Tobin & Tobin (No 2)

[2024] FedCFamC1F 138

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tobin & Tobin (No 2) [2024] FedCFamC1F 138

File number:

BRC 8879 of 2021

Judgment of:

HOWARD J

Date of judgment:

15 April 2024

Catchwords:

FAMILY LAW – Child support – Where the parties were married in 2005 and separated in 2012 – Where the parties lived in Country B – Where the parties have two children aged 16 and 14 respectively – Where the children now live with the respondent mother in Region C – Where the husband still lives and works as a professional based in Country B – Where a consent order was made in the District Court of Country B in early 2014 relating to the division of the property of the parties to the marriage; the parenting arrangements for the children; and the payment of both spousal maintenance and child maintenance –  Where the Country B Order was registered in Australia in April 2021 – Where the applicant husband fully complied with his obligations for the payments of spousal maintenance and child maintenance pursuant to the Country B Order until December 2020 – Where the applicant husband now seeks to retrospectively discharge the spousal maintenance order – And where the applicant husband also seeks a variation of the child maintenance order (including a retrospective variation of the child maintenance order) – Where there is a “just cause” to discharge the spousal maintenance order (but not retrospectively) – Where the Court is not satisfied that the husband’s circumstances have changed so as to justify a variation of the child maintenance order.

Legislation:

Child Support (Registration and Collection) Act 1988 s 10

Family Law Act1975 (Cth) Pt VII and Pt VIII, ss 66, 72, 74, 75, 81, 83

Family Law Regulations 1984 (Cth) regulations 36, 38, 38A

Cases cited:

Astbury & Astbury (1978) FLC 90-494

Lutzke & Lutzke (1979) FLC 90-714

Tobin & Tobin [2022] FedCFamC1F 220

Tallant & Tallant [2015] FamCA 864

Vakil & Vakil (1997) FLC 92-743

Division:

Division 1 First Instance

Number of paragraphs:

127

Date of last submission:

6 September 2023

Date of hearing:

20 and 21 July 2023

Place:

Brisbane

Counsel for the applicant:

Ms Oakley

Solicitor for the applicant:

Daykin Family Law

Solicitor for the respondent:

Litigant in person

ORDERS

BRC 8879 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TOBIN

Applicant

AND:

MS TOBIN

Respondent

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	15 APRIL 2024

THE COURT ORDERS ON A FINAL BASIS THAT:

1.Pursuant to Regulation 36 of the Family Law Regulations 1984 (Cth):

(a)Order 3 of the Order of a Deputy District Judge made early 2014 in Country B be discharged as and from 15 August 2024.

2.The Further Amended Initiating Application filed on 21 July 2023 be otherwise dismissed.

3.This is a Provisional Order pursuant to Regulation 36, 38 and 38A of the Family Law Regulations 1984 (Cth).

4.IT IS DIRECTED THAT the Registrar of this Court shall send to the Secretary within the meaning of Regulation 38A of the Family Law Regulations 1984 (Cth) a sealed and certified copy of:

(a)this Order;

(b)the Reasons for Judgment herein;

(c)the Affidavit of the husband filed on 29 June 2023;

(d)the Further Amended Financial Statement of the husband filed on 29 June 2023;

(e)the Affidavit of the wife filed on 29 June 2023; and

(f)the Financial Statement of the wife filed on 29 June 2023.

5.That all extant applications be otherwise dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tobin & Tobin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HOWARD J

1. The applicant in these proceedings is Mr Tobin (“the husband”). The husband was born in 1970. He is employed as a professional with F Company.

2. The respondent in this case is Ms Tobin (“the wife”). The wife was born in 1973. The wife is employed as a manager by D Pty Ltd.

3. The parties married in 2005 and separated on 15 December 2012. There are two children of the marriage – X (born 2008) and Y (born 2009). The children live with the mother in Region C, Queensland.

4. The husband still lives in Country B. When the parties were still together – they also lived in Country B. The wife returned to Australia with the children in early 2014.

5. The husband has an apartment at Suburb E in Region C which he utilises when he is visiting Australia to spend time with the children.

6. In early 2014 the District Court of Country B made an Order (“the Country B Order”) – with the agreement of the parties. The Country B Order related to the division of the property of the parties to the marriage; the parenting arrangements for the children; and the payment of both spousal maintenance and child maintenance.

7. Between 24 January 2014 and December 2020 the husband complied with his obligations for the payment of spousal maintenance and child maintenance pursuant to the Country B Order.

8. Services Australia[1] registered the Country B Order in April 2021. This occurred on the application of the wife.

   [1] Services Australia is an entity established by s 10 of the Child Support (Registration and Collection) Act 1988.

9. A Departure Prohibition Order was made by the Child Support Registrar on 23 June 2021 preventing the husband from departing Australia. The husband had been attempting to depart Australia to return to his employment as a professional with F Company in Country B. The applicant was able to leave the country in late 2021 having secured a Departure Authorisation Certificate by the payment of $17,307.23.

10. On 8 July 2021 the husband commenced proceedings in Australia seeking to discharge the Country B Order for spousal maintenance[2]. The husband also seeks to discharge arrears of spousal maintenance that had accrued from December 2020. In addition, the husband seeks to vary the Country B Order in respect of child maintenance – along with a discharge of arrears in respect of the child maintenance.

    [2] An unsuccessful mediation took place in March 2021.

11. The wife asks the Court to dismiss the husband’s Application both in relation to spousal maintenance and child maintenance. The current iteration of the Application is the Further Amended Initiating Application filed on the second day of the final hearing (21 July 2023).

12. The proceedings that were originally commenced on 8 July 2021 were commenced in the Federal Circuit Court of Australia (as it was then known). The proceedings were subsequently transferred to this Court.[3]

    [3] Order of Chief Justice Alstergren made on 8 March 2022.

13. The wife applied to have the proceedings dismissed for want of jurisdiction. On 23 March 2022 Strum J dismissed that aspect of the wife’s Application. Strum J found that this Court does have jurisdiction to hear the husband’s Application.[4] The Child Support Registrar made a further Departure Prohibition Order on 13 July 2022. Services Australia demanded that the husband pay a further amount in the sum of $5,832.99 as a security deposit. The husband paid this amount and the Departure Prohibition Order[5] was then revoked.

    [4] Tobin & Tobin [2022] FedCFamC1F 220 (Reasons for Judgment delivered ex-tempore and order made on 23 March 2022 – although the date of the judgment is recorded on the Court record as 28 April 2022.

    [5] Also referred to in some of the evidence as a DPO.

14. The jurisdiction question having been determined by Strum J requires no further mention by the Court. This Court has jurisdiction to determine the Application and the applicable law is the law that is in force in Australia under the Family Law Act 1975 (Cth) (“the Act”).[6]

    [6] Regulation 36(4) of the Family Law Regulations (1984) (Cth).

    SPOUSAL MAINTENANCE

15. The applicant husband seeks to discharge the spousal maintenance Order – and to do so retrospectively. The relevant legislative provision is s 83 of the Act. Section 83 states –

    “(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:

    (a) made by the court; or

    (b) made by another court and registered in the first mentioned court in accordance with the applicable Rules of Court;

    the court may, subject to section 111AA:

    (c) discharge the order if there is any just cause for so doing;

    (d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;

    (e) revive wholly or in part an order suspended under paragraph (d); or

    (f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

    (1A)     The court’s jurisdiction under subsection (1) may be exercised:

    (a) in any case—in proceedings with respect to the maintenance of a party to the marriage; or

    (b) if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or

    (c) if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.

    (2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

    (a) that, since the order was made or last varied:

    (i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);

    (ii) the circumstances of the person liable to make payments under the order have so changed; or

    (iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;

    as to justify its so doing;

    (b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;

    (ba) in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;

    (c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.

    (3)Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first mentioned order is made for the purpose of giving effect to this Part.

    (4)In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

    (5)The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

    (5A)In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:

    (a) the other party; or

    (b) any other person for the benefit of the other party.

    (6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

    (6A)Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second mentioned order since the specified date, being moneys that would not have been required to be paid under the second mentioned order as varied by the first mentioned order, may be recovered in a court having jurisdiction under this Act.

    (6B)Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

    (7)For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.

    (8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.”

16. There is in force an Order (the Country B Order) that relates to the maintenance of one of the parties to the marriage (in this case the respondent wife). That Order was made by the District Court of Country B and has been registered in this Court in accordance with the applicable Rules of Court.

17. This Court has the power to discharge the Country B Order “if there is any just cause for so doing”.

18. Having regard to the written submissions provided on behalf of the applicant husband – it needs to be stated that the husband does not seek to decrease the amount ordered to be paid under the Country B Order – as that concept is described in s 83(1)(f) of the Act. If the husband were asking the Court to vary the Country B Order by decreasing the amount to be paid then this Court would be obligated to have regard to s 83(2) of the Act. The form of the legislation is such that the discharge of an Order has only one criteria. That criteria is contained in s 83(1)(c) – namely this Court may discharge the Order if there is any “just cause” for so doing.

19. Separately, the Parliament has included in the Act s 83(1)(f) and s 83(2) both of which relate to a situation where the Court has been asked to vary the original Order (the Country B Order) – so as to either increase or decrease any amount ordered to be paid by the original Order.

20. The “discharge” of a spousal maintenance order and the “variation” of a spousal maintenance order have been separately and distinctly dealt with by the Parliament in the Act.

21. In deciding whether or not there is any “just cause” for discharging the spousal maintenance order the Court is required to have regard to the provisions of s 72 and s 75 of the Act.[7] Section 72 provides –

    “72  Right of spouse to maintenance

    (1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

    (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

    (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

    (c) for any other adequate reason;

    [7] Note s 83(7) of the Act.

    having regard to any relevant matter referred to in subsection 75(2).

    (2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.”

22. It is submitted on behalf of the applicant husband that the spousal maintenance order should be discharged on the basis that the threshold requirement in s 72 has not been met. It is argued, on behalf of the husband, that the respondent wife does not satisfy the requirement that she “is unable to support herself adequately”. The argument on behalf of the husband is that the wife is able to support herself adequately and hence – this amounts to a “just cause” for the purposes of s 83(1)(c) and, so the argument runs, the Court should exercise its discretion in s 83 of the Act to discharge the spousal maintenance order made in Country B. There is a further aspect to the argument on behalf of the husband which relies upon one of the arguments that underpins family law in Australia, namely, the desirability of having in place orders which finalise the financial relationship between former spouses. As of the date of this judgment, the husband has been paying spousal maintenance to the wife for more than ten years. I will return to this aspect of the husband’s case later in these Reasons for Judgment.

23. It is convenient at this point for the Court to consider the matters referred to in s 75(2) of the Act.

    SECTION 75(2)(A): THE AGE AND STATE OF HEALTH OF EACH OF THE PARTIES

24. Both parties are in good health. The husband is aged 53 years and the wife is aged 51 years.

    SECTION 75(2)(B): THE INCOME, PROPERTY AND FINANCIAL RESOURCES OF EACH OF THE PARTIES AND THE PHYSICAL AND MENTAL CAPACITY OF EACH OF THEM FOR APPROPRIATE GAINFUL EMPLOYMENT

25. The husband is a professional with F Company. He commenced working for F Company in 2003. Trying to ascertain the total of the husband’s income from his employment has been a difficult task. That is because the total of the husband’s income comprises his salary plus numerous other valuable entitlements. The husband has not provided evidence in chief that allows the Court to easily ascertain his salary and other entitlements. At the commencement of the final hearing on 20 July 2023 counsel for the applicant husband (Ms Oakley) informed the Court that the matter involved “some complexities”. The view that I have formed is that the matter has only involved “some complexities” because of the manner in which the husband’s evidence has been presented to the Court. I have the distinct impression that the husband was left to his own devices in the preparation of his trial affidavit. The husband should have provided a table containing the necessary information to enable the Court to quickly and easily ascertain his salary and entitlements. Instead, the Court has been presented with the husband’s own explanation of the byzantine system of company salary packages – being a mixture of salary and numerous other entitlements. The onus was on the husband to provide to the Court (and to the wife) evidence in an easily understood format – especially if he wanted the Court to conclude that his salary and entitlements have decreased.

26. I find it extraordinary that, in a case such as this, it has been left up to the self-represented wife to put before the Court the husband’s Country B income tax returns (financial years ended March 2021 and March 2022); the husband’s F Company Pay Advice slips; and the husband’s bank statements. It was only towards the end of the trial (when the husband was being re‑examined) that the husband provided a tax document for the tax year ended 31 March 2023. I have called it a Tax Document because it is not in fact a Tax Return. The document is headed “Tax Return Inquiry” and the subheading is “Taxable Income Details”. I will refer to this as the “Tax Document”. The wife did not get an opportunity to cross examine the husband on the Tax Document. The Tax Document is Exhibit 2. The husband’s counsel was instructed that the document had previously been disclosed. The wife maintained that the document had not been disclosed. The conclusion I have reached is that the wife is likely to be correct. The wife had included in her own affidavit (annexures MT-8 and MT-9) the husband’s Tax Returns for the two years prior to 2023. I am certain that she would have annexed the 2023 Tax Document if it had been disclosed to her. The real question is – why didn’t the husband annex the 2023 Tax Document to his trial affidavit? He confirmed on 21 July 2023 (transcript page 185, lines 19 and 20) that it was the most recent document in relation to his income. Exhibit 2 was only produced to the Court because the Court called for it.

1. The husband drew the Court’s attention to the document called the “Joint Chronology and Agreed Facts”. In relation to the husband’s total income – the contents of the document are unhelpful. I note the following three entries in the “Joint Chronology and Agreed Facts” document:

   “In the calendar year 2020, the Applicant’s basic monthly salary is in the sum of [133,427.00 Country B currency].

   …

   In the calendar year 2021, the Applicant’s basic monthly salary was in the sum of [82,496.00 Country B currency].

   …

   In the calendar year 2022, the Applicant’s basic monthly salary was in the sum of [83,734.00 Country B Currency].”

2. This document indicates that the husband’s basic monthly salary has decreased. But the husband’s “basic monthly salary” is not the full picture. The husband has presented his case in such a way that it is apt to be misleading. To start with, the husband draws the Court’s attention to the information quoted above from the “Joint Chronology and Agreed Facts” document. It is unhelpful to the point of obfuscation for the husband to draw the Court’s attention to his “calendar year” income in the years 2020, 2021 and 2022. The Country B tax year runs from 1 April until 31 March in the following year. The presentation of the husband’s evidence of his total income (comprising his basic monthly salary and his other entitlements) should have been provided to the Court in accordance with the Country B tax years. 

