Salisbury and Landell

[2012] FMCAfam 240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SALISBURY & LANDELL [2012] FMCAfam 240

FAMILY LAW – Child Maintenance - Application by father to discharge arrears of maintenance owing pursuant to overseas orders.

Family Law Act 1975, s.66B, 66C, 66D, 66J, 66K, 66M, 66S, 66W
Family Law Regulations rr36, 37, 38

Cameron & Helie[2004] FMCAfam685
Daniels and Bell(2007) FLC93-315

Lutzke & Lutzke(1979) FLC90-714

Vakil & Vakil (1997) FLC92-743

Vaters & Kantner & Anor [2011] FMCAfam303
Wreford & Caley(2010) 43Fam LR 1

Applicant: MR SALISBURY

Respondent: MS LANDELL

File Number: NCC 455 of 2011

Judgment of: Terry FM

Hearing date: 8 September 2011

Date of Last Submission: 8 September 2011

Delivered at: Newcastle

Delivered on: 23 March 2012

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

ORDERS

1. That the father’s applications filed on 24 June 2010 and 15 June 2011 are dismissed.

1. That the order made by the Local Court at Newcastle on 30 July 2010 is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Salisbury & Landell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 455 of 2011

MR SALISBURY

Applicant

And

MS LANDELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. In November 2009 the Child Support Agency notified Mr Salisbury (“the father”) that they had been requested to collect from him arrears of child maintenance which had accrued under orders made by the Court of Queen’s Bench of (omitted), Judicial District of  (omitted).

2. As at 17 June 2011 the amount owing was $26,270.52.

3. The father has applied for orders which will relieve him of liability to pay the arrears.

4. Ms Landell (‘the mother’) resides in Canada. She has been served with all of the father’s documents. She sent affidavits to the court in June 2010 and August 2011 in which she made clear her opposition to the arrears being discharged but she has never filed a formal response. She did not attend the hearing on 8 September 2011.

5. Pursuant to Reg.36 of the Family Law Regulations I have the power to hear and determine the father’s application, but Reg. 38 provides that an order made under Reg. 36 is provisional if the relevant reciprocating jurisdiction is one of a number of named jurisdictions. The (omitted) Canadian Province of (omitted) is one of those named jurisdictions.

6. Proceedings will have to be brought in Canada to confirm any orders I make which have the effect of reducing or discharging the arrears. Past history, and the content of the mother’s affidavits, suggests that the mother will take part in any such proceedings and will actively oppose the arrears being reduced or discharged. The temptation therefore exists to declare that Canada is the more appropriate forum to determine the issue in the first place.

7. The father’s application is before me however, and should it turn out that I decide to dismiss his application this may be the end of court proceedings. I shall therefore hear and determine the father’s application.

Material Read

1. I have read the father’s initiating applications filed on 24 June 2010 and 15 February 2011 and his affidavits filed on 24 June 2010, 15 February 2011 and 30 June 2011.

2. I have also read the mother’s affidavits, but as the matter was heard undefended I have accepted the father’s evidence about factual matters save where there were inconsistencies in his evidence. In that case I have made a decision about which facts seem the more likely to be correct.   

3. The father did not provide copies of any of the (omitted)Canadian Court documents, and I have had regard to the following documents attached to the mother’s 30 August 2011 affidavit:

   i)Memorandum of Understanding and Agreement dated 7 January 1991.

   ii)Order made by the Court of Queens Bench of (omitted) on 4 August 1994.

   iii)Confirmation Order made by the Court of Queens Bench of (omitted) on 7 July 2001.

Background

1. The father and mother commenced a relationship in either 1984 or 1985 and separated in 1989.[1] They have one child, X, born on (omitted) 1986.[2] 

   [1] Father’s affidavit filed 30 June 2011 cf his initiating application filed on 24 June 2010 in which the date of commencement of cohabitation and the date of separation given are both clearly wrong.

   [2] In his initiating application filed on 24 June 2010 the father gave X’s date of birth as (omitted) 1992 but this is clearly wrong. He gave her date of birth as (omitted) 1986 in his application filed on 15 February 2011and this is consistent with the information in the court orders.    

2. The parties initially lived together in Australia and X was born here, but in 1989 they travelled to Canada, the mother’s home country, with the intention of settling there. However the father’s application to remain permanently in Canada was rejected.

3. The father asked the mother to return to Australia with him but she refused and he returned to Australia alone. The mother remained in Canada and both the mother and X have continued to reside in Canada to the present day.  

4. The father visited Canada on a number of occasions after 1989 and in February 1990, November 1990, July 1993 and July 1994 he filed applications in the Court of Queen’s Bench of (omitted), Judicial District of (omitted), seeking access orders.

5. The November 1990 proceedings were settled by a Memorandum of Understanding and Agreement dated 7 January 2001. It provided among other things for the father to pay $CDN280.00 per month “or as much as his financial situation will allow but not less than $150.00” to cover the cost of day care for X and once she finished day care to be applied to her education, clothing and support.

6. On 4 August 1994 the Court of Queens Bench of (omitted) made orders which included the following:

   i)The Applicant is hereby ordered to pay the sum of $250.00 per month for the maintenance of the infant child, X, commencing on September 1 1994, and continuing on each and every month thereafter.

   ii)The amounts owing under this Order be paid to the Director of Maintenance Enforcement, and shall be enforced by the Director unless the creditor files with the Court and the Director a notice in writing that she does not wish the order to be enforced by the Director, pursuant to Section 7 of the Maintenance Enforcement Act.

7. The father did not make payments pursuant to this order as required. I am unclear about what happened between 1994 and 1998 but on the father’s own evidence he paid $200.00 in July 1998, $500.00 in November 1998, $750.00 in July 1999 and $750.00 in October 1999. I presume that the payments he is referring to were made in Australian dollars.

8. The father made a deliberate choice not to pay. He said as follows:

   My net income in 97/98 was just $35,330.00 and I was supporting a wife and child here in Australia. I had to assess the best interests of both children and made the decision to focus on my immediate family. I knew that the respondent would care for our daughter and that she had strong support of her family – parents and 7 brothers and sisters. I told the respondent that although I was unable to make regular maintenance payments I would send over any monies if there was ever any emergency or financial need by our daughter.[3]

   [3] Father’s affidavit filed 30 June 2011 paragraph 20

9. In July 2000 enforcement proceedings were commenced against the father in Australia. In response he filed an application seeking to have the arrears discharged and seeking some modifications to the 1994 maintenance order and to access orders.

10. No evidence was provided to me about how much was being sought from the father at this time. I cannot place weight on the assertions about this in the mother’s affidavit as she did not take part in the hearing before me. 

11. On 27 February 2001 the Local Court at Newcastle made the  following orders:

    1.The application for enforcement of arrears existing under the order is adjourned generally. The proceedings may be relisted upon 14 days notice to the respondent to that application and to the court.

    2. The applications for modification of the maintenance orders and for contact is dealt with as follows:

    i.the arrears are reduced to $1,000.00.

    ii.An amount equal to one fifth the cost of the child travelling to Australia for contact in each year be deducted from the calculated annual amount which the applicant is liable to pay as child support or maintenance for the child, that the applicant be responsible for the costs of supporting the child during any contact period including days of travel and that the applicant receive credit in respect of the maintenance/child support equal to 1/365 of the calculated annual amount for each day during which he is required to support the child.

    iii.[not relevant to these proceedings]

    iv.[not relevant to these proceedings]

    3.Order 2 is a provisional order and has no effect until confirmed or further modified by the Court of Queens Bench of (omitted), Judicial District of (omitted).

12. A notation to the orders states that the Local Court at Newcastle intended send a transcript of the evidence, the reasons for decision,  a copy of the application and supporting documents and a copy of the order to Canada. The father said that he also sent the decision to Canada.[4]

    [4] Email to (omitted) Enforcement Program dated 24 August 2010, attached to the father’s 30 June 2011 affidavit.

13. On 26 July 2001 the matter came before the Court of Queens Bench of (omitted) and it made the following orders:

    CONFIRMATION ORDER

    1.The Provisional Order granted by the Magistrate S Jackson of the Local Court at Newcastle, in the State of New South Wales at Australia, on the 7^th day of July, 2000 is confirmed but varied as set out hereinafter.

    2.The amount of the monthly support payable by the applicant is not reduced.

    3.The arrears are not reduced.

    4.In the event that the child goes to Australia for a visit with the applicant, at such time the monthly amount of support shall be reduced by the sum of $125 for every complete month that the child spends with the applicant.

    5.In the event that the child goes to Australia for a visit with the applicant and only on the condition that the applicant is not in arrears with respect to child support at the time of the visit, then the respondent shall contribute the sum of $200 towards the cost of transporting the child to Australia for the access visit.

    6.The applicant may not bring any further application to reduce ongoing support or arrears of support unless he is able to show a change in circumstances.

