Cameron & Helie
[2004] FMCAfam 685
•26 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAMERON & HELIE | [2004] FMCAfam 685 |
| FAMILY LAW – Child maintenance – discharge of order – variation of order – arrears – stay – overseas maintenance order – child maintenance beyond 18 years of age – applicant resident of Australia – respondent resident of France – proceedings under Family Law Regulations 1984 reg. 36 – whether Family Law Regulations 1984 reg. 37 applies – “just cause” for discharge of maintenance order – discretionary nature of proceedings for enforcement of arrears of maintenance. |
Family Law Act 1975 (Cth), ss.66C, 66P, 66W
Child Support (Assessment) Act 1989 (Cth), s.140
Child Support (Registration and Collection) Act 1988 (Cth)
Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000, Regs. 20, 21, 22, 23
Family Law Regulations 1984, Regs. 36, 37, 38
B & H [2002] FMCAfam 480 – cited
Jones v Dunkel (1959) 101 CLR 298 – cited
Vakil & Vakil (1997) 138 FLR 88; 21 Fam LR 508; FLC 92-743 – followed
Heethuis v Van Gelderen (1999) FLC 98-005 – not followed
Roche v Glenn [2002] FamCA 818; (2002) 30 Fam LR 68; FLC 93-123
– followed
Kelly and Kelly (1996) 20 Fam LR 502; FLC 92-680; 131 FLR 160 – followed
Port of Melbourne Authority v Anshun Pty Ltd (1981) CLR 589 – referred to
Lutzke and Lutzke (1979) 5 Fam LR 553; FLC 90-714 – followed
Spry and Roet (1977) FLC 90-301; 3 Fam LN 50 – followed
Reid and Reid (1978) FLC 90-529 – followed
| Applicant: | GORDON TREVOR CAMERON |
| Respondent: | MARIE-PIERRE HELIE |
| File No: | PAM 2882 of 2003 |
| Delivered on: | 26 November 2004 |
| Delivered at: | Sydney |
Hearing date: | 23 April 2004 |
| Judgment of: | Scarlett FM |
Amended under the “Slip Rule” on 6 December 2004
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom |
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Ms James |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Order for Maintenance made by the Tribunal de Grande Instance of Dijon in the Republic of France on 6 June 1988 providing that the Applicant Husband pay to the Respondent Wife the sum of FIVE THOUSAND FRANCS (FF 5000) per month for the support and education of the child JAMES CAMERON born 23 August 1981 is discharged retrospective to the date upon which the Order was made.
All arrears in respect of the said order are discharged.
All other applications are dismissed save as to costs and the proceeding is removed from the List of Cases Awaiting Finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2882 of 2002
| GORDON TREVOR CAMERON |
Applicant
And
| MARIE-PIERRE HELIE |
Respondent
REASONS FOR JUDGMENT
This is an application by a father of a child to discharge an order for child maintenance made by a court in France. He also seeks to discharge all the arrears due under the order. The father lives in Australia, as does the child, who is now an adult. The mother still lives in France.
In his application, filed on 18th July 2003, the father seeks these orders:
a)That the Order for maintenance made by the Tribunal de Grande Instance (Regional Court) of Dijon made on 6 June 1988, in respect of the child J[1] born 23 August 1981, be discharged.
b)That the abovementioned Order be retrospectively discharged as and from the date the Order was made.
c)That all arrears in respect of the abovementioned order be discharged.
d)
That in the alternative to Orders 2 and 3 above, the Order of the Tribunal de Grande Instance (Regional Court) of Dijon dated
6 June 1988 for maintenance in respect of the child J born
23 August 1981 be varied to nil as and from the date the order was made.
[1] Although J is an adult, he will be referred to as J to preserve his privacy
The Respondent, the mother of the child J, filed a response on 17th March 2004. In that response she seeks the following orders:
a)That the application for maintenance filed 18 July 2003 be dismissed.
b)That paragraph 1 and 2 of the orders of Federal Magistrate Scarlett made 8 September 2003 be discharged.
c)Such further orders as the court sees fit to make.
The father’s application was returnable at the Parramatta of the Court on Tuesday 9th September 2003, but, at the request of the Applicant’s solicitor, I brought the matter forward to Monday 8th September. On that day, I made orders for a stay in the collection of maintenance until further order, as follows:
(1)That collection of maintenance by the Child Support Agency, payable by the Applicant Father pursuant to the Orders of the Tribunal de Grande Instance (Regional Court) of Dijon dated
6 June 1988 with the Child Support Agency be stayed.(2)That collection of any arrears accruing pursuant to the abovementioned Order be stayed.
Those orders are the two orders that the Respondent seeks to have discharged in her response.
I also made directions for the filing of the necessary affidavits, and I listed the matter for final hearing. The application was argued before me on 23rd April 2004.
Background
The Applicant and Respondent met in Leeds, in the United Kingdom in 1973. The Applicant is Australian and the Respondent is French. The Applicant was born in Melbourne on 28th October 1946, and the Respondent was born in Dijon, France, on 18th October 1950.
The Applicant and the Respondent started living together in 1974, in Madrid, in Spain. They moved to Belgium in 1978 and the Applicant obtained work in Brussels.
The Applicant and the Respondent were married on 7th September 1979. The parties’ child, J, was born in Brussels on 23rd August 1981.
On 6th April 1982, the Respondent’s father was killed, after having been assaulted. His death affected the Respondent deeply. The parties separated in 1987. The child J remained living with the Respondent. The Applicant exercised some contact with the child. The Respondent and child later left Belgium and commenced to live in Dijon, in France. They lived with the Respondent’s mother.
The Respondent commenced divorce proceedings in the Tribunal de Grande Instance in Dijon. The Court handed down its decision on 6th June 1988. The Applicant was served but did not attend, nor was he legally represented.
A translation of the judgment of the Tribunal de Grande Instance shows that the proceedings were heard contradictoire, which appears to mean ex parte. The Tribunal de Grande Instance pronounced a decree of divorce, “with all fault to be born by the husband”. The Tribunal also made orders to this effect:
a)That parental authority over the minor child should be exercised by the mother;
b)That the father should exercise his right to visit the child “in an amicable agreement, exclusive at the mother’s place of residence;
c)That the father was restrained from taking the child out of the country;
d)That the father should “pay his wife a monthly maintenance allowance for the support and education of J set at FIVE THOUSAND FRANCS (not including the family benefits which shall be paid directly to the mother by the social organisms (sic));
e)That the maintenance should be indexed according to the French consumer price index for households
f)That the father should readjust the rate of maintenance on
1st January each year; andg)That the maintenance should be paid monthly in advance from the date of judgment until the child attained the age of 18 or “finished his studies”.
The Respondent continued to live with her mother and with the child J. The Respondent’s mother received an amount of money by way of compensation for the tragic death of her husband. The Respondent deposed that her mother supported her and J from the proceeds of this compensation.
The Applicant returned to Australia in December 1990 and obtained employment for about six weeks. He later commenced to receive unemployment benefits.
The Applicant moved in to live with his uncle, who had suffered a broken hip. The uncle’s home was at 22 Alfa Road, Woy Woy, on the Central Coast of New South Wales. The uncle died in October 1996 and the Applicant inherited the house at Woy Woy.
In August 1999 the Applicant obtained employment in a club in the Sydney suburb of Hornsby. He remains employed there.
The child J attended school in France until the year 2001. The Respondent’s mother assisted the Respondent with financial support for herself and the child. The Respondent obtained seasonal work but was without work for periods of time. She still obtains financial assistance for herself from her mother.
In September 2000 J travelled to Australia. He stayed with the Applicant and obtained work in the same club as his father. He later returned to France.
In January 2003 J travelled to Australia. He commenced living with the Applicant. He was still living with the Applicant at the date of the hearing.
On 1st June 2002, the Child Support Agency wrote to the Applicant, informing him that the French maintenance order had been registered with the Child Support Agency, at the request of the Central Authority of France. A schedule attached to the letter informed the Applicant that he was required to pay the sum of $1,655.80 per month, together with arrears calculated at $251,065.65.
The Applicant then wrote to the Child Support Agency on 12th August 2002, objecting to the registration of the French maintenance order. The Child Support Agency replied on 26th September, informing him that he had no right of objection with the Child Support Agency and that he had to direct his objections to the Central Authority in France.
The Applicant commenced these proceedings on 18th July 2003.
The Child Support Agency wrote to the Applicant on 20th October 2003 informing him of a change to his child support, so that he then owed the sum of $29,225.00.
On 16th March 2004, the Child Support Agency again wrote to the Applicant, giving him the rather startling information which I quote:
Your current child support amount has changed. Your old child support amount was $8,531,346.66 per month. Your new child support amount is $0.00 per month.
Because of this change you now owe Marie-Pierre $280,290.65. This will be shown on your next statement.
On 19th March 2004, the Child Support Agency forwarded an amended Child Support Account Statement to the Applicant. This amended statement informed him that he owed the sum of $294,845.51. The additional $14,554.86 arose from penalties.
Appearance by the Secretary of the Attorney-General’s Department
The Australian Government Solicitor has become involved in these proceedings on behalf of the Secretary of the Attorney General’s Department. The Secretary instructs the Australian Government Solicitor to seek leave to appear as amicus curiae on behalf of the Respondent. I am informed that the Secretary has been requested by the French Ministry of Foreign Affairs to assist the Respondent.
Subregulation 36(3) of the Family Law Regulations permits an application to a court having jurisdiction under the Family Law Act for an order discharging, suspending, reviving or varying an order or liability to which the Regulation applies. The Applicant, being a person against whom the French orders were made, is permitted to make this application (see Reg. 36(3)(b)). Regulation 36(3)(c) permits the Secretary to make an application on behalf of a person for whose benefit the order or agreement was made, or for whose benefit the liability was created. The Secretary make an application on behalf of a person against whom the order was made or the person who is liable to make payments because of the agreement or liability. Whilst it is not specifically mentioned, it would be strange if the Secretary were not able to appear for a respondent to an application.
I am inclined to agree with the view taken by the Secretary that the failure of the Regulations to mention an overseas respondent is no more than a legislative oversight. I grant leave to the Secretary of the Attorney General’s Department to appear as amicus curiae.
Status of Order
Subregulation 36(4) provides that the law to be applied to determination of an application is the law in force in Australia under the Act, that is, the Family Law Act.
Regulation 38 provides that an order made under Regulation 36 is provisional if the relevant reciprocating jurisdiction is one on the list contained in that regulation. France is not on that list.
Amendment to Application
At the commencement of the hearing, Mr Sansom, counsel for the Applicant, sought to amend the application by adding this order:
Enforcement of any amount ordered to be paid is stayed.
The argument in support of this amendment was that one would expect an enforcement application to be brought at the time of the hearing rather than later, even though a stay was in place. Against this, Ms James for the Respondent argued that when a stay is in place, there is nothing to be paid, therefore no application has been filed.
I note that Regulation 23 of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations provides that an amount payable under the maintenance assessment, order or agreement entered in the Child Support Register under regulation 22 is a debt payable to the applicant. Such a debt is recoverable by the applicant in a court of competent jurisdiction (subregulation 23(2)).
I allowed the amendment to the application.
The hearing
The Applicant relied on these documents:
(a) his application filed on 18th July 2003; and
(b) his affidavit filed on 21st April 2004.
The Respondent relied on these documents:
(a)her response filed on 17th March 2004;
(b)her financial statement filed on 17th March 2004;
(c)her affidavit filed on 17th March 2004; and
(d)her affidavit filed on 16th April 2004.
I have read all these documents.
The Applicant gave short oral evidence in answer to the matters contained in the Respondent’s affidavit filed on 16th April 2004. He said that he visited his son in France on two occasions. On one occasion he took the child a bicycle. He confirmed that his son still lived with him.
The Applicant was not subjected to cross-examination.
Counsel for the Applicant called for the original of a letter dated
16th April 2004 from the Applicant’s solicitors to the Australian Government Solicitor. Ms James produced the original of that letter and I admitted it into evidence.
The Applicant’s case closed.
For the Respondent, Ms James relied on the Respondent’s affidavit filed on 16th April 2004, and then closed the Respondent’s case.
Submissions
The Applicant’s submission
For the Applicant, Mr Sansom submitted that there had traditionally been a reluctance by courts to permit enforcement of arrears to go back too many years. There was no indication as to how much of the amount claimed constituted arrears and how much was made up of penalties. He referred to the decision of the High Court of Australia in Jones v Dunkel, (1959) 101 CLR 298, saying that the Respondent should file that information and should not expect the Applicant to provide it.
I note that Jones v Dunkel (supra) is authority for the principle that the unexplained failure by a party to call witnesses, or to tender documents or other evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case. The rule can operate against parties not bearing the burden of proof and parties that do bear it as well.
Mr Sansom went on to submit that the fact that the Respondent had come to court (more correctly, had registered the maintenance liability) at this late stage made it difficult to work out what was actually owed.
Mr Sansom agreed that regulation 36 of the Family Law Regulations applied but said that there was an issue as to whether regulation 37 applied. He submitted that it did, relying on Vakil & Vakil (1997) 138 FLR 88; 21 Fam LR 508; FLC 92-743.
Regulation 37 provides that where an application is made by a person to discharge, suspend, revive or vary an overseas maintenance order registered in Australia, the applicant may raise any matter that he or she could have raised under Part VII or Part VIII of the Family Law Act if the proceedings giving rise to that order had been heard in an Australian court. The right is conditional on these matters:
(a) the applicant did not have notice of the proceedings giving rise to the order or liability, did not appear in those proceedings and did not consent to the making of the order or to the creation of the liability; and
(b)the application is made within 6 months after the applicant was given notice that the order or liability is enforceable in Australia (subregulation 37(1) paras (b) and (c)).
Mr Sansom conceded that the Applicant did have notice of the proceedings in the French court (see subregulation 37(1)(b)) and he did not make an application within six months of having been given notice that the order or liability was enforceable in Australia[2]. He submitted that the Child Support Agency had misled the Applicant in its letter to him, thereby depriving him of his rights to object.
[2] He needed to have applied within 6 months of 1 June 2002
It was then submitted on behalf of the Applicant that the Respondent is effectively seeking to enforce an order that has expired. Mr Sansom referred me to the decision of May J in Heethuis v Van Genderen (1999) FLC 98-005. Her Honour held that the Court may only vary a maintenance order where the order is still in force.
The legislature subsequently amended s.66W of the Act. The Full Court of the Family Court considered the effect of the amended section in Roche v Glenn [2002] FamCA 818; (2002) 30 Fam LR 68; FLC 93-123. The Court held that, by the operation of s. 66W, if arrears are due under a child maintenance order when the order ceases to be in force, the court has the power in the circumstances outlined in the section retrospectively to discharge or vary the order.
Mr Sansom submitted that so long has gone by since the original order was made, and the Respondent has not sought to enforce the order until recently, that it would be unjust to do so now. He said that the order was first registered in 2002, and asked rhetorically what had happened in the other 14 years, and what had the Respondent done to enforce the order prior to 2002. Maintenance is for the upkeep of a child. It is not intended to give a parent some compensation or windfall.
I was referred to the decision of the Full Court of the Family Court of Australia in Kelly and Kelly (1996) 20 Fam LR 502; FLC 92-680; 131 FLR 160. In that case, the Full Court held that litigants having the benefit of orders for the payment of expenses in relation to their children cannot sit back and allow them to accumulate without informing the person having the obligation to pay.
It was submitted that the Respondent is hoping to receive a significant sum to compensate her for bringing up the child J. This can be seen from paragraphs 54 and 48 of her affidavit.
Mr Sansom conceded that his client has not paid maintenance for the child J. The Respondent, he pointed out, has not shown in her material any debts that she has incurred in the past five years.
The Applicant came to Australia and was on benefits for years. He had no ability to pay maintenance. He was unemployed for a decade, and then he obtained employment at the Hornsby RSL Club. About a year later, his son came to live with him.
Finally, Mr Sansom relied on a claim of an “Anshun” estoppel, relying on the decision of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. In dealing with any claim by the Respondent to enforce the arrears, he said that the Respondent should be estopped from doing so. The principle appears to be that an estoppel will arise if the matter to be relied upon as a defence in a second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim and it subject matter, it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.
In this case, Mr Sansom pointed out that:
a)only the Respondent can provide evidence of how the arrears are made up;
b)only the Respondent knows when she proposes to take steps to enforce the maintenance order; and
c)it is a well-known principle that there ought to be finality to litigation.
I am not persuaded that an “Anshun” estoppel is appropriate in this case.
The Respondent’s submission
For the Respondent, Ms James relied on s.66C of the Family Law Act, which states that the parents of a child have the primary duty to maintain the child (s.66C(1)). The Applicant had a duty from 1988 to maintain the child J. The Applicant’s own affidavit evidence shows that he chose to care for an uncle whom he had no duty to maintain. The mother maintained J to the best of her ability. She is asking to be reimbursed for money that she has paid out over the years. Even when the Applicant was unemployed he did not have to pay housing expenses. He cared for his uncle. He now has an unencumbered asset and has had all those years earning wages at the Hornsby RSL Club. He now has the capacity to pay.
The Respondent now needs to be reimbursed. The mother does not deal directly with the Child Support Agency. Ms James submitted that the maintenance debt when registered becomes a debt to the Commonwealth so that the Respondent has no power to enforce it.
It is my understanding that Regulation 23 of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations provides that an amount payable is a debt payable to the applicant and not to the Commonwealth (see paragraph 34 above).
Turning to the Regulation 37 issue, Ms James submitted that the Applicant cannot rely upon it. He was aware of the French proceedings because he was given notice. He had the chance to seek legal advice about the proceedings. He chose not to attend the hearing.
Ms James submitted that the Court had no power to make the stay order made on 8th September 2003, staying the collection of maintenance payments. She stated that there is no provision for a stay in the Child Support (Registration and Collection) Act 1988. There is a power to stay matters under s. 140 of the Child Support (Assessment) Act 1989 but it does not give power to stay collection of maintenance payments.
In my view, s.66P(1)(j) of the Family Law Act gives the Court the power to order a stay in child maintenance matters.
Finally, Ms James submitted that the enforcement of payment of arrears is not a windfall. The Respondent seeks an order that is just, equitable and proper.
Applicant’s submission in reply
In reply to the matters raised, Mr Sansom referred to me to the provisions of Regulations 20 and 21 of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations. A payee can elect not to have a registrable maintenance liability enforced under the Child Support (Registration and Collection) Act.
Mr Sansom submitted that for 16 years after the French court made the order, the Respondent had not made any application for enforcement. Now, he submitted, the Respondent has to answer an accusation of laches and delay.
Conclusions
I will deal with the issues raised in the submissions. First of all, it seems to be extraordinary that the Respondent should make no efforts to enforce a maintenance order for the child made in June 1988 until early or mid 2002, by which time the child concerned had left school and was an adult. He also was no longer living with her.
The lengthy delay in seeking to enforce the order has made it difficult to ascertain the amount actually owing by way of arrears. The correspondence from the Child Support Agency to the Applicant has not done much to clarify the matter. It is safe to say that letter from the Child Support Agency to the Applicant of 16th March 2004 telling him that the monthly rate of child support had been reduced to nil from the previous rate of over eight and a half million dollars a month was no doubt a source of relief to the Applicant, but it was clearly incorrect. Before any application for enforcement of any arrears of maintenance could be heard, there would have to be evidence showing how the arrears were made up.
I am not satisfied that there is any reliable evidence of what is actually owed.
I am satisfied that Regulation 36 of the Family Law Regulations applies. The order of the Tribunal de Grande Instance of 6th June 1988 is clearly an overseas maintenance liability that has been registered on the Child Support Register in accordance with Regulation 22 of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations (see subregulation 36(1)).
The Applicant is quite obviously “the person against whom the order was made or the person who is liable to make payments because of (the agreement or) the liability” (subreg. 36(2)).
I am not satisfied, however, that Regulation 37 applies to the Applicant. Whilst he is “a person who is liable to make payments because of a liability mentioned in paragraph 36(1)(b)” (paragraph 37(1)(a)), he does not fit into the categories in either paragraph 37(1)(b) or 37(1)(c). He did have notice of the proceedings in the Tribunal de Grande Instance, but he elected not attend.
