Vaters and Kantner and Anor - [2011] FMCAfam 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VATERS & KANTNER & ANOR

[2011] FMCAfam 303

CHILD SUPPORT – Child maintenance – overseas order – matters which may be taken into account in application for variation or discharge – exercise of discretion.

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (Canada), s.3
Family Law Act 1975, Pt VII, VIII, ss.66, 66B, 66C, 66D, 66J, 66K, 66S
Family Law Regulations 1984, rr.36, 37

Lutzke and Lutzke (1979) FLC 90-714; 5 Fam LR 553

Mathieson v Hamilton [2006] FMCAfam 238; 201 FLR 28; [2006] FLC 98-032

Wreford v Caley [2010] FamCAFC 21; (2010) 238 FLR 88; (2010) 43 Fam LR 1

Applicant:

MR VATERS

First Respondent:

MR KANTNER

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLC 5781 of 2010

Judgment of:

Riethmuller FM

Hearing date:

8 February 2011

Date of Last Submission:

8 February 2011

Delivered at:

Melbourne

Delivered on:

13 May 2011

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch of Counsel

Solicitors for the Applicant:

Carew Counsel Pty Ltd

Counsel for the First Respondent:

There being no appearance by or on behalf of the First Respondent

Solicitors for the First Respondent:

The First Respondent is self-represented

Counsel for the second Respondent:

Mr Maat

Solicitors for the second Respondent:

Australian Government Solicitors

ORDERS

The application to discharge or vary the Orders of the Supreme Court of British Columbia, Canada be dismissed.
The collection of child support and the enforcement of any arrears of child support for [X] born [in] 1986 be stayed for 45 days, and in the event proceedings are commenced in Canada within 45 days, until the expiration of 3 months from the date the proceedings are filed in Canada to discharge or vary the child maintenance orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 5781 of 2010

MR VATERS

Applicant

And

MR KANTNER

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

The applicant father applies, pursuant to regs.36 and 37 of the Family Law Regulations 1984, to discharge an overseas maintenance order. The application was served on the Child Support Registrar (‘CSR’) and the respondent mother, Ms Kantner. The mother attended an interlocutory hearing by telephone and subsequently filed written material. Unfortunately, she did not file any financial material. As a result the decision I must make pursuant to the Regulations is in the absence of any information from the mother with respect to her financial circumstances either during the period of the child’s minority or currently.
The father filed an affidavit setting out his current financial circumstances. However, the affidavit only provided limited material relating to his finances during the relevant years in which the orders were operative.
The matter has a long and difficult history. The parties were married in December 1983 and separated in December 1990. At the time that they were married, they had a daughter, [X], born [in] 1986. [X] is now 24 years of age and is presently undertaking tertiary studies in Canada. She has lived with the mother all of her life.
Soon after [X]’s birth in Australia the parties moved to Thailand, as a result of the father’s employment. After separation the mother returned to Canada. The father went to Canada for a period, arriving in July 1992, in an attempt, he says, to spend time with the child and obtain a divorce. Ultimately he left Canada in November 1992.
At the time of separation the parties entered into an informal agreement with respect to maintenance and support. This was a hand-written agreement signed by each party on 22 November 1990. The agreement was headed ‘Separation Agreement Between Mr Vaters and Ms Kantner-Vaters’. It provided for the transfer of $68,000 to a Canadian bank account from the husband to the wife as a complete division of the property between the parties and further that:
Mr Vaters also agrees to pay maintenance/child support for [X] of $500 per month as of November 22, 1990.
It was also agreed in the document that the husband would commence proceedings to obtain a divorce between the parties. The document, on its face, indicates that it was signed in Southern Thailand. Whether, according to the law of Thailand at the time, this was sufficient to be a binding agreement between the parties or, as is the law in Australia, it amounts to an informal arrangement which could not be formally enforced in the nature of a contract or binding financial agreement, is unclear. As I have no evidence as to the law in force in Thailand at the relevant time, I am not able to conclude that it was a binding agreement.
Following her return to Canada, the mother brought proceedings in the Supreme Court of British Columbia seeking divorce orders, children’s orders and maintenance orders. The application was filed on

30 October 1992 in the form of a petition for divorce. On 7 December 1992, orders were made for maintenance of $US1,000 per month commencing 1 January 1993. On 25 May 1993 an order for dissolution of the marriage was made together with children’s orders and a child maintenance order of $1000 Canadian per month ‘so long as the child is eligible for maintenance under the Divorce Act’.
On 19 October 1995, a further order was made to vary the maintenance order to $1260.80 Canadian per month commencing 1 January 1993.
The father says that he was unaware that proceedings had been brought against him. In an affidavit filed in these proceedings, the father states that at no time was he aware of applications being made to the Canadian Court. He states that he first became aware of the orders in 2000 when the payee sought to enforce them when he was living in Louisiana in the United States. It was only then that the father says he had the opportunity to read the material filed in the Supreme Court of British Columbia.
The mother states that the Supreme Court of British Columbia only acted after she filed an affidavit proving service of the application upon the father. A copy of the affidavit of service has been annexed to the affidavits before me. It is an affidavit by Mr R sworn on 14 November 1992 swearing to personal service upon the father at the address at which he was then staying in Canada. The affidavit swears to service occurring at 11.13 pm on a Friday night. This is consistent with the father’s evidence that someone tried to serve him around midnight.
The father’s version of the events of that evening are that the deponent of the affidavit of service, whom he alleges was the mother’s boyfriend at the time, attended at his residence and attempted to give him something. The father says he did not know what the man was attempting to give him, he declined to accept the item, and the man then went away leaving nothing behind. The father annexed to his affidavit a statement by his girlfriend at the time, Ms B, who said she was present that evening. Ms B stated that a man came to their apartment to serve the father with documents, and that the documents were not left behind. She advised the father not to take an envelope which was being held out. Her version is that the man said he had papers for the father. The father stated he did not take the papers as he was apprehensive about what the wife might be doing and that the circumstances were unusual.
The events occurred nearly 20 years ago. I do not have the benefit of hearing Mr R give evidence, nor is the father’s girlfriend at the relevant time present at Court to give evidence.
The father’s evidence must also be seen in light of documents he produced relating to the proceedings in the Civil District Court for the Parish of Orleans in the State of Louisiana, United States. The father produced a bundle of photocopies of documents, including Canadian court documents, which were produced to the Court in Orleans, statements of arrears, a statement from the Family Enforcement Maintenance Program in Canada, together with a copy of what appears to be an unsigned copy of an affidavit prepared by him for the Louisiana Court. In evidence, the father said it was a copy of the affidavit prepared and filed in the Louisiana Court, although later he said that the relevant part must have been in error. The relevant part of his copy, paragraph 19, says:
Affiant further avers that he employed an attorney in Vancouver, Cameron Kenny, who reviewed the file and sent copies of Canadian pleading on January 13, 1994. This was the first time he ever saw Canadian pleadings.
In ink above the words “saw Canadian pleadings” are the words “the divorce,” giving the appearance of the phrase “the Canadian divorce pleadings.” It seems little turns on this as the Canadian documents indicate that the process at that time in Canada was for a divorce proceeding; the maintenance, property and children’s orders were all incidental to the primary relief sought in the divorce order.
There is therefore evidence whereby one can conclude that: first, the father was aware of an informal agreement to pay child maintenance, which he says he had acted on for a period of time. Secondly, at best on the father’s evidence, he had refused to accept documents attempted to be served upon him in circumstances where it must have been apparent that the documents related to matrimonial issues between the parties. Thirdly, at least by 13 January 1994, the father had a lawyer in Canada to review the Court file and was aware of the Canadian Court proceedings. I am not persuaded that he was unaware of the Canadian proceedings.
The Louisiana Court proceedings also feature in this litigation for different reasons. The Court in Louisiana ultimately dismissed the application by the Canadian Child Support Enforcement Agency to enforce the maintenance order against him in the State of Louisiana, United States. On the face of the dismissal document it appears to have been a consent judgment on the basis that, under Louisiana law, the petition to register the foreign support order (the Canadian order) was dismissed because Canada lacked personal jurisdiction over the father at the time in which the maintenance orders were made.
The lack of jurisdiction finding by the Louisiana Court is surprising for a number of reasons. First, it seems unlikely the Supreme Court of British Columbia would make orders of this type if it lacked jurisdiction. Secondly, section 3 of the Canadian Divorce Act 1985 appears to provide jurisdiction over the spouses and the divorce proceedings if one of the spouses has been ordinarily resident in the province of British Columbia for at least one year immediately preceding the commencement of proceedings. Thirdly, as a matter of common law principles, the Court in British Columbia would ordinarily have had jurisdiction over the parties if they were served in the jurisdiction at the time that the proceedings were commenced. Fourthly, if the child is a resident of Canada, it seems likely that the Canadian courts would have jurisdiction with respect to child maintenance issues even if the father is not a resident. In these circumstances, I am not persuaded that I should make any finding to the effect that the Canadian courts did not have jurisdiction to make the orders that they did. I also note that the usual principles of comity between the courts. The Canadian courts are accorded considerable respect by the Australian courts. I proceed on the basis that orders of a Canadian court were appropriately made unless there is clear evidence to the contrary.
The father states that as a result of the Louisiana proceedings he was then of the view that the maintenance order had been discharged and therefore he had no further liability under those orders. It seems to me that, at best, the State of Louisiana was not prepared to enforce those orders or recognise them, but that the outcome in the Louisiana Court had no impact upon his obligations according to Canadian law. I note that the law of other jurisdictions would recognise the Canadian orders, such as Australia (and presumably the United Kingdom).
Objectively, I am not persuaded that the outcome in Louisiana would lead a person to conclude that all liability to support their child had come to an end, or indeed even that the Canadian Court orders had been discharged. Whether this was the father’s genuine subjective view is unclear to me. In any event the events did not involve the mother or the child and therefore it is difficult to see how any estoppel argument could be raised against the mother or the child.
It was argued that where a person has no notice of child maintenance proceedings it is appropriate for the Court to discharge the arrears, at least until the time when the person has notice of the proceedings. This is too broad a statement and a little too simplistic in the context of child maintenance. It highlights the difficulty in converting civil proceedings principles of procedural fairness that might be applicable to general civil proceedings to family law proceedings. There is no question that the father was aware that he had a child. There is no doubt that parents ought to recognise that they both have a legal and moral obligation to financially support their children. The extent of this obligation had been quantified and recognised in the hand-written informal agreement between the parties. The formal obligation, as crystallised in the orders of the Supreme Court of British Columbia, had come to the father’s notice at least by 1994, and even on the father’s version of the case at its highest by the time of the 2000 Louisiana proceedings. In these circumstances, I am not persuaded that the operation of the law in Australia would lead to some form of general discretion being exercised to simply discharge the arrears. This is not a case of a father with no notice that he has a child, or no notice of a claim by the mother.
At this point, it is appropriate to turn to the specific regulations and sections of the Family Law Act that provide the statutory framework for the decision in this case. Regulations 36 and 37 of the Family Law Regulations provide as follows:
36. [Party in Australia may apply to vary etc overseas maintenance order, agreement or liability]
(1)   This regulation applies to:
(a)    an overseas maintenance order or agreement registered in a court before 1 July 2000; and
(b)    an overseas maintenance entry liability or a registered maintenance liability.
(2)   Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.
(3)   An application may be made by:
(a)    the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or
(b)    the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or
(c)    the Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4)   The law to be applied to determination of an application is the law in force in Australia under the Act.
37 [Discharge etc of overseas maintenance order or liability made in absence of party]
(1)   This regulation applies to an application that is made under subregulation 36 (1) if:
(a)    the applicant is the person against whom an overseas maintenance order was made or the person who is liable to make payments because of a liability mentioned in paragraph 36 (1) (b); and
(b)    the applicant did not have notice of the proceedings giving rise to the order or liability, did not appear in those proceedings and did not consent to the making of the order or to the creation of the liability; and
(c)    the application is made within 6 months after the applicant was given notice that the order or liability is enforceable in Australia.
(2)   On the hearing of the application, the applicant may raise any matter that the applicant could have raised under Part VII or VIII of the Act if the proceedings giving rise to the order or to the liability had been heard in Australia.
In this case, the father’s application was made within six months of receiving notice from the Child Support Agency in Australia that the liability was enforceable in Australia. That potentially places him in the position to raise any matter that he could have raised under Part VII or Part VIII of the Family Law Act 1975 in Australia, but for his notice of the proceedings. It is appropriate that I also make findings on the question of variation, should I be in error as to whether he had notice of the Canadian proceedings.
Part VII deals with the relevant provisions relating to child maintenance. The opportunity to apply to vary the orders under s.66S is therefore open to the father. Section 66S provides as follows:
66S [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.

Had the original orders been made in Australia and service was defective, it would have been a basis for applying to have the orders varied. Indeed, had the orders been made in his absence in Australia, it would also be a basis for applying to have them varied and to reflect the true facts and circumstances that were then in place.
In this case, I have no evidence of the mother’s financial circumstances. The evidence that I have as to the father’s financial circumstances is very brief. The father states that between 1981 and 1994 he worked for [omitted], earning between $33,000 and $60,000 per annum depending upon [omitted]. It seems that the father worked in a number of exotic locations throughout the world, although the nature of the work meant it was unlikely he would have enjoyed them as exotic locations when he was there. In his brief evidence the father stated that it was dangerous and heavy work and this is the reason for the high pay. He also suffered an injury at one stage when working in Indonesia.
The father states that between 1994 and 2001 he worked in Mexico and in New Orleans. When in Mexico, he worked as an [occupations omitted] earning around $75 to $80 per week. When in New Orleans he worked as an [omitted], making “a meagre existence.” Since 2001, he has been in Australia although he returned to New Orleans in 2006, earning $4,500 on that occasion repairing a friend’s house. The father said that he has done [omitted], earning around $7,000 in the 2002/2003 financial year. From August 2004 to April 2005 he received a carer’s benefit as he was looking after his mother until she died in February 2005. Through 2007 and 2008 he said he had done some [omitted] work, earning less than $10,000 each year. He also says he has sold the occasional [omitted] and had done some handyman work for people who cannot afford tradesmen but failed to give precise figures. At present, the father has a property for which he paid $212,500, $143,000 in the bank and superannuation worth $134,919, together with a modest motor vehicle.
On the basis of this limited evidence, I am asked to exercise a discretion under s.66 to strike a rate of maintenance for the period 1994 through to when the child [X] attained 18 years of age on 25 April 2004. Ordinarily, one would be required to consider a wide range of factors in exercising such a discretion as set out in s.66J and 66K, which are in the following terms:
66J [Matters to be taken into account in considering financial support necessary for maintenance of child]
(1) In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:
(a) the matters mentioned in section 66B; and
(b) the proper needs of the child (this is expanded on in subsection (2)); and
(c) the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).
(2) In taking into account the proper needs of the child the court:
(a) must have regard to:
(i) the age of the child; and
(ii) the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and
(iii) any special needs of the child; and
(b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.
(3) In taking into account the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and
(ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit.
(4) Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
66K [Matters to be taken into account in determining contribution that should be made by party etc. ]
(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:
(a) the matters mentioned in sections 66B, 66C and 66D; and
(b) the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and
(c) the commitments of the party, or each of those parties, that are necessary to enable the party to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(d) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and
(e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.
(3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.
(4) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:
(a) any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and
(b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
(5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:
(a) by way of lump sum payment; or
(b) by way of transfer or settlement of property; or
(c) in any other way.
(6) Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
Of course, the general principles set out in s.66B through s.66D should be borne in mind when exercising this discretion, and those sections are as follows:
66B [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.
66C [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.
66D [Principles--when step-parents have a duty to maintain]
(1) The step‑parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step‑parent to have that duty.
(2) Any duty of a step‑parent to maintain a step‑child:
(a) is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and
(b) does not derogate from the primary duty of the parents to maintain the child.
The delay in effecting the enforcement of these orders should be considered. The child attained 18 six years ago and the amount due from years of unpaid maintenance is over $200,000.
At one time in Australia, following some English cases, there was a principle referred to as “the 12-months rule” to the effect that ordinarily no more than 12 months of arrears of child maintenance could be enforced. That principle if it even was the law is no longer appropriate when the Child Support Agency is available to enforce child support arrears, in circumstances where there can be no real question of a waiver or acquiescence by the payee. These issues have been discussed in detail by Walters FM in Mathieson v Hamilton [2006] FMCAfam 238; 201 FLR 28; [2006] FLC 98-032.
In this case, it is unrealistic to conclude that the mother has ever acquiesced or failed to take appropriate steps to seek the enforcement of the orders for [X]’s maintenance. The documents indicate that the orders were registered with the “Family Maintenance Enforcement Program” in January 1993, or at least backdated to then. It has long been recognised that the effect of a principle such as the 12-month rule is to potentially create a benefit for those ordered to pay child maintenance who avoid paying for as long as possible in the hope that eventually the Court will no longer enforce the orders. I am not persuaded that the delay in this case can be placed at the feet of the mother and thereby form a proper foundation for the exercise of a discretion to discharge the arrears on the basis of some concept akin to waiver or estoppel.
The question then arises as to whether or not, in the absence of any evidence of detail relating to the relevant years, I ought to exercise the discretion in the father’s favour to reduce the payable amount of child maintenance must be seen in light of the fact that the absence of evidence is large part a consequence of his long delay and the loss of that evidence over the years.
In Wreford v Caley [2010] FamCAFC 21; (2010) 238 FLR 88; (2010) 43 Fam LR 1 the mother appealed against Roberts FM’s orders discharging any child maintenance arrears payable by the father pursuant to earlier orders. One of the reasons the Full Court of the Family Court allowed the appeal was that the Federal Magistrate did not take into account relevant considerations, including the factors referred to in ss.66J, 66K and 66S (at paragraph [88]). At paragraph [76] to [77] the Family Court stated:
[76] It seems to us that it would be quite contrary to the objects and principles of Part VII – Division 7 for the Court to be able to be satisfied as to just cause merely on evidence as to the parties about their relative current financial circumstances. If that were the case, arguably, an applicant for discharge of arrears could be assured of success simply by divesting themselves of assets and income prior to a hearing.
[77] We emphasise of course the discretionary nature of the Order which the Federal Magistrate in this case was being asked to make. Nevertheless, the discretion was not totally unfettered because it required his Honour to be satisfied that there was “just cause” for discharging the Order and, adopting the proposition in Daniels and Bell (supra), then to consider whether it should be discharged and, having regard to other matters, the Court should still proceed to discharge the order. (emphasis added)
The Full Court referred to Lindenmayer J’s observations in Lutzke and Lutzke (1979) FLC 90-714 in relation to a repealed provision that was the ‘earlier statutory equivalent to s.66S’:
[56] Counsel submitted that his Honour had failed to take into account other provisions of the Act when determining whether there was just cause for discharging the child maintenance order. Counsel for the mother referred to the decision of Lutzke and Lutzke (1979) FLC 90-714 in which Lindenmayer J considered the meaning of the phrase “just cause” in the context of the now repealed s 83(1), which was the earlier statutory equivalent to the current s 66S. The provision considered by Lindenmayer J in Lutzke provided, inter alia, that a current child maintenance order could be discharged “if there is any just cause for so doing”. Insofar as it is relevant, the repealed s 83(2) and (b) also provided that the court should not increase or decrease the amount payable under the order unless it was satisfied that there had been a change in circumstances of the payee or the payer or in the cost of living which justified it doing so. The old provisions were very similar to the current s 66S(1), (2) and (3) in requiring that the court be satisfied as to a just cause. In this context, Lindenmayer J considered what constituted “just cause” and made the following observations (at 78,832):-
Looking first at sec. 83(1)(a) and (c), it is clear that the question for the Magistrate upon the husband's application for discharge was whether there was ``any just cause'' for discharging the order made in 1969 requiring the husband to pay $4.00 per week for the maintenance of each of his three children, and in my opinion it is also quite clear, as submitted by the wife's counsel (point (1) of the summarized argument above) that the husband, as the applicant, bore the onus of establishing the existence of such ``just cause''. If any authority is needed for such a basic proposition, it is to be found in Astbury and Astbury (1978) FLC 90-494 at p. 77,562. However, the Act is silent as to what may constitute ``just cause'' for the discharge of an order. In my opinion, however, the words ``just cause'' are not used in any broad general sense, nor are they intended to import any abstract notions of justice, ``palm tree'' or otherwise, into the determination of applications for discharge. In my opinion those words 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. Thus a ``cause'' for the discharge of an existing maintenance order will be a ``just cause'' only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is ``right'' or ``proper'' that the order should be discharged. If there were any room for doubt that this is the correct approach, in my opinion that doubt is removed by sec. 83(7) which provides:
(7) For the purposes of this section, the court shall have regard to the provisions of sections 72, 73, 75 and 76.” (emphasis added)
I therefore turn to the relevant considerations under ss.66J, 66K and 66S.
With respect to the matters in s.66J(3)(a):
a)There is no evidence to indicate that the circumstances of the child have altered during the relevant period. The child is now an adult, as a result of the delay in payment. There is no material as to her financial resources, but there is evidence that she is a student. However, I have regard to the fact that the absence of evidence on these issues is a consequence of the mother failing to file appropriate material.
b)The applicant had a long history of working for an [omitted] company. He quit twice and was later re-employed. He says that from 1981 to 1994 he only earned between $33,000 and $60,000 per annum working on remote [omitted]. No documents are provided to substantiate these earnings. He says he ceased this work in 1994 to go to Mexico to [occupation omitted]. It appears that he left work in the [omitted] industry for what he says was a ‘meagre existence’, without making any provision for the support of his daughter.
c)I have no evidence as to any alteration of the respondent’s circumstances. Whilst she has provided no evidence, there is nothing on which I could base a finding that her circumstances justified a different order.
With respect to s.66J(3)(b) and (c) they do not appear relevant.
It is difficult to conclude that material facts were withheld from the Canadian court, on the evidence before me. Why the father could not have continued to work in the [omitted] industry and pay child support is unclear. That a person ceases working in a well paid industry does not show that his earning capacity has necessarily reduced.
The matters set out in ss.66J and 66K are impossible to properly address on the material before me.
Ultimately I am not persuaded that the Canadian order should be altered, on the material presently before me. I note that any variation or discharge order I may make would be provisional and subject to proper review by the Canadian courts in any event.
It appears to me that the proper course is to dismiss the application to discharge or vary the Canadian orders in this Court. The applicant can apply to discharge or vary the Canadian orders in Canada if he wishes.
I will therefore extend the stay by 45 days, and in the event proceedings are commenced in Canada within 45 days, until the expiration of 3 months. It appears to me that the Canadian courts can order any further stay if appropriate. Should a Canadian stay order not be effected by the CSA the matter can be relisted before me to consider making orders in aid of the Canadian court orders.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 13 May 2011