XTW v XTX

Facts

The parties are the parents of a boy born in 2009. They divorced by an interim judgment granted on 12 August 2013. By consent, they had joint custody and shared care and control, with the Mother to have the Child from Friday 12pm to Sunday 8pm. The Father was to pay the Mother $500 per month as child maintenance and also bear the Child's school, medical, dental and educational expenses up to tertiary level. It was undisputed that the Father stopped the $500 payments from February 2014.

On 28 November 2024 the Mother applied in MSS 2631/2024 to enforce the order, claiming arrears of $18,000. On 7 February 2025 the Father applied in FC/OADV 78/2025 to delete the $500 order. He said the Mother had not actually exercised her weekend care and control for years and was limited to occasional dinners with the Child. The Mother said the Father dictated and restricted her time with the Child, and that she still gave the Child money. Her counsel accepted that the Child stopped staying overnight with her from May 2023, after which she spent no more than $250 a month on him. The Father has appealed.

Issues

1. Whether there was a material change in circumstances justifying a variation of the $500 monthly child maintenance order
2. Whether any variation should be backdated
3. What maintenance arrears the Mother could recover and whether any time bar applied

Holding

The court varied the order, reducing the Father's child maintenance from $500 to $200 per month with effect from 1 June 2023, rather than deleting it. On the Mother's application it ordered the Father to pay arrears of $18,000 in 36 monthly instalments of $500 from 15 August 2025, and to show proof of payment for 3 months. Each party bore its own costs.

Reasoning

Under s 68 of the Women's Charter 1961 each parent must maintain a child. The $500 order reflected the Father's far higher income and the Mother's cost of housing the Child during her weekend care. That cost does not shrink with fewer overnight stays, so while the Child still stayed overnight in any month there was no reason to reduce the Father's contribution. WhatsApp messages from March and April 2023 contradicted the Father's claim that overnight stays had ended in 2017 or 2020, and suggested he controlled when the Child could stay with her. Even so, once the stays stopped from May 2023, the Mother's actual spending fell to about $250 a month, which was a sufficient change. Given incomes of $8,540 and about $2,100, the Father should bear 80% of that, giving $200, backdated to 1 June 2023.

On arrears, the Father had paid nothing since February 2014 while the Child continued to receive at least accommodation and food from the Mother. The court held that, under the transitional provisions of the Family Justice Reform Act 2023 and the regulations made under it, the new time bar in s 91R of the Women's Charter did not apply to this application. Even if a three-year bar had applied, the Father's egregious failure to pay despite being able to do so amounted to special circumstances. The $18,000 claimed was less than what was owed even after the reduction, and the Father's counsel proposed instalments of $500.

From the judgment