SARKAR v AINSWORTH [2018] NZHC 1474

SARKAR v AINSWORTH [2018] NZHC 1474 [20 June 2018]NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11CAND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-Ā-KAHU ROHECIV-2017-463-62CIV-2017-463-63[2018] NZHC 1474UNDER the Family Proceedings Act 1980 andDistrict Courts Act 1947IN THE MATTER of an appeal against a decision of the FamilyCourt at RotoruaBETWEEN SARKARAppellantAND AINSWORTHRespondentHearing: 13 March 2018Appearances: F M Gush for the AppellantJ Briscoe for the RespondentJudgment: 20 June 2018JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 20 June 2018 at 3:00 p.m.pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors:Ms F M Gush, Solicitor, WellingtonMr J N Briscoe, Tompkins Wake, Solicitors, Rotorua[1] This is an appeal from a decision of Judge J F Munro in the Family Court atRotorua.1[2] The appellant and respondent were married. They have one child, who I willrefer to as "B". Under s 169 of the Family Proceedings Act 1980 and ss 11B and 11Cof the Family Court Act 1980, subject to exceptions, information identifying B cannotbe published. It is for that reason that B's name has been anonymised and pseudonymshave been used for the names of the appellant and respondent. This case may bereported and cited as "Sarkar v Ainsworth". For convenience, I will also refer to theappellant as "the mother" and to the respondent as "the father".The proceedings and the issues[3] There were two proceedings between the parties in the Family Court, asfollows:(a) One was a claim by the mother against the father to recover allegedarrears of maintenance and expenses payable for B, and for an order forspecific performance of ongoing obligations. The father entered anappearance under protest to jurisdiction. He contended that NewZealand courts had no jurisdiction because the mother's claim wasfounded on an order of a Japanese court which was unenforceable inNew Zealand. He applied to strike out the claim on the jurisdictionalgrounds. The claim was struck out.(b) The second proceeding was an application by the father for dissolutionof marriage. Section 45(1)(a) of the Family Proceedings Act 1980provides that an order for dissolution of marriage cannot be made ifsatisfactory arrangements have not been made for maintenance of achild of the marriage.2 The mother opposed the application on thegrounds that this requirement had not been met. Her opposition wasdismissed and an order for dissolution was made.1 [2017] NZFA 5181. The case name has been omitted because it has not been anonymised. I willrefer to this as "the Family Court judgment".2 The text of s 45(1)(a) is reproduced below at [35].[4] There are two central issues on appeal:(a) The first is whether the Judge erred in striking out the mother's claimon the grounds that the Court had no jurisdiction.(b) The second is whether the Judge erred in rejecting the mother'scontention that s 45(1)(a) applied and, in consequence, making theorder for dissolution of marriage.Background[5] The mother and the father were married in 2000 and separated in 2010. B wasborn in 2002. B is a New Zealand citizen. At various times the parties lived in Japanand New Zealand, with both living in Japan after they separated. When theproceedings were heard in the Family Court the mother was living with B in Japan andthe father was living in New Zealand.[6] In 2013 the parties made an agreement under s 21 of the Property(Relationships) Act 1976 (the s 21 agreement). The relevant provisions of the s 21agreement concern the father's liability to pay maintenance for and expenses of B.Those provisions are as follows:2.2 [The father] shall pay Child Support and Spousal Maintenance to [themother] to a total of NZ$5000 per month ("the Monthly Payment"),subject to a maximum of JPY450,000, together with:2.2.1 [B's] Japanese school fees (currently NZ$465 per term).2.2.2 [B's] medical expenses (averaging NZ$70 per month); and2.2.3 [B's] gymnastic and swimming fees; and2.2.4 A half share of any other extraordinary and unforeseenexpenses incurred for [B]2.3 The Monthly Payment to continue while [the father] remains in hiscurrent employment, or if he obtains other employment on a similaror higher salary. Thereafter at the option of either party Child Supportwill be paid under the Child Support Act 1991 or replacementlegislation.[7] In May 2014, when both parties were living in Japