Van Der Zwaan & Van Der Zwaan & Swann

[2001] FamCA 373

[2001] FamCA 373

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No WA21 of 2000
AT PERTH  File No PT2045 of 1996

BETWEEN:

WILHELMUS VAN DER ZWAAN
Appellant Husband
- and -
SOPIDA VAN DER ZWAAN
First Respondent
- and -
JOHN THOMAS SWANN
Second Respondent

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  KAY, HOLDEN & WARNICK JJ
DATE OF HEARING:                 3 May 2001
DATE OF JUDGMENT:             13 June 2001

APPEARANCES:

The Appellant Husband appeared in person, there being no appearance on behalf of the First Respondent and no appearance on behalf of the Second Respondent.

VAN DER ZWAAN v VAN DER ZWAAN
WA 21 of 2000
Coram: Kay, Holden and Warnick JJ
Date of Hearing: 3 May 2001
Date of Judgment: 13 June 2001

Enforcement - contempt - child support agreement-whether ‘order under the Act’

The parties married in 1987 and had two children who were born in 1987 and 1989.  Since separation in 1995, the children have lived with the husband.  On 18 July 1997, an order was made varying a Child Support Agreement by substituting the sum of $100 per week per child in lieu of the previously agreed sum.

In August 1998 the husband filed a Form 48 application alleging that the wife had contravened the order under s 112AD(1) of the Family Law Act by failing to make regular weekly payments of child support and spousal maintenance despite possessing the ability to do so.  In June 1999 the husband filed a further Form 48 contravention application alleging continued breaches of the orders.  A third Form 48 application was also filed in June 1999, alleging breaches by the wife’s de facto partner relating to the Child Support Agreement and the Court orders of 18 July 1997.

Penny J considered whether the order made on 18 July 1997 was under the Family Law Act within the definition of s 112AA.  Her Honour found that the order of the Court did not order the wife to pay $100 per week per child, it merely created an obligation upon the Child Support Registrar to amend the Child Support Register to reflect the order.

As the wife’s obligation to pay child support arose as a result of the amended Child Support Agreement; it had to be determined whether the Child Support Agreement was an order under this Act.

Penny J was of the view that that while s 100(2) of the Child Support (Assessment) Act allowed for enforcement and contravention applications to be made pursuant to the Family Law Act for decrees under the Child Support (Assessment) Act, the effect of s 95(2) restricted the status of the terms of the agreement to orders for the purpose of Part 5 of that Act [administrative assessments] only, and not as decrees for the purpose of s 100(1). Therefore the agreement was not an order under the Act which could be contravened pursuant to s 112AA.

On appeal, the husband argued that the trial judge was in error in determining that the agreement was not an order under the Act that could be contravened pursuant to s 112AA.

Held: in dismissing the appeal
(per Kay, Holden and Warnick JJ)

• Although the order of 18 July 1997 was capable of enforcement under the provisions of Part 13A of the Family Law Act, the only person who could have contravened this order was the Registrar of the Child Support Agency if she or he failed to register the variation

• The wife's failure to comply with the terms of the Child Support Agreement did not in any sense amount to a contravention of an order within the meaning of s 112AD.

• In this case the obligation to pay child support remained in the realm of a civil debt enforceable at the request of the Commonwealth whilst the agreement remained registered for collection with the Agency and upon an election being made under the provisions of s 38A of the Child Support (Registration and Collection) Act, recoverable at the suit of the appellant.  It would only be on the failure to comply with any order made for recovery under the provisions of the Family Law Act 1975 that the relief might lie under s 112AD.

APPEAL DISMISSED

REPORTABLE

1. The appellant is the father of T born August 1987 and P born May 1989.  The first named respondent is the mother of the children. 

1. The appellant and the first named respondent were married in April 1987 and cohabitation between them ceased in February 1995.

