Goleby and Goleby
[2012] FamCA 366
•22 May 2012
FAMILY COURT OF AUSTRALIA
| GOLEBY & GOLEBY | [2012] FamCA 366 |
| FAMILY LAW – CHILDREN – Overseas maintenance liability – where the Applicant seeks an order discharging arrears owing to the Child Support Agency (“CSA”) pursuant to an overseas maintenance liability – where the Applicant also applies for a variation of the order giving rise to the liability – where the liability stems from an order made by the Supreme Court of South Africa in 1999 – where that liability was registered by the Applicant with the CSA in 2005 – where the liability includes both spousal maintenance and child support – where there is limited information regarding the financial position of the Respondent – where the Applicant owes significant arrears to the CSA – whether the arrears owing to the CSA should be discharged – whether the original order should be provisionally varied – where the parties separated 14 years ago – where the parties’ children are now aged 24 and 21 – where the Applicant has continued to pay child support notwithstanding that the children are aged over 18 years – where the Applicant has a modest income – orders made discharging the liability to pay maintenance and child support and discharging the arrears to the Agency. |
| Child Support (Assessment) Act 1989 (Cth) Child Support (Registration Collection) Act 1989 (Cth) Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) |
| Mathieson v Hamilton [2006] FMCAfam 238 |
| APPLICANT: | Mr Goleby |
| RESPONDENT: | Ms Goleby |
| FILE NUMBER: | BRC | 10451 | of | 2009 |
| DATE DELIVERED: | 22 May 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 24 February 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr De Korte of De Korte Lawyers |
| THE RESPONDENT: | No appearance |
Orders
IT IS ORDERED THAT
Pursuant to Regulation 36 of the Family Law Regulations 1984 (Cth):
(a)The order of the High Court of South Africa (Witwatersrand Local Division) made 28 January 1999 in Johannesburg making binding the Deed of Settlement annexed thereto and marked “B” be varied by:
(i)Discharging as and from the date of this order, Clause 3.1.1 thereof; and
(ii)Discharging as and from … December 2005 Clause 3.1.2 thereof insofar as it applies to Ms F born … December 1987;
(iii)Discharging as and from … August 2009 Clause 3.1.2 thereof insofar as it applies to Ms S born … August 1991.
Discharging all and any arrears owing, as and from the date of this Order, to the Child Support Agency pursuant to registration of the said order with that Agency in April 2005, including any interest and penalties payable in respect thereof.
Paragraphs one (1) and two (2) of these orders be declared to be provisional pursuant to Regulation 38(1) of the Family Law Regulations 1984 (Cth).
IT IS DIRECTED THAT
The Registrar of this Court shall send to the Secretary within the meaning of Regulation 38A of the Family Law Regulations 1984 (Cth) a sealed and certified copy of:
(a) This order;
(b) The reasons for judgment herein;
(c)The affidavit of the husband filed 27 January 2012 together with annexures thereto.
(d) The Financial Statement of the husband filed 27 January 2012.
(e) A minute of the orders sought by the applicant filed 27 January 2012.
(f)The applicant’s summary of argument filed 21 February 2012.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Goleby & Goleby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC10451 of 2009
| Mr Goleby |
Applicant
And
| Ms Goleby |
Respondent
REASONS FOR JUDGMENT
The applicant, who I will call “the husband”, resides in Australia. He pays “maintenance” pursuant to an order made by the Supreme Court of South Africa more than 13 years ago, on 28 January 1999.
The husband moved to Australia in 2004. The order just referred to was registered for collection with the Child Support Agency in this country on 17 January 2009.
The respondent, who I will call “the wife”, continues to reside in South Africa, as do the parties’ two children who are now both adults aged 24 and 21 years old respectively. The elder of the two has completed a degree and is currently undertaking employment. She is, then, effectively self-supporting. The younger of the two children is currently in her third year of a degree.
By an application made initially to the Federal Magistrates Court and transferred to this Court, the applicant seeks a discharge of all arrears owing to the Child Support Agency and a variation of the order giving rise to that liability.
Procedural Issues and the Orders Sought
The order of the South African court earlier referred to is, in terms, that “the Deed of Settlement [between the parties] is made binding”. The Deed of Settlement is annexed to the orders.
Relevantly, the Deed provides that the husband shall pay “maintenance to [the wife] in the sum of R3000.00 (3000 Rand) per month” and, in addition, “pay maintenance to [the wife] in the sum of R2000.00 (2000 Rand) per month per child. The order also provides that the maintenance referred to “shall escalate annually at the rate of 10%”. The Deed goes on to provide for the payment of a number of expenses, including “medical aid” and “schooling”.
It might be noted that, in Australia, despite each of the children now being adults, the younger child’s circumstances might potentially give rise to a claim for adult child maintenance (s 66L, Family Law Act 1975 (Cth) (“the Act”)).
The husband had run his own business in South Africa, but deposes to “the majority of [his] client’s businesses … being bought out and taken over by a large conglomerate or downsizing”. He deposes that, as a result, he experienced a significant reduction in income and there was the potential for his business to spiral downward.
It was, I gather, that circumstance that prompted his move to Australia in May 2004. The husband’s contentions in respect of his financial position in this country form the basis of the application made by him and will be referred to in more detail below.
This matter has a lengthy, and not entirely comprehensible, procedural history since the husband’s application was initially filed in the Federal Magistrates Court in November 2009 and transferred to this Court on 16 February 2010. That history is largely irrelevant for present purposes, but it is necessary to note the terms of an order made by a South African Court on 11 September 2011.
The husband deposes that “on 7 September 2011 my South Africa lawyers attended the Maintenance Court for the District of Randburg, South Africa, regarding my application in that jurisdiction”. A copy of the order made by the South African court on that date is exhibited to the husband’s affidavit. It provides relevantly as follows:
Applicant and Respondent before court.
RULING:
Whereas:
The Applicant has made application to the court in Australia for the amendment, variation or discharge of an existing maintenance order in favour of the Respondent.
And
The court in Australia has sought a directive from this court in respect of the proceedings.
The ruling of this court is:
1.That the matter be dealt with by the relevant court in Australia with jurisdiction over [the husband] in terms of section 4 of the provisions of the Reciprocal Enforcement of Maintenance Orders Act 80/1963 in terms of which Australia is a designated country under section 2 of the said Act.
(2)That the court in Australia enquire into and hear the Application of [the husband] without notice to the Respondent [wife] who falls within the jurisdiction of this court.
(3)That the court in Australia is empowered by the provisions of Section 4 of Act 80/1963, to enquire into the financial circumstances of the Applicant [husband] and hear evidence and accept exhibits from the Applicant [husband], and thereafter made a provisional order as to the amendment, variation or discharge of the maintenance order granted by the Witwatersrand Local Division of the High Court of South Africa on 28th January 1999, in respect of the maintenance portion of the order only.
(4)That the Australian court, after concluding the enquiry into the Respondent’s [sic] circumstances, remit to this court a certified copy of the proceedings thereof, including any affidavits, exhibits, and a transcription of any evidence taken into account by that court, and a copy of the provisional order made by such court.
(5)That the maintenance officer at Randburg, on receipt of such proceedings, shall cause the Respondent [wife] to be subpoenaed to attend this court for a hearing into her financial circumstances and the needs of the children, after which this court shall confirm or amend the order of the Australian court.
SIGNED AT RANDBURG ON THIS 7TH DAY OF SEPTEMBER 2011.
An Amended Application was filed by the husband on 2 December 2011. Subsequently, the husband filed, on 27 January 2012, a Minute of the Orders sought. The orders sought are as follows:
1.That pursuant to s 136 of the Child Support (Assessment) Act 1989 (Cth), order 2 of the orders made by the High Court of South Africa (Witwatersrand Local Division) on 28 January 1999 in case […] be varied such that Part 3 (Maintenance) of the Agreement of Settlement is set aside.
2.In place thereof that pursuant to s 137 of the Child Support (Assessment) Act this Honourable Court assess an appropriate amount of child support payable by the applicant to the respondent in accordance with Part 5 and/or s 116 of the Child Support (Assessment) Act 1989 (Cth), or by such other method as allowed and/or appropriate.
3.That all arrears owing to the Child Support Agency Australia be discharged or varied consistent with any varied assessment made by this Honourable Court, and having regard to amounts previously paid to the respondent on account of child support.
4.That the respondent pay the applicant’s costs of and incidental to this application.
5.Any further or other orders that this Honourable Court deems meet.
6.That a copy of any orders made by this Honourable Court in this application be remitted to the Maintenance Court for the District of Randburg, South Africa, in accordance with the orders of that court made on 7 September 2011.
As will emerge, there are in my view, difficulties with the terms of the orders sought.
Exhibit 1 in the proceedings is a letter from solicitors acting on behalf of the wife in South Africa dated 27 January 2012. That letter acknowledges (at least implicitly) receipt of the Amended Application and also indicates (again at least implicitly) that the husband’s Affidavit had also been received.
That letter includes the following:
6.On 7 September 2011 the Randburg Magistrates Court in South Africa made a ruling that, the Court in Australia having jurisdiction over the Applicant [husband] must hear the application of [husband] without notice to the Respondent [wife] who falls within the jurisdiction of the Randburg Magistrates Court.
7.In terms of this order then your court [that is to say, this Court] are to conduct the trial and enquiry in the absence of our client (the Respondent [wife]) and without notice to [the wife].
8.The ruling by your court will then be relayed to the Randburg Magistrates Court in South Africa.
9.The Randburg Magistrates Court will then conduct a hearing without notice to and in the absence of the Applicant [husband].
10.In the hearing the Randburg Magistrates Court will hear evidence from the Respondent [wife] and take into account the Judgment passed by your Courts.
11.Only a South African court and in this instance the Randburg Magistrates Court will have any power to amend an order made by a South African Court.
12.We will however book a phone call to court if that will afford our client a chance to lay some important facts before the court.
In the unusual circumstances of this case, I permitted the solicitor for the applicant husband to effectively give evidence of his conversation with the solicitors for the respondent. The husband’s solicitor asserts that the solicitors for the respondent wife confirmed that they had made a positive decision not to be involved in these proceedings in Australia by reason of the position outlined in their letter to which I have just referred. It seems that, subsequent to the letter, they did not seek to avail themselves of the opportunity to appear by telephone as foreshadowed in that correspondence.
I am satisfied that the wife has knowledge of these proceedings and (I infer), by reason of the particular nature of these proceedings, including the fact that a hearing in South Africa is contemplated, has decided to not participate within them. Her position is understandable and nothing arises from it.
The Relevant Regulations and the Application
It is necessary to refer in some detail to the Australian statutory framework which governs the instant application.
Regulation 36 of the Family Law Regulations 1984 (Cth) (“the Regulations”) provides:
Party in Australia may apply to vary etc overseas maintenance order, agreeement or liability
(1) This regulation applies to:
(a)an overseas maintenance order or agreement registered in a court before 1 July 2000; and
(b)an overseas maintenance entry liability or a registered maintenance liability.
(2) Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.
(3) An application may be made by:
(a) the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or
(b) the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or
(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4) The law to be applied to determination of an application is the law in force in Australia under the Act.
The order in the instant case was not registered in a Court prior to 1 July 2000.
A “registered maintenance liability” is defined in Regulation 24A to mean “a registrable maintenance liability under s 18A of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”). Section 18A of the Registration Act provides that:
(1) A liability is a registrable overseas maintenance liability if it is:
(a)A liability of a parent … of a child to pay a periodic amount for the maintenance of the child; and
(b)An overseas maintenance liability.
(2)A liability is a registrable overseas maintenance liability if it is:
(a)A liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage; and
(b)An overseas maintenance liability.
…
(4)A liability is a registrable overseas maintenance liability if it is an amount that is in arrears under a liability mentioned in subsection (1) or (2) …
“An overseas maintenance liability” is defined, relevantly, in s 4 of the Registration Act as:
… a liability that arises under:
(a)a maintenance order made by a judicial authority of a reciprocating jurisdiction; or
(b)a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction …
South Africa is a reciprocating jurisdiction for the purposes of the Registration Act.
Although the order in the instant case gives effect to an agreement between the parties, and, in terms, is given effect by being “made binding”, it nevertheless seems to me that the relevant liability of the husband here becomes an “overseas maintenance liability” by reason of a “maintenance order” being made by a judicial authority in South Africa.
I find that the liability of the husband provided for in the South African order is a “overseas maintenance liability” for the purposes of the Registration Act.
As has been seen, the South African order provides (by reference to the Deed which forms part of it) that the husband is liable to pay a periodic amount for the maintenance of his children and also liable to pay a periodic amount for the maintenance of his former wife. Accordingly, the husband’s liability is (subject to a matter shortly to be addressed) a “registrable overseas maintenance liability” for the purposes of s 18A of the Registration Act and (again subject to a matter to be discussed) is, accordingly, a “registered maintenance liability” to which Regulation 36 of the Regulations applies.
It will have been noted that Regulation 36 provides for an application to be made to a court of competent jurisdiction for an order discharging, suspending, reviving or varying an order or liability to which the Regulation applies. The husband is a person “against whom the order was made” within the meaning of Regulation 36(3) and, accordingly, he may make the application.
It will also have been noted that Regulation 36(4) provides that the law to be applied “to determination of an application is the law in force in Australia under the Act.”
Regulation 38 of the Regulations provides that an order made under Regulation 36 is provisional.
Regulation 38A provides:
(1)This regulation applies if an order mentioned in sub-regulation 38(1) is provisional.
(2) The order is of no effect:
(a) Unless it is expressed to be provisional; and
(b)Unless and until it is confirmed (either with or without modification) by a competent court of [South Africa] (the foreign court).
(3)The order may be made even though the respondent has not been served with the application and has not consented to the order proposed in the application.
(4)The Registrar of the court making the order must send a certified copy of the order, together with a copy of the depositions of the witnesses, to the Secretary.
(5)The Secretary must send a certified copy of the order, together with a copy of the depositions of the witnesses, to the foreign court.
(6)If the foreign court confirms the order (with or without modification), the order has effect in Australia as so confirmed.
It will have been observed that the husband’s application, as framed, refers to ss 136 and 137 of the Child Support (Assessment) Act 1989 (Cth). In my view, those sections have no application to the instant case. The power to discharge or vary arises by reference to Regulation 36 and by virtue of the husband’s liability being a “registered maintenance liability”.
Paragraph 3 of the orders sought can be seen to be applicable to Regulation 36; it seeks an order discharging all arrears owing pursuant to the order or, alternatively, a variation of the South African court’s “assessment”.
The Terms of the South African Order
The order’s payments of periodic amounts are contained at clauses 3.1.1 and 3.1.2 of the Deed in these terms:
3.1 The [husband] shall:-
3.1.1pay maintenance to the [wife] in the sum of R 3000.00 [THREE THOUSAND RAND] per month.
3.1.2pay maintenance to the [wife] in the sum of R2 000.00 [TWO THOUSAND RAND] per month, per child; …
The Deed provides for annual CPI increases to those amounts (Clause 3.4) and, as earlier referred to, for the additional payment of “school fees” and “medical aid”.
The Deed refers both to “minor children” (eg Cl 2.1; 2.3; 3.5.1; and, 3.5.2) and also to “child” or “children” (eg Cl 3.1.2; 3.5.2.1; and, 3.5.2.4). Indeed, each of the expressions “children” and “minor children” are used in different subparagraphs of the same clause (Cl 3.5.2) dealing with “Medical Aid”.
Neither expression is defined and the context in which those expressions are each used does not admit of any difference in meaning between the two. It seems plain to me that each bears the same meaning – ie a person under 18 years of age.
It should be observed that the Deed/order makes no provision for payments to either child to extend beyond 18, for example in respect of their education. Indeed, the opposite intention arguably appears manifest:
3.5.1.3All fees in respect of university and/or post-school education, including books and equipment in respect of the minor children. [emphasis added]
Neither does the Deed/order provide for any specific circumstances in which future payments of maintenance to the wife would, or would not, apply.
The parties’ eldest daughter turned 18 on … December 2005. Under Australian law, in the absence of specific provision or separate application, the liability of the husband in respect of her “maintenance” (as it is called in the Deed – Cl 3.1.2) ceased on … December 2005 (that is, about 6½ years ago).
The parties’ youngest daughter turned 18 on … August 2009. The evidence suggests that there may be grounds for the making of an application pursuant to s 66L of the Act. (She is, apparently, a full-time student). But, again, no such provision is contained in the Deed/order and no such application has, on the evidence before me, ever been made. The husband’s liability to pay her “maintenance” ceased on … August 2009 (that is, more than 2½ years ago).
The amount payable pursuant to the Deed by way of spousal maintenance is R3000 per month (currently AUD$368 per month) indexed over 13 years.
Before looking to the amounts paid by the husband (whether as recorded by the Child Support Agency or by him) and his current position, I first observe that:
·The parties have been separated over 14 years and divorced for more than 13 years.
·The parties have been separated almost as long as they were together.
·The parties’ children were aged about 12 and 8 when the parties divorced; they are now each adults.
·The parties’ eldest daughter has completed a degree and is currently employed.
·The parties’ youngest daughter is in her third year of a degree.
·The agreement, now made 13 years ago, otherwise effected a final financial settlement as between the parties (as its terms record).
·The husband left South Africa eight years ago and has had little communication with the wife (or, I gather, his daughters). He describes a less than amicable level of communication with his former wife.
·The husband has a partner; they have been in a relationship for about 8 years.
·The husband knows nothing of the wife’s current relationship status or her current financial circumstances, save that, in respect of the latter, the husband deposes to her telling him the telephone conversation that she was earning R30,000 per month.
The Payments Made and Their Context
The husband deposes to having a debt of $154,613.79 owing to the Child Support Agency “as outstanding child support”. That amount is recorded in a summary document from the Child Support Agency which records the arrears (and penalties of around $44,400) as at December 2011. That same document, exhibited to the husband’s affidavit, reveals “child support” payable of $2,237.12 per month (that is about R18,200 per month). It will be recalled that the total maintenance liability for the wife and children together in 1999 was R7,000 per month (or, at today’s exchange, about AUD$860).
A schedule prepared by the husband, which, he asserts, records every payment made by him from the date of registration of the Order in April 2005 until December 2011 including the applicable exchange rate at the time (Exhibit DG8 to his affidavit) reveals payments in an amount equivalent to, or akin to, the ordered periodic amount extending beyond the ages of majority of each daughter, respectively December 2005 and August 2009. In addition, specific payments attributed to school fees extend beyond August 2009. Monthly payments of $7,000 were being met monthly throughout 2010.
There is no evidence before me from which I can conclude whether the monthly amount currently assessed (AUD$2,237 or R18,200) is the indexed amount of the total of R7,000 per month initially provided for in the orders. I do not know, for example, the applicable interest rate pursuant to Cl 3.4 of the Deed.
At 10% (one of the two possible interest rates in any given year pursuant to Cl 3.4), over 13 years, R7,000 would amount to about R24,000 (or currently, about AUD$3,000 per month). Payment of the periodic amount provided for in the Deed/order for the wife and one child would amount to about R17,300 or about AUD$2118 – a figure not significantly different to the amount referred to in Exhibit DG20.
Either figure is certainly different to that arrived at if the same calculation is performed in respect of the periodic amount payable to the wife alone (R10,350 per month or about AUD$1,250 per month).
The husband deposes, by reference to the detailed “spreadsheet” referred to below, that he has expended R630,142 pursuant to the Deed/orders between April 2005 and December 2011. Obviously enough, the exchange rate has fluctuated, at times significantly, during that time (between a low of 4.39 and a high of 8.28 Rand per AUD$1). The Australian dollar equivalent of the total amount spent by the husband is $105,458 as calculated by him by reference to the applicable exchange rate at the time of each individual payment.
Averages should, of course, be treated with caution in the circumstances just outlined, but, in the period contained in the “spreadsheet” of about 6½ years – during almost the whole of which one child-recipient of maintenance was an adult – the husband has averaged payments of about R9,000 per month, inclusive of the payment of school fees and other such amounts other than the periodic payments.
Variation of Maintenance
To the extent that the liability currently payable to the Child Support Agency does not otherwise reflect same, an order should be made discharging the orders for maintenance in respect of Ms F (Cl 2.1.1 of the Deed) as and from … December 2005 and in respect of Ms S (Cl 2.1.2 of the Deed) as and from … August 2009.
The variation or discharge of the order for maintenance for the wife is governed by s 83 of the Act. That section provides that if there is an order in force with respect to the maintenance of a party to a marriage provides relevantly:
…
the court may …
(c) discharge the order if there is any just cause for so doing;
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
…
(f)subject to subsection (2) vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
Section 83(2) goes on to provide that a court shall not make an order increasing or decreasing the amount to be paid unless it is satisfied:
(a) that, since the order was made or last varied:
(i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii)the circumstances of the person liable to make payments under the order have so change;
…
as to justify its so doing;
…
(ba)in a case where the order was made by consent – that the amount ordered to be paid is not proper or adequate;
…
In Vakil & Vakil (1997) FLC 92-743 the Full Court held:
5.23Having regard to all of that authority we think that the above-quoted dicta of Lindenmayer J in Lutzke … which appear to have received no judicial criticism over the last eighteen years, probably define the concept with as much precision as it is possible to give it in this context. Thus we conclude that, having regard to the current wording of s 83(7) … the question whether there is “just cause” for discharging an order, including one made in a reciprocating overseas jurisdiction and registered in Australia … is to be determined as an exercise of judicial discretion by reference to notions of what would be regarded as “right” and “proper” in Australia, having regard (inter alia) to the provisions of ss 72 and 75 of the Act. However, we are of the view that the effects of s 83(7) is not such as to preclude regard also being paid to provisions of the Act other than ss 72 and 75, to the extent that they may be considered relevant in the circumstances of a particular case, and that may include, for example, s 81 and s 43(a). [Emphasis in original]
It seems to me that the provisions of s 81 of the Act assume some significance in the instant case when regard is had to the fact that the original order was made some 13 years ago, that the period of separation is now almost as long as the marriage, and that the agreement to pay periodic and other amounts form part of an agreement which, by its terms, is designed to “settle all issues between [the husband and wife]” on the basis set out in the agreement.
The passage from the Full Court just referred to was cited with approval in Wreford & Caley (2010) 43 Fam LR 1 at [58] per Bryant CJ and Bennett J. Their Honours also cited with approval the judgment of Walters FM in Mathieson & Hamilton [2006] FMCAfam 238. His Honour’s reference (at [185]) to the Court having a discretion “not only as to the period in respect of which accumulated arrears of maintenance or child support be enforced, but as to whether they should be enforced at all” was specifically approved as were the considerations suggested by his Honour as being relevant to the “unfettered” discretion vested in the Court in considering whether to enforce arrears.
The matters referred to in those decisions, and, indeed, in s 83 itself, are rendered more problematical in circumstances where, as will frequently be the case in the making of a provisional order under the Regulations, little or nothing is known of the financial or other circumstances pertaining to the payee or payees. The extent of the husband’s knowledge about the wife’s circumstances is restricted to that which has been referred to above.
The husband refers to what he alleges is the disparity in what would be called in Australia the “property settlement” effected between the parties pursuant to the Deed. It seems to me, however, that some 13 years after that agreement was made and given the force of an order that it is not appropriate for that factor to loom large in the exercise of the discretion.
Husband’s Capacity
The husband deposes to a significant decline in his business and consequent income during the period subsequent to the order being made and his decision to move to Australia. That latter decision was, I gather, prompted by those same economic considerations. A pension previously held with “Old Mutual” was, the husband deposes, cashed in by the wife for R44,272.98 on 6 June 2006. I gather that the amount so described is in the nature of superannuation.
Initially upon settling in Australia, the husband obtained an employed position earning about $34,000 gross per annum. After 5 months his employment was terminated and he commenced operating as a sole trader in January 2005. The husband deposes to taking approximately 12 months to make any profit from the business. Exhibited to the husband’s affidavit are his taxation returns for the financial years ending 30 June 2005 through 30 June 2011. His taxable income during that time has varied from a low of AUD$13,125 (R107,191.86) to a high of AUD$38,841 (R317,214.447) in the latter year. His taxable income has remained relatively static in the region of $30,000-$40,000 (R245,010 – 326,680) for the last five financial years from 30 June 2007 until 30 June 2011.
The husband lists his fixed expenses at $479 comprising income tax, rental payments of $390 per week and motor vehicle registration expenses at $12. Other variable weekly expenses total $357 and nothing contained within the list of expenses at paragraph 53 of his affidavit strike me as being anything other than reasonable.
The only property to which the husband deposes are household contents valued at about $500 and tools valued in the same amount. He has superannuation interests of $9745 as at 5 January 2012. His liabilities consist of legal fees (of about $22,420), and a relatively small Mastercard debt.
The husband also discloses that he is the beneficiary of a trust together with his de facto partner and his daughters; the distributions received from the trust form part of the taxable income earlier referred to.
The husband’s Financial Statement sworn on 27 January 2012 deposes to the amounts just referred to. Also, both the husband’s affidavit and that financial statement depose to a number of debts owed to his partner. He deposes that she has made loans to him primarily so as to meet legal expenses and make payments pursuant to the order under discussion. Those loans total just short of $8,000 and the breakdown of the amounts constituting that total are contained in Exhibit DG21 to the husband’s affidavit.
The husband is 56 years old, born in 1955. In 2008 he was diagnosed with prostate cancer and on 5 April 2010 underwent a radical prostatectomy.
The taxation returns exhibited to the husband’s affidavit reveal a history of income earning that is consistent and would be described as extremely modest by modern Australian standards. He resides with his current partner in a rental property. She is employed and earns approximately $68,000 per annum.
The property and financial resources of the husband are meagre. I consider that the husband’s income and financial resources are barely sufficient to enable him to support himself to a standard of living that in all the circumstances is reasonable.
In addition to those matters directly relevant to s 75 of the Act, I also take account, by reference to s 75(2)(o) and in respect of the discretion pertaining to the potential discharge of arrears, a number of additional matters:
·I regard it as being of particular significance that the orders were made now a very long time ago;
·that the parties now live in different countries and the husband has re-established a life for himself in this country;
·that the wife and the parties’ children have been provided for despite modest financial circumstances on the part of the husband;
·I regard it as particularly significant that the husband has continued to meet obligations, whether by way of periodic payment or other specific payments, beyond those which he would lawfully be obliged to meet in respect of children in Australia who have attained the age of 18 years;
·I consider it of particular importance that the parties have now been separated almost as long as they were married.
The provisions of s 81 of the Act have, in my view, considerable significance. Whilst the law recognises that the need of a party for maintenance and the capacity of the other party to pay maintenance might be seen as an exception to the “clean break” principle enunciated in s 81, nevertheless where such a lengthy period of time has elapsed between the end of the relationship and the consideration by the court of what is “proper”, s 81 looms large. At some point it is in my view proper for the parties to a long dead relationship to be able to get on with their lives independent of the other.
That is particularly so where, as here, neither of the parties have responsibility for any children under the age of 18 years of the relationship and, specifically, the children are now well into their adulthood and have commenced upon the path of carving commendable independent lives for themselves. (Of course, the position might well be otherwise where the facts and circumstances were to the effect that the wife was in parlous financial circumstances and the husband, by way of contrast, was possessed of very significant income, assets and resources.)
Where, as here, those earlier circumstances apply and combine with the fact that the husband has suffered (and apparently continues to suffer) from ill health, his age and current domestic and financial circumstances, I am persuaded that it is proper to both discharge the order and the arrears due under it.
A very significant consideration in the exercise of my discretion is the amount that has been paid by the husband pursuant to the order, including amounts attributable to children who had attained adulthood, which such payments were made despite the very modest financial circumstances and health difficulties to which I have just made reference.
In respect of the amounts paid by the husband, I acknowledge that the amounts paid may not have taken account of the annual increase clause provided in the agreement. For example, I have already made reference to the fact that during 2010 consistent monthly payments of R7,000 were made. It is, it seems to me, no coincidence that this is the total amount payable pursuant to the Deed (albeit without reference to the annual increase clause to which I have made reference).
It is not possible to discern what amounts would have been payable in respect of the children until they each reached adulthood that might form part of any arrears that have accumulated, noting that some $40,000 or more of those arrears comprise penalties. However, I am tolerably satisfied that such amounts as the husband has paid encompass amounts which ought properly have been paid in respect of “maintenance” for each of the children until they turned 18. That factor is also an important consideration in arriving at an ultimate conclusion about discharge of any arrears.
The husband also seeks an order that the wife pay his costs of and incidental to the application filed by him on 27 January 2012. In the circumstances of this case, which include the absence of evidence of the wife’s financial circumstances and the fact that the husband seeks from this Court a concession, namely the discharge of a debt that has accrued, I do not propose to make an order for costs.
Conclusion
In all of the circumstances of this case, I am persuaded that it is just and otherwise proper that the order for spousal maintenance ought be discharged.
I have previously indicated that the orders in respect of maintenance for the children should each formerly be discharged as and from the respective dates of majority for each of the two children.
I am also persuaded that in the exercise of my discretion, it is proper to discharge all arrears owing pursuant to the orders and I intend to so order.
I will also make relevant procedural orders as required by the Regulations. I order accordingly.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 22 May 2012.
Associate:
Date: 22 May 2012