Pitney and Pitney

[2017] FamCA 272

FAMILY COURT OF AUSTRALIA

PITNEY & PITNEY [2017] FamCA 272

FAMILY LAW – INTERIM – Registered maintenance liability in a reciprocating jurisdiction – Where the applicant seeks an order to suspend the collection of spousal maintenance arrears and child support arrears pending determination of the substantive application – Where the application is dismissed.

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)
Family Law Rules 2004 (Cth)

Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56
Hasil v Krekanova (2004) FMCAFam 605
Wayne & Dillon & Dillon [2008] FamCAFC 204

APPLICANT: Mr Pitney

RESPONDENT: Ms Pitney

OTHER PARTY: Child Support Registrar

FILE NUMBER: BRC 7804 of 2016

DATE DELIVERED: 2 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE:

26 September 2016

(Last written submissions received 20 December 2016)

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston

SOLICITOR FOR THE APPLICANT: Hopgood Ganim Lawyers

THE RESPONDENT: No Appearance

SOLICITOR FOR OTHER PARTY:

Mr Lane

Mills Oakley

Orders

1. That the interim application contained within the Initiating Application filed on 11 August 2016 be dismissed.

2. That the substantive application be listed for a trial management directions hearing at 9.30 am on Wednesday, 24 May 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pitney & Pitney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7804 of 2016

Mr Pitney

Applicant

And

Ms Pitney

Respondent

REASONS FOR JUDGMENT

1. On 11 August 2016, the Applicant filed an Initiating Application in this Court in which he seeks to invoke the jurisdiction of this Court to discharge overseas maintenance orders of the Family Court of the County of City B of the State of C in the United States of America.  Orders were previously made by that Court in City B in proceedings between the Applicant and the Respondent arising out of the dissolution of their marriage.

2. The Applicant and the Respondent are both originally from the UK but they moved to the United States to live many years ago. They had four children and were living in City B when their marriage broke down. Their divorce, property settlement, parenting orders, spousal maintenance and child support proceedings were litigated in City B, with operative spousal maintenance and child support orders first being made on a final basis in November 2000. By those orders, the Applicant was ordered to pay US$2,136 per month to the Respondent by way of child support for the three children who were still minors at that time, decreasing as each one attained majority. He was also ordered to pay US$4,100 per month to the Respondent by way of spousal support.

3. In September 2005, the City B Court found the Applicant guilty of contempt for failing to pay all of the money he had been ordered to pay by the September 2000 orders and determined that he owed US$479,643.35 in total that included arrears of maintenance payments, an “equalisation payment” of US$100,000 that had been ordered in the property settlement proceedings and a payment of US$26,000 for the Respondent’s Attorney’s fees.

4. In December 2005, a warrant was issued for the arrest of the Applicant for his non-payment of the maintenance support ordered. The Applicant voluntarily presented himself to the City B Court in March 2007, and on 29 March 2007, he pleaded guilty to charges of “criminal non-support”.  He was placed on probation for five years with conditions relating to payment of child support. Subsequently, though, he was arrested for his contempt of the orders of the Family Division of that same City B County Court and spent some time incarcerated before his release was secured.

5. On 2 May 2007, certain interim orders were made in the Family Division of that City B Court that included the Applicant surrendering his passport, restraining him from leaving City B County, and paying the sum of US$110,000 to the Respondent with 50 per cent to be attributed to spousal maintenance and 50 per cent to be attributed to child support. There is evidence that he did pay that sum.

6. On 7 May 2007, a consent judgment was entered in the City B County Court in which the Applicant and the Respondent are noted to have agreed to compromise the amount owed by the Applicant to the Respondent pursuant to the order of September 2005 (which had been US$479,643.35) to US$260,000, of which it was agreed he had already paid US$110,000 on 5 May, 2007. The Applicant also agreed to transfer 100 per cent of his interest in a named retirement savings plan and executed an irrevocable Power of Attorney in favour of the Respondent to effect that transfer. The orders also provided for an additional US$110,000 to be paid in monthly instalments of US$1,800 until paid in full, as well as an “arrearage” payment of US$800 per month that was ordered to be paid in March 2007, after he presented himself to the Court. The consent Orders also provided for the Applicant to be allowed to leave City B County and have his passports returned.

7. On 7 September 2007, a further judgment was entered in the City B proceedings between the Applicant and the Respondent. That judgment records that as at 15 September 2005, the Applicant owed the Respondent the total sum of US$260,000 for child support and spousal maintenance “arrearages”. It records that US$165,000 of that was for child support and US$95,000 was for spousal maintenance. It also reflects recognition of the payment of US$110,000 by the Applicant on 5 May 2007, with US$55,000 to be applied towards that child support arrears of US$165,000 and US$55,000 to be applied towards that spousal maintenance arrears of US$95,000. It also reflects that the remaining child support arrears of US$110,000 was to be paid at US$1,800 per month with more child support arrears of US$48,000 at of 29 March, 2007 to be paid at US$800 per month. It expressed the position that the Applicant would be liable then for the following monthly payments:

   (a)Current child support of US$1,863;

   (b)Criminal child support “arrearage” of US$800;

   (c)Civil child support “arrearage” of US$1,800; and

   (d)Current spousal maintenance of US$4,100.

8. In or around April 2009, the State of C filed a motion in the City B Court to have the Applicant’s probation revoked.  In October 2009, the Applicant successfully had that motion dismissed and the judgment dismissing it ordered him to pay US$9,915 on that date and to continue paying “arrearage” of US$810 per month whilst still paying his other monthly child support obligations.

9. In November 2010, the Applicant was arrested at City D Airport pursuant to a warrant for non-payment of child support. He was released and ordered to appear in Court in C in December 2010.  He did not appear in that Court on that day and somehow travelled out of the USA to Australia where he has been since. In 2012, he was informed by a US Marshall that there is an outstanding warrant for his arrest in the USA and that he should voluntarily return to the United States to deal with it.  He did not.

10. In 2016, the Applicant was advised in writing by the Child Support Division of the Australian Department of Human Services that it had registered his liability for child support and spousal maintenance pursuant to the City B Court orders and that he owed AUS$766,883.93 in arrears and AUS$5,263.17 per month on an ongoing basis for the spousal maintenance of the Respondent.

11. After receiving that notification, the Applicant applied to this Court to discharge those US Court orders. He also applied for a stay of enforcement action by the Child Support Registrar pending the hearing and determination of his application for discharge.

12. The matter came before me on 26 September 2016. That day, the Applicant was represented by solicitor and counsel. The Respondent did not appear. That is hardly surprising, as she still lives in the State of C, USA. The Child Support Registrar, though not a party, made an appearance represented by solicitors, purporting to appear as a friend of the Court.

13. There was agreement between the legal representatives of the Applicant and the Child Support Registrar for the matter to proceed by way of the filing of written submissions. The last of those written submissions was filed on 20 December 2016. The legal representatives agreed that I should not deliver my judgment until a decision reserved by the Full Court of this Court in which a relevant point was to be decided had been delivered. That has recently occurred.

14. Further, on 9 November 2016, a short two page “Statement” sent to the Court by the Respondent was also received. In that, she said she still lives in City B, State of C, and does not have the financial ability to retain legal representation in Australia. She contended that this Court “is not an appropriate forum” for hearing this application and that it “should be decided in the US courts.”

15. With respect to the Respondent, as will be seen in these reasons, the Applicant has a right pursuant to Australian law to bring the proceedings that he has, and this Court has jurisdiction to hear and determine them. The Respondent has not formally appeared in the proceedings or made an application for the Applicant’s proceedings to be stayed on choice of forum grounds. Even if she did, the Applicant would have to be given procedural fairness and be heard in response, and I am in no position to even begin to consider the merits of any such application if it was brought. Accordingly, I have to proceed to hear and determine the immediate dispute before me. 