Similarly, the Applicant did not make application within 6 months of being given notice that the liability is enforceable in Australia. The letter from the Child Support Agency informing him of the registration of the French order is dated 1st June 2002. His application was not filed at this Court until 18th July 2003, well outside the 6 months provided in paragraph 37(1)(c).
The decision in Vakil (supra) will not assist in bringing the application into the category of those to which reg. 37 applies, either. Vakil was a case where the parties married in India and then came to Australia to live. They separated shortly afterwards, and the wife returned to India. She applied to the Family Court in Bombay for divorce and spouse maintenance. The Indian Judge found that the wife was entitled to a decree of divorce and maintenance in the sum of R30, 000 per month. The husband did not appear, although he was represented by solicitors. Their representation was limited to filing documents and a written statement. Notwithstanding an order by the Family Court that the husband’s presence would be necessary at the final hearing, he did not attend court at any time. He filed a written statement instead. The husband told the Family Court of Australia that he had received legal advice not to attend.
Because of his absence, the Court in India did not accept any of the husband’s evidence. The Court made an order for spouse maintenance of R30, 000 per month, based solely on the wife’s evidence.
The husband sought a discharge of the Indian order in the Family Court of Western Australia under regulation 36 of the Family Law Regulations. In the alternative, he sought a variation of the order.
The evidence was that the Judge in the Indian court had been seriously misled, both as to the husband’s employment status (he had been unemployed for a period of 14 months), and as to his rate of pay. The trial Judge found that there was no just cause for discharging the maintenance order but varied it to R5, 000.00 per month.
On appeal, the Full Court of the Family Court found that the trial Judge’s conclusion that there was no just cause for discharging the order was in error, in the light of her findings that the wife had withheld evidence from the Indian Court and that evidence given before that court was false.
The Full Court held that the essential difference between applications under regulation 36 to which regulation 37 applies and those to which regulation 37 does not apply is that, in regulation 37 matters, the applicant may without restriction, rely on any matter that could have been raised under Part VIII of the Act if the proceedings in which the overseas order was made had been heard in Australia, including matters in respect of which the overseas court has made findings of fact. In an application to which regulation 37 does not apply, the applicant may not challenge findings of fact made or deemed to have been made in the overseas proceedings. The exception to this rule is when the overseas proceedings have been tainted by fraud, the suppression of evidence or the giving of false evidence or other circumstances leading to a miscarriage of justice.
It is this exception that applied in Vakil, even though regulation 37 did not apply. Clearly, this decision applies to overseas orders for child maintenance or overseas (child) maintenance entry liabilities as well, because subregulation 37(2) allows an applicant to raise any matter that the applicant could have raised under Part VII or Part VIII.
There is no evidence in this case that the wife’s evidence to the Tribunal de Grande Instance in Dijon was tainted by fraud, the suppression of evidence or the giving of false evidence. There do not appear to be any other circumstances to show that there was a miscarriage of justice in the French proceedings.
I am satisfied that the case before me is an application under regulation 36 to which regulation 37 does not apply. I am also satisfied that there is no evidence of any miscarriage of justice that would permit the Applicant in this case to challenge any findings of fact that were made or may be deemed to have been made in the proceedings before the Tribunal de Grande Instance in Dijon on 6th June 1988. The Applicant was aware of the proceedings and he elected not to attend.
The maintenance order is no longer in force
I am satisfied that the maintenance order made by the Tribunal de Grande Instance is no longer in force. The relevant parts of the order are these:
Orders Mr Gordon Cameron to pay his wife a monthly maintenance allowance for the support and education of J[3] set at FIVE THOUSAND FRANCS (not including the family benefits which shall be paid to the mother by the social organisms);…
Orders Gordon Cameron to pay this allowance to his ex-wife each month, in advance, to her place of residence, on the first day of each month and for the current month in proportion to the number of days remaining. This aforementioned maintenance allowance, and the readjustments, shall be paid starting at the date of the present judgement and until the child reaches the age of eighteen or when he has finished his studies;
[3] Pseudonym applied by this Court
The child J was born on 23rd August 1981. He attained the age of 18 on 23rd August 1999.
The evidence is not quite so precise as to when J finished his studies.
I interpret the Tribunal de Grande Instance order “or when he has finished his studies” as meaning “until he completes his secondary education”. It is common in Australia for orders to be couched in this way, to cover the situation where a child leaves school and gets a job before turning 18, and also to cover the opposite situation, where a child’s 18th birthday may occur during a school year. It seems likely that the situation in France would be similar.The father deposes in his affidavit that he purchased a plane ticket for J “and he travelled to Sydney in about September 2000”[4]. The father deposes that J lived in his home and he supported his son, without requiring any board from him. He assisted J to obtain work at the Hornsby RSL Club. J was still receiving a monthly allowance of 2000 Francs from his maternal grandmother[5].
[4] Applicant’s affidavit, paragraph 69.
[5] Applicant’s affidavit, paragraph 71; Respondent’s affidavit sworn 22 October 2003, paragraph 13; Respondent’s affidavit sworn 5 April 2004, paragraphs 48 and 50
The Respondent deposed that J travelled to Australia in November 2000, as he had just obtained his Baccalaureat Litteraire.[6] The Respondent explains in paragraph 13 of her affidavit sworn 5 April 2004 that the Baccalaureat Litteraire is the equivalent of the A Level Certificate, which I understand to be the British equivalent of the Higher School Certificate. It was certainly the end of his secondary education, as both parties’ affidavits give evidence of J’s ambitions to undertake a tertiary education in Australia. J in fact enrolled at a College of TAFE in Sydney. The Applicant deposes that he paid the fees, the Respondent deposes that he did not.
[6] Respondent’s affidavit sworn 22 October 2003, paragraph 13; Respondent’s affidavit sworn 5 April 2004, paragraph 45. Baccalaureat Litteraire is the French spelling.
Taking all this evidence into account, I am satisfied that the child J had completed his secondary education by 30th November 2000 at the latest, when he was aged 19 years and 3 months.
It appears to me that the Order made by the Tribunal de Grande Instance ceased to be in force on or before 30th November 2000. The law to be applied in determining this matter is the law in force in Australia, in this case, the Family Law Act 1975 (Cth), (see Family Law Regulations 1984, subregulation 36(4)). Subsection 36L(3) provides:
A child maintenance order in relation to a child ceases to be in force when the child turns 18 unless the order is expressed to continue in force after then.
It is no longer the case that the Court does not have the power to vary a child maintenance order after it has ceased to be in force. The decision in Heethuis v Van Genderen (supra) no longer states the law on this point, as a result of the legislative amendment to s.66W of the Family Law Act (see Roche v Glenn (supra)).
Section 66W was amended by the Family Law Amendment Act 2000, which came into force on 27th December 2000. It now provides:
(1)Nothing in subsection 66L(3), or in this Subdivision (apart from subsection (2) of this section), affects the recovery of arrears due under a child maintenance order in relation to a child when the order ceases to be in force.
(2)If arrears are due under such an order when the order ceases to be in force, the court may, by order, retrospectively:
(a)discharge the order if there is just cause for doing so; or
(b)vary the order so as to increase or decrease the arrears to be paid under the order if the court is satisfied that:
(i)the circumstances of the person liable to pay the arrears are such as to justify the variation; or
(ii)the circumstances of the person entitled to receive the arrears are such as to justify the variation; or
(iii)in the case of an order that operated in favour of, or that was binding on, a legal personal representative – the circumstances of the estate are such as to justify the variation.
Arrears of maintenance
The Applicant has no ongoing liability to pay the Respondent any sum for the support of J. The order of the Tribunal de Grande Instance ceased to be in force by the end of November 2000, by which time
a)J was an adult, aged 19 years and 3 months;
b)J had finished his secondary education; and
c)J was living with the Applicant.
A short while later, J obtained employment at the Hornsby RSL Club, although the details of the extent of that employment and the amount he earned was not in evidence.
The Respondent did not commence to enforce that order until some time in 2000. In her affidavit sworn 22nd October 2003, the Respondent says at paragraph 10:
I had received one letter from the CAF in Dijon telling me that Mr Gordon Cameron had to start paying the Child Maintenance for his son J[7], not for me at all. In fact, I do not know myself why it took so long to advise both parts (sic)[8] but it is exactly when J went to Australia to meet his father for the first time after divorce, in July 2000, that I got a letter from CAF saying that the French Ministry of Foreign Affairs was going to start taking action!
[7] Court pseudonym
[8] presumably “parties”
It is relevant that the Respondent’s mother contributed regularly to J’s support, and the Respondent deposes that the mother was still sending J 2000FF per month (equivalent to about $A500.00) whilst J was living in Australia. The Respondent’s mother has paid him this allowance, on the Respondent’s evidence, since J was 4 years old.
The Respondent does not say that she is still paying off debts incurred to support J whilst the order was in force. In fact, in paragraph 14 of her affidavit sworn 22nd October 2003, the Respondent says:
My present financial position has nothing to do with the one I had for 15 years when J was living with me in France…
It appears to me that the mother is seeking some form of compensation for the fact that she had to bring up her son without the support of the Applicant, even though she had the generous support of her own mother. The purpose of “maintenance”, which is a term with a very wide scope, has been defined by Dr. Anthony Dickey QC in his text, Family Law (4th ed.) at page 456 in this way:
It signifies any form of material provision that will enable an adult to live a normal life and a child to be brought up properly.
Child maintenance arrears are not to be used as some form of lump sum compensation to a party long after the need for the child to be maintained has passed. I adopt, with respect, the reasoning of the Full Court of the Family Court in Kelly and Kelly (supra). In a joint judgment, Baker , Lindenmayer and Hannon JJ said ((1996) FLC 92-680 at 83060):
In our opinion, litigants having the benefit of orders for the payment of school fees and other expenses in relation to their children cannot sit back and allow such obligations to accumulate without informing the person having the obligation to pay.
The husband, in our view, was entitled to arrange his affairs on the basis of his known obligations.
True it is that the Respondent appears not to have known that the Applicant had left Belgium and returned to Australia for some time. However, she deposes in her affidavit of 22nd October 2003 that J received a card from the Applicant “years after the divorce, and that was how we got to know that the Applicant had left Belgium for Australia!”.[9]
[9] Paragraph 6.
It remains inexplicable that the Respondent did not appear to have done anything to enforce the order whilst the child was living with her.
One of the powers given to the Court under s.66W is to discharge the order if there is “just cause for doing so” (s.66W(2)(a)). The meaning of “just cause” has been set out by Lindenmayer J in Lutzke and Lutzke (1979) FLC 90-714; 5 Fam LR 553:
In my opinion, however, the words ‘just cause’ are not used in any broad general sense, nor are they intended to import any abstract notions of justice, ‘palm tree’ or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a ‘cause for the discharge of an existing maintenance order will be a ‘just cause’ only if, having regard to the other provisions of the Act, it can be said that it is ‘right’ or ‘proper’ that the order should be discharged ((1979) FLC 90-714 at 78832).
The Full Court approved the decision in Lutzke (supra) in Vakil.
In his decision in Lutzke, Lindenmayer J noted that the judgments in Spry and Roet (1977) FLC 90-301; 3 Fam LN 50, and Reid and Reid (1978) FLC 90-529:
Respectively emphasised the discretionary nature of proceedings for the enforcement of arrears of maintenance, and in the former case Frederico J also drew attention to the fact that an obligation to pay maintenance is not a debt in the normal sense but a special kind of obligation with features different from those attaching to the ordinary kind of debt. In particular, he pointed out that maintenance is intended to be of a stipendiary nature to enable the party entitled to receive it to meet the ordinary regular outgoings necessary for his or her support (or that of the child or children to whom the order relates). (FLC 90-714 at 78840).
Having regard to:
a)the matters that I have set out in paragraphs 91 to 102 above;
b)the stipendiary nature of orders for child maintenance or child support;
c)the length of time that has passed since the orders were made without any apparent effort at their enforcement; and
d)the Applicant’s relatively modest financial circumstances;
I am of the opinion that, in the exercise of my discretion, the arrears should not now be enforced against the Applicant. I am of the opinion that the arrears should now be discharged.
As there is no ongoing maintenance liability, the order is of no further use and should be discharged. I am satisfied that there is just cause for doing so.
I make the Orders as set out at the commencement of these Reasons.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 6 December 2004
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