P and D - [2003] FMCAfam 461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & D

[2003] FMCAfam 461

CHILD SUPPORT – Payment of maintenance – child support order made in District Court of New Zealand (Family Division) and registered in Australia with Child Support Agency – husband sought under Regulation 36 of the Family Law Regulations that the order made in New Zealand be discharged together with all arrears – elements of cause and action estoppel and res judicata – whether an order pursuant to s.66W(2)(b) of the Family Law Act should be made to decrease or vary the arrears accrued prior to registration with the Child Support Agency – husband's financial circumstances diminished – wife in better financial position – husband pay outstanding sum to wife to free the husband from any vulnerability to the Child Support Agency – garnishee order made.

Family Law Act 1975 (Cth), ss.66L(2), 66L(3), 66S(1), 66W, 66W(1), 66W(2)(a), 66W(2)(b)
Child Support (Registration & Collection) Act 1988 (Cth), ss.30, 72(A)
Family Law Rules 1984, Order 18, Order 33, Rule 47(4)
Family Law Regulations, Regs 36, 36(1), 37 and 38

Vakal v Vakal (1997) FLC 92-743
Heethuis v van Jenderen (1999) FLC 005
Rothsterin v Child Support Registrar (1994) FLC 92-490
Port of Melbourne Authority v Anshen Pty Limited (1981) 147 CLR 589
Blair v Curran (1939) 62 CLR 464
Stein v Black (2000) FLC 93-005
Kemeny v Kemeny (1998) FLC 92-806
Marginson v Blackburn Borough Council (1939) 2 KB 426
P v D (2000) Fam CA 894
"Res Judicata" Spencer, Bower, Turner and Handley, Butterworths, 3rd edition, at page 251, paragraph 443

Applicant:

A P

Respondent:

A D

File No:

MLM6798 of 2002

Delivered on:

12 December 2003

Delivered at:

Melbourne

Hearing date:

29 August 2002

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

In person

Counsel for the Respondent:

In person

Solicitors for the Respondent:

In person

ORDERS

That pursuant to s.66W(2)(b) of the Family Law Act 1975 the order dated 23 February 1988 in the New Zealand District Court and registered in the Melbourne Magistrates Court on 22 August 1990 be varied as from the 8 April 1993 by decreasing the arrears to be paid under the order from the 9 April 1993 to the sum of $100.
That the application of the father that order (1) of the orders made on
1 August 2002 staying or enforcement processes by the Child Support Agency be forthwith discharged.
The applications of the father filed 31 July 2002 seeking a stay of the operation of s.72(a) of the Child Support (Registration & Collection) Act 1989 and the application filed 8 August 2002 seeking discharge of the order of 23 February 1998 and return of $542 from the respondent is dismissed.
Pursuant to order 33, rule 47(4):
(a)(for and on behalf of the Victorian WorkCover Authority), the garnishee, deduct from the benefits payable to the father the sum of $30 per week ("the normal deduction rate") in satisfaction of sums payable to the mother pursuant to this order and the order of the Family Court of Australia made on 24 May 2001 in the sum of $15,000.
(b)The father's earnings shall not be reduced by compliance with this order below the sum of $380 per week ("the protected earnings rate").
(c)the garnishee, pay such working amounts to the mother or at such other address or by such other means as she indicates to the garnishee.
(d)The Garnishee may deduct from the normal deduction rate referred to in paragraph (a) such administrative expenses as are reasonably incurred but no more than the sum of $10 per week.
(e)The date upon which the payments shall commence is the next payment day to the father following service of this order upon them.
(f)The mother cause a sealed copy of this order to be served on the Garnishee in accordance with order 18 of the Family Law Rules as soon as practicable 14 days after service of sealed copy of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM6798 of 2002

A P

Applicant

And

A D

Respondent

REASONS FOR JUDGMENT

The applicant, A P (father), has filed two applications, which relate to payment of maintenance in relation to four children of himself and his ex-wife A D (the mother). The father and mother were married in New Zealand and had five children. They separated in December 1982 and were divorced in October 1986.

Previous litigation between the parties

There have been previous proceedings between the parties in the Family Court of Australia at Canberra, which resulted in a decision by Faulks J on 20 July 2000. His Honour describes the relevant background thus:
"After proceedings in the New Zealand District Court, his Honour Pehig J on 19 November 1984 suspended contact between the children and their father. On 14 February 1985 his Honour, Beatson J, made final property orders between the parties which enabled the mother to keep the family home but obliged her to pay $12,500 to the father on or before 14 February 1987.
Shortly afterwards, by way of an interim order, the applicant was ordered to pay $20 per week per child by way of child maintenance. This order was made on 29 May 1987 and was made in the circumstances where (apparently) it was clear to the presiding Judge that the applicant would not have the wherewithal to pay the order at that time. It is apparent from his Honour's judgment that the applicant had indicated an expectation that he would make some money from the sale of specialist Japanese motorcars in New Zealand. In effect, the proceedings were adjourned for six months to enable this to occur and His Honour commented as follows: His Honour on page three ordered that: " ... interim maintenance order which is to remain in force for a period of six months and adjourn the substantive application for maintenance to a date to be fixed by the Registrar. On application by other party after the expiration of the six months period, I would expect it to be set down a week after six months.
He further continued down on the same page:
… I accept the respondent probably does not have the means to pay that maintenance.
The husband asserts that shortly after that time, in fact within weeks, the mother left New Zealand permanently with the children. The respondent says she left in the following December. It is common ground, however, that the applicant in fact left New Zealand within a few weeks of orders having been made. While his evidence about the matter is, to say the least, confusing, it does appear that the applicant having spent Christmas and New Year in Australia did return to New Zealand at or about the time the matter came back before the Court on 23 February 1988. On that occasion, neither the applicant nor the respondent was before the Court although the listing of matter was at the instigation of the respondent. The respondent filed an affidavit in support of her application.
The trial Judge proceeded in the absence of the applicant (father) and ordered that he pay the sum of $25 per child per week with the first payment to commence on 28 February 1988. He also calculated that arrears and maintenance amounted to sum[sic] $8900. The trial Judge also noted that the property order had not been complied with by the wife but that she had paid, he found, some $3500 worth of debts by or on behalf of the husband.
In addition there was some costs ordered and the net effect was that arrears at that point were to be discharged.
Although the evidence before this Court demonstrates (by way of a notation to a copy of the orders) that it is asserted by one of the Court Bailiffs, that personal service was effected on the applicant, the husband, says he knew nothing about that and that the first he knew of the orders was when he received the letter from the enforcing authority in New Zealand in June 1986.
After the orders were made and before the proceedings began in Australia, there seems to have been fairly fluid movement by the applicant between Australia and New Zealand.[1]
For her part the wife registered the order in Australia with the Child Support Agency in 1990 and, as appears from an Axure to one of her affidavits[2] (which is in effect a shorthand chronology of the action she undertook to enforce the arrears) she then corresponded backwards and forwards with both the Australian and New Zealand authorities for some time. This resulted ultimately in her obtaining restraining orders from Magistrate Goldsbrough on 19 August 1998, which in turn produced a final determination of enforcement proceedings from her Worship on 7 September 1998.
In the meantime the present applicant, having been discovered, spent some 14 days in jail. Her Worship ordered payments for a period she said was between 10 March 1998 and 28 June 1992 of a total of $18,379.50. Both counsel in relation to the matter before the Family Court agreed that this figure was wrong.
As a result of a certificate produced from the relevant authorities in New Zealand the total amount due was agreed to be $36,375 until the date of registration with the Child Support Agency (28 June 1992) and this amount should be reduced by $8900 to take account of the offset ordered by Judge Pethig. This was estimated to be in the vicinity of $20,425 New Zealand or about $22,895 Australian dollars. In addition the Commonwealth was owed[3] from the time of registration about $15,000, comprised, it was asserted some $10,000 by way of child support and $5000 in penalties.
The applicant having been located was arrested on 2 July 1998 and was in jail until 14 July 1998. The hearing that occurred before her Worship was a substantive one and at the end of it she ordered that there be a $60 garnishee order directed to the income producer for the husband allowing protected earnings of $300 per week. I was informed that the Child Support Agency had come to an agreement on an interim basis of payment by the applicant of $20 in total per week.
[1] One estimate given was that he would move backwards and forwards about eight or nine times
[2] Which is in effect a shorthand chronology of the action she undertook to enforce the arrears
[3] To be collected by the Child Support Agency
The proceedings before Faulks J were commenced by the husband instituting an appeal against the orders of Magistrate Goldsbrough, however on 11 January 1999 the father filed an application for interim orders[4] seeking the following:
(1)that the orders made by the District Court of New Zealand (Family Division) at Wellington on 29 May 1987 and 23 February 1988 be discharged;
(2)that the Court not exercise its discretion to enforce the orders referred to in paragraph (1) hereof in whole or in part;
(3)that the wife pay the husband's costs.
[4] And subsequently for final orders
Justice Faulks set out the relevant regulations governing the enforcement of overseas maintenance orders, which are to be found in Family Law Regulations 36, 37 and 38. Regulation 36 provides as follows:
"36(1)[Application to vary an overseas maintenance order].
Where an overseas maintenance orders is enforceable in Australia, a person to whose benefit the order was made or the person against whom the order was made may apply to a Court in which the order is registered for an order discharging, suspending, reviving or varying the overseas maintenance order.
37[Discharge of overseas maintenance order made in absence of party] where:
a)an application is made under sub-regulation 36(1) by the person against whom the order was made;
b)the applicant was not duly served with the summons to appear in the proceedings in which the order was made, did not appear in those proceedings and did not consent to the making of the order;
c)the application is made within six months after service on the applicant of notice of registration of the order in Australia;
d) the applicant may raise any matter that the applicant could have raised under Part VII or VIII of the Act had the proceedings in which the overseas maintenance order was made being heard in Australia."
Justice Faulks dealt with the difference between the operation of Regulation 36 and 37, and following the decision of the Full Court of the Family Court of Australia in Vakal v Vakal (1997) FLC 92-743, concluded at paragraph 27:
"It would seem that if the applicant is unable to bring himself under the provisions of s 37 he would have to demonstrate in the words of their Honours in Vakal v Vakal that the proceedings in New Zealand had been 'tainted by fraud, the suppression of evidence or the giving of false evidence or other circumstances leading to a miscarriage of justice.' If you were at liberty to proceed under regulation 37, then you could rely upon any matter relevant to the modification of a child maintenance order under the Family Law Act 1975."
Acknowledging the difficulties that were presented to the husband His Honour noted that the father had some difficulty in demonstrating that the proceedings in New Zealand were unfair to him because the statements of Beatson J, contemplated that the respondent father may well have seen fit to relist the matter at the end of the six month period referred to and the failure by the father to do so to some extent brought about his own downfall.
His Honour said however that unlike in Vakal v Vakal where the husband deliberately choose not to appear, where a party is not present in Court when the order is made "there must be a prima facie case for a discharge of the order" although as was pointed out by Their Honours in Vakal v Vakal the fact that the threshold requirement of a just cause is established does not then preclude an exercise of discretion against the setting aside of the order subsequently.[5]
[5] Paragraph 34, reasons for judgment
His Honour concluded therefore that there was just cause within the definition of that term under the Family Law Act for the discharge of the order but His Honour then had to consider whether he should exercise his discretion. His Honour characterised the wife's position[6] as follows:
"Effectively the claim was to reimburse her for money that had been expended in the past in relation to the children. There can be no doubt that there was a significant moral claim by her but the real question was whether that was supported at law."
[6] Paragraph 44, reasons for judgment
His Honour then went on to deal with the law as it stood at that time which is now different in an important respect. The question that he had to consider was whether the husband could apply for a variation or discharge of the order. Counsel for the mother had submitted that the father could not apply for a variation because the orders was not "in force" at the relevant time. Section 66S(1) then read:
"This section applies if:
a)there is in force an order (the first order), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):
i)made by a Court; or
ii)registered in the Court under the applicable Rules of Court; and
b)a person (being someone who could apply for a child maintenance order in relation to the child) applies to the Court for an order under this section in relation to the first order."
His Honour was referred by counsel to the decision of May J, in Heethuis v van Genderen (1999) FLC 005 and Rothsterin v ChildSupport Registrar (1994) FLC 92-490.
However Faulks J did not agree with the literal interpretation of the provisions of s.66S(1), which the Court had applied in the two cases referred to. His Honour concluded that the order was in force and that both enforcement (by the mother) and variation and discharge (sought by the father) were possible. His Honour then finally disposed of an argument raised by the father that enforcement should only occur for a 12 month period.
His Honour thus considered the father's application for variation and the mother's application for enforcement.
His Honour dealt with the evidence relating to the means and assets of the parties and said quite a substantial part of the evidence before the Court proceeded on the assumption that the Court would in fact consider the means and assets of the parties with a view to determining whether it was appropriate for enforcement to occur or for the discharge of the order or the modification of the order.[7]
[7] Paragraph 35, reasons for judgment
His Honour's assessment of the father's means and assets appears in the reasons.[8]
[8] Paragraphs 35 to 42
His Honour did not actually make any clear findings about the father's application for discharge or variation of the orders. However it seems reasonably clear from his findings and the orders that he made that he did not find merit in the father's case that the order should be discharged or varied other than in a limited way which related to enforcement.[9]
[9] Paragraphs 36 to 42
His Honour considered the question of whether there should be enforcement of arrears of maintenance and determined that the father should be obliged to pay $15,000 (less than the arrears ordered by Magistrate Goldsbrough) and that that sum should be discharged by weekly payments of not less than $30 per week. His Honour said at 69:
"I am mindful in making that order that it will take nearly 10 years for that sum to be discharged and I am also mindful of the fact that the husband is also contributing to a debt to the Commonwealth through the Child Support Agency.
To provide an incentive for an earlier repayment I believe it would be appropriate that the total sum to be repaid should be reduced to the sum of $10,000 if that sum is paid within one year. However I am not prepared to make that order without the written consent of both parties."
He noted at 72 that in the order he made was a provisional order until approved by the New Zealand courts.
The orders made by His Honour (made on 24 May 2001) were as follows:
"(1)that the orders made by Beatson J, on 23 February 1988 in relation to the children of the parties are varied to provide, in relation to the period prior to the registration of those orders with the Child Support Registrar in Australia, that the total due in respect thereof is the sum of $15,000 subject to the orders set out hereunder;
(2)that by way of enforcement in relation to the payment of those arrears the husband will pay that sum at the rate of $30 per week until its discharge;
(3)that the husband then shall hereafter provide to the wife on a monthly basis, copies of all pay slips or advices he receives or record of any government pension or benefit he receives and will provide to her on an annual basis a copy of his tax return and any assessment received by him."
There are two different interpretations that can be given to order number (1). The first is that it is consistent with the Reasons for Judgment[10]. His Honour determined that the husband had not established as a matter of discretion that there was any "just cause" for varying existing orders and that the husband's application for variation had been unsuccessful. Reference to the sum of $15,000 was really a fixing of the arrears at that sum and although the order expressed it as a variation to the original orders it was not in fact a variation but could equally have been expressed to say that the arrears be fixed at $15,000. The consequence of that would be that the orders had not been varied. The second interpretation is that the orders should be read in a straightforward way and indicate that there was a variation of the orders to the sum of $15,000. The mAr in which it is characterised may well be relevant. In my view His Honour intended the first of the interpretations. That is that the husband's application for variation was not successful and there was really a fixing of the arrears. I come to this view because for the following reasons:
b)a failure by His Honour to positively find that the husband's case for discharge of variation was successful;
c)His Honour considered in detail the discretionary nature of enforcement.[11]
[10] Paragraphs 36 to 42 inclusive
[11] Paragraphs 53 to 61 of the reasons for judgment

His Honour then concluded that the wife had done all things reasonable to enforce the orders[12] and decided that there were no factors beyond the financial means of the parties, which would prevent him from permitting enforcement to occur.[13] In paragraph 69 His Honour said:
"Although the question is somewhat arbitrary, in my opinion, the husband can and should be required to make partial payment by way of enforcement of the arrears of maintenance. In my opinion the amount he should be obliged to repay is $15,000 and that sum should be discharged by weekly payments of not less than $30 per week. I am mindful in making that order that it will take nearly 10 years for that sum to be discharged and I am also mindful of the fact the husband is also contributing to a debt to the Commonwealth Child Support Agency."
[12] Paragraph 62 of the reasons for judgment
[13] Paragraph 63
That is couched in language which pertains to enforcement rather than variation.
His Honour then provided an incentive for an earlier repayment.[14] He provided that if the parties agreed in writing that he would reduce the total sum to be repaid to the sum of $10,000 if it was paid within one year.
[14] Paragraph 70 of the reasons for judgment
In fact there was no agreement in writing so the order was not made by His Honour however it is an indication in my view that His Honour was concerned with enforcement rather than variation.

Present proceedings

The husband's first application was for a stay of enforcement by the Agency and such a stay was granted on 1 August 2002.
The husband's application which then proceeded before the Court was filed on 8 August and sought as follows:
(1)under regulation 36 the order of the New Zealand Family Court dated 23 February 1988 registered with the Melbourne Magistrates Court on 22 August 1990 be discharged together with all arrears:
(2)the notification of these orders be sent to the New Zealand Family Court in Wellington, New Zealand to be put on file;
(3)that the mother is prevented from abuse of process by way of an intervention order from using any telephonic and written communication and other means to various departments, agencies, authorities and enforcement bodies to harass my wife and myself;
(4)that the respondent wife immediately return to the husband the sum of $542 diverted from his Work Cover payments under s.72A order.
The husband abandoned orders (4) and (5) of the application which sought orders against the child support Agency. Because of the complexity of the enforcement regulations the Child Support Agency attended and responded in writing to a number of questions that I raised. Those questions and answers are as follows:

When was the New Zealand order dated 23 February 1988 registered for collection with the Child Support Agency?

New Zealand order dated 23 February 1988 was registered in the Melbourne Magistrates Court on 22 August 1990 by way of a form 1 application. The New Zealand order as registered in the Melbourne Magistrates Court was registered for collection with the Child Support Agency ("the Agency") commencing on 8 April 1993

What is the Agency collecting and on what basis is it being collected?

The Agency is collecting the amount set out by the orders of the New Zealand Court referred to above as registered in the Melbourne Magistrates Court which provides for an amount of $25 for each five children while under the age of 18 payable weekly. When the children have reached the age of 18 the Agency has stopped collecting the funds in respect of them.

Why is the Agency collecting a different rate than is specified in the orders of Faulks J, made on 20 July in the Family Court of Australia in Canberra?

Our client believes that the orders of Faulks J, relate to the period prior to the liability being registered for the collection with the Agency from 8 April 1993 (refer to paragraph 1 and 2 of the orders) as these orders relate to a period before registration for collection, it is our client's position that they relate to liabilities for which the Agency is not responsible. Accordingly, the Agency has followed the terms of the New Zealand orders referred to above.

Why is the Agency still collecting maintenance?

The Agency is only collecting arrears of maintenance in relation to liabilities owed by the applicant from registration of his liability for collection from 8 April 1993. The applicant presently owes the Commonwealth $10,803.65 in unpaid child support. There is no continuing liability as all of the children are over the age of 18.
I agree with the Child Support Registrar's contention that it is clear from order (1) of the orders made on 24 May 2001 that the fixing of the amount due of $15,000 was, as the order says "in relation to the period prior to registration of those orders with the Child Support Registrar in Australia". The Child Support Agency indicated that they would play no further part and would abide by the orders of the Court.

The husband's contentions

The husband is seeking a discharge of the order of 23 February 1988 together with all arrears. If successful this would discharge all arrears pre and post registration with the Child Support Agency.

Is the husband estopped from seeking an order for discharge or variation in view of the proceedings before Faulks J and in particular in view of the findings made by him and his failure to accept the husband's case for discharge and/or modification of the original orders?

The applicant had filed an application for enforcement on 9 August 2002 in Brisbane. She indicated that she would withdraw the enforcement summons upon being given leave to make an oral application for enforcement in the same terms. Leave was given at the commencement of the hearing. The terms of the enforcement application are those set out in form 46 of the Family Law Rules and the applicant seeks to have the husband examined as to his means and for the Court to make such order as it thinks fit:
a)for an order for payment of the money owing;
b)a garnishment order in respect of money owing;
c)an order for seizure and sale of personal property;
d)an order that the estate be sequestrated;
e)an order for seizure and sale of an interest in land belonging to the husband; and
f)any other orders as it thinks necessary to enable enforcement of the orders.
The affidavit in support of the application and in respect of which oral evidence was given is essentially that the husband had not paid any lump sum in accordance with Faulks J order nor has he paid any amounts of $30 per week. She seeks the enforcement of Faulks J order by whatever appropriate means.

Background facts

It appears that no payments have been made pursuant to Faulks J's order.
The maintenance liability in respect to each of the children ceased on the following dates:
·24 October 1991
·6 November 1992
·19 March 1995; and
·9 June 1996
Although the mother was not represented and accordingly her position took the form of indicating that nothing had been paid by the father and that the Reasons set out in Faulks J's Judgment he had the capacity to pay when the children were under 18 and that the enforcement both by the Child Support Agency and by Faulks J should take effect.
It seems to me, however, that there are questions of cause of action estoppel which arise in this matter (See "Res Judicata" Spencer, Bower, Turner and Handley, Butterworths, 3rd edition) at page 251, paragraph 443 the learned authors said:
"Defences of res judicata are available where the cause of action sued upon has previously been litigated to judgment. Defences of issue estoppel are also available where an issue of fact or law which has been decided is raised again in later proceedings between the same parties, but only in respect of determinations of ultimate issues fundamental to the earlier decision and subject to the special circumstances exception. Issue estoppels cover determinations on issues in the proceedings, which can be inferred where actually decided, and other questions, which were fundamental to the earlier decision as though they were not, for whatever reason, in contention in those proceedings. Beyond that there is also an extended doctrine of res judicata based on abuse of process, which can apply where defences of merger, cause of action estoppel and issue estoppel are not strictly available."
In Port of Melbourne Authority v Anshen Pty Limited (1981) 147 CLR 589 at 610 Brennan J discussing the meaning of the term: "cause of action":
"Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment."
In reference to res judicata, D J said in Blair v Curran (1939) 62 CLR 464 at page 532:
"The very right or cause of action claimed or put in suit has ... passed into judgment, so that it is merged and has no longer an independent existence'..." (See also Stein v Black (2000) FLC 93-005)."
In Kemeny v Kemeny (1998) FLC 92-806 the Full Court referred with approval to the trial judge's judgment where Moore J said at page 85,085:
"The constituent elements of the doctrine are set out in "the doctrine of Res Judicata" Spencer, Bower, Turner and Handley, Butterworths, 3rd edition at page 17, paragraph 19, being those laid out in Marginson v Blackburn Borough Council (1939) 2 KB 426:
1)The decision was judicial.
2)The decision was in fact pronounced.
3)The tribunal had jurisdiction over the parties and subject matter.
4)The decision was final and on the merits.
5)The decision determined the same questions that raised in later litigation.
6)The parties to the litigation were parties to the earlier litigation."
Res judicata arises from a final judgment of a competent tribunal on the merits (See Stein v Black (2000) FLC 93-005).
The essence of the father's application is to discharge (or modify) the order of the New Zealand Family Court of 23 February 1988 registered with the Melbourne Magistrates Court on 22 August 1990. The effect of the discharge or modification would be to discharge or reduce the arrears owing by the father and thereby preventing the Child Support Agency from deducting them from his WorkCover payments, which is presently occurring. This was the same relief sought by the father in the proceedings before Faulks J. (See paragraph 17 of the Reasons for Judgment).
As I have indicated in paragraphs 28 to 32 of these Reasons, His Honour dealt with the application by the father and for the reasons I have expressed, in my view, he did not accede to the father's application for a discharge or variation. Even if I am wrong about the characterisation of His Honour's order and that, contrary to my view, it is an order for variation of the original order, it does not assist the father because the question of cause of action estoppel still arises.
The fact is that the proceedings before Faulks J were proceedings by the father for discharge or modification of the New Zealand orders made in 1988. At the time the matter came before Faulks J all of the children had turned 18 and he was considering whether a modification should be made in circumstances in which maintenance would not currently be payable. It is clear that:
i)The decision was judicial.
ii)The decision was in fact pronounced.
iii)The Family Court had jurisdiction over the parties the subject of the matter.
iv)The decision was final and on the merits.
v)The decision determined the same question as that now raised by the father.
vi)The parties to the present litigation are the same parties to the earlier litigation.
Thus, all of the criteria, the cause of action estoppel, have been established and what the father is now seeking to do is to re-litigate exactly the same issue which was litigated before Faulks J. In Halsbury's Laws of Australia, learned authors, at page 359079 paragraph [190-45]:
"The plaintiff's claim may be struck out or the action stayed or dismissed on the ground that it discloses no cause of action or that it's maintenance is an abuse of process."
For that reason the husband's application for a discharge or modification of the New Zealand orders must be dismissed.
There is one further matter that needs consideration. In his Reasons for Judgment, Faulks J referred to the decisions of May J in Heethuis v Van Jinderan and Fogarty J in Rothstein v Child Support Registrar. He declined to follow these decisions and held that he could, in appropriate circumstances, vary an order where the children had turned 18, notwithstanding the provisions of s.66S(1). Following the decision of Faulks J in P v D (2000) Fam CA 894 (Judgment delivered 20 July 2000 (unreported)).
The Family Law Act was amended and s 66W(1) and (2) were inserted by Act No 143 of 2000. Section 66W says as follows:
"Section 66W [Recovery of Arrears]
S66W(1) (Effective provisions). Nothing in sub-s66L(3) were in the subdivision, (apart from sub-s(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.
Paragraph 66W(1) [Effective Provisions]
Nothing in sub-s66L(3) were in this subdivision (apart from sub-s(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.
Paragraph 66W(2) [Retrospective Discharge or Variation of Order]
If arrears are due under such an order, when the order ceases to be enforced, the Court may, by order, retrospectively:
(a) Discharge the order if there is just cause for doing so or;
(b) Vary the orders 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 is 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 that was binding on, a legal person or representative - the circumstances of the estate are such as to justify the variation."
For the Reasons expressed in paragraph 55 I am satisfied that the father's claim for discharge of the original order must be dismissed. However there remains the issue of whether, pursuant to s.66W(2)(b) the order should be varied to decrease the arrears. Section 66W(2)(b) provides that the Court may do so if:
i)Circumstances of the person to liable to pay the arrears is such as to justify variation; or
(ii)The circumstances of the person entitled to receive the arrears is such as to justify the variations.
Relevant to consideration of this aspect of the father's case is the enforcement summons of the mother when she seeks to enforce the orders of Faulks J., which relates to that portion of the arrears, which accrued prior to registration with the CSA.
If the orders were not registered with the Child Support Agency, then the question of whether there should be a decrease in the arrears would not independently need to be considered and the question of whether payment of arrears should be made by the father could be considered in the discretionary exercise of the Court's jurisdiction to enforce the orders as sought by the mother. However, registration with the Child Support Agency gives the matter a different complexion. The Child Support Agency cannot decrease or increase the arrears. The Agency can only enforce the orders and although they have discretion as to the mAr of enforcement, which is exercised administratively, the father is entirely in the hands of the Agency as to mAr of enforcement and the Court has no role to play in enforcement of that part of the liability, which is registered with the Agency.
Thus, in relation to the mother's enforcement summons, the Court can exercise its discretion to enforce or not the orders made by Faulks J. No such discretion in relation to enforcement arises in relation to the post-registration liability because there is a debt due to the Commonwealth and a matter for the Child Support Agency[15].
[15] See section 30 of the Child Support (Registration & Collection Act) 1988.
The only way that the father can achieve any cessation of enforcement other than by agreement with the Child Support Agency, is to apply to a Court exercising jurisdiction under the Family Law Act to either discharge the order under s.66W(2)(a) or under sub-section (b) to vary the order by decreasing the arrears to be paid.
It is in relation to the arrears being collected by the Child Support Agency about which the father complains as he is not currently making any payments in accordance with the orders of Faulks J.

The financial circumstances of the father

The father's evidence in relation to his financial circumstances was that he has been receiving WorkCover payments since 16 March 2001 – between 16 March 2001 and 17 September 2001. He received gross payment of $527 per week and a net of $428 per week.
Between 24 September 2001 and from 24 September 2001 he has received $542 gross per week, a net of 440. The father supports his present wife who does not work. They have two cars, both in his wife's name. They live in rented premises for which they pay $610 per month rent. There is no evidence that the husband has any other income or assets.
These proceedings were occasioned by the Child Support Agency, issuing a s 72A notice to WorkCover which required them to deduct $135.50 per week from benefits payable to the father. Thus, his weekly benefits were reduced to $302.50 per week. This, he contends, is simply not enough to enable him and his present wife to live on and provides justification for the Court to decrease the arrears under the order because his circumstances justify a variation which would prevent the Agency from deducting this amount from his present income. He also relies upon the circumstances of the mother, which he contends are significantly superior to his financial position.

The mother's financial position

The mother is a clerk and works full-time. The mother's base income is $36,000 per annum plus a shift allowance, which provides her with about $40,000 per annum. Since 1988 the mother has bought and sold five houses which have all been the family home. She has remarried and at the time of the hearing was renting accommodation. Her fixed expenses include tax, rent of $240 per week. At the time of the hearing she had no interest in real estate but had $180,000 in joint bank account with her present husband. She has a motor vehicle and a few shares owned jointly with the husband, worth about $1100. She has no liabilities. She lives with her husband and son. At the time of the hearing her husband was employed and netted about $450 per week, together with a shift allowance. He also owns a vehicle. All the children have employment. The last children to become independent were the twins who lived with her up to the time when the house in Brisbane was sold early in 2002. All of the children are now financially independent.

Conclusion

The father's present position is significantly worse than that of the mother. The mother is working and she and her husband have a reasonably comfortable life and the children are now independent. She has no particular need for the arrears.
The father receives WorkCover in a limited sum and appears to have no capacity to increase his employment. He is supporting his present wife and he has no other assets. The Child Support Agency were deducting, before the stay of the s 72A Notice, $135.50 per week a significant sum from the father's weekly income.

The position before me is not very different from that which existed when the matter was before Faulks J. The findings that he made about the husband's position are really no different from the findings that I have now made. In particular, the findings he made at paragraph 67 are:
"In this regard the factors I believe to be significant are as follows:
(a) While I disagree with the terminology of the husband's counsel that any recovery of arrears would be a "windfall" to the wife, it is certainly true that the children are no longer the subject of any maintenance order and accordingly, any money to be recovered by her must be regarded as a reimbursement of funds that she had expended on the children previously.
(b) Notwithstanding the most assiduous of inquiries, the wife has been unable to establish the husband has greater assets than he has disclosed.
(c) The husband's conduct has been, at best, one of reluctant disclosure and at worst prevarication.
(d) In so far as the present circumstances of the parties are concerned, it could be said that the wife's financial situation is preferable to the husband's.
(e) There are certain items of expenditure of a discretionary nature in the husband's budget, which, in my opinion, are capable of some reduction.
(f) The husband without notice disposed of a significant sum of money (some $93,000) in a way which had the effect of, even if not the intention, of defeating the wife's claim."
In determining that the husband should pay $30 per week, His Honour was also mindful of the fact that the husband was contributing to a debt to the Commonwealth through the Child Support Agency but made no finding of what that sum was. That sum however, was significantly less than the sum of $135 which was being deducted prior to the stay of the s.72A Notice.
One of the difficulties that the Court faces is that even if the order were varied to reduce the arrears applicable to the debt being enforced by the Child Support Agency, the Agency would still have discretion to deduct whatever sum it saw fit from the husband's income unless those arrears were decreased to a very modest sum. One of the other problems in relation to the debt to the Child Support Agency is that so long is the debt is not reduced, it increases because of interest and administrative costs.
Having regard to these matters, I have come to the view that the circumstances of the father and those of the mother justify a variation of the order to decrease the arrears to be paid under the order so that the arrears total the to the sum fixed by Faulks J of $15,000.
In effect what I intend to do is to decrease the arrears payable under the order pursuant to s.66W(2)(b) as from the date of registration with the Child Support Agency to the sum of $100. The Child Support Agency will again be responsible for collecting that sum.
As to the mother's enforcement proceedings, having effectively discharged the amount to be collected by the Child Support Agency, the issue remaining is the enforcement of the orders made by Faulks J. The effect of the orders that I have made are to leave in place the sum of $15,000 outstanding by the husband and Faulks J's order for payment of $30 per week.
In all circumstances I regard it as appropriate for the father to pay this sum and to retain his outstanding debt. It is, in my view, justified, and accordingly just and equitable for the following reasons:
a)It does not leave the husband vulnerable to the Child Support Agency determining what amount should be deducted, although it is available to the wife to register the enforcement order if she wishes.
b)The wife is in a significantly better position than the father at this stage of their lives. There is an injustice in the fact that she did not receive support for the children when it was required, however, I must take into account the present position of the parties and, in my view, it would now be inequitable for her to receive the sum of $30 per week. In leaving the father with a debt of $15,000 I am leaving him with a continuing liability and if his financial position improves at any stage then the means by which that sum is paid can be varied. It is however important that the order be paid and I intend to make a Garnishee order which will ensure payment of the arrears to the wife.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Bryant FM

Associate: Peter Smith

Date: 12 December 2003