A, Level 7, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
3. The Respondent is given leave to attend by telephone.
The matter came back to Court on 8th February 2011. The Applicant Father was represented by his solicitor, Mr Le. The Respondent Mother, who was not represented, attended by telephone.
The Applicant filed a written submission on 4th February 2011. The Respondent had forwarded a letter dated 3rd December 2010 attaching the following documents:
a)A Response;
b)An affidavit annexing a copy of her affidavit of 27th November 2010 to the Family Court, the decisions of the Family Court of 4th November 2010 and 2nd December 2010, a copy of the Orders of this Court made on 12th October 2010 and an affidavit of service of [name omitted] sworn on 29th November 2010.
The Respondent forwarded a written submission dated 26th January 2011, but which appears to have been posted slightly later, enclosing an affidavit sworn before a Notary Public on 27th January 2011 and a copy of the Hague Convention on International Recovery of Child Support and Family Maintenance adopted at The Hague on November 23, 2007, and signed by the United States on that Same Date.
Submissions
The Applicant submits that this Court has jurisdiction to discharge, suspend, revive in whole or in part, or vary in any other way child maintenance orders made by reciprocating jurisdictions. The Applicant concedes that the Family Court of the First Circuit in the State of Hawaii is a reciprocating jurisdiction.
The Applicant submits that his maintenance liability is a registrable overseas maintenance liability and can be deemed as fully registered by virtue of the Child Support Agency’s Notice of Acceptance of Child Support Application of 31st July 2009.
In particular, the Applicant submits:
a)The Federal Magistrates Court has original jurisdiction as is vested in it by Parliament (Federal Magistrates Act 1999, s.10(1));
b)The Federal Magistrates Court has federal jurisdiction in relation to matters under the Child Support (Assessment) Act 1989 (Child Support (Assessment) Act 1989, s.99);
c)The Family Law Act 1975 and the Federal Magistrates Court Rules 2001 apply (Child Support (Assessment) Act 1989, s.100);
d)Subsection 110(2) of the Family Law Act provides power for the Family Law Regulations 1984 to make provision for the registration in and enforcement of maintenance orders made by courts of reciprocating jurisdictions and for the variation, discharge, suspension or revival of registered maintenance orders (see also Family Law Regulations regs.3, 24A, 25, 36 and 38).
The Order of the Family Court in Hawaii is a registrable maintenance liability (reg.24A, Child Support (Registration and Collection) Act 1988, s.18A(1)).
The Applicant has referred the Court to the decision of Slack FM[4] in Newbeld & Newbeld and CSR & Newbeld[5] where his Honour said at [35]:
The overseas Regulations effected a significant change in respect of the registration and enforcement of maintenance orders and agreements made overseas. In simple terms, those regulations permitted child maintenance obligations to be registered with the Child Support Registrar and to be enforced pursuant to the Child Support (Registration and Collection) Act 1988 as if they were child support obligations.[6]
[4] Sadly, his Honour died on 17 December 2011
[5] [2007] FMCAfam 465
[6] [2007] FMCAfam 465 at [35]
The Court has under s.66S of the Family Law Act 1975 a discretion to discharge, suspend, revive in whole or in part or vary in any other way a child maintenance order. The Court may discharge a maintenance order if there is ‘just cause’ for doing so. A “cause” for the discharge of an existing maintenance obligation will be a just cause only if it can be said it is “right” or “proper” that the order should be discharged (Lutzke & Lutzke[7]; Vakil & Vakil[8]).
[7] (1979) FLC 90-714
[8] (1997) FLC 92-743
The Court retains the discretion to make a retrospective order (Cosgrove and Cosgrove[9]; Klein & Wright[10]) notwithstanding that the relevant law is expressed in the present tense.
[9] (1996) FLC 92-700
[10] [2007] FMCAfam 360 also a decision of Slack FM
The Respondent made these points in her affidavit:
· Mr Vickery’s affidavit dated 4-1-2010, states that he was served from January 2009 to March 2009, yet he chose not to respond.
· Mr Vickery received notification from the Australian Child Support Agency on July 31, 2009 to pay child support. He admitted to receiving documents and chose not to respond.
· Mr Vickery’s financial information was requested time and time again yet, he has refused to provide documents while I have provided all of my financial records.
Conclusions
It seems clear, for the reasons set out in the Applicant’s submission, that this Court has jurisdiction. What the Applicant has not addressed, however, is whether this Court should exercise its jurisdiction.
The Applicant Father has not taken steps to be heard in the proceedings in the Family Court in Hawaii, rather, he chose to ignore them. In his originating affidavit of 1st April 2010 the Father concedes that he was aware of the proceedings, saying:
From about January 2009 to March 2009, I received a number of documents from the Family Court of the First Circuit in Hawaii and from the Child Support Enforcement Agency in Hawaii (CSEA). I chose not to respond (to) those documents because I feared that it would damage my relationship with my wife whom I married on [date omitted] 2009.[11]
[11] Affidavit of Mr Vickery 1.4.2010 at paragraph [2]
The Applicant’s reasons for not participating in the proceedings in Hawaii do not, in my view, go very far towards establishing that he has a just cause for a discharge of the Order under s.66S of the Family Law Act 1975.
It is noteworthy that the Applicant produces no evidence to show that he attempted to appeal against the Court’s decision.
Further, the Applicant has not produced any evidence or addressed in his submission why he did not take any steps to be heard in the later proceedings in Hawaii that were returnable before the Court on 4th November 2010 and heard on 2nd December.
The affidavit of service of [name omitted] of 29th November 2010 attached to the Respondent’s letter of 3rd December 2010 shows that the Motion and affidavit for Pre-Decree Relief and a copy of the Order Continuing Motion to Enforce Hawaii’s Jurisdiction and Judgement were served on the Applicant’s solicitors on 29th November 2010. Judge Ryan, by her Order of 4th November 2010 continuing (i.e. adjourning) the proceedings to 2nd December 2010, gave the Applicant leave to appear by telephone.
However, there was no appearance by or on behalf of the Applicant. The Family Court noted on 2nd December 2010 three calls were made to the Applicant but there was no response. The Court found that he had been properly served.
It is surprising that, knowing as he did that there were proceedings on foot in Hawaii dealing with the very issue of jurisdiction, the Applicant neither sought an adjournment or a stay until the issue could be resolved in this Court. The Applicant seems to have chosen to ignore the proceedings in Hawaii completely, just as he chose to ignore the proceedings in 2009. He has produced no evidence to show that he sought to appeal against the decision of the Court in Hawaii.
The Applicant has not addressed the issue of whether or not this Court is an appropriate forum. Clearly, the Family Court in Hawaii was a forum where relief was available to the Applicant (see Voth v Manildra Flour Mills[12]; Henry v Henry[13]). The Applicant has not provided any explanation as to why he did not seek to be heard in the Family Court proceedings in Hawaii, when he clearly had the opportunity to do so.
[12] (1990) 171 CLR 538
[13] (1996) 20 Fam LR 171; FLC 92-685
I am not satisfied that this Court should exercise jurisdiction in all the circumstances. The Family Court in Hawaii had jurisdiction and, on 2nd December 2010, ruled that it had jurisdiction and found in favour of the Respondent Mother. The issue has already been decided by a Court of competent jurisdiction.
There is, therefore, no reason why this Court should attempt to exercise jurisdiction and, in effect, overrule the decision already made by the Family Court of the First Circuit in the State of Hawaii.
The Application will be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 May 2012
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