Aronson and Aronson

FAMILY COURT OF AUSTRALIA

ARONSON & ARONSON

[2011] FamCA 334

FAMILY LAW – CHILD MAINTENANCE – Whether child maintenance orders should be varied – Changes of circumstance – retrospective operation of order

Family Law Act 1975(Cth)

APPLICANT:

Mr Aronson

RESPONDENT:

Ms Aronson

FILE NUMBER:

SYC

1495

2008

DATE DELIVERED:

8 July 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

15 April 2011

REPRESENTATION

THE APPLICANT IN PERSON:

Mr Aronson

COUNSEL FOR THE RESPONDENT:

Mr Richardson

SOLICITOR FOR THE RESPONDENT:

Turner Freeman Lawyers

Orders

(1) Pending further order, paragraphs 1.1 to 1.4 inclusive of order 2 made by the court on 9 April 2008 are suspended.
(2) Pending further order, the husband is to pay the wife, by way of child maintenance, the sum of BD 900 per calendar month on the 20^th day of every month commencing 20 December 2010.
(3) Pending further order, I make orders pursuant to paragraphs 3, 4 and 5 of the husband’s application in a case filed on 25 November 2010 as set out hereunder:
3. That order 1.2 of the Consent Orders dated 9 April 2008 be amended to read “to [I School, Country J] all amounts due and sent to the husband by the school while soever the child of the parties namely [B] born … March 1994 attends that school, as and when such fees fall due; to [C School] all amounts due under invoices raised for tuition (less any discounts applicable under the terms of the wife’s employment) and sent to the husband while soever the children of the parties namely D born … September 1997 and E born … August 2001 attend that school, as and when the fees fall due.”
4. That order 1.3 of the Consent Orders dated 9 April 2008 be amended to refer to the wife’s current address; [F Street, G Town, Country H].
5. That Order 1.4 of the Consent Orders dated 9 April 2008 be amended to read “On provision of an invoice direct from the provider of services, other than those provided by the children’s schools, provided such services were agreed by the wife in advance in writing with the husband and incurred by the children, within 14 days of receipt of such invoices by the husband the husband pay or cause to be paid directly to each provider the amounts due on such invoices.

(4) The final determination of the husband’s application in a case filed on 25 November 2010 is to be consolidated with the property proceedings listed for final hearing to commence on 5 September 2011.
(5) Each parties’ costs of that application are to be reserved to be determined as part of the final hearing to commence on 5 September 2011.

IT IS NOTED that publication of this judgment under the pseudonym Aronson & Aronson (Variation Child Maintenance) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 1495/2008

Mr Aronson

Applicant

And

Ms Aronson

Respondent

REASONS FOR JUDGMENT

Before the court is an Application in a Case filed by Mr Aronson (“the husband”) on 25 November 2010. That application seeks, inter alia, that child maintenance orders made on 9 April 2008 be varied.
Before the hearing commenced I was advised by the solicitor for Ms Aronson (“the wife”) that paragraphs 3 and 4 as sought in the husband’s application were not disputed.
Paragraph 5 as sought in the husband’s application is as follows:
5. That order 1.4 of the consent orders dated 9 April 2008 be amended to read “On the provision of an invoice direct from the provider of services, other than those provided by the children’s schools, provided such services were agreed to by the wife in advance in writing with the husband and incurred by the children, within 14 days of receipt of such invoices by the husband the husband pay or cause to be paid directly to each provider the amounts due on such invoices.
I was advised by the wife’s solicitor that the only words which were disputed in paragraph 5 as sought in the husband’s application are the words “provided such services were agreed to by the wife in advance in writing with the husband.”
Paragraph 2 as sought in the husband’s application is most contentious. It seeks that order 1.1 of the consent orders made on 9 April 2008 be amended to read “to the wife the sum of BD 900.00 per calendar month on the 20^th day of every month commencing 20 December 2010.”
In support of that application the husband tenders the orders made on 9 April 2008 and relies on his Financial Statement filed on 25 November 2010 and his affidavit sworn on 23 March 2011.
With the exception of those matters referred to earlier in these reasons the wife opposes the orders sought by the husband. She filed a Response to an Application in a Case on 1 March 2011. She relies on an affidavit filed by her on 1 March 2011 and a Financial Statement filed 1 March 2011.
In addition to relying on affidavit evidence the husband gave oral evidence and was cross-examined.
Order 1.1 made on 9 April 2008 provided as follows:
1. That the husband by way of child maintenance pursuant to section 66G of the Family Law Act 1975 pay or cause to be paid:
1.1 to the wife the sum of BD 1500.00 per calendar month on 18^th day of every month commencing 18 April 2008.
During the course of the hearing the husband relied on his affidavit sworn 14 November 2010. The husband’s case is that since the orders were made on 9 April 2008 substantial changes in the financial circumstances of the children have taken place. In particular the parties’ daughter B is now being schooled in Country J. She commenced to attend I School, Country J on 7 September 2010. The annual fees for B at the College are BD 17,373 (GBP 28,489). The husband says that he currently receives reimbursement from his employer limited to BD 11, 928 per annum (GBD 19,560). Therefore, there is a shortfall of BD 5,445 (GBP 8,929) per annum.
In addition to school fees the husband meets the school uniform costs and associated clothing which is in excess of BD 623 per annum. Additionally, he pays school excursion trips of BD 975 per annum and airfares for B to visit Country H and Country K during each term break. The first of which cost BD 562. There are six flights per annum and the husband estimates the cost will be BD 281 per month. The total monthly cost not covered by the husband’s employer therefore is BD 915 per month.
The husband says that the costs associated with the children D and E, who currently live with the wife, have also substantially changed since the date of the original order. The husband is responsible for meeting all schooling costs, 60 per cent of the wife’s house rental costs and all services provided to the children such as medical, dental and airfares.
The husband says that he is not in a position to continue to meet the order at the current level.
The husband says the wife terminated the services of a driver who was employed at the time of the orders being made. He further says that neither of the children participates, in any meaningful way, in any equestrian activities. This had been a considerable expense.
In response the wife says that there has been no increase in the payment since April 2008 although she claims that her living expenses have increased.
The wife says she pays for some items of clothing for B. At the end of her first term when she returned home the wife bought clothing for B costing 450 BD. She also meets other expenses for B when she is with her.
The wife says there have been substantial increases in her expenses including her rent which has increased 20 per cent since the last orders were made.
The wife claims the husband has not made a full and frank disclosure. She referred to advice which she received in August 2010 that shares beneficially belonging to Mr L had been purchased in her name. She had requested details of the transactions giving rise to that position. She had not been provided with any information. She then said “I have referred the matter to the Australian Tax Office to ascertain the nature and details of these shares.”
The wife points out that in February this year the husband disclosed that he had sold his apartment in Country K. She had not received details of that sale.
In the husband’s affidavit sworn 23 March 2011 he answers the wife’s allegations against him as contained in her affidavit sworn 28 February 2011.
The husband relied on his Financial Statement sworn on 10 October 2010. He gave oral evidence in relation to that document. The husband has an income of $4,299 per week from his employment with the M Bank. He receives a rental payment of $200 per week in respect of the investment property at N Street, Suburb O, New South Wales. Additionally, he receives allowances from his employer which include the following:
(1) Housing allowance of $1,390 per week;
(2) Family travel allowance of $414 per week; and
(3) School fees allowance of $990 per week.
That provides him with a total weekly income and allowances of $7,293.
In his oral evidence the husband told me his total personal expenditure (as referred to in Part B of his financial statement) is now $7,532 per week. The total value of property owned by him is now $416, 963 and his total liabilities are $530,722. The husband explained that he had sold his apartment in Country K and consequently discharged the mortgage attached to it. The payment of $2,318 referred to in item 21 of the financial statement is now replaced by a rental of $1,053 per week. The payment to St George Bank of $230 per week is still being made. The husband said that item 35 in his financial statement has now been reduced to NIL dollars. Item 47 is now $319,466 and item 55 is now $530,722.
In cross-examination the husband was asked about his entitlement as a member of the M Bank share scheme. He said that he had been a member but it had lapsed. He explained that it was a share option scheme open to any employee. He participated in the scheme in 2005 and contributed $250 GBP per month for 60 months. It expired in August 2010. The husband had put in 15,000 GBP and received back 16,000 GBP which has been contributed to the payment of school fees. He has not received any bonus since 2004.
The husband told the court that his liability under item 50 in his financial statement to the M Bank is $14,424 at the date of the hearing.
In the cross-examination of the husband I observed him carefully as he gave his evidence. He answered all questions directly and did not, in my observations, appear to seek to evade answering any question. He appeared to give his evidence in a straightforward and honest manner and there was nothing about his presentation or the content of his evidence given orally which led me to be suspicious as to the veracity of it.
The husband was asked about the sale of assets since the 2008 orders were made. He said he had sold Telstra shares on 19 February 2010 for $21,760. Those funds were used to pay an ANZ margin loan. He sold British Airways shares on 16 August 2010 for $6,888. Those monies were used to pay the children’s school fees.
In part N of his Financial Statement the husband has set out his expenses for the items there specified. They amount to $5,008 per week. After the adjustments referred to in cross-examination of the husband, his weekly expenses amount to $7,532. That means the husband has a weekly shortfall of income to expenditure of $239.
The wife’s Financial Statement sworn on 1 March 2011 shows a receipt of $1,610 per week which includes child maintenance of $979 per week. Her total expenses are $2,867 per week. That is a shortfall of $1,257 per week. No explanation is provided by the wife to explain how she meets that shortfall. Her liabilities include personal loans from friends totalling $15,600 and a credit card liability of $157. There may be some explanation associated with those liabilities and her weekly shortfall.
Order 2 made on 9 April 2008 sets out the consent orders which the parties have entered into. Paragraph 1 of those consent orders and its sub paragraphs sets out the monies the husband was to pay by way of child maintenance pursuant to section 66G of the Family Law Act 1975(Cth) (“the Act”).The subject application must be made pursuant to section 66S of the Act. That section is in the following terms:
Modification of child maintenance orders
(1) This section applies if:
(a) there is in force an order (the first order ), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):
(i) made by a court; or
(ii) registered in a court; and
(b) a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.
(1A) With the consent of all the parties to the first order, the court may, subject to section 111AA, make an order:
(a) discharging the first order; or
(b) suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c) if the operation of the order has been suspended under paragraph (b) or (2)(b)--reviving its operation wholly or in part; or
(d) varying the order:
(i) so as to increase or decrease any amount ordered to be paid by the order; or
(ii) in any other way.
(1B) However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child's parents to maintain the child.
Note: For the duty of a parent to maintain a child, see section 66C.
(2) In any other case, the court may, by order:
(a) discharge the first order if there is just cause for so doing; or
(b) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(c) if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or
(d) subject to subsection (3), vary the order:
(i) so as to increase or decrease any amount ordered to be paid by the order; or
(ii) in any other way.
(3) The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of the child have changed so as to justify the variation; or
(ii) the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or
(iii) the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or
(iv) in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such as to justify the variation; or
(b) that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or
(c) if the order was made by consent--that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or
(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.
(4) In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5) The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or last varied having regard to a change in the cost of living.
(6) In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made.
(7) An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.
(8) If an order (the subsequent order ) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.
(9) If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.
(10) For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).
(11) The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.
It is subsection (3) of section 66S of the Act which the husband relies upon to ground his application. He says that the circumstances of the children have changed so as to justify a variation since the original order was made. He also says the circumstances of each of the parents has changed since that time and have changed in a way which would justify the variation.
Subsection (7) of section 66S of the Act gives the court power to make an order expressed to have retrospective operation to such day as the court considers appropriate.
In this case the parties have not yet concluded their property proceedings. Those proceedings are now listed for final hearing, together with a parenting application, for three days to commence on 5 September 2011.
The husband in his application seeks a reduction in the amount to be paid to the wife from BD 1,500 per calendar month to BD 900 per calendar month.
From the evidence before the court I am satisfied that the husband is paying substantial funds directly for the support of the children (in particular B) which have changed significantly since orders were made on 9 April 2008. On the evidence before the Court, the husband could establish the need for a reduction in the monthly payment to the wife for the support of the children in excess of that sought in his application.
It has been very difficult to conduct this litigation with both parties living overseas and one of the children now living in Country K. In order to ensure that justice is finally done in this case I propose to make an order which suspends the operation of paragraph 1 in order 2 made on 9 April 2008 (that is the requirements to pay child maintenance of BD 1,500 per calendar month) and pending further order, grant the application of the husband as contained in paragraph 2 of his application in a case filed on 25 November 2010. This will give the court the ability to consider all of the financial evidence which might touch on the proper payment by the husband for child maintenance. Given that the husband seeks that all of the children reside with him in the future, it may ultimately be necessary to discharge all child maintenance orders which require the husband to pay any sums to the wife.
As stated earlier the wife does not oppose orders being made pursuant to paragraphs 3 and 4 as sought by the husband in his application.
In relation to paragraph 5 as sought by the husband there is an issue between the parties only to the extent that payment of invoices by the husband are to require payment only where there has been advance written agreement between the husband and wife as to the incurring of that cost.
In my view, this is not an unreasonable request on the part of the husband. The original orders have given rise to conflict between the parties in that they both appear to have had a different concept as to what exactly the husband should or should not pay. The orders are very liberal in their wording and are capable of being interpreted widely rather than narrowly. In the circumstances, to avoid further conflict between the parties having to be resolved by the court there should be further definition to the orders. That is all the husband seeks in paragraph 5 of his application and I propose to so order.

I propose that the orders in relation to the payment of child maintenance be determined as part of the property proceedings listed for final hearing to commence on 5 September 2011.
I also propose that each party’s costs are reserved for determination as part of the final hearing listed to commence on 5 September 2011.
The orders of the court will be as set out at the commencement of these reasons.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 8 July 2011

[2011] FamCA 334

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Appeal

Costs

Remedies

Statutory Construction

Consent