W and R
[2002] FMCAfam 287
•27 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & R | [2002] FMCAfam 287 |
| FAMILY LAW – Child Support – child maintenance order against stepmother – discharge of consent orders. Family Law Act 1975, ss.66D, 66M(3)(b) |
| Applicant: | L C W |
| Respondent: | J J R |
| File No: | NCM3994 of 2000 |
| Delivered on: | 27 August 2002 |
| Delivered at: | Parramatta (sitting at C H) |
| Hearing Date: | 26 August 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Theobald |
| Solicitors for the Applicant: | Ms McKinnon Fishburn Watson O’Brien Solicitors |
| Solicitors for the Respondent: | In person |
ORDERS
Order 10 made by the Family Court of Australia at Brisbane on 13th December 2000 is discharged with effect from 7th January 2002.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
NCM 3994 of 2002
| L C W |
Applicant
And
| J J R |
Respondent
REASONS FOR JUDGMENT
This is an application to discharge an order for child maintenance made by consent in the Family Court of Australia at Brisbane on 13th December 2000. There were a number of orders made by consent to resolve property proceedings between the parties, and the final order provided that by way of child support for J R, who is a child born on 6th October 1986, the wife should pay the sum of $65.00 per week to the husband until the former matrimonial home was sold and the mortgage was discharged, and then she should pay at the rate of $85.00 per week.
The child concerned is not the natural child of the Applicant. He is her stepson. He resides with his father, the Respondent. The child’s mother resides in the United States of America. The Applicant claims that it is not appropriate that she should be required to support this boy. Both of his parents are alive and have financial resources to support him.
It is a part of the Applicant’s case that she was not advised when she consented to the Orders on 13th December 2000 that she “had the right to refuse to sign”[i]. She also says that the Family Court was not made aware that the child is her stepson, and not her natural son.
Background
The Applicant and the Respondent were married on 27th October 1989 in S, in the United States of America. At that stage, the child J was residing with the Respondent. His mother is a woman called D B, who still resides in the United States. The parties emigrated to Australia with the child.
The Applicant and Respondent separated in February 2000 and were later divorced. On 7th July 2000 the wife commenced property proceedings in the Family Court. She filed an Application and a Financial Statement. As is the practice in that Court, the wife did not file an affidavit in support of her claim. The Application was returnable before the Family Court on 29th August 2000.
The Family Court file, which was tendered in evidence in this case, shows that the husband appeared in person on 29th August 2000, and the wife was represented by a solicitor. The proceedings were adjourned to 19th September 2000 and the husband was ordered to file a Response and a financial statement. The husband filed those documents on 13th September, and the matter came back before the Court on 19th September 2000. On that date the parties were ordered to attend a Conciliation Conference, which was appointed for the 14th November 2000.
The parties attended Court on 14th November, 2000, but the matter was not resolved at the Conference. The matter was listed for trial on 13th December 2000, and the parties were given certain directions to prepare the matter for a defended hearing, including filing and serving affidavits by 29th November 2000. It does not appear that either party filed any affidavits by 29th November, or, indeed, by the time the matter was scheduled for hearing on 13th December 2000.
On 13th December 2000, the Court file shows that the wife’s solicitor appeared before the Court and tendered a document headed “Terms of Settlement”, being a set of consent orders signed by both parties and dated that day. The husband is not recorded as having appeared. No affidavits were filed by either party. The Court made the orders by consent as set out in the document titled “Terms of Settlement”, including Order 10, which says:
“Children
By way of child support for J R the wife is to pay to the husband the sum of $65.00 per week until such time as the house property is sold and Mortgage discharged when it is to increase to $85.00 per week.”
It is this Order which the wife seeks to have discharged.
The Respondent’s submissions
The Respondent submitted to the Court that the wife had consented to the Orders, and that she had in effect been the child’s mother for most of his life. He said that they had cohabited before the marriage, and that the marriage had lasted for about 11 years. The child had little to do with his natural mother, although she had renewed the relationship a couple of years ago, and that the child kept in touch with his half sister, the child of the mother and another man. He said that the parties had made an agreement, and now the wife was trying to renege on that agreement.
