W and W - [2001] FMCAfam 213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W [2001] FMCAfam 213

CHILD SUPPORT – Application to vary child maintenance orders.

Applicant:

R S J S W

Respondent:

N L W

File No:

ZP1535 of 2001

Delivered on:

4 October 2001

Delivered at:

Parramatta

Hearing Date:

28 September 2001

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Ms Nicholls solicitor, Legal Aid Commission of NSW, DX8293 Parramatta appeared on behalf of the applicant

Solicitors for the Respondent:

Mr McIlwraith solicitor, of David McIlwraith solicitors, DX8238 Parramatta appeared on behalf of the respondent wife.

ORDERS

All orders that the applicant husband pay to the respondent wife maintenance for S E W, a child of the marriage born 9 October 1979 and all arrears of maintenance arising under the said orders standing at $1500 are discharged with effect from 18 June 1994.
Payment of all arrears of maintenance in respect of M L W a child of the marriage born 3 April 1984 are stayed until the applicant husband obtains full-time employment or the said child attains the age of 18 years whichever shall first occur.
The operation of order 3 made by the Magistrates Court of Victoria at Broadmeadows on 3 February 1993 as varied by order number 3 made by the Family Court of Australia at Melbourne on 21 April 1994 insofar as it relates to the said M L W is suspended with effect from
1 May 2001 until 20 August 2001 both dates inclusive.
Order number 1 made by this court on 4 June 2001 staying the operation of the orders made by the Family Court of Australia at Melbourne on 21 April 1994 is vacated with effect from the date of these orders.
Both parties shall have liberty to apply in respect of order 2 hereof on 14 days notice.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA

ZP1535 of 2001

R S J S W

Applicant

And

N L W

Respondent

REASONS FOR JUDGMENT

The application before the court is an application by the husband to discharge certain maintenance orders which were made or, more correctly, varied by the Family Court of Australia at Melbourne on

21 April 1994 and to discharge all arrears of maintenance. The history of the matter insofar as it is relevant is that the parties to the marriage had three children, R S J W who was born on 17 August 1977; S E W who was born on 9 October 1979 and M L W born on

3 April 1984.
It can be seen that the two elder children are in fact adults at this stage. An order was made by the Magistrates Court at B in Victoria on 8 November 1988 requiring the husband to pay child maintenance. That order was varied on 3 February 1993 by that same court. The first variation was that the order for maintenance for the child R was discharged. The order was otherwise varied to proscribe that the husband should pay the sum of $50 per week maintenance for the other two children, S and M. The order was not differentiated between the other two children.
An appeal was heard by the Family Court of Australia at Melbourne and orders were made on 1 September 1993. Further orders were made on 21 April 1994 which are more specific to the application before the court. Order number 1 fixed the arrears in respect of the order which, of course, related to the two younger children, S and M at $3000 as of that date, 21 April 1994. The court then stayed the payment of those arrears until the husband obtained full-time employment. The maintenance order for the two children was then varied by reducing it from $50 per week en globo for the two children to $20 per week which His Honour divided between $10 per week for each of the children payable fortnightly.
Payments of maintenance were to be made to the Child Support Agency. That then is the situation as it remained until an application was filed at this court on 4 May 2001. The situation had been that the child support agency was pursuing the applicant husband for payment of maintenance. There were interest and late payment penalties being added to the arrears and the arrears taken right back to the orders made by the Melbourne Family Court stood at $3387.52 as at 19 March 2001. The situation however, had changed somewhat and quite substantially. Now it will be seen that the child S had in fact become an adult as her date of birth was 9 October 1979 she turned 18 on 9 October 1997. Nevertheless the arrears on the documentation from the Child Support Agency continued.
It is the husband’s case, however, that S had left the care of her mother prior to her turning 18. She in fact on his evidence had taken up residence with him on 18 June 1994. On his evidence, she resided with him until 9 January 1996. He was at that stage residing in Sydney. His evidence was that S in January 1996 chose to return to Melbourne but on his evidence did not return to the care of her mother. She resided with friends and she resided with her grandmother for a period of time.
He had, once S had come to live with him, ceased to pay maintenance in the sum of $10 per week in respect of S and that obviously passed without comment, both parties accepting the fact that S was living with the father at that stage. She in due course started receiving other income. The child M continued to reside with the mother although it was the father’s case that M had left school in the year 2000 and was in fact receiving a NewStart allowance. I will deal with issues relating to M shortly.
The mother opposed the orders, although in her evidence she does not disagree with many of the basic facts of the situation. The court must look at its powers which are set out in section 66S of the Family Law Act and section 66W relating to recovery of arrears. Dealing first of all with S, it is quite clear that she had left her mother’s care on

