Malone and Malone - [2010] FMCAfam 148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALONE & MALONE

[2010] FMCAfam 148

FAMILY LAW – Discharge of spousal maintenance arrears – substantial delay in applying for discharge of spousal maintenance – changed circumstances of the parties.

Family Law Act 1975, s.83

Applicant:

MR MALONE

Respondent:

MS MALONE

File Number:

SYC 7311 of 2008

Judgment of:

Kemp FM

Hearing date:

30 November 2009

Date of Last Submission:

11 December 2009

Delivered at:

Sydney

Delivered on:

22 February 2010

REPRESENTATION

Counsel for the Applicant:

Ms Friedlander

Solicitors for the Applicant:

Kells the Lawyers

Counsel for the Respondent:

Mr Maddox

Solicitors for the Respondent:

Slater & Gordon

ORDERS

That the husband’s application filed on 10 December 2008 and as subsequently amended seeking a reduction in spousal maintenance and the discharge of any arrears of spousal maintenance be dismissed save that any arrears for spousal maintenance accrued during the period following the filing of the husband’s application on 10 December 2008 and the discharge of the subject spousal maintenance order on

4 February 2009 be discharged.
If any party seeks costs, an appropriate application to my chambers may be made within 28 days of today’s date and the Court will deal with that matter by way of written submissions unless the parties wish to be heard orally. If no such application is made within that time period, there will be no order as to costs.
All outstanding applications (save as to costs, including any reserved costs) otherwise be dismissed.
All exhibits tendered in these proceedings, be returned at the expiration of 1 (one) calendar month, unless an appeal is lodged.
The matter be removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Malone & Malone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 7311 of 2008

MR MALONE

Applicant

And

MS MALONE

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the husband filed on 10 December 2008 for orders as follows:‑
(1)That order (9) of the consent orders filed in the Family Court of Australia at Sydney, in proceedings number SY3101 (“the 1992 Family Court orders”), be discharged.
(2)That the spousal maintenance arrears arising from order (9) of the 1992 Family Court orders be discharged.
(3)That a copy of this order be served upon Inland Revenue with respect to spousal maintenance payable for the benefit of the respondent wife.
(4)That the respondent wife pay the applicant husband's costs.
These proposed orders were further amended by a minute of order directed to be filed by the applicant after the conclusion of the hearing and oral submissions. The minute of order, filed on 11 December 2009, is to the following effect:‑
(1)Any arrears of spousal maintenance payable pursuant to the Court order of 4 March 1992 and accrued from 4 March 1992 up to and including the 4 February 2009 (inclusive) be and are hereby discharged.
(2)The rate of spousal maintenance payable by the husband pursuant to the Court order of 4 March 1992 be reduced from $200.00 a week to $78.00 a week, with no allowance for CPI increases, such variation to have effect from 4 March 1992.
(3)If, as a result of order 2, a debt accrues to the husband from the wife, the husband will forgive such debt and take no steps to enforce payment of that debt.
The respondent wife seeks orders that the husband's initiating application filed 10 December 2008 be dismissed so far as the final orders (2), (3) and (4) (set out in paragraph 1 above), were concerned and that he pay the wife's costs of and incidental to the proceedings.
The effect of the wife’s response was to concede that orders (9) and (10) of the 1992 Family Court orders could be discharged.
On 4 February 2009, by consent, the Court made orders to the following effect:
(1)That orders (9) and (10) of the 1992 Family Court orders, be discharged in regard to any payments after 4 February 2009, pursuant to s.79A of the Family Law Act.
(2)That the issue of arrears of spousal maintenance, pursuant to the 1992 Family Court orders, be adjourned to a conciliation conference or to final hearing if settlement cannot be reached at the said conference.
Orders (9) and (10) of the 1992 Family Court orders were to the following effect:‑
(9) That the husband pay to the wife by way of maintenance for herself the sum of $200 per week.
(10) That the amount of the maintenance payable be varied each year in accordance with the variation in the Consumer Price Index published by the Commonwealth statistician for all groups for Sydney by comparison of the Consumer Price Index as it stands on either 31 March, 30 June,

30 September or 31 December, whichever month immediately precedes the month in which the maintenance order is made as compared with the same index at the same date 12 months prior thereto.
The husband relies on the following:‑
a)His affidavit sworn 11 November 2008.
b)His affidavit sworn 25 September 2009 (excluding all annexures save for annexures GM1‑2, pages 1 to 2; GM3‑13, whole; GM14‑129, pages 99 to 115; GM140‑181, pages 1 to 5 and 24; and GM182, page 1.
c)His financial statement affirmed 25 September 2009.
The wife relies on:‑
a)Her affidavit sworn 29 September 2009.
b)Her financial statement sworn 22 January 2009.

The following documents were tendered as Exhibits in the proceedings:‑
Exhibit 1: Australian Taxation Office Child Support Agency application for review of a child support assessment enclosing a letter from Bell Miller Solicitors to the Deputy Child Support Registrar dated 5 March 1998, tendered by the wife.
Exhibit 2: Unsigned terms of settlement, tendered by the wife.
Exhibit 3: Affidavit as to financial circumstances of the wife sworn on
4 February 1992, tendered by the wife.
Exhibit 4: Application initiating proceedings filed in the Family Court of Australia at Sydney, tendered by the wife.
Exhibit 5: Copy transfer document between the husband and the wife dated 7 May 1992, tendered by the wife.
Exhibit A: Australian Bureau of Statistics average weekly earnings in 2009 and average weekly earnings in August 1992, tendered by the husband.
Exhibit B: Summary of account of the husband from the Inland Revenue Te Tari Taake, tendered by the husband.
The husband was represented by Ms Friedlander of Counsel and the wife was represented by Mr Maddox of Counsel.

BACKGROUND FACTS

The husband was born [in] 1956, and is, at the time of hearing, 53 years of age.
The wife was born [in] 1957, and at the time of hearing was 52 years of age.
In 1978, the husband was working at [B].
[In] 1978, the parties married.
In March 1978/1979, the parties bought a block of land (“the subject land”) for $13,000.00 with a deposit of $1,500.00.
In 1980, the husband was working [for omitted] and the husband and the wife built a house (“the matrimonial home”) on the subject land and borrowed $34,000.00 for that purpose.
In 1981, the husband received a redundancy of $5,000.00 and $38,000.00 for a personal injury claim which was used for joint expenses.
In 1982, the husband bought an [omitted] business.
In 1982, the child, [U] was born.
In 1983, the husband sold the [omitted] business and the sale moneys were used for joint expenses.
In 1984, the husband commenced employment at [C].
[In] 1984, the child, [V] was born.
[In] 1987, the child, [W], was born.
In 1988, the husband and the wife took over an [omitted] business and leased vehicles from Mr H.
In March 1990, the child, [V], had open heart surgery.
In 1990, the husband had a dispute with Mr H and engaged a lawyer to represent him.
In 1991, the husband worked at Emerald.
In March 1991, the wife had an abortion. The couple separated and the husband moved to his mother's home.
On 31 May 1991, the husband's liability to pay child support to the wife commenced.
The husband's liability to pay child support to Ms H commenced and was registered on 11 June 1993.
[In] 1991, the child, [X] was born and the father became responsible for her support.
On 4 March 1992, the husband signed the document being the property settlement terms, the basis of the 1992 Family Court orders. The husband alleged that the wife informed him that they were insurance documents.
In September 1992, another child was born for whom the husband was also responsible to support.
In early 1993, the wife borrowed money from her father to buy a caravan in which to live, while she was selling the subject land.
In 1993, the husband became aware that the wife had not been paying the mortgage secured over the subject land.
On 6 May 1993, the husband's liability to pay child support to Ms R commenced and was registered on 11 June 1993.
On 22 November 1993, Ms H sought a review of the child support assessment.
[In] 1994, the child, [Y], was born.
[In] 1994, the child, [Z], was born.
On 12 August 1994, there was an advice from the Child Support Agency (“CSA”) regarding the husband’s application for review of the child support.
In 1995, the husband moved to New Zealand after a work‑related injury and the child support recovery action was suspended.
On 5 March 1998, Bell Miller, solicitors for the husband, wrote to the CSA regarding child support and maintenance.
On 10 July 1998, the parties divorced.
In June 2001, the wife bought a business.
In 2003, the husband told his employer that $654 a week was deducted from his pay by the CSA for spousal maintenance arrears.
In 2006, the New Zealand Inland Revenue informed the husband that he had a substantial liability for spouse maintenance arrears.
On 10 December 2008, the husband commenced these proceedings.
The husband lives in New Zealand and is [employed in the Transport Industry].
The husband lives with a Ms M.
Ms M is not employed but, was initially receiving $453.00 per week for child support which subsequently reduced to $155.00 per week.
The wife lives in [omitted], Australia and is a business owner by occupation.
Of the husband’s 7 children, 4 are not related to the wife in these proceedings, with 3 being born after the 1992 Family Court orders and 1 being born before the said orders were made. Only the children [U], [V] and [W] are the children of the wife in these proceedings.

The Law

The relevant provision relied upon by the parties is s.83 of the Family Law Act 1975 (“the Act”). Section 83 sets out the following:‑
Modification of spousal maintenance orders
(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.
(1A) The court's jurisdiction under subsection (1) may be exercised:
(a) in any case--in proceedings with respect to the maintenance of a party to the marriage; or
(b) if there is a bankrupt party to the marriage--on the application of the bankruptcy trustee; or
(c) if a party to the marriage is a debtor subject to a personal insolvency agreement--on the application of the trustee of the agreement.
(2) 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 (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 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;
(c) 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.
(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.
(4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
(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.
(6A) Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(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.
The applicant relies principally on s.83(2)(a), (ba) and (c) of the Act.
Turning to the ground under s.83(2)(c) of the Act, the husband asserts that the Family Court of Australia, at the time of making the 1992 Family Court orders, had certain material facts withheld from it. Those material facts were essentially that:‑
a)The husband was illiterate and could not read the document containing the property settlement terms.
b)That the husband had been misled as to the contents of the said document in that he asserted that the wife had informed him that they were “insurance” documents and that, if he had known of the effect of the orders, he would not have consented to them.
The thrust of the husband's case was that in 1992 the property settlement terms document had been given to him by the wife at the parties’ home, he believed, in the presence of the wife and her father, a Mr S, and a friend called [name omtted]. He believed that he signed the document and handed it back to the wife. He has no explanation as to the identity of the signature of the purported witness to his execution of the document which appears on the face of the document itself. He could not recall whether, when he received the document, it had been signed by the wife and witnessed by her solicitor. He says that he had never received a blank form of the document.
Notwithstanding this attack on the document itself, there was no challenge to the terms of the property settlement orders, save the spousal maintenance order.
The wife's evidence is that the document was forwarded to the husband by post and that he was requested to sign it after having its contents read to him, as it was a conceded fact that the husband had difficulties reading documents. The actual extent of the husband's illiteracy was, however, a matter of some contest. The wife did not accept the husband was totally illiterate. No expert evidence was filed by either party to assist the Court. The Court does not find that the wife misled the Court when she deposed to a conversation with the husband wherein she said he said “I’ve been through them [the documents] …and I have signed them”.
The wife, however, points to the document, being Exhibit 2, which Mr Maddox says was provided to him from documents in the husband's possession. The husband conceded to having that document for some 17 years.
As Mr Maddox submitted and the Court accepts, the husband's possession of this document makes it difficult for his story to stand up. The court is of the view that it is more likely that the wife’s version of the evidence is correct. That is, that the document was forwarded to him, blank, care of his employer, [O], at a post office number in Emerald Queensland and that he was requested to have someone read the document and witness it. The fact that he had an unsigned copy supports this view.
The wife’s evidence was that her recollection was that when she signed the said document in the presence of her solicitor, the document had already been signed by the husband and purportedly witnessed.
The husband says that he does not know the identity of the witness. The wife was not aware and nor should she be expected to be so aware of the identity of that person.
The Court is of the view that the husband has confused the signing of the transfer document with the signing of the terms of property settlement document.
The signing of the transfer document was executed on 7 May 1992 and was indeed signed by the husband in the presence of Mr S, being the wife's father. That document is the document which, more than likely, was signed by the husband at the parties’ home, in accordance with his recollection.
The husband further asserted that he had been misled by the wife as to the contents of the document and because he was unable to read it he understood it to be an “insurance” document or something which would only take effect if he died. Unfortunately, this makes no sense at all. The parties had separated at the time the document was forwarded to the husband. The circumstances surrounding the parties’ separation meant that they were certainly not on the best of terms at that time. For the husband to say that he relied on the wife and trusted her in the circumstances of this matter beggars belief.
Further, it would have been obvious to the husband that this document was a Court‑related document and the Court simply does not accept that he would have signed the document reliant only on what he said the wife had said to him at the time. He acknowledged that he knew it was an important document and that he had in fact signed the document.
Further, the husband’s evidence was to the effect that he wished to preserve the matrimonial home for the wife and the 3 children and not to expose it to his then partner “Ms H”. He agreed that the wife could have asked him to take the settlement document to someone who could read it to him. He could not deny that this had in fact, occurred.

The husband further asserts that given the financial circumstances of the parties at the time, a Court would not have made an open‑ended spousal maintenance order in the terms that it did pursuant to orders (9) and (10) of the 1992 Family Court orders.
The husband points to the affidavit filed by the wife at the time of seeking that the orders be made in accordance with the terms of that settlement document. That affidavit sets out that the wife had a certain income, being social welfare payments of $168.50; child endowment of $60 and maintenance from a previous marriage of $158.00.
The maintenance from a previous marriage was explained by the wife as being the maintenance that she had been receiving from the husband in these proceedings; namely, $158.00 per week. As was correctly pointed out by Mr Maddox under s.75(2), the Court would not be entitled to take into account the social welfare payments of $168.50. In any event, her total weekly income at that time was $386.50.
The wife sets out the various expense items for food and household supplies, $150; clothing, $30; medical, dental, hospital and chemist, $5; mortgage payments that were paid by the husband, $0; rates and levies, $20; electricity, gas and heating fuel, $15; telephone, $10; loan from Westpac Banking Corporation paid by husband, $0; child‑care and education, $20; fares and petrol, $40; car registration and maintenance, $20, which totalled some $310 per week.
At the time the wife had the full care of the three children of the marriage, who were then aged, relevantly, 10, 8, and 5 years.
The parties had real estate at the time, jointly owned, valued at $160,000. They had nominal amounts jointly owned in the Westpac Bank accounts, the child endowment account and a St George pension account. The wife says that she had $30.00 in the credit union account with Illawarra Credit Union Limited, $2,000.00 worth of furniture, a 1982 Falcon worth $4,000.00 and the husband had a Falcon utility worth $4,000.00. She says that she was not a member of a superannuation fund.
The husband, it would appear, was a member of a superannuation fund, although there is no specific evidence before the Court as to the value of his interest in that fund in 1992. The husband gave some evidence that a recent valuation, namely in 2009, was in the order of some $1,600.00.
The wife says that, at the relevant time, in 1992, the parties had a mortgage to Westpac of some $77,000.00; a loan from Avco in the name of the husband of $4,000.00; a loan from NRMA in the name of the husband of $4,000; a MasterCard debt of $2,000.00 in the husband’s name; a credit card debt with Grace Brothers in the husband's name of $1,500.00; a credit card Water Stores in the name of the husband for $800.00; and a loan from Commonwealth Bank Financial Corporation jointly held with the husband of some $10,000.00.
The wife asserted that the husband had the capacity to earn an income as he was employed as a [omitted]. She said at the time she had no property income or financial resources other than was as set out in her affidavit.
Further, the wife asserted that she and the husband had instructed a solicitor to commence proceedings against Mr H for unpaid moneys relating to a [business] contract. The amount being sought was some $18,000.00 and she proposed to continue with the proceedings against Mr H and any amount that she sought to recover or recovered was to be paid towards the CBFC loan for which the husband had assumed responsibility. Notwithstanding this, the 1992 Family Court orders stipulated that the husband would indemnify the wife in respect of her liability to CBFC Finance Limited in relation to a car loan.
Further, the 1992 Family Court orders provided for the husband to indemnify the wife in relation to an amount of some $15,000 said to be owing to the husband's brother.
The effect of the 1992 Family Court orders was, essentially, that the husband retain the Ford Falcon utility motor vehicle and his MLC superannuation and life insurance policy. The wife took a transfer of the subject land (and the matrimonial home) and took over the obligations to meet the mortgage to Westpac Banking Corporation. She retained her 1982 Ford Falcon, her Westpac Banking Corporation account for her family allowance, her St George Building Society account for her pension payments, her Illawarra Credit Union account and trust for the child [U] and the furniture and contents of the former matrimonial home.
The husband was ordered to pay the wife ongoing maintenance for herself in the sum of $200.00 per week adjusted in accordance with order (2) for Consumer Price Index increases.
Ms Friedlander directed the Court to the wife's initiating application which conceded that the parties had contributed to the acquisition of the matrimonial property. It was asserted that the wife had claimed that she had made a contribution from earnings whilst the parties operated their [omitted] businesses yet did not make a similar concession concerning the husband's contribution. The wife disputed this and said that the effect of her application was to accord such credit to the husband. Nevertheless, Mr Maddox asserted that it was an initiating application and the wife was under no obligation to necessarily present contributions made by the husband, that being a matter for his response. Obviously, any facts asserted in the application needed to be within the applicant's personal knowledge and true.
The Court does not have before it any of the documents relevant to the Family Court file and the making of the 1992 Family Court orders. The Court does not have any application which may have been on that file or any other documents which might lend or might give some further light to the background of the said orders being made by consent of the parties. The consequence of any failure to have such documents before the Court must be borne by the applicant who bears the onus on this application.
The wife's affidavit also refers, in paragraph (10), to the facts relied upon by her to ground the maintenance orders. Those facts at the time were to the effect that the wife was 34 years of age and in good health. The husband was 35 years of age and in good health. The husband was employed as a [omitted] and had an asserted substantial earning capacity. The wife was engaged in home duties and had an asserted limited earning capacity given she had the care of the three children of the marriage, then aged 9, 7and 4. The husband continued to contribute to a superannuation fund and the wife did not contribute to such a fund. The wife proposed to apply to the Child Support Agency for child support and the length of the marriage had she asserted affected her capacity to earn an income. She contended that she had nevertheless contributed to the husband's capacity to earn an income.
In relation to s.83(2)(ba), if the Court finds that the order was made by consent, and in this case it does, then the Court can still vary that order if the amount ordered to be paid is not proper or adequate. In that regard s.83(6A)(5A) states that:
“In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments and any transfer or settlement of property previously made by a party to the marriage to the other party or any other person for the benefit of the other party.”
It was initially raised by Mr Maddox that as the transfer of property was effected by a contemporaneous order with the maintenance order, it could not be “previously made” in accordance with 5A. The Court is of the view, however, that it is the Court considering the variation that is entitled to look to any previously made transfer or settlement of property.
Accordingly, the Court does have regard to the transfer of the property pursuant to the 1992 Family Court orders, when considering whether the amount ordered to be paid is proper or adequate.
The wife’s evidence was that after the transfer she entered into an arrangement with the mortgagee on the subject land whereby she would pay 50% of the mortgage instalments. The subject land was sold 2 years later and it would appear the wife received “net”, some $23,000.00 which was then used to repay her father for the use of a caravan on his property where the wife and the children had lived and then later to build a patio on her father’s house. The wife, subsequently appears to have obtained this property in 2008 from her father, who still, currently lives with her.
The Court has also had regard to the affidavit of the wife which states that she was, in fact, receiving from the husband the sum of $158 per week prior to the 1992 Family Court orders. In the circumstances of the matter, the Court is of the view that the amount ordered to be paid cannot be found to be not proper or adequate in the circumstances. The real issue is not as to the quantum of the amount but the length of time for which that amount was said to otherwise be payable for.
Accordingly, this is where the case is further complicated, simply by the elapse of a substantial period of time; namely, some 17 years. The evidence would indicate that the husband was well aware of the obligation to make spousal maintenance if not from the date of signing the 1992 Family Court orders, then certainly in 1993, when he spoke to a solicitor at Emerald about the matter, and at a number of times after that, including in 1998 (when Bell Miller solicitors referred to it) and in 2000. On each of those occasions Mr Maddox submits and the Court accepts that the husband could have applied for a variation of the spousal maintenance obligations, but failed to do so. The husband’s evidence was that in 1998 he received $60,000.00 from a personal injury claim. This figure had been reduced by legal expenses, and it would appear that in about May 1998 the sum of $42,878.00 was received and paid towards child support. The husband’s evidence was that he personally received “not one cent” from his compensation monies.
The Court does not accept the husband’s submission that because he was assessed to pay child support this should be considered together with the spousal maintenance sum. It is clear the husband only paid child support form 1992 to 1995 and then stopped.
The husband’s explanation is that he did not have the money to pursue any such application. That is hard to believe, given that the $200.00 weekly spousal maintenance exposure would have increased to a debt of something in the order of $10,000.00 per annum. It also appeared that he had the relevant capacity to make those payments.
What then happened is that the husband left to go to New Zealand in 1995 and at the time it became apparent that the then existing child support obligations could not be enforced against him in New Zealand. Accordingly, it may then have been considered just and equitable for the $200 spousal maintenance payment to continue, as the wife was not receiving any child support payments.
The position is further complicated by the fact that when it came to a review of the husband's child support obligations in 1994 he was assessed at 36 per cent of his income, which was then divided between the wife as to three‑sixths and two‑sixths to the husband's other child support obligees (existent at the time) and one‑sixth to take into account his then spousal maintenance obligations to the wife. The husband obtained a reduction in child support by virtue of the assessor taking into account his then ongoing spousal maintenance obligations.
Matters are further complicated by there being a further number of children for which the husband is obligated to pay child support. It would appear that there are 7 children in all, three of which relate to the parties to this marriage and 4 children that would have been in existence at the time of the 1992 Family Court orders. The husband’s evidence “that as at October 2008, no moneys were owed by him for child support for the 3 children of the relationship of these parties” was not disputed by the wife.
Ms Friedlander, who appears for the husband, has totalled up the amount of spousal maintenance assessed as owing in the sum of $198,308.00. Against this she has deducted the amount currently outstanding as at 7 September 2009, being $126,238.00, leaving a balance of $72,070.00. This, she says, is the amount that the husband must have paid for spousal maintenance. She has then divided that sum by 914 weeks, being the number of weeks from the date of the order up until September 2009 which equates to approximately $78.85 per week.
The husband’s application seeks a variation of the child support to be effected from the date of the consent orders from 4 March 1992 to the figure of $78.00. This is done on the basis that if that figure is ordered without any Consumer Price Index increases, then it will equate to the amount of money which the husband has otherwise paid during those years, and accordingly, any arrears or interest will be recalculated and brought to nil.
This is said by Ms Friedlander to be a pragmatic approach because it seeks to address the difficulty that the husband finds himself in now. However, it requires the Court to make that variation effective from the date of 4 March 1992, which is an almost impossible exercise given that much of the financial information which could have been put before it if such an application was made at an earlier point in time, is not available today.
The Court cannot be satisfied that the figure adopted by the husband is, in fact, an appropriate and just spousal maintenance sum which the Court would have otherwise ordered on 4 March 1992.
If the husband had brought the application, say, in 2000, the Court would have been assisted by the financial information then available to both parties and would have been able to determine whether the order should have been varied at that time.
The Court is of the view that the applicant husband has not satisfied the onus on him to show that the amount of $200.00 per week ordered on

4 March 1992 was not otherwise a proper or adequate amount.
A similar position applies with respect to the application of s.83(2)(a) whereby the Court is obligated to consider, after the spousal maintenance order was made, the circumstances of a person for whose benefit the order was made having so changed, or the circumstances of the person liable to make payments under the order have so changed, that the orders should be varied.
There is no doubt that the wife’s financial circumstances have changed and that she is in a better financial position than the husband.
However, as Mr Maddox submits, that change has been accommodated by the discharge of the spousal maintenance order in February of 2009. The real issue is as to what the Court should do with respect to the arrears.
Under s.83(8), the discharge of an order does not affect the recovery of arrears due under the order at the time at which the discharge takes effect.
Mr Maddox submits that in the period from 2 March 2009 to

7 September 2009 the arreared debt of spousal maintenance has reduced from $129,622.72 down to $126,238.87. Mr Maddox maintains that there is benefit in the wife continuing to receive the payments of arreared spousal maintenance.
The husband, however, asserts that in that same period his child support payments, which include spousal maintenance, has gone from $333,201.00 up to $417,630.00. The difficulty with this is that these debts appear to include the husband's child support obligations to persons other than the wife in these proceedings.
Nevertheless, it is of concern to the Court that the husband’s current debt is in the order of some $417,000.00, which with his current fortnightly assessment of $940.50 (broken up as to $920.00 for current child support and $20.00 towards overdue amounts), would see the husband repaying this debt in 444 fortnights or 17 years, not taking into account any further late payment penalties or interest. However, the husband appears to in fact be making monthly payments of $361 towards this debt which would see the debt paid out in something like 1,155 months or 96 years.
Given the husband’s current financial circumstances as set out in his financial statement, he earns between $900.00 and $1,000.00 per week after tax ($1,300.00 before tax) with weekly expenses of between $808.00 and $873.00. He has rent of some $300.00 per week together with a number of other debts. His only assets are $10,000.00 worth of household contents and whatever equity he has in a motor vehicle which is the subject of a hire purchase debt. He says that he spends approximately $320.00, on his weekly expenses.
The husband says that he has a current child support private arrangement for [Z] of $75.00 a week and a child support assessment referable to [Y] of some $286.00 a week. He has insurance premiums of $39 per week, $70.00 hire purchase to Hopscotch Money, $75.00 per week to BNZ personal loan, $25.00 a week to BNZ Visa minimum credit card payments, $60.00 a week for Consumer Finance, $10.00 a week for home direct and $55.28 a week to GE Finance. Those total some $695.00 per week.
The Court finds that the husband knew of his spousal maintenance obligations from 1992 onwards and that at specific times this liability had been brought to his attention and that for various reasons including financial he had chosen to do nothing about it. Indeed, in the 1994 child support review, the assessor made it clear that the spousal maintenance sum was a matter for the husband to take up with the Court. This he failed to do until 2008.
The Court has no evidence of the wife’s financial circumstances at any specific time post the 1992 Family Court orders which would have enabled the Court to effect a proper assessment of any variation to the husband’s spousal maintenance obligations. The Court accepts that it was not incumbent on the wife to produce that evidence.
The Court is not satisfied that the spousal maintenance sum ordered in 1992 was not in fact a proper sum to be ordered at that time given the parties then asset and income positions and there is no basis for the Court to vary that sum to a figure of $78.00 per week effective as and from that date.
The husband says that his mother had told him that she had had a conversation with the wife to the effect that the wife had said that she was “forgetting about the child support and the spousal maintenance”, there was no evidence given by the husband’s mother as to this representation and no evidence of any reliance on it or change of position by the husband based upon it.
The Court does not accept that the husband had thought that the wife had voluntarily stopped any liability for the spousal maintenance. This was inconsistent with his own evidence that he had been aware of the spousal maintenance obligation persisting but that he had insufficient funds to make any application to the Court to vary or discharge that obligation.
Further, the Court does not accept that the wife had given the property settlement terms document to the husband under the guise of being “insurance” documents and that there had been any fraud in that regard. The wife was never seriously cross-examined on this allegation. The Court prefers the wife’s evidence as to how this document came into existence and how it was ultimately signed by the husband.
There is substantial strength in the wife’s submission that because from 1995 onwards the husband ceased paying any child support then any justice and equity required that the husband continue to pay his spousal maintenance obligation of $200.00 per week.
Accordingly, the Court is of the view that the husband’s application should be dismissed, save that any arrears for spousal maintenance accrued during the period following the filing of the husband’s application on 10 December 2008 and the actual discharge of the spousal maintenance order on 4 February 2009 should also be discharged.

The Court will make an order for the provision of written submissions if there is to be any application for costs. If no application is made within the time specified, the Court proposes that there be no order as to costs.

I certify that the preceding one-hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Kemp FM

Associate: Joanne Balson

Date: 22 February 2010