The Issue for Immediate Determination

1. The Applicant seeks an immediate stay of enforcement action being taken against him by the Child Support Registrar pending the hearing and determination of his application for discharge of the C Court’s operative Orders. The Child Support Registrar submits that the Court has no jurisdiction in these proceedings to stay its actions.

2. In the first instance, counsel for the Applicant relies on s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”) in support of the interim application for a stay. The Child Support Registrar submits that s 111C does not apply in this case and the Court does not have jurisdiction under that Act in this particular case. This was the very point the Full Court had been asked to determine in the matter that was reserved.

3. The Full Court’s decision in that matter, Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56, has now been delivered. In that decision, the Full Court determined, accepting the submissions made for the Child Support Registrar, that a Court only has jurisdiction under the Registration Act to make orders pursuant to s 111C of that Act staying action being taken by the Child Support Registrar under that Act in proceedings arising under the Registration Act.

4. Accordingly, bound by that determination as I am, I cannot make an interim order pursuant to s 111C of the Registration Act staying the Child Support Registrar’s hand pending determination of the Applicant’s application for a discharge of the American Court Orders.

5. For the Applicant though, an alternative submission was made that power nevertheless exists in Regulation 36 of the Family Law Regulations 1984 (Cth) (“the Regulations”) and s 83 of the Family Law Act 1975 (“the Act”) to make an order to “suspend” the collection of spousal maintenance arrears and child support arrears pending determination of the substantive application. 

6. There is no dispute that the Applicant’s substantive application is brought pursuant to Regulation 36 of the Regulations. That Regulation provides:

   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, reviving 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 determination of an application is the law in force in Australia under the Act.

7. None of the orders of the City B Court that are sought to be discharged were registered in a Court prior to 1 July 2000.

8. A “registered maintenance liability” is defined in Regulation 24A to mean “a registrable maintenance liability under s 18A of” the Registration Act. Section 18A of the Registration Act provides that:

   (1)      A liability is a registrable overseas maintenance liability if it is:

   (a)A liability of a parent … of a child to pay a periodic amount for the maintenance of the child; and

   (b)An overseas maintenance liability.

   (2)A liability is a registrable overseas maintenance liability if it is:

   (a)A liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage; and

   (b)An overseas maintenance liability.

   …

   (4)A liability is a registrable overseas maintenance liability if it is an amount that is in arrears under a liability mentioned in subsection (1) or (2) …

9. “An overseas maintenance liability” is defined, relevantly, in s 4 of the Registration Act as:

   … a liability that arises under:

   (a)a maintenance order made by a judicial authority of a reciprocating jurisdiction; or

   (b)a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction …

10. The United States of America is a reciprocating jurisdiction for the purposes of the Registration Act.

11. Accordingly, it appears to be clear that the relevant liability of the husband here becomes an “overseas maintenance liability” by reason of a “maintenance order” being made by a judicial authority in City B, State of C, United States of America. I am quite satisfied that the Applicant’s liability arising under the orders of the C Court is an “overseas maintenance liability” for the purposes of the Registration Act.

12. The American orders provide that the Applicant is liable to pay periodic maintenance for his children and is also liable to pay a periodic amount for the maintenance of his former wife. Accordingly, the Applicant’s liability is a “registrable overseas maintenance liability” for the purposes of s 18A of the Registration Act and is, accordingly, a “registered maintenance liability” to which Regulation 36 of the Regulations applies.

13. As can be seen, Regulation 36 provides for an application to be made to a court of competent jurisdiction for an order “discharging, suspending, reviving or varying an order or liability” to which the Regulation applies.   The Applicant is a person “against whom the order was made” within the meaning of Regulation 36(3).  Accordingly, he may make the application.

14. As can also be seen, Regulation 36(4) provides that the law to be applied “to determination of an application is the law in force in Australia under the Act.” Reference to “the Act” is clearly reference to the Family Law Act 1975 (Cth) (“the Act”), so it is to the provisions of the Act that one must turn in order to determine an application brought pursuant to Regulation 36. As there are two relevant parts to the City B Court’s orders – one creating child support liability and the other creating spousal maintenance liability - there is a need to determine what is “the law in force in Australia under the Act” that governs the determination of the application to discharge the City B Court’s orders.

15. None of the City B Court’s orders provide for child support to be paid by the Applicant for any of the three subject children beyond the time that they are no longer “eligible for support”. In fact, the original September 2000 orders specifically provide for reduction in the Applicant’s periodic child support liability as each child moves beyond eligibility for support. What event might take each child beyond ‘eligibility for support’ is not defined in the Orders. Here in Australia, pursuant to s 66L(3) of the Family Law Act 1975 (Cth) (“the Act”) it is the child’s 18^th birthday. In this case at this time, there is no evidence before me going to that point. However, there is evidence that supports findings that all three children have long moved beyond eligibility for support and that the Applicant has been relieved of his liability to pay ongoing periodic child support in respect of all three children. As there is no ongoing child support liability in respect of the orders (that is, the child support orders are no longer “in force”), the remaining question of whether any arrears owing in respect of the child support orders that were made should be discharged or varied is to be determined, I am satisfied, in accordance with s 66W(2) of the Act. Section 66W(2) provides:

    66W(2)If arrears are due under such an order when the order ceases to be in force, the court may, by order, retrospectively:

    (a)     discharge the order if there is just cause for doing so; or

    (b)  vary the order so as to increase or decrease the arrears to be paid under the order if the court is satisfied that:

    (i)  the circumstances of the person liable to pay the arrears are such as to justify the variation; or

    (ii)  the circumstances of the person entitled to receive the arrears are such as to justify the variation; or

    (iii) in the case of an order that operated in favour of, or that was binding on, a legal personal representative–the circumstances of the estate are such as to justify the variation.

16. There is nothing in that sub-section that expressly empowers the Court to make an order that stays the Child Support Registrar’s hand in taking enforcement action pursuant to the Registration Act to recover arrears of child support owing.

17. It seems equally clear that the application for discharge of the spousal maintenance provisions of the City B Court’s orders is governed by s 83 of the Act. Section 83(1) provides, relevantly, that if there is an order in force with respect to the maintenance of a party to a marriage:

    …

    the court may, …

    (c)      discharge the order if there is any just cause for so doing;

    (d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;

    …

    (f)subject to subsection (2) vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

18. The applicant seeks final orders discharging the American court’s orders and all his liability under them, but he seeks an interim order that ‘stays’ or restrains the Child Support Registrar from acting within his/her powers to recover money owed by him under the orders. For the Applicant, it was submitted that s 83(1)(d) of the Act gives the Court “clear power to suspend until further order”.

1. Whilst it is clear that s 83(1)(d) of the Act empowers the Court to “suspend” the operation of a spousal maintenance order wholly or in part, and that such an order can be made as an interim order pending the final determination of an application for discharge of the order, with respect, I do not consider that the use of the words “suspend its operation” empowers the Court to do anything other than make an order that excuses the person upon whom the obligation to pay spousal support is imposed by the order (“the payer”) from having to make ongoing payments in compliance with an operative order. I do not consider that an order suspending the operation of an existing spousal maintenance order excuses the payer from having to pay arrears of maintenance already owing pursuant to the order. Only a discharge of the arrears or a retrospective discharge of the order would achieve that, in my view. There is no power given to the Court in s 83 to do either of those things on an interim basis. I do not accept that s 83 itself empowers the Court to make an order directed at the Child Support Registrar to stay the enforcement or collection of arrears owing, pursuant to the Registration Act.

