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Application to discharge spousal maintenance dismissed

Application to discharge spousal maintenance dismissed

Ezard & Ezard

Application to discharge existing Court Order and arrears

  1. I turn now to consider the husband’s application to discharge the existing order which requires him to pay spousal maintenance to the mother and his application for discharge of the arrears owing by him to her as a consequence of that Order.
  2. The husband’s formal application is contained within the Response to an Application in a Case (filed 20 October 2016) by which he seeks an order that the Order made 4 May 2015 – which provides that he is to pay the mother spousal maintenance in an amount of $1,000.00 per week – be discharged.
  3. I note, however, that a further Order was made by consent on 13 July 2015. This Order (which is the operative order) reflects the parties’ agreement that, from 15 June 2015, the husband pay the wife $1,000.00 per week spousal maintenance and that, by way of order departing from the quantum of child support payable pursuant to the assessment of child support in accordance with the Child Support Assessment Act 1989 (Cth), he pay the mother child support in the amount of $500.00 per child per week from 15 June 2015 and also pay the costs of the children’s attendance at private school and meet other defined expenditures.
  4. During the hearing, Counsel for the husband made it clear that the husband seeks to discharge the July 2015 Order only insofar as it relates to his obligation to pay spouse maintenance and that he seeks to discharge only those arrears which have arisen as a consequence of the obligation imposed upon him by that order to pay spouse maintenance to the wife in the sum of $1,000.00 per week. He does not, therefore, seek to discharge the Order insofar as it relates to his financial obligation to pay child support or to discharge any arrears which exist in relation to that obligation.
  5. The wife’s evidence is that the husband ceased making any payments in relation to child support and spousal maintenance in about October 2015. She says that, since then, he has only paid mortgage and insurance premiums referable to the former shared residence and has paid the children’s school fees. She accepts that he has paid $17,683.32 since the July 2015 Order was made.
  6. The wife asserts that, as at 12 December 2016, the husband is in arrears in an amount of $33,000.00 – referable to spousal maintenance – and $25,320.11 – referable to child support.
  7. Her case, in essence, is that his failure to comply with the obligations to pay monies he agreed to pay to her has arisen in circumstances where he continues to take the children with him to Sydney each alternate weekend. It is also submitted that his non-compliance with the Order has occurred despite his gross personal income for tax purposes being over $2 million in the 2015 financial year and about $800,000.00 in the 2016 financial year.
  8. It was appropriately accepted by Counsel for the husband that the husband bears the onus of establishing those matters prescribed by s 83 of the Family Law Act 1975 (Cth). That section provides that, if there is in force an order with respect to the maintenance of a party to a marriage, the Court may (relevantly) discharge the order if there is any just cause for so doing or suspend the operation of the order (wholly or in part) either until further order or until a fixed time or the happening of some future event or, subject to s 83(2), vary the order so as to increase or decrease any amount ordered to be payed or in any other manner.
  9. Section 83(2) of the Act relevantly provides that the Court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied that, since the order was made, the circumstances of the person liable to make payments under the order have so changed as to justify it so doing. Further bases upon which a Court may make an order increasing or decreasing an amount previously ordered includes that material facts were withheld from the Court that made the order or that evidence previously given was false.
  10. Section 83(5A) of the Act relevantly provides that the Court should have regard to any payments, transfer or settlement of property made by a party to a marriage to the other party. There is no evidence to suggest that there has been any transfer or settlement of property previously made by the husband to the wife, other than that he has previously paid $30,000.00 to her for her use in meeting legal expenses associated with the litigation.
  11. It is clear also (see s 83(6) of the Act) that the Court has the power to make an order decreasing the amount of a periodic sum payable under another order in a retrospective manner to such date as the Court considers appropriate. Section 83(7) of the Act provides that, for the purposes of s 83, the Court shall have regard to the provisions of s72 and s 75 of the Family Law Act 1975 (Cth).
  12. Having regard to the evidence relied upon by the husband in support of his application, I consider, on an interim basis, it to be more likely than not that the indebtedness referred to by the husband in that material was likely to have been known to him at the time he entered into the July consent order. Further, whilst it appears he received a Statutory Demand for payment of about $900,000.00 in October 2015, this was referable to a period from October 2014 to October 2015 and likely known to the husband. I also take into account that, despite this Demand having been received by him, he made no application to the Court to seek to be released from the terms of the consent order made in July 2015 until much more recently. Further, there is no evidence given by the husband to suggest that the debts he refers to – including the significant one to the Australian Taxation Office – as those he is required to repay arose only after he entered into the July consent order, or that his obligation to meet those repayments represents a significant change to his financial circumstances in circumstances that were unknown to him, or incapable of being known by him, when he entered into the July 2015 consent order.
  13. Further, whilst the May 2015 Order was, it seems, the original order by which the husband agreed to pay the wife $1,000.00 per week by way of spouse maintenance, he reaffirmed this agreement on 15 July 2015 when he agreed to a further order being made in those terms. His evidence is that he learned of the loss of a contract with a government department, “in about July 2015”. His evidence is no more specific than this. He says that, as a consequence of the loss of this contract, he lost income and had an increased debt level. However, he obviously is the person who could have given clear evidence that he had not lost the contract at the time he entered into the consent order in mid-July 2015 or, for example, that he did not know there was any prospect of him losing the contract or, for example, that he was completely taken by surprise at the loss of the contract. The fact is that he has not provided the Court with such evidence. Further, it seems to me he could clearly have particularised the date on which he learned of the loss of the contract with the government department so as to establish – without doubt – that it either pre or post-dated 15 July 2015 (when the terms of the consent order were struck) but he chose not to.
  14. Whilst it was submitted on his behalf that he pays about $9,348.00 per week tax, the mortgage repayments on the home in which the mother and children live and rent for himself, it is also clear that this was the situation at the time the parties entered into the consent order made on 15 July 2015.
  15. In addition, I note the contents of the father’s discussions with Ms I (the Family Report writer) in late August 2016 to the effect that he would be prepared to meet more significant financial obligations if the children and mother remained living in Australia: “If she gives him his financial settlement”, and the mother directs these monies to the children’s development and not religious development. This appears to me, on a prima facie basis at least, to be some evidence to suggest his financial position was not then so constrained that he was unable to pay moneys he is currently required to pay in meeting obligations imposed on him by the July 2015 Order.
  16. I am not persuaded that the husband has discharged the onus of establishing the matters required by s 83 of the Act.
  17. I consider that, if he decided not to take the children to Sydney every second weekend and, therefore, decided not to incur the costs associated with those visits (such as flights, accommodation and transport) it is much more likely than not that he would easily have the capacity to meet the terms of the Order he agreed to in July 2015.
  18. I accept, on an interim basis at least, the submission made on behalf of the wife to the effect that it appears the husband has simply determined to place the expenses associated with having the children participate in foreign language classes in Sydney every second weekend – which he estimates to be in an amount of $2,000.00 per week or $104,000.00 per year – ahead of his obligation to meet the existing order for the payment of spousal maintenance to the wife.
  19. I am not persuaded that the husband has discharged the onus of establishing that he does not have the capacity to meet the payments required to be made pursuant to the existing Order. I am not persuaded that the husband has discharged the onus of establishing that his circumstances have so changed since the July 2015 Order was made as to justify decreasing the amount payable or discharging the arrears.
  20. I am not persuaded that there is a just cause for discharging the term of the July 2015 Order which requires the husband to pay spousal maintenance to the wife of $1,000.00 per week. For these reasons, I decline to do so. Similarly, I am not persuaded that the husband has discharge the onus of establishing that there is a just cause to discharge the arrears payable by him to the wife in consequence of the existence of the July 2015 Order and I decline to do so.

 

 

 

 

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