3. The husband’s two Tax Returns for the financial years ended 31 March 2021 and 31 March 2022 can be summarised as follows:

   TABLE 1

(a)
1 April 2020 to 31 March 2021	Salary / Wages	1,365,961 Country B currency
01/04/2020 - 31/30/2021	Allowances	907,016 Country B currency
Total	2,272,977 Country B currency
(b)
1 April 2021 to 31 March 2022	Salary / Wages	1,160,189 Country B currency
01/04/2021 - 31/30/2022	Allowances	816,000 Country B currency
Total	1,976,189 Country B currency

1. The total of the husband’s income (including his salary plus other entitlements) for the tax year ended 31 March 2023 was 2,506,237 Country B currency. This is contained in Exhibit 2. Exhibit 2 requires close consideration and so I have replicated that document here. It states as follows:

   EXHIBIT 2

Tax Return Inquiry
Taxable Income Details		Tax Summary
Tobin, Mr Tobin
ERN:	…52
Report Type:	Annual Return for Employees		Tax Year:	2023
Total Taxable Amount (Country B currency):	2,506,237.00
Salary / Wages
Description	Original Amount		Currency Code	Amount (Country B currency)
Monthly Productivity Pay	500,069.40		Country B currency	500,069.40
Positioning Allowance	18,842.00		Country B currency	18,842.00
Child Education Allowance	120,000.00		Country B currency	120,000.00
Monthly Allowance	102,000.00		Country B currency	102,000.00
Basic Monthly Salary	1,013,100.00		Country B currency	1,013,100.00
Annual Leave EO Payment	15,491.00		Country B currency	15,491.00
EO Sickness Payment	5,570.80		Country B currency	5,570.80
Holiday Pay Adjustment	10,285.30		Country B currency	10,285.30
Quarantine Allowance	15,400.00		Country B currency	15,400.00
Annual Leave EO Payment	226.40		Country B currency	226.40
Amount:	1,800,984.00
Bonus
Description	Original Amount		Currency Code	Amount (Country B currency)
EX-Gratia Payment	112,995.10		Country B currency	112,995.10
Amount:	112,995.10
Allowances
Description	Original Amount		Currency Code	Amount (Country B currency)
Cash Allowance from O Bank	592,258.07		Country B currency	592,258.07
Amount:	592,258.07

1. A consideration of the husband’s Pay Advice slips from F Company makes it clear that his total income fluctuates from month to month. Hence the need for the total income to be averaged out over the course of a year. Exhibit 2 reveals that the average weekly income (salary plus other entitlements) for the husband in the financial year ended 31 March 2023 was $48,196 Country B currency. I have calculated this sum by dividing 2,506,237 by 52. This equates to approximately AUD$9,634 per week. In calculating currency conversions Country B currency I have, for convenience, used the exchange rate of AUD$1 equals 5 Country B currency.[8] The currency conversions contained in these Reasons for Judgment are approximate only – but I have come to the conclusion that they are sufficient to enable the Court to decide the matters in issue.

   [8] Obviously currency conversion rates are subject to fluctuation. This is the approximate conversion rate used by the wife in her written submissions and I consider it to be appropriate. I have had regard to the website of the Reserve Bank of Australia in relation to this issue.

2. The Court has been provided (by the wife) with copies of the husband’s F Company Pay Advice slips for the pay periods: 1 April 2023 to 30 April 2023; and 1 May 2023 to 31 May 2023. They are the only complete Pay Advice slips in evidence – following the end of the Country B Tax Year on 31 March 2023. They are to be found from pages 187 to 189 in the annexures to the wife’s trial affidavit. For each monthly pay period the husband received a Pay Advice slip which included his “Regular Pay” and a second Pay Advice slip which included his “Secondary Pay”. There is contained in the wife’s annexures a “Regular Pay” slip for the month of June 2023 – but no “Secondary Pay” slip. Accordingly, I will not refer to the June Pay Advice slip. The April and May Pay Advice slips for 2023 are summarised in Table 2:

   TABLE 2

April 2023
Regular Pay:	126,730 Country B currency
Secondary Pay:	8,230 Country B currency
Total	134,960 Country B currency
May 2023
Regular Pay:	130,249 Country B currency
Secondary Pay:	25,786 Country B currency
Total	156,035 Country B currency

1. In the husband’s Further Amended Financial Statement filed on 29 June 2023 (“the Financial Statement” or “the husband’s Financial Statement”) the husband states at paragraph 9 his “Total Salary or Wages” before tax as AUD$3,111 per week. At paragraph 14 of the husband’s Financial Statement he has included the sum of AUD$2,063 as the total of his “Benefits from his employment/business”.

2. In the “Part B Financial summary” of his Financial Statement the husband has stated the total amount of AUD$5,174 as his “total average weekly income”. This is the total of the two amounts contained in paragraphs 9 and 14 of his Financial Statement. The view that I have formed is that this statement is not correct.

3. My analysis of the independent evidence, namely the husband’s 2023 tax document (Exhibit 2) and the two complete Pay Advice slips for April and May 2023, reveals that the total weekly income of the husband should be expressed as follows:

   TABLE 3

Country B currency $	AUD$
Tax Document for the year ended 31 March 2023	48,196	9,639
Pay Advice slip April 2023	31,490	6,298
Pay Advice slip May 2023	35,233	7,046[9]

[9] These weekly amounts have been calculated by reference to the Pay Advice slips and they are approximate amounts.

1. All of these figures are significantly higher than the amount the husband included in the “Part B Financial summary” of his Financial Statement. It is only the weekly amount of income calculated from and contained in Exhibit 2 (AUD$9,639) which is reliable. There are two reasons for this. The first is the husband’s own evidence – where he confirms that Exhibit 2 is the most recent document available with respect to his income.[10] The second reason is that a serious injustice could be caused to the wife and to the children if the Court (or anyone else) pays to much attention to evidence of “weekly” or “monthly” amounts of income – contained, for instance, in the Pay Advice slips. The fluctuations in income are too great from week to week (or month to month) because of the nature of the husband’s work and the unusual structure of his other entitlements – namely those which are in addition to his basic monthly salary. Table 3 shows how important it is to review the husband’s income on a year by year basis. The point to note from Table 3 is that the husband has significantly understated his weekly income amount in his Financial Statement. My review of the documentary evidence has led me to this conclusion. In particular the 2023 Tax Document (Exhibit 2) and his recent Pay Advice slips.

   [10] Transcript 21 July 2023, page 185, lines 19-20.

2. I have had careful regard to all of the husband’s evidence contained in his trial affidavit. I will refer to some more of that evidence here below.

3. In his trial affidavit (filed 29 June 2023) the husband states in paragraph 11:

   “11. My employment contract with [F Company] was permanently changed in […] 2021 from [a full contract] to local terms, with a two year transition for housing allowance going from $68,000 [Country B currency] (finished on 1 January 2023) to [34,000 Country B currency] (from 1 January 2023), and retirement at age 55. On 1 May 2023, my employment contract with [F Company] again changed with my retirement age now being 65 years.”

4. Paragraph 11 contains “[company] speak” without shedding any light on the true situation. In fact the evidence contained in paragraph 11 poses more questions than it answers. Reference is made in that paragraph to a “Housing Allowance” for the husband. For some reason (unexplained by the husband) the “Housing Allowance” is not included in his Taxable Income Details in Exhibit 2. It may be described as something else – but the husband has not explained it and that does not help his case.

5. In paragraph 24 of the husband’s trial affidavit there is a reference (in paragraph 24(d)) to a contribution by F Company to the husband’s “Retirement Fund”. It is said that an amount is paid to the “[G Bank – F Company Retirement Fund]”. The husband can only access that fund on retirement or when he leaves F Company. I note that the husband’s retirement age from F Company has gone up from age 55 to age 65. The contribution by his employer to the “Retirement Fund” (at the time that the Country B Order was made in early 2014) was 72,000 Country B currency per annum. There is no mention in Exhibit 2 of the “Retirement Fund Contribution” or the “[F Company Retirement Fund]”. This leads the Court to conclude that the “Total Taxable Amount” contained in Exhibit 2 of 2,506,237 Country B currency does not include any retirement fund contribution paid by F Company on behalf of the husband. Contributions by his employer to his retirement fund must be in addition to his total taxable income contained in Exhibit 2. I do note that in his Financial Statement the husband includes as a financial resource an amount in the F Company Retirement Fund in the sum of AUD$926,765.[11]

   [11] In relation to the husband’s Financial Statement filed 29 June 2023 – I have worked on the basis that all the amounts are in Australian dollars. There is nothing to suggest otherwise.

6. The husband provides evidence in relation to his Productivity Pay. There is a Productivity Pay component in Exhibit 2 in the amount of 500,069 Country B currency (AUD$100,000) for the 2023 Tax Year. The husband says (in paragraph 39 of his trial affidavit) that unless he is rostered to work more than 38.5 hours per month – he does not receive his “Monthly Productivity Pay”. The husband says in the last sentence of paragraph 39 that, in those circumstances, he is “only paid the basic monthly salary”. He does not, however, explain whether he receives all of the other entitlements listed in Exhibit 2. In the absence of some evidence from the husband to explain the situation the inference which is open to the Court and which I draw is that, in such circumstances, the husband does receive the other entitlements referred to in Exhibit 2.

7. I note that in paragraph 41 of his trial affidavit the husband states: -

   “41. The minimum monthly block hours depend on the […], e.g., […] etc. I […]. The minimum monthly block hours from 1 January 2023 […] is 38.5 hours a month. Between 15 November 2021 to July 2023 […] I have averaged 38.7 hours each month.”

8. In paragraph 46 of the husband’s affidavit he states that his basic monthly salary dropped to 82,496 Country B currency from 1 January 2021. He did not get any Productivity Pay that year – presumably because of the lack of work on account of the global pandemic. But in that year he did receive a Housing Assistance Allowance of 816,000 Country B currency paid directly to the H Bank. This is a payment to the husband’s mortgagee in respect of the husband’s Country B property. This is an amount equal to approximately AUD$163,000. The husband has not explained exactly what happened. On the available evidence, the inference that is open to the Court, and the inference that I draw, is that the husband’s employer, being unable to pay the husband his Productivity Pay (because of the pandemic) was compensating the husband in other ways – by increasing his Housing Assistance Allowance.

9. In 2022 the husband received 433,178 Country B currency total Productivity Pay (paragraph 47 of the husband’s affidavit). This is similar to the Productivity Pay he received in 2023 (500,069 Country B currency – Exhibit 2).

10. In paragraph 48 the husband says that he received Productivity Pay from 1 January 2023 to 13 June 2023 in the total sum of 147,854 Country B currency .

11. In paragraph 48 the husband also complains that his Housing Assistance Allowance reduced by 50 per cent to 34,000 Country B currency per month. But I do note that, according to paragraph 48, he was again receiving Productivity Pay in 2023. There seems to be a good deal of swings and roundabouts in the husband’s remuneration package. When the Productivity Pay goes down his employer appears to compensate him with higher Housing Assistance Allowances. The husband has not put into evidence a copy of any relevant employment contract. My attention has not been drawn to any such document.

12. In paragraph 50 of his trial affidavit the husband states:

    “50. Notwithstanding the decrease in my pay, I continued to pay the ordered monthly periodic maintenance obligation until December 2020. I financed the monthly shortfall from my savings.”

13. It will be noted from my analysis of the evidence that even if the husband’s basic monthly salary did decrease – he has received an increase in other allowances such as the Housing Assistance Allowance. Or he has received a higher amount in respect of Productivity Pay. From December 2020 the husband unilaterally reduced the amounts he paid in respect of spousal maintenance and child maintenance. There is no explanation from the husband as to why he could not redraw on his mortgage to ensure that he could keep paying his obligations pursuant to the Country B Order. The husband ought to have kept paying the ordered amounts of maintenance until the matter was determined by a Court.

14. Between paragraphs 52 and 54 of the husband’s affidavit – the husband complains long and loud about his tax liabilities. I take judicial notice of the fact that the rate of income tax payable in Country B was and continues to be significantly lower than the rate of income tax payable by Australian taxpayers. I am talking here in relation to taxpayers in Australia with an income similar to that of the husband’s income. But that is more of an interesting aside. The reality is that every law-abiding citizen (whether in Australia or Country B) is obligated to pay their fair share of tax. These are all matters that the husband would have known from the date he agreed to the Consent Order in Country B (January 2014).

15. In paragraph 60 of his trial affidavit the husband, again, refers only to his basic monthly salary and ignores his other entitlements.

16. Paragraph 61 of the husband’s trial affidavit states: –

    “61. Under the [Country B] Order, I am currently obligated to pay the sum of AUD$7,508.92 in each month. I can no longer afford to do so.”

17. The husband says that he can no longer afford to pay his spousal maintenance and child maintenance obligations which he calculates at AUD$7,508.92 per month. By reference to Exhibit 2 – the husband’s Total Taxable Income for 2023 was 2,506,237 Country B Currency. Earlier in these Reasons for Judgment I calculated the weekly amount of the husband’s income by reference to Exhibit 2 as AUD$9,634. This equates to approximately AUD$41,770 per month. I note that the evidence I have summarised in Table 3 indicates that his weekly income in April and May 2023 was lower than his weekly income for the Country B tax year ended 31 March 2023 – but I have already highlighted the dangers of concentrating attention on the week-by-week income in the absence of a full year’s overview.

18. The evidence contained in paragraph 61 of the husband’s trial affidavit and the evidence contained in Exhibit 2 would indicate to the Court that the husband has more than sufficient income to pay his current obligations pursuant to the Country B Orders – both in relation to spousal maintenance and child maintenance. In paragraph 50 of his affidavit the husband states that he continued to pay his maintenance obligations pursuant to the Country B Order until December 2020. In December 2020 or January 2021 the husband unilaterally and without any legal entitlement to do so, decreased the amount of periodic maintenance he paid in respect of both the spousal maintenance and the child maintenance. The evidence does show that, even if his basic monthly salary did decrease – he had other allowances that formed part of his total income. In the taxation year that ran from 1 March 2021 to 31 March 2022 the husband received 816,000 Country B currency Housing Assistance Allowance. Obviously, given the great increase in that tax year in the amount of the husband’s Housing Assistance Allowance – this must have enabled the husband to utilise his other income in other areas – away from his financial obligations to his mortgagee. The husband has not addressed this aspect in his evidence. I have also noted that there is no evidence relating to any attempt to redraw on his mortgage. He seeks to concentrate the Court’s attention only on his “basic monthly salary”.

    THE HUSBAND’S PROPERTY AND FINANCIAL RESOURCES

19. According to his Financial Statement the husband owns a property in Country B at J Street, Town K. The husband also owns a property at L Street, Suburb E, Queensland. He estimates the value of the Country B property at AUD$1,060,120 and the value of the Australian property at AUD$450,000 (totalling AUD$1,510,120).

20. The husband seems to have two mortgages registered against the Country B property (note paragraph 46 and 47 of his Financial Statement). There is a mortgage with H Bank (No. …0) in the amount of AUD$157,491. There is another mortgage granted to H Bank (No. …01) in the amount of AUD$141,371. The Country B mortgages total AUD$298,862. The amount of the husband’s mortgage on the Australian property is estimated at AUD$231,864 (paragraph 47 of the husband’s Financial Statement). The total of the husband’s mortgages is AUD$530,726. I note that he has some other credit card debts etc.

21. The net value of the husband’s real estate assets is approximately AUD$979,394.

22. The husband also has a retirement fund amount in the F Company Retirement Fund in the amount of AUD$926,765 (paragraph 57 of his Financial Statement).

    THE WIFE

23. The respondent wife’s income is $1,153 per week (before tax). She works in part-time employment for a business owned by her father. The business is situated on the Region C – where the wife lives with the two children.

24. The husband has provided evidence as to the wife’s history of paid employment. References to the wife’s salary in 2004, 2005, 2006, 2007, 2008 and 2009 are of very little assistance to the Court. The other evidence provided by the husband in relation to the wife’s previous salary is only of limited assistance to the Court. The children were born in 2008 and in 2009 respectively. The respondent wife has not worked in a full-time job since early 2012. In 2014 and 2015 (this is post separation) the wife worked in part-time employment. The wife’s employment history was then suspended until early 2023 when the wife commenced part-time employment earning the sum just stated.

1. I accept that there is a history of highly paid employment for the respondent wife. But that was many years ago. The most recent highly paid work by the wife occurred approximately 12 years ago. It is her current employment, her current salary and her current circumstances upon which I will be placing more weight.

2. The wife lives in a property at M Street, Suburb N, Qld. That property is unencumbered. The wife only has modest savings and relatively modest debts. Her debts total $69,221 (paragraph 55 of the wife’s Financial Statement filed 29 June 2023). The wife owns a motor vehicle. The wife does have the care and control of the two children of the marriage – neither of whom have obtained the age of 18 years. The wife is primarily responsible for all of the parenting duties relating to the two children. I accept that the husband takes care of such duties when the children are staying with him on his visits to Australia.  

   THE WIFE’S PROPERTY AND FINANCIAL RESOURCES

3. The estimated value of the wife’s property at Suburb N is AUD$995,000 (paragraph 35 of the wife’s Financial Statement filed 29 June 2023). Whilst this property is unencumbered the wife does have a personal loan from two family members and the amount owed to those family members is AUD$67,000. The wife owes another debt to an orthodontist in respect of Y’s braces (AUD$1,721).

4. The wife has superannuation in the amount of AUD$48,000 (paragraph 45 of the wife’s Financial Statement).

   SECTION 75(2)(C): WHETHER EITHER PARTY HAS THE CARE OF CONTROL OF A CHILD OF THE MARRIAGE WHO HAS NOT ATTAINED THE AGE OF 18 YEARS

5. As noted, the children live at the Region C with the mother. The children spend time with the husband when he visits Australia. I accept the mother’s evidence that she is responsible on a day-to-day basis for the care, control and welfare of the two teenage children.

   SECTION 75(2)(D): COMMITMENTS OF EACH OF THE PARTIES THAT ARE NECESSARY TO ENABLE THE PARTY TO SUPPORT:

   (I) HIMSELF OR HERSELF; AND

   (II) A CHILD OR ANOTHER PERSON THAT THE PARTY HAS A DUTY TO MAINTAIN

6. According to the evidence of the husband (paragraph 31 of the husband’s trial affidavit) the husband is supposed to be paying both child and spousal maintenance in accordance with the Country B Order as follows:

   (a)AUD$2,502 per month for X;

   (b)AUD$2,502 per month for Y; and

   (c)AUD$2,502 for the wife.

7. I have considered all of the evidence relating to the other commitments of the parties as provided by the parties in their respective Financial Statements and affidavits. I note the husband accepted that there had been a certain amount of double dipping in relation to his own expenses. The view that I have formed is that the balance of the expenses of the parties as they have outlined them are reasonable. I will comment further on this aspect of the evidence later in these Reasons for Judgment.

   SECTION 75(2)(E)

8. Neither party has the responsibility to support any other person – except for the children of the marriage.

   SECTION 75(2)(F)

9. Neither party is eligible for a pension or benefit as contemplated in this subsection.

   SECTION 75(2)(G)

10. I have taken into account what would be a reasonable standard of living for the parties in this case. I do not consider it necessary to make any further comment in this regard.

    SECTION 75(2)(H)

11. It has been many years since the wife was engaged in full time employment. The wife is currently only engaged in part time employment and I apprehend that she has a benevolent employer – namely her father. In my view, in the event that the Court is satisfied that there is a “just cause” to terminate the spousal maintenance order, some period of time should be allowed to the wife so that she has an opportunity to search for and obtain employment with a remuneration that will enable her to adequately support herself in the context of her family’s household.

    SECTION 75(2)(J)

12. There is no doubt that the wife made (at the very least) indirect contributions to the income, earning capacity, property and financial resources of the husband. When the parties were together the wife took care of the children and this enabled the husband to pursue his career as a transport professional.

    SECTION 75(2)(K)

13. The parties were married in 2005 and separated on 15 December 2012. The children were born in 2008 and 2009 respectively. The length of the marriage and the role played by the wife as the primary carer for the two children did impact her earning capacity. This inference is available on the evidence and I draw this inference. And this was especially so after the wife returned to Australia in 2014 when she became not only the primary carer for the children but the sole carer for the children. At that stage the children were only 5 years old and 6 years old.

    SECTION 75(2)(L)

14. I note that the wife would prefer to continue in her role as a parent. However, noting the age of the children, I am of the view that it will be possible for the wife to return to full time employment and still continue to act in her role as a parent. I will return to this later.

    SECTION 75(2)(NA)

15. The husband paid child maintenance in accordance with the Country B Order from 24 January 2014 until December 2020. Without any legal justification the husband unilaterally decreased the amount of child maintenance that he was obligated to pay pursuant to the Country B Order. I will also return to this point later in these Reasons.

16. I do not consider it necessary to make any further specific mention of any of the other subsections in s 75(2). I have taken all of the subsections into account.

    CONCLUSION IN RELATION TO WHETHER OR NOT THERE IS A “JUST CAUSE” FOR DISCHARGING THE COUNTRY B ORDER IN RELATION TO SPOUSAL MAINTENANCE

17. The husband first argues that, as at the date of the hearing, the Court would be satisfied that there is a “just cause” for the spousal maintenance order to be discharged under s 83(1)(c). In this regard I note the written submissions on behalf of the husband and in particular I note paragraphs 29 – 50. In this part of his written submissions the husband relies upon the argument that the spousal maintenance order should be discharged on the basis that the threshold requirement in s 72 is not met, in that the wife does not satisfy the requirement that she is “unable to support herself adequately”. The Court has before it an application brought by the husband and the husband seeks a discharge of the Country B Order so far as it relates to spousal maintenance. The discharge is sought because, it is said, there is a “just cause” for the discharge. It is the husband who has brought this application and the onus is upon the husband to satisfy the Court or to persuade the Court that there is a “just cause” (Astbury & Astbury (1978) FLC 90-494 at page 77,562). It has to be kept in mind that the Court has a discretion as to whether or not the Country B spousal maintenance order should be discharged. Section 83(1) of the Act states that the Court “may … (c) discharge the order if there is any just cause for so doing”.

18. As I have pointed out previously in these Reasons, the Court, in exercising its discretion pursuant to s 83(1)(c), is required to “have regard to the provisions of s 72 and s 75” of the Act (note s 83(7)). Having regard to sections 72 and 75 forms part of the process undertaken by the Court in deciding whether or not to exercise the discretion. I note what was said by the Full Court in Vakil & Vakil (1997) FLC 92-743 at page 84,018 and also in Lutzke & Lutzke (1979) FLC 90-714 (“Lutzke”) at page 78,832. The words “just cause” – “must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance”.[12] This includes, for example, section 81. I will return to this aspect later.

    [12] See Lutzke at page 78,832 per Lindenmayer J.

19. The husband submits that the Court should conclude that the spousal maintenance order should be discharged and such discharge should operate retrospectively from December 2020. From that time the husband says it can be shown that the wife would have failed the threshold test in s 72(1) because she would not have been able to demonstrate that she was “unable to support herself adequately”. I am not convinced by this argument on behalf of the husband. There is not sufficient evidence for the Court to conclude that, as at December 2020, the wife was in a position to support herself adequately. There is no evidence of precisely what the wife was or was not doing at that time. I do not know precisely what commitments the wife had in respect of the raising of the children at that time – although there is evidence (in paragraph 43 of the wife’s affidavit, which I accept) to the effect that her duties in caring for the children were even more onerous. I do not know what time the wife had available to her (from December 2020) to devote to fulltime employment or any employment. There is no evidence in relation to whether there were suitable jobs available to the wife – within any area of her (previous) expertise or for which she was suitably qualified. Furthermore, I find it extraordinary that the husband would submit that he was disadvantaged because of the Covid-19 global pandemic – yet, he maintains that from (approximately) January 2021 when the pandemic was still upon us, the wife ought to have been able to get cracking and obtain suitable employment and earn an income to support herself adequately – keeping in mind that the wife had the primary care of the two children of the marriage during this time. Further, there is no evidence in relation to the health of the wife at that time or whether the wife was responsible for the care of any other person (in addition to the children for instance). The wife was not cross examined at the trial. This argument on behalf of the husband is nothing more than conjecture. I am far from convinced of the correctness of the husband’s submissions in this regard.

20. It will be apparent that, during this period of time between December 2020 and the time of the trial in July 2023 – that I am not convinced that the husband was not reasonably able to pay to the wife maintenance. This is one of the first matters for consideration is s 72(1). It will be seen from the Reasons I have provided already in this judgment that I do not accept the husband’s case that his income dropped to such an extent that he ought not be liable (from December 2020) to continue to pay maintenance to his wife in accordance with the Country B Order.

21. Furthermore, I am not convinced by the arguments of the husband that the wife would fail the threshold test as at the date of the final hearing (or at an earlier time in 2023). The wife has not received a substantial income since 2012. The husband complied fully with his obligations pursuant to the Country B Order between January 2014 and December 2020. For 6 years the wife was entitled to and did in fact structure her life and living arrangements on the basis of the payment of spousal maintenance pursuant to the Country B Order. Individuals are entitled to structure their lives based upon their own particular circumstances. The wife had the benefit of the Country B Order. The fact that the wife may have performed some part time work since 2012 is not a sufficient reason for the Court to conclude that the wife would fail the threshold test in s 72(1) as at the date of the final hearing. The fact that the wife had the capacity (from the beginning of 2023) to earn an income of approximately AUD$1,153 per week in a part time role employed by her father – again, is not a sufficient reason for the Court to conclude that the wife would fail the threshold test in s 72(1). It cannot be said that the wife obtained this employment on the open labour market and on a level playing field with other suitably qualified candidates. If the wife had been cross examined at the final hearing the Court may now be in a position to draw different conclusions and inferences. For instance, I am not prepared to conclude that the expenditure in Part N of the wife’s Financial Statement is unreasonable. In the written submissions of the husband complaint is made in relation to three (in particular) entries in the wife’s Financial Statement (Part N).[13] In the wife’s Financial Statement (filed 29 June 2023) she has, for herself, provided a weekly total of her own expenses in the sum of $1,025. In the husband’s Financial Statement he includes in Part N (paragraph 60) – a total amount of weekly expenses for himself of $1,624. In that part of his Financial Statement – the husband was not required to and did not include any amount that he pays to the wife or the children in respect of spousal maintenance or child maintenance. The husband’s weekly total is approximately AUD$600 higher than the wife’s weekly total and yet the husband criticised the wife’s expenditure in his written submissions.

    [13] See paragraph 36 of the written submissions on behalf of the applicant husband filed 23 August 2023.

22. The wife includes an amount per week for herself of $150 for entertainment and hobbies. The husband, in his Financial Statement, includes for himself the sum of $160 for entertainment and hobbies. And yet, in paragraph 36 of his written submissions the husband specifically criticises the wife for providing an unreasonably high estimate.

23. There is no merit whatsoever in the husband’s criticisms of the wife in relation to her average weekly expenses as provided by her in paragraph 60 of Part N of her Financial Statement. It must be kept in mind, there was no cross examination of the wife in relation to that document. Her evidence was unchallenged. The total of the wife’s expenses for the week for herself and the children in Part N is AUD$2,926. Her additional expenses appear in Part G and bring her total personal expenditure per week to AUD$3,532. The total amount for the year is AUD$183,664. This evidence of the wife in her Financial Statement was not challenged. I accept her evidence contained in that sworn document. The wife’s current salary from her employment with her husband is AUD$1,153 per week before tax. In addition, the wife receives $124 per week from the family tax benefit Part A and B from the Australian Commonwealth Government. Further, the wife receives each week from the husband AUD$624 as child maintenance. She is supposed to receive AUD$1,500 per week from the husband as child maintenance. The wife receives AUD$312 per week as spousal maintenance from the husband. She is supposed to receive from the husband AUD$750 per week.

24. The total average weekly income of the wife (written in Part B of her Financial Statement) is AUD$2,213. There is a shortfall each week in the amount of AUD$1,319.

25. Ordinarily, one would expect to see in any case where a question of maintenance arises cross examination of the person to whom maintenance is paid (or who is applying for maintenance) with suggestions in relation to possible employment opportunities – including available jobs in the area where that person lives. The wife has not received a substantial income from employment for 12 years. It is the husband who is applying for the discharge of a maintenance order. The Court does not know the availability of jobs in the general location where the wife lives with the children. The Court does not know if there are jobs available for which the wife might be suitably qualified. The Court does not know if there are suitable jobs with hours flexible enough for the wife to continue in her role as the primary carer for the two teenage children. There is no evidence of these matters – whether in December 2020 or at the time of the trial in July 2023.

26. Further, I note the evidence of the wife contained in her trial affidavit from paragraph 43 – 48. At that part of her evidence the wife states –

    “My Care of the Children and Role as Homemaker

    43. I undertake almost all the responsibilities for the day-to-day care of the Children as well as their health, education, sporting, and social activities, including: -

    (a) arranging and attending all medical, dental, orthodontic, and other appointments for the Children;

    (b) assisting the Children with their homework where possible;

    (c) attending school events such as parent teacher interview, concerts, sports carnivals, musicals, fairs etc;

    (d) attending school sporting events for the Children as well as collecting them from after school and weekend training and competitions etc;

    (e) until last year I was also taking them to daily [sport] training, including early mornings and afternoons, weekend competitions as well as state and national competitions;

    (f) until last year I was also taking [Y] to [extracurricular lessons] and picking him up as well as attending concerts and taking him to [events];

    (g) co-ordinating and purchasing all uniforms, booklists, equipment and other items needed for their education and sporting commitments;

    (h) arranging birthday parties and activities for the children;

    (i) transporting the children to social engagements;

    (j) I attend to the running of our house including:

    (i) cleaning our house by vacuuming, mopping, dusting, sorting, cleaning the bedrooms and bathrooms and the kitchen;

    (ii) doing all of our cooking ;

    (iii) doing the washing and ironing;

    (iv) grocery shopping;

    (v) administrative tasks such as paying bills etc.

    44. During COVID lock down periods I was responsible for home-schooling the children as well as continuing with their sporting and fitness activities as best I could.

    45. In 2021 and 2022 the children had COVID, twice each, at separate times and we were all required to isolate. We have also, between us, suffered with flu and other illnesses which has prevented them from attending school. When the children are unwell, they remain in my care, hence there are times when I am unable to work as I need to care for them.

    46. [X] has spent the following periods in hospital:

    (a) [mid-]2021 to [late] 2021 ;

    (b) [early] 2021 ;

    (c) [late] 2021 ;

    (d) [early] 2023 (attended A&E).

    47. In terms of family support, my father is 85 and not in good health […] so my mother is busy taking care of him and their household, and my brother has his own business and his own busy family to take care of. I do not rely on or have much assistance or support from my family with the care of the Children. [Mr Tobin's] parents and sister live in Melbourne. They do not provide any support for the Children and they last saw the Children for a few hours in 2021.

    48. I did not have any outside or domestic I cleaning help until I started working this year.”

27. This evidence from the wife was not challenged. I accept this evidence of the wife. The questions of the wife’s ability to obtain employment to support herself adequately must be looked at in light of the wife’s role as the primary carer for the two teenage children. There are many calls on a person’s time when they are a sole parent caring for two teenage children. In addition, I note that the wife does not have much assistance from her family in relation to the care of the children. The wife explains the reasons for this in paragraph 47 of her affidavit.

28. Having regard to the manner in which the case was conducted by the husband it has the left the Court in a position where the Court is not able to make the kinds of findings it would have to make to come to a conclusion that, as at the date of the final hearing, the wife would have been able to obtain suitable employment so that she would have been able to support herself adequately. There is simply not sufficient evidence for the Court to draw the inferences and make the findings that the husband seeks.

29. In addition, it will be apparent from the Reasons for Judgment stated earlier herein that I am not satisfied that the husband’s income has reduced to such an extent that it could be concluded that he was no longer reasonably able to pay spousal maintenance to the wife. To put it another way, I am in a position to make a finding that the evidence does reveal that the husband, at all material times, has been in a strong enough financial position for it to be said that he was reasonably able to maintain the wife. This is one of the requirements of s 72(1) of the Act.

1. The husband’s primary arguments are that the Court should conclude that the wife has (from December 2020 and at the time of the trial) been able to support herself adequately. He also maintains that, since December 2020 his circumstances have changed significantly and he cannot afford to pay spousal maintenance to the wife in accordance with the Country B Order. For the Reasons stated I have rejected both of those arguments. On the basis of those arguments the Court has not been persuaded that there is a “just cause” for discharging the spousal maintenance order.

2. I would point out (for completeness) that if the husband had argued for a decrease in the amount of spousal maintenance payable to the wife (under s 83(1)(f) of the Act) – which he has not – I would, in any event, have rejected that argument and I would rely upon the Reasons that I have already provided herein.

   ONE FURTHER IMPORTANT MATTER IN RELATION TO THE FUTURE PAYMENT OF SPOUSAL MAINTENANCE  

3. But that is not the end of the matter in relation to s 83(1)(c) of the Act. The husband has paid spousal maintenance to the wife since January 2014. One aspect of the husband’s case does have merit. The husband has paid spousal maintenance for ten years. The first seven years he complied with the Country B Order. From December 2020 he paid a reduced amount. The payment of spousal maintenance over the course of a ten year period is extremely unusual in Australia. The wife in her submissions maintained that she took a lower property settlement on the basis that she would receive spousal maintenance. My attention was not drawn to any evidence in that regard. It is not something that I can take into account. It is not, for instance, an admitted fact.

4. This case is decided in accordance with Australian law. This Court has a discretion to discharge the Country B spousal maintenance order in the event that the Court is satisfied that there is a “just cause” for doing so. In my view, there is a “just cause” to order the discharge of the Country B spousal maintenance order. There is an important principle that underpins family law in Australia and it can be summarised like this – the Court will, whenever possible, put in place orders which will finalise the financial relationship between the parties to a marriage and avoid further proceedings between them. This principle is encapsulated in s 81 of the Act. That section states –

   “81. Duty of court to end financial relations

   In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.”

5. It will be seen that the current proceedings do come within Part VIII of the Act – this being an application by the husband for the discharge of a spousal maintenance order pursuant to 83(1)(c).

6. In my view the Country B spousal maintenance order should be discharged. There is a “just cause” for so doing. The discharge of the order will finally determine the financial relationship between the parties to the marriage and it will avoid further proceedings between them.

7. The wife was entitled to and did in fact organise her life and structure her arrangements on the basis that she had the benefit of a spousal maintenance order from the Country B Court. But this application has been brought in Australia under the provisions of the Family Law Act 1975 (Cth) and ten years have elapsed since the husband commenced to pay spousal maintenance to the wife.

8. It will be apparent from the other reasons I have provided that the conclusion of the Court is that the husband must make good on his spousal maintenance obligations. The Court is very unimpressed with the conduct of the husband in unilaterally reducing the spousal maintenance he was required to pay. The same can be said in relation to the child maintenance that he unilaterally reduced – but I will get to that matter shortly.

9. The husband is required to pay all of the arrears of spousal maintenance and to pay the spousal maintenance up to and including 15 August 2024. The Court has concluded that it is fair, reasonable, just and equitable to require the husband to continue paying spousal maintenance pursuant to the Country B Order for a further four month period. Having regard to the findings made by the Court it is within the discretion of the Court to order that the Country B spousal maintenance order be discharged as and from 15 August 2024 (Tallant & Tallant [2015] FamCA 864). This extra four month period of spousal maintenance that the husband will have to pay is appropriate having regard to the particular circumstances of this case. Those circumstances have been outlined at length in these Reasons and a non-exhaustive list of those circumstances is as follows:

   (a)The wife has not been in receipt of a substantial income for 12 years;

   (b)The wife has devoted her time to the care of the children of the marriage;

   (c)The wife had the benefit of and was entitled to rely upon the terms of the spousal maintenance order made by the Country B Court;

   (d)When the wife did last earn a substantial income the husband and wife were still together and, I infer from the evidence that contributions were made to the care and welfare of the children by both parents at that time;

   (e)The wife’s current employment is with her father. The wife was not required (I infer) to compete on the open labour market in order to obtain her current job with her father;

   (f)The wife will need time to find other employment. The wife will need time to search for a job for which she is suitably qualified and will provide her with a necessary income in order to adequately support herself and the children; and

   (g)The wife will need time to make appropriate arrangements for the children – including arrangements to have them cared for before and after school and obtain necessary transportation for the children not only for their schooling but for their extracurricular activities and time to put in place appropriate measures for the myriad of other situations and circumstances that do inevitably arise when you are, effectively, the sole and primary carer for two teenage children.  

10. Accordingly, I have come to the conclusion that the Court should exercise its discretion to discharge the spousal maintenance order but such discharge should not take effect until 15 August 2024.

    THE HUSBAND’S APPLICATION TO VARY AND DISCHARGE THE CHILD MAINTENANCE ORDERS MADE BY THE COUNTRY B COURT

11. Division 7 of Part VII of the Act relates to child maintenance orders.

12. The objects of Division 7 of the Act are contained in s 66B. That sections states:

    “Objects

    (1)  The principal object of this Division is to ensure that children receive a proper level of financial support from their parents.

    (2)  Particular objects of this Division include ensuring:

    (a)  that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and

    (b)  that parents share equitably in the support of their children.”

13. The principles of Division 7 are included in s 66C of the Act. That section states:

    “Principles--parents have primary duty to maintain

    (1)  The parents of a child have, subject to this Division, the primary duty to maintain the child.

    (2)  Without limiting the generality of subsection (1), the duty of a parent to maintain a child:

    (a)  is not of lower priority than the duty of the parent to maintain any other child or another person; and

    (b)  has priority over all commitments of the parent other than commitments necessary to enable the parent to support:

    (i)  himself or herself; or

    (ii)  any other child or another person that the parent has a duty to maintain; and

    (c)  is not affected by:

    (i)  the duty of any other person to maintain the child; or

    (ii)  any entitlement of the child or another person to an income tested pension, allowance or benefit.”

14. The husband’s application is made under s 66S of the Act. That section states:

    “Modification of child maintenance orders

    (1)  This section applies if:

    (a)  there is in force an order (the first order), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):

    (i)  made by a court; or

    (ii)  registered in a court; and

    (b)  a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.

    (1A)  With the consent of all the parties to the first order, the court may, subject to section 111AA, make an order:

    (a)  discharging the first order; or

    (b)  suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

    (c)  if the operation of the order has been suspended under paragraph (b) or (2)(b)--reviving its operation wholly or in part; or

    (d)  varying the order:

    (i)  so as to increase or decrease any amount ordered to be paid by the order; or

    (ii)  in any other way.

    (1B)  However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child's parents to maintain the child.

    Note:  For the duty of a parent to maintain a child, see section 66C.

    (2)  In any other case, the court may, by order:

    (a)  discharge the first order if there is just cause for so doing; or

    (b)  suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

    (c)  if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or

    (d)  subject to subsection (3), vary the order:

    (i)  so as to increase or decrease any amount ordered to be paid by the order; or

    (ii)  in any other way.

    (3)  The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:

    (a)  that, since the order was made or last varied:

    (i)  the circumstances of the child have changed so as to justify the variation; or

    (ii)  the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or

    (iii)  the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or

    (iv)  in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such as to justify the variation; or

    (b)  that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or

    (c)  if the order was made by consent--that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or

    (d)  that material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false.

    (4)  In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

    (5)  The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or last varied having regard to a change in the cost of living.

    (6)  In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made.

    (7)  An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.

    (8)  If an order (the subsequent order) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.

    (9)  If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.

    (10)  For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).

    (11)  The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.”

15. There is in place an order for the maintenance of a child registered pursuant to the rules of this Court (note s 66S(1)(a)).

16. The Court has a discretion to vary such a child maintenance order to decrease the amount payable (note s 66S(2)(d)(i)).

17. The Court has the power to issue an order decreasing the amount of child maintenance and the Court has the power to make that order retrospective. (Note s 66S(7)).

18. The Court must have regard to the objects and principles contained in Division 7 – which have been included above (note s 66B and s 66C).

19. The husband seeks a modification of the child maintenance order and he seeks that it be made retrospective to December 2020. In addition, the husband seeks that from the date that each child turns 18 the child maintenance order regarding that child shall be discharged. The Country B Order requires the husband to pay child maintenance for each child and that child maintenance is not to conclude until each child turns 18 or when they cease fulltime tertiary education or when another order is made.

20. I have had close regard to s 66B and s 66C of the Act – where, as I have noted, the objects and principles of Division 7 of Part VII have been stated by the legislature. I do not propose to make any specific comment relating to those objects and principles except to note s 66B(2)(a) states that one of the particular objects of the Division is to ensure “that parents share equitably in the support of their children”. The mother has, essentially, been the primary carer for these children for the past 10 years since their return to Australia from Country B. The husband has remained living in Country B. I accept that the husband does look after the children when he is spending time with them in Australia – and perhaps in other locations when on holidays. I note that the husband fully complied with his child support obligations up until December 2020.

21. The wife’s Financial Statement (paragraph 13) reveals that the husband is obligated to pay AUD$750 per week for each child by way of child maintenance. However, he has only been paying AUD$312 each week for each child since December 2020.

22. The husband’s primary argument is that the Court should exercise its discretion to vary the amount of child maintenance by decreasing the amount pursuant to s 66S(2)(d)(i). It is argued, on behalf of the husband, that the Court will be satisfied that, since the Country B Order was made, the circumstances of the husband (the person liable to pay the child maintenance) have changed – so as to justify the variation sought.

23. The husband’s submission concerning the child maintenance order is summarised in paragraph 62(c) of the husband’s written submissions. That paragraph states:

    “The court will be satisfied that since the order was made the circumstances of the person liable to pay child maintenance have changed so as to justify the variation – section 66S(3)(a)(ii)…”

24. There are two major obstacles to the husband’s application to vary the child maintenance order. The first problem for the husband is that, it will be apparent from these Reasons for Judgment, that the Court is not satisfied that the circumstances of the husband have changed – so as to justify the variation. On the husband’s own evidence – his most recent document in relation to his income is Exhibit 2. Exhibit 2 shows that in the financial year ended 31 March 2023, the husband’s weekly income was AUD$9,639. As I have already noted, this is significantly higher than the amount he included in Part B of his Financial Statement. I have already noted the importance of reviewing the husband’s income on a year-by-year basis.

25. In Part B of the Financial Statement the husband estimated his weekly expenditure at AUD$7,970. The husband had double counted in respect of his expenditure and credit card repayments. In this regard I note the concession made in paragraph 56 of the written submissions provided on behalf of the husband.

26. It is claimed in paragraph 58 of the husband’s written submissions that:

    “Of most significance however is the fact that the concession does not alter his evidence that his expenses outweigh his income. This fundamental assertion remains unchanged.”

27. A proper analysis of the evidence reveals that this submission is plainly wrong. The husband’s expenses do not outweigh his income.

28. The most serious problem for the husband is that he significantly understated his total average weekly income – as it appear in Part B of his Financial Statement. The husband has not explained this error. The amount he included in that document was AUD$5,174 – but his most recent income document (Exhibit 2) shows a weekly income of AUD$9,639. Even the average of the amounts in Table 3 (above) show that the husband has significantly understated the estimate of his weekly income.

29. The husband has all sorts of reasons and excuses as to why he maintains that his circumstances have changed and his income has dropped. A proper analysis of the evidence shows that the husband’s income does fluctuate. But a close consideration of the evidence relating to the husband’s income has led me to conclude that his circumstances have not changed – so as to justify his proposed variation to the child maintenance order.

30. The husband complained that, by the end of the calendar year 2020 his income had dropped and he unilaterally decided to reduce the amount of child maintenance and spousal maintenance. But the evidence shows that in the financial years ended 31 March 2021; 31 March 2022; and 31 March 2023 – the husband’s income was substantially maintained at its relatively high levels. His allowances may have changed, his Productivity Pay may have changed – but as I noted earlier, there are swings and roundabouts in the husband’s remuneration package.

31. Of particular concern to the Court is that Exhibit 2 was only produced to the Court at the Court’s insistence. I have mentioned this earlier. The conclusion I have reached is that this in fact shows a lack of frankness on the part of the husband. That document, evidencing his most recent income, should have been front and centre of his case. It should have been annexed to his trial affidavit. It indicates to the Court that the husband was not being open, candid and honest in the presentation of his evidence. In his affidavit he maintains that his income has dropped. The independent verifiable documents (in particular his tax returns and other tax documents) show that this is not correct. I rely on all of the Reasons provided earlier herein in relation to the husband’s income.  

32. Having come to the conclusion that the husband’s circumstances have not changed – as he has claimed – leads me to conclude (as I have noted) that there is no justification for the variation to the child maintenance orders based on the submission raised by the husband.

33. Given that the Court will be ordering the discharge of the spousal maintenance order from August 15 2024 – the husband will thereafter have more disposable income available to him to ensure he complies with his child maintenance obligations.

1. Section 66S(3) states at the outset:

   “The court must not vary the order so as to … decrease any amount ordered to be paid by the order unless it is satisfied:

   (a)  that, since the order was made or last varied:

   … (ii)  the circumstances of the person liable to make payments under the order have changed so as to justify the variation.”

2. Because the Court is not satisfied that the circumstances have changed – the Court “must not” vary the order.

3. In the event that, in the future, the husband is actually able to demonstrate that his circumstances have changed so as to justify a variation – there is nothing preventing the husband from filing a fresh application.

4. It would be inherently unfair, in any event, to require the children to make their own application – as contemplated in the written submissions on behalf of the husband. The parents made an agreement and an order was made in Country B. The fact that an Australian Court might not be amenable to making an order lasting beyond the age of 18 years, is not relevant in the context of these proceedings because the husband has not been able to satisfy the Court that his circumstances have changed so as to justify a variation to the Country B child maintenance order.

   CONCLUSION

5. The husband’s application to vary the child maintenance order is therefore dismissed.

6. In relation to the husband’s application to discharge the spousal maintenance order – I have already explained the orders to be made in that regard and provided the Reasons.

I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.

Associate:

Dated:       15 April 2024