Parris & Parris
[2021] FedCFamC2F 13
•8 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Parris & Parris [2021] FedCFamC2F 13
File number(s): MLC 1320 of 2021 Judgment of: JUDGE A KELLY Date of judgment: 8 September 2021 Catchwords: CHILD SUPPORT – discharge or variation of overseas order for child support – where Superior Court of California makes order for child support, including that it cease upon child attaining majority – where father seeks retrospective discharge of orders – where two of the parties’ children are now adults – where the applicant father is now liable to pay child support for two younger children – where applicant pays no child support from 2015 to 2020 – where mother seeks enforcement of order via Californian Child Support Services Department – where mother registers Order in Australia – where applicant in substantial arrears applies for discharge of order of Superior Court of California – where Australian earnings are withheld and applied in satisfaction of liability – where father accepts ongoing liability for child support – where two elder children are now adults – where father seeks that liability be reassessed, retrospectively, to take account of evolving and present circumstances – applicable principles – whether just cause shown for discharge – whether liability for child support for all children may be reassessed in Australia including for a child not resident in Australia – orders to vary child maintenance.
SPOUSAL MAINTENANCE – discharge or variation of overseas order for spousal maintenance – where Superior Court of California makes order for spousal support – where order provides for spousal support to cease on respondent’s death or remarriage – where applicant migrates to Australia, remarries, becomes an Australian citizen and father to two further children – where applicant secures employment in 2015 – where applicant pays no child support from 2015 to 2020 – where mother seeks enforcement of order via Californian Child Support Services Department – where mother registers Order in Australia – where Australian earnings are withheld and paid in satisfaction of liability – where applicant, in substantial arrears, applies for discharge of order of Superior Court of California – whether just cause shown for discharge – orders to vary spousal maintenance.
PRIVATE INTERNATIONAL LAW – Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007 (No 38) – Convention on the Recovery Abroad of Maintenance 1956 – where judgment of Superior Court of California determines liability of applicant to pay spousal and child support – where applicant departs United States and becomes Australian citizen – where applicant is resident in Australia – where applicant father to two younger children – where applicant is in arrears of liability to pay spousal and child support to former spouse and children in United States – where two of those children are now adults – where applicant now liable in Australia for child support of younger children – where liability under judgment entered on Child Support Register in Australia – where Child Support Registrar gives notice to applicant’s employer to withhold portion of applicant’s wage – where Child Support Registrar remits withheld monies to Child Support Agency in California – where Agency remits such monies to respondent – where applicant seeks order from Australian Court to discharge judgment – whether conventions bar institution of Australian proceeding – applicable principles – conventions and treaties do not bar availability of relief in court having jurisdiction under Family Law Act 1975 (Cth).
Legislation: Australian Constitution (Cth), ss 1, 51, 58, 61
Child Support (Assessment) Act 1989 (Cth), ss 3, 4, 12, 18, 24, 29B, 66, 116
Child Support (Registration and Collection) Act 1988 (Cth), ss 4, 10, 13, 17, 18, 18A, 19, 25, 25A, 25B, 26, 28, 30, 31, 35, 37, 37B, 42C, 43, 45, 47, 49, 50, 64, 69B, 70, 73, 74, 75, 76, 79A, 80, 105, 110W, 111A, 111B, 111C, 111E, 116, 124
Family Law Act 1975 (Cth), ss 4, 38, 39, 42, 43, 60B, 60F, 66B, 66C, 66E, 66G, 66H, 66I, 66J, 66K, 66P, 66S, 66T, 66W, 67D, 67E, 69C, 69E, 69H, 70G, 70F, 72, 74, 75, 80, 81, 83, 103, 110, 110A, 111, 111A, 111AB, 124A
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 5
Federal Circuit Court of Australia Act 1999 (Cth), s 3
Child Support (Registration and Collection) Regulations 2018 (Cth), regs 10, 12, 24A, 25, 28, Sch 2
Family Law Amendment Regulations 2000 (No. 2) (Cth) Sch 1 Item 19
Family Law Regulations 1984 (Cth), regs 4, 5, 6, 12CC, 12D, 14, 17, 23, 24, 24A, 25, 28, 28B, 28C, 28D, 28E, 29, 29A, 29B, 30, 31, 33, 34, 36, 37, 38, 39B, 39BA, 47, 48, 50, 50A, 56, 67Q, Schs 1A, 2, 3, 4, 4A
Family Law Rules 2004 (Cth), rr 20.01, 20.02, 23.01, 23.01A, 23.01B, 23.02
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 11.01, 11.02, 15.08, 15.09, 15.10, 15.11Conventions & Treaties: Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations 2002 Arts 1, 2, 3, 4, 5, 7, 8
Convention on the Recovery Abroad of Maintenance 1956 Arts 1, 3, 4, 5, 6, 8, 13
Convention on the Recovery Abroad of Maintenance 1973 Arts 1, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 29
Convention on the Rights of the Child 1989
Final Act of the United Nations Conference on Maintenance obligations 1957 No. 3850
Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007 (No 38) Arts 2, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 36, 32, 33, 34, 35, 37
Protocol on the Law Applicable to Maintenance Obligations (No. 39) Arts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30Vienna Law on the Convention of Treaties 1969, Art 1
Cases cited: Capella & Raines [2020] FCCA 984
Child Support Registrar v Higgins (2016) 54 Fam LR 275
Child Support Registrar v Vladimir (2017) 56 Fam LR 418
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
Ganter v Grimshaw (1998) FLC 92-810
Goleby & Goleby [2012] FamCA 366
Horridge v Attorney-General (1995) 18 Fam LR 829
In the marriage of Vakil (1997) 21 Fam LR 508
Koowarta v Bjelke Petersen (1982) 153 CLR 168
Luton v Lessels (2002) 201 CLR 333
Membrey & Hall [2019] FamCA 857
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
Naczek v Dowler [2017] FamCA 105
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331
Pitney & Pitney [2018] FamCA 996
Re B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Simsek v MacPhee (1982) 148 CLR 636
Wreford v Caley (2010) 43 Fam LR 1Texts: Alegría Borrás & Jennifer Degeling, Explanatory Report on Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (The Hague, Netherlands: Hague Conference on Private International Law, 2013)
Martin Davies et al, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020)
Mr C Duncan, ‘The New Hague Child Support Convention: Goals and Outcomes’ (2009) 43 Family Law Quarterly 1
Talia Einhorn & Kurt Siehr (eds), International Cooperation Through Private International Law, Essays in Memory of Peter E. Nygh (T.M.C. Asser Press, 2004)
Eric M Fish, The Uniform Interstate Family Support Act (UIFSA) 2008; Enforcing International Obligations thought Co-operative Federalism (2011) 24 Journal of American Academy of Matrimonial Lawyers, 33
Jowitt’s Dictionary of English Law (Sweet & Maxwell, 5th ed, 2019)
Robert Keith, ‘Ten Things Practitioners Should Know about the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance’ (2017) 51 Family Law Quarterly 255
Eimear Long, ‘The New Hague Maintenance Convention’ (2008) 57 The International and Comparative Law Quarterly 984
Philippe Lortie & Maja Groff, Practical Handbook for Competent Authorities: the 2007 Child Support Convention, the 2007 Protocol on Applicable Law (Maintenance) and the 2009 European Union Maintenance Regulation (Magic Print, 2013)
Lara Walker, Maintenance and Child Support in Private International Law, (Hart Publishing, 2015)Division: Division 2 Family Law Number of paragraphs: 262 Date of hearing: 23 August 2021 Place: Melbourne Counsel for the Applicant: Ms S. Buchanan Respondent: In person ORDERS
MLC 1320 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PARRIS
Applicant
AND: MS PARRIS
Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
8 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.Pursuant to reg 4(1) of the Family Law Regulations 1984 (Cth), direct that compliance with any requirement to register the order made on 17 March 2014 in the Superior Court of California (FAMMS Case No …) (2014 Order), be dispensed with.
3.Pursuant to reg 36 of the Family Law Regulations 1984 (Cth), the 2014 Order, in relation to spousal support fixed in the sum of USD $500 per month as payable by the applicant to the respondent, liability for which is now entered upon the Child Support Register maintained pursuant to the Child Support (Registration & Collection) Act 1988 (Cth), with effect from 5 February 2020 (reference …), be varied from USD $500 per month to AUD $250 per month with effect from November 2014 and that this order cease to be operative as and from 17 March 2022.
4.Pursuant to reg 36 of the Family Law Regulations 1984 (Cth), the 2014 Order in relation to child support fixed in the sum of USD $446 per month as payable by the applicant to the respondent as support for the children, Ms B born in 2000 and X, born in 2006, liability for which is now entered upon the Child Support Register with effect from 5 February 2020 (reference …), be varied with effect from November 2014 in the case of each such child to the sum of AUD $200 per month and in the case of:
(a)Ms B, with effect 2018, to the sum of $Nil;
(b)X, with effect from 2018, to the sum of AUD $220 per month.
5.Declare that save as provided by paragraph (3) of this Order, the applicant’s liability for spousal support or maintenance as provided by the 2014 Order be discharged.
6.Declare that save as provided by paragraph (4) of this Order, the applicant’s liability for child support or maintenance as provided by the 2014 Order be discharged.
7.The Registrar of the Federal Circuit and Family Court of Australia forward a copy of this Order together with these reasons for judgment to the Registrar of Child Support.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Parris & Parris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction
These reasons for judgment explain orders that are made upon an amended application for the discharge by this Court of certain orders for spousal and child support made on 17 March 2014 by the Superior Court of California, in the United States of America (2014 Order). By that Order, the Superior Court of California determined that the applicant father was liable for the payment of child support for two children of the parties’ relationship, Ms B, born in 2000 and X born in 2006 and spousal support for the respondent mother. By that Order, the respondent mother was made liable to support the parties’ child, Mr C born in 1996, he living in Australia.
As referred to during the respondent’s submissions, and in contrast with the laws in Australia, it appears that in the United States, the non-payment of child or spousal support may engage powers of arrest and attract sanctions including detention, imprisonment and the imposition of parole: Pitney & Pitney [2018] FamCA 996, [4] (Forrest J). In the United States, historically, a wilful neglect or refusal to provide support attracted criminal sanctions. More recently, the focus of enforcement in the United States has changed: Eric M Fish, The Uniform Interstate Family Support Act (UIFSA) 2008; Enforcing International Obligations thought Co-operative Federalism (2011) 24 Journal of American Academy of Matrimonial Lawyers, 33.
The resolution of the issues arising for determination turn upon the Family Law Act 1975 (Cth), Child Support (Registration and Collection) Act 1988 (Cth) (Registration &Collection Act), Child Support (Assessment) Act 1989 (Cth) (Assessment Act) and regulations thereunder respectively as may authorise this Court to discharge or vary an order of a reciprocating jurisdiction and grant ancillary relief. Consideration is also required of the scope and operation of certain international conventions and agreements. That is because the respondent contends the applicant is prevented from seeking relief in this Court to discharge an order of the Superior Court of California (but is not prevented from doing so in California).
By way of overview, and for the reasons which follow, I have concluded that the Court is seized of jurisdiction and power to make orders to modify the 2014 Order, both in relation to spousal support and child support. Nor is it precluded from doing so by the operation of an international convention or treaty to which Australia is a party that relates to spousal and child support. Upon the facts of this case, orders should be made to vary the terms of the 2014 Order.
Procedural history
By application filed on 9 February 2021, the applicant father sought interim and final relief in respect of the 2014 Order. Accompanying the application was a request for consideration of his application as a matter of urgency, this being sought on the basis of financial hardship, it being said that a substantial part of the applicant’s earnings were being withheld by the Child Support Registrar (Registrar). Upon the evidence, I infer that the applicant’s employer continues to withhold from his monthly wage, and the Registrar remits to the Californian Agency Health and Human Services Agency, Department of Child Support Services (Agency), the sum of USD $996 per month (or ~AUD $1375 per month).
Interim relief was sought to restrain the respondent from enforcing the recovery of arrears pending the final determination of this proceeding. As concerned the respondent mother, application was made for the discharge of the order for spousal support together with the discharge of all arrears which remained unpaid. As concerned the children, Ms B and X, application was made for the discharge of the 2014 Order for child support together with the discharge of all arrears which remained unpaid. On 12 March 2021, an amended application was filed and to which no further reference was made in the proceeding.
In addition, an order was sought that child support payable for Ms B, now aged 21 years, including arrears, be reassessed and adjusted so as to take into account the applicant father’s liability to support the two children of his further marriage to a now former partner, Ms D, being two sons, E, born in 2010, and F, born in 2012.
By her response filed on 10 March 2021, the respondent mother, who has been self-represented in this proceeding objected to both the interim and final relief sought, doing so in each case on the basis that she sought to keep the case in the Californian jurisdiction and objected “to any changes to the jurisdiction of the child support orders from the City G, California, USA Court dated March 17, 2014.” While unassisted by submissions, an issue that requires determination is whether certain conventions deny or place an operative limit upon an entitlement of the applicant to seek from this Court an order discharging, suspending, reviving or varying the terms of the 2014 Order or the liabilities that it created.
On 16 March 2021, an order was made by a registrar of this Court setting the matter down for a defended hearing scheduled for 3 February 2022. Given the significant delay in obtaining a hearing date, approaches were made to expedite the matter. In turn, a request was made by chambers for the parties to better articulate the factual and legal basis upon which relief was sought and opposed. Although the applicant filed a more structured outline of submissions on 11 August 2021, the lateness of this filing prompted the respondent to object to consideration of that submission as she had not been afforded an adequate opportunity to reflect upon it.
Each of the parties has filed an outline of submission together with an affidavit and financial statement and, in the respondent’s case, a detailed chronology. There was no cross examination and the application proceeded on the basis of submissions. The Child Support Registrar was served with the applicant, evidence and submissions but did not participate.
Background
The applicant, aged 64 years, is a factory worker and is present, ordinarily resident and domiciled in Australia, he now being an Australian citizen.
The respondent, aged 57 years, is an customer service officer and resident of California.
The parties’ relationship began in 1992. They were married in 1992, separated in January 2010 and were divorced in July 2010.
The parties are parents to three children, Mr C, Ms B and X (X), while the applicant is also father to his younger children, E and F.
As material to the present application, Mr C is no longer a child. Nor is Ms B, who achieved her majority upon turning 18 in 2018. However, the discharge of the 2014 Order is sought as it affects the applicant’s liability for Ms B by reason of his arrears of child support. Both Ms B and X are residents of California and have never lived in Australia.
Also in 2010, the applicant father married his new partner, Ms D, an Australian citizen, and in 2010 the first of their two sons, E, was born in the United States.
Upon the respondent’s outline, in 2010, the applicant purchased a house in California. In 2012, the applicant liquidated his business of breeding animals and did so for an undisclosed sum which the respondent estimated to be $250,000.
Upon his affidavit, the applicant’s gross income from the business had been as follows: 2008 – USD $93,000; 2009 – USD $108,000; 2010 – USD $94,500; 2011 – USD $70,000.
Whether or not the animal breeding business was sold at undervalue as alleged, for the purposes of the present proceeding, I note that the parties’ claims for a final adjustment of their property interests were concluded by the 2014 Order.
Californian proceeding
The father as petitioner instituted a proceeding in the Superior Court of California against the mother as respondent (Case No: …) that has now been concluded and which apparently involved issues of custody, child support, spousal support and property.
On 29 August 2013, an order was made by his Judge H of the Superior Court of California, which in terms provided to both parties “legal custody” of each of Mr C, Ms B and X, with “physical custody” (being the person with whom the child would live), in Mr C’s case, being granted to his father and in the case of Ms B and X, to their mother. By Attachment 7e(4) to this order, provision was made that the parties’ children would share equally the summer and winter breaks with their respective parents and would do so via a plan that was mutually agreed and respectful of the children’s preferences and schedules. Ancillary matters were also addressed including for the release by the mother of Mr C’s passport. From the transcript of this hearing, it appears the orders made on this date conformed to certain recommendations contained in a Family Court Services’ report.
At some point in 2013, Ms D, E and F moved to Australia. Later, in 2013, the applicant together with his eldest child, Mr C, also moved to Australia.
In the interim, in 2013 the respondent mother began what she described as “self-employment” as a tradesperson, earning USD $3,373 per month. While this income was used in the determination to quantify child and spousal support in March 2014, it was the respondent’s evidence that her current income is now lower than that sum. Further, it was accepted by the respondent that the applicant was unemployed in March 2014.
On 16 January 2014, a Further Mandatory Settlement Conference was conducted at which the father (who was not present), was represented by Ms J, while the respondent was self-represented. Each of the parties had submitted briefs for this hearing and the respondent mother was sworn and examined. The order made by Judge H on that date provided for visitation to be at the father’s expense and for the mother to make a one-off payment of USD $880 to Mr C “from his account here in California to Australia.” In addition, orders were made permitting the respondent access to the applicant’s corporate tax accounts for the financial years 2010, 2011 and 2012. A credit was granted in favour of the respondent of USD $5,250 for the sale of a truck. The Court reserved its jurisdiction in relation to certain matters including the parties’ marital savings account (USD $17,900), certain Internet bills (USD $400) and legal costs. More relevantly, the record of this hearing stated as follows:
Court determines that Petitioner shall have a retroactive child support credit of $4800. The child support was reduced to $4464 September 2013 through January 2014. The support amount for those months totals $2230, which leaves a credit balance of $2570 for the petitioner.
Petitioner shall resume paying child support at $446 per month to Respondent payable on the 1st of each month beginning 09/01/14
Attorney Ms J’s oral motion to terminate spousal support is denied.
Spousal support is reduced to $500 per month on going forward without prejudice.
Implicit in the orders made on 16 January 2014, is that the Court was concerned to determine and quantify the applicant’s liability for child support and to deny an application to terminate an existing order for spousal support. On this basis, I infer there were existing orders for such support. As that record indicates, a number of other issues were reserved for further consideration, including on the basis that the father was to provide financial discovery.
In summary, on 16 January 2014, Judge H, variously allowed in favour of the applicant father a credit of USD $4800 in relation to child support and, after calculating the various liabilities and payments for the period September 2013 to January 2014, concluded the father was in credit in the sum of USD $2570 and was liable to pay child support in the sum of USD $446 per month commencing with effect from 1 September 2014. I infer the Court imposed a liability upon the applicant to begin paying child support on that date (recognising he was at that time in credit for child support in the sum of USD $2570).
As also appears, the applicant’s oral application to terminate spousal support was refused yet at the same time this liability was reduced to a sum of USD $500 per month “going forward without prejudice.” The question of spousal support was then determined on 17 March 2014.
The 2014 Order
Exhibited to the applicant’s affidavit was a record of a hearing on 6 March 2014, being of a Further Mandatory Settlement Conference which proceeded on all reserved issues. This hearing was also conducted by Judge H, at which the applicant (not present), was again represented by his attorney with the respondent being self-represented, and again, was sworn and examined. After that hearing the order was “entered” on March 17, 2014.
Paragraph 14 of the 2014 Order stated “Action – Complete.” From this I infer that the parties’ claims for a final adjustment of property interests were concluded by the making of the 2014 Order. Upon that basis, but subject to particular terms of the 2014 Order, all of the parties’ claims as advanced in that proceeding thereby merged in that judgment or order.
The 2014 Order provided for the payment of child support for each of the parties’ three children, Mr C, Ms B and X, together with spousal support. Several features of the 2014 Order may be noted. First is that the 2014 Order is dated “Mar 17 2014” and bears an initial, or signature, of Judge H, over the title “Judge of Superior Court”. Secondly, while bearing similarities to a transcript, it is structured as a series of orders. Thirdly, at [13] it was recorded “Attorney Ms J to prepare Order after Hearing”. Fourthly, although the hearing took place on 6 March 2014, the record confirmed that the 2014 Order was ‘entered’ on Mar 17, 2014. Since the parties are not in dispute as to the making, or operative terms, of the 2014 Order, I infer that the order as signed or initialled by the Court, recorded the terms of a final order made on 17 March 2014 which concluded a judicial determination upon each of the matters with which it dealt. As will emerge, as concerned spousal support, the 2014 Order was expressed in terms which were to operate, amongst other things, until further order.
As to parenting issues, some modifications were effected to the children’s visitations, both with their father (in even-numbered years) and their mother (in odd numbered years) with provision being made for the liability of the expense of such visitations.
The ‘financial’ orders made on 17 March 2014 provided for the petitioner to pay the respondent a total sum of USD $18,150.00 which sum was expressed to be “outside support” and apparently related to an internet bill, a share of a bank account, a truck ($5250) and legal costs. In terms, the financial orders made modest provision, however, it was common ground that the parties’ financial settlement also involved the transfer to the respondent of the matrimonial home and two parcels of vacant land together with a mortgage liability. This had been agreed.
As material to the present application, the father’s application to terminate spousal support was denied. As concerned the “Support Orders” made, the Court ordered at [6] as follows:
a. Ms Parris is ordered to pay child support for Mr C payable to Mr Parris in the amount of $200.00 per month.
b. Child support for Mr Parris from Ms Parris shall be deducted from the amount of child support Mr Parris owes of $446.00 a month. The balance owed from Mr Parris is $246.00 a month.
c. Mr Parris is ordered to pay child support in the amount of $246.00 each month. Payable one-half on the 1st and one-half on the 15th days of each month, commencing 09/01/14 and continuing until each child dies, marries, becomes emancipated, reaches the age of 18 or reaches the age of 19 and is a full-time high school student, or further order of the Court, which ever first occurs.
d. Mr Parris is ordered to pay as and for spousal maintenance the sum of $500 per month, payable one-half on the 1st and one-half on the 15th days of each month, commencing on 2/1/14 and continuing until the death of either party or the remarriage of Ms Parris or further order of the Court. (Emphasis added)
The orders had bilateral operation in that the respondent mother was also ordered to pay child support for Mr C, relevantly, until he turned 18 (which occurred in 2014). The 2014 Order otherwise provided for the applicant to pay USD $446 each month for child support, again expressed to be operative from 2014 and to continue until one or other of the events there described took effect. As concerned Ms B, the 2014 Order remained operative until 2018 (when she attained her majority), while the Order continues in operation in relation to X, who will be 18 years of age in 2024.
I note other features of the 2014 Order. First is that pars [6(a)-(b)] created and set-off the liability imposed upon the respondent mother to pay child support for Mr C of USD $200 per month against the liability imposed upon the applicant father to pay USD $446 per month. Secondly, the 2014 Order expressed the applicant’s liability in two ways: (1) USD $446 per month, this sum expressed as a global amount for child support for both of the children in the mother’s care, Ms B and X; (2) USD $246 per month, being a balance owed by the applicant to the respondent for the child support of those daughters after allowing the set-off of USD $200 otherwise payable for the child support of their son. Thirdly, the 2014 Order imposed a liability that was payable by fortnightly increments. Fourthly, the liability which the applicant “is ordered to pay [by way of] child support” is expressed to continue until “each child dies, marries, becomes emancipated, reaches the age of 18 or the age of 19 while being a full-time high school student, or until further order of the Court, which ever first occurs.”
At first sight, the ordinary and natural meaning of the text of this order, and when read in light of the context and surrounding circumstances (including earlier orders) suggest the applicant father’s liability for child support would generally continue until the date on which each child attained his or her majority. Yet the 2014 Order did not address three related matters; namely: (a) that after Mr C attained his majority, the applicant father’s primary liability for child support in a global sum of USD $446 would no longer be subject to reduction by way of set-off in the sum of USD $200 which the respondent mother was liable to pay to the applicant for the child support of the son; (b) whether, after Ms B attained her majority, the applicant’s said liability for child support would reduce from USD $446; (c) whether any such reduction could only occur by further order of the Court. Absent agreement or Court order, and irrespective of those events, the applicant remained subject to a liability for child support under the terms of the 2014 Order in a sum of USD $446 each month.
The Order also determined the applicant’s liability for spousal support at USD $500 per month. In contrast with the principles upon which spousal maintenance generally operate in Australia, the Order for spousal support is expressed to continue until the respondent’s remarriage, death or further order. The Order thus recognised that it may operate until further order.
It was the respondent’s case that the 2014 Order was made by the Californian Superior Court at a time when the applicant was unemployed and, for that reason his liability was assessed upon the basis of a statutory assumption that he was earning a minimum wage of USD $8.00 per hour (or, I assume, USD $320 per week). The respondent submitted her liability for, and/or entitlement to, child support was quantified on the basis of her then monthly earnings of USD $3,373 being “more than I am earning now.” A difficulty confronting the acceptance of that submission is that it is not easy to understand why a Superior Court would determine the liability of an unemployed person to pay USD $446 by way of child support for two children and at the same time determine the liability of an employed person earning USD $3,373 monthly to pay USD $200 by way of child support for one child. No useful purpose is served by seeking to go behind the terms of the 2014 Order. The present application is concerned with whether that order can and should be discharged, suspended, varied or revived.
Upon the applicant’s evidence, the 2014 Order represented the outcome of a protracted dispute over property and financial issues. He described the terms of the 2014 Order as ‘crippling’ and as being made despite his then unemployed status and in circumstances where he had no means of continuing the litigation. Contextually, on the day the 2014 Order was made, the applicant was already living in Australia. On his evidence he remained unemployed for a period of two years. While his evidence was somewhat unclear, this may suggest he did not obtain employment until March 2016 (which contradicts some evidence of employment from 2015).
Enforcement
On the respondent’s case, the applicant ceased paying spousal support in 2014. Upon the business records of the Californian Agency that were tendered by the respondent, the applicant’s liabilities for child support and spousal support respectively, each had a nil balance as at December 2014.
The respondent states that in 2014 she “opened a case” with the Agency at its City K office, doing so for the purpose of enforcing the 2014 Order. She deposed that she received neither payments of child nor spousal support for the five year period to June 2020. Whatever steps were taken by that Agency in the five years 2014-2020, it is not disclosed.
Support for the conclusion the respondent approached the Agency is supplied by exhibits to her affidavit being two Case Audit Reports, each in simple form, providing a history of child and spousal support liabilities with interest accruing monthly, together with certain payments as detailed below over the period December 2014 – February 2021. These reports, bearing the same Case Number contain reference to City K as the Managing County and refer to the Court Case No. … (being the applicant’s petition before the Californian Superior Court) and identify the applicant as obligor and the respondent as obligee in respect of the debts recorded in those records. There was no evidence before me as to whether the Agency or its Department of Child Support Services are administrative agencies concerned merely with enforcement and recovery of child support, arrears and interest, or whether that Agency also has authority and responsibility for issuing administrative assessments of child support. There is also no information respecting the Agency’s authority or responsibility for spousal support. At the least, the two Case Audit Reports confirm authority for enforcement.
The respondent contended that on 6 March 2015, the applicant commenced proceedings in City G, California Superior Court, seeking custody of Ms B and X. In the event, on the respondent’s case, on 13 February 2016 the applicant discontinued this proceeding. Whatever relevance these events may have had to the present proceeding was not explained.
The respondent contended that in March 2015, the applicant obtained employment yet in May 2015, ceased paying child support. Upon the Case Audit Reports referred to above, however, he made no payments of child support in the period December 2014 to May 2020. A difficulty in that conclusion may be that the entries in that report only reflect payments made to the Agency and may not reflect payments otherwise made by the applicant to the respondent directly. Indeed, upon the basis of her declaration to that Agency dated 5 September 2015, the respondent declared she had received by way of child support: (a) in 2014, two payments amounting in total to USD $1584; (b) in 2015, three payments amounting to USD $990. Difficulties in seeking to reconcile the respondent’s declaration of child support for these years is that none of those payments are recorded in the Agency’s Case Audit Reports.
The applicant’s evidence is that he paid child support through a Pay Pal account, doing so as the respondent refused to provide him with her account details for the purposes of enabling him to transfer monies to her internationally and that the cost of such transactions was thereby made more expensive as fees were payable upon each such transfer. It was also the applicant’s evidence that he borrowed monies from his mother for the purpose of paying child support and also in connection with the costs of the children’s visits during the USA summer holidays. Regrettably, there is a paucity of evidence which precludes the Court from making any reliable findings in relation to the payments referred to by the applicant. Contrastingly, the Court is entitled to and, in my opinion, should, act upon the Agency’s Case Audit Reports. For like reasons, I also consider the Court should infer the Child Support Registrar continues to secure that the applicant’s employer withholds monies from his wage and remits it to the Agency.
Upon the applicant’s evidence, he was able to obtain employment as a factory worker with a company, Employer L, in Town M, near Town N, earning $928 per week. His evidence is that Employer L has been his only employer in Australia. The respondent draws attention to her declaration of support of the payment history made by her on 5 September 2015 to the Agency in which she deposes to the payments made by the applicant in each of February, March and May 2015 (and that no payments were made in January or April or from 2015). In short, the respondent, who accepted the applicant had been unemployed in March 2014 when the Order was made and that he remained so unemployed, complained of his non-payment of any child support or spousal support from May 2015 once he obtained employment.
In 2015, the applicant’s marriage to Ms D ended. From some point, the applicant has been assessed as liable to pay support for his sons E and F, a sum of $414 per month.
In December 2015, the respondent made further application to the Agency seeking to recover arrears of spousal and child support. I infer that the respondent’s declaration made on 5 September 2015 disclosing the total amounts of child support received from the respondent was supplied for this purpose. Any steps taken by that Agency are unknown.
The applicant’s evidence is that while he continued to make some child support payments he has not been able to pay spousal support as he could not manage to pay both child and spousal support. There is some evidence the respondent was herself unemployed in 2017.
A matter which received some attention in the course of submissions, but appeared common ground, was that the parties had agreed in orders for Ms B and X to visit and spend time with their father in Australia during the USA winter and summer holidays. Upon the father’s evidence, the costs of international travel during the USA winter were prohibitive and for that reason it was not possible for the daughters to spend time with their father on those occasions. However, travel was possible during the USA summer holidays and it was not in issue that Ms B had visited her father twice and X on four occasions with the father paying all expenses for such visits and “one half of the mother’s costs” which were not further elaborated.
Upon the respondent’s case, in 2018, the applicant purchased a house for AUD $240,000. As observed in the course of submissions, there was a paucity of evidence in relation to this allegation and if it was to be pursued, the respondent would be afforded an opportunity to do so by filing further evidence, however, she should be conscious that the applicant would likewise be afforded an opportunity to answer any allegations which she proposed to raise. Having reflected on the issue, the respondent did not press this aspect of the matter. Evidence in the applicant’s financial statement indicates he claims a 50% interest in a property to which he attributes a value of $105,000 and that he is subject to a mortgage liability of $105,000.