1. On 26 February 1996 they executed a deed which recited that the husband would have custody of the children.  It further provided as follows:

"1.The parties agree that the wife shall by direct bank transfer pay to the husband the sum of $500.00 per week ('child maintenance') for the support of the children of the marriage apportioned equally between those children.  Payment of such child maintenance is to commence on Monday 26 February 1996 and to continue, in accordance with the terms of this Deed, until each of the children attains the age of 18 years.

2.The husband and the wife are agreeable to and seek to have this Deed accepted by the Child Support Registrar pursuant to Part 6 of the Child Support (Assessment) Act 1989."

1. The agreement was accepted as a child support agreement by the Registrar of Child Support on 30 August 1996.

1. On 18 July 1997 an order was made by a judge of the Family Court of Australia at Sydney by consent as follows:

"1.That the Child Support Agreement dated 26 February 1996 accepted by the Child Support Agency on 30 August 1996 with effect from 11 June 1996 be registered in this Court.

2.That pursuant to Section 98(1) of the Child Support (Assessment) Act 1989 that agreement be varied so as:

1.Clause 1 be deleted and the following be substituted:

'1(i)That the wife pay child support for the two children in the amount of $100 per week per child;

(ii)First payment with 7 days;

(iii)That the payments be made as directed by the husband in writing;

(iv)That this agreement shall cease to have effect on 30 June 2000.'

2.That all arrears of child support be discharged."

1. On 17 August 1998 the husband filed an application in the Family Court of Western Australia asserting that the first named respondent was in contravention of an order made by Fleming SM on 1 April 1996 in the Family Court of Western Australia and was in contravention of the orders made in the Family Court of Australia on 18 July 1997 in that she had failed to pay regular weekly payments of monies due for child support from 26 February 1996 until 17 August 1998, despite having an ability to do so.

1. The only orders made on 1 April 1996 related to the guardianship, custody and access of the children for whom child support was sought by the husband.  There were no particulars of breaches of those orders in the husband’s applications. 

1. On 8 June 1999 a further Form 48 application was filed by the appellant seeking orders against the first named respondent and asserting a continued breach of orders made on 18 July 1997, such breach being constituted by a refusal to voluntarily pay any child support in accordance with the orders.

1. On the same date the appellant issued a Form 48 application against the second named respondent asserting that he had prevented the first named respondent from "meeting her obligation" to pay child support. He further asserted that such conduct on behalf of the second named respondent was in breach of s 224(1)(b)(i) and (ii) of the Family Court Act 1997 (WA).

1. The gravamen of his assertions against the second named respondent was that the first named respondent was working as a sex worker and the second named respondent was living off her earnings.  He deposed that the second named respondent had told the appellant that "Guess what?  I'm not allowing her to pay you any more money, I am changing a few things...".  There were further assertions that the second named respondent told the first named respondent outside the court on 18 July 1997 "you are not going to pay the c... nothing, you understand?"

Trial judgment

1. The applications came on for hearing before Penny J on 27 April 2000.  There was no appearance on behalf of either of the respondents at that hearing.

1. On 7 September 2000 her Honour dismissed the three applications for contravention and published her reasons for so doing. 

1. Her Honour concluded that the breach of the terms of a registered child support agreement requiring payment of periodic child support could not amount to the contravention of an order within the meaning of s 112AD of the Family Law Act 1975 as defined in s 112AA of the Act.

1. She further held that the orders of the Family Court of Australia made 18 July 1997 did not order the first named respondent to pay money for child support.  The obligation created by that order was an obligation upon the Registrar of Child Support to amend the Child Support Register to reflect the order. 

1. Her Honour concluded that the wife's obligation to pay child support arose as a result of the amended child support agreement and not as a result of the order itself. Finally she held that s 226 of the Family Court Act 1997 (WA) had no application to an obligation to pay child support.

The appeal

1. Although by his notice of appeal the appellant sought that the Full Court make findings as to the asserted contraventions and further sought that the Court impose terms of imprisonment upon the respondents, in his submissions to us he recognised that were we to allow the appeal the matter would need to be remitted back to the trial Judge to make necessary findings and to deal with the applications according to law.

