Howarth and Howarth and Anor (No.2)
[2017] FCCA 1949
•25 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOWARTH & HOWARTH & ANOR (No.2) | [2017] FCCA 1949 |
| Catchwords: SPOUSAL MAINTENANCE – Application pursuant to Reg. 36 of the FamilyLaw Regulations to discharge an overseas spousal maintenance order for just cause – whether the Australian court is a clearly inappropriate forum – whether the applicant has established just cause. |
| Legislation: Child Support (Registration & Collection) Act 1988, ss.18A, 30 |
| Cases cited: Henry & Henry (1996) 185 CLR 571 |
| Applicant: | MR HOWARTH |
| First Respondent: | MS HOWARTH |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | NCC 3044 of 2015 |
| Judgment of: | Judge Terry |
| Hearing date: | 4 October 2016 |
| Date of Last Submission: | 4 October 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 25 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bithrey |
| Solicitors for the Applicant: | Everingham Solomons |
| The First Respondent: | In Person |
| Counsel for the Second Respondent: | Ms Rayment |
| Solicitors for the Second Respondent: | Mills Oakley |
ORDERS
NOTING THAT the court is satisfied that the Federal Circuit Court of Australia is not a clearly inappropriate forum to resolve the dispute the amended initiating application filed by MR HOWARTH on 19 July 2016 seeking discharge of the orders for child support and spousal maintenance made by the (omitted) County Court (United Kingdom) on 11 January 2006 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Howarth & Howarth & Anor (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3044 of 2015
| MR HOWARTH |
Applicant
And
| MS HOWARTH |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Mr Howarth is the subject of action by the Child Support Registrar to collect arrears of child support, arrears of spousal maintenance and ongoing spousal maintenance arising out of an order made by the (omitted) County Court in the United Kingdom on 11 January 2006.
Mr Howarth ceased making payments pursuant to the order in June 2009 and left the United Kingdom later that year. He was found in Australia in 2014 and pursuant to reciprocal arrangements between the United Kingdom and Australia the Child Support Registrar was asked by its counterpart in the United Kingdom to take action to collect monies owing under the order.
As at 7 October 2016 Mr Howarth’s debt stood at $527,516.02. However his wages are being garnisheed at the rate of $228.00 per week and his obligation pursuant to the order is to pay $4,540.80 per month so the debt will undoubtedly be much higher now.
Pursuant to r. 36 of the Family Law Regulations a person who is the subject of action in Australia to collect an overseas maintenance debt may apply to this court to have the overseas order varied, suspended, revived or discharged. Mr Howarth has applied pursuant to this regulation to have both the child support order and the spousal maintenance order discharged to the effect that he will owe no arrears and will have no ongoing liability to pay spousal maintenance.
The respondent Ms Howarth proposes that the court decline to hear the matter on the basis that the Australian court is a clearly inappropriate forum to determine whether the orders should be discharged. Alternatively she seeks to have application dismissed on the basis that Mr Howarth had not made out a case to have either order discharged for just cause.
The Child Support Registrar did not take a position about the clearly inappropriate forum issue or initially about the issue of whether the orders should be discharged but after Mr Howarth’s counsel made submissions on 4 October 2016 Counsel for the Child Support Registrar submitted that the orders should not be discharged.
The evidence
Mr Howarth relied on his amended initiating application filed on 19 July 2016, his affidavits filed on 24 November 2015 and 12 May 2016 and his financial statement filed on 24 November 2015.
Ms Howarth relied on her response filed on 8 April 2016, her financial statement filed on 8 April 2016 and her affidavits filed on 8 April 2016, 5 July 2016 and 8 August 2016.
The Child Support Registrar did not file any documents.
With the agreement of the parties the hearing on 4 October 2016 proceeded by way of submissions.
Background
Mr & Ms Howarth are both UK citizens and are both 53. They married on (omitted) 1985 and they have three children who are now all adults.
The parties separated in 2005 according to the husband’s first affidavit but 2001 or 2002 according to a later affidavit. The wife put the separation at 2001. Nothing turns on which is correct although the earlier date is the more probable.
On 11 January 2006 when the parties were both 42 and the children were 18, 15 and 7, orders were made by consent in the (omitted) County Court requiring Mr Howarth to make the following payments:
i)Child support of £1,100.01 per month for the benefit of their children [X] born on (omitted) 1987, [Y] born on (omitted) 1990 and [Z] born on (omitted) 1998 until they turned 18 or ceased fulltime education at the end of their first tertiary degree, reducing to 75% of this amount when the first child no longer required support and 60% of this amount when the next child no longer required support.
ii)Spousal Maintenance in the sum of £2,200.00 per month during the party’s joint lives or until Ms Howarth remarried or until further order of the court.
Mr Howarth ceased paying in June 2009 and in October 2009 he left the United Kingdom and commenced residing in the United States. In March 2011 he left the United States and came to Australia and he has lived in Australia ever since. He has a visa allowing him to work in Australia and said that he intended to apply for permanent residency.
In late 2014 Ms Howarth found out that Mr Howarth was in Australia and notified the Child Maintenance authority in England who asked the Child Support Registrar in Australia to take action to recover money owed by Mr Howarth.
As is not uncommon in these matters the wheels turned slowly but on 5 October 2015 the UK order was registered for collection with the Department of Human Services.
The Child Support Registrar wrote to Mr Howarth requesting that he pay a lump sum of $49,745.00 together with $1,362.25 per month child support and $4,540.80 per month spousal maintenance. He did not respond to the letter and on 11 November 2015 the Child Support Registrar sent another letter informing him that recovery proceedings would commence on 20 November 2015.
This galvanised Mr Howarth into action and on 24 November 2015 he filed an application in this court seeking an order pursuant to reg. 36 of the Family Law Regulations that the UK orders be discharged.
In or about mid-2016 the Child Support Registrar began garnisheeing Mr Howarth’s wages. He filed an amended application seeking an interim stay of collection but his application was unsuccessful[1] and the garnishee is continuing[2]. A lump sum of about $4,000.00 was also taken from his bank account but it is unclear to me whether Ms Howarth has received that amount.
[1] Howarth & Howarth [2016] FCCA 2869
[2] Exhibit “A”
The applicable law
The (omitted) County Court order is a registrable maintenance liability as defined in s. 18A of the Child Support (Registration & Collection) Act (“the Collection Act”). Pursuant to s. 30(1) of the Collection Act amounts payable pursuant to the order, including arrears, are debts due to the Commonwealth and the Child Support Registrar is entitled to collect them.
The order is also a registered overseas maintenance liability as defined in Reg. 24 of the Family Law Regulations and pursuant to Reg. 36(2) of the Family Law Regulations a party in Australia may apply to have the order varied, suspended, revived or discharged.
Reg. 36(4) provides that the law to be applied to determination of such an application is the law in force in Australia under the Family Law Act.
It is important to note that although the Federal Circuit Court clearly has the power to deal with Mr Howarth’s application to have the (omitted) County Court orders discharged, Reg. 38(1) provides that an order under Reg. 36 is provisional only if the relevant reciprocating jurisdiction is one of the jurisdictions named in the regulation, and the United Kingdom is one of those jurisdictions.
Regulation 38A provides that if a provisional order is made it is of no effect unless and until it is confirmed (either with or without modification) by a competent court of the reciprocating jurisdiction.
Therefore if I make an order discharging either of the United Kingdom orders Mr Howarth may gain some temporary respite from collection but the matter will be referred to the (omitted) County Court and if that court does not confirm the order I make then recovery action will resume against Mr Howarth in Australia.
Mr Howarth’s counsel suggested during submissions that this was unlikely to happen but that is not correct. An example of this happening is referred to in my decision of Salisbury & Landell which involved an order made by a County Court in Alberta Canada. The Canadian province of Alberta is also a jurisdiction which only allows Australia to make a provisional order under Reg. 36.
Mr Salisbury persuaded a Local Court in NSW to vary the order with the effect that arrears of child maintenance were discharged, but the Canadian court did not confirm the order and the Child Support Registrar was again asked to pursue Mr Salisbury. When he learned of this he applied to a Local Court a second time but they transferred the matter to the Federal Magistrates Court as it then was and I declined to vary the order.[3]
[3] Salisbury & Landell [2012] FMCAfam 240
It took several years for all this to play itself out which was most unsatisfactory for everyone involved and the other reality also is that if I make an order which needs to be confirmed Mr Howarth may have no option but to take part in proceedings in the United Kingdom if he wishes to have any order made by this court upheld.
Whether this court is a clearly inappropriate forum in which to resolve the dispute
This court has jurisdiction to consider Mr Howarth’s application, but so too may the (omitted) County Court which made the orders and one possible way to dispose Mr Howarth’s application would be to stay or dismiss it on the basis that this court is a clearly inappropriate forum in which to deal with the dispute. This would compel Mr Howarth to commence proceedings in the (omitted) County Court if he wished to have the orders varied or discharged.
There are a number of High Court decisions dealing with the issue of when it may be appropriate for a court in Australia in the exercise of its discretion to decline to hear a matter because it is clearly an inappropriate forum.[4] In the recent decision of Kent & Kent the Full Court referred with approval to a summary by O’Reilly J in Whung & Whung & Anor of the non-exhaustive list of matters properly to be taken into account when considering whether the Australian Court was a clearly inappropriate forum which she derived from consideration of the High Court cases. The list was as follows:
[4] Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 and Henry & Henry (1996) 185 CLR 571
1.No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
2. If both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.
3. It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
4. Other considerations include the order in which the proceedings were instituted.
5. Other considerations include the stage which the proceedings have reached.
6. Other considerations including the costs that have been incurred.
7. It will be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.
8. It will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.
9. It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”
(Emphasis in original)[5]
[5] Kent & Kent (2017) FamCAFC 157
It was implicit in Ms Howarth’s case and I accept that (omitted) County Court could vary or discharge the existing orders. She produced a copy of a letter which her solicitor sent to Mr Howarth in 2009 inviting him to make such an application while he was still in England, and the spousal maintenance order refers to that order continuing until further order of the court.
Neither Mr Howarth or Ms Howarth provided any evidence about the law which would be applied in England or suggested that they would be advantaged or disadvantaged legally or forensically if an application to vary or discharge the orders was heard in England rather than Australia.
A powerful reason why it would be preferable that proceedings be dealt with in England is that the English courts are not bound to accept the orders made in Australia. If orders are made here both Mr Howarth and Ms Howarth will need to take part in further proceedings in the UK.
Both parties have a connection with the United Kingdom. Mr Howarth is still a UK citizen and he did not suggest that he would be at any disadvantage personally, for example because of language or unfamiliarity with the legal system, if he had to take part in proceedings in England.
All of these factors favour the matter being determined in the UK.
There are however factors which favour Mr Howarth being allowed to continue with his application in this court.
One is that proceedings have already been commenced here quite legitimately.
An interesting issue about the application of the doctrine of forum non conveniens in a case involving an application under Reg. 36 was raised by counsel in Rogers & Rogers, a first instance decision by O’Loughlin J.[6]
[6] Rogers & Rogers [2010]FamCA 1069
In that case the Child Support Registrar had been asked to collect money owing pursuant to a spousal maintenance order which derived from an order made in Ontario Canada, also a place which only allows Australian courts to make provisional orders.
The husband applied pursuant to Reg. 36 to have the spousal maintenance varied. The wife applied for his application to be permanently stayed on the basis that Australia was a clearly inappropriate forum for determination of that application.
O’Loughlin J said as follows:
…it was submitted on behalf of the husband that there should be no room for the principles involved in the concept of forum non conveniens to operate in cases involving the application of reciprocal arrangements for recognition and enforcement of overseas maintenance orders. It was submitted that those arrangements reflect an agreement between countries about how they should recognise each other’s maintenance orders, how they should enforce those orders and how they should vary each other’s orders through their respective court systems. It is further submitted that the forum test has been evolved to deal with determining jurisdiction between competing courts rather than cooperative courts the latter being reflective of the arrangements. It was further submitted that the husband’s legal representatives have been unable to find any cases where the forum test has been applied to any matter involving the reciprocal overseas maintenance legislation, let alone successfully. Learned counsel for the husband also submitted that the circumstances of the present case do not go anywhere near what would be required to satisfy the relevant test for a finding of a clearly inappropriate forum, namely, that continuation of the proceedings would be “oppressive or vexatious” in the sense referred to in Henry that is “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment”. In response to this the wife’s counsel submitted that the arrangements between reciprocating jurisdictions did no more than provide jurisdiction so that proceedings under the overseas maintenance legislation were therefore no different from any other proceedings and that therefore, the principles of forum non conveniens applied.[7]
[7] Rogers & Rogers (2010) FamCA 1069 - Paragraph 64
O’Loughlin J said that he wondered whether there remained scope for a submission that Australia was an inappropriate forum when the application was for an order under Reg. 36 but he did not express a decided opinion about it and determined the matter in the light of the factors distilled from the High Court cases. However in the course of determining the matter he said as follows:
Another relevant matter in my view, is the fact that the husband is endeavouring to use the court process specifically put in place under arrangements between his country of residence and the wife’s country of residence to provide an accessible orderly way for resolving the very sort of international maintenance dispute in which they are involved.[8]
[8] Rogers & Rogers (2010) FamCA 1069 - Paragraph 85
I incline to the view that Reg. 36 does no more than confer jurisdiction and that its existence as part of a reciprocal scheme for the enforcement or international maintenance liabilities does not preclude the operation of the doctrine of forum non conveniens. However I also agree that it is a relevant consideration in the application of that doctrine that a party has commenced proceedings under a scheme agreed upon by different jurisdictions.
Another relevant matter on the side of allowing proceedings to continue here is that while it would be more convenient for Ms Howarth if the proceedings were in the United Kingdom, she can and has taken part in the proceedings in Australia by telephone and she has not to date been disadvantaged by that.
Yet another is that Ms Howarth will have an opportunity in due course to air her issues in the her preferred forum because the orders made here will have to go before the (omitted) County Court.
Finally and perhaps most powerfully the parties acquiesced in the forum non conveniens argument and the application to discharge the orders being deal with together on October 2016 and as a result the Australian proceedings are now at a very advanced stage.
In Oceanic Sun Line Special Shipping Company Inc. v Fay Deane J said as follows:
….The power [to grant a stay] should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him…[9]
[9] Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
In the case before me while the (omitted) County Court would be a convenient forum to determine the dispute I cannot find that the Australian court is a clearly inappropriate forum and I intend to consider Mr Howarth’s application.
Whether Mr Howarth can demonstrate just cause to discharge the orders
Mr Howarth’s application to discharge the child support order and his application to discharge the spousal maintenance order must be considered separately because different provisions of the Family Law Act apply to each.
It is not clear to me how much Mr Howarth owes in respect of unpaid child support as opposed to unpaid spousal maintenance. The Child Support Registrar suggested in submissions in early August 2016 that he owed $49,745.54 child support arrears but the statement tendered at the hearing does not have a breakdown of the amounts owing in respect of each order.
In the circumstances of this case I do not consider that anything turns on the fact that there is uncertainty about the amount owed in respect of each liability.
The application to discharge the child support orders for just cause
Mr Howarth sought the following in relation to the child support order:
That any orders for financial/child support, including any arrears, included in the Minutes of Agreement and Consent Order made on 11 January 2006 in the (omitted) County Court (United Kingdom), of the children of the parties to the said orders being Mr Howarth and Ms Howarth as follows, are discharged:
a) [X] born on (omitted) 1987;
b) [Y] born on (omitted) 1990;
c) [Z] born on (omitted) 1998.
When he commenced proceedings in 2015 [Z] was 17 and he still had an obligation to pay child support for her.
There is reference in the affidavits Ms Howarth filed in 2016 to [Z] attending college but the Child Support statement for the period 20 August 2016 to 16 September 2016 refers only to spousal maintenance and Ms Howarth said during submissions in October 2016 that Mr Howarth ‘s obligation to pay child support for [Z] had ceased.
As the child support obligation has ceased the section of the Family Law Act which applies is s. 66W which provides as follows:
Recovery of arrears
(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 was binding on, a legal personal representative – the circumstances of the estate are such as to justify the variation.
The order sought by Mr Howarth makes clear that he seeks to have the order discharged from the date on which he stopped paying.
It is not clear on the face of any documents whether any part of the child support debt relates to [X], who was 22 when Mr Howarth ceased paying, or [Y], who was 19. Mr Howarth’s counsel submitted that if any of the arrears related to those children Mr Howarth should be relieved of that part of the liability because under Australian law child support was not payable once a child turned 18.
There are a number of problems with this submission but it is most easily disposed of by observing that s.66L(1) of the Family Law Act allows the court to make an order for maintenance of children over 18 if certain conditions are met and s.66L(2) allowed a court to make an order for child maintenance to continue after a child turned 18 if certain conditions were met.
This is entirely in line with the child support order made on 11 February 2006 and s.66T provides as follows:
Effect of child turning 18
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.
During submissions Ms Howarth said that there were no arrears owing for [Y] or [X] but for the reasons above it is not necessary to resolve this.
Turning to the issue I need to decide there is no definition of “just cause” in the Family Law Act and the passage from the decided cases usually referred to when considering the meaning of the phrase is the following from Lutzke & Lutzke:
…the Act is silent as to what may constitute “just cause” for the discharge of an order. 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, particularly those relating to maintenance, it can be said that it is “right'' or ``proper'' that the order should be discharged.[10]
[10] Lutzke & Lutzke (1979) FLC 90-714
Lutzke & Lutzke makes it clear that the applicant has the onus of establishing just cause.
In Wreford & Caley[11] the Full Court considered the meaning of the phrase “just cause” in the context of an application to discharge a child maintenance order made in Australia. After referring to Lutzke & Lutzke it observed that a consideration of whether there was just cause for discharging the order:
[11] Wreford & Caley (2010) FamCAFC 21
…should include a consideration of some of the relevant sections of the Act which might pertain to these matters.
These would include comparable provisions in Part VII of the Act including:-
•s.66J which specifies the matters to be taken into account in considering financial support necessary for the maintenance of a child;
•s.66K which specifies the matters to be taken into account in determining the contribution that should be made by a party;
•s.66C which includes the principle that parents have the primary duty to maintain children;
•s.66D which includes the principle that a step-parent has a duty to maintain a child only if the court has determined, by order, that it is proper for a step-parent to have that duty;
•s.66M which specifies when a step-parent has a duty to maintain a child;
•s.66B which describes the objects of the Division to which we were referred by counsel for the mother in the first place; and
•s.66S which provides for the modification of child maintenance orders.
S. 66B provides that the objects of the child maintenance part of the Family Law Act is to ensure that children receive a proper level of financial support from their parents and that they have their proper needs met from a reasonable and adequate share in the income, earning capacity, property and financial resources of both of their parents and that parents share equitably in the support of their children.
S.66B provides that the parents of a child have a primary duty to maintain the child.
S.66J provides that in considering the financial support necessary for the maintenance of a child the court must take into account the proper needs of the child and s. 66K provides that in determining the financial contribution to be made by the parties the court must take into account their income, earning capacity, property and financial resources, their commitments necessary to support themselves, the direct and indirect costs incurred by the parent with whom the child lives in providing care for the child as well as any special circumstances.
S.66K(2) provides that the court must have regard not just to parents actual incomes but also to their capacity to earn and derive income.
S.66D, S.66M and S.66S are not relevant in the case before me.
Importantly in Wreford & Caley the Full Court said as follows:
We should also mention that, as the relief which the father sought was retrospective, it was incumbent upon the father to adduce evidence relative to, say, ss 66J and 66K of the Act in relation to each period during which the arrears which he was seeking to discharge accrued.
It seems to us that it would be quite contrary to the objects and principles of Part VII – Division 7 for the Court to be able to be satisfied as to just cause merely on evidence as to the parties about their relative current financial circumstances. If that were the case, arguably, an applicant for discharge of arrears could be assured of success simply by divesting themselves of assets and income prior to a hearing.
It is against this background that I must consider Mr Howarth’s application for discharge of the child support order and against this background it must fail because of the paucity of evidence he provided about his financial situation from mid-2009 onwards and indeed from 2006 onwards.
Mr Howarth’s evidence as distilled from his various affidavits was as follows:
i)When the orders were made in January 2006 he was a (occupation and employer omitted) and was earning £120,000.00 per annum which was the equivalent of $240,000.00 per annum.
ii)In mid-2006 the asylum seeker contracts which had provided the source of income for his business ceased and he began living on his savings.
iii)In late 2006 he became a self-employed (occupation omitted) earning a minimal wage.
iv)Between 2006 and 2009 he serviced the orders from savings.
v)In October 2009 he moved to (omitted) in the United States to (omitted) and between then and March 2011 he lived on savings.
vi)In March 2011 he came to Australia. He was initially on a tourist visa and could not work but in July 2012 he commenced work with (employer omitted) on a salary of $50,000.00 per annum.
vii)In April 2014 he commenced work for (employer omitted) in (omitted) on a salary of $841.50 per week net. He also began to receive $180.00 per week net from a boarder
It is important to note that the summary above is pretty much the totality of Mr Howarth’s evidence. He did not provide any information about the wage he received as a (occupation omitted) between 2006 and 2009. In his various affidavits he said that he lived off savings between 2008 and July 2012 but he provided no information about how much he had in savings at any point of time or how much he considered a reasonable amount to live on week to week.
Mr Howarth did not address the issue of why he had chosen not work between 2009 and 2012. The fact that he was living in countries which might not have/did not permit him to work is not an answer to this: he chose to live in those countries rather than to live in a country where he could work. He did not provide any information about whether he had bought or sold property of any kind between 2009 and the present. He provided no bank statements or pay slips or any other documentary evidence about his financial circumstances.
[Z] was 11 when Mr Howarth ceased paying child support. He had an obligation to support her and he did not provide any evidence that he was unable to do so; no evidence about why she should have borne the brunt of him choosing to study rather than work, no evidence about why he could not have shared with her the savings which he used to support himself while he studied rather than worked between 2009 and 2012, and no evidence about why she should not have shared in even a small portion of his income after began to work in Australia.
Ms Howarth set out in her affidavit some of the problems which flowed from Mr Howarth’s failure to pay child support for [Z], as follows:
[Z] has also had to go without things that other teenagers take for granted, technology wise, a lap-top, a modern ‘phone and also holidays and driving lessons. She would benefit greatly from having her own car, as [Y] did at this age, as she has a severe anxiety disorder, (which started when her Dad disappeared and didn’t want to know her anymore) which prevents her from using public transport. I am not always able to transport her about as I have to work long hours to be able to pay the bills. As [Z] and I have had to go without for so long, and have suffered more than a little stress and inconvenience since 2009, including having to move to a much smaller home, I do not think we should have to wait a further two months for any monies from Mr Howarth which could come our way from Australia.
Had Mr Howarth genuinely been unable to contribute to [Z]’s support or had he had a genuine case to have the amount he was required to pay reduced he could have applied to (omitted) County Court to vary the orders before he left England. He did not do so and indeed he did nothing until the Child Support Registrar wrote to him in November 2015.
Ms Howarth gave evidence which was supported by documents that she never ceased trying to collect child support from Mr Howarth. She said that when he approached her in 2008 and asked her to get a job and cease pursuing him for child support and maintenance her solicitor wrote to him requesting that he provide a financial statement and make an application to the court to vary the orders. She provided a copy of an enforcement summons she obtained from (omitted) County Court in 2009 and also a copy of a letter sent from the US indicating Mr Howarth could not be located.
When Ms Howarth discovered that Mr Howarth was in Australia she promptly notified the relevant authority in England and asked them to take steps to collect the money owing to her.
The fact that the immediate need for support of [Z] has passed is not a good reason to discharge the order and wipe arrears going back 10 years. The delay in collecting the child support is not Ms Howarth’s fault and as the Full Court said in Wreford & Caley:
Delay in collecting by the CSA is materially different to a payee sitting on his or her hands and could not be taken, prima facie, as conduct indicating a waiver of rights or an admission that the payee doesn't need the money. Indeed, at least in the abstract, many maintenance and child support liabilities are for contributions that represent such a small part of the true costs of children that it is safe to assume, prima facie, that the payee must have foregone money and lifestyle such as to make it just and equitable for the arrears to be paid. Also, there are important public policy considerations requiring that delay alone (when caused by the payer) not defeat the liability, otherwise the rule becomes one of “avoid the order long enough and it will be defeated”.
Mr Howarth may have a modest income at present but there is no reason why he should not contribute some of that income toward discharging the arrears, and an additional problem for him is that contrary to the information he first provided there is a real prospect that he will soon have access a lump sum which might enable him to make a substantial capital payment towards the arrears.
In his financial statement filed in November 2015 Mr Howarth said that his only assets were second hand household items and furniture, assorted tools and a small amount of superannuation. However it emerged, although he originally made no mention of it, that his mother died on 21 January 2015 and that he was entitled to a share of her estate.
After Ms Howarth raised the issue Mr Howarth revealed that he was entitled to a one quarter share of his mother’s estate and that he had received $12,500.00 as a partial distribution from his mother’s estate on 24 July 2015.
Mr Howarth alleged that he was unsure of the total value of the interest. The evidence of Ms Howarth which Mr Howarth did not seek to contradict was that the likely sale price of his mother’s house was £187,500.00 and Mr Howarth’s one quarter share of that would be £46,875.00.
