The Secretary of the Attorney-General’s Department and Wageman
[2015] FCCA 1763
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE SECRETARY OF THE ATTORNEY-GENERAL’S DEPARTMENT & WAGEMAN | [2015] FCCA 1763 |
| Catchwords: CHILD SUPPORT – Confirmation of overseas maintenance order – whether order from South Africa should be confirmed – whether overseas court without jurisdiction because wrong statute referred to in record of provisional maintenance order – whether overseas court without jurisdiction because proceedings in that court not served on respondent – whether respondent unable to support himself. |
| Legislation: Child Support (Assessment) Act1989, Sch 1 Family Law Act 1975 (Cth), ss.66G, 66H, 66K, 66L(1), 66(2), 66L(3), 66V(1), 66W(2) |
| Mathieson and Hamilton (1996) FLC ¶98-032 Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213n Mostyn v Fabrigas (1774) 1 Cowp 160, 174; 98 ER 1021 Wreford and Caley (2010) 43 FamLR 1 |
| Applicant: | THE SECRETARY OF THE ATTORNEY-GENERAL’S DEPARTMENT |
| Respondent: | MR WAGEMAN |
| File Number: | BRC 676 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 31 July 2014 |
| Date of Last Submission: | 31 July 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Black |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Counsel for the Respondent: | Mr Jones |
| Solicitors for the Respondent: | Stephen E Jones Consultant Lawyer |
ORDERS
The Provisional Maintenance Order made on 15 August, 2011 in the Court of the Magistrate for the District of Benoni in South Africa be confirmed with effect from that date.
IT IS NOTED that publication of this judgment under the pseudonym The Secretary of the Attorney-General’s Department & Wageman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 676 of 2014
| THE SECRETARY OF THE ATTORNEY-GENERAL’S DEPARTMENT |
Applicant
And
| MR WAGEMAN |
Respondent
REASONS FOR JUDGMENT
Mr Wageman and Ms Wageman are the parents of X who was born on (omitted) 1993. Mr Wageman lives in Brisbane, whilst Ms Wageman and X both live in South Africa.
On 15 August, 2011 the Court of the Magistrate for the District of Benoni in South Africa made an order that Mr Wageman pay specified amounts towards the maintenance of X. That order was expressed so as to “have no effect unless and until it is confirmed by a competent court in Australia”. The record of the order reveals that it purported to be a provisional maintenance order made pursuant to the Maintenance Act 1998 (South Africa) and the Reciprocal Enforcement of Maintenance Orders Act 1963 (Act 80 of 1963) (South Africa). According to the latter Act, the order is of no effect until it is confirmed by a court in Australia.
Confirmation of provisional maintenance orders made by courts in other jurisdictions is dealt with in the Family Law Regulations1984. This is an application pursuant to reg.28(2) of the Family Law Regulations calling on Mr Wageman to show cause why the South African maintenance order should not be confirmed in Australia.
Mr Wageman opposes the confirmation of the South African maintenance order and seeks an order that it be discharged.
The Statutory Scheme
By a combination of regs.28(1) and 28(2) of the Family Law Regulations an obligation is cast upon the applicant to make an application to a competent court calling upon a respondent to show cause why a overseas provisional maintenance order made in a reciprocating jurisdiction should not be confirmed if the applicant has received:
a)a certified copy of the provisional maintenance order; and
b)a copy of the depositions of the witnesses in the proceedings in which the provisional maintenance order was made; and
c)a statement of the grounds on which the provisional maintenance order could have been opposed if the person against whom the order was sought (the respondent) had appeared at the hearing; and
d)there are reasonable grounds for believing that:
i)the respondent is ordinarily resident in, is present in, or is proceeding to, Australia; and
ii)the provisional maintenance order will have effect under the law of the overseas jurisdiction if it is confirmed by a court having jurisdiction under the Act.
Here, each of those matters is fulfilled. The provisional maintenance order under consideration here was made in a reciprocating jurisdiction. South Africa is a reciprocating jurisdiction: reg.25 and Schedule 2 to the Regulations. Further, the evidence reveals that that applicant received:
a)a certified copy of the provisional maintenance order; and
b)a copy of the depositions of the witnesses in the proceedings in which the provisional maintenance order was made; and
c)a statement of the grounds on which the provisional maintenance order could have been opposed if Mr Wageman (the person against whom the order was sought) had appeared at the hearing.
It is not in contest that Mr Wageman is ordinarily resident in Australia, or that the provisional maintenance order will have effect under the law of South Africa if it is confirmed by this Court.
The Regulations contemplate that a respondent might oppose the confirmation of the overseas maintenance order. What might happen on the hearing of this application is set out in reg.28A of the Regulations. It is open to Mr Wageman to oppose confirmation of the provisional maintenance order:
a)on any ground of opposition that he could have raised in the original proceedings in South Africa; or
b)on any ground of opposition that he could have raised if the proceedings leading to the making of the provisional maintenance order had been heard in Australia.
On the hearing for confirmation of the provisional maintenance order the Court may:
a)confirm the provisional order (either with or without modification); or
b)discharge the provisional order; or
c)adjourn the proceedings, and remit the provisional order to the court that made it with a request that that court take further evidence and further consider its provisional order.
The proof of a foreign law is a matter for evidence: Mostyn v Fabrigas (1774) 1 Cowp 160, 174; 98 ER 1021. Sections 174 and 175 of the Evidence Act1995 assists in the proof of foreign law. Further, reg.28A(3) facilitates proof of the relevant foreign law about the grounds of opposition that could have been raised in the original proceedings by providing that the statement of those grounds furnished for the purposes of reg.28(1)(c)(iii) is conclusive evidence of the grounds of opposition that could have been raised in the original proceedings.
For that purpose, the applicant received such a statement in the form of a certificate from the presiding magistrate who made the maintenance order in South Africa. The grounds of opposition listed in that certificate are:
1. The Court has no jurisdiction to make the Order;
2. The matter of the Complainant is not true;
3. Under a decree or Order of a competent Court, the applicant is already entitled to maintenance and that such decree is being complied with by the Defendant;
4. Applicant is not without means of support;
5. Defendant is not able to maintain himself, and
6. Defendant has not wilfully neglected to provide reasonable assistance to the children since he is not of sufficient ability to maintain them.
Mr Wageman raises three matters in answer to the application for confirmation. First, he argues that the order upon which the applicant relies is fatally flawed. He argues that the Court had no jurisdiction to make the order. Second, he argues that he was never served with the proceedings that led to the making of the order in South Africa and he was thereby denied procedural fairness. Accordingly, the Court had no jurisdiction to make the order. Third, he argues that he is unable to maintain himself and has no capacity to meet the maintenance order and therefore the order either ought not to have been made, or alternatively, ought not be confirmed. Grounds 1 and 2 are said to engage the first of the grounds of opposition identified in the certificate referred to above and the third is said to engage grounds 5 and 6.
Did the South African Court lack jurisdiction?
Legislative authority
Mr Wageman argues that, on its face, the South African maintenance order was made pursuant to a South African statute which was repealed in 1998, several years before the relevant maintenance proceedings were instituted and determined. He argues that the South African court has heard and determined an application that it had no jurisdiction or power to entertain.
The initial order relied upon by the applicant is to be found as annexure “K-01” to the affidavit of Ms K filed 24 January, 2014. That order, on its face, states that it is made:
... in terms of Section 5 (4) of the Maintenance Act, 1963 (Act 23 of 1963), read with Section 8 of the reciprocal Enforcement of Maintenance Orders Act 1963 (Act 80 of 1963).
On 5 May, 2014 the magistrate who issued the original provisional maintenance order on 15 August, 2011 issued an amended order. In the amended order, the words “section 5(4) of the Maintenance Act 1963, (Act 23 of 1963)” was replaced with the words “section 16(1)(b) of the Maintenance Act 1998, (Act 99 of 1998)”.
Mr Wageman’s argument relies upon the proposition that the Maintenance Act 1963, (Act 23 of 1963) was repealed when the order was made. On its face, the provisional maintenance order was made pursuant to a statute that had long since been repealed.
As I have set out above, foreign law is a matter of fact to be proved by evidence. The onus to prove that the relevant South African statute has been repealed falls upon Mr Wageman. However, he leads no evidence to establish that fact. He appears to assume that I can simply take notice of the fact that the relevant statute in South Africa was repealed on a particular date.
There is some evidence from a person that I consider to be qualified to give it about the state of the law in South Africa. That evidence is given by Lourenci Petronella Knight, the magistrate that presided over the application by Ms Wageman for the making of the provisional maintenance order. Her affidavit is annexed to an affidavit of the applicant’s solicitor Mr Powell filed on 6 May, 2014. In the affidavit, Magistrate Knight addresses two issues. The first is the repeal of the statute that is referred to on the face of the maintenance order. The second is the issue of the amended order.
Mr Wageman objects to all of the evidence in that affidavit on the basis that:
a)the affidavit does not form part of the record of the proceedings leading to the making of the South African maintenance order; and/or
b)“a legal opinion or argument is expressed”.