1. The basis of his appeal was as follows:

"1.Her Honour was in error and or outside her proper exercise of descretion (sic) in determining that

(a)The effect of s95(2) of the Child Support Assessment Act restricts the status of the agreement to order for the purpose of Part 5 of that Act any (sic), and

(b)Is not a decree for the purposes of s100(1); and or

(c)The registered Child Support Agreement on or about 18^th July, 1997 is not or was not an Order under the Act which can be contravened pursuant to s112AA.

3.Further and in the alternative Her Honour was in error in dismissing the Applicants Application on the basis that

'The Order sought to be contravened was not or is not an Order of the Family Court' for that at all material times as and of the 18^th July, 1997 on registration of the Child Support Agreement by His (sic) Honour Judge Moore in the Sydney Registry of the Family Court of Australia and the subsequent variation of the said agreement at all times were Orders made pursuant to the Family Law Act."

1. The three applications brought before her Honour all purported to be brought pursuant to s 112AD(1) of the Family Law Act. The latter two applications also purported to be brought pursuant to s 226(1) of the Family Court Act 1997 (WA).

1. Section 112AD was amended in December 2000 by Act 143 of 2000. As at September 2000 it provided (insofar as is relevant and with emphasis added) as follows:

"SANCTIONS FOR FAILURE TO COMPLY WITH ORDERS

(1)[Contravention of order other than residence, contact or specific issues order] Where a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, other than a residence order, a contact order or a specific issues order, the court may, subject to subsection (5), by order, take such action or actions of the kind specified in subsection (2) as the court thinks is appropriate.

…

(2)     [Sanctions] The court may:

(a)impose a sentence of imprisonment on the person in accordance with section 112AE;

(b)fine the person…; or

(c)require the person to enter into a recognizance in accordance with section 112AF;

(d)impose a sentence on the person, or make an order directed to the person, in accordance with section 112AG;

…"

1. Section 112AD is located in Part XIIIA of the Family Law Act which deals with sanctions for failure to comply with orders and contempt of court.  Section 112AA provides certain aids to interpretation of the Part.  Insofar as is relevant as at September 2000 for the purposes of Part XIIIA an "order under this Act" was defined as meaning:

"(a)an order (however described) made by the court under this Act;

(b)an injunction granted by the court under section 68B or 114;

(c)an undertaking given to the court in proceedings under this Act and accepted by the court;

(ca)     a subpoena issued under the Rules of Court;

(d)      a court enforceable agreement; or

(e)      a recognizance:

(i)entered into pursuant to an order of a court under this Act; or

(ii)entered into for the purposes of subsection 112AE(5);

and includes an order, injunction, agreement or recognizance that:

(f)is an order under this Act in relation to another court because of paragraph (a), (b), (d) or (e); and

(g)      has been registered in the first‑mentioned court."

1. A "court enforceable agreement" was defined by the same section as meaning:

"…

(b)so much of a maintenance agreement as a court has, pursuant to paragraph 87(11)(c), ordered may be enforced as if it were an order of the court; or

(c)a maintenance agreement registered in a court under subsection 86(1), or deemed, by subsection 87(6), to be registered in a court."

1. It should also be noted that s 86(3B) makes unenforceable as a maintenance agreement under the Family Law Act any maintenance agreement that makes provision for the maintenance of a child if an application could be made under the Child Support (Assessment) Act 1989 for administrative assessment of child support in respect of that child.

1. Section 226 of the Family Court Act (WA) is to be found in Part X of that Act, which also provides sanctions for failure to comply with orders and contempt of court. Section 226 is limited in its applications to contraventions of orders under the Family Court Act.

1. There is no challenge in the notice of appeal to her Honour's finding in paragraph 12 of her reasons for judgment that any order allegedly contravened was not an order under the Family Court Act (WA). That finding seems to be clearly correct. We do not propose to pay any further attention to it.

1. The Child Support (Assessment) Act 1989 provides amongst its objects the following:

"SECTION 4

OBJECTS OF ACT

(1)      [Principal Object] The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.