    7.The amounts owing under this Order shall be paid to the Director of Maintenance Enforcement, 7^th floor North, 10365 - 97 (omitted), (omitted) T5J 3Z1, phone [phone], and shall be enforceable by the Director unless the creditor files with the Court and the Director a Notice, in writing, pursuant to section 7 of the Maintenance Enforcement Act, that he/she does not wish the Order to be enforced by the Director.

14. The father said that he was not made aware that the matter was listed before the Court of Queens Bench of (omitted) and thus had no opportunity to take part in the proceedings. He also complained that he was not informed of the outcome.

15. I accept this evidence as it was unchallenged.

16. However the father did not pay the $1,000.00 he was required to pay by the Australian orders either and he made no ongoing maintenance payments after 27 February 2001, despite the fact that the Australian orders had varied his liability to do so only in one minor way.

17. The father well knew after 2001 that the mother was aggrieved about his continued non-payment of maintenance. He said as follows:

    The respondent did not allow any form of communication between our daughter and myself for 8 years from 1997 to 2005. At every attempt of a phone call, the respondent stated that unless all arrears of maintenance were paid she would not allow any contact with my daughter. The respondent would hang up every time she knew it was me trying to call. [5]

    [5] Affidavit of father filed 30 June 2011 paragraph 17

18. In an email which he sent to the (omitted) Canadian Maintenance Enforcement Department on 25 August 2010 the father referred to the period between 1996 and 2005 and said:

    I made numerous attempts to contact my daughter during this period but Ms Landell hung up the phone every time and adding “no maintenance, no contact.”[6]

    [6] Email attached to father’s affidavit filed 30 June 2011

19. X turned 18 on 7 October 2004. It is reasonable to infer, although it is not directly spelt out anywhere in the evidence, that the father’s responsibility to pay maintenance pursuant to the 2004 order ended at or about that time. It is reasonable to infer it among other things from the fact that in support of his application in these proceedings the father gave evidence about his income up to the 2005 financial year.

20. In November 2009 the father received a Notice from the Child Support Agency advising that they had been asked to collect $AUD23,382.07 from him.

21. No information was provided to me about why the enforcement proceedings were not re-listed in Australia after the Canadian order was made on 26 July 2001 or why no attempt was made until five years after X’s 18^th birthday to again pursue payment from the father.

22. On 24 June 2010 the father filed an application in Belmont Local Court that the collection of ‘child support’ be stayed. On 30 July 2010 Belmont Local Court ordered that collection of the arrears be stayed until further order.

23. On 15 February 2011 the father filed a second application in Belmont Local Court which he sought the following orders:

    i)That all interest/penalties accrued on any outstanding arrears of child support be cancelled to nil.

    ii)That a final order be made by the Family Law Court of Australia on this matter in line with the powers afforded by the Province of (omitted) Interjurisdictional Support Orders Act 2003.

24. On 17 February 2011 Belmont Local Court transferred the proceedings to the Federal Magistrates Court at Newcastle.

The father’s case

1. The first order sought by the father in his 15 February 2011 application seeks only cancellation of interest and penalties. The contents of the father’s affidavits however suggest that he is pressing for the discharge of all arrears and I intend to treat his application as seeking that outcome.

2. At the hearing on 8 September 2011 the father did not explain what he meant by the second order sought.

3. As far as can be gleaned from the father’s affidavits his arguments are as follows:

   i)The orders made by the Court of Queen’s Bench of (omitted) on 26 July 2001 were made in his absence. He had no opportunity to present his case to the court and was denied procedural fairness.  As a result this court should not in the exercise of its discretion permit those orders to operate against him.

   ii)The child maintenance assessment requiring him to pay $250.00 per month was unjust. It did not take the mother’s income into account and it did not take into account that the father had the care of Y, his daughter from a subsequent relationship.

   iii)It would be unjust to enforce payment of the arrears when the matter had slumbered between 2001 and 2009. The father received an inheritance in 2005 and would have used it pay the arrears had he known that they were still being sought. As it was he put most of that money into his house.

   iv)X was now 25 and long past the age where she required support from her parents. The arrears should not be collected and paid to the mother so long after the need for her to support X had ended.

The Applicable law

1. R.36 of the Family Law Regulations provides as follows:

   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.

2. The court also has the power to discharge orders pursuant to R.37 but R.37 has no application in this case. The father signed the 1991 Memorandum of Understanding, and the 1994 orders were not made in his absence. Insofar as the 2001 order is relevant the father did not file his application within 6 months of being given notice that an order or liability was enforceable in Australia.

3. The law to be applied in determining the father’s application pursuant to R.36 is contained in the Family Law Act and the provision of that Act which is directly relevant is s.66W, which provides as follows:

   Recovery of arrears

   (1)Nothing in subsection 66L(3), or in this Subdivision (apart from subsection (2) of this section), affects the recovery of arrears due under a child maintenance order in relation to a child when the order ceases to be in force.

   (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 was binding on, a legal personal representative – the circumstances of the estate are such as to justify the variation.

4. In Wreford & Caley[7] the Full Court considered s.66W at some length and the following propositions can be distilled from that decision:

   [7] Wreford & Caley(2010)43Fam LR 1

   (1)s.66W(2)(a) (the power to discharge for just cause) calls for a dual exercise of discretion. The court is required to consider whether ‘just cause’ has been established and then to consider whether the order ought or ought not to be discharged.[8]

   [8] Wreford & Caley (supra) paragraph 63 which adopted with approval passages from Daniels & Bell  

   (2)The onus is on the applicant to satisfy the court that there is just cause for discharging the order; the onus then passes to the respondent to satisfy the court that nevertheless the order should not be discharged.

   (3)The question whether there is “just cause” for discharging an order, including one made in a reciprocating overseas jurisdiction, is to be determined as an exercise of judicial discretion by reference to what is considered ‘right’ and ‘proper’ in Australia, having regard inter alia to the provisions of Pt V11 of the Family Law Act including:

   ·s 66J which specifies the matters to be taken into account in considering financial support necessary for the maintenance of a child;

   ·s 66K which specifies the matters to be taken into account in determining the contribution that should be made by a party;

   ·s 66C which includes the principle that parents have the primary duty to maintain children;

   ·s 66D which includes the principle that a step-parent has a duty to maintain a child only if the court has determined, by order, that it is proper for a step-parent to have that duty;

   ·s 66M which specifies when a step-parent has a duty to maintain a child;

   ·s 66B which describes the objects of Part V11 Division 7;

   ·s 66S which provides for the modification of child maintenance orders.[9]

   (4)It is not enough for an applicant seeking discharge of an order for just cause to produce evidence about his or her current financial circumstances. It will usually be necessary for evidence relevant to s.66J & s.66K of the Act to be adduced for each period during which the arrears accrued.

   (5)The matter the court is required to consider pursuant to s.66W(2)(b) on the other hand is the circumstances of the parties current at the time of the hearing.[10]

   [9] 

   [10] Daniels & Bell (2007) FLC 93-315

Discussion

1. The father, who had the onus of proving his case, did not provide any information about how the amount of $26,270.52 was made up and in particular about whether it included arrears which accrued prior to 27 February 2001.

2. Arrears which accrued prior to 27 February 2001 were the subject of litigation in 2000/2001 and I do not consider that the father should be at large to run all over again whatever argument he likes about those arrears.

3. The only argument I would be prepared to entertain about those arrears would be one based on delay in enforcement.

4. The father complained of course that the Confirmation Order made in Canada on 26 July 2001 was made in his absence, but setting that order aside would not do the father any good. He would be left with the provisional order made in the Local Court at Newcastle and would have to go to the Court of Queens Bench in (omitted) to obtain confirmation of it.

5. In my view the appropriate course for the father if he wishes to have the Confirmation Order set aside is to make an application to the court which made the order namely the Court of Queens Bench in (omitted)

6. Whether he will be successful in such an application is open to question. The father knew that the 27 February 2001 order and the relevant papers had been sent to Canada and there was no evidence that he ever made any inquiries about what had happened after that. He may have great difficulty persuading the Canadian court to reconsider the matter ten years later.

7. However it is open to the father to make that application if he wishes.

8. As to arrears which have accrued since February 2001, the father raised an argument based on his capacity to pay during the period 2001 to 2004 and based on the fact that there was no evidence that the mother’s capacity to pay was taken into account in setting the rate of child maintenance in the first place.

9. The father was unspecific about what outcome he was hoping for from this argument, in other words whether he hoped for a reduction of the monthly amount to zero or to some other amount.

10. The father provided the following evidence about his income:

    My income has fluctuated since 1999 and my personal circumstances have changed considerably since the confirmation of the Orders made by the Court of Queens Bench (omitted) in June 2001.

    My taxable income between 2000 and 2005 was as follows:

    2000 - $16,939.00

    2001 - $31,710.00

    2002 - $37,694.00

    2003 - $45,719.00

    2004 – $56,188.00

    2005 - $57,635.00

11. The father did not provide any evidence about his expenses in each of the relevant years namely the financial years 2001 to 2005.  

12. He said that he was widowed in 2003 and became the sole carer for his daughter Y who was then 7 years of age. He made no attempt however to demonstrate that paying the child maintenance he was assessed to pay for X would have caused him hardship during any of these periods or affected his ability to support Y.

13. Pursuant to s.66C of the Family Law Act the father had a primary responsibility to support X. He did not provide any evidence that his income was insufficient to enable him to make a modest contribution to her support while still supporting himself and Y.

14. I further note that the father is not unfamiliar with the Canadian Court system and he could at any time between 1994 and 2004 have applied to the Court of Queens Bench at (omitted) to vary his child maintenance if he considered that his circumstances or indeed the mother’s had changed since the original orders were made.

15. The father’s second argument related to whether the mother’s income had been taken into account in assessing the level of child maintenance he was obliged to pay. He claimed it had not and I have no evidence to the contrary.

16. Pursuant to s.66K of the Family Law Act a court in Australia is obliged when assessing child maintenance to have regard to the income, earning capacity, property and financial resources of both parties.

17. However pursuant to the 1994 orders the father was obliged to pay $CDN250.00 per month or $CDN57.70 per week for the support of his daughter. He made no attempt to suggest that the cost of X’s care and support could have been contained within this amount and common sense suggests that the mother would have been obliged to make a significant contribution to the child’s support on top of this amount (had the father indeed paid it).

18. I am conscious of the fact that no evidence was placed before me about the exchange rate between the two currencies at any time but the father could and should have provided this information if it was relevant to his case.

19. Both parents had a responsibility to support their child but I do not consider that the fact that there was no evidence that the mother’s income was taken into account in assessing child maintenance should lead me to conclude that there is just cause for discharging the maintenance orders.

20. The father also asked me to take into account that he had provided money directly to X but all of the amounts he referred to were paid after X turned 18 in (omitted) 2004.

21. The father’s final argument was that it would be unjust to enforce the payment of arrears when he had not been notified until November 2009 that they were outstanding. The father said that he had received an inheritance in 2005 and had he known about the arrears then he could have paid them at that time. As it was, he had put the money into his house.

22. He further argued that the mother’s responsibility to support X had long passed and that she should not now receive a lump sum to compensate her for what she had paid long ago.

23. In support of these arguments the father referred me to Cameron & Helie, a 2004 decision of Scarlett FM.[11] In that case a maintenance order had been made in France in 1988. The father was aware of the proceedings but chose not to take part. He made no payments pursuant to the order but no attempt was made to enforce the order until 2002 when the Child Support Agency wrote to him informing him that they had been asked by the Central Authority in France to collect arrears of $251,065.65. By this time the child was about 21 years old.

    [11] Cameron & Helie[2004]FMCAfam685

24. The father relied on R.36 of the Family Law Regulations and s.66W of the Family Law Act and sought orders either discharging the original maintenance order or reducing his arrears to zero. Any order to this effect would be final, as France is not on the list of countries in respect of which only provisional orders can be made.

25. Scarlett FM found that there was just cause for discharging the arrears. He was persuaded that the mother had done nothing to enforce the order while the child was under 18 and was still living with her and he said that:

    It appears to me that the mother is seeking some form of compensation for the fact that she had to bring up her son without the support of the Applicant, even though she had the generous support of her own mother.

    ………….

    Child maintenance arrears are not to be used as some form of lump sum compensation to a party long after the need for the child to be maintained has passed….[12]

    [12] Cameron & Helie[2004]FMCAfam685 paragraphs 97,98

26. The facts in the case before me are different however.

27. I am conscious of the fact that there was no evidence about why the enforcement proceedings were not re-listed in Australia after the confirmation order was made in Canada on 26 July 2001, but there was no evidence that the mother had ever agreed to forgo the arrears or the payment of regular maintenance. The father’s evidence was that she repeatedly complained about the non payment of maintenance between 1996 and 2005.

28. The father, who had the onus of proving his case, did not bring any evidence to suggest that the mother had ever tried to take the matter out of the hands of the relevant child support authority in Canada or had ever asked them not to enforce the orders, and the mother’s behaviour throughout the proceedings from 1990 to the present makes it extremely unlikely that she has ever voluntarily decided to let go of the arrears.

29. In Vaters & Kantner & Anor Reithmuller FM had before him an application by a father for discharge of arrears owing under a child maintenance order made in Canada in 1992. The child had turned 18 in 2004 and it is reasonable to infer from the judgment that enforcement was not attempted in Australia until about 2010.

30. The father argued that the delay in attempting enforcement of the orders should be taken into account in his favour but  FM Reithmuller said as follows:

    In this case, it is unrealistic to conclude that the mother has ever acquiesced or failed to take appropriate steps to seek the enforcement of the orders for Jade’s maintenance.  The documents indicate that the orders were registered with the “Family Maintenance Enforcement Program” in January 1993, or at least backdated to then.  It has long been recognised that the effect of a principle such as the 12-month rule is to potentially create a benefit for those ordered to pay child maintenance who avoid paying for as long as possible in the hope that eventually the Court will no longer enforce the orders.  I am not persuaded that the delay in this case can be placed at the feet of the mother and thereby form a proper foundation for the exercise of a discretion to discharge the arrears on the basis of some concept akin to waiver or estoppel.[13]

    [13] Vaters & Kantner & Anor[2011]FMCAfam303

31. In Wreford & Caley the Full Court said as follows:

    Delay in collecting by the CSA is materially different to a payee sitting on his or her hands and could not be taken, prima facie, as conduct indicating a waiver of rights or an admission that the payee doesn't need the money. Indeed, at least in the abstract, many maintenance and child support liabilities are for contributions that represent such a small part of the true costs of children that it is safe to assume, prima facie, that the payee must have foregone money and lifestyle such as to make it just and equitable for the arrears to be paid.  Also, there are important public policy considerations requiring that delay alone (when caused by the payer) not defeat the liability, otherwise the rule becomes one of “avoid the order long enough and it will be defeated.”[14]

    [14] Wreford & Caley [supra]

32. There is no doubt in my mind that the mother has always been keen to enforce the maintenance orders. The father admitted as much when he said that the mother raised it with him in conversations between 1997 and 2005.

33. An attempt was made to collect arrears from him in 2001. He made an application to the court for discharge of the arrears. A provisional order was made reducing his arrears to $1,000.00. He failed to follow up on having the provisional order confirmed, failed even to pay the $1,000.00 and continued to fail to pay the monthly amounts he was required to pay. He received an inheritance of $125,000.00 in 2005 and even absent knowledge of the Confirmation Order made on 26 July 2001 in Canada he knew he owed $1,000.00 plus $250.00 per month child support from February 2001. He made no attempt to pay even those arrears from his inheritance.

34. The flavour of the evidence is that having secured the decision in February 2001 the father buried his head in the sand and hoped that the matter would go away.

35. I am not satisfied that the father has discharged the onus of satisfying me that pursuant to s66W(2)(a) there is just cause for discharging the child maintenance orders.

36. As to s.66W(2)(b) the father provided no evidence that because of his current circumstances a requirement that he pay the amount of $26,000.00 would cause him financial hardship. He provided no evidence about his current assets and liabilities.

37. I am not satisfied that pursuant to s.66W(2)(b) I should in the exercise of my discretion vary the orders so as to decrease the arrears to be paid to zero or to any other amount.

38. The father can of course make an application in Canada either in relation to the Confirmation Order or for more extensive orders and an option open to me would be to continue the stay for a period of time to relieve him of any collection efforts by the Child Support Agency while he pursued this option. Reithmuller FM made an order to this effect in Vaters & Kantner & Anor.[15]

    [15] Vaters & Kantner & Anor (supra)

39. I do not consider that I should do the same in this case.

40. I have doubts about whether the father will act promptly to bring an application in Canada if given any leeway to further delay the matter, and a refusal to continue a stay should not greatly disadvantage him even if he was ultimately successful in Canada. The evidence suggests that the Child Support Agency is simply intending at this stage to garnishee his wages. If they attempt a more draconian solution such as issuing an enforcement summons and attempting to sell his assets the father can renew his application for a stay and may obtain one if he satisfies the court that he has in fact commenced proceedings in Canada

41. For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of Terry FM

Date:  23 March 2011

   (2007)FLC93-315

This is distilled from paragraphs 58 and 74 of Wreford & Caley (supra) and adopts some of the
wording used in that judgment and in the judgments referred to in those paragraphs namely Vakil 

  

& Vakil (1997)FLC92-743 and Lutzke & Lutzke (1979) FLC 90-714