Heethuis & Van Genderen

[1998] FamCA 2004

[1998] FamCA 2004

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA

AT BRISBANE

No. B1569 of 1989

IN THE MATTER OF:

HEETHUIS

HUSBAND
AND:

VAN GENDEREN

WIFE     

BEFORE THE HONOURABLE JUSTICE MAY

Date of Hearing:  2 December 1998

Judgment Delivered:  2 December 1998

Appearances:  Mr Jordan, solicitor, of Messrs Bowdens in the State of Queensland appeared on behalf of the HUSBAND.

Mr Forrest of counsel instructed by Legal Aid Queensland  in the State of Queensland appeared on behalf of the WIFE

R E A S O N S   F O R   J U D G M E N T

HER HONOUR:  An order was made on 6 September 1989 in the Family Court at Brisbane in relation to a number of matters which included maintenance for children, R. born 19 April 1976, and L. born on 9 November 1978, that the wife pay the sum of $50 per week.  Other orders were also made at that time in relation to contact between the mother and those two boys.  The parties had another child, N., who was born on 15 September 1994, she was to live with the mother, and the father to have contact.

The wife in these proceedings brought an application to the Magistrate Court at Maroochydore seeking that all arrears of maintenance payable for R. and L. under that order be discharged.  She filed affidavits in support of that application. The magistrate heard the matter on 15 July 1998 and dismissed her application.  The principal reason was his reliance on Rothstein v the Child Support Registrar (1994) FLC 92-490 for his opinion that it was not possible to bring such an application, the boys being over the age of 18, and his interpretation of the Family Law Act, that it was not possible to seek such an order.

It is from that order that the wife has filed a Notice of Appeal dated 11 August 1998.  In this matter, it seemed appropriate to have the initial argument heard first, because as Mr Forrest correctly observed, should that be successful, it would not be necessary for me to hear the balance of the matter.

After the order was made in the Family Court, the husband had the order registered with the Child Support Agency.  I am told that the arrears are now $29,000 and the late payment penalty is $17,000, so that the wife owes a debt to the Commonwealth of $46,000.  It is from those orders that she seeks a discharge of the arrears.   I am told by Mr Forrest that the wife did not pay any moneys in relation to the order for maintenance, and that she did not take steps to complete any attempts to discharge the arrears.

The only question is: does this Court and did the magistrate have power to discharge the arrears.  Section 66S provides as follows:

“MODIFICATION OF CHILD MAINTENANCE ORDERS.

66S(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 under the rules of court; and¼..”

The question is whether “there is in force an order.”  The reason for that question is that the children are now over the age of 18, R. being 22, and L. being 20. Section 66T provides:

“As stated in subsection 66L(3), a child maintenance order in relation to a child stops being in force when the child turns 18, unless the order is expressed to continue in force after then.” 

This order did not do so, and as one can see immediately, the words in Section 66T are the same as Section 66S by reference to the words "is in force an order."

Reference was made to Rothstein, a single judge decision of Fogarty J in 1994.  One of the questions in that case was that a maintenance order which had been made in 1985, a consent order having been made, whether it was possible on appeal from a decision of the Child Support Registrar for the Registrar to refuse to register the order.  The order related to a child who was over 18, then 19, and the order was not expressed to continue after the child attained 18 years.

A question was, had the original order expired pursuant to Section 66(H)(3), and not capable of being varied?  Particularly at page 81-096, his Honour said:

“However, it appears to me that point 4” (which was that point) “does create difficulties so far as the appellant is concerned.  The 1985 order was an order that was made before the child attained the age of 18 years.  Section 66H(3) establishes that such an order ceases to be in force on the day on which the child attains 18 years of age unless the order is expressed to continue in force for a period ending after that date.  The original order ceased to be in force on 26 February 1992 (D's 18th birthday) as it was not expressed to continue in force for a period after that day. 

The order made by the Family Court on 4 March 1993 was that the 1985 order be “varied”.  However, by that time, the original order had ceased to exist.  In my view, the Court could not make that order, that is, “vary” an order which had effectively expired well before that time.”

That case, it seems although slightly different from the present, is certainly persuasive. It was argued by Mr Forrest that it could be distinguished on the facts, and that the question of whether the arrears can now be discharged is not just a matter of reference to Section 66S.  He referred also to Section 66G, with the heading. “COURT'S POWER TO MAKE CHILD MAINTENANCE ORDER” which provides:

“66GIn proceedings for a child maintenance order, the court may, subject to this Division, make such child maintenance order as it thinks proper.”