There is no doubt that Mr Howarth’s financial circumstances have changed over the years and had he made an application to vary the child support order he might after due inquiry have had some success at least for the period from July 2012 when he began working in Australia. However that was not his application. He sought to discharge the order and wipe out all arrears and he has not discharged the onus of satisfying the court that the child support order should be discharged for just cause retrospectively to when he stopped paying.
Whether there is just cause for discharging the spousal maintenance order
The order Mr Howarth sought about the spousal maintenance was as follows:
That any orders for spousal maintenance included in the Minutes of Agreement and Consent Order made on 11 January 2006 in the (omitted) County Court (United Kingdom) for the benefit of Ms Howarth born on (omitted) 1964, be discharged.
The section of the Family Law Act relevant to this application is s.83(1) which provides as follows:
(1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(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;
(e) revive wholly or in part an order suspended under paragraph (d); or
(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.
S. 83(6) and s. 83(8) are also relevant and they provide as follows:
(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
Mr Howarth did not specify the date from which he sought to have the spousal maintenance order discharged but the tenor of his evidence was that he should not be liable for spousal maintenance from the date in June 2009 when he ceased paying it.
I must determine whether it is right and proper to discharge the order as proposed “informed by the relevant provisions which apply to these matters” and the relevant provisions are s. 75 and 75 of the Family Law Act.
S. 72 provides as follows:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2)The liability undersubsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
S. 75 sets out numerous matters which the court should take into account in determining if a spousal maintenance order should be made.
Mr Howarth’s case in respect of the spousal maintenance order was as follows:
i)He could clearly not afford to pay the amount ordered on the basis of his current income.
ii)Ms Howarth no longer had the care of a child under 18, she had a capacity for gainful employment and she was working full time and her financial statement suggested that she was living within her means and was reasonably able to support herself.
iii)The order should be discharged retrospectively to when he ceased paying regardless of Ms Howarth’s need from then to the present because from June 2009 onwards and even prior to that he did not have the means to pay the amount ordered.
The problems for Mr Howarth in respect of this application are the paucity of the evidence he provided about his historical financial circumstances, the fact that he bears the onus of proof and chose to conduct his case on the basis of submissions and the fact that he sought a blanket discharge of the order and not a variation of it.
Mr Howarth did not provide sufficient evidence for me to make findings about his capacity to pay prior to him commencing employment in (omitted). I cannot make findings about his income or his capacity for gainful employment between 2009 and 2012, or about the commitments necessary to enable him to support himself during this period or about the amount he had in savings and when this might have enabled him to meet his obligations.
Mr Howarth bears the onus of proving that there is just cause to discharge the order and he chose to proceed with his application on the basis of submissions. He chose not to cross-examine Ms Howarth about her current circumstances and her circumstances historically, noting that she made assertions about her need for spousal maintenance historically and about the impact on her of Mr Howarth ceasing to pay, and he chose to proceed not only without providing one piece of documentary evidence himself but without requiring Ms Howarth to provide any.
I cannot find on the state of the evidence that in June 2009 there was a basis for discharging the spousal maintenance order and on the state of the evidence I also cannot find that for any particular period after that.
Similarly to the situation with the child support order I have considerable concerns about Mr Howarth’s bona fides. He could have approached the (omitted) County court to vary or discharge the order when he was still in the UK. He chose not to do so and he made no application to discharge the order until the Child Support Registrar caught up with him in 2015.
Given that Mr Howarth does not have the capacity to pay the amount required by the order at present and that Ms Howarth is now employed a real question arises as to whether the spousal maintenance order should continue. However Mr Howarth did not ask me to vary the order or discharge it retrospectively to a date such as when Ms Howarth commenced working or when he started working in Australia he asked me to discharge it with the effect that all arrears owing under it were wiped out.
I cannot find on the state of the evidence that it would be right and proper to discharge the order retrospectively to when Mr Howarth stopped paying nor can I consider discharging the order retrospectively to another date or varying it retrospectively or prospectively in the absence of Ms Howarth being put on notice of an alternative application, Mr Howarth providing proper evidence and Ms Howarth being given a chance to present the evidence she wishes to present in a case run with the opportunity for cross-examination.
Mr Howarth has not discharged his onus in this court in terms of the application he brought and I intend to dismiss his application.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 25 August 2017
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