…

(3)      [Private arrangements for financial support] It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:

(a)to permit parents to make private arrangements for the financial support of their children; and

(b)to limit interferences with the privacy of persons."

1. Part 4 of the Act establishes the requirements for an application to be made for an administrative assessment of child support.  Part 5 sets out the bases upon which such an administrative assessment is to be calculated.

1. Section 75 provides power for the Registrar to amend assessments, including amendments for the purpose of "giving effect to the acceptance of a child support agreement by the Registrar" (s 75(3)(e)) or "giving effect to a decision or order of a court having jurisdiction under this Act" (s 75(3)(f)).

1. Section 76 requires that notice of the assessment be given to the liable parent once it has been made, and s 77 creates a liability to pay once an assessment has been made.

1. Section 79 provides for the recovery of child support as follows:

"RECOVERY OF AMOUNTS OF CHILD SUPPORT

An amount of child support due and payable by a liable parent to a carer entitled to child support is a debt due and payable by the liable parent to the carer entitled to child support, and may be sued for and recovered in:

(a)a court having jurisdiction for the recovery of debts up to the amount of the child support; or

(b)      a court having jurisdiction under this Act."

1. As has already been seen from s 4, the Parliament intended to permit parents to make private arrangements for the financial support of their children. These matters are governed by Part 6 of the Child Support (Assessment) Act.  That Part enables parents to enter into consent agreements for the provision of child support in either periodic or non-periodic form (s 84).  It further provides for the necessary formal requirements for agreements (ss 85, 86, 87), and when the Registrar is satisfied that the agreement otherwise complies with the provisions of the Act, the Registrar is obliged to accept the agreement (s 92).

1. By operation of s 93, if there is no existing child support obligation in respect of the child, then:

"the acceptance of the agreement by the Registrar has the same effect (as provided by this section) as the acceptance by the Registrar of an application for administrative assessment of child support for the child." (s 93(1)(c))

1. If there is already in existence an assessment, and the child support agreement purports to change that assessment, the Registrar must issue a fresh assessment that coincides with the accepted agreement (s 34B and s 95).

1. Section 95 then specifically provides (emphasis added):

"EFFECT OF CERTAIN PROVISIONS OF ACCEPTED CHILD SUPPORT AGREEMENTS

(1)      [Application of section] This section applies in relation to a child support agreement that has been accepted by the Registrar.

(2)      [Effect of provisions as to periodic payments] If the agreement includes:

(a)provisions under which a party is to pay child support for a child to another party in the form of periodic amounts paid to the other party; or

(b)provisions under which the rate at which a party is already liable to pay child support for a child to another party in the form of periodic amounts paid to the other party is varied; or

(c)provisions agreeing between parties any other matter that may be included in an order made by a court under Division 4 of Part 7 (Orders for departure from administrative assessment in special circumstances);

the provisions have effect, for the purposes of Part 5, as if they were an order made by consent by a court under Division 4 of Part 7.

(3)      [Effect of provisions as to non-periodic payments] If the agreement includes provisions under which a party is to provide child support to another party otherwise than in the form of periodic amounts paid to the other party:

(a)      the provisions have effect, for the purposes of Part 5, as if they were an order made by consent by a court under section 124 (Orders for provision of child support otherwise than in form of periodic amounts paid to carer entitled to child support); and

(b)      if the agreement or those provisions are registered in a court having jurisdiction under Part VII of the Family Law Act 1975 — Division 13A of Part VII (Consequences of failure to comply with orders, and other obligations, that affect children), Part XIII (Enforcement of decrees), and Part XIIIB (Contempt of court), of that Act apply in relation to the provisions as if the provisions were an order made by the court under Part VII of that Act.

…"

1. The reference in s 95 to "an order made by consent under Division 4 of Part 7" is reference to a consent order made for an order for departure from administrative assessment of child support. 

1. Where an order is made under Division 4 of Part 7 the Registrar is obliged by the provisions of s 119 to:

"...take such action as is necessary to give effect to the decision in relation to any administrative assessment that has been made in relation to the child, the carer entitled to child support and the liable parent concerned (whether by amending the assessment or otherwise)."

1. The inclusion of s 95(3)(b) indicates that there is an important distinction to be drawn between a maintenance agreement which makes provision for payment of periodic amounts and a maintenance agreement which makes provision for child support to be paid otherwise than in the form of periodic amounts.

1. In the latter case, the legislation expressly states that the registration of the agreement in a court having jurisdiction under Part 7 of the Family Law Act enables the court to exercise its powers under Part 13 and Part 13A of the Family Law Act as if the provisions in the agreement were orders made by the court under Part 7 of the Family Law Act (orders in matters concerning children).  In the former case no such powers are given.

1. Section 98 provides for the discharge, suspension, revival or variation by a court of the provisions of a child support agreement "in the same manner and in like circumstances as the court could discharge, suspend, revive or vary an order...made by it".

1. An order providing for a departure from administrative assessment of child support concerning the provision of child support by means of periodic payments may only be varied in accordance with the provisions of Part 4 of Division 7 of the Act (see Gilmour v Gilmour (1995) FLC 92-591; 18 Fam LR 646). The court would need to be satisfied that a ground for departure existed. It could then make an order in accordance with the provisions of ss 118 and 141.

"SECTION 118

Orders that may be made under Division

(1)      [Orders which court may make] The orders that a court may make under this Division are as follows:

(a)an order varying the rate of child support payable by the liable parent concerned;

(b)an order varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent;

(c)an order making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the liable parent;

(d)an order varying the child support income amount or disregarded income amount of the carer entitled to child support concerned;

(e)an order making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the carer entitled to child support;

(f)an order directing that one or more of the following provisions is not to apply:

…

(ii)section 42 (Cap on child support if child support income amount exceeds 2.5 times yearly equivalent of relevant AWE amount);

(iii)section 52 (Cap on combined child support liabilities of 2 liable parents);

(g)an order varying a factor ascertained under paragraph 54(1)(b).

(2)      An order under this section may make different provision in relation to different child support periods and in relation to different parts of a child support period."

"SECTION 141

General powers of court

(1)      [Powers of court] In exercising its powers under this Act, a court may do all or any of the following:

(a)order payment of a lump sum, whether in one amount or by instalments;

(b)order payment of a weekly, monthly, yearly or other periodic amount;

(c)order that a specified transfer or settlement of property be made;

(d)order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

(e)order that any necessary deed or instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(f)order that payment be made to a specified person or public authority or into court;

(g)make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;

(h)make an order expressed to be retrospective to such day as the court considers appropriate;

(i)subject to section 129 (Modification of orders under Division 5), make an order:

(i)        discharging an order; or

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

(iii)reviving wholly or in part the operation of an order that has been suspended; or

(iv)      varying an order in any way;

(k)       make an order imposing terms and conditions;

(m)     make an order by consent;

(n)make any other order (whether or not of the same kind as those referred to in paragraphs (a) to (m) (inclusive)) that the court considers appropriate;

(p)      make an order at any time.

(2)      [Making of orders does not prevent subsequent order] The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Act, in relation to a child does not prevent a court from making a subsequent order (whether under this Act or otherwise) in relation to the child.

(3)      [Applicable Rules of Court:  provisions to facilitate enforcement of orders] The applicable Rules of Court may make provision with respect to the making of orders under this Act (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of any child support payable under them."

1. The effect of a departure order is to require the Registrar to amend any existing administrative assessment and to only issue administrative assessments in future that complied with the order (s 119).

1. Part 7 of the Child Support (Assessment) Act invests jurisdiction in various courts, including the Family Court of Australia and the Family Court of Western Australia, to determine issues arising under the Child Support (Assessment) Act. 

1. Section 100 provides as follows (emphasis added):

"SECTION 100

APPLICATION OF FAMILY LAW ACT

(1)      The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under paragraph 79(a)) as if:

(a)the proceedings were proceedings under Part VII of that Act; and

(b)the proceedings were proceedings instituted under Part VII of that Act; and

(c)a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and

(d)a decree made in the proceedings were a decree made under Part VII of that Act; and

(e)matters arising in the proceedings were matters arising under Part VII of that Act; and

(f)any other necessary changes were made.

(2) [Decree may be enforced] Without limiting subsection (1), Division 13A of Part VII (Consequences of failure to comply with orders, and other obligations, that affect children), Part XIII (Enforcement of decrees), and Part XIIIB (Contempt of court), of the Family Law Act 1975 apply to any decree made by a court under this Act as if the decree were a decree made by a court under Part VII of that Act.

(3)     [Court directions] Where any difficulty arises in the application of subsection (1) or (2) in or in relation to a particular proceeding, the court exercising jurisdiction in the proceeding may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty."

1. It is clear from the express reference in s 100(2) that the provisions of Part 13A of the Family Law Act apply to any decree made by a court under the Child Support (Assessment) Act. 

1. For the purposes of the Family Law Act, a decree is defined as meaning "decree, judgment or order..." (s 4). 

1. Clearly then, the order of 18 July 1997 was capable of enforcement under the provisions of Part 13A of the Family Law Act.

1. Penny J said at paragraph 8:

"...While the order made on 18 July 1997, is a decree which can be contravened (see s 100(1) of the Child Support (Assessment) Act and s 112AD of the Family Law Act), the only person who could possibly contravene this order would be the Registrar of the Child Support Agency if he (sic) failed to register the variation of the Child Support Agreement..."

1. We agree entirely with her Honour's assessment as to the nature of the order made on 18 July 1997. What the wife had failed to do was to comply with the terms of a child support agreement which had been accepted by the Child Support Registrar and which had been registered with the Family Court of Australia. She had not in any sense contravened an order within the meaning of s 112AD.

1. It would appear that there is thus a clear distinction to be made between:

·    orders made under the Family Law Act 1975 for the provision of child maintenance, whether by way of periodic payment or otherwise, which the legislation expressly says may be enforced under Part 13A;

· agreements made for child support otherwise in the form of periodic payments, which by operation of s 95(3) of the Child Support (Assessment) Act appear also to be capable of being enforced under Part 13A;

· orders made under Division 5 of Part 7 of the Child Support (Assessment) Act, being orders for the provision of child support otherwise in the form of periodic amounts paid to the carer entitled to child support, being orders for the provision of child support rather than orders for departure from administrative assessment of child support; and

·    orders for departure from administrative assessment of periodic child support payments which may only be enforced in the same manner as an assessed amount for the periodic child support may be enforced. 

1. It would appear that, subject to the provisions of s 30 of the Child Support (Registration and Collection) Act 1988 which limit rights of parties to collect debts due to the Commonwealth, periodic child support can only be collected in court proceedings via normal civil processes for the collection of debts or via the provisions of Order 33 of the Family Law Rules.

1. Those rules provide inter alia that a liability to pay child support under an assessment or order made under the Child Support (Assessment) Act 1989 may be the subject of an application for enforcement and in the course of such an application the court may make an order for the payment of the arrears and any other unpaid portion of the monies payable (Order 33 rule 3(9)). Seemingly, once that step has been taken an application would then lie under s 112AD, if such an order was not complied with without reasonable excuse.

1. In this case the obligation to pay child support remained in the realm of a civil debt enforceable at the request of the Commonwealth whilst the agreement remained registered for collection with the Agency and upon an election being made under the provisions of s 38A of the Child Support (Registration and Collection) Act, recoverable at the suit of the appellant.  It would only be on the failure to comply with any order made for recovery under the provisions of the Family Law Act 1975 that the relief might lie under s 112AD.

1. We see no error in the reasoning of the learned trial Judge, and accordingly the appeal is dismissed.

I certify that the 52 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate