Selkirk and Caporn and Anor
[2016] FCWA 26
•10 MAY 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SELKIRK and CAPORN & ANOR [2016] FCWA 26
CORAM: WALTERS J
HEARD: 2 DECEMBER 2013 & 15 OCTOBER 2014
DELIVERED : 10 MAY 2016
FILE NO/S: PTW 3525 of 1991
BETWEEN: MR SELKIRK
Applicant
AND
MS CAPORN
First RespondentAND
CHILD SUPPORT REGISTRAR
Second Respondent
Catchwords:
FAMILY LAW – CHILD SUPPORT – MAINTENANCE AGREEMENT – where the parties entered into a maintenance agreement pursuant to s 86 of the Family Law Act 1975 (Cth) in 1991 (Section 86 Deed) – where the Section 86 Deed provided for the payment of child maintenance – where the Section 86 Deed was registered in the Family Court of Western Australia shortly after it was executed – where an application could properly have been made at that time for one of the parties to the Section 86 Deed to be assessed for child support under the Child Support (Assessment) Act 1989 (Cth) – whether the child maintenance provisions of the Section 86 Deed were without effect and unenforceable pursuant to s 86(3B) of the Family Law Act 1975 (Cth) – where the Section 86 Deed was purportedly accepted by the Deputy Child Support Registrar as a child support agreement in December 1992 – where the wife later sought departure orders from what were described as the "child support" provisions of the Section 86 Deed – where a trial judge made orders in 1997, departing from the child maintenance provisions of the Section 86 Deed – where such orders referred to the payment of child support and were purportedly made pursuant to the provisions of the Child Support (Assessment) Act 1989 (Cth) – where there has been ongoing litigation between the parties and the Child Support Registrar regarding discharge, variation or enforcement of the husband's alleged child support liability pursuant to the 1997 orders – where a declaration was made, by consent, in 2006 that the husband owed the Commonwealth a sum in excess of $120,000 "in respect of amounts owing under registered maintenance liabilities" – where the husband commenced proceedings in 2011 seeking to vary the 1997 orders pursuant to s 66S(2)(d) of the Family Law Act 1975 (Cth) – where the Child Support Registrar argued that the husband's application was misconceived and should be dismissed at the outset – meaning and effect of ss 66E and 66S of the Family Law Act 1975 (Cth) – effect of s 86(3B) of the Family Law Act 1975 (Cth) – whether the Section 86 Deed was a "child support agreement" – meaning and effect of ss 82 to 85 of the Child Support (Assessment) Act 1989 (Cth) – whether the Child Support Registrar could validly accept the Section 86 Deed under ss 89, 91, 92 and 93 of the Child Support (Assessment) Act 1989 (Cth) – where the Section 86 Deed was never an agreement between the parties in relation to child support or about arrangements for child support – where the child maintenance provisions of the Section 86 Deed had never been validly recast as enforceable child support obligations – discussion of whether the Family Court of Western Australia has inherent or implied powers to stay its own orders
FAMILY LAW – PROCEDURE – Estoppel – Res Judicata – cause of action estoppel – issue estoppel – general principles – whether Res Judicata estoppel or issue estoppel operate to preclude the husband from arguing that the child maintenance provisions of the Section 86 Deed have no effect and were never enforceable in any way
FAMILY LAW – PROCEDURE – Anshun estoppel – general principles – whether the husband could have and should have raised in the earlier proceedings questions relating to the validity and enforceability of the child maintenance provisions of the Section 86 Deed, and whether those provisions were ever validly recast as enforceable child support obligations
Legislation:
Bankruptcy Act 1966 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006
Family Court Act 1997 (WA)
Family Court of Western Australia Rules 1988 (WA)
Family Court Rules 1998 (WA)
Family Law Act 1975 (Cth)
Family Law Rules 1984 (Cth)
Family Law Rules 2004 (Cth)
Federal Court of Australia Act 1976 (Cth)
Interpretation Act 1984 (WA)
Legal Profession Act 2008 (WA)
Category: Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
First Respondent : Self-Represented Litigant
Second Respondent : Mr S Lloyd SC and Mr Kaplan
Solicitors:
Applicant: Self-Represented Litigant
First Respondent : Self-Represented Litigant
Second Respondent : Child Support Agency
Case(s) referred to in judgment(s):
Bagala & Bagala [2009] FMCAfam 953
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425; (2006) 80 ALJR 1100
Blair v Curran (1939) 62 CLR 464
Bryant & Bryant (1996) FLC 92 690
Bryant & Bryant [2004] FamCA 81
Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287
Caska & Caska [2001] FamCA 1279
Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502
Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner Of Taxation (1981) 35 ALR 151
Davidson & Davidson (No 2) (1994) FLC 92-469
DJL v Central Authority (2000) 201 CLR 226
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
Dunnett v Dunnett [2013] FamCA 529
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Harris v Caladine (1991) 172 CLR 84
Herridge & Handerson and Ors [2011] FamCAFC 156
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Hoystead v Commissioner of Taxation [1926] AC 155
Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290
Hughes & Hughes [2013] FamCAFC 146
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Kemeny v Kemeny (1998) FLC 92-806
Kuligowski v Metrobus (2004) 220 CLR 363
Legal Profession Complaints Committee and Segler [2010] WASAT 135
Legal Profession Complaints Committee and Segler [2010] WASAT 135 (S)
Legal Profession Complaints Committee and Segler [2013] WASAT 117
Legal Profession Complaints Committee and Segler [2013] WASAT 117 (S)
Legal Profession Complaints Committee v Segler [2014] WASC 159
Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180
Murphy v Abi-Saab (1995) 37 NSWLR 280
New Brunswick Railway Co v British and French Trust Corpn Ltd [1939] AC 1
Pagliotti & Hartner [2009] FamCAFC 18
Parsons v Martin (1984) 58 ALR 395
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
R v Commonwealth Court of Conciliation & Arbitration [1914] HCA 15; (1914) 18 CLR 54
Re Ross-Jones; ex parte Beaumont (1979) FLC 90-606
Reid & Lynch [2010] FamCAFC 184
Repatriation Commission v Nation (1995) 57 FCR 25
Rollings & Rollings [2009] FamCAFC 87
Rowe v Stoltze (2013) 45 WAR 116
Segler v Child Support Registrar (No 2) [2011] FMCA 96
Segler v Child Support Registrar [2009] FMCA 41
Symonds & Raphael [1998] FamCA 165; (1998) 148 FLR 171; (1998) 24 Fam LR 20
Teo & Guan [2015] FamCAFC 94
Vodicka v Vodicka (2005) 194 FLR 246
Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos [2012] NSWCA 107
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Wreford v Caley (2010) 43 Fam LR 1
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581
Yilmaz & Yilmaz [2013] FamCA 533
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Mr Selkirk] and [Ms Caporn] entered into a financial agreement in 1991. At that time, they had been separated for approximately 12 months. They had two children: twins then aged three. The financial agreement dealt with property settlement and maintenance for the twins, who were to continue to live with Ms Caporn.
2The financial agreement was a type of maintenance agreement then known as a "section 86 deed". Section 86 deeds were maintenance agreements which were not expressed to operate in substitution for property and maintenance rights under the Family Law Act 1975 ("FLA"). Agreements which operated in substitution for such rights were then known as "section 87 deeds" (which had no legal effect unless they were approved by a court exercising jurisdiction under the FLA).
3A few years before Mr Selkirk and Ms Caporn entered into the section 86 deed, the major pieces of legislation comprising the Commonwealth's child support scheme had been introduced. This legislation, together with the FLA, had the effect of differentiating between "child maintenance" and "child support", and between maintenance agreements dealing with child maintenance (on the one hand) and agreements dealing with child support, known as child support agreements (on the other). To make matters more complicated, it was possible for the same agreement to be both a maintenance agreement and a child support agreement.
4Ms Caporn took steps to convert Mr Selkirk’s obligation to pay child maintenance under the section 86 deed into an obligation to pay child support under the child support scheme. Put shortly, she completed and signed a form to which was attached a copy of the section 86 deed and lodged the form with the Deputy Child Support Registrar, who accepted the form and thereafter treated Mr Selkirk’s obligation to pay child maintenance as an obligation to pay child support. Ms Caporn and Mr Selkrik thought that the acceptance of the form by the Deputy Child Support Registrar had been effective and that Mr Selkirk’s obligation to pay child maintenance had been recast as an obligation to pay child support. So did the Child Support Registrar (whose job it was to administer the child support scheme), and a number of judicial officers. As a result, Mr Selkirk and Ms Caporn (and the Child Support Registrar) have been involved in litigation for over 20 years as attempts have been made to collect and/or prevent collection of Mr Selkirk’s alleged child support debt. During the same period, Mr Selkirk has made attempts to vary his alleged liability for child support. Meanwhile, the twins grew up: they are now in their late twenties. Mr Selkirk and Ms Caporn repartnered, separated from their respective partners and repartnered again. Neither has enjoyed good health. Both have faced insolvency.
5This case is the latest in a series of attempts by Mr Selkirk to discharge or reduce his alleged liability for outstanding child support for the twins. Including penalties, that liability is now well in excess of $200,000. The current proceedings raise complex questions regarding matters that could have been argued a long time ago: for example, the validity and enforceability of the child maintenance provisions of the section 86 deed and whether those provisions were ever validly recast as enforceable child support obligations. They also raise the question of whether Mr Selkirk should be permitted to argue these matters at all, due to his failure to raise and press them at a much earlier stage. In dealing with these subjects, it has also been necessary to give consideration to the breadth of this Court's powers in the unusual circumstances of this case.
6The Child Support Registrar argues that Mr Selkirk’s current application is without merit, and that it should be dismissed without proceeding to a formal hearing. Ms Caporn supports the Registrar in this regard. Mr Selkirk disagrees. He wishes to have the opportunity to effectively "start again", and have his liability for financial support of the twins recalculated from 1998 or thereabouts. He also wishes to have the opportunity to argue that, irrespective of the decisions made and orders pronounced by judicial officers dealing with the case over many years, and notwithstanding his failure to raise the issue until now, the child maintenance provisions of the section 86 deed were never validly reconstituted as child support obligations and, as a result, his alleged child support liability is invalid and unenforceable.
7These preliminary issues were argued on 2 December 2013 and 15 October 2014, after all parties were given the opportunity to file written submissions.
8Mr Selkirk represented himself. He had practised as a lawyer until 13 May 2014, when the Full Bench of the Supreme Court of WA ordered that his name be removed from the role of legal practitioners. Ms Caporn appeared without legal representation. The Registrar was represented by Mr Kaplan of counsel on 2 December 2013, and by Mr S Lloyd of senior counsel and Mr Kaplan on 15 October 2014.
9At the conclusion of the later hearing, I reserved my decision.
Abbreviations and other terms used
10In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to Mr Selkirk and Ms Caporn as the husband and the wife (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the first respondent;
c)for similar reasons, I have referred to the Child Support Registrar as the Registrar and the Child Support Agency as the CSA;
d)again, for similar reasons, I have referred to the children of the marriage of the husband and the wife ([Child A] and Child B) as the twins, and to the husband's fourth wife, [M Selkirk], as [M];
e)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;
f)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm");
g)unless otherwise indicated, references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as the Act or the FLA;
g)unless otherwise indicated, reference to rules are references to the Family Law Rules 2004 (Cth) – although, when necessary, I have referred to these rules as the Rules;
h)I have referred to the Family Court Act 1997 (WA) as the FCA, and to the Family Court Rules 1998 (WA) as the WA Rules;
i)I have referred to the Child Support (Assessment) Act 1989 (Cth) as the Assessment Act and to the Child Support (Registration and Collection) Act 1988 (Cth) as the Registration Act;
j)the 1997 Judgment means the reasons for judgment handed down by Martin J in this Court on 29 January 1997;
k)the 1997 Orders means the orders made by Martin J on 29 January 1997;
l)the 2006 Orders means the consent orders made by Moroni M on 8 March 2006; and
m)the current application means the husband's current substantive application – being his initiating application filed 23 August 2011, as amended by his amended initiating application filed 6 July 2012.
Documents relied upon
11The husband relied upon the following:
a)his amended initiating application filed 6 July 2012;
b)his affidavit, sworn 18 March 2013 ("HA1"); and
c)his financial statement, sworn 18 August 2011.
12Although not directly relied upon in relation to the jurisdictional issue, the wife filed affidavits sworn on 17 October 2011, 10 December 2012 and 10 October 2014.
13The husband, the wife and the Registrar all filed submissions, to which I shall refer presently.
Overview
14The husband was born [in] 1956. The wife was born [in] 1962. They married [in] 1987 and separated on 27 June 1990. They divorced in December 1995.
15There are two adult children of the marriage, Child A and Child B. They are twins, who were born [in] 1988.
16Following their divorce, the husband and the wife both remarried. Martin J summarised the position in the 1997 Judgment as follows:
[In] 1996, the wife married [Mr H], an [engineer], with whom she had resided since May 1995. [In] 1996, the husband married [Ms S], a [receptionist], with whom he had been involved since 1990.
17Since that time, the husband and the wife have divorced their respective spouses, and each has married again.
18It is unclear when the husband and Ms S divorced. In HA1 at [13], however, he refers to M as his "estranged fourth wife". He deposes to having met M in late 1997, and commencing cohabitation with her in 1998. They married [in] 2002.
19M had a daughter, [A], at the time she met the husband. A was born [in] 1996. According to the husband, A has never had any relationship with her biological father. She has always regarded the husband as her father.
20In her affidavit sworn 17 October 2011, the wife deposes to having a "partner", [Dr S], who lives in Sydney. In her affidavit sworn 10 October 2014 she refers to Dr S as her "current husband". Her address for service comprises a post office box in Haymarket, New South Wales, and in her letter to the Court forwarding her affidavit of 10 October 2014, she confirms that she currently resides in Sydney.
21According to the husband, he and M separated some time after 2010. Thereafter, he asserts that they have lived separately and apart under the one roof.
22On 8 January 2013, orders were made in proceedings between M (as applicant), the husband (as first respondent), A's father (as second respondent) and the Registrar. The proceedings had commenced with the filing of an initiating application by M in November 2012.
23The orders of 8 January 2013 are as follows:
1.Personal service on [[A's father]] of [initiating application and supporting documents] be dispensed with.
2.With the consent of [[M]] and [the husband], pursuant to s 66M(2) of the Family Law Act 1975, [the husband] pay maintenance for his step-daughter, [[A]] born on [in] 1996, in the sum of $750 per week, the first payment thereof to be made on 22 October 2012.
3.The [initiating application] be otherwise dismissed.
24Section 66M of the FLA deals with the maintenance of a step-child. It provides that a step-parent of a child has a duty of maintaining the child if, and only if, there is an order in force under s 66M. Section 66M(2) is as follows:
A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.
25Section 66M(3) sets out the matters to which a court giving consideration to making an order under s 66M(3) must have regard. The sub-section makes it clear that the court must not have regard to any other matters beyond those listed. The factors include:
a)the objects and principles set out in FLA ss 66B and 66C;
b)the length and circumstances of the step-parent's marriage to, or relationship with, the step-child's parent;
c)the relationship that has existed between the step-parent and the child;
d)the arrangements that have existed for the maintenance of the step-child; and
e)any special circumstances which, if not taken into account, would result in injustice or undue hardship to any person.
26A was aged 16 when the first payment of step-child maintenance fell due pursuant to the orders of 8 January 2013.
27It is clear from the wife's affidavit sworn 17 October 2011 that she is sceptical about the husband's assertions to the effect that he has separated from M. It can be inferred from her evidence that she regards the consent arrangement reflected in the orders of 8 January 2013 as little more than a ruse. In my opinion, she has every right to be leery about these matters.
28The twins turned 18 on 26 July 2006. This amounted to a "child support terminating event": see s 12 of the Assessment Act. In other words, and save for arrears and penalties, the husband's putative liability to pay child support for the twins ended on that date.
History of the proceedings
29The genesis of the current proceedings comprises the Section 86 Deed (as maintenance agreements which relied upon FLA s 86 were then called) entered into between the husband and the wife in 1991. The law has long since moved on, but it may be helpful, at this point, to comment briefly about the kinds of maintenance agreements that were then in use. I need do no more than refer to the following passages from Dickey, Family Law (Second Edition, 1990) at pp 644-5 (footnotes omitted):
Part VIII of the [FLA] makes provision for two kinds of maintenance agreements. The first is an agreement which is expressed to operate in substitution for any rights of the parties under this Part – in other words, which is expressed to operate in substitution for any spousal maintenance or property rights of the parties under the [FLA]. If such an agreement is approved by a court exercising jurisdiction under the [FLA], its provisions are conclusive of the parties' rights in relation to these matters. If it is not approved, none of its provisions have any legal effect whatever. Once a maintenance agreement is approved by a court, the approval can be revoked only in certain limited circumstances. Otherwise the spousal maintenance and property provisions of the agreement are ordinarily final and not subject to alteration by a court.
The second kind of maintenance agreement… is, in short, any other maintenance agreement – in other words, any maintenance agreement which is not expressed to operate in substitution for any rights of the parties under [Part VIII]. Such an agreement does not require the approval of the court. Indeed, it is incapable of being approved. However, it may be registered in any court having jurisdiction under the [FLA], and upon registration its maintenance and property provisions may then be enforced as if they were contained in an order of the court.…
Popular terminology
The provisions concerning maintenance agreements which are expressed operate in substitution for the rights of the parties under Part VIII are contained in s 87 of the [FLA]. For this reason, these agreements are commonly known as "section 87 maintenance agreements". The provisions concerning the registration of other maintenance agreements are contained in s 86. Agreements which are capable of registration under this section are accordingly known as "section 86 maintenance agreements".
The Section 86 Deed
30On or about 9 August 1991, the husband and the wife entered into a formal, written agreement. The agreement is entitled "Maintenance Deed for registration in the Family Court of Western Australia". I shall refer to the agreement as "the Section 86 Deed".
31The Section 86 Deed deals with both property and maintenance issues.
32Recital E to the Section 86 Deed is as follows:
Following upon their… separation, the husband and the wife reached agreement in relation to the contributions to be made by the husband to the support of the… children of the marriage and a settlement of their respective property interests.
33Recital G is as follows:
This agreement is a maintenance agreement and is intended by the husband and the wife to record their said agreement and to be registered in the Family Court of Western Australia under the provisions of s 86 of the Family Law Act 1975.
34Clauses 1 and 2 of the Section 86 Deed are as follows:
1.As and by way of maintenance for the [twins] the husband shall pay whatever shall be the greater of either:
a)the unapportioned sum of $300 per week; or
b)the sum per week that would be realised in the event that an administrative assessment by the Child Support Agency was effected on the basis of the gross income of the husband being $85,000 per annum
and the wife only shall be and remain at liberty to designate which of the alternatives referred to above shall apply to the maintenance of the children.
2.In any event the husband shall as and by way of further maintenance for the [twins] continue to pay:
a)the education expenses incurred by the wife in relation to the [twins] including those fees associated with the attendance by the [twins] at private kindergartens and schools;
b)the clothing expenses reasonably incurred by the wife in relation to the [twins];
c)the medical expenses incurred by the wife in relation to herself and the [twins];
d)such amounts as are required to maintain private medical insurance with the Hospital Benefit Fund at Level F 201, so as to cover the wife and the [twins].
35Clause 3 of the Section 86 Deed deals with the issue of property settlement and is not relevant for present purposes.
36Clause 4 of the Section 86 Deed is as follows:
The husband shall take all necessary steps, file an affidavit and give notice in accordance with Order 26 of the Family Court Rules, to cause this Deed to be registered in the Family Court of Western Australia at Perth.
37The Section 86 Deed was registered in this Court on 15 August 1991 (shortly after it was executed by the parties).
38FLA s 86 still exists. Pursuant to s 86(1A), however, maintenance agreements made after November or December 2000 cannot be registered. Order 26 of the "Family Court Rules" – which may have been an incorrect reference to Order 26 of the Family Law Rules 1984 (Cth) – has long since been repealed. Indeed, the Family Law Rules 1984 were repealed in their entirety upon the commencement of the Family Law Rules 2004 (Cth) on 29 March 2004.
39The Family Court of Western Australia Rules 1988 (WA) – which may have contained, or contained a reference to, Order 26 – were repealed by the Family Court Rules 1998 (WA). These Rules are now expressed to be read "as one with" the Family Law Rules 2004 (Cth): see Family Court Rules 1998 (WA), r 4.
40It follows that Order 26 of the Rules (however described) has not existed since 2004 at the latest.
FLA s 86
41FLA s 86 is in the following terms:
(1)A maintenance agreement other than an agreement to which section 87 applies may be registered, as prescribed by the applicable Rules of Court, in any court having jurisdiction under this Act.
(1A)A maintenance agreement made after the commencement of this subsection cannot be registered.
(2)Section 66S applies in relation to the variation of a maintenance agreement registered under subsection (1), in so far as the agreement makes provision for the maintenance of a child of the relevant marriage, as if the agreement were an order made by consent under Part VII by the court in which the agreement is registered.
(2A)Section 83 applies in relation to the variation of a maintenance agreement registered under subsection (1), in so far as the agreement makes provision for the maintenance of a party to the relevant marriage, as if the agreement were an order made by consent under this Act by the court in which the agreement is registered.
(3)The court in which a maintenance agreement is registered under subsection (1) may set aside the agreement if, and only if, the court is satisfied that the concurrence of a party was obtained by fraud or undue influence or that the parties desire the agreement to be set aside.
(3A)Where a maintenance agreement has been registered under subsection (1) then:
a)unless the agreement otherwise provides, the agreement (other than a provision in the agreement providing for the payment by way of maintenance of a periodic sum) continues to operate notwithstanding the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party; and
b)if the agreement so provides, a provision in the agreement providing for the payment to a person by way of maintenance of a periodic sum continues to operate notwithstanding the death of any party to the agreement who is liable to make payments pursuant to that provision and is binding on the legal personal representative of that party but, notwithstanding any provision in the agreement, does not continue to operate after the death of the person who is entitled to receive those payments.
(3B)Where:
a)a maintenance agreement is, at any time, registered under subsection (1); and
b)the maintenance agreement makes provision for the maintenance of a child; and
c)an application could properly be made, at that time, under the Child Support (Assessment) Act 1989 by one of the parties to the agreement for the other party to the agreement to be assessed in respect of the costs of the child (whether or not such an application has in fact been made by the party or by another person);
the maintenance agreement, so far as it makes provision for the maintenance of the child, has no effect and is not enforceable in any way.
(4)Subject to section 89, this section does not apply to overseas maintenance agreements.
42When the Section 86 Deed was entered into in 1991, s 86 was as follows:
(1)A maintenance agreement other than an agreement to which section 87 applies may be registered, as prescribed by the Rules of Court, in any court having jurisdiction under this Act.
(2)Section 66N applies in relation to the variation of a maintenance agreement registered under subsection (1), in so far as the agreement makes provision for the maintenance of a child of the relevant marriage, as if the agreement were an order made by consent under Part VII by the court in which the agreement is registered.
(2A)Section 83 applies in relation to the variation of a maintenance agreement registered under subsection (1), in so far as the agreement makes provision for the maintenance of a party to the relevant marriage, as if the agreement were an order made by consent under this Act by the court in which the agreement is registered.
(3)The court in which a maintenance agreement is registered under subsection (1) may set aside the agreement if, and only if, the court is satisfied that the concurrence of a party was obtained by fraud or undue influence or that the parties desire the agreement to be set aside.
(3A)Where a maintenance agreement has been registered under subsection (1), then:
a)unless the agreement otherwise provides, the agreement (other than a provision in the agreement providing for the payment by way of maintenance of a periodic sum) continues to operate notwithstanding the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party; and
b)if the agreement so provides, a provision in the agreement providing for the payment to a person by way of maintenance of a periodic sum continues to operate notwithstanding the death of any party to the agreement who is liable to make payments pursuant to that provision and is binding on the legal personal representative of that party but, notwithstanding any provision in the agreement, does not continue to operate after the death of the person who is entitled to receive those payments.
(3B)Where:
a)a maintenance agreement is, at any time, registered under subsection (1); and
b)the maintenance agreement makes provision for the maintenance of a child; and
c)an application could properly be made, at that time, under the Child Support (Assessment) Act 1989 by one of the parties to the agreement for administrative assessment of child support (within the meaning of that Act) for the child, seeking payment of the child support by the other party to the agreement (whether or not such an application has in fact been made by the party or by another person);
the maintenance agreement, so far as it makes provision for the maintenance of the child, has no effect and is not enforceable in any way.
(4)Subject to section 89, this section does not apply to overseas maintenance agreements.
43Section 86(3B) was inserted in the FLA by the Assessment Act. It commenced on 1 October 1989.
44I shall return to these provisions later in these Reasons.
The Section 86 Deed is purportedly accepted as a child support agreement
45On 4 December 1992 (or perhaps 29 April 1993), the Section 86 Deed was purportedly accepted by the Deputy Child Support Registrar ("DCSR") as a child support agreement. The role of DCSR is no longer recognised in the Assessment Act or the Registration Act. At the time the Section 86 Deed was entered into, however, s 12 of the Registration Act provided that "Second Commissioners of Taxation" and "Deputy Commissioners of Taxation" were to be Deputy Child Support Registrars. A DCSR exercised powers and functions delegated to the DCSR by the Registrar (under both the Registration Act and the Assessment Act).
46The circumstances in which the Section 86 Deed was accepted by the DCSR are less than clear. During the course of his submissions on 2 December 2013, counsel for the Registrar (Mr Kaplan) provided the Court with copies of three documents:
a)letter dated 11 January 1993 from the wife's then solicitors ([X Lawyers]) to the CSA ("the registration letter");
b)CSA Form 1 Application for Collection of Maintenance Payments signed by the wife on 4 December 1992 (which appears to have been received by the CSA on 9 December 1992) ("the collection application"); and
c)CSA Child Support Agreement, part of which was completed and signed by the wife on 8 January 1993, and to which a copy of the Section 86 Deed is attached ("the Agreement Form"). This document appears to have been received by the CSA on 14 January 1993. However, the copy of the Section 86 Deed bears a stamp stating that the original was "sighted and returned" on 4 December 1992.
47It seems clear that the copy of the Section 86 Deed now attached to the Agreement Form was originally attached to the collection application, which was first lodged at the Department of Social Security on 4 December 1992. It also seems clear that the wife lodged the collection application because she wanted the CSA to collect the payments due pursuant to the Section 86 Deed.
48Initially, the wife was unsuccessful in persuading the DCSR to accept the collection application. As a result, the registration letter was sent on 11 January 1993, enclosing the Agreement Form (with the copy of the Section 86 Deed attached). The registration letter included the following:
We enclose an application by [the wife] to register a Child Support Agreement, together with a copy of that agreement.
You will see that the agreement is a copy of a Section 86 Deed which has been registered in the Family Court.
Pursuant to Clause 1 of the Deed on Page 3, the husband agreed to pay maintenance for the children in accordance with the formula fixed in the deed.
Please let us know as a matter of urgency whether the deed will be accepted for registration.
49The Agreement Form indicates that it is to be used "to lodge a child support agreement with the Child Support Agency". Directions on the first page of the Agreement Form state that the first page of the form (headed "1 – The Agreement") should be completed before completing the part of the form headed "2 – Application for Acceptance". The Agreement Form also includes a section headed "3 – Collection of Periodic Payments".
50The wife did not complete the first section of the Agreement Form (headed "1 – The Agreement"). The only parts of the Agreement Form which were completed and signed by the wife were those headed "2 – Application for Acceptance" and "3 – Collection of Periodic Payments".
51Because the wife indicated that she receives "a Commonwealth pension, benefit or allowance", the Agreement Form makes it clear that the CSA "must collect any periodic payments for (her)": see the section headed "3 – Collection of Periodic Payments".
52Under the heading "2 – Application for Acceptance" appears the following question:
Is there a court order or court registered agreement to pay child support for any of the children?
53The answer to this question has been given as "Yes".
54The form then poses the following question:
Is the child support currently payable through the Agency?
55The answer to this question has been given as "No". That being the case, the wife was directed to "attach a photocopy of the order or agreement". As indicated above, a copy of the Section 86 Deed was attached to the Agreement Form.
56In my opinion, the parties' failure to complete the section headed "1 – The Agreement" is significant. The section reads (relevantly):
This is an agreement about child support between:
The person liable to pay the child support (the "paying parent") (details to be inserted)
and
The person entitled to receive the child support (the "custodian") (details to be inserted)
This agreement was made on (Date) (details to be inserted)
The agreement between the two parties is set out: (Tick one)
in the following parts of this form
in the attached agreement signed by both parties
57The failure to complete the section is significant because the effect of this part of the Agreement Form is to create a child support agreement from a court order or court registered agreement which may not otherwise be properly characterised as a child support agreement. In other words, if the relevant part of the Agreement Form had been completed, the child maintenance provisions of the Section 86 Deed – which had clearly been described in Recital G as a maintenance agreement and not a child support agreement – would have been recast as child support obligations. In my opinion, however, the child maintenance provisions of the Section 86 Deed remained child maintenance provisions at all times. Further, the Section 86 Deed itself remained a maintenance agreement: it was never reconstituted (whether directly or indirectly) as a child support agreement. I shall return to this subject later in these Reasons.
58By letter dated 29 April 1993, the DCSR wrote to the husband in the following terms:
Child Support Agreement Application
Notice of Acceptance
I am writing to you about your agreement with [the wife] about arrangements for child support. [The wife] has asked [the Registrar] to accept this agreement and it has been accepted. Please find enclosed a copy of the agreement as accepted.
Under the Child Support Scheme either party to a child support agreement can ask [the Registrar] to accept the agreement. Once accepted, the agreement becomes binding under the Child Support law.
You will be paying any child support that is payable under the agreement directly to the custody and not through the Child Support Agency.
59I note that the collection provisions referred to in the final sentence of the letter appear to contradict the directions inherent within the final section of the Agreement Form.
Proceedings before Martin J
60In February 1996, the wife commenced proceedings in this Court seeking parenting orders and departure from what were described as the "child support" provisions of the Section 86 Deed. The husband responded, seeking different parenting orders and a reduction in the quantum of what was described as "child support" payable pursuant to the Section 86 Deed. He also sought orders discharging any accrued arrears of "child support".
61The proceedings came on for trial in September, October and November 1996. Reasons for Judgment were delivered on 29 January 1997 ("the 1997 Judgment").
62According to the 1997 Judgment, the wife sought the following (financial) orders at the commencement of the trial:
3.Unless the parties otherwise agree or the Court otherwise orders, upon condition that the husband pays his child support obligation to the wife in advance to cover each period for which school fees are paid, from the commencement of the 1998 academic year, the children be educated at [[School A]], and the husband pay all costs of and reasonably incidental to the education of the children at [[School A]], these costs to include tuition fees, uniforms, necessary books and educational supplies, and any extracurricular activities related to [[School A]].
4.The Deed made between the wife and the husband and dated 9 August 1991 be varied to provide that:-
a)The husband pay to the wife as and by way of child support:-
i)The greater of:-
(1)The sum of $300 per week; or
(2)The sum per week that would be realised in the event that an administrative assessment by the Child Support Agency was effected on the basis of the husband having a taxable income for year to 30 June 1994 and subsequently of $85,000.
ii)The sum of $36 per week being for clothing for the children.
iii)The sum of $91.20 per month being half of the monthly cost of HBF at Level F201 with such sum to be varied in accordance with changes in charges.
b)All amounts referred to in paragraph 4(a)(i) and 4(a)(ii) be varied annually on 1 July in each year in accordance with the inflation factor for the preceding year published in accordance with the Child Support (Assessment) Act 1989.
5.Clause 2(b) - (d) of the Deed be rescinded.
63According to the 1997 Judgment, the husband sought the following (financial) orders:
5.Paragraph 1 of the maintenance agreement, executed 9 August 1991, registered in the Court on 15 August 1991, and accepted by the Deputy Child Support Registrar, be varied to provide as follows:-
"From the date of discharge by the husband of his current tax liability of $101,187.10, or from 1 July 1997 (whichever first occurs), the husband pay to the wife child support for the children in accordance with an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989 (Cth)."
6.Paragraph 2 of the maintenance agreement, so far as it concerns financial provision for the children, be varied to provide as follows:
a)"From the commencement of the 1998 school year, the husband pay all costs of and reasonably incidental to the education of the children of the marriage at [[School A]] (these costs to include tuition fees, uniforms, and necessary books and educational supplies).
b)"From 1 July 1998, the annual rate of child support payable by the husband for the children of the marriage under paragraph 1 be reduced for each child support year by the amount paid by the husband by way of educational expenses under paragraph 2(a) during the previous child support year."
7.All accrued arrears of child support pursuant to the maintenance agreement be discharged.
8.The husband be at liberty to discharge any personal child support liability in relation to the children from any family maintenance trust that he may establish to provide for the children. If the husband does discharge any personal child support liability from such a trust, his personal liability to pay child support shall correspondingly be reduced.
The 1997 Judgment
64At the time of the trial before Martin J, the husband was a legal practitioner. The wife was a bookkeeper/student.
65Among other things, Martin J said in the 1997 Judgment:
•[By mid 1991] the husband was in serious financial difficulties, and by September 1991, his liabilities totalled $533,019. In September 1991 the husband entered into a Part X arrangement, having misled his creditors at the time about the extent of the child support payments he was making.
•On 15 November 1992, the husband stopped paying child support and on 4 December 1992, the wife registered the agreement with the [CSA] for collection. At this time the relationship between the parties was a very poor…
•In March 1993, the husband recommenced paying child support, but paid nothing towards the arrears.
•In October 1993, the husband was released from the Part X arrangement, having obtained the support of the wife in this regard. In effect, the related creditors outvoted other creditors, such as the Australian Taxation Office, who eventually took action against the husband in the Federal Court.
•In September 1995, there was an unpleasant scene between the parties about the payment of child support and in the next month the husband ceased to make child support payments at all. In December 1995, the wife again approached the [CSA] which commenced to collect child support.
•In March 1996, the [CSA] served a garnishee order on the husband's employer, but no payments were received as a result of the garnishment. In April 1996, the husband purchased a home [in [Suburb C]] for $335,000, which property was registered in the name of his present wife, [Ms S].
•On 18 June 1996, the wife filed an enforcement application seeking to recover the arrears [of child support] accrued to 30 September 1995. She was obviously relying on the [CSA] to collect arrears accrued after 30 September 1995.
•On 10 July 1996, the [CSA] issued a new garnishment order on the husband's employer. No payments were received as a result of the order.
•On 10 September 1996, Tolcon J held that the Family Court has no jurisdiction to entertain the wife's enforcement proceedings and the application was therefore dismissed.
66At some stage during the continuation of the trial before Martin J in late 1996, the husband became entitled to an amount of approximately $190,000 as the result of the sale of his interest in a family business. The moneys were paid in two instalments: an initial payment of $60,000 and a subsequent payment of $130,000. From the initial payment, the husband "paid his child support debt of $21,123.91, his business overdraft of $10,000 and sundry debtors". Martin J recorded that the husband's evidence was to the effect that his other debts, including his tax liability, would have the effect of consuming the later payment of $130,000.
67One of the issues dealt with in the 1997 Judgment and the 1997 Orders was the twins’ attendance at School A. Among other things, Martin J said:
I consider it appropriate that the children should attend the school provided the husband secures the payment of fees, for example, by paying all school fees and expenses in advance and maintaining his child support payments in advance.… I do not accept that [[School A] school fees] should be deducted from his child support commitments. Although such a position is unusual, I consider that it is required, in this case, in the interests of the children. This would mean that unless the husband maintains both child support and education expenses in advance, so that at no time do they fall into arrears, the wife would be entitled to remove them from [[School A]].
68Martin J interpreted certain provisions of the Section 86 Deed in the following manner:
a)Her Honour held that it was not necessary for the wife to formally nominate the amount of "child support" payable pursuant to clause 1 of the Section 86 Deed because that clause –
… provided for the husband to pay the greater of the two amounts with the wife being at liberty to choose the alternatives. There was no requirement that she should do so. The provision was also somewhat nonsensical as the amount payable on an income of $85,000 has always been a great deal higher than $300 per week…
b)Her Honour also held that the expression "gross income" in clause 1 of the Section 86 Deed "… clearly means gross income before tax":
It is obvious that the husband pushes his entitlements [to taxation deductions] to the limit, and perhaps beyond, as far as his claims are concerned, with a view to minimising his taxable income. As counsel for the wife submitted, his actual disposable income is therefore a higher proportion of his earnings than most practitioners. Given this is the case, it is almost incomprehensible that his record for payment of tax should be so appalling. As a result, there is absolutely no doubt in my mind that it would produce a grossly unjust determination of child support should the husband pay child support calculated on the basis of his taxable income, whether or not there was a further deduction for payment of [School A] school fees, as a result of his tax minimisation arrangements.
69During the hearing, the husband paid the total amount of "child support" said to be outstanding (although the CSA subsequently presented him with an amended assessment asserting that a further $9295 was owing from December 1992). After referring to this development, Martin J said:
There can be no dispute that the circumstances have substantially changed since the making of [the Section 86 Deed]. Both parties have remarried. At the time [the Section 86 Deed] was made, the wife was a student and the husband was in partnership in a law firm. The wife had virtually no financial resources, but as a result of a payment made to her pursuant to the deed, she was able to purchase the home in which she is presently residing, which home she now owns jointly with her present husband, who has contributed the sum of $100,000 towards the property and in particular towards the outstanding mortgage.
70Her Honour then said that, on the evidence before the Court at that time, it was very difficult to assess the husband's income earning capacity and financial resources. It was important to bear in mind, however, that both parties were seeking a variation of the provisions of the Section 86 Deed in relation to child support. Her Honour then concluded:
I have determined that, in the special circumstances of the case, should [the Section 86 Deed] not be varied, it would result in an unjust and inequitable determination of the level of the financial support to be provided by the liable parent for the children because the parties agree that it requires variation and updating and because I consider that [the Section 86 Deed], overall, provides for the husband to meet a higher share of the financial responsibility for the children than he should be required to, indeed, almost all the costs of the children.
71Martin J expressed no sympathy for the financial difficulties in which the husband asserted that he found himself:
It is extraordinary that, in a situation where he had to enter into a Part X arrangement and, subsequently, was not paying either his child support or taxation liabilities, the husband could have maintained the living standard that he did, particularly in the last 15 months or so when he was making no child support payments. It was suggested that payment of child support at the agreed rate would break him – it seems that instead, the husband has brought on his own financial difficulties over many years through his financial mismanagement and extravagant lifestyle.
72Ultimately, her Honour's conclusion was as follows:
Although I consider that the evidence is a long way from establishing that the substantive provisions of [the Section 86 Deed] result in an unjust and inequitable determination of child support, having regard to the husband's high income, the taxation advantages available to him and his extravagant living expenses, I have reached the conclusion that it would be inequitable for him to pay child support, as required by [the Section 86 Deed] on a taxable income of $85,000 (which presently means a payment of $1791 per calendar month or $413 per week), together with all educational expenses of the children, whether at a private school or not, and all clothing and HBF expenses for the children. The latter provisions have not been properly enforced in the past and in my view can only lead to further dispute between the parties. Should the husband pay all these items, it would be a very onerous liability, particularly if the children do attend [[School A]], and provided the periodic child support is paid in the future, the wife should be able to meet these expenses.
As to the applications in relation to arrears, I have determined that the evidence does not establish that the husband should be released from any obligation to pay child support pursuant to [the Section 86 Deed] in the past.… However, I do accept that any arrears of payments for clothing and HBF should be discharged as I accept that it is unjust and inequitable for this payment to be required because of the extent of the other payments the husband has been required to make.
73As discussed elsewhere in these Reasons, I have discomfort with her Honour's reference to the payment of "child support" being "required by" the Section 86 Deed. I also have discomfort with her Honour's comment to the effect that the evidence before the Court was a long way from establishing that the substantive provisions of the Section 86 Deed resulted in "an unjust and inequitable determination of child support". In my opinion, the Section 86 Deed never obliged the husband to pay "child support" – whether before or after it was purportedly accepted by the DCSR.
74When dealing with the husband's earning capacity in the 1997 Judgment, Martin J said:
The husband's case is that his earning capacity reduced in October 1996, and for a period earlier as a result of treatment received for a neurological condition. The evidence is far from clear as to his prognosis but, obviously, if his health and his earning capacity deteriorate, a further variation may be necessary.
75Clearly, the husband's earning capacity was only one of a number of factors considered by her Honour in the 1997 Judgment. For reasons which will become apparent, however, her Honour's finding in relation to this subject has assumed some significance.
The 1997 Orders
76As foreshadowed in the 1997 Judgment, Martin J made orders on 29 January 1997 to the effect that the twins were to live with the wife and spend time with the husband. The orders also dealt with the issue of "child support". I shall refer to the orders as "the 1997 Orders". Para 6 of the 1997 Orders is as follows:
[The Section 86 Deed] be varied as follows:
1.Para 1 provide:
a)the husband pay to the wife as and by way of child support the greater of –
i)the sum of $300 per week;
ii)the sum per week that would be realised in the event that an administrative assessment by the Child Support Agency was effected on the basis of the husband having a taxable income in each year of $85,000;
b)the amount payable pursuant to subparagraph (a) above be varied annually, commencing on the 1st day of July 1997, in accordance with the inflation factor for the preceding year, published in accordance with [the Assessment Act].
2.Para 2 be varied to provide as follows:
a)from the commencement of the 1998 school year, the husband pay all costs of and reasonably incidental to the education of the children at [[School A]] (these costs to include tuition fees, uniforms and necessary books, educational supplies and any extra-curricular activities related to [School A]) and, in the event that the children do not attend [School A], then all these educational expenses at the
b)Clause 2(b) be rescinded.
77Paragraphs 7 and 8 of the 1997 Orders are as follows:
7.The husband be at liberty to discharge any personal child support liability in relation to the children from any family maintenance trust that he may establish to provide for the children, and if the husband does discharge any personal child support liability from such a trust, his personal liability to pay child support shall correspondingly be reduced.
8.The husband's application for variation of [the Section 86 Deed] so that no arrears be outstanding, be dismissed and any accrued arrears pursuant to the husband's obligation to pay clothing, medical and HBF expenses be discharged.
78Again, and as discussed elsewhere in these Reasons, I have discomfort with the 1997 Orders because the Section 86 Deed never obliged the husband to pay "child support". A fortiori, the Section 86 Deed was never a child support agreement.
1996 Enforcement proceedings
79While the proceedings referred to above were on foot, the wife filed what was then described as a Form 46 Enforcement Summons. As recorded above in the extract from the 1997 Judgment, the enforcement summons was filed on 18 June 1996.
80In the enforcement summons, the wife sought to enforce arrears of child maintenance/child support allegedly due pursuant to the provisions of the Section 86 Deed. She originally claimed a sum of just over $22,000 in respect of arrears allegedly due to 30 September 1995. She later amended her claim to seek alleged arrears of approximately $9500 in respect of the period from 9 August 1991 to 3 December 1992 (or, in other words, from the date the parties entered into the Section 80 Deed to the date upon which it was purportedly accepted by the DCSR).
81The husband argued that the enforcement summons was incompetent by virtue of s 30 of the Registration Act, and that this Court had no power to grant the relief sought by the wife. The husband also sought a stay of the operation or implementation of his "child support liability" under the Section 86 Deed. The stay was sought pursuant to the provisions of s 140 of the Assessment Act.
82As I have said, other applications were before the Court at the time the enforcement summons was filed. Nevertheless, and as Martin J observed in the 1997 Judgment, the enforcement summons was heard and determined by Tolcon J on 10 September 1996. His Honour delivered ex tempore reasons for judgment on that day. The application for a stay pursuant to the provisions of s 140 of the Assessment Act was dismissed.
83Importantly, however, his Honour held that –
… as a result of [the Section 86 Deed] being registered and pursuant to the provisions of s 28(b) of [the Registration Act], the enforcement period commences from the date of [the Section 86 Deed] and… the provisions of s 30 of [the Registration Act] apply in that the only person able to enforce is the [CSA].
84His Honour also held that –
Section 86(3B) of the [FLA] precludes the wife from enforcing payment of arrears of child maintenance for the children as provided in [the Section 86 Deed].
85Thus, the enforcement summons was also dismissed.
86I shall return to Tolcon J's judgment, and to FLA s 86(3B), later in these Reasons.
2001: Husband's bankruptcy
87A sequestration order was made against the husband on 19 September 2001. At that time, he had unpaid "child support" arrears of just over $26,000 and late payment penalties of approximately $3500. The husband was discharged from bankruptcy on 20 September 2004.
88The husband was not discharged from his "child support" debt, but the late payment penalties were remitted: see Segler v Child Support Registrar [2009] FMCA 41 at [7] to [9]. This decision is discussed below.
2003 application (struck out)
89On 2 September 2003, the husband filed an application styled as an application for maintenance. He sought orders to the following effect:
a)that the Section 86 Deed ("as varied by para 6 of the 1997 Orders") be set aside, and thereafter the husband pay child support pursuant to an administrative assessment by the CSA under the Assessment Act and not otherwise; and
b)that all accrued arrears of "child support" and associated penalties (alleged by the CSA to total approximately $65,900 as at 22 August 2003) be discharged.
90In support of the orders sought, the husband asserted that his and the wife's financial circumstances had altered, as had the cost of living. He added:
[The wife] is now engaged in gainful employment, whereas [the husband] is an undischarged bankrupt whose gross income at all material times has not exceeded $52,000 per annum.
91The wife filed a response to the husband's application on 20 October 2003.
92On 21 October 2003, the husband's application (filed 2 September 2003) was dismissed. In a draft judgment published on that day, Moroni M – before whom the proceedings had been listed – observed that the 1997 Orders had been made "under the Assessment Act" and said that "it follows that any application to vary [the 1997 Orders] must be brought under the same Act". His Honour characterised the husband's application as "asking the Court to vary an order which varied an agreement", and held that the husband's application was in an inappropriate form. In addition, his Honour held that a detailed affidavit setting out the reasons for the variation of the 1997 Orders should have been filed, together with a financial statement. Thus, in dismissing the husband's application, his Honour emphasised that there had been "no substantive hearing of [the husband's] application on its merits".
2004 application (discontinued)
93About a year later, on 25 November 2004, the husband filed an application styled as an application for final orders. He sought orders to the following effect:
a)that the Section 86 Deed ("as varied by para 6 of the 1997 Orders") be set aside, and thereafter the husband pay child support pursuant to an administrative assessment by the CSA under the Assessment Act and not otherwise; and
b)that all accrued arrears of child support and associated penalties (alleged by the CSA to total approximately $94,800 as at 22 October 2004) be discharged.
94It is immediately apparent that the orders sought by the husband in this application were almost identical to the orders sought in his application filed in 2003.
95A response was filed on 29 December 2004.
96During the course of the proceedings, subpoenas were issued to M, and to the husband's colleague, [Mr B].
97Moroni M (before whom the proceedings were listed) published a draft judgment on 1 March 2005. According to Lucev FM (as his Honour Judge Lucev then was) in Segler v Child Support Registrar (No 2) [2011] FMCA 96 (see below), Moroni M –
… did not deal with [the husband's] application because [the wife] alleged there was an arrangement between [Mr B] and [[M]] under which income properly payable to [the husband] was artificially diverted to [[M]]. [Moroni M] adjourned the matter to allow the issue of subpoenas and the preparation of evidence in relation to this issue.
98In other words, Moroni M proposed to adjourn the proceedings part-heard.
99The husband then discontinued the proceedings. The Notice of Discontinuance was filed on 31 March 2005.
100On 24 March 2005 – in other words, shortly before discontinuing the application – the husband wrote to Moroni M's Associate. He acknowledged receiving the draft judgment, indicated his intention to discontinue the application and provided certain information "for the Court record": see the husband's affidavit sworn 18 March 2013, annexure MLS8. The information provided included the following:
a)The husband's "arrangements to practice law only as a barrister" were "well advanced", and he proposed to give the appropriate undertaking to the Full Court of the Supreme Court on 3 May 2005.
b)As a consequence of leaving the amalgam and commencing practice at the independent Bar, the husband's employment with Mr B would come to an end.
c)The husband was unable to estimate his future income as a barrister, although he hoped that it would "significantly increase exponentially".
d)M "has been most distressed by her involvement in these proceedings", and the subpoena issued to her has "caused tension" within the home which the husband was "not prepared to exacerbate".
e)The twins had not spoken to him "since the proceedings were first heard", and the husband was "not prepared to now further exacerbate that unfortunate situation".
f)Overall, "any short-term benefit in achieving the balance of orders pending (in the application) is very much outweighed by the personal cost… in that regard".
101It seems that the husband never commenced practice as a barrister. He later asserted that his "intended practice as a barrister only was curtailed by [Mr B's] decision to terminate (the husband's) continued practice from the business premises".
Registrar's 2005 enforcement application and husband's consequential application for variation of the Section 86 Deed
102On 2 September 2005, the Registrar commenced enforcement proceedings against the husband.
103These proceedings first came before the Court on 20 October 2005. In addition to various procedural orders, the Court made orders to the following effect:
a)the husband pay the Registrar "the minimum monthly amount of $320 per month payable on the first day of each month until the further hearing on 15 December 2005";
b)the husband file a financial statement within 14 days;
c)the husband file any "application for variation of the Section 86 Deed (as amended by the 1997 Orders]" within 14 days; and
d)the proceedings otherwise be adjourned to 15 December 2005.
104As foreshadowed, the husband filed an application (styled as an application for final orders) on 25 November 2005. The orders he sought were very similar to those he had sought in his failed 2003 application and the discontinued 2004 application, namely –
a)that the Section 86 Deed ("as varied by para 6 of the 1997 Orders") be set aside, and thereafter the husband pay child support pursuant to an administrative assessment by the CSA under the Assessment Act and not otherwise; and
b)that, save for the sum of $5000 to be fixed as arrears of "child support", all accrued arrears of "child support" and associated penalties (alleged by the CSA to total approximately $111,900 as at 21 October 2005) be discharged.
105One of the grounds relied upon by the husband in support of his application was his "remarriage to (his) partner of eight years and the quasi-adoption of her young daughter now aged nine years": see husband's affidavit sworn 30 January 2006 at [2]. This is a clear reference to M and A.
106The wife filed a response to the husband's application on 12 December 2005, seeking that it be dismissed.
107On 15 December 2005, the Registrar's enforcement application filed 2 September 2005 was adjourned generally pending the disposition of the husband's application filed 25 November 2005.
108The hearing of the husband's application (and the wife's response) took place in or about late January 2006. On 30 January 2006, Mr B gave evidence in which he admitted that he owed the husband approximately $40,000 in respect of sums invoiced to his practice by the husband for legal or counsel fees. Consequently, on 13 February 2006 the Registrar sought to garnishee the moneys allegedly owed to the husband. This generated a flurry of correspondence among Mr B, the CSA and the husband: see the husband's affidavit sworn 18 March 2013, annexure MLS 9. Among other things, the husband wrote that Mr B "… holds no money in his general or trust account that is owed to me in respect of the tax invoices I have rendered to him."
109On 14 February 2006, Moroni M ordered that the husband's application filed 25 November 2005 and the wife's response filed 12 December 2005 be dismissed.
110In his draft judgment published on that day, Moroni M observed that the 2005/2006 proceedings were instituted by the husband after he had discontinued part-heard proceedings which he had commenced in November 2004. As indicated above, the 2004 proceedings were discontinued on 31 March 2005. The relief sought in the two sets of proceedings was very similar. His Honour also said:
•The fact of the partial and incomplete hearing of the discontinued proceedings is significant in only one respect, and that is before these current proceedings began to be tried both parties would have had or should have had a fairly clear understanding of what the relevant issues would be for the Court and what would be the likely areas of factual dispute.
•The twins' secondary education is now complete. They attended [School A] and their educational expenses have been met by [the wife]. The level of [the husband's] current arrears of cash child support with penalties is now a very substantial figure, in excess of some $100,000.
•[The wife] has carried a significant medical disability which ultimately led to her commencing litigation against the manufacturer of a certain medical appliance. The Court was told of an unsuccessful Federal Court damages claim brought and lost by [the wife]. A costs order has been made against her, and she said that she is liable to pay party/party costs of something in excess of $2 million. In addition, her own legal fees have run to something in the order of $1 million or thereabouts. Her legal costs have been met substantially by borrowings from her brother.
•… the Court is abundantly satisfied that the outcome of the Federal Court proceedings has been financially ruinous for [the wife].
111Moroni M was clearly troubled by the unaccommodating and uncooperative approach to the litigation demonstrated by the husband, M and Mr B. His Honour made reference to "a stubborn refusal" on their part to voluntarily part with documents which might have enabled the wife to confirm their evidence. The outcome of such an approach could only be, according to his Honour, that significant and material questions were left unanswered. For example:
a)Although the husband was ostensibly Mr B's employee at all material times, Mr B never paid the superannuation guarantee levy on his behalf.
b)It was never satisfactorily explained why Mr B was content to pay M a higher hourly rate than he paid the husband.
c)It was never satisfactorily explained why the husband's salary was never increased over a period of approximately five years.
d)The precise details of the "consultancy" arrangement entered into between or among the husband, M and Mr B were unclear, and unaccompanied by what should have been "an easily verifiable paper trail in the form of cheques being deposited into bank accounts, GST being remitted to the Tax Office and so on".
e)M's invoices to Mr B were "remarkably short on detail", and she was unable to provide that detail in the course of cross-examination.
112Ultimately, Moroni M found that the husband had failed to satisfy the Court that "the relevant financial history has been as he has outlined it". His Honour was also "a very long way from satisfied that (the wife) has had full and frank disclosure from the husband".
113Not surprisingly (having regard to the Court's findings), the husband's application filed 25 November 2005 was dismissed: see the orders of 14 February 2006.
114The Registrar's enforcement application filed 2 September 2005 was eventually resolved on 8 March 2006. On that day, the following orders (among others) were made by consent:
2.There be a declaration that [the husband] owes to the Commonwealth, in respect of amounts owing under registered maintenance liabilities of [the husband], the sum of $122,818.21 as at 3 March 2006, together with any further amounts owing to the Commonwealth as evidenced by a certificate issued under s 116(2) of [the Registration Act].
3.Until further order of the Court, [the husband] will pay to [the Registrar] a minimum monthly amount of $1000 on or before the seventh of each calendar month commencing on 10 March 2006, being a contribution towards child support arrears. This amount is subject to review by the [CSA] every two months.
4.With respect to para 3, [the husband] will provide to the [CSA] documentary evidence of his income and expenses every two months, commencing on 8 May 2006 and ongoing, so as to allow the [CSA] to reassess [the husband's] capacity to increase his monthly contributions towards his child support arrears.
115In his affidavit sworn 18 March 2013, the husband asserted that he consented to these orders –
… in futile endeavour to restore the then damaged relationship with [the twins] and with an unrealistic expectation of the income I may realise by legal practice on my own account after discharge from bankruptcy.
116I have referred to the consent orders made on 8 March 2006 as "the 2006 Orders". They are important, and the Registrar places considerable emphasis on them in the current proceedings. Relevantly, the Registrar argues that the husband cannot now resile from the concessions inherent within his consent to the 2006 Orders.
2007 application (FMC, now FCCA)
117Some 18 months later, in November 2007, the husband filed an application in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia). He sought an order – expressed to be pursuant to s 153(2A) of the Bankruptcy Act 1966 (Cth)) – to the effect that his discharge from bankruptcy be deemed to operate to release him from liability to pay arrears of "child support" and associated penalties. The application reveals that the arrears and penalties then totalled approximately $162,800. They were said to have accrued pursuant to the Section 86 Deed "as varied" by the 1997 Orders.
118The husband also sought an interim order to the effect that the Registrar be restrained from enforcing the arrears and penalties pending the delivery of judgment by the presiding Federal Magistrate.
119In February 2008, the husband amended this application to seek a release from liability to pay ”child support" and penalties as accrued at the date of sequestration (totalling approximately $29,000) and "as accrued between the date of sequestration and the discharge thereof" (totalling approximately $64,500).
120On 23 February 2009, Lucev FM (as his Honour then was) delivered Reasons for Judgment in relation to what were described as two preliminary issues – namely:
1.whether the discharge of a child support debt is a matter within the jurisdiction of [the FMC] and, if [the FMC] has jurisdiction, to what extent it can order discharge of a child support debt; and
2.if [the FMC] has jurisdiction, whether, in determining whether or not to discharge a child support debt following bankruptcy, [the FMC] must consider:
a)[the husband's] income, expenses, liabilities and assets during the period of bankruptcy only; or
b)[the husband's] income, expenses, liabilities and assets at the present day…
121His Honour found as follows (see Segler v Child Support Registrar [2009] FMCA 41 at [100] and [101]):
100.The Court therefore concludes that:
a)it has jurisdiction to discharge [the husband's] child support debt;
b)any discharge is limited to debts provable in bankruptcy up until the date of sequestration.
101.In relation to its determination of whether or not to discharge [the husband's] child support debt the Court is entitled to consider [the husband's] income, expenses, liabilities and assets, and [the husband's] conduct prior to the date of [the husband's] bankruptcy, during the period of [the husband's] bankruptcy, and since [the husband's] discharged from bankruptcy.
122Having determined that the FMC had jurisdiction in relation to discharge of child support arrears accrued prior to the date of sequestration, Lucev FM proceeded to hear the husband's substantive application on 25 May 2009. Following the hearing, his Honour's judgment was reserved. Reasons for Judgment were delivered on 25 February 2011: see Segler v Child Support Registrar (No 2) [2011] FMCA 96.
123The husband's application was dismissed.
124Under the heading Family Court of WA proceedings, Lucev FM said (footnotes omitted):
53.The issue of child support for the children of the marriage of [the husband] and [the wife] has been the subject of various Family Court of WA proceedings… The Family Court of WA has published various Reasons for Judgment, either in final or draft form, in relation to those proceedings. Relevant judgments are outlined below.
[The 1997 Judgment]
54.In this judgment the Family Court of WA refused to discharge child support arrears owed by [the husband] at that time, but did make orders discharging the husband's liabilities in relation to clothing and HBF payments, and varied [the Section 86 Deed] to clarify [the husband’s] obligations in relation to those issues. A number of relevant observations were made… in that judgment, including that [the husband]:
a)had not given sufficient priority to his obligation to support his children;
b)had pushed his income tax deduction entitlements to the limit with a view to minimising his taxable income, and in the circumstances, it would produce a grossly unjust determination of child support if his liability was calculated on the basis of his taxable income; and
c)had brought about his financial difficulties over many years through his financial mismanagement and extravagant lifestyle.
55.Consequently, the Family Court of WA determined that [the husband] ought not be released from any obligation to pay child support under [the Section 86 Deed].
1 March 2005 [Moroni M]
56.The Family Court of WA issued a draft judgment on 1 March 2005 in relation to [the husband's] application to discharge arrears of child support and for [the Section 86 Deed] to be set aside, and for an order that his child support liabilities be calculated by way of administrative assessments under the [CSA]. The Family Court of WA did not deal with [the husband's] application because [the wife] alleged there was an arrangement between [Mr B] [the husband then employer] and [Mrs Selkirk] [the husband then wife] under which income properly payable to [the husband] was artificially diverted to [the husband's then wife]. The Family Court of WA adjourned the matter to allow the issue of subpoenas and the preparation of evidence in relation to this issue. [The husband] then discontinued the application.
14 February 2006 [Moroni M]
57.On 14 February 2006 the Family Court of WA issued a draft judgment in relation to an application by [the husband] to discharge all but $5,000 of his child support arrears, and for the setting aside of [the Section 86 Deed] and an order that child support liabilities be calculated by way of administrative assessments under the [CSA]. The application was dismissed, and the Family Court of WA observed that:
a)there was no dispute that [the husband] had not ever complied with an order to pay educational expenses, and that he had only partially complied with the requirement to make cash child support payments;
b)[the husband] had been aware for some time that [the wife] alleged that the financial relationship between [Mr B] and [the husband and his then wife] was not genuine, but that [the husband] strongly resisted requests for production of documents concerning whether [the husband] was being paid at an appropriate commercial level for his services as an employed solicitor;
c)the husband's attitude toward [the wife's] request for proof of his case concerning the terms of his employment was that she could take his word for it;
352It appears to have been simply assumed, in –
•the proceedings commenced by the wife in February 1996,
•the 1997 Judgment and the 1997 Orders,
•the draft judgment published by Moroni M on 21 October 2003 and the orders made on that day,
•the 2005 enforcement application,
•the draft judgment published by Moroni M on 14 February 2006 and the orders made on that day,
•the Registrar's enforcement application filed 2 September 2005 and the orders made by consent on 8 March 2006,
•the application filed by the husband in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) in November 2007,
•the Reasons for Judgment delivered by Lucev FM (as his Honour then was) on 23 February 2009, and
•the Reasons for Judgment delivered by his Honour on 25 February 2011 and the orders made on that day,
that the child maintenance provisions of the Section 86 Deed had been validly recast as enforceable child support obligations.
353The enforcement summons filed by the wife on 18 June 1996, as subsequently amended, sought that the husband pay "arrears of maintenance" in the sum of just under $9600 for the period from 9 August 2001 to 3 December 1992 (in other words, in relation to the period between the making of the Section 86 Deed and its purported acceptance – or, more accurately, the purported acceptance of the Agreement Form with the Section 86 Deed attached – by the DCSR). In his Reasons for Judgment delivered (ex tempore) on 10 September 1996, Tolcon J stated that the Section 86 Deed had been registered in this Court – pursuant to the revisions of FLA s 86 – on 15 August 1991 and that it was "accepted as a Child Support Agreement pursuant to Part 6 … of the (Assessment Act)" on 4 December 1992. As in the proceedings referred to in the previous paragraph, it was simply assumed that the child maintenance provisions of the Section 86 Deed had been validly recast as enforceable child support obligations. It is true, however, that his Honour referred to FLA s 86(3B) and held that the subsection "precludes the wife from enforcing payment of arrears of child maintenance for the children as provided in the agreement". On the other hand, his Honour concluded at pp 11-12 –
… that as a result of the [Section 86 Deed] being registered and pursuant to provisions of s 28(b) of the [Registration Act], the enforcement period commences from the date of the [Section 86 Deed] and that the provisions of s 30 apply in that the only person able to enforce is the Child Support Agency.
354Thus, irrespective of whether the questions of –
a)the validity and enforceability of the child maintenance provisions of the Section 86 Deed; and
b)whether those provisions were ever validly recast as enforceable child support obligations,
are together regarded as comprising a formal, informal or notional "cause of action", or whether they are together regarded as comprising an issue or a decision which is capable of creating an issue estoppel, there has never been a judicial determination directly involving and disposing of them. No prior judgment or order necessarily answered the questions, thereby causing those answers to be (or to potentially be) "established as the legal foundation or justification of its conclusion": see Blair v Curran (supra) at 531. Similarly, these questions never formed the subject matter of any of the previous proceedings – and they were not identified, or identified clearly, as issues in those proceedings (save in a very limited sense in the proceedings before Tolcon J). It is for the Registrar to establish these matters. The Registrar has failed to do so.
Anshun estoppel
355The effect of Anshun estoppel was described by the Court of Appeal (WA) in DP World Australia Ltdv Fremantle Port Authority [2009] WASCA 16:
73.[Anshun estoppel] rests upon the principle that the court requires parties to litigation to bring forward their whole case and will not permit a party to reserve a claim and make it later when it could and should have been made in the earlier proceedings. It stems from the well-known statement of Wigram VC in Henderson v Henderson[1843] EngR 917; (1843) 3 Hare 100; 67 ER 313 at 319:
… where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted parts of their case.
74.That principle was considered by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 in the context of a failure to plead a defence in an earlier action. In that case, Anshun had entered into an agreement with the Port of Melbourne Authority for the hire of a crane and had agreed to indemnify the Authority against any claims made against it arising out of the use of the crane. A workman suffered injury arising out of Anshun's use of the crane. He claimed damages against the Authority and Anshun, each of whom served a contribution notice on the other. The Authority's notice claimed a contribution, but not indemnity. The workman recovered damages against both the Authority and Anshun and between them liability was apportioned 90% to the Authority and 10% to Anshun. The Authority then brought an action against Anshun based on the indemnity in the agreement, claiming the amount the Authority had paid to the workman under the judgment. At trial, the Authority's claim was permanently stayed on the basis of the principle in Henderson v Henderson. An appeal by the Authority to the High Court failed.
75.The High Court rejected, however, the proposition that it was an abuse of process to raise in subsequent proceedings matters which 'could and therefore should' have been litigated in earlier proceedings and considered that the abuse of process test was not of great utility in these circumstances. Gibbs CJ, Mason and Aickin JJ said at pp 602-3:
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
76.Their Honours went on to say at pp 603-4:
The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By 'conflicting judgments' we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity.
356The principles described above are not foreign to family law litigation: see, for example, Symonds & Raphael[1998] FamCA 165; (1998) 148 FLR 171; (1998) 24 Fam LR 20; Caska & Caska (supra), Yilmaz & Yilmaz (supra); Dunnett v Dunnett [2013] FamCA 529; see also Bagala & Bagala [2009] FMCAfam 953.
357Anshun estoppel has been described as an "extension of the doctrines of res judicata and issue estoppel": see Halsbury's Laws of Australia (online edition) at [190-40]. Alternatively, it can be regarded as separate from res judicata in its strict sense – although concerned with "its implications" when an issue is sought to be raised which could and should have been litigated in the earlier proceedings: see Chamberlain v Deputy Commissioner of Taxation[1988] HCA 21; (1988) 164 CLR 502 (supra) at 509.
358The learned authors of SBH make no mention of Anshun estoppel, preferring to deal with its elements as an extension of issue estoppel. At [8.11], for example, and under the heading Issues not raised in earlier proceedings, they quote the following passage from Lord Shaw in Hoystead v Commissioner of Taxation [1926] AC 155 (Privy Council) at 165-166:
… In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted… Thirdly, the same principle – namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' rights to rest applies and estoppel occurs.
359As in res judicata (or cause of action estoppel), it is necessary to look at the substance of the issue sought to be raised in the later case, and not simply its form, and to consider whether the issues in the earlier case and in the later case arose substantially out of the same matters of fact. The greater the similarity between the facts underlying each claim, the easier it will be to argue the unreasonableness of failing to raise the relevant argument in the first proceedings. Conversely, if there are substantial additional facts in one set of proceedings (as opposed to the other) it is likely to be arguable that Anshun estoppel is inapplicable. At the end of the day, however, the court should be cognisant of the fact that "to shut a party out of bringing a case on the basis of (Anshun estoppel) is a serious step, a power not to be exercised except after a scrupulous examination of all the circumstances". Serious injustice could result of Anshun estoppel being "too readily applied": see DP World Australia Ltd v Fremantle Port Authority (supra), Bryant v Commonwealth Bank of Australia[1995] FCA 1299; (1995) 57 FCR 287, Ling v Commonwealth[1996] FCA 1646; (1996) 68 FCR 180 and Yat Tung Investment Co Ltd v Dao Heng Bank Ltd[1975] AC 581, 590.
360In Stewart v Biodiesel Producers Ltd (supra) at [62], Beech J – citing Gibbs v Kinna[1999] 2 VR 19 at 33 – also emphasised the potentiality of serious injustice arising as a result of an inappropriate application of Anshun estoppel:
Anshun estoppel involves preventing a litigant from having a court adjudicate on the merits of a claim. For that reason, it is only to be applied in the clearest of cases.
Discussion regarding Anshun estoppel
361I recognise the potentiality of serious injustice arising as a result of an inappropriate application of Anshun estoppel, and that it should only be applied "in the clearest of cases". I am satisfied, however, that the husband could have and should have raised (and pressed) in the earlier proceedings the questions or issues to which I have referred above, namely:
a)the validity and enforceability of the child maintenance provisions of the Section 86 Deed; and
b)whether those provisions were ever validly recast as enforceable child support obligations.
362It does not matter whether the husband failed to raise these questions or issues as a result of negligence, inadvertence or even accident. They were so relevant to the subject matter of all the various proceedings in this Court in which the husband was a party over the years (and, indeed, to the subject matter of the proceedings in the Federal Magistrates Court of Australia before the Lucev FM, as his Honour then was) that it would have been plainly unreasonable not to raise them for consideration by the relevant judicial officer. Indeed, they were intimately connected with the subject matter of the various proceedings. In my opinion, all parties would have had an expectation that the husband would raise these questions or issues to enable them to be determined within and as an integral part of whichever proceeding he was then involved. That the husband may have assumed (erroneously) that the child maintenance provisions of the Section 86 Deed had been validly recast as enforceable child support obligations is of no consequence. He has had ample opportunity over many years to raise the relevant arguments.
363I would add that the claims inherent within the questions or issues to which I have referred are inconsistent, in important respects, with direct and indirect concessions made by the husband over the years.
364Further, the husband has not provided a satisfactory explanation for failing to press these questions or issues in the various proceedings discussed above.
365The Court has a discretion whether or not to apply the principles of Anshun estoppel to prevent a party from relying upon claims or arguments in later proceedings that could have and should have been raised in earlier proceedings. Having regard to the long history of the litigation in this Court and the associated litigation in the Federal Magistrates Court, the lack of a satisfactory explanation for failing to press the questions or issues to which I have referred and the other matters discussed above, I am satisfied that my discretion should be exercised in such a manner as to prevent the husband from agitating these questions or issues in the current proceedings. In my opinion, Anshun estoppel precludes the husband from arguing these matters.
Enforcement issues
366I am well aware that I do not have an enforcement application before me. To the extent that the Registrar may be minded to seek to enforce the 2006 Orders, however, I am of the view that it is both useful and prudent for the Court to make the following observations:
a)It is clear beyond argument that enforcement is always discretionary.
b)Although the husband is estopped from arguing that the child maintenance provisions of the Section 86 Deed (which are clearly unenforceable) were never validly recast as enforceable child support obligations, I have found that such an argument would have been successful.
c)It follows that, but for the application of Anshun estoppel, the husband could have argued successfully that the child maintenance provisions of the Section 86 Deed are and always have been of no effect and unenforceable, that those provisions were never validly recast as enforceable child support obligations and that both the 1997 Orders and the 2006 Orders should be discharged on the basis that the Court had no power to make them.
d)Further, but for the application of Anshun estoppel, the husband could have argued successfully that the Registrar lacked power to enforce the 1997 Orders and the 2006 Orders – because there was never an enforceable child support obligation.
e)I have held that, in my opinion, all parties would have had an expectation that the husband would raise questions relating to –
i)the validity and enforceability of the child maintenance provisions of the Section 86 Deed;
ii)the validity and effectiveness of the Registrar's or the DCSR's purported "acceptance" of the Agreement Form; and
iii)the recasting of the child maintenance provisions of the Section 86 Deed as (allegedly) enforceable child support obligations,
to enable them to be determined within and as an integral part of whichever proceeding he was then involved. It seems to me, however, that similar comments could be made regarding the Registrar. The Agreement Form which the wife provided to the Registrar should not have been accepted. It failed to achieve what would appear to be its intended purpose: namely, to reconstitute the child maintenance provisions of the Section 86 Deed as enforceable child support obligations.
367In any event, and as discussed under the heading The "expectations" inherent within the 1997 Orders above (which appears under the broader heading The husband's case), there are significant difficulties associated with the interpretation of the child maintenance provisions of the Section 86 Deed and the "child support" provisions of the 1997 Orders. On the basis of the evidence currently before the Court, it is not possible to determine how the Registrar interpreted and applied these provisions. True it is that Anshun estoppel prevents the husband from going behind the declaration made by Moroni M in the 2006 Orders, but the enforcement of those orders remains discretionary. It is arguable that Anshun estoppel cannot be used to fetter the Court's discretion in relation to enforcement. Given that the Court does not have an application for enforcement before it, however, now is not the time to discuss this subject in detail.
368The approach the Court should adopt when dealing with enforcement of outstanding maintenance or child support obligations was described by the Full Court in Wreford v Caley (2010) 43 Fam LR 1:
68.The… court still retains discretion about enforcement. Thus an order might not be discharged, but the court may not accede to an application to sell property or make an immediate payment by way of enforcement. This means that the immediate circumstances of the payer could still be taken into account but without having to discharge the order. … That would be an example of giving effect to the dual exercise of discretion in FLA s 66W(2)(a).
69.It appears that s 66W is a remedial provision. It was inserted by the Family Law Amendment Act 2000 (Cth) to overcome the anomaly identified in In the Marriage of Heethuis and Van Genderen(1998) 24 Fam LR 396; (1999) FLC 98-005 in which it was held that, if an order ceased to be in force if the court did not have the power to vary the order under FLA s 66S and, while the order continued for the purposes of recovery under the now repealed s FLA 66W, there was no provision for the variation or discharge of arrears. However, there is no guidance within FLA s 66W as to what matters the court should take into account when considering whether there is just cause to discharge an order.
70.What matters then should inform the exercise of discretion in determining what constitutes “just cause”? In Mathieson & Hamilton [2006] FMCAfam 238, Walters FM, in dealing with an application under the [Assessment Act] distilled what he saw as a number of principles, considerations or factors relating to enforcement of arrears of maintenance or child support. In doing so, his Honour considered, in addition to enforcement, whether there should be any discharge of the arrears. His Honour discussed three principles and a number of considerations and held:
a)The “12 months rule” is extinct. It was, in any event, never more than a discretionary guideline or rule of practice, and the 12 months period was an arbitrary one.
b)The court has a discretion, not only as to the period in respect of which accumulated arrears of maintenance or child support will be enforced, but as to whether they should be enforced at all.
c)The court is not prevented from enforcing arrears of maintenance or child support simply because the time for payment of the same has long since passed, or because (in the case of child maintenance or child support) the relevant child has long since left school, commenced paid employment or otherwise ceased to require such child maintenance or child support.
d)In considering whether to enforce arrears (and, if so, for what period), the court’s discretion is unfettered, but the following considerations (at least) might be considered to be of relevance:
i)whether the party who was obliged to pay the maintenance or child support (the Payer) knew or ought to have known of his/her obligation to pay maintenance or child support;
ii)whether the party entitled to maintenance or child support (the Payee) pressed or pursued – directly or indirectly – his/her rights to the same, and whether the Payee did so in a timely fashion;
iii)whether, by words or conduct, the Payee led or permitted the Payer to form a reasonable view that the Payer’s obligation to pay maintenance or child support would not be enforced, and whether (and in what way) the Payer was thereby induced – while acting in good faith – to change his/her financial position;
iv)whether, by words or conduct, the Payer led or permitted the Payee to form a reasonable view that the Payer’s obligation to pay maintenance or child support would be met, and whether (and in what way) the Payee was thereby induced – while acting in good faith – to change his/her financial position;
v)whether the Payer had (other) appropriate or adequate reasons for failing or refusing to pay;
vi)the financial circumstances of the Payer, the Payee and the children during the period of the non-payment, and at the time that the enforcement of the arrears is sought (including the Payer’s ability to pay at all relevant times);
vii)whether the Payer has made full and frank disclosure of his/her financial position at all relevant times; and
viii)whether the Payee has made full and frank disclosure of his/her financial position at all relevant times.
71.His Honour concluded by saying (at [230]):
The court should be very cautious not to encourage a Payer to metaphorically sit back and ignore his/her liability for maintenance or child support, and to continue to ignore such liability “… hoping for the best”.
72.While Walters FM was dealing mainly with the question of whether to enforce an order, the matters he dealt with are equally applicable to an application to discharge arrears.
369It follows from the above that, on the basis of the evidence currently available, it is certainly not a foregone conclusion that the Court would be minded to exercise its discretion in favour of enforcing all, or even part, of the alleged arrears of child support. It is unnecessary and unhelpful to say anything further about any potential enforcement proceedings.
Conclusion
370In all the circumstances, I am satisfied that –
a)the husband should have leave to rely upon his amended application filed 6 July 2012;
b)this Court lacks power to make the orders sought by the husband under FLA s 66S; and
c)Anshun estoppel precludes the husband from arguing the following questions or issues:
i)the validity and enforceability of the child maintenance provisions of the Section 86 Deed; and
ii)whether those provisions were ever validly recast as enforceable child support obligations.
371In all the circumstances, the most appropriate order is that the husband's amended application filed 6 July 2012 be dismissed.
372I shall hear from the parties as to any other appropriate orders, and as to the issue of costs.
I certify that the preceding [372] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
10 May 2016
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