Pitney & Pitney
[2018] FamCA 996
•27 November 2018
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 Rules 2004 (Cth) |
| Hall v Hall (2016) FLC 93-709 |
| APPLICANT: | Mr Pitney |
| RESPONDENT: | Mr Pitney |
| FILE NUMBER: | BRC | 7804 | of | 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 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.
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
This is an application to retrospectively discharge child and spouse maintenance Orders made as between the parties by the Family Court of the County of City B in the State of C in the United States of America. Orders were made in that Court on 13 November 2000 for the Applicant to pay the Respondent US$2,136 per month by way of child support and US$4,100 per month by way of spousal support.
The parties, both originally from England, had been married and living in the USA for many years. Their marriage produced four children, one of whom was adult at the time the subject Orders were made. The parties had separated and divorced in the years immediately preceding the making of these Orders. Property settlement Orders were also made by the Court as between them.
The litigation that led to these Orders was the beginning of several years of struggles between the parties in Court. The matter was back before the Courts, family and criminal, a number of times as the wife and the State of C child support collection authorities sought to have the husband meet his ordered obligations.
Unlike in this country, the non-payment of child support apparently leads to consequences in the criminal law courts of the State of C, if not other States of the American Union. The husband actually was arrested at one point, served some months in prison and was placed on probation for years for non-payment of child support. That is not to say that he paid nothing to the wife. In fact, he did. He paid a lot of money to the wife in the years after the Orders were made.
At some point in the mid-2000s, the father left the USA, moved to Australia and settled here. Even then, he continued making payments to the wife. In 2010, he managed to leave the USA and return to Australia, even though he had been arrested at City D International Airport, released and ordered to appear in the C Court. Even after that, whilst living and working in Australia he continued making payments until March, 2012, when he ceased doing so, despite the fact that the spousal maintenance Order was still extant.
The husband must have thought that would be the end of it, but it was not. In 2016, he received a letter from the Child Support Division of the Australian Department of Human Services informing him that it had registered his liability for child support and spousal maintenance pursuant to the C Court Orders and that he owed AUS$766,883 in addition to AUS$5,263.17 per month on an ongoing basis pursuant to the 2000 spousal maintenance Order. It was that notification that prompted his application to this Court.
How Can this Court Discharge an Order of a Court in the State of C?
The Applicant husband brings his application pursuant to Regulation 36 of the Family Law Regulations 1984 (Cth) (“the Regulations”). Regulation 36 provides (my emphasis added):
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.
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.
A “registered maintenance liability” is defined in reg 24A to mean “a registrable maintenance liability under s 18A of the Child Support (Registration and Collection Act) 1988 (“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) …
“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 …
The United States of America is a reciprocating jurisdiction for the purposes of the Registration Act.[1]
[1] Family Law Regulations 1984 (Cth); reg 25 and Family Law Act 1975 (Cth), s 110.
Accordingly, it appears 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, 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.
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 reg 36 of the Regulations applies.
As can be seen, reg 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 reg 36(3). Accordingly, he may make the application.
As can also be seen, reg 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 reg 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.
The power to discharge, suspend or vary a spousal maintenance order under the Act is found in s 83. The power to discharge, suspend or vary a child maintenance order under the Act is found in s 66S. I will deal with that first.
The Child Maintenance Issue
The child maintenance Orders made on 13 November 2000, required the Applicant husband to pay US$2,136 per month for the three children until such time as the eldest of the three of them was no longer eligible for support. They required him to then pay US$1,863 per month until the next child was no longer eligible for support. They required him to then pay US$1,391 per month until the youngest child was no longer eligible for support. I am satisfied, on the evidence, that the obligation to pay child support for the eldest of those three children concluded in May 2007, for the second of those three children in March 2008 and July 2009 for the last of those three children. On the evidence, the total of the periodic child support the father was to pay for the support of the three children from the date of the Order to the date that the youngest child was no longer eligible for support was US$210,102. In his affidavit, the husband asserted it was $201,966, but I am satisfied that he miscalculated by one month’s worth of payment of $2,136.
The husband asserts in his evidence that he has paid the wife the total of US$396,534 “in child support” over the years. The wife disputes that.
Adduced into evidence were spreadsheets of tables off the computer of the State of C Department of Social Services Family Support Division (“the Department”) that set out the records of the husband’s payments from November 2000 to April 2016 received through the Department. The husband does not dispute the figures the Department has recorded for amounts received from him. Those records show the Department received a total of US$255,277.88 from him between the first payment recorded in July 2002 and the last payment recorded in March 2012.
The Applicant husband asserts that he paid an additional US$42,720 directly to the wife’s bank account between November 2000 and June 2002. The wife denies that, saying that all she ever received is that which is recorded by the Department. I do not accept that. Neither do I accept that the husband paid her US$42,720 in that period before the Department began collection.
The husband adduced a copy of a document called an “arrearage affidavit” signed by the wife on 20 April 2001. In that affidavit she deposes to having received child maintenance payments in three out of the six months up to signing that affidavit. Those three payments were US$1,834, US$2,020 and US$2,020 (a total of US$5,874). Other documents adduced into evidence by the parties that are far more contemporaneous to the actual period of April 2001 to July 2002, persuade me, on the balance of probabilities, that the Applicant husband did not make any more periodic monthly payments in that time. Accordingly, adding US$5,874 to the US$255,277.88 totals US$261,151.88.
There is also no dispute that the husband paid the wife an additional lump sum of US$110,000 in May 2007 as part of a deal done between them partly so that he could secure his own release from prison and partly to compromise a judgment debt of around US$400,000 that he was found to have owed the wife at that time for arrears of child and spousal maintenance, legal costs, and an unpaid amount of cash that he had been ordered to pay the wife in the property settlement. Interestingly though, the parties themselves are clearly recorded as having agreed that the $110,000 be applied as to US$55,000 to child support and as to US$55,000 to spousal support. Accordingly, as the parties treated it as such and that was accepted by the C Court, I will add the US$110,000 to the US$261,151.88 that I am already satisfied the Applicant husband actually paid. That gives a total of US$371,000.
As I am satisfied the evidence establishes that the husband was to pay US$210,102 over almost nine years in respect of the support of their three children pursuant to the November 2000 child support Orders, I accept that he did pay that. As such, I do not consider that there is a need to consider discharging any of the child support Orders. I consider that they are no longer operative and that all of the money the Applicant husband was to pay in child support was paid- all US$210,102.
Clearly then, he has paid the wife another US$160,898 over and above the amount that dealt with his child support liability over the years since the November 2000 Orders. Additionally, although he had not paid the wife all of the property settlement that he was required to pay her, as I have observed, the parties, for their own reasons, agreed to describe most of the amount that was agreed to be paid as a compromise of the 2005 judgment debt (that included a large amount of unpaid property settlement), by lump sum and other additional, ongoing periodic payments, as child support, though doing so appears to have overlooked the fact that same would take the husband well beyond the total of his periodic child support liability. They also described US$55,000 of it as spousal support. As such, I consider it reasonable to treat the US$160,898 that I am satisfied was paid to the wife over and above the sum that met the husband’s child support liability as going towards his spousal support liability.
The total of that spousal support liability at US$4,100 per month from November 2000 to November 2018 (not including this November) would equal US$885,600 and I am satisfied he has paid US$160,898 of that.
What does s 83 of the Act provide?
Section 83 says:
Modification of spousal maintenance orders
(1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b)made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is any just cause for so doing;
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e)revive wholly or in part an order suspended under paragraph (d); or
(f)subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court's jurisdiction under subsection (1) may be exercised:
(a)in any case – in proceedings with respect to the maintenance of a party to the marriage; or
(b)if there is a bankrupt party to the marriage – on the application of the bankruptcy trustee; or
(c)if a party to the marriage is a debtor subject to a personal insolvency agreement – on the application of the trustee of the agreement.
(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii)the circumstances of the person liable to make payments under the order have so changed; or
(iii)in the case of an order that operates in favour of, or is binding on, a legal personal representative – the circumstances of the estate are such;
as to justify its so doing;
(b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba)in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate;
(c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3)Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to this Part.
(4)In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5)The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A)In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(6A)Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date, being moneys that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B)Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7)For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
Having regard to those statutory provisions, I consider this Court may discharge the C Court’s spousal maintenance Order if there is any just cause for so doing or, if satisfied of one of the pre-conditions provided for in sub-s (2) as to justify its so doing, vary the order so as to increase or decrease the amount ordered to be paid or in any other manner. An Order this Court makes decreasing the amount of a periodic sum payable under an order or discharging an order may be retrospective so such date as this Court considers appropriate.
In Hall v Hall (2016) FLC 93-709, the High Court of Australia (in a judgment of French CJ, Gageler, Keane and Nettle JJ) said that when considering the exercise of the power to discharge an order, the court is “specifically required to have regard to ss 72 and 75” of the Act and that the requirement of s 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 the threshold requirement of s 72(1) again.
Section 72(1), of course, sets out the threshold that a party to a marriage is liable to maintain the other party, to the extent the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately by reason of having the care and control of a child of the marriage who has not attained the age of 18 years, or by reason of age or physical or mental incapacity for appropriate gainful employment, or for any other adequate reason, having regard to the any relevant matter referred to in subsection 75(2). Subsection 75(2) sets out a long list of matters to be taken into account.
Further consideration of the Applicant Husband’s case
The husband asserts, and the C court documents that are in evidence before me, support the assertion, that the order of November 2000 was made after consideration of facts that included, relevantly, that the husband’s taxable income in the USA was US$163,250 in 1996, US$393,683 in 1997, US$362,192 in 1998 and US$664,866 in 1999. He asserted that the yearly income he earned was distorted by relocation expenses paid by his employer in 1997 and 1998, a one off stock option maturing in 1998 and receipt of a severance package in 1999. He said that prior to and subsequent to those years his US income never exceeded US$200,000. As the wife did not contest that, I accept that evidence.
In his affidavit, the husband tabulates his annual income as US$165,884 in the year 2000, $0 in 2001, $0 in 2002, $0 in 2003, $0 in 2004, and $38,641 in 2005. His evidence is that in October 2005, he filed for bankruptcy in the US with none of his creditors raising any objections. He was discharged from bankruptcy in 2006 and then diagnosed with a serious heart condition that forced him to stop work for several months and to undergo open heart surgery.
He deposed to being employed in Australia from 2006 to 2010 earning an average salary of between $175,000 and $200,000 inclusive of superannuation. From the evidence, I apprehend he was employed in a technology transfer company. He deposed to having been made redundant from that employment in 2010 and, soon thereafter, being diagnosed with prostate cancer. That, he says, was surgically treated and is in remission. Since then, he has only worked part-time in his current wife’s business.
The evidence about his current financial circumstances was given clearly and without hesitation. He is now 68 years of age and is married to a 46 year old woman. She industriously runs, with his assistance, a business in a busy suburban shopping mall in the northern suburbs of Brisbane. It is plainly successful. The husband declared that business to have a value of $1,250,000. It is owned, I accept, by a company in which the husband owns 1 share and his current wife owns 999 shares.
The company pays the husband’s current wife an award wage of $91,000 gross per annum for her full-time work in the business. It pays him a salary of $83,772 gross per annum for 6-8 hours part-time work in the business. The discrepancy is explained as legitimate household income splitting to minimise household tax liability.
The company pays the husband a dividend of $104 per annum and pays his current wife a dividend of $103,896 per year. Accordingly, his current wife earns from the business $194,896 and he earns $83,876. The business, therefore, is generating $278,772 into the husband’s household.
The house the husband lives in is registered solely in the name of his current wife. He says it is worth $800,000. His wife had purchased an investment property at the time of the hearing and the purchase was about to settle. She bought it for $775,000. The two properties were security for her bank liability of $810,000, most of which was the purchase price of the investment property. The husband’s evidence was that his wife had purchased the property in which they lived in 2012 for $600,000 and she had, by mid-2017, paid off the mortgage debt on that property. His current wife, therefore, owns shares in a business worth $1,250,000 and has equity in two properties of $765,000 and earns just under $200,000 per year. He asserts he owns nothing but the 1 share in the company that runs the business, some personal property (golf clubs, camera, tools) worth about $10,000 and earns about $84,000 per year.
The husband’s evidence was that he also has some superannuation. In an Australian fund, he had $5,724 and in an American fund through Company E, he had AUD$30,182. In addition, he told the Court that he receives some “pension” income from two American sources connected to former employment. From Company F or Company G, he receives US$134 per month or US$1,608 per year. From Company E, he receives US$9,651 per year. Interestingly, the evidence revealed, and he conceded, that Company E savings plan was by consent order made in the C Court in 2007 meant to be transferred to the wife. When asked why he had not transferred it, he asserted that it cannot actually be transferred, is locked up, and the pension component gets paid to him once per year in a lump sum. He conceded that there is nothing stopping him from sending that money he receives from that Company E savings plan to the Respondent wife each year.
The Respondent wife told this Court, whilst giving evidence via video link from City B, State of C, that she no longer owned her own home. She said she had conveyed it to one of her sons who had sold it and paid her US$60,000 for it. She is now 70 years old. There was no evidence given about any income she receives.
My Consideration of the Matter
At US$4,100 per month, the amount of US$160,898 paid by the husband to the wife, over and above the total child support liability he had, would cover around 3 years and 3 months.
The evidence the husband gave of his income in the years 2000 – 2005 was not challenged at all in the hearing before me by the Respondent wife. Apart from some concerns I have about the husband’s credit arising from the entire circumstances of the case and all of the documentary evidence adduced by both parties, I have no basis at all for concluding that the husband earned income different to the income he deposed to for those years. I know nothing of the tax the husband might have paid on US$165,884 in 2000 either, but I do presume that the husband’s stated income for those years is for the calendar year.
Accordingly, whilst the husband might have earned US$165,884 in 2000, the same year the spousal maintenance order of November 13 was made, his income for the next four years is said to have been 0$ and for the fifth year, $38,641. Whilst I cannot say that he could not afford $4,100 in November and December of 2000 (being 2 months of the 3 years and 3 months equivalent of spousal maintenance he has paid), I simply cannot determine that for the next five years he was reasonably able to pay the wife US$49,200 per year, as well as US$25,632 for child support. Accordingly, I consider there would be just cause for varying the Order so that between January 2001 and December 2005 he was obligated to pay no spousal maintenance.
The evidence is that he earned $131,397 in 2006. I do not know for sure, but presume that was in Australia. For the next 4 years, he earned between AUD$175,000 and $200,000. There having been no challenge to that evidence made by the wife, I accept it. It is also worth observing at this point, I consider, that the Child Support Agency could have been a party to these proceedings if it had chosen to be. It was early in the proceedings and then chose to withdraw after an interim decision to dismiss a stay application that was brought by the Husband.
In the circumstances where the husband’s capacity and obligation to pay spousal maintenance was assessed on the evidence of his extraordinarily high US income between 1996 and 1999, I do not consider it reasonable or just for the husband to be held to have that same capacity and obligation when he was earning significantly less during the years 2006-2010 living and working in Australia.
In four years from 1996 - 1999 he earned a total of US$1,583,991 or an average of just under US$400,000 per year. Over five years from 2006 - 2010, using the top of the range figure of $200,000, he has earned a total of AUD$931,000 or an average of AUD$186,000 per year. No evidence of historical exchange rates was adduced at the hearing, but I take judicial notice of the fact that the Australian dollar has rarely ever been worth as much as the US dollar in recent history, only occasionally reaching parity or slightly better. Accordingly, in the years 2006 – 2010, the husband was earning well under half as much as the average income that he earned in the period that led to him being assessed as having the capacity to pay $4,100 per month in spousal maintenance. Notionally varying the amount to US$1,600 per month for those years, would, for 5 years, equal $96,000. Deducting that from $152,698 leaves $56,698. That balance, notionally used over the 8 years that have expired since then, equates to US$7,087.25 per year or US$590 per month or US$136.29 per week. In Australian dollars, that has to be understood to have been more than that for all of those years.
I cannot make any precise findings as to the husband’s income since 2011 as he did not adduce evidence that permits that, nor was he asked any questions about it. The best evidence is that he has worked part-time for the business principally owned by his current wife since then and at the moment is being paid $1,611 per week for doing that out of which he pays $450 tax. How much he has been paid over the years since 2011, I do not know. He currently also receives approximately $270 per week pension payments from his superannuation and has $692 in expenses, leaving him $739 per week.
Accordingly, I am inclined to consider that it is not unreasonable to consider him to have been able to pay US$136.29 per week for all of those years.
Thus, it can be seen that I consider the amount of spousal support that he has notionally paid by way of the US$160,898 that I am satisfied he has paid over and above the total amount of child support that he has paid, is a reasonable amount for him to have paid the wife for the period 13 November 2000 to the date hereof.
Subsection 83(6) of the Act permits the Court to decrease the amount payable retrospectively to such date as the Court considers appropriate.
I am not satisfied that there is just cause for discharging the spousal maintenance Order made back in City B in November 2000. I am satisfied, however, that there are circumstances that justify varying the order that was made, those circumstances being that the income and earning capacity of the husband have so changed over those ensuing years that leaving an order requiring him to have paid US$4,100 per month in place for that entire period of time and into the future is not justified. The exercise I have been through causes me to determine that the spousal maintenance order made on 13 November 2000 should be varied by decreasing it retrospectively back to that date to US$750 per month. I would discharge all other child support orders and spousal maintenance orders made after that date that somehow impacted upon the determination of the amount of child support and spousal maintenance support owing from time to time by the husband.
In that way, I would expect that the money I am satisfied that he has paid the wife over the years, for child support and spousal maintenance, namely US$371,151.88, would meet the liabilities he has had until this time. I will declare that I am so satisfied.
I know that the husband was seeking orders that ended his spousal maintenance obligation completely. I will not give him such orders. It is clear to me that he still has the capacity to be reasonably able to contribute to the maintenance of his former wife in City B, State of C. Having regard to all of the evidence that was made available to me in this matter, I consider that varying the spousal maintenance order to the figure of AUD$160 per week from the date of judgment in this matter is a proper order to make.
Of all of the evidence I have had regard to, I am particularly moved by the evidence of the husband’s ongoing surplus income over expenditure, and also his own concession that he had agreed, and was ordered to, transfer his Company E Savings Scheme to his former wife and that such transfer never happened, as well as his concession that there was no reason why he could not have been sending the income from that Company E fund that he receives each year to his former wife.
I will make the orders that are set out at the commencement of these written reasons.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 November 2018.
Associate:
Date: 27 November 2018
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