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KAREN BOZAK AGAINST MARK SCULLY


Submitted: 18 January 2017

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE

[2017] SC DUN 19

B443/16

JUDGMENT OF SHERIFF SG COLLINS QC

 

 

In the cause

 

 

KAREN BOZAK

 

Pursuer

 

against

 

 

MARK SCULLY

 

Defender

 

Act:   McVicar, Caird Vaughan Solicitors

Alt:   Absent

 

 

Dundee, 18 January 2017

The Sheriff, having resumed consideration of the cause, allows the appeal, sets aside the registration of the maintenance order made on 13 May 2016; finds no expenses due to or by either party.

 

Findings in Fact:

1.   The pursuer and defender were in a relationship from around 1999.  They have a daughter, M, who was born in 2001.   They lived together at House A, in Dundee.  In 2010 the parties sold this house and moved to Australia.   They resided there together until 2013 when their relationship broke down.   The pursuer returned to Scotland in August 2013.  M remained in Australia in the care of the defender.   Following her return the pursuer resided with her brother in House B, Dundee.  She resided there until moving to her present address in June 2016.

2.   Whilst in Australia the pursuer was in relatively well-paid employment, earning in excess of $32,000 per annum (equating to more than £18,000 per annum at August 2013 exchange rates).   Since returning to Scotland she has been unable to find work at a comparable income.  Initially she claimed social security benefit, namely Jobseekers’ Allowance, at the rate of £71 a week.  In September 2013 she obtained employment as a care assistant in a nursing home, for 33 hours a week at the rate of £6.36 per hour.  She was off work through illness from December 2013 through to March 2014.  In particular she suffered and continues to suffer from poor mental health, namely, depression.  Since April 2014 the pursuer has been employed by an educational institution as a part time domestic cleaner, working 15 hours a week, and again at low wage.  All this has been vouched by documents lodged with this Court.  In particular the pursuer’s P60 Certificates for the tax years to April 2014, April 2015 and April 2016 have been produced.  These show, respectively, that she had total taxable income in the UK of £3,145, £5,922, and £6,096 for these three tax years. 

3.   On 20 January 2014 the defender lodged an application with Child Support Services, Australian Government Department of Human Services (“CSS”), requesting calculation and collection of child maintenance due by the pursuer in respect of M under the relevant Australian child support legislation.  The application was accepted and CSS wrote a letter to the pursuer dated 22 January 2014.   A copy of this letter has been provided to the Court (by CSS) together with the registration application.  The letter is addressed to the pursuer and was sent by ordinary (not recorded or registered) post.  This address was inaccurate, insofar as it mis-states the part of Dundee in which House B is located, and also mis-states the post code.   The pursuer did not receive this letter. 

4.   The letter of 22 January 2014 states that the defender had applied for child support in respect of M and asked the pursuer to contact CSS in order to ensure that the information provided to it was correct.  The letter asked the pursuer to telephone CSS before 18 February 2014, and advised that should she not do so the application would be processed based on the information provided by the defender.    

5.   By letter dated 4 February 2014 CSS wrote again to the pursuer, incorrectly addressed as before, and again by ordinary post.   Again she did not receive this letter, which is again only available to this court via the registration application process.  Although the letter of 22 January 2014 had stated, by implication, that the child support application would not be processed on the information provided by the defender until at least 18 February 2014, the letter of 4 February 2014 stated, in effect, that the application had already been determined.  Indeed it bears to enclose an assessment of the child support due from the pursuer for the period 20 January 2014 onwards.   This assessment is based on the pursuer having a taxable income of $32,161, and accordingly determines her to have an annual child support liability to the defender of $1,391. 

6.   By letter dated 19 May 2014 CSS again wrote to the pursuer, incorrectly addressed as before, and again by ordinary post.  This letter advised her that child support payments due under the earlier determination were now overdue, and warned her that a failure to make payment might lead to an application for registration and enforcement of the determination in the United Kingdom.  The pursuer did not receive this letter.