As to the first ground, the objection is not well taken. There is nothing in the Family Law Regulations to suggest that it is only the material that formed the record of the proceedings before the court making the provisional order that is relevant or admissible. Regulation 28(1)(c) does not prescribe the material that must be placed before a court asked to confirm a provisional overseas maintenance order. That regulation prescribes what must be received by the applicant before an obligation to apply for confirmation is triggered – a different matter altogether.
Evidence which is relevant is, prima facie, admissible. Magistrate Knight’s evidence is relevant because it explains the amendment to the order. To the extent that Magistrate Knight gives evidence about the law in South Africa, in my view, her evidence is properly considered as expert evidence. I am satisfied from the face of Magistrate Knight’s affidavit that she is qualified to give the evidence. Apart from anything else, she has been a magistrate at the Benoni Court since 1 May, 1988. The other matters dealt with in Magistrate Knight’s affidavit are factual matters. She explains the circumstances in which she came to issue an amended maintenance order so as to correctly identify the statute pursuant to which it was made. All of Magistrate Knight’s evidence in her affidavit affirmed on 5 May is admissible.
The irony in Mr Wageman’s objection to the evidence from Magistrate Knight is that without it, he cannot prove that the statute specified in the original order was repealed at the time the order was made.
In her affidavit, Magistrate Knight gives the following evidence:
2. I confirm that I presided in the maintenance matter Ms Wageman versus Mr Wageman in case 14/3/2 - 128/2003 and that the enquiry was held in terms of the Reciprocal enforcement of Maintenance Orders, Act 80 of 1963 read with the Maintenance Act 99 of 1998.
3. I confirm that I made the provisional order against Respondent in terms of the abovementioned Acts on the 15th of August 2011.
4. I confirm that due to an oversight the prescribed roneo forms were never amended to reflect the new Maintenance Act and relevant Section as reference is still made to Section 5(4) of the Maintenance Act 23 of 1963, which was repealed by the Maintenance Act 99 of 1998.
5. I hereby attach an amended provisional order reflecting the correct Act and Section in terms of which the enquiry was held.
6. I refer to Section 45 of the Maintenance Act 99 of 1998 which clearly indicates that it was never the legislature’s intention that orders made under these circumstances should be regarded as invalid.
7. I further refer to the preamble of the Maintenance Act, Act 99 of 1998 which makes it clear that the best interest of the child should be regarded as of paramount importance. To regard this order as invalid merely due to a typographical error would be contra the aims of the Act and against the best interest of the child.
Mr Wageman submits that the error “on the face of the record” goes to the heart of these proceedings. He is very critical of the applicant, as a model litigant, for commencing these proceedings. He argues that the applicant should have “identified that defect itself and refrained from commencing the Application until such time as necessary steps to constitute a valid Order pursuant to the current legislation Maintenance Act 1998 issued”.
But his criticism is misplaced. Whilst the order originally contained an erroneous statutory reference, the order has been amended. As explained by Magistrate Knight, the error was of a formal nature in the “roneo” form used to record the Court’s decision.
Mr Wageman also argues that Magistrate Knight does not identify the power that she exercised to amend the order. On the face of her affidavit, that is so.
For the purposes of another of his arguments, Mr Wageman asks that I refer to the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa. Although there ought to be evidence dealing with those rules, Mr Wageman’s solicitor confirmed that I should look at those rules myself. I confirmed with him during argument that I might look at all of the Rules if necessary. He raised no objection to that course. Rule 49(9) of those rules provides:
(9) A magistrate who of his or her own accord corrects errors in a judgment in terms of section 36(1)(c) of the Act shall, in writing, advise the parties of the correction.
The Act referred to in that rule appears to be the Magistrates’ Courts 1944, (Act 32 of 1944) (South Africa). Subsection 36(1)(c) of that Act provides:
36 What judgments may be rescinded
(1) The court may, upon application by any person affected thereby, or, in cases falling under paragraph (c), suo motu-
(c) correct patent errors in any judgment in respect of which no appeal is pending;
The word judgment includes a decree, a rule and an order: s.1 of the Magistrates’ Courts 1944, (Act 32 of 1944) (South Africa). The error on the face of the record corrected by Magistrate Knight is clearly a patent error in the provisional maintenance order. She had power to correct it suo motu (ie, on her own motion).
Her court was not without jurisdiction to make the South African maintenance order. In my view the provisional maintenance order was made with jurisdiction.
Notice of the South African proceedings
Mr Wageman was never served with notice of the South African proceedings. He argues that at all times his whereabouts were well known to both Ms Wageman and to the South African Court. In those circumstances, he argues, he ought to have been served with the proceedings and given the opportunity to respond. In the absence of service upon him of the proceedings, he argues that the South African court was without jurisdiction to make the provisional maintenance order.
In her evidence, Magistrate Knight explains why service of the proceedings upon him was unnecessary (in her evidence she refers to the maintenance hearing as the “enquiry”):
11. …
i) I confirm that the abovementioned enquiry was held in the absence of Respondent and or a legal representative and that Respondent did not receive any notice with regard to the envisaged enquiry of the 15th of August 2011.
ii) As Respondent is residing in Australia, a proclaimed country in terms of proclamation notice R345 of 1960, the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 is applicable.
iii) Section 1 of this Act defines “proclaimed country” as a country or territory in respect of which this Act applies in terms of section two”.
iv) Section 2(1) of this Act states that this Act shall apply in respect of any country or territory designated by the Minister by notice in the Gazette.
v) The Maintenance Act 99 of 1998 is only applicable in so far as it is referred to in this Act.
vi) Section 1 of the Reciprocal Enforcement Act defines “maintenance court” to mean any maintenance court as defined in Section 1 of the Maintenance Act, 1998.
vii) Section 8 of the Reciprocal Enforcement Act deals with provisional maintenance orders against persons resident in proclaimed countries and states as follows:
“(1) Notwithstanding anything to the contrary in any law contained, an enquiry may be held under the Maintenance Act, 1998, in the absence of any person resident in a proclaimed country who may be legally liable to maintain any person in the Republic, provided the evidence of all witnesses at the enquiry is read over to and signed by them.”
(2) The court holding the enquiry may make a provisional maintenance order only, against the person so resident and shall, with a view to confirmation of the provisional maintenance order, forward to the Minister for transmission through diplomatic channels to an authority of the proclaimed country recognized for the purpose by the Minister, a certified copy of the order together with the depositions of witnesses, a statement of the ground on which the order might have been opposed and such information as may be available for the identification and location of the person against whom the order has been made.
viii) It is clear that the Act does not require notification to the Respondent and for understandable reasons. The Respondent is however not deprived from the basic rule of natural justice namely the audi alteram partem rule as the order that was granted in his absence is merely a provisional order that has to be confirmed by the Court in front of whom he appears.
ix) There is no prejudice for the Respondent as Section 1 of this Act defines a “provisional order” to be a maintenance order having no effect unless and until confirmed by a competent court in the country where the person against whom it has been made is resident.
Mr Wageman points out that service of proceedings upon a respondent or defendant is generally seen as the “foundation of jurisdiction”. That might be correct, generally speaking. But a court may do what it is that a particular statute empowers it to do. In Australia, courts are empowered to act without notice to a defendant or a respondent in certain circumstances that arise both under statute: see, for example, the s.259(1) of the Uniform Civil Procedure Rules 1999 (Qld) and at common law: see, for example, Mareva Compania Naviera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213n.
The only evidence that bears upon the South African court’s ability to proceed without notice to Mr Wageman is that of Magistrate Knight. Mr Wageman has led no evidence that challenges the matters deposed to by her. It is clear from her evidence that the legislation under which she proceeded expressly authorised the proceedings to take place in Mr Wageman’s absence.
Mr Wageman concedes that s.8(1) of the Reciprocal Enforcement of Maintenance Orders Act (South Africa) provides authority for the holding of an enquiry under the Maintenance Act 1998, (as was the case here) in the absence of the person against whom the order is sought. That might happen where the person against whom the order is sought is in a proclaimed country and the evidence of all witnesses of the enquiry is read over to and signed by them. No express provision is made for service of the proceedings (or any originating process) upon the person against whom the order is sought.
However, Mr Wageman submits that the right to receive notice of the proceedings, together with the material upon which those proceedings are brought and to have the opportunity to be heard “is implicit in the law unless expressly excluded”. No authority, either from Australia or South Africa, is cited for that proposition. Mr Wageman argues that whilst the South African statute permits the maintenance enquiry to be held without notice to him, it does not mandate that course. Here, where his address and other contact details in Australia were known to both Ms Wageman and the Court in South Africa, he argues that it was necessary for him to be given notice of the proceedings before they were conducted in South Africa. The course permitted by the relevant South African statute was not open to the South African court.
Further, Mr Wageman points out that s.8(2) of the Reciprocal Enforcement of Maintenance Orders Act (South Africa) provides that upon a provisional maintenance order being made in South Africa, a certified copy of the order is to be forwarded to the proclaimed country in which the respondent resides together with:
“ ... such information as may be available for the identification and location of the person against whom the Order has been made.”
