M and M
[2002] FMCAfam 212
•25 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2002] FMCAfam 212 |
| FAMILY LAW – Spousal maintenance – compliance with section 83(2) not necessary to discharge order – section 81 – orders to determine financial relationships – respondent’s capacity to earn. |
| Applicant: | A J M |
| Respondent: | S L M |
| File No: | HBM2228 of 2000 |
| Delivered on: | 25 July 2002 |
| Delivered at: | Launceston |
| Hearing Date: | 19 July 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared on his own behalf |
| Counsel for the Respondent: | Mr. R. Murray |
| Solicitors for the Respondent: | Murray & Associates DX 70919 Launceston |
ORDERS
That within effect from the date hereof Order No. 1 of the Orders of the Family Court of Australia dated 27th January 1999 bearing number
HB 2688 of 1997 be and is hereby discharged.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBM2228 of 2000
| A J M |
Applicant
And
| S L M |
Respondent
REASONS FOR JUDGMENT
Background and applications
The parties are A J M (“the Applicant”) and S L M (“the Respondent”).
The parties met in October 1991 when the Applicant boarded at the home of the Respondent. They started living together in February 1992. They were both thirty-six years old at that time. They married on 31st October 1992.
They have two sons, born in April 1994 and June 1996.
The unchallenged evidence before me is that the parties separated on a number of occasions before separating finally in June 1998. Their divorce became absolute on 17th February 2001.
On 27th January 1999 Orders were made by consent by a Deputy Registrar of the Family Court of Australia which provided that an earlier order of a Judicial Registrar be varied so that from 21st January 1999 the Applicant would pay the Respondent spouse maintenance in the sum of $150.00 per week. It seems clear from that Order that the Applicant had applied to review the decision of the Judicial Registrar, because his Application to Review was also otherwise dismissed by those Consent Orders. At that time, the Applicant was representing himself and the Respondent was represented by the same lawyers as represented her in these proceedings.
There was a hearing in the Family Court of Australia before Coleman J on eight days in August 2001 in relation to residence and contact with respect to the two children of the parties, alleged breaches of existing orders by the Respondent and an application in relation to the spouse maintenance order referred to above. At the conclusion of that hearing, Coleman J made comprehensive orders that provided for the children to reside with the Applicant each alternate weekend from Friday after school until Monday before school, and during half the school holidays. The children reside with the Respondent Mother at other times.
It is clear from the length of the Judgment by Coleman J and the type of Orders made by him that the parties have some significant areas of dispute. However, for the purposes of the Application before this Court, it is significant to note that Coleman J made an Order suspending the order for spouse maintenance from 1st September 2001 until 1st March 2002.
On 3rd April 2002 the Applicant filed an Application in this Court (on the Family Court’s Form 12) seeking orders as follows:
a)“That there be no court order in relation to spousal maintenance payable by the applicant to the respondent
b)That court order previously made in relation to maintenance in this case to be dismissed”
At the hearing it became apparent that the Applicant was seeking orders to discharge the Consent Order made in the Family Court of Australia on 27th January 1999 and that any arrears from 1st March 2002 also be discharged. He made it clear that he was not seeking to discharge arrears that accrued prior to the suspension of the order from 1st September 2001.
On 16th May 2002 the Respondent filed a Response which seeks to have the Applicant’s Application dismissed and that the Court quantify the arrears and make such orders “for payment of arrears as it considers appropriate”.
By way of further background, it is necessary to note that at the time that Coleman J made his orders, the Applicant was a full-time university student and he was still a full-time student when the matter came on before this Court.
At the time of the hearing before Coleman J (“the earlier hearing”), the Applicant was living with a woman who was then his fiancée. She was pregnant at that time but suffered a miscarriage. They got married on 6th April 2002 so I shall refer to that woman as “the Applicant’s wife”. The evidence is that the Applicant’s wife is pregnant again and the baby is due at the end of September 2002.
The Applicant’s wife has a six-year-old daughter from a previous relationship and that child resides with them.
The Applicant’s wife is a full-time teacher who earns approximately $1,100.00 gross per week. She is due to stop work on 8th September 2002 and she will received paid maternity leave for twelve weeks. She is also entitled to some annual leave so she should be paid her current income until approximately the end of January 2003. Thereafter, it is the intention of the Applicant and his wife to apply for Austudy and other Centrelink benefits.
The law
Variation of spouse maintenance orders is dealt with in section 83 of the Family Law Act 1975. Such orders can only be increased or decreased on the limited grounds set out in subsection (2). However, compliance with subsection (2) is not necessary for the Court to discharge, suspend or revive an order.
Subsection 83(1) provides the Court with the power to modify an order in any of the following ways:
"(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 sub-section (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner. ''
It is clear from the wording of subparagraph (c) of subsection 83(1) that the Court can only discharge a spouse maintenance order “if there is any just cause for so doing”.
Subsection (2) of Section 83 provides as follows:
“The court shall not make an order increasing or decreasing an amount ordered to be paid by an order 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;
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative - the circumstances of the estate are such,
as to justify its so doing;(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent - that the amount ordered to be paid is not proper or adequate; or
(a) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.”
In relation to both property and spouse maintenance proceedings, section 81 provides that “other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the Court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.”
Evidence
The Applicant relied upon the evidence contained in his Application and his affidavit filed 1st July 2002, in addition to his oral evidence and that of his new wife.
The Respondent relied upon her Form 17 Financial Statement filed
16th May 2002 and her oral evidence. She also relied upon the affidavit and oral evidence of an industrial advocate.
Credit
In the earlier proceedings, Coleman J came to the conclusion that “the parties present as decent, honest people, truthful in the evidence which each gave”. I come to the same conclusion notwithstanding that counsel for the Respondent sought to persuade me that there was sufficient discrepancy between the evidence of the Applicant and the Applicant’s wife as to give me cause to doubt their veracity.
I am satisfied that the Applicant’s wife simply did not understand that a vehicle that she purchased previously belonged to a company associated with the Applicant rather than to the Applicant himself.
Discussion
As stated above, in order to discharge a spouse maintenance order, there must be a just cause for doing so. Although the requirements of subsection 83(2) do not need to be satisfied, it seems to me clear that there must have been a change in circumstances between the time of making the order and the time of the hearing.
Further, subsection 83(7) provides that the Court must have regard to the provisions of sections 72 and 75.
It is clear that at the time of the earlier hearing, the parties’ circumstances had changed since the making of the order in 1999. At that time, the Applicant relied upon an apparent incapacity to comply with the order by virtue of having no income and no property. It is a matter of history that Coleman J made a decision to suspend the order for a six month period which enabled the Applicant to complete his studies for that year. Coleman J commented that it was “undesirable that he not complete the current academic year, and pass, as undoubtedly he will, the subjects for which he is a candidate”.
Coleman J went on to say: “Thereafter is a very different story, and, objectively, if it is a question of the Husband being able to be a full-time student and the tax payers supporting the Wife when she has an entitlement to look to the Husband to support her, then the Husband may well have to rethink his priorities. This Court is not dealing with child support but not dissimilar considerations will apply by virtue of that obligation of the Husband. It would be inappropriate to discharge the order, the reason being that if the Court did so the Wife would have to reapply and again meet the threshold requirements of section 72 of the Act. She may well be able to do that but the Husband having not proved an entitlement to have the order discharged she ought not be put in a position where she has to undertake that task and discharge that onus”.
At paragraph 212 of his Judgment, His Honour took a pragmatic approach when he said: “On the other hand, to simply leave the order on foot with arrears accruing where, objectively, the Husband has no real present ability to meet such arrears is likely to create false hopes or expectations on the part of the wife, and to fuel the animosity which already exists between the parties, all for material gain for the wife in terms of the Order”.
It seems to me to be clear that I must now look at any changed circumstances since that decision in order to determine whether there is a just cause for discharging the order, remembering that the Court is not limited in its options to discharging the order. Subsection 83(1) enables the Court to discharge, suspend, revive, or vary the order. Further, the Court can accede to the Respondent’s request and dismiss the Application.
Since the earlier hearing the Applicant has made attempts to find part-time work by approaching two recruitment agencies. He says that both agencies “stated it would be difficult to find suitable part-time employment to suit (his) capacity and the best advice they offered was for (him) to complete (his) university studies to find suitable full-time work.”
The Applicant also stated that it was an option available to him to study part-time in Hobart but the travelling between his home in Evandale and Hobart and being away from his wife and children for extended periods creates difficulties. Further, he stated that the pending arrival of a new baby compounds these problems.
It is the Applicant’s evidence that in November 2001 and January 2002 he approached another employment agency that caters for the placement of relief teachers. He gave them copies of his New Zealand qualifications and it is his evidence that he taught in New Zealand in 1983 and 1984. I accept his evidence that he has not been offered any teaching work.
The Applicant also applied to Deakin University for a placement in their Distance Education Law School and sat for their required test. Although he scored well in that test, he was unsuccessful in gaining a placement. Consequently, he accepted a placement to study law at the university in Hobart.
At this point, I should comment that from my own knowledge, I am aware that the only campus of the University of Tasmania that enables students to study law is the Hobart campus. I am also aware that the travelling time between Evandale (where the Applicant lives) and Hobart is approximately two and a half hours.
There have also been changes in the circumstances of the Respondent since the earlier hearing. Whereas, at that time, the younger child was only attending school part-time, both children are now full-time students.
In addition, the Respondent has taken on some cleaning work for between six and seven hours per week. However, she says that she could easily find more work but she has chosen not to do so. Some of her reasons appear to be that she wishes to continue her role as “parent help” at the children’s school for two hours per week and she spends reasonably significant periods of time at the gymnasium. It was her evidence that she was even too busy to read the paper to look for more work.
A careful analysis of the facts show that the Mother could be available to take on part-time work while the children are at school. Realistically, those hours are from 9.00 a.m. until 3.00 p.m. However, it would be appropriate to allow half an hour at either end to enable her to travel to and from work. Consequently, it appears that the Respondent has twenty-five hours per week during school terms available to her to do part-time work.
The Respondent’s own evidence is that she gets paid $12.00 per hour and she enjoys cleaning work. However, she does have a back complaint but she did not bring any expert evidence to the Court to satisfy the Court that she could not do more work than she is currently doing. Indeed, it is my view that there is an inconsistency between her desire to spend hours at the gymnasium and her statements that she can’t really take on extra work because of a bad back.
I also accept that the Respondent could look for work as a cashier/waitress, which is the type of work that she was doing when the parties met. That sort of work is likely to be less harmful if she has a bad back than cleaning work.
The Applicant suggested to the Respondent during cross-examination that she could find employment as a sales assistant. Her objection to that is that she has not done any computer training. Although it appears that she may be able to blame the Applicant for her inability to attend one computer course (because she had to look after the children while he was on holiday), it is quite clear that she has made no attempt since that time to enrol in such a course. I am satisfied that with minimum training, the Respondent could obtain employment as a sales assistant, particularly as she has had experience as a cashier.
It also seems to me that there is an increasing trend in relation to the hospitality industry, retail sales and even cleaning, that employers appear to favour part-time employees over full-time employees.
The Respondent cannot simply sit on her hands and say the Applicant must pay maintenance if she has an ability to earn more income than she is currently earning. The only evidence that I have is that she is capable of earning $12.00 per hour and I am satisfied that, during school terms at least, she has a capacity to earn that hourly rate for twenty five hours per week. That is a capacity to earn $300.00 per week. While there would be a need to pay tax, the net amount is certainly more than the sum of $150.00 per week that the Applicant is currently required to pay.
In my view, the Applicant displays a talent for the law and it is clear that further legal training will be likely to bring some employment as an industrial advocate, even while he is a student. It is also clear that he is currently paying no child support and his new wife is totally funding herself, him, her child and his two children when they are with him. She has no legal obligation to pay his child support or his spouse maintenance.
It is the Applicant’s evidence, which is consistent with the evidence in the earlier hearing that it will take him another two and a half years to complete his law degree. He says that that qualification will enable him to earn a reasonable income so that he can support himself, his wife, his children (including the unborn child) and his wife’s child. It is clear that the children of the Respondent and himself, who are now aged eight years and six years, will require support for significantly longer than it will take for him to complete his legal studies. In my view, it is appropriate to allow the Applicant to complete those studies so that he is in a better position to pay child support.
If the Applicant is allowed to complete those studies, it is clear that he will not be in a position to pay any reasonable spousal maintenance for the next two and a half years. The question then is whether the Court should suspend his obligation or discharge it. In this regard, I could take the approach adopted by Coleman J in the earlier hearing. However, the Respondent’s circumstances have changed since that time. She now has a potential to earn income that she is not using. In addition to the time while the children are at school, she also has the time while the children are with their father during which she could engage in employment. That makes her available to work every second weekend and during part of the school holidays.
If I bear that in mind and take note of the provisions of section 81 of the Family Law Act 1975, it seems clear to me that I must discharge the orders for spouse maintenance.
The question then remaining is whether I should discharge any arrears.
The evidence is that the Applicant has received funds from the purchaser of his failed sports store business in the approximate sum of $5,000.00 since the earlier hearing. However, he did nothing to discharge either his spousal maintenance obligation or his child support obligation. In those circumstances, it does not seem to me to be just to discharge any of the arrears, which are said to be in the vicinity of $5,800.00.
In the circumstances, the order of the Court will be that the spousal maintenance order be discharged with effect from today’s date.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Roberts FM
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