The respondent contends that in 2019, upon attaining the age of 62 years, the applicant became eligible for the receipt of social security payments from the United States. As the applicant deposes to having a social security account which is standing to credit for a sum sufficient to meet certain, albeit ill-defined, liabilities to the respondent under some judgment, I am prepared to infer that the applicant has qualified for and is in receipt of such benefits. However that may be, I cannot speculate upon the extent to which access may be had to social security entitlements for the purpose of discharging liabilities for child or spousal support.
Somewhat confusingly, the applicant deposes that the respondent “will continue to receive money for her judgments in the Superior Court of California.” He does so without specifying which ‘judgments’ are being referred to or where such money will be received from. If the applicant was to be understood as referring to the orders for child and spousal support, the adoption of that stance would be inconsistent with the relief being sought in the present application. At the least, the applicant tacitly acknowledges those ‘judgments’ remain wholly or partly unsatisfied. In any event, the applicant deposed that the respondent would, in effect, be able to obtain satisfaction of those money judgments from his United States Social Security payments and that there was enough money standing to the credit of his Social Security account to do so. Neither the account nor the current credit balance in that account were disclosed. Contrastingly, the respondent contends the applicant has been eligible for payment of Social Security entitlements in the United States since 2019 when he became 62 years of age and that “he may already be receiving it.” As the applicant deposes there is enough money in his Social Security account to meet those ‘judgments’, I infer he is receiving such entitlements.
As concerns resort to the applicant’s Social Security entitlements in the USA, the respondent deposes that “For me to collect on the judgments I would have to go to Court and request an order to garnish Mr Parris’ Social Security, which may or may not be successful as there are provisions to protect people’s Social Security.” It may immediately be observed that the respondent has taken steps in Australia to withhold the applicant’s wages for the same purpose. As concerns provisions in the United States and/or Australia which operate for the protection against garnishee proceedings in relation to social security or wage entitlements, I proceed on the basis that such provisions give legislative recognition to the need for such protection. For example, s 37B of the Registration & Collection Act precludes enforcement of registered maintenance liability where the payer is a low-income recipient of a social security pension or benefit. So as to protect against double recovery, that Act also prevents the pursuit of garnishee and attachment while payments are being withheld and remitted to the Registrar.
Relatedly, and as the Case Audit Reports confirm, with effect from June 2020, the Agency began receiving payments that it allocated to the applicant’s liability for child support. Further, with effect from November 2020, it received payments that were allocated to spousal support. Upon the totality of the evidence, I conclude such payments represent amounts that have been withheld by the applicant’s employer, paid to the Child Support Registrar, remitted to the Agency and then paid to the respondent who continues to receive such monthly payments absent any order for a stay having been granted to this point. While a proper and complete accounting of those payments is presently unknown the evidence is sufficiently certain as to enable the Court to consider the application that is before it.
On a date that is not shown by the evidence, the respondent determined to register the 2014 Order with CSA. The evident intent of doing so was to take a step in Australia to enforce the rights established in the respondent to, and that applicant’s correlative liability for, the payment of child and spousal support as established by the 2014 Order. Liability under the 2014 Order was registered with CSA both as to payment of arrears and for future ongoing support.
By letter dated 7 May 2020, CSA wrote to the applicant advising it had received an application from the respondent asking it to collect child support and that such application had been registered. Despite the date of that letter, the applicant was asked to start paying child support to CSA with effect from 5 February 2020. The letter invited the applicant to contact CSA if he thought he would have difficulties paying child support.
While CSA’s letter referred in express terms to child support, the summary of the assessment made by CSA related to both spousal maintenance and child support. In each case, the applicant’s liability for the amount accepted by CSA was described as having being “registered in Australia due to the liability that arises under the Order or Agreement made in an Overseas Reciprocating Jurisdiction dated: 17 March 2014.” CSA assessed that the amounts to be enforceable from 5 February 2020 were, relevantly, in the case of:
(a) spousal support: AUD $708.40 per month.
(b) child support: AUD $631.89 per month.
(c) arrears: AUD $83,513.36.
The conversion from USD $ to AUD $ is addressed by the relevant legislation and regulations.
From the Agency’s two Case Audit Reports, the following appears:
(a)as to child support, and interest, for the period June 2016 to February 2021, arrears amounted in aggregate to USD $37,574 while the receipt by that Agency of payments amounting to USD $6,820 made over the period June 2020 to February 2021.
(b)as to spousal support, and interest, for the period December 2014 to February 2021, arrears amounted to USD $46,754 and in the period November 2020 to February 2021, four payments, each in the sum of USD $500 had been received by that Agency.
The respondent deposed that in June 2020 she began receiving payments of child support which payments she attributed to the enforcement of the 2014 Order and, as I infer, the steps taken by her to register the order, it’s registration and the steps taken by CSA to enforce its terms.
The evidence does not indicate precisely what payments have been made in the period since February 2021 to date, however, the respondent’s affidavit deposes that from November 2020 she began receiving payments of both child and spousal support.
Upon the applicant’s case he and the respondent have been separated for 10 years, yet he remains liable for spousal support. The applicant’s evidence is that he has no means of paying the arrears of spousal and child support. The applicant readily accepts a continuing obligation to pay child support for X but contends that it needs to be at a rate which reflects his liability to provide child support for all of his children under the age of 18 years.
As noted, the applicant has also been assessed by CSA as liable to pay child support for his younger sons, E and F of $414.33 per month. When this liability is added to the CSA assessment for spousal support of $708.40 and child support of $631.89 above, the applicant faces a monthly liability of $1,754.62 representing almost half his net monthly income.
In the context that CSA has and continues to remit the monies being withheld by his employer, the applicant now seeks a re-assessment of his liability for child support for X, doing so (as I understand it), on the basis that the global sum of USD $446 as determined by the 2014 Order takes no account of the fact that both Mr C and Ms B are now adults. Additionally, the reassessment is sought to take account of the liability for E and F.
There is no evidence of any objection having been made by the applicant of the entry of the liabilities created by the 2014 Order pursuant to the Recognition & Collections Act, whether within or out of time, or for any application for an extension of time in which to do so.
It is convenient to address the facts relevant to the parties’ financial circumstances below.
Applicable principles
The resolution of the application requires consideration of the applicable legislation, regulations and the international instruments which relate to maintenance. At the outset, and in particular, where the Court was largely unassisted by submissions upon issues raised by the respondent, identification of the relevant provisions in the legislation and regulations has not been without its difficulty. To the uninitiated, the legislative framework is opaque and difficult to reconcile, where applicable provisions are located in several Acts, the regulations and the Rules of Court. Overlaying this opacity are the relevant conventions and other instruments.
Before setting out an analysis of the legislation and regulations that must be considered, it is convenient to draw together my conclusions as they apply to the facts of this case.
The Family Law Act governs the issue of spousal maintenance and addresses child maintenance in a way which proscribes the Court from addressing the issue where an assessment of child support is available under the Assessment Act. Within this framework, the Act emphasises the normative right of a child to be supported and that, in Australia, a parent’s duty to maintain a child is not to be accorded a lower priority than a duty to maintain any other child. While this Act provides the powers in ss 66S and 83 to modify maintenance orders in the terms that they contain, it should not be assumed these powers apply without constraint in the case of maintenance orders not made in Australia but made by a Court in a reciprocating jurisdiction.
The Family Law Act itself does not confer a right of action to enforce or modify a maintenance order made in a reciprocating jurisdiction. To the contrary, the Act confers power authorising the making of regulations to make provision for when orders of a reciprocating jurisdiction may be registered, enforced, varied, discharged, suspended or revived (“modified”).
Regulation 36 of the Family Law Regulations, which applies to a registered maintenance liability (as defined), creates an entitlement to judgment creditors and debtors under orders made in a reciprocating jurisdiction to apply to a Court having jurisdiction under the Family Law Act to modify an order, agreement or liability to which the regulation applies. For the purposes of Div 2 of Pt III of those regulations, a registered maintenance liability means one that is registrable under s 18A of the Registration & Collection Act. Each liability created by the 2014 Order for spousal and child support respectively fall within the definition of a registered maintenance liability. In an application to modify those registered maintenance liabilities, by reg 36(4), the law to be applied is the law in force in Australia under the Family Law Act. That Act confers power, by ss 66S and 83 respectively, to modify the liabilities created by the 2014 in relation to child and spousal support.
While the Court is proscribed from making any order for child maintenance where an assessment for child support could properly be made at that time under the Assessment Act by the applicant for the respondent to be assessed respect of the child or vice versa, this proscription does not apply to a proceeding under reg 36: Family Law Act, 66E(1)-(3). From this it follows, the Court is not proscribed from making a child maintenance order within the scope of the power conferred by that regulation.
While the power to make an order for child maintenance is not constrained by a requirement that an overseas maintenance order has been registered, such a requirement is imposed with respect to the power to make an order for spousal maintenance: ss 66S(1)(a)(i), 83(1)(b). On the evidence, the 2014 Order has not been registered in this Court. Non-compliance with this requirement is a matter that the Court has, and in this case should, grant relief against. As to child maintenance, the Court is not denied jurisdiction or power to make an order in circumstances where Ms B is not an Australian citizen, nor resident or present in Australia.
In each case, the Court is further constrained in the power to make an order for maintenance by the requirement that it may only make such order as is ‘proper’: ss 66G, 74(1). Subject to the respondent’s objection to the proceeding under reg 36, grounded upon the application of a convention broadly described as the Hague Child Support Convention, the Court should otherwise make an order to modify the 2014 Order. In my opinion, for the reasons below, despite the respondent’s objection the applicant is neither limited nor denied recourse to this Court in applying pursuant to reg 36 for an order to modify the 2014 Order. The consideration of what order is proper to make in all the circumstances is addressed separately below.
An order for maintenance properly made pursuant to ss 66S or 83 is a decree that has effect, in relation to the modification of a maintenance liability created by an order made in the United States, as a final order throughout Australia and its territories: s 103, reg 38(2). Consequently, it is an order which has effect vis a vis the Registrar of Child Support who is required to form an opinion (conformably with s 37 of the Registration and Collections Act) whether to amend the particulars of the liability that has been entered with effect from 5 February 2020.
Family Law Act
In Pt V of the Family Law Act, Div 1 addresses the subject, Jurisdiction in matrimonial causes. For the purposes of the Act, the term ‘matrimonial cause’ bears several meanings as defined in s 4 of the Act, and by par (c) includes proceedings between the parties to a marriage with respect to the maintenance of one or other of them. Subject to Pt V, this Court has jurisdiction in relation to a matrimonial cause instituted under that Act: s 39(1A). In Pt V, par 39(4)(b) authorises the institution of a proceeding with respect to the maintenance of one of the parties if any party to the proceeding is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the date the application was filed.
The practice and procedure of the Court is to be conducted in accordance with the regulations and Rules of Court, without undue formality and should not be protracted: ss 38, 97(3). This approach is reinforced by Federal Circuit and Family Court of Australia Act 2021 (Cth), s 5. The jurisdiction conferred on a Court by the Act is to be exercised in accordance with the Act and applicable Rules of Court: Family Law Act, s 42(1).
Child maintenance
Part VII concerns Children. The objects and principles of Pt VII are stated in s 60B and are framed with reference to the best interests of a child and that they are met including by ensuring parents fulfil their duties toward them. A principle underlying this object is that parents should jointly share duties and responsibilities for the care of a child: par 60B(2)(c).
In Pt VII, Div 12, save for one issue that is presently immaterial, s 69H(4) confers jurisdiction in relation to matters arising under Pt VII, which includes child maintenance. Section 69E restricts the institution of proceedings under the Act in relation to a child by the matters that it describes. To attract jurisdiction, it is sufficient that a parent of the child is an Australian citizen, and is ordinarily resident, or present, in Australia when the application is filed: pars 69C(2)(a), 69E(1)(c), 69E(2)(a). Where the Court has jurisdiction, it applies the law of the forum, which here confers power subject to Div 7 of Pt VII, to make such child maintenance order as it thinks proper: s 66G. In Pt XII of the Act, Recognition of decrees, s 103 provides that a decree made under the Act has effect throughout Australia and its external territories.
In exercising jurisdiction, the Court shall have regard, relevantly, to the need to protect the rights of children and to promote their welfare: par 43(1)(c). Part VII, Children, is arranged in 16 Divisions, comprising 60A-70Q. Subdivision D, Interpretation – how this Act applies to certain children, par 60F(2)(a) provides that the reference in the Act to a child of the marriage includes a reference to a child of a marriage that has been terminated, whether in Australia or elsewhere. For the purposes of the Family Law Act, the expression child of a marriage includes the child of a marriage that has been terminated by divorce whether in Australia or elsewhere: par 60F(2)(a). In s 4, the definition of child provides that the Subdiv D of Pt VIII affects the situation in which a child is a child of, relevantly, a marriage.
Division 7 of Pt VII concerns the subject Child Maintenance Orders and states that a principal object of the Division is to ensure children receive a proper level of financial support from their parents. Particular objects of the Division include ensuring that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents and that parents share equitably in the support of their children, whom they have a primary duty to maintain: ss 60B(1)(d), 66B, 66C. Save that these provisions recognise a parent will have commitments to support himself or herself or any other child or person that the parent has a duty to maintain, critically, a parent’s duty to maintain a child is expressly stated not to be of lower priority than the duty of the parent to maintain any other child: par 66C(2)(a)-(b). Sections 66H-66K address the approach to be taken by the Court and the only matters to be taken into account in addressing the financial support necessary for maintenance of a child and in the assessment of the level of contribution that should be made. General powers of a Court with respect to child maintenance are provided by s 66P. Section 66S confers specific power to modify child maintenance orders. The obligation to maintain a child generally ceases when the child is 18 years of age: s 66T. The Court may retrospectively discharge or vary a maintenance order: s 66W(2).
These provisions are subject to the operation of the Assessment Act. If an application could be made under the Assessment Act for a person to be assessed for child support under that Act, the Court is proscribed from exercising powers under the Family Law Act to make, revive or vary orders with respect to child maintenance: s 66E(1). However, this section is silent as to the suspension or discharge of an order for child maintenance (each of which are orders of a kind that a person bound by a maintenance order is entitled to apply for under reg 36). By s 66E(3), the proscription in s 66E(1) does not apply to proceedings brought under regulations made for the purposes of ss 110 or 111A of the Family Law Act; that is, under reg 36.
As the present proceeding is a proceeding brought under reg 36, being a regulation made for the purposes of s 110, the Court is not proscribed from making a child maintenance order.
For the purposes of the present application, I note the textual indications of these provisions recognise the important settled duty of a parent to maintain a child and that such duty is not of a lower priority than is the duty to maintain another child.
Spousal maintenance
In addition to the duty to maintain a child, Pt VIII of the Family Law Act addresses the subjects, Property, spousal maintenance and maintenance agreements. Part VIII comprises ss 71 – 90 and by s 72 imposes upon a party to a marriage a liability to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if and only if, that other party is unable to support herself or himself whether by reason of having the care and control of a child or by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason. The liability to maintain another party to a marriage is to be assessed having regard to any relevant matter in s 75(2). In proceedings with respect to the maintenance of a party to a marriage, by s 74(1), the Court may make such order as it considers ‘proper’ for the provision of maintenance in accordance with Pt VIII.
In exercising powers under Pt VIII, the Court may make orders for payment of a lump sum or for periodic amounts: par 80(1)(a)-(b). It is the duty of the Court in proceedings under Pt VIII to as far as practicable make such orders as will finally determine the parties’ financial relationships and avoid further proceedings between them: s 81. As concerns the modification of spousal maintenance orders, the Court may, subject to certain provisions considered below, modify an order with respect to the maintenance of a party to a marriage, including an order made by another Court that is registered in accordance with the applicable Rules of Court: s 83. Insofar as it is necessary to examine the extensive provisions in ss 83(1)-(8), they are considered below. For present purposes it is sufficient to note that for the purposes of making an order to discharge, suspend, revive or vary an order, the Court shall have regard to the provisions of ss 72 and 75 above.
Overseas maintenance orders
Part XIIIAA of the Family Law Act, which addresses International conventions, international agreements and international enforcement, is arranged in five Divisions and comprises ss 110 – 111D. In Div 1 of Pt XIIIAA, s 110 addresses the Overseas enforcement of maintenance orders and provides defined meanings including for the expressions: maintenance order and reciprocating jurisdiction. In Pt XIIIAA a maintenance order includes an order with respect to the maintenance of a party to a marriage and a child who has not attained the age of 18 years, while the expression reciprocating jurisdiction means a country outside Australia that is declared by the Regulations to be a reciprocating jurisdiction for the purposes of s 110 of the Act: pars 110(1)(a)-(b). As material to the present application, s 110 provides:
Overseas enforcement of maintenance orders etc.
(1) In this section:
. . .
maintenance order means:
(a)an order or determination (however described) with respect to the maintenance of a party to a marriage;
(b)an order or determination (however described) with respect to the maintenance of a child who has not attained the age of 18 years, other than an order or determination of the kind referred to in paragraph (c);
(c)-(e) . . .
reciprocating jurisdiction means a country, or a part of a country, outside Australia declared by the regulations to be a reciprocating jurisdiction for the purposes of this section.
(2) The regulations may make provision for and in relation to:
(a)the registration in, and enforcement by, Court having jurisdiction under this Act of maintenance orders made by Court authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity.
(aa)-(ba) . . .
(c)the making of orders (including provisional orders) for the variation, discharge, suspension or revival of maintenance orders registered in accordance with regulations under this section or of maintenance orders or provisional maintenance orders transmitted to other jurisdictions in accordance with regulations under this section, and the effect in Australia of orders under this paragraph;
(d)-(e) . . .
Section 110A confers like powers in respect of maintenance agreements.
Section 110 merely confers regulation making powers. It does not confer a right of action.
The regulation making power in s 110 is not at large. Section 110 confers power to make provision for the registration in, and enforcement by, Courts having jurisdiction under the Family Law Act of maintenance orders made by Courts of reciprocating jurisdictions and overseas administrative assessments of maintenance liabilities. It also confers power for the making of orders for the variation, discharge, suspension or revival of maintenance orders registered in accordance with the regulations under that section. The regulations may only provide for the making of orders for the modification of maintenance orders including orders that have been registered in accordance with the regulations made under s 110. It is necessary for this and other purposes to examine those regulations.
The regulation making powers are also not at large. As I construe s 110(2) of the Family LawAct, such regulations may make provision for, and in relation to, relevantly: (1) the registration in Courts of maintenance orders made in a reciprocating jurisdiction; (2) enforcement by Courts of such maintenance orders; (3) the making of orders (including provisional orders) modifying: (i) maintenance orders registered in accordance with such regulations; (ii) maintenance orders (as defined by s 110), and; (iii) provisional maintenance orders transmitted to other jurisdictions; (iv) the effect in Australia of orders modifying orders of reciprocating jurisdictions. A specific power conferred by par 110(2)(e) is to make regulations providing for and in relation to “the making of orders for giving effect to process certified or approved by a Court in the United States of America, being process relating to the provision of maintenance, and the effect in Australia of orders under this paragraph.” The powers to make regulations providing for or in relation to other matters need not be examined.
As noted, the Family Law Act also provides for the enforcement of overseas maintenance agreements, however, as that term is defined by s 4, such power depends upon registration of the agreement in the reciprocating jurisdiction and in the Court in Australia: s 70G. This is a further contextual indication supporting a conclusion that where registration is an express requirement of the Act or regulations, the registration of orders, including in relation to spousal or child maintenance, is a legislative requirement to the valid engagement of power to discharge or vary such orders. Upon analysis, however, the requirement for ‘registration’ is not uniform.
Within Div 1 of Pt XIIIAA of the Act, provision is also made with respect to certain conventions and agreements. In particular, regulation making power is conferred to enable the performance by Australia of its obligations and to secure it obtaining advantages or benefits under those certain conventions, save that such regulations are not operative until the date upon which the relevant Convention comes into force. Of the four instruments referred to, three are relevant: (1) the Convention on the Recovery Abroad of Maintenance signed at New York on 20 June 1956 (1956 Convention); (2) the Convention on the Recovery Abroad of Maintenance signed at The Hague on 2 October 1973 (1973 Convention) and; (3) the Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations which was concluded and entered into force on 12 December 2002 (2002 Agreement): Act, ss 111, 111A, 111AB.
Insofar as Pt XIIIAA addresses any international conventions, agreements and international enforcement, four other matters may be noted. First is that s 111AA makes express provision that proscribes an Australian Court from determining an application for payment of child or spousal maintenance in relation to persons who are habitually resident in New Zealand. Secondly, no equivalent proscription is contained in Pt XIIIAA in relation to the determination of such maintenance applications in relation to persons who are habitually resident in the United States. Thirdly, and relatedly, it may be observed that while the Family Law Act makes express provision in relation to the 1956 Convention and the 1973 Convention, it contains no reference or regulation making power in relation to the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance signed at The Hague on 23 November 2007 (2007 Convention) and does not do so, notwithstanding that each of Australia and the United States are signatories to that convention. Fifthly, in Pt XV of the Act, s 124A confers a regulation making power in relation to giving effect to international agreements made with a reciprocating jurisdiction respecting maintenance.
Family Law Regulations
The Family Law Regulations 1984 (Cth) (Regulations) are arranged in six Parts comprising regs 1 – 83 and a series of schedules.
In Pt II, General, provision is made: authorising the Court to give directions with respect to practice and procedure in certain defined circumstances (reg 4); confirming that non-compliance with the regulations or a Rule of Court does not render the proceeding void unless the Court so directs (reg 5); authorising the Court, subject to the Act and regulations to relieve a party from non-compliance of various kinds (reg 6). In Pt II, provision for registration of certain documents is also made including registration of: Court decisions relating to a family violence order (reg 12CC); state child orders (reg 12D); decrees (reg 17); awards (reg 67Q).
Insofar as these regulations provide for the registration of decrees, it may be noted that that term is defined in the Act by s 4 as including a decree, judgment or order. Regulation 17 provides in some detail for the manner in which, and persons who may, register a decree.
Part III of the regulations addresses the subject Overseas orders, is arranged in two Divisions and comprises regs 23 – 39. In Div I, provision is made for Overseas child orders, an expression now defined in s 4 (and not s 70F, as erroneously stated in reg 24(8)) as being orders made by a Court in a prescribed overseas jurisdiction concerning with whom a child is to live, spend time or have contact with, and orders that vary or discharge such orders and certain orders made by administrative bodies. Self-evidently, parenting orders of those kind are qualitatively different from orders in relation to child maintenance. Insofar as it may be instructive, the provision made in reg 23 for the registration of overseas child orders comprehends that the steps to be taken in Australia for the registration of an overseas child order that was made in a prescribed overseas jurisdiction are to be taken in the first instance by the Secretary of the Attorney-General’s Department or an authorised delegate and then by a registrar of the Court.
Division 2 of Pt III of the Regulations, which concerns the topic Maintenance, comprises regs 24A – 39. By reg 25, each of the jurisdictions in Sch 2 of the Regulations is declared to be a reciprocating jurisdiction for the purposes of s 110 of the Family Law Act; that is, a jurisdiction to which the regulation making power conferred by s 110 “for and in relation to” amongst other things, the registration in, and enforcement by, Courts having jurisdiction under the Act of maintenance orders that were made in such reciprocating jurisdictions including the making of orders for the variation, discharge, suspension or revival thereof. In that schedule, the United States of America is one such reciprocating jurisdiction.
For the purposes of Div 2 of Pt III of the Regulations, the definitions provided by s 110 of the Family Law Act of the expressions maintenance order and reciprocating jurisdiction are adopted. In that Division, the expressions overseas maintenance entry liability and registered maintenance liability respectively mean a liability of the kind addressed by ss 18A and 25A of the Registration & Collection Act (as the case requires) and are framed in terms which have complementary operation. Regulation 24A reads:
Definitions for Division 2
In this Division:
maintenance order means:
(a) a maintenance order within the meaning of section 110 of the Act; and
(b) an order made under section 67D or 67E of the Act.
overseas maintenance entry liability means an overseas maintenance liability entry liability included in the Child Support Register under section 25A of the [Registration & Collection Act]
reciprocating jurisdiction has the same meaning as in section 110 of the Act.
registered maintenance liability means a registrable maintenance liability under section 18A of the [Registration & Collection Act]
For present purposes it may be noted that orders of the kind made under ss 67D or 67E together with a liability of the kind defined as an overseas maintenance liability are not relevant.
Within Div 2 of Pt III of the regulations, detailed provision is made in relation to proceedings with respect to maintenance orders made in reciprocating jurisdictions. In common with the manner in which the Secretary is assigned responsibility with respect to the registration of an overseas child order, so too, in relation to maintenance, like responsibility is assigned to the Secretary where a maintenance order made in a reciprocating jurisdiction relates to a person who is in Australia including for the making of provisional orders: regs 28-28B, 29-29C. Again, the Court is proscribed from making certain types of provisional orders where it would be open for an application to be made under the Assessment Act read with the Registration & Collections Act for an assessment of child support: reg 29(4).
Detailed provision is made for proceedings relating to the enforcement of a United States petition seeking a “support order” (which expression is not defined) against a person claimed in the petition to have a duty of support: regs 28C-28E. These regulations provide that, where the conditions prescribed are satisfied, the Secretary must make application for the person alleged to owe a duty of support to show cause why an order in the same terms in the petition should not be made in Australia and defines the manner in which the hearing is to be conducted and the effect of an order made upon the show cause hearing: regs 28C(2), 28C(4), 28D, 28E. In relation to a proposed show cause hearing, the Secretary is to be provided of the provisions of the law of the reciprocating jurisdiction applicable to the petition: reg 28C(1)(c). In Nygh’s Conflict of Laws in Australia, 10th edn, (2020) (Nygh) the learned authors observe at [27.68], that special provision is made in respect of support claims under US petitions. The entitlements conferred by those regulations depend upon the process they afford being engaged. The types of process with which those regulations are concerned are not engaged here.
As noted above, separate provision is made by regs 28C-28E in relation to United States’ petitions and in particular for the Secretary of the Attorney-General’s Department to make an application calling on a person claimed in a petition to owe a duty of support to show cause why an order in the same terms as sought in the petition should not be made. There is no evidence before me in relation to the actual relief as sought by the applicant in his petition. However, upon the facts proved by the parties’ evidence (such as it was), it is clear that the Superior Court of California has made orders for both spousal and child support. The fact the Family Law Regulations make separate provision in relation to United States’ petitions does not foreclose this Court having jurisdiction to modify an order made in the United States. Particularly is that so where regs 28C-28E were inserted at the same time as reg 36.
In addition to the type of show cause proceeding that may be instituted by the Secretary, a wider entitlement is conferred by reg 30 for the enforcement, by proceedings, of an overseas maintenance entry liability by either the Secretary or a person who would be entitled to take such proceedings as if the liability was a liability created by an order made under Pt VII or Pt VIII of the Act; that is, relevantly, an order related to a child or spousal maintenance. For the purpose of such proceedings, reg 24A adopts the definition of the expression overseas maintenance entry liability as defined by s 25A of the Registration & Collection Act. For present purposes, it is sufficient to recognise that the right of action conferred by reg 30 is limited to a right in relation to only particular types of liability, being a liability “that is not a registrable overseas maintenance liability” and that it has no application in the present case. However, the point of present significance is to recognise reg 30 confers an express right of action for the enforcement of the limited types of liabilities to which it relates.
Regulation 31 is also somewhat instructive upon the issues arising in this proceeding in that it confers power on the Court to make a direction for the cancellation of registration in a reciprocating jurisdiction of a maintenance order made in Australia where reasonable grounds exist for believing that: (a) the judgment debtor is no longer in that reciprocating jurisdiction; (b) there is some good reason why the order should no longer be enforced in that jurisdiction. Further to the power to direct cancellation of registration conferred by reg 31, complementary powers are conferred by regs 33-34 to cancel the registration of an overseas maintenance order or agreement that has been registered under the regulations (before 1 July 2000). These regulations provide some contextual support as to the intended scope of jurisdiction conferred by reg 36 to modify, amongst other things, overseas maintenance liabilities.
Regulation 36
Regulation 36 is of central relevance to the present proceeding and reads:
Party in Australia may apply to vary etc overseas maintenance order, agreement or liability
(1) This regulation applies to:
(a)an overseas maintenance order or agreement registered in a Court before 1 July 2000; and
(b)an overseas maintenance entry liability or a registered maintenance liability.
(2)Application may be made to a Court having jurisdiction under the Act for an order discharging, suspending, revising or varying an order, agreement or liability to which this regulation applies.
(3) An application may be made by:
(a)the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or
(b)the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or
(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4)The law to be applied to the determination of an application is the law in force in Australia under the Act.
It is of some assistance to have regard to the legislative history of reg 36 in that the entire regulation was substituted by amendments effected by the Family Law Amendment Regulations 2000 (No. 2) which commenced operation on 1 July 2000: see, e.g., reg 36(1)(a). For reasons which need not be explored, it applies, amongst other things, to overseas orders or agreements that were registered in a Court before 1 July 2000. By item [19] of Sch 1, the new reg 36 was inserted, as were extensive and other amendments.
Regulation 36, which also applies to a registered maintenance liability, confers an entitlement to apply to a Court having jurisdiction under the Family Law Act for an order discharging, suspending, revising or varying an order to which the regulation applies: reg, 36(1)(b), 36(2). The entitlement to make such application extends to a person against whom the order had been made: reg, 36(3)(b). For the purposes of the determination of the application, the law in force in Australia under the Family Law Act is the applicable law: reg, 36(4). As applied to a registered maintenance liability arising from an order or determination of a reciprocating jurisdiction not mentioned in reg 36(1), an order made under reg 36 to discharge, suspend, revive or vary an order or liability to which that Regulation relates, is a final order: reg 36(2).