The Applicant’s submissions
The Applicant’s counsel, Mr Theobald, submitted that section 66S(2)(a) of the Family Law Act gave the Court the power to discharge a child maintenance order “if there is just cause for so doing”, and that the circumstances of the making of this consent Order gave the Court the just cause. He submitted that the matter came within the scope of section 66S(3)(d), which provides that the Court must not vary the order so as to increase or decrease any amount ordered unless it is satisfied:
“(d) that material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.”
The submission was that the Family Court was not made aware of the fact, when the order was made by consent, that the child the subject of the Order was not a natural child of the wife, but a step-child. Had the Court been made aware of that fact, it would have considered the provisions of section 66D of the Act, which provides that:
“66D(1) [Step-parents’ duty] The step-parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step-parent to have that duty.
66D(2) [Priority of step-parents’ duty] Any duty of a step-parent to maintain a step-child:
(a)is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and
(b)does not derogate from the primary duty of the parents to maintain the child.”
Here, it was submitted, the Court was given virtually no information about the child, and it was not made clear to the Court that the child was a stepchild and not a natural child of the wife. As the child’s natural mother is alive and, according to the wife, engaged in employment, the stepmother’s duty falls below that of the natural mother. The Order, it was submitted, should never have been made in the absence of a determination under section 66M.
Counsel for the wife referred the Court to three authorities, each one of which is a decision of a Judge of the Family Court sitting at first instance. Such decisions, whilst not binding on the Federal Magistrates Court, are regarded as persuasive.
In Dodge and Dodge and Krapf (1991) FLC 92-214, which was a case where a child had been born as a result of a casual relationship between the parties, Wood J held that the child’s step-father did have a duty to maintain the child. This arose out of an examination of the circumstances of the relationship, following the guidelines set out in what was then section 66G(2) of the Act (now section 66M(3)). This duty, however, was secondary to the primary duty of the child’s natural parents to maintain her.
The matter had been considered earlier by Mullane J, in Cooper and Cooper (1989) FLC 92-017. In that case, it was held that a stepfather, who had neither guardianship nor custody of the children concerned, did not have a duty to support them. There was no evidence to establish that financial support by the natural father was not available, since no efforts had been made by the wife to even locate him. In this case, it is noteworthy that the stepfather’s association with the children was very short, a matter of eight months, and there was a delay of some three years by the wife in commencing proceedings.
Day and Day (1993) FLC 92-333, was a decision by Kay J where the husband had consented to child maintenance orders being made, but later argued that he should no longer have to pay as he had had no access to the child for about two years. In that case, the Court held that, notwithstanding that there was a consent order for the payment of maintenance, the obligation of a step-parent under section 66G(1)[ii] is capable of being reviewed from time to time to see whether the criteria are met, namely that it remains proper for the step-parent to continue to have the duty to maintain the child. Given the short period of cohabitation of the parties, and that there had been since then a change in the child’s custody and a breakdown in the relationship between the child and the husband, it was no longer appropriate that the husband bear any burden for the child’s support.
Conclusions
It is clear that the documents before the Family Court gave very little information about the parentage of the child J. The Information Sheet annexed to the wife’s application referred to the fact of the child’s birth, named the husband as the child’s father, but did not name the wife as the child’s mother. The wife, in her application, did not seek any order about the child’s maintenance.
It was the husband, in his response, who sought an order about the child. In his response, he says: “I would like our family home to raise our son J R age 13 yrs … I would like L C R to pay maintenance/child support for J R.” It will be recalled that neither party filed any affidavit, nor was a copy of the child’s birth certificate filed.
The consent order itself is confusing, as it refers to payments “by way of child support for J R.” The use of the term ‘child support’ is, technically, incorrect, as the child does not come within the ambit of the Child Support (Assessment) Act 1989. It was not open to the husband to seek an order for child support against the wife, as she is not a parent of the child [section 25(2)(b)]. The only order that could be made, therefore, would have been a maintenance order under the provisions of the Family Law Act.