18 June 1994 and that at the very least payments of maintenance should have been suspended and the order should have been suspended until such time as she either returned to her mother’s care or if the father had in fact commenced proceedings seeking that that order should be discharged and that there should be an order in favour of himself. He did not do so.
I have heard evidence from Mrs W which indicates that at some stage S did return and spend some time living with her mother in quite recent times when she reached the age of 19. Of course, she was an adult at that stage and as there was no extension of the maintenance order this is a matter I cannot take into account. S herself put on a short affidavit indicating that for a period of time for about a month in 1995 the father had in fact had employment and that employment lasted for about a month.
The situation with S quite clearly is that she ceased living with her mother on 18 June 1994, did not return to her mother’s care and that the maintenance order in respect of S should in fact be discharged with effect from 18 June 1994. What is the situation in regard to the arrears? If nothing had happened the maintenance order would have continued until in fact it ceased to have any operation on 9 October 1997. The arrears however in respect of maintenance for S have, of course, carried on at least in the mind of the Child Support Agency.
Is it open to enforce payment of arrears of maintenance after a maintenance order has been discharged, after the child is out of the parents care and after the child reaches the age of 18. The law is quite clear that such arrears cannot be recovered. The authority is the decision of the Family Court of Western Australia in the marriage of Miller reported in (1979) FLC 90-669. In that case McCall J held that arrears of maintenance in respect of children over the age of 18 years are not recoverable. His Honour said at page 70 565:
“Accordingly, in my view, unless there is an order of a court exercising jurisdiction under the Family Law Act, extending the period during which maintenance for a child is to be paid beyond the age of 18 years then the order ceases to have effect upon the child reaching the age of 18 years.”
He went on to say:
“That being the case in my view the arrears of maintenance in respect of the children in this case who have attained the age of 18 years are irrecoverable as the order now stands. Unless an order is made by a court exercising jurisdiction under this Act extending the maintenance beyond the age of 18 years such arrears cannot be recoverable in enforcement proceedings.”
The arrears of maintenance in this case relating to S which, on my reading of the orders made in April 1994, would amount to $1500 as at that date would remain virtually unchanged until 18 June 1994 when S went to live with the father. It is only a very short time, it was only two months after the orders were made that S went to reside with her father so I am of a view that the arrears are not recoverable and that the operative date should be in fact 18 June 1994.
What now is the situation with M? M is currently in custody. M on his mother’s evidence left school and had difficulty obtaining employment and obtained Jobsearch allowance. M is the only child under the age of 18 years. He is 17 years of age. He does not turn 18 until April next year. M was in receipt of Jobsearch allowance which I am of a view was an income-tested allowance and should not be taken into account. However, in April of this year M was involved in the commission of an offence relating to a motor vehicle and suffered injuries of some severity in a crash involving that motor vehicle.
He was taken into custody and on the evidence before me taken from a letter Adam Jefferson of Human Services Victoria which was tendered in evidence by Mr McIlwraith for Mr W, M was taken into custody and despite being a child was incarcerated at the Port Phillip Prison until 21 August. Why was he in an adult prison? The simple fact was that he was in the prison hospital. His injuries were quite serious and that he was a patient in the hospital and as there is no hospital in a juvenile justice facility in the state of Victoria he had to be held in the prison hospital until he was well enough to be released.
It was not until 21 August this year that he was transferred to a juvenile justice centre at Parkville where is currently serving a sentence. This sentence will extend for some period of time, the expiry date according to a document produced by Ms Nicholls for the husband signed Mr Kanegerser, the unit manager of the Melbourne juvenile justice centre at Parkville, indicates that his sentence expires on 21 August 2002 although he is eligible for parole on 19 November 2001. If he is successful in obtaining parole he would be able to spend the next eight months in the community under supervision.
Ms Nicholls puts to the court that the maintenance order should be either suspended or discharged from the date of M’s incarceration. She relies on a statement in Mr Kanegerser’s letter saying:
“Whilst M is in custody he is ineligible to receive any benefits apart from the provisions provided by the centre for his rehabilitation.”
I am of a belief that that reference is to benefits in the light of Jobsearch or other allowance which a person in custody is not able to receive because if he is in custody he is not able to go out into the community and seek employment. Mr McIlwraith for the mother puts to the court that there is a case for the maintenance to be continued notwithstanding M’s incarceration currently in Parkville. He relies on Mr Jefferson’s letter and he relies on the evidence from the respondent herself to the extent that she has been providing money to meet M’s needs. Mr Jefferson says, and I quote the final paragraph:
“M has been in custody at Port Phillip and at the MJJC since

1 May 01 and in this time M’s mother, M W, has been supporting M financially by depositing money into his client account for cigarettes, clothing, toiletries and shopping. Due to these items being a necessity M’s mother would have to deposit money on a weekly basis and always made sure that there was enough money in his account for such items.”
The letter from Mr Jefferson has, as its heading indicates that he too works at the Melbourne Juvenile Justice Centre. I am not satisfied that the time that M has spent in the prison hospital at Port Phillip is a time when there has been shown to be any need for his maintenance. He is a patient in a hospital, he was certainly receiving accommodation, treatment, etc. free of charge. He would not require clothing for a large period of that time. During his hospitalisation he was in fact being cared for by the state of Victoria. What about the situation since 21 August and continuing when he was released from the prison hospital and transferred to MJJC at Parkville?
It is quite clear that he is in a juvenile justice centre where he is not required to wear prison clothes, that he is in a position where he can wear ordinary clothing as do all inmates of that centre, he does have some requirements for, in effect, pocket money. I note that Mr Jefferson refers to the mother depositing money for these matters into his account referring to cigarettes, clothing, toiletries and shopping and comments, “due to these items being a necessity”. I will make it quite clear at this stage that this court does not consider that the provision of cigarettes for a child be he in a juvenile justice centre or anywhere else can be regarded as a necessity. The sale of cigarettes to children being people under the age of 18 is certainly prohibited in the state of New South Wales and it is my understanding that there are similar laws in the state of Victoria.
Against this however, it is clear that M needs to have some clothing, he would be of an age where he requires essential toiletries, deodorants, etc. and there would be a need for some other items for him not of a cigarette nature. I am of a view that there is, despite the fact that his basic accommodation and food needs are being provided, that there is a need in the child for supplementation from the parents for such items excluding cigarettes and I am of a view that the sum of $10 per week which is the amount of the order which is currently being stayed, I am of a view that the amount of $10 per week is an amount which can clearly be shown to be a reasonable amount for the father to pay.
What about the father’s capacity to pay? We should go right back to 21 April 1994 when the Family Court fixed the arrears of maintenance at $3000 and stayed it – it stayed the payment of those arrears until the father obtained full-time employment. The evidence from the father was that at that stage whilst he had suffered quite a serious work-related injury, the evidence from the father was that he was hopeful that he would be back in employment within a period of a few months. Time has shown that that is not in fact the case. The injuries which he sustained to his right ankle have led to a degenerative condition which has affected the joints in his right hip, left elbow, left knee and vertebrae of the spine.
He walks with the assistance of a stick and he says that he is in constant pain and discomfort. He had found himself unable to perform his previous work which involved physical activity and has made attempts to find work in a more sedentary occupation which has not been successful. He had a months worth of work in 1995 as testified to by his daughter S but there is no evidence that he has been able to obtain any full-time work since then. I am of a view that it would be unlikely that the near future would see the applicant being back in a position where he would have full-time employment. That situation may change.
What then are the orders which the court would make? The court had previously stayed the operation of the orders pending the hearing of these proceedings. The situation is that I believe that the maintenance order in respect of the child M should in fact be suspended from 1 May until 20 August this year being the date when he entered custody and the last day on which he was an in-patient in the prison hospital at Port Phillip. I am of a view however that the maintenance payments should continue with effect from the following day. At this stage however I am of a belief that the general stay which I made on 4 June should in fact be vacated so that the maintenance order will operate for the time being as far as M is concerned. However, I propose to grant liberty to apply as there are a number of things which may occur. I am not of a view that the arrears in respect of M should be discharged at this stage. I say this in the belief however that it is extremely unlikely that the applicant will be in a position to pay them in the immediate future. Of course, if he is not available to pay them by 3 April then they will not be recoverable at all.
There were two items of arrears, a sum of $160 missed payments and a sum of $130 brought about by an administrative error by Centrelink in fact although the Child Support Agency which Ms Nicholls for the husband says should also be discharged. I am not of a view that they should be at this stage although I am of a view, as I said, that it is unlikely that the husband is ever going to be in a position to pay them. My view is that they should be stayed until either the husband obtains full-time employment or M reaches the age of 18 years.

I certify that the preceding twenty-four(24) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: