The case of Duckett v Robinson [2015] FCCA 2275 (11 August 2015) was an application in a case made by the father for a stay order so the father did not have to pay child support payments to the mother.  Previously, the Court had made orders that the child should be in the father’s full time care however the mother had unlawfully absconded with the child overseas.

In the previous proceedings the Federal Circuit Court of Australia (“FCCA”) made orders that the mother was to be arrested for breaching the court’s orders and that she be brought before the Court.  The Court also ordered that the child be recovered and delivered into the care of the father.

Background

The mother and father were separated.  There was a child from their relationship who at the time of the proceeding was aged just under 5 years.  The child was living in the full time care of the mother.  The father had commenced proceedings in the FCCA in October 2013 asking for orders that he be allowed to spend time with the child.  Parenting orders were made by consent allowing the father to see the child 2 days a week.

In June of 2014 the parties agreed to further orders allowing the father to spend more time with the child.  Concerns were then raised about the mother’s ability to care for the child.  On 8 April 2015 the mother and father were due before the FCCA for a hearing to determine if it was in the best interests of the child to live with the father on a full time basis.  The mother fled overseas with the child and at the time of this hearing had not returned to Australia.

Having learned the mother fled overseas, the Court ordered a recovery order under section 67Q of the Family Law Act 1975 (Cth) (“Act”) for the child to be delivered into the care of the father.  The Court also issued a warrant for the mother’s arrest under section 65Q of the Act for acting contrary to parenting orders made by the Court.

Parenting Orders and the Prohibition on a Child Traveling Overseas

Section 65Z of the Act provides that if proceedings are pending for the making of parenting orders a person must not take or send a child concerned out of Australia unless:

  1. it is authorised in writing by each party to the proceeding; or
  2. by an order of a court.

Section 65Y of the Act provides that once parenting orders have been made by a court, it is illegal for a child to be taken or sent out of Australia unless:

  1. authorised in writing by each person in whose favour orders have been made; or
  2. by an order of a court.

 

The mother did not have consent from the father nor the Court to take the child overseas and she had acted unlawfully.  The penalty for breaching section 65Z or section 65Y is imprisonment for up to 3 years.

Application for Cessation of Child Support Collection from the Father

The father’s application in a case requested that the court stay or stop the Child Support Agency (“CSA”) from collecting child support from him.  The CSA has assessed the father was liable to pay the mother child support as she had the child in her care 100% of the time.  The annual assessment was $10,017.

Section 104 of the Child Support (Registration and Collection) Act 1988 (Cth) (“CSRC”) gives the FCCA jurisdiction to hear matters arising under the CSRC Act.  Section 111C of the CSRC Act gives a court powers to affect a child support assessment pending a hearing or final determination of a proceeding.  These powers include a stay of a child support assessment or to affect the operation of a child support assessment under the Child Support (Assessment) Act 1998 (Cth).

The Court decided that as the mother committed an offence by removing the child from Australia unlawfully under both section 65Y and section 65Z of the Act that public policy required the Court to stay the operation of the child support assessment.  Otherwise, the mother’s breach of the law would be funded by the father making child support payments to the mother.

Conclusion

The Family Law Act 1975 places many requirements on parents.  These include not taking or sending a child overseas during family proceedings involving that child or after parenting orders have been made by a court unless permission has been received.  In this case the mother fled overseas with the child so she would not lose care of the child to the father.  This was unlawful.

The father made an application in a case for orders that he pay no child support as the child should have been in his care.  The Court applied public policy grounds and ordered a cessation of child support payments by the father, stating that the mother’s unlawful removal of the child from Australia should not be supported by child support payments.

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