Pitney & Pitney - [2018] FamCA 996

FAMILY COURT OF AUSTRALIA

PITNEY & PITNEY

[2018] FamCA 996

FAMILY LAW – CHILD SUPPORT – Variation of overseas maintenance order – Where the husband seeks to retrospectively discharge child maintenance orders – Where the evidence reflects that the husband has paid an amount well beyond the total of his periodic child support liability – Where the Court finds it appropriate to discharge all child support orders.

FAMILY LAW – SPOUSAL MAINTENANCE – Variation of overseas maintenance order – Where the husband seeks to retrospectively discharge spousal maintenance orders – Where the evidence reflects that the husband’s circumstances have changed since the initial assessment of his financial situation – Where the Court finds it proper to vary the spousal maintenance orders retrospectively and also vary the ongoing spousal maintenance order.

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

Family Law Rules 2004 (Cth)

Hall v Hall (2016) FLC 93-709

APPLICANT:

Mr Pitney

RESPONDENT:

Mr Pitney

FILE NUMBER:

BRC

7804

2016

DATE DELIVERED:

27 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

22 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim Lawyers

THE RESPONDENT:

Self-represented

appearing by videolink

Orders

That pursuant to reg 36 of the Family Law Regulations 1984 (Cth) and s 83 of the Family Law Act 1975 (Cth) the spousal maintenance order made by the Family Court of the County of City B in the state of C, in the United States of America, (“the C Court”) on 13 November 2000 is varied retrospectively from that date, 13 November 2000, by decreasing the amount payable by the husband to the wife from US$4,100 per month to US$750 per month.
Further, that pursuant to reg 36 of the Family Law Regulations 1984 (Cth) and s 83 of the Family Law Act 1975 (Cth), any and all child support orders and spousal support orders made by the C Court after 13 November 2013 are discharged in so far as they impacted upon the calculation of the husband’s child support and spousal support liability.
It is declared that the husband’s liability to pay child support pursuant to the child support order of the C Court of 13 November 2013 has been fully discharged.
Further, it is declared that the husband’s liability to pay spousal support pursuant to the spousal support order made by the C Court on 13 November 2000 as varied by this Order of this Court has been fully discharged.
Further, that pursuant to reg 36 of the Family Law Regulations 1984 (Cth) and s 83 of the Family Law Act 1975 (Cth) the spousal maintenance order made by the C Court on 13 November 2000 as varied by this Order of this Court retrospectively from that date, 13 November 2000, by decreasing the amount payable by the husband to the wife from US$4,100 per month to US$750 per month is varied again such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Pitney & Pitney [2018] FamCA 996
Case: [2018] FamCA 996
Decision Date: 27 November 2018

CaseChat Overview and Summary

In the matter of *Pitney & Pitney*, Forrest J of the Family Court of Australia considered an application by the husband to retrospectively discharge child and spousal maintenance orders made in the United States of America. The dispute centred on the husband's assertion that he had paid amounts significantly exceeding his periodic child support liabilities, and that his financial circumstances had changed since the initial assessment of his financial situation, warranting a variation of the spousal maintenance orders.

The court was required to determine whether to retrospectively discharge the child support orders and, if so, to what extent. Additionally, the court had to consider whether to vary the spousal maintenance orders retrospectively and prospectively, given the alleged changes in the husband's financial position. The legal framework for these determinations involved the application of regulation 36 of the *Family Law Regulations 1984* (Cth) and section 83 of the *Family Law Act 1975* (Cth), which govern the variation and discharge of maintenance orders.

Forrest J reasoned that the evidence supported the husband's claim regarding overpayment of child support, finding it appropriate to discharge all child support orders. In relation to spousal maintenance, the court found that the husband's changed circumstances justified a retrospective variation of the existing order, reducing the monthly payment significantly. The court also varied the ongoing spousal maintenance obligation, setting a new periodic payment amount.

Consequently, the court ordered a retrospective variation of the spousal maintenance order from US$4,100 per month to US$750 per month from 13 November 2000. Furthermore, all child support and spousal support orders made after 13 November 2013 were discharged in so far as they impacted the husband's liabilities. The court declared that the husband's child support liability and his spousal support liability, as varied, were fully discharged. Finally, the spousal maintenance order was further varied to require the husband to pay AUD$160 per week from the date of the order.

Orders

Orders of the court

That pursuant to reg 36 of the Family Law Regulations 1984 (Cth) and s 83 of the Family Law Act 1975 (Cth) the spousal maintenance order made by the Family Court of the County of City B in the state of C, in the United States of America, (“the C Court”) on 13 November 2000 is varied retrospectively from that date, 13 November 2000, by decreasing the amount payable by the husband to the wife from US$4,100 per month to US$750 per month.

Further, that pursuant to reg 36 of the Family Law Regulations 1984 (Cth) and s 83 of the Family Law Act 1975 (Cth), any and all child support orders and spousal support orders made by the C Court after 13 November 2013 are discharged in so far as they impacted upon the calculation of the husband’s child support and spousal support liability.

It is declared that the husband’s liability to pay child support pursuant to the child support order of the C Court of 13 November 2013 has been fully discharged.

Further, it is declared that the husband’s liability to pay spousal support pursuant to the spousal support order made by the C Court on 13 November 2000 as varied by this Order of this Court has been fully discharged.

Further, that pursuant to reg 36 of the Family Law Regulations 1984 (Cth) and s 83 of the Family Law Act 1975 (Cth) the spousal maintenance order made by the C Court on 13 November 2000 as varied by this Order of this Court retrospectively from that date, 13 November 2000, by decreasing the amount payable by the husband to the wife from US$4,100 per month to US$750 per month is varied again such that from the date of this Order, the husband shall pay the wife by way of periodic spousal maintenance the sum of AUD$160 per week.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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