Mr Wageman submits that this provision contemplates situations in which, at the time of the making of the provisional order, the precise location of the respondent is not known. That, he argues, adds strength to his argument that where the precise location of the respondent is known, the respondent must be served with the originating process.
But I cannot accept Mr Wageman’s arguments. The South African court proceeded as it was permitted to do by statute. The permission to proceed in Mr Wageman’s absence contained in the statute was not qualified or conditional. That court was not obliged to give Mr Wageman notice of the proceedings or direct that Ms Wageman do so. As Magistrate Knight points out, that he did not participate in those proceedings and did not know about them is accommodated by the provisional nature of the South African order and the opportunity given to Mr Wageman to challenge the order, not only on grounds that might have been available to him in South Africa, but also grounds that might have been available to him in Australia when application for confirmation of the order in Australia was made.
In those circumstances, it is difficult to conclude that Mr Wageman has been denied procedural fairness or that the rules of natural justice have been offended. The South African court had jurisdiction to make the provisional maintenance order in the circumstances in which it came to make those orders.
Mr Wageman’s capacity
On a date that I cannot determine from the material, Ms Wageman and Mr Wageman married. They have two children who are now both adults. They were divorced by an order of the High Court of South Africa made on 13 August, 1999. Apart from dissolving their marriage, the order also made binding a deed of settlement made between Mr and Ms Wageman consequent upon the breakdown of their relationship.
The deed dealt with various matters including the care of the children and child maintenance. By the deed, the children were to live with Ms Wageman and spend each alternate weekend, along with some holiday time, with Mr Wageman. For the period from 1 July, 1999 to 31 June, 2000 the deed provided for Mr Wageman to pay maintenance for the children of R1,000 per month. Thereafter, Mr Wageman was to pay maintenance of R500 per month as well as all school fees and medical expenses for the children.
Those arrangements were varied by the making of a consent order between the parties on 29 October, 2003 so as to reduce the amount payable by Mr Wageman to R900 per month.
They were again varied by consent order on 10 January, 2005 this time to increase the amount to R1,800 per month (R900 per month for each child). Further, the parties agreed that the amount should be increased by 8% every year for a period of five years with effect from 1 March, 2006.
Sometime after the making of the consent order on 10 January, 2005 Mr Wageman departed South Africa and went to live in (country omitted). Ms Wageman alleges that he left South Africa to avoid his child maintenance obligations. He did not leave a forwarding address.
In 2007 Ms Wageman applied to a magistrate’s court in South Africa to enforce the payment of arrears of maintenance and to vary the orders then in place. Mr Wageman was in Canada. Canada is a reciprocating jurisdiction for the purposes of the Reciprocal Enforcement of Maintenance Orders Act 1963 (Act 80 of 1963) (South Africa). On 19 April, 2007 a provisional maintenance order was made requiring Mr Wageman to pay R4,000 per month by way of maintenance for the children. That amount was to increase by 8% per year annually.
By chance, it seems, Mr Wageman was located in Canada. A proceeding, not unlike that now before me, came before Judge Dhillon in the Provincial Court of British Columbia, Vancouver Registry, on 5 March, 2008 in which confirmation of the South African order made on 19 April, 2007 was sought. Mr Wageman did not appear in the South African proceedings, but he appeared in the proceedings in Canada.
The Provincial Court declined to confirm the South African order, but did order Mr Wageman pay to Ms Wageman$233.00 per month as maintenance for the benefit of the parties’ two children. That order was to continue until 1 February, 2008. Thereafter, the amount was to increase to C$341.00 per month.
It seems that Mr Wageman at some time thereafter left Canada and came to Australia. He has paid little to Ms Wageman by way of maintenance. She swears that the last substantive payment she received was in October, 2008.
By the time of the making of the provisional maintenance order in 2011 with which I am now concerned, Ms Wageman claims that the accumulated arrears were R342,649.10.
The provisional maintenance order provides for Mr Wageman to pay monthly maintenance starting at R4,800 on 15 August, 2011 with annual increases of 8%. The maintenance so ordered relates only to the parties’ child X. Applying historical exchange rates between the Australian dollar and the South African rand, of which both parties submit I should take judicial notice, the following rates of monthly maintenance, expressed in Australian dollars apply to the following respective periods:
a)from 15 August, 2011: maintenance of R4,800, being about $646 per month (exchange rate of 7.4203 rand per AUD);
b)from 15 August 2012: maintenance of R4,184, being about $604 per month (exchange rate of 8.5799 rand per AUD); and
c)from 15 August 2013: maintenance of R4,598, being about $614 per month (exchange rate of 9.1085 rand per AUD).
Mr Wageman argues that:
a)having regard to the grounds of opposition he might have raised in the proceedings in South Africa:
i)he is not able to maintain himself; and
ii)he has not wilfully neglected to provide reasonable assistance to X since he is not of sufficient ability to maintain her.
Further, he argues by reference to s.66K of the Family Law Act1975 (Cth) that by reason of his parlous financial situation he should not be asked to contribute anything to the financial support necessary for the maintenance of X.
At the time the provisional maintenance order was made on 15 August, 2011 X was 17 years old. She turned 18 on (omitted) 2011. The provisional maintenance order is expressed to operate until X turns 21 years of age (ie, (omitted) 2014). However, before this application was heard, she married on (omitted) 2014.
Neither X’s turning 18 years of age, nor her marriage, are of themselves a ground of opposition to the making of the relevant orders in South Africa. Those matters might go to show that “the matter of the Complainant is not true” or that “the Applicant is not without means of support”, but Mr Wageman did not seek to raise these issues in opposition to the order.
However, by Australian law, those matters are both relevant. First, an order for child maintenance is usually only made until the child turns 18 years of age. Orders can be operative thereafter, but different considerations inform the making of the order: ss.66L(1) – 66L(3). Second, the marriage of the person for whose benefit the maintenance is to be paid brings an end to the maintenance liability: s.66V(1) of the Family Law Act.
Neither X’s turning 18 years of age, nor her marriage, attracted any particular submissions from Mr Wageman. The applicant conceded that any order confirming the provisional maintenance order should vary that order by stating explicitly that it ended on (omitted) 2014.
The applicant’s submissions point out that if the proceedings relating to the provisional maintenance order had been heard in Australia the relevant provisions of the Family Law Act would have been applied. Pursuant to s.66G of the Act, the Court may make “such child maintenance order as it thinks proper’’. Section 66H provides that in proceedings for the making of a child maintenance order in relation to a child, the court must:
a)consider the financial support necessary for the maintenance of the child; and
b)determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings.
When considering the financial support necessary for the maintenance of the child, the Court must take into account the matters set out in s.66J of the Act. When determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties, to the proceedings the matters set out in s.66K respectively are relevant.
One question which arises and which was not addressed by either party’s submissions is the relevant point in time at which X’s need for maintenance and Mr Wageman’s capacity to contribute should be assessed. Moreover, the effect of confirmation was not explored. If the South African order is confirmed then prima facie it has effect according to its terms so that a maintenance liability accrues from when it was made. That would create a large lump sum liability for arrears. Alternatively, it might commence to run from the date of confirmation, but matters have moved on so much since that time, that one could not be confident that the order for maintenance remains appropriate having regard to X’s changed circumstances.
The approach of the Judge Dhillon in Canada was to decline to confirm the South African order, but to thereafter order the provision of maintenance at certain rates over the same period that was covered by the order he was asked to confirm. The order clearly had both retrospective and prospective operation and operated to create nearly 12 months of arrears. Although Judge Dhillon declined to confirm the South African order, the transcript for the hearing that is in evidence before me makes it clear that there was no inquiry held into the children’s needs. The court appears to have acted upon the assessment of those needs as reflected in the quantum of the provisional maintenance order. There was some discussion about Mr Wageman’s income, but he did not suggest at anytime that he did not have capacity to meet the maintenance order. The hearing seemed more concerned with making an order that reflected the South African order in Canadian dollars.
The provisional order before Judge Dhillon, and the order before me, does not appear to make provision about the orders earlier in place. They do not expressly discharge them. The provisional orders simply set the rate of maintenance to apply from a particular date. Until confirmation of those orders, does the order that immediately precedes it remain in effect? If so, it would seem that in South Africa at least, arrears continued to accrue since 2011 irrespective of confirmation of the order now before me.
In the material before the South African court, Ms Wageman referred to expenses for X that she had calculated in 2007. Those expenses were R3,542.50. Ms Wageman’s evidence at the 15 August, 2011 hearing included:
I confirm the expenses as such and state categorically that it has increased substantially.
In Ms Wageman’s 2007 material, which was before the Court on 15 August, 2011 she said:
Due to my restricted financial position and the fact that we only rely on one income, the children have to go without many things as a result of their father’s lack of provision. Their needs are much more than what I have claimed! ...
Although the list of income and expenses given to the Court does not indicate a deficit, I more often than not have a deficit ...
The evidence before the South African court in 2011 was that X had enrolled at University commencing in 2012. Ms Wageman’s evidence was that X’s monthly expenses would be about R8,735. In an updated affidavit, Ms Wageman estimated X’s expenses at about R88,290 for the 2012 year (about R7,357 or $857 per month) and R111,916 for the 2013 year (about R9,326 or $1,023 per month).
The applicant invited me, for the purposes of comparison, to look at the Child Support (Assessment) Act 1989 (Cth), Sch 1 “Costs of the Children” Table for 2012 (for parents with a combined income of between about $32,000 and $64,000pa) so as to conduct something of a check of the expenses being claimed for X. In my view, however, that is not very useful. Apart from anything else, the table is designed for Australia and the economic conditions prevailing here. How it compares to South Africa is mere speculation on my part.
There are no express findings by the South African court about X’s financial needs. I can assume, I think, that the Court determined that X had financial needs, but the amount of those needs so found is unclear.
Ms Wageman’s income is also a little unclear. In her statement to the court for the purposes of the 2007 proceedings, she summarised her earning (presumably on a monthly basis although that is not expressly stated) as:
Salary R9 264=53
Overtime R1290=72
(employer omitted) R1200=00
Income of (omitted) R3000=00
Total R14 755=25
In her material for the 2011 hearing, Ms Wageman said that her income had increased “slightly” and she referred to a document which appears to be a pay slip from her employer. Again, although it is unclear, it appears that the amounts dealt with in the pay slip are monthly amounts. The pay slip reveals:
Basic salary R18000.00
Night duty allowance R212.40
Night duty allowance R354.00
Night duty allowance R485.60
O/T Public Holiday @ 1.00 R1186.80
Overtime – 0.5 R593.40
Overtime – 0.5 R593.40
Retention Allowance R515.00
Total R21950.60
Ms Wageman swears that she had no ongoing expectation of night duty allowance or overtime. Taking those amounts away, her monthly income at the relevant time appears to be R18,515.00.
Her income in both instances appears to be before tax. In 2007 her total expenses were said to be R14,650.52 of which R7,085.27 she attributed to the children’s needs. By 2011 the children’s expenses had “increased substantially” as I have set out above.
In his Financial Statement filed on 31 July, 2014 Mr Wageman estimates his current gross income at $652.84 per week with expenditure (including tax) of about $475 per week. That leaves a surplus of about $177 per week (or about $676 per month).
Mr Wageman gave some historical evidence about his earnings. He has a tax accountant here in Australia who looks after his tax affairs. She deposed in affidavit for use in these proceedings that Mr Wageman’s income was as follows:
Tax Year (ending 30 June)
Taxable Income
Weekly Income after tax
2011
$29,227.00
$529.09
2012
$29,920.00
$536.37
2013
$13,343.00
$257.00
2014
• Up to and including 08/04/14 -$17,837.96;
• From 09/04/14 - 30/06114 - $14,700.01.
$582.13
Mr Wageman received a tax refund of $7,822.88 sometime after the lodgement of his tax return for the 2011 financial year in September, 2012.
Mr Wageman gives no evidence of his expenses in the relevant years. I am left to infer that his expenses were at least of the level set out in his Financial Statement (less the allowance for tax). Thus, using the figure of $411.00 per week for his expenses (an extremely modest sum) he has modest weekly surpluses of $118.00, $126.00 and $172.00 for the 2011, 2012 and 2014 years respectively. Even factoring in his income tax refund received in September, 2012, he had a weekly loss of perhaps $4.00 per week in 2013.
Mr Wageman gave no evidence about his expenses at any time other than as at the time of the hearing as reflected in his Financial Statement filed by him with leave on the morning of the hearing.
Mr Wageman gives evidence of a number of outstanding liabilities. He has the following loans:
a)commercial rent owed to (omitted) $3,000.00
b)Personal loan from present employer $6,500.00
c)outstanding electricity account $1,000.00
d)Outstanding rent on accommodation $1,080.00
e)Mortgage insurance shortfall $54,000.00
Total $65,580.00
Mr Wageman also claims that he has a debt to (omitted) School incurred by his former partner, but I am not persuaded that he is liable for that sum.
The applicant submits that if the evidence before the South African Court, and by derivation this Court, is accepted, then for the period from 15 August, 2011 until X’s 18th birthday on (omitted) 2011:
a)X was under 18 years of age;
b)the provisional maintenance order amount of R4,800 (or $646) per month is reasonable; and
c)Mr Wageman’s income at the time was about $575 per week, “so there is a reasonable inference that he could afford to contribute to X’s maintenance”.
I accept that is so. On the reasoning I have just set out, from 15 August, 2011 until X’s 18th birthday on (omitted) 2011, Mr Wageman had a surplus of income over his expenses of approximately $122.00 per week (averaging his surpluses for the 2011 and 2012 years) or about $488.00 per month.
The applicant further submits that, after X’s 18th birthday on (omitted) 2011:
a)X had a reasonable, ongoing need for maintenance to enable her to complete her education;
b)The ongoing maintenance of R4,800 per month, indexed at 8% annually, was a reasonable reflection of X’s needs;
c)Mr Wageman’s income is and has been sufficient for him to reasonably contribute to X’s maintenance;
d)It is reasonable in the circumstances for Mr Wageman to pay maintenance past X’s 18th birthday.
I accept those submissions. On the reasoning I have just set out, from 21 November, 2011 Mr Wageman had a surplus of income over his expenses for 2012 and 2014, although just managed to get by in 2013.
Whilst the income of both of the parents was seemingly modest in 2011 where the orders were made, it is inappropriate and inconsistent with the objects of the maintenance legislation in both South Africa and Australia that the burden of meeting X’s expenses should fall to one parent alone.
On the evidence before me, I cannot be satisfied that at the time of the making of the provisional maintenance order:
a)Mr Wageman was not able to maintain himself because clearly he was; and
b)he has not wilfully neglected to provide reasonable assistance to X since he was not of sufficient ability to maintain her. He had capacity to contribute to her maintenance.
Conclusions
I am not satisfied that any ground of opposition that Mr Wageman could have raised in the original proceedings in South Africa has been made out. I am not satisfied that when the orders were made in South Africa, Mr Wageman was not able to maintain himself. Nor am I satisfied that Mr Wageman has not wilfully neglected to provide reasonable assistance to X since he was not of sufficient ability to maintain her. He had some capacity, albeit limited, to contribute to her maintenance. For reasons that are not explained in his evidence or submissions, he has made no contribution since 2011.
The grounds of opposition based on Australia law raised by Mr Wageman have not been made out. However the fact that the provisional maintenance order can now have only retrospective operation is important. A child maintenance order is made with an eye to the future, rarely to the past. Thus, in some cases to recover arrears of child maintenance that were more than twelve months outstanding, relief was denied on the basis that, apart from other matters, the need for maintenance had passed.
There are analogies to be drawn here with such an approach. The confirmation of the order will work to create arrears that will result in a lump sum liability on Mr Wageman’s part. Neither party has attempted to calculate those arrears. Mr Wageman’s unchallenged evidence seems to be that he has no assets or capital sufficient to acquit such a lump sum. He has only debt.
However, the so called “12 month” rule was discussed in detail by Walters FM (as his Honour then was) in Mathieson and Hamilton (1996) FLC ¶98-032. His Honour’s consideration of that rule, and his conclusion that there was, in fact, no such rule, was endorsed by the Full Court of the Family Court of Australia in Wreford and Caley (2010) 43 FamLR 1. Further, to the extent that it ever existed, it has now been abolished by s.106 of the Family Law Act.
Wreford and Caley dealt with an enforcement application in respect of arrears that had accrued over a long period of time and a consequent application by the payer to discharge those arrears. The arrears could be discharged by the Court for “just cause” pursuant to s.66W(2) of the Family Law Act. The primary basis upon which the payer sought discharge of the arrears was that because his financial circumstances were so poor and he could not meet the arrears, he had established “just cause”. Of that circumstance, the Full Court said:
[76] It seems to us that it would be quite contrary to the objects and principles of Part VII – Division 7 for the Court to be able to be satisfied as to just cause merely on evidence as to the parties about their relative current financial circumstances. If that were the case, arguably, an applicant for discharge of arrears could be assured of success simply by divesting themselves of assets and income prior to a hearing.
Whilst I accept that the analogy is imperfect, the approach to the enforcement of arrears and the basis upon which the Court might discharge arrears helps to inform the approach to the task in this case. The fact that confirmation of the provisional order might give rise to arrears is a matter for consideration, but that of itself should not necessarily lead to the conclusion that as a matter of discretion, confirmation should be refused. Further, Mr Wageman’s current poor financial circumstances should not, without more tell against confirmation.
The applicant submits that Mr Wageman has demonstrated no “cause” to discharge the provisional maintenance order and so it should be confirmed. I agree.
I make the orders set out at the commencement of these reasons.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 26 June 2015
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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Res Judicata
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Standing
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