2. Even though that power to order interim suspension of an ongoing, operative spousal maintenance liability exists, I am satisfied, in s 83 of the Act, I understand the submission for the Child Support Registrar to be that not even it can be used by the Court in proceedings under Regulation 36 in this case.

3. Under Regulation 38(2), an order made under Regulation 36 is said to be a “final order” if the relevant reciprocating jurisdiction is the USA, as it is in this case. The solicitor for the Child Support Registrar referred to a judgment of Federal Circuit Judge Jarrett in Hasil v Krekanova (2004) FMCAfam 605 in support of the submission that the use of the word “final” in Regulation 38(1) precludes orders being made “until further order” because “final” means that any order made in proceedings in this Court brought pursuant to Regulation 36 is not open to challenge, change or variation, even on a hearing of the substantive application in this Court, except by way of appeal.

4. With respect to his Honour, I do not agree with that part of his reasoning in that judgment upon which the Child Support Agency relies.

5. Regulation 38 of the Regulations provides that an order made under Regulation 36 is “provisional” if the relevant reciprocating jurisdiction is one of a list of countries set out in Regulation 38(1), but is “final” if the reciprocal jurisdiction is any other jurisdiction. The United States of America is not included in the list in Regulation 38(1), so an order made under Regulation 36 in this matter is said to be “final”.

6. Relevantly, Regulation 38A provides:

   (1)This regulation applies if an order mentioned in sub-regulation 38(1) is provisional.

   (2)      The order is of no effect:

   (a)Unless it is expressed to be provisional; and

   (b)Unless and until it is confirmed (either with or without modification) by a competent court of [South Africa] (the foreign court).

   (3)The order may be made even though the respondent has not been served with the application and has not consented to the order proposed in the application.

   (4)The Registrar of the court making the order must send a certified copy of the order, together with a copy of the depositions of the witnesses, to the Secretary.

   (5)The Secretary must send a certified copy of the order, together with a copy of the depositions of the witnesses, to the foreign court.

   (6)If the foreign court confirms the order (with or without modification), the order has effect in Australia as so confirmed.

7. I am satisfied in this particular regulatory context, that the term “final” in Regulation 38 means that the order that is described as “final” simply has full force and effect in Australia without the need for it to first be confirmed by a Court in the reciprocating jurisdiction. I do not consider “final” to mean that no such order, otherwise within power pursuant to the relevant provision of the Act, can be expressed to be made on an interim basis.

8. Consequently,  I am satisfied that in the proceedings to discharge the spousal maintenance order of the City B Court this Court has power to suspend the operation of the City B Court’s still operative spousal maintenance order until further order and it may exercise this power on an interim basis pending determination of the substantive proceedings at trial. However, I do not consider this Court has the power through Regulation 36 to stay the collection activities of the Child Support Registrar in respect of any arrears of child support or spousal maintenance owing by the applicant pursuant to the American orders.

A further Argument of the Applicant

1. Against a background of it being common ground between the applicant and the Child Support Registrar that the Registrar would not voluntarily refrain from taking steps to enforce the registered liability of the applicant (beyond the delivery of this interim determination), the applicant also submitted that if the Court was not minded to make the interim order sought that the Child Support Registrar should be joined as a party to the proceedings and an injunction should then be granted restraining him/her from taking any step to enforce or recover the money said to be owing pending determination of the applicant’s discharge application.

2. Chapter 6 of the Family Law Rules 2004 deals with who should be parties to proceedings. Rule 6.03 sets out how a party may add another party after a case has started. The applicant did not utilise that procedure. His counsel just asserted in his written submissions that the Child Support Registrar should be joined if the Court is against the applicant on his interim application for an order for a stay under the Registration Act or Regulation 36 and s 83 of the Act. Of course, compliance with procedural requirements of the Rules may itself be dispensed with by the Court if the Court determines it appropriate pursuant to Rule 1.12 but I am not persuaded this is a circumstance where that should occur. I am also not persuaded that the Child Support Registrar should be made a respondent to the applicant’s substantive proceedings in any event.

3. Rule 6.02(1) expressly provides:

   A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.

4. The proceedings were commenced by the applicant against the respondent, his former wife and the mother of his three children. The substantive relief the applicant seeks against the respondent is plainly clear. He seeks the discharge of the operative spousal maintenance order and a discharge of any arrears owing under the spousal maintenance order and under the no longer operative child support order.

5. I am unable to see how any of the issues to be considered and determined in deciding the substantive proceedings directly affect the rights of the Child Support Registrar, save, of course, for the Child Support Registrar’s right, more properly described as a statutory obligation, to continue to take enforcement action against the applicant if the applicant is successful in the substantive proceedings. That said, I am particularly unable to see how the Child Support Registrar’s participation as a party in the substantive proceedings is “necessary for the court to determine all issues in dispute in the case”.

6. Simply because the applicant does not want the Child Support Registrar to take any enforcement action against him before his substantive application is determined does not mean that all the issues in dispute in the Regulation 36 proceedings are unable to be determined without the Child Support Registrar’s participation as a party.

7. Warnick J, sitting as the Full Court constituted by a single Judge,[1] said of the word “necessary” as used in rule 11.01(1) of the Federal Magistrates Court Rules (as they then were called) – a rule very similar to Rule 6.02 of the Family Law Rules:

   The word “necessary” ... must mean something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.

   However, if a cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute”.

   [1]     Wayne & Dillon & Dillon [2008] FamCAFC 204 at [18] and [19].

8. I consider that a useful discussion and supportive of my determination.

9. Counsel for the applicant submitted that the Registrar (in his/her role as friend of the Court) has not argued that he/she would be prejudiced in a general sense or in the particular circumstances of this case if prevented from taking enforcement action before the matter is determined on a final basis. I accept that submission.

10. Further, counsel for the applicant submitted that the Child Support Registrar has not argued that there is not a serious question to be tried on the applicant’s Regulation 36 proceedings. It was submitted that no argument was made by the Child Support Registrar that the applicant has the income, assets or financial resources to satisfy the registered debt or that there is no merit in the applicant’s case that there is uncertainty in the calculation of the debt asserted by the Child Support Registrar. Again, I accept that submission.

11. However, those are reasons advanced on the applicant’s behalf as to why the Child Support Registrar should not take any steps to seek to recover or enforce payment of the applicants’ registered liability that might support an injunction being issued against the Child Support Registrar or a stay being granted if enforcement proceedings against the applicant were underway in a court of competent jurisdiction. They are, in my respectful view, not grounds for joining the Child Support Registrar to what are essentially spousal maintenance and child maintenance proceedings between former married partners and parents.

12. I will not make an order joining the Child Support Registrar to the proceedings and I will not issue an injunction against him/her.

Should the spousal maintenance order be suspended until further order?

1. In conclusion, the evidence, on its face, does not persuade me to suspend the operation of the spousal maintenance order until further order of the Court so that the applicant is excused from paying the monthly amount of around AUD$5,200 until his substantive proceedings are determined.

2. The evidence set out in paragraphs 33-38 of the applicant’s affidavit filed 11 August, 2016, and in his Financial Statement filed on the same date, show that he has available to him on a monthly basis after tax and expenses are deducted from his income an amount of AUD$5,754. He says the amount that the Child Support Registrar is demanding that he pay on an ongoing monthly basis to meet his ongoing spousal maintenance liability is AUD$5,263. Although the applicant’s evidence seems difficult to accept as correct, that is what he has deposed to and it is, consequently, impossible to determine that he cannot pay the ongoing spousal maintenance obligation.

3. Accordingly, I will not suspend the spousal maintenance order whilst the determination of the substantive Regulation 36 application remains pending.

4. I will dismiss the applicant’s application for interim orders.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 2 May 2017.

Associate: 

Date:  2 May 2017