7.   CSS have subsequently made further periodic assessments of the pursuer’s child support liability, following on from the determination of February 2014, again based on her having a presumed taxable income of $32,161.   

8.   The pursuer was due a tax rebate from her last year’s income in Australia, amounting to $393.46.  This sum was not returned to her but was instead deducted from her determined child support liability in May 2014.

9.   By letter of 17 March 2015 CSS made a request to the Scottish Government to register and enforce its decision as regards the pursuer’s child maintenance liability.   This letter specifies the pursuer’s address as being at House A (although the name of the street is mis-spelt), as does a Transaction Statement for the period 20 January 2014 to 28 February 2015, which was enclosed.   By letter dated 14 April 2015 the Scottish Government forwarded the request for registration to the sheriff clerk at Dundee Sheriff Court.  The pursuer’s address was again specified as being at House A.   The sheriff clerk duly sought to intimate on the pursuer at this address.  Unsurprisingly, the sheriff officers, after making inquiries at House A, reported back that the pursuer had previously lived at that address but had moved to Australia.  This information was duly reported back to the Scottish Government. 

10. Further correspondence appears to have identified the error on the part of CSS as regards the pursuer’s up to date address.  As a result, in December 2015 sheriff officers attended at House B.   They spoke to the pursuer but did not identify themselves as sheriff officers or explain their reason for attending.  In the circumstances the pursuer dishonestly denied that she was Karen Bozak.  The sheriff officers made further inquiries, however, and reported to the sheriff clerk, correctly, that the pursuer was indeed living at House B.  The sheriff clerk reported this to the Scottish Government, who requested that a further attempt be made to register the child maintenance order.   The sheriff clerk duly effected service of the application on the pursuer and on 13 May 2016 registered a maintenance order said to have been made by the “local court of Melbourne, Australia on 17 March 2015”.

11. The pursuer consulted solicitors, and lodged the present appeal, by way of summary application, on 10 June 2016.  

 

 

Note:

[1]        As framed, this summary application seeks (i) setting aside of the maintenance order registration of 13 May 2016, which failing (ii) variation of that order on the ground of the change in the pursuer’s financial circumstances.  

[2]        Following the lodging of the application, which was timeously made, the sheriff granted warrant to intimate it on the defender in accordance with the relevant procedural rules, and fixed a hearing for 11 August 2016.   By email of 9 August 2016 the defender intimated that he would not be able to attend court on 11 August 2016 and, by implication, that he did not intend to be represented in the proceedings.   He provided further information regarding the parties’ financial arrangements following their split, including a letter from his solicitors to the pursuer dated 18 February 2016.   He acknowledged that the child support assessment appeared to have been based on the pursuer’s income during her last year in Australia.

[3]        When the appeal called on 11 August 2016, the full papers forwarded by the Scottish Government to the sheriff clerk comprising the application for registration had not been lodged with the court process.  After discussion with the pursuer’s solicitor, I therefore continued the case to 6 September 2016 to enable these papers to be produced.  It was apparent that the pursuer’s position as regards the application to set aside the registration was that she had not received service of the relevant documents from CSS.  As it was apparent that the defender did not intend to appear or be represented I also allowed the case to proceed as undefended and permitted the pursuer to lodge affidavit evidence.

[4]        The appeal called before me again on 6 September 2016.    The full registration application papers were then available.  The pursuer had also lodged an affidavit dated 22 August 2016.  However perusal of the application papers, and in particularly the sheriff officers’ reports to the sheriff clerk, had revealed the pursuer’s apparent dishonesty referred to in finding in fact 10 above.   I therefore indicated to the pursuer’s solicitor that this raised a doubt over her credibility and that if she wished to maintain that she had not had receipt of the relevant documents from CSS it would be necessary for her to appear and give oral evidence to that effect and to submit her account to interrogation by the court.   I also raised a number of questions regarding proof of service, and also in relation to the nature and scope of evidence potentially bearing on the question of variation.

[5]        The appeal called before me again on 5 December 2016.  The pursuer was in attendance, with her solicitor.   On this occasion I heard oral evidence from the pursuer, under oath, and she was subject to questioning both by her solicitor and by me.  I then heard legal submissions from the pursuer’s solicitor and reserved judgment.  Having considered matters further I am satisfied that the appeal should be upheld and the registration set aside. 

[6]        The legislative framework is confusing.   The principal statute is the Maintenance Orders (Reciprocal Arrangements) Act 1972.  However in relation to recognition and enforcement in the UK of maintenance orders made in Hague Convention countries, of which Australia is one, the relevant parts of the 1972 Act are substantially amended.  The principal amending Order is the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993 SI 1993/593.  In particular sections 6 and 9 of the 1972 Act are amended as regards registration and enforcement of Australian maintenance orders, by paragraphs 6 and 9 of schedule 2 of the 1993 Order respectively.  Accordingly sections 6 and 9 of the 1972 Act have effect as they are set out in amended form in schedule 3 of the 1993 Order.  It is these amended sections which govern the present appeal.   

[7]        The pursuer’s principal ground of appeal is founded on section 6.  This provides, insofar as material:

6.— Registration in United Kingdom court of maintenance order made in Hague Convention country.

(3) Where the prescribed officer of the appropriate court receives … a certified copy of an order to which this section applies, he shall, subject to the following subsections, register the order in the prescribed manner in that court.

 

(5) …The prescribed officer of the appropriate court may refuse to authorise the registration of the order if the court in the Hague Convention country by or before which the order was made did not have jurisdiction to make the order…

 

(6) The prescribed officer of the appropriate court may refuse to authorise the registration of the order… [on a number of other specified grounds, none of which is relevant to the present appeal].

 

(7) Without prejudice to subsection (6) above, if the payer did not appear in the proceedings in the Hague Convention country in which the order was made, the prescribed officer of the appropriate court shall refuse to authorise the registration of the order unless notice of the institution of the proceedings, including notice of the substance of the claim, was served on the payer in accordance with the law of that Hague Convention country and if, having regard to the circumstances, the payer had sufficient time to enable him to defend the proceedings.

 

(8) If the order is registered under subsection (3) above, the prescribed officer of the appropriate court shall serve notice in a prescribed form on the payer and give notice to the payee that the order has been registered.

 

(9) The payer may, before the end of the period of one calendar month beginning with the date of service of the said notice, appeal to the court in which the order is registered to set aside the registration of the order on one of the grounds set out in paragraphs (5), (6) and (7) above…”

 

[8]        The sheriff clerk is the ‘prescribed officer’ for the purposes of section 6.   Dundee Sheriff Court is the ‘appropriate court’.  In April 2015 the sheriff clerk at Dundee received, via the relevant department of the Scottish Government, certified copies of documents from CSS to the effect that a determination had been made by them that the pursuer was liable to pay child support from 20 January 2014 at a specified rate.   That determination I take to be the ‘order’ for the purposes of section 9.   Its precise date is unclear, but the terms of the letter of 4 February 2014 make clear that it was made on or prior to that date.  The intimation of registration given to the pursuer by the sheriff clerk on 13 May 2016 would therefore appear to be somewhat misleading, in that it refers to ”a maintenance order made by the local court of Melbourne, Australia on 17 March 2015”. I can see no other reference to this court in the papers before me.  CSS would appear to be the ‘court’ in this case for the purposes of the 1993 Order (see Article 2 – ‘court’ includes any judicial or administrative authority).  Moreover 17 March 2015 is the date the application for registration was made, and down to which the extent of the liability then existing was quantified, not the date on which the determination giving rise to the liability was made.   Although misleading therefore, as I have said, the pursuer’s solicitor did not suggest that anything turned on this.

[9]        The pursuer founded in particular on section 6(7) of Schedule 3.  The first question arising under this provision is whether the pursuer “did not appear in the proceedings” by which the order was made.  This terminology is more suited to the ordinary courts.  However the pursuer submits, in substance, that ‘the proceedings’, for the purpose of this subsection must mean the administrative assessment and decision making process carried out by CSS and which led to their determination that she was liable to pay maintenance.    I accept that submission, and accept further, on all the evidence available to me, that the pursuer took no part in this process.    While therefore the statutory language is not really apt to describe what took place, I therefore accept that in this case the pursuer ‘did not appear in the proceedings’ for the purpose of section 6(7).

[10]      That being so, the next question in this case is whether ‘notice of the institution of the proceedings’, including notice of the ‘substance of the claim’ was served on the pursuer in accordance with the law of the relevant Hague Convention country, that is, Australian law.     

[11]      In the first place, it seems to me that the only document which can properly be regarded as giving notice of the institution of the child support assessment and determination process in the present case is the letter from CSS dated 22 January 2014.   The copy of that letter which has been provided via the sheriff clerk is headed ‘Application for Child Support Assessment’ and is sufficiently clear in stating, in particular (a) that an application for child support in respect of M had been received, (b) that in the absence of response by the pursuer by the prescribed date the application would be determined based on the information provided by the defender, (c) that as regards income the assessment would be based primarily on the pursuer’s taxable income for the last financial year, but (d) that if her income had fallen since then that it was possible to assess liability on the basis of current income.   That seems to me, again allowing for language more suited to traditional court processes, to amount to ‘notice of the claim’, and its substance, and so complying with section 6(7). 

[12]      The second question is whether the notice given by letter of 22 January 2014 was ‘served on the pursuer in accordance with Australian law’.   In the first place that begs the question as to what Australian law requires as regards service of a notice of an application for child support on an absent parent resident abroad.    The short answer to that is that the content of foreign law is a question of fact.  As a sheriff in Scotland, therefore, I cannot determine, without evidence on the matter, what Australian law requires in relation to service, and nor, therefore, whether what was done in the present case conforms to such requirements.  Given the peremptory terms of section 6(7) of schedule 3 to the 1993 Order (“…shall refuse to authorise the registration… unless…”) it also seems to me that it cannot be right to proceed on the basis that there is an onus on the pursuer to have to establish that notice was not given in accordance with Australian law.   Rather I consider that it must be for the defender to establish, by proof of the content of Australian law as a matter of fact, that it was so given.  That has not been done, and on this ground alone the pursuer would be entitled to succeed.

[13]      However lest I was wrong about that I should say that Miss McVicar pointed out that Australia is a signatory to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters (1965).   Article 10 states that “Provided the State of destination [that is, Scotland, in the present case] does not object, the present Convention does not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad…”   It appears that Australia has made a declaration in relation to Article 10(a) in the following terms “Australia does not object to service by postal channels, where it is permitted in the jurisdiction in which the process is to be served.  Documents forwarded via postal channels must be sent via registered mail to enable acknowledgment of receipt”.   Ms McVicar submitted that the position was therefore that service by post abroad would appear to be in conformity with Australian law, as long as it was served in accordance with the law of the country in which service is effected.   She referred also to the Victoria Magistrates’ Court General Civil Procedure Rules 2010, rule 7.03.  What this came to, it was submitted, was that service of the notice in Scotland would comply with Australian law if it complied with Scots law.   Scots law required postal service to be by recorded delivery or registered post.    The letter of 22 February 2014, in common with all the other letters, bore to have been sent by ordinary post – there was nothing to indicate let alone establish that they had been sent recorded delivery or registered post.  Accordingly I should not be satisfied that service had been effected in accordance with Scots law, nor therefore in accordance with Australian law.

[14]      At one level, there would appear to be some force in these submissions.   Certainly I am satisfied that it has not been established that any of the letters from CSS addressed to the pursuer in 2014 were sent other than by ordinary post.  I do not have any certificates of registered posting or recorded delivery, and the letters themselves do not as far as I can see carry any indication that they were sent otherwise than by ordinary post.  That being so, I have found on balance of probabilities that this is how they were sent.  Is it a valid method of service?  Postal citation in civil actions in Scotland is provided for by the Citation Amendment (Scotland) Act 1882, and see MacPhail, Sheriff Court Practice (3rd Edition, 2002), paragraph 6.19.  Section 3 of the 1882 Act provides, in particular,  that:

In any civil action or proceeding in any court or before any person or body of persons having by law power to cite parties or witnesses, any summons or warrant of citation of a person, whether as a party or witness, or warrant of service or judicial intimation, may be executed in Scotland… by an enrolled law agent, by sending to the known residence or place of business of the person upon whom such summons, warrant, or judicial intimation is to be served… a registered letter by post containing the copy of the summons or petition or other document required by law in the particular case to be served, with the proper citation or notice subjoined thereto, or containing such other citation or notice as may be required in the circumstances, and such posting shall constitute a legal and valid citation, unless the person cited shall prove that such letter was not left or tendered at his known residence or place of business...”

 

In addition to registered post, recorded delivery is also now a valid method citation:  see Recorded Delivery Service Act 1962, section 1 – although this must be first class recorded delivery for ordinary cause proceedings per Ordinary Cause Rules, rule 5.3.1.   Read short, therefore, service of a relevant document may be validly made in Scotland by an enrolled law agent by registered or recorded delivery post, and proof of such posting shall amount to valid service unless the person to whom the letter was addressed can prove that it was not in fact received at the address in question.

[15]      The fact that section 3 provides that service ‘may’ be validly made by registered or recorded delivery post – and that one or other of these methods is invariably now used in practice – still begs the question whether service by ordinary post is also valid.  In other words does ‘may’ in this context mean ‘may as an alternative to service by ordinary post’ or ‘may only’.   Section 6 of the 1882 Act is relevant in this regard.  This provides:

6.  Mode of service optional.

It shall be lawful to execute summonses and warrants of citation, warrants of service, judicial intimations, either according to the existing law and practice or in the manner provided by this Act…”

 

To my mind this explains the use of ‘may’ in section 3.  It means that service by a method which was valid before the Act remains valid, but that service by registered post after commencement of the Act was now also valid.   This however raises the question of whether service by ordinary posting was, in 1882, according to existing law and practice.   In my view it was not.  Prior to the 1882 Act delivery of the initiating writ in Sheriff Court actions was by officer of court.  Posting the writ did not constitute valid service at all, other than in relation to registered companies and in connection with certain edictal citations:  see generally, Dove Wilson on Sheriff Court Practice (4th Edition, 1891), pages 110 – 125.  The upshot of all this is therefore that, in Scotland, postal service of the documents to which section 3 of the 1882 Act applies is only valid if done by registered post or recorded delivery, and use of the ordinary post is not sufficient.

[16]      Accordingly if it be the case that in order to comply with Australian law, service of the CSS letter of 22 January 2014 had first to comply with Scots law as described above, then my finding that this letter was not sent by registered or recorded delivery post means that it did not do so (leaving aside any question of whether the further requirement that it be posted by an ‘enrolled law agent’ was also satisfied:  cf.  McKechnie v Murray 2016 SC 339).   For this reason too, the requirements of section 6(7) would not have been made out.  I say ‘if it be the case’, however, because while I have sought to explore this matter I cannot reach any firm conclusion on it.  That is because I am conscious that child support is, in Australia as in the UK, a statutory scheme.   There is a recognition inherent in such schemes that some absent parents do not wish to contribute financially to the upkeep of their children.  One not untypical aspect of attempting to avoid such responsibility is to challenge or deny receipt of letters or documents from the relevant agency.  For this reason the scheme may well make special provision for service which makes certain presumptions (for example, that proof of posting is prima facie proof of delivery).  In addition, given the likely high cost of sending every communication by registered or recorded delivery, the statutory scheme may make provision for service by ordinary post. The difficulty in the present case is that I simply do not know if the Australian child support scheme has such provisions.  This comes back to the point already made, namely that the content of the relevant Australian law has not been established in these proceedings, and therefore I cannot be satisfied that the registration requirements of section 6(7) are made out.

[17]      In any event however, and for completeness, I have found as a matter of fact that the pursuer did not receive the letter of 22 January 2014, or indeed the letters of 4 February or 19 May 2014 either.   Although I was initially sceptical as to the truth of her claim to this effect, having heard oral evidence from her I am prepared on balance to accept her account as likely to be true.   She accepted that she did receive a demand for payment from CSS in 2014, although she denied that she got any of the letters dated 22 January, 4 February or 19 May 2014.   Assuming that she did receive some communication in 2014 I have no doubt that she thereafter stuck her head in the sand, and hoped that matters would somehow go away and that she would not be pursued for payment.  When the sheriff officers caught up with her in December 2015 she lied to them regarding her identity, and in my view she knew or ought to have known that that they were likely to be pursuing her in relation to the present matter.   Overall, however, having listened to her explanations for her behaviour, and had the opportunity to see and hear her give evidence and respond to cross examination (from me, in the absence of the defender), I was prepared in the end to accept that the pursuer did not, as she claimed, receive the relevant letters and in particular the letter of 22 January 2014, which is the critical document for present purposes.    

[18]      Why these letters were not received by the pursuer, I of course cannot say.  However as noted above there does appear to have been some confusion on the part of CSS as to her correct address.  All the letters sent to House B were misaddressed both as regards the area of Dundee in which it is located and the postcode.     And when the application for registration was made in March 2015 CSS advised that the pursuer was still resident at House A, a house which she and the defender had sold in 2010.   Given these matters, and my acceptance that the pursuer did not receive any of the letters of 22 January, 4 February and 19 May 2014, the only other possibilities are that although written they were not in fact sent by CSS, or that they were simply lost in the post.   On balance, again, I consider that one or other of these explanations is more likely to be what in fact happened. 

[19]      In all the circumstances, and on the evidence available to me, I am not satisfied that the letter of 22 January 2014 was served on the pursuer in accordance with Australian law.   That being so, her appeal must be allowed.   

[20]      The next question, if even if it was accepted that the letter of 22 January 2014 had been served on the pursuer in accordance with Australian law, is whether having regard to the circumstances the pursuer would have had sufficient time to enable her to defend the proceedings.   ‘Sufficient time’ is not defined, and must presumably be a matter for judicial assessment in all the circumstances.  In this context this must mean whether the pursuer had sufficient time to respond to the substance of the letter of 22 January 2014 prior to a decision being made on it by CSS.   This required time to consider whether she had good grounds in fact or law to defend the proceedings, and if so, to enable her to do so effectively.  Regard must be had in particular to the nature of the proceedings and the fact that they were taking place in Australia.    Even if posted on 22 January 2014 the pursuer could not reasonably have received the letter until several days later at the earliest.  In order to defend the proceedings she might reasonably have wanted to take professional advice, and/or to recover all relevant financial documentation in relation to her work in Australia, her benefits claim, her employment since returning to Scotland, her bank accounts, etc.   All this would have taken some time.  Yet the pursuer was off work through illness in January 2014, which may well have handicapped her ability to respond effectively to the claim.   All this suggests that ‘sufficient time’ should be measured in weeks, not days. 

[21]      I think that it is also telling that the letter of 22 January 2014 instructed the pursuer to contact CSS before 18 February 2014, on pain of a determination being made on the application in her absence.   It can be taken from this that CSS were working on the basis that 25 days (even on the unrealistic scenario that the letter was delivered to the pursuer in Dundee the day after postage) was ‘sufficient time’ to enable her to defend the proceedings.  Yet it is apparent that the pursuer was not in fact given even this amount of time, because the terms of the letter of 4 February 2014 make clear that a determination had already been made by this date, and the pursuer’s liability had already been calculated.   Accordingly, and even on the unrealistic postage scenario just mentioned, the pursuer would have had just 11 days to ‘defend the proceedings’.  Given the likely time it would take for a letter to arrive in Dundee by ordinary post from Australia, the pursuer might well have had as little as a week to do so.  

[22]      In all the circumstances, even if I had accepted that the letter of 22 January 2014 had been served on the pursuer in accordance with Australian law, I would not have been satisfied that the pursuer would have had sufficient time to defend the proceedings.  I would therefore have allowed the appeal on this ground as well. 

[23]      In these circumstances I can deal with the pursuer’s fall back position more briefly.   This was based on section 9 of the 1972 Act.   In short summary, section 9 as originally framed gives power to a registering court in Scotland to vary a maintenance order as if the order had been made by the registering court itself.    Paragraph 9 of Schedule 2 to the 1993 Order initially contained a comparable power to vary maintenance orders made in Hague Convention countries, and accordingly section 9 of the 1972 Act as set out in Schedule 3 to the 1993 Order did likewise.    In the event that I was not prepared to set aside the registration of the maintenance order the pursuer sought to vary it, on account of her reduced income since 2013, so as to substantially reduce her liability. 

[24]      The pursuer’s solicitor had provided me with a copy of the above statutory provisions for the hearings on 11 August and 6 September 2016 and it was on the basis of this copy that the discussion proceeded on those dates.  However as I pointed out at the hearing on 5 December 2016, it is apparent that the copy of section 9 which I had been given was not the correct one.  Paragraph 9 of Schedule 2 to the 1993 Order has now been substantially amended, and accordingly section 9 as set out in schedule 3 to this Order also has a very different content.   In particular, by operation of paragraph 3(3) of the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) (Variation) Order 1999 SI 1999/1318 the power of courts elsewhere in the UK to vary maintenance orders made in Hague Convention countries under section 9 was severely limited.  In Scotland it was simply removed altogether:  see paragraph 9(4) of Schedule 2 of the 1993 Order and section 9(11) of the 1972 Act as set out in Schedule 3; the Explanatory Notes to the 1999 Order; Wilkinson & Norrie: The Law Relating to Parent and Child in Scotland (3rd Edition, 2013), paragraph 13.80.  

[25]      The net result, as the pursuer’s solicitor was forced to concede, was that her fall back position was ill founded and could not be maintained.  It was accepted that if I did not order set aside of the registration of the maintenance order of 13 May 2016, I would have no power to vary the order itself.   On one level it is unfortunate that this was not noticed earlier, as it no doubt gave rise to an appreciable amount of work by the pursuer’s solicitor – at my encouraging – to recover documentation for the purpose of establishing the pursuer’s impoverished financial position since her return from Australia.  On the other hand, that having been done and the documentation having been considered by me, I am satisfied that this position is as set out at finding in fact 2 above.   I have of course decided that the appeal should be allowed on other grounds.  However in the circumstances the defender can at least be made aware that there has been a degree of judicial investigation and scrutiny of the pursuer’s financial affairs, and that the documentation produced and considered supports her claim to have a greatly reduced level of income since her return to Scotland in 2013.   Had this been recognised by CSS in January 2014, it might have greatly reduced, perhaps to a nominal amount, the pursuer’s child support liability.

[26]      However for the reasons set out above the appeal is allowed and the registration of the maintenance order on 13 May 2016 is set aside.   Notwithstanding the success of the pursuer’s appeal it would be inequitable in the circumstances to make any finding of expenses against the defender.   I shall therefore make a finding of no expenses due to or by either party.