Vickery and Hudson and Ors - [2012] FMCAfam 412

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…

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: [2012] FMCAfam 412
Decision Date: 15 May 2012

CaseChat Overview and Summary

In the case of Vickery and Hudson and Others, the Applicant sought to discharge a child maintenance order made in Hawaii, arguing that there was 'just cause' under section 66S of the Family Law Act 1975. The Applicant, Mr. Vickery, had been served with documents related to the proceedings in Hawaii but chose not to respond, fearing it would damage his relationship with his wife. The Respondent argued that the court had jurisdiction and that Mr. Vickery had not demonstrated just cause for discharging the order.

The central legal issue was whether the court should exercise its discretion to discharge the maintenance order, considering Mr. Vickery's lack of participation in the Hawaiian proceedings and his failure to provide financial information. The court referenced previous decisions, including those by Slack FM, which highlighted the court's discretion to discharge a maintenance order if there is just cause. The court also noted the principle that a 'cause' for discharge is only just if it is 'right' or 'proper' that the order should be discharged.

The court concluded that Mr. Vickery's reasons for not participating in the Hawaiian proceedings did not sufficiently establish just cause for the discharge of the order. The Applicant's failure to respond to the proceedings and provide financial information did not demonstrate a compelling reason for the court to discharge the order. Therefore, the court dismissed the application to discharge the child maintenance order.

The orders of the court were to discharge the stay on the enforcement of the child support orders made by the Family Court of the First Circuit in Hawaii and to dismiss the Applicant's application.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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.