It is clear that the fact that the child was a stepchild and not a natural child of the wife was never brought to the attention of the Family Court. The use of the term “our son” by the husband in his response would have implied that the wife did have an obligation to support this child, and would certainly not give the Court any inkling of the fact that he is the wife’s step-son. Bearing in mind the requirements of section 66D, there should have been some evidence about the whereabouts of the child’s natural mother and her capacity to support the child, because the duty of a step-parent to maintain a step-child is a secondary duty subject to the primary duty of the parents of the child to maintain the child.[iii] There was no information given to the Court that the mother had re-established contact with the child. According to the Respondent, this happened a couple of years ago.
Had these matters been properly put to the Family Court, it is possible that the Court may still have determined that it was proper for the wife to have a duty of maintaining her step-son, bearing in mind the length and circumstances of the marriage to the child’s father [section 66M(3)(b)]. The child had lived most of his life in the family group comprised of his father and stepmother. It should be noted that the wife, who was legally represented, did consent to the order being made. I am satisfied, for these reasons, that it would be inappropriate to discharge the order ab initio, notwithstanding the serious failures to disclose the relevant information to the Court.
I consider that the appropriate course for the Court to take is to follow the reasoning of Kay J in Day and Day, that is, to review the obligation of the step-parent to see whether it remains proper to require her to continue to have the duty to maintain this child.
The evidence before the Court is scant. The Respondent has not filed any affidavit material. The Applicant was not required to be cross-examined on her affidavit, which can therefore be regarded as unchallenged. The Applicant says in her affidavit that she has no relationship with the child and she is aware that he has contact with his mother who lives and works in the United States. This affidavit was sworn on the 17th July 2002 and received at the Court Registry on
19th July.
Notwithstanding the fact that the Applicant consented to the Order being made on 13th December 2000, I am of the view that it is no longer appropriate for her to bear any burden for the support of the child J. The child’s natural parents, being his father, with whom he resides, and his mother, have the primary duty of supporting him. The father has given no evidence of ever having made any attempt to require the child’s natural mother to contribute to his support. He has apparently remained content to let the child’s stepmother make the contributions.
I am satisfied that I should grant the Application to discharge Order 10. I am not satisfied, as I said earlier, that the discharge should be backdated to the date the order was made, due to the fact that the wife consented to the making of the order and the paucity of evidence presented as to the whereabouts of the natural mother and the relationship between the wife and the child as at that date.
I note that the Applicant originally commenced proceedings in the Local Court at C H by means of an Application to vary the Maintenance Order filed on 7th January 2002. She was not legally represented at that stage. In that Application the Applicant raised the issue that she was not the child’s natural mother and that he had been reunited with her. She made the submission to the Local Court that the natural mother should be responsible for the support of her son.
The Application was returnable before the Local Court on 29th January 2002. On that day, it was adjourned to 12th February 2002. The Applicant appeared and the Magistrate made ex parte orders in the following terms:
“1. That the order for child maintenance made at the Local (sic) Court at Brisbane on the 13 December 2000 be reduced to NIL for the period February 12, 2001 to June 24, 2001 and for the period January 5-14, 2002, to nil in relation to the child J A R born October 6th, 1986.
I waive outstanding maintenance in respect of late payment fees and amounts for those periods.”
The Application was then adjourned to 5th March 2002. On that date, the Applicant was legally represented, and the matter was adjourned to 19th March 2002, when it was listed for ex parte hearing. The Respondent attended court on that date, and the Application was transferred to the Family Court. On 26th June 2002, the Family Court transferred the Application to this Court. The Applicant then filed her present Application and affidavit in support.
It seems clear that the proceedings before this Court were commenced by the filing of an Application in the Local Court at C H on 7th January 2002. It was in that original application that the Applicant first set out what she saw as the issues in this case. I am satisfied that it is appropriate to discharge Order 10 with effect from the date the original application was filed, namely 7th January 2002. Section 66S(7) allows the Court to discharge the order by way of an order expressed to be retrospective to such day as the Court considers appropriate.
I make an order that Order 10 made by the Family Court of Australia at Brisbane on 13th December 2000 is discharged with effect from
7th January 2002.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 4 September 2002
[i] Applicant’s affidavit sworn 17 July 2002, paragraph 2.
[ii] Now section 66D(1)
[iii] Section 66D(2)(a).
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