The question is this application as sought by the wife a child maintenance order?  The definition section, Section 4, refers to Section 64B, and my attention was particularly drawn to Section 64B(5), which provides:

“To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(c), the order is a child maintenance order.”

2(c) provides:

“A parenting order may deal with one or more of the following:

¼.

(c)maintenance of a child.”

I cannot see in this case where the children of the parties, R. and L. are now 22 and 20, that could possibly apply, nor do I accept that the application for discharge is really an application dealing with the maintenance of a child. 

Further, it was submitted that reference should be made to Section 66P being the “GENERAL POWERS OF THE COURT”, particularly 66P(1)(j), where the Court may “make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (i)) that it considers appropriate.  Does that section provide the Court with some discretionary power in addition to - or to detract in some way - from what is provided in Section 66T?  In my view, Section 66T and Section 66L are very clear, and provide that the Court may only make such orders to vary the order where the order is still in force.

As the order is no longer in force, the two boys now being 20 and 22, in my view, it is not possible for such an application to be made, the only result then is that I must dismiss the appeal.
¼..
Having determined that the appeal should be dismissed an application was made for costs on behalf of the respondent.  The particular points raised as to why I should make an order for costs, it being necessary that there be some reason, because costs do not follow the event in this court, were that the appeal was unsuccessful, that the husband therefore has been placed in the position of having to incur expense to respond to the appeal; that his financial position is not a particularly strong one, and that therefore such an order should be made.

It is not entirely clear in this case, that an order for costs should be made, as the legal problem was not entirely obvious, and is quite a difficult one.  However, the outcome is not a discretionary matter, and I conclude that the provisions of the Act were quite clear. 

Mr Forrest on behalf of the wife referred to the fact that she has the assistance of Legal Aid, and that she is in very poor financial circumstances.  She apparently has recently separated from her de facto partner and has young children to care for.  I conclude therefore that she has no capacity to pay an order for costs.  However, in my view, that alone is never conclusive.  She was not ordered to pay the costs on the last occasion by the magistrate.  It seems to me that in this case an order for costs should be made, because she has been now, on two occasions, entirely unsuccessful. The background to the matter is that clearly, although she had to support one child herself, the husband supported the other two children.  There has been significant delays in her, bringing this application.

The failure is entirely because she brought the application after the two children turned 18.  Exercising my discretion I order that the appeal be dismissed and the wife pay the husband's costs of an incidental to the appeal, failing agreement as to the quantum of those costs, to be taxed within 28 days. 

CHILD MAINTENANCE – Arrears – Discharge of – Children over 18 years

Family Law Act 1975 ss. 64B; 66G; 66S; 66T

Rothstein v The Child Support Registrar (1994) FLC 92-490 cited and followed

This was an appeal from a decision of the Maroochydore Magistrate’s Court whereby the wife’s application for the discharge of arrears of maintenance was dismissed.

On 6 September, 1989 orders were made in the Family Court that the wife pay $50 per week by way of maintenance for two of the parties’ children, now aged 22 and 20, who resided with the husband.  That order was subsequently registered with the Child Support Agency and, as the wife has made no maintenance payments, she has accrued arrears of $29,000 in addition to $17,000 in late penalties.

On 15 July, 1998, the wife’s application to the Maroochydore Magistrate’s Court for the discharge of all arrears of maintenance was dismissed.  Relying on Rothstein v The Child Support Registrar (1994) FLC 92-490 the Magistrate held it was not possible for the wife to bring such an application as the children were over 18.

The wife’s notice of appeal against that decision was filed on 11 August, 1998 and came before the trial Judge on 2 December, 1998.

Held, dismissing the appeal:

The question whether the Court, or a Magistrate, has the power to discharge arrears of maintenance relating to children over the age of 18 depends on whether “there is in force an order” in accordance with s.66S.  As s.66T stipulates that unless expressly provided, child maintenance orders cease to be in force when the child turns 18, the order in question can no longer be regarded as being “in force” having regard to the ages of the children concerned and therefore there is no power in the Court to vary the maintenance order.

The Court’s general powers contained in section 66P do not amount to a discretionary power to add or detract from s.66T and accordingly the Court may only vary a maintenance order where the order is still in force.

Despite the provisions of s.64B, the wife’s application for discharge of arrears is not an application dealing with the maintenance of a child and is therefore not a matter in which orders can be made.

Despite her financial circumstances, the wife has been wholly unsuccessful on two occasions and she ought pay the husband’s costs of the appeal.

REPORTABLE