Regulation 36 is not of unlimited application. The entitlement conferred by reg 36(1)(b) extends to overseas maintenance entry liabilities (which are not relevant), and also to a registered maintenance liability. For the purposes of Div 2 of Pt III, the expression registered maintenance liability is defined by reg 24A in a way which expands its meaning to be “a registrable maintenance liability under s 18A of the Registration & Collection Act.” For the purposes of Division 2 it is sufficient that the liability is registrable but it need not in fact have been so registered: Naczek v Dowler [2017] FamCA 105, [25]. It follows that reg 36(3)(b) confers on a person against whom an order was made creating a registrable maintenance liability an entitlement to apply for an order discharging, suspending, reviving or varying an order or liability of the kind to which reg 36 applies.
In Nygh at [27.58], the learned authors confirm that by reg 36, a person who is liable in respect of an overseas maintenance liability may apply to a Court having jurisdiction under the Family Law Act for an order discharging, suspending, revising or varying the liability and that on such application, the applicable law is the law in force of Australia under the Family Law Act. The proposition advanced at [27.58] is notable in that the 10th edition, published in 2020, postdates the 2007 Convention referred to below. While the learned authors state at [1.6], that the 2007 Convention was ratified by Australia, nothing in this seminal text appears to suggest that the limitation on the institution of a proceeding in Australia suggested by Article 18 of that convention denies recourse by a person liable to a maintenance order of a reciprocating jurisdiction to a Court in Australia having jurisdiction under the Family Law Act to apply for an order modifying an overseas maintenance liability. This issue is considered further below.
For the purposes of the Registration & Collections Act, the 2014 Order constituted a registrable overseas maintenance liability. That is because it created a liability in the applicant to pay, periodically, an amount for the maintenance of both the subject children and the respondent and arose under a maintenance order made by the Superior Court of California being a judicial authority of a reciprocating jurisdiction. Each liability created by the 2014 Order was a registrable maintenance liability both in respect of child and spousal support and each became a registered maintenance liability upon the respondent’s application to the Registrar. The liabilities so registered, including the arrears as stated in the summary assessment attached to the Registrar’s letter dated 7 May 2020, have been notified to the applicant and respondent and are enforceable and being enforced under the Registration & Collection Act as debts due to the Commonwealth which are collectible, and presently being collected, by the Registrar by way of deduction from the applicant’s salary or wages.
By operation of reg 36, the applicant was entitled to apply to this Court for an order to discharge, suspend, revive or vary the 2014 Order. In the determination of that application, the law to be applied is the law in force in Australia under the Family Law Act, being laws which confer power to discharge, suspend or vary orders for child maintenance or spousal maintenance: reg 36(4); Pitney & Pitney [2018] FamCA 996, [15]-[16]. As Forrest J observed in Pitney, the powers conferred to discharge, suspend or vary such orders are found in ss 66S and 83 of the Family Law Act respectively.
It remains to consider the merits of the application.
Discharge or variation of spousal maintenance
Section 83 of the Family Law Act contains extensive provision for the modification of spousal maintenance orders which extend to an order in force with respect to the maintenance of a party to a marriage that was made by another Court and registered in accordance with the applicable Rules of Court, including a power to discharge, suspend revive or vary the order: par 83(1)(b).
In Ch 23 of the Family Law Rules 2004, Registration of Documents, provision is made for the registration of agreements (r 23.01), state child orders (r 23.01A), de facto maintenance orders (r 23.01B) and of debts due to the Commonwealth under s 30 of the Registration & Collection Act (r 23.02). Nowhere in Rule 23 is provision made for the registration of orders made in a court of a reciprocating jurisdiction. Contrastingly, in Rule 20, Enforceable Obligations, r 20.01, provision is made for the enforcement of obligations including for the payment of money: par 20.01(1)(a). While the ambit of the expression ‘obligation to pay money’ is defined by r 20.02(2) and refers expressly to various forms of registered plans and agreements, par 20.02(2)(viii) only speaks of “an overseas maintenance order or agreement that, under the Regulations, is enforceable in Australia.” That is, it does not provide for registration. Nor is registration required for the enforcement of a debt owed to the Commonwealth pursuant to s 30 of the Registration & Collection Act: par 20.01(2)(c). Cognate provisions are now found in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), rr 11.01, 11.03, 15.08, 15.09, 15.10, 15.11.
Such assistance as may be found lies in the regulations, par 17(2)(a) of which enables but does not require a decree to be registered by a person who was a party to the proceeding in which it was made and to do so by filing it in the Court: Naczek v Dowler [2017] FamCA 105, [28].
As noted, reg 36 provides separately for an overseas registered order or agreement that was registered in a court before 1 July 2000 and, relevantly, a registered maintenance liability (as defined by reg 25). It appears nothing in the Family Law Act imposes an express obligation on a person who seeks to modify a registered maintenance liability created by order of a reciprocating jurisdiction to register that overseas order. Regulation 17 is merely permissive. In the circumstances, it is appropriate to exercise the power conferred by reg 4(1) to make a direction that a requirement to register the 2014 Order be dispensed with. The adoption of that approach is properly available as the liability created by the 2014 Order has been accepted by the Registrar of Child Support and entered in the Register. I regard that as being entirely sufficient for the present case. A similar course was taken in Horridge v Attorney-General (1995) 18 Fam LR 829 where an overseas order that should not have been registered was so registered. The Full Court at pp.840-842 instead dealt with the case on its merits: see also Naczek v Dowler [2017] FamCA 105, [28]; Membrey & Hall [2019] FamCa 857, [56].
The power to modify such orders is constrained by the requirement that “there is just cause for so doing”: par 83(1)(c). The scope of that concept was usefully examined by the Full Court in Wreford v Caley (2010) 43 Fam LR 1, [58]-[77]; see also Goleby & Goleby [2012] FamCA 366, [55]; In the marriage of Vakil (1997) 21 Fam LR 509, [5.11]-[5.24], [5.36], [6.1]-[6.2]. An order which decreases the amount of a periodic sum payable under an order or discharges an order may be expressed to be retrospective to such date as the Court considers appropriate: s 83(6). Where an order decreases the amount of a periodic sum payable pursuant to an order, or discharges such order, with retrospective effect, provision is made by ss 83(6A)-(6B) for the recovery of monies payable after the specified date. Otherwise, the discharge of an order does not affect the recovery of arrears due under the order at such time at which the discharge takes effect: s 83(8). A specific order would be required to be made in respect of arrears.
For the purposes of s 83, the Court shall have regard to ss 72 and 75 of the Family Law Act. As Wreford v Caley (2010) 43 Fam LR 1 confirms, consideration of other provisions, including those which identify the object and underlying principles of maintenance. While that appeal concerned child maintenance, many of the matters considered remain instructive here.
It is settled that “an applicant for discharge of a maintenance order can seek to satisfy the Court that the party in receipt of maintenance does not meet the requirement of s 72(1)”; namely, whether the recipient is unable to support herself or himself adequately: Hall v Hall (2016) 257 CLR 490, [10]. There, French CJ, Gageler, Keane and Nettle JJ emphasised the further requirement in par 83(1)(c) “that there be ‘just cause for so doing’ imports a need for the Court to be satisfied of circumstances which justify the Court considering that threshold requirement again.” In the context of an application to discharge an overseas maintenance order those principles were applied by Forrest J in Pitney, [28].
I have re-examined the parties’ affidavits and financial statements. In the terms in which the 2014 Order is framed the applicant remains liable for spousal support until her death.
It was not in contest that the respondent remains in full time employment at Employer O and is in receipt of her own income. Nor was it in contest that as part of the parties’ property settlement, the respondent received the parties’ matrimonial home together with two blocks of land. The respondent deposes that she accepts these three properties were received by her as part of the parties’ property settlement. Although the 2014 Order and transcript of proceedings of the Further Case Settlement Conferences before the Superior Court do not appear to address the transfer of those properties, the transfer of those properties is at least common ground. However, the respondent deposes, and at no time since the making of that affidavit was it contradicted by the applicant that:
. . . what Mr Parris did not state is that the matrimonial home is ‘upside down’, in that the mortgage exceeds the property’s worth, even after I have been paying on the loan for 10 years. Before our divorce in 2010, Mr Parris refinanced the matrimonial home and took all the equity out of it. I am not sure of the exact amount, but I estimate it was $80,000 to $100,000, because the line increased from the purchase price of $87,000 to $160,000 when I began paying on it. The refinanced equity was placed in a bank account of which I had no access and I never saw the funds. The value of the two unencumbered blocks of land do not exceed the lack of equity in the matrimonial home. The home is in poor condition, a major contributor to its low value, and I do not have the funds to conduct several large, badly needed repairs.
While the regrettable circumstances above were not the subject of further evidence, it will be recalled that in the course of the Further Mandatory Settlement Conference held on 16 January 2014, an order was made which required the applicant to make financial disclosure of his corporate tax returns for the three years ended 2012. It will also be recalled, it was common ground that the applicant’s breeding business was wound up in that year and that the 2014 Order resulted in the completion of the parties’ property claims. For all of those reasons, without questioning the respondent’s evidence that there is minimal, if any, equity in the matrimonial home or the two vacant blocks of land, I infer that the transfers of those properties occurred as a part of the parties’ property settlement which has been finalised. More relevantly, these matters serve to illuminate the respondent’s financial circumstances which appear, at best, to be as modest as those of the applicant.
The applicant deposes that CSA now pays to the respondent the majority of the monies which are withheld from his Australian income and that a further result of this action is that he is accruing a debt for child support for his two younger children which, as at February 2021 amounted to $4,000. In the combined result of all of these circumstances, no child support is being paid, or perhaps applied by CSA in satisfaction of the applicant’s liability for child support for his younger children, E and F, now aged 10 and 9 years respectively.
From his financial statement, the applicant’s financial position may be summarised as follows:
(a)average gross weekly income: $1,200
(b)personal expenditure: $1,215
(c)property owned: $115,000
(d)superannuation: $25,000
(e)liabilities: $105,000
Having examined the applicant’s financial statement, it does not appear to overreach or to contain claims for expenditure that are in any way extravagant. The applicant’s financial statement identifies that after deduction of tax, mortgage, Australian child support and certain other liabilities and expenses, he has a disposable income of $300 per week. His financial statement does not indicates whether allowance is being made for the sums currently withheld from his wage. The applicant has no life insurance and minimal superannuation.
On her financial statement, the respondent’s financial position may be summarised as follows:
(a)average weekly income: $1,116
(b)personal expenditure: $269
(c)property owned: $117,424
(d)superannuation: $1,193
(e)liabilities: $153,360
Although it was not the subject of evidence, I infer the respondent’s financial position was stated in USA dollars. Nor do the items of expenditure in the respondent’s statement appear extravagant. Her statement indicates a surplus of income over expenditure. In addition, the respondent submits the state of California pays for the dental and medical support for herself and her children, doing so by reason of her parlous financial state.
Objectively, however, the respondent has an excess of income over personal expenditure of ~USD $847 per month. This equates to ~AUD $1150. Upon the whole of her financial statement, her stated weekly personal expenditure cannot include her weekly liability under a mortgage of USD $296. Also, the respondent’s liabilities exceed her assets by USD $36,000.
Each of the parties has negligible savings. Their motor vehicles are aged. The respondent has accumulated credit card liabilities. The applicant appears to have no credit card.
It was not suggested otherwise and I conclude the parties’ circumstances are and have been very modest. This is not a case of the kind recognised in Wreford v Caley (2010) 43 Fam LR 1, [76] where the Court may be concerned to interrogate the veracity of the parties’ evidence with a view to ascertaining whether either party has divested himself or herself of assets such that their true financial circumstances are in fact more comfortable than may at first appear. That is not this case. Upon the principles examined and explained in that appeal, I am satisfied just cause has been shown modifying the 2014 Order. In my view, it is right and proper to do so having regard to the matters in ss 43(1)(c), 60B, 66B, 66C, 66G, 66W, 72, 75(2) and 81. The approach to be taken to the exercise of discretion was explained in Wreford.
A difficulty in the case arises from the application of s 83(2) and whether there has been a change in circumstances, however, that provision is conditioned by s 83(3). Applied here, the particular difficulty presented by the 2014 Order is that it creates a liability for spousal support that continues until the respondent’s death. Having regard to the principles confirmed in Hall v Hall, my conclusion in this application is grounded upon s 72(1). While the financial position of each party is difficult, at a threshold level, I am not satisfied the applicant is reasonably able to maintain the respondent and I am satisfied the respondent has a demonstrated ability to support herself. She has in fact done so largely without the receipt of spousal support from 2015 until late 2020. I have had regard to the matters in s 75(2) and 83.
I have identified the parties’ respective ages and that they are both employed. Apart from being of advancing years, there is no evidence either party suffers particular health issues or that there physical or mental capacity precludes them from being employed. There is relatively little cogent evidence as to where the parties’ children are now living. Upon the facts as disclosed by their affidavits and financial statements, each party needs to derive an income and will continue to need employment having regard to their accrued liabilities. Both parties are divorced and there is no evidence either party has responsibility to support any other person.
There is some evidence the applicant is eligible for and receiving Social Security that is being credited to his United States Social Security account and I do not ignore his failure to disclose that entitlement or its quantum in greater detail. I infer the respondent has not yet qualified for Social Security benefits in light of her age.
I have also had regard to the child support for which the applicant is liable for E and F and his accepted responsibility to continue to support X. Conversely, upon the terms of the 2014 Order, the respondent is no longer liable to support Mr C. In my opinion, the justice of the case requires the court to take into account that the applicant’s duty to support X is to be equated with and must not be accorded a higher or lower priority than his duty to support E and F.
Discharge or variation of child support
In approaching consideration of the issue of child maintenance I have paid regard to the objects and principles expressed in ss 66B and 66C and the matters in ss 66H-66K, 66S and 66W.
X should, insofar as possible, have her proper needs met from the reasonable and adequate shares of the income of each of her parents. Factors that will impact upon this object include that each of the parties has a modest earning capacity and neither of them have assets of any real moment. X is now aged 15 ½ years but otherwise there is a dearth of evidence respecting her proper needs or whether she herself has any income or an incapacity, however, in the present case I will not speculate upon such issues. Equally, there is no evidence that X has any special needs. In addressing the issue of what contribution the applicant should be required to make I have identified each of the parties’ financial position and their commitments as necessary to support himself, herself, X, E and F as the case requires. I am satisfied the applicant has no capacity to maintain X by making a lump sum payment or by the transfer or settlement of any property and that his only ability to do so at present is to make weekly payments from his income, such as it is.
Again, a difficulty as concerns child support is whether there has been a relevant change of circumstances. In my view it is too simplistic to merely identify that the applicant is now employed whereas, it was said, the 2014 Order for spousal and child support was quantified having regard to the parties’ respective financial positions at that time. If the respondent’s submission was to be accepted, there is the greatest difficulty in understanding why the applicant was held liable for both spousal and child support of USD $946 per month on the basis of a deemed income of USD $8:00 per hour at a time when he was unemployed while the respondent was held liable for USD $200 per month for Mr C when she was earning USD $3373 per month. Other circumstances which have changed since the making of the 2014 Order include that: (1) Mr C attained his majority in 2014 so that the applicant’s liability increased from USD $246 per month to USD $446 per month; (2) Ms B attained her majority in 2000, yet for the past 26 months, the applicant has remained subject to a liability of USD $446; (3) following the failure of the applicant’s marriage to Ms D in 2015, he has also been assessed as liable for child support for E and F of AUD $414; (4) since moving to Australia, while the applicant is no longer earning in USD $, his liability is subject to a conversion from AUD $ to USD $ and all that this entails. Viewing those matters collectively, I am satisfied the 2014 Order should be modified.
In particular, on the evidence in this case, a factor which warrants consideration is that monies being withheld from the applicant’s wage are being remitted to the Agency for the respondent and the parties’ child, X. Despite the obligation in s 70(1) of the Registration & Collection Act to apportion child support, it appears that at present no child support is being paid for E or F. Contextually, the imperative that a parent’s duty to maintain a child is not of lower priority than the duty to maintain any other child is being subverted.
As noted above, the applicant’s eldest child, Mr C, is now aged 24 years. The parties’ second child, Ms B is also an adult. Implicit in the parties’ submissions was that the 2014 Order has taken effect according to its terms such that the applicant should have no liability to pay child support for either of those children once they attained their majority. However, insofar as it imposed a liability for child support, the 2014 Order did so in global terms and did not provide for the adjustment or reduction of the amount of child support as is each of the parties’ three children, Mr C, Ms B and X would attain the age of 18 years. In the terms in which the 2014 Order is framed, the applicant remains liable for the same sum by way of child support irrespective of whether one, two or all three children are under the age of 18 years.
Quite apart from those problematic textual considerations, the substantive basis upon which the applicant seeks the discharge of the 2014 Order insofar as it imposes a liability for child support is that he now has a separate additional liability to pay child support for his two younger sons, E and F. The application for discharge was conditioned upon the basis of an express concession that the applicant accepts he remains liable for X’s child support.
I incorporate the matters addressed above in relation to spousal support. For those reasons, and those given below, I am satisfied just cause is shown to modify the order for child support.
Conclusion – relief
The applicant has failed to pay maintenance in accordance with the terms of the 2014 Order from December 2014 to May 2020 (in the case of child support) and from December 2014 to October 2020 (in the case of spousal support). He has now been assessed for, and says he is also unable to pay, child support of $446 in relation to his two younger children pursuant to the Assessment Act. The applicant, who is of modest means, has been in gainful employment since 2015. In consequence of steps taken by the respondent, who is also of modest means, the applicant’s employer has withheld amounts as assessed by the Registrar of Child Support and remitted those sums to the Californian Agency.
In the event, nothing was said respecting the application for interim relief and in the circumstance that orders are made and reasons now given upon a final determination of the application, it is unnecessary to determine any application that the respondent be restrained from enforcing collection of the arrears as had been sought by the initiating application. The issue of enforcement can be addressed effectively by moulding orders which, in effect, will require the particulars of the liability under the 2014 Order to be amended. However, as noted earlier, the applicant had sought the determination of the proceeding as a matter of urgency on the basis that having secured employment a substantial part of his wage was now being remitted by the CSA to the Agency. As to the application for final relief, I have found some assistance in the cautionary approach commended in Ganter v Grimshaw (1998) FLC 92-810 at 4.39, 4.40. There, the Full Court considered an equitable solution available to be adopted where further children had been born was to divide the income equally.
Having regard to the matters addressed above, I conclude that as concerns the 2014 Order for spousal support, it would be unjust to simply discharge it. Having reflected upon the matter at some length, I consider the order should be varied such that the applicant is liable for arrears at the rate of AUD $250 per month as and from November 2014 when Mr C attained his majority and that the order cease to be operative as and from 17 March 2022.
No relief was sought respecting the order for child support respecting Mr C. Under the 2014 Order, the respondent was fixed with that liability. In any event, Mr C is now an adult. Insofar as the 2014 Orders were made for the benefit of Ms B, apart from the question of liability for arrears, I am disinclined to interfere with, or discharge them insofar as it ceased to be operative upon Ms B becoming an adult. From that point, any modification would be otiose. However, it is necessary for the avoidance of doubt to vary the 2014 Order, in relation to both Ms B and X. To do otherwise would leave open the possibility of dispute as to the ongoing operation of the 2014 Order notwithstanding the variation of the order for child support. I have taken into account that the respondent remained liable for USD $446 per month after Ms B became 18 years of age; that is, in 2018. The orders made should take into account the fact that Ms B was not a child from that date. On the evidence, it is not possible to undertake a granular re-assessment of the issue of quantum. More broadly, however, the 2014 Order has been accepted as the basis for a liability in Australia, not on the basis that Ms B is not now an adult, but on the basis that the 2014 Order fixed the liability for child support on a global basis of USD $446 per month. In my opinion, the order should be varied to provide that the applicant pay the sum of AUD $220 per month for the child maintenance of X. My assessment of that sum is largely informed by the evidence the applicant’s liability for child support for E and F has been assessed at AUD $414 per month. There is no need to specify the operative date for that maintenance to cease. This is achieved by s 66T of the Family Law Act.
Although the relief granted in this proceeding is not made pursuant to the Registration & Collection Act, it is as well to direct that a copy of the Order made and these reasons for judgment be served on the Child Support Registrar. That is because the Order constitutes an ‘affecting event’ within the meaning of the Registration & Collection Act, and where s 37 requires the Registrar to form an opinion whether to make variations to the Register. It is not for this Court to direct the Registrar what amendments to the Register may be appropriate.
I certify that the preceding two hundred and sixty-two (262) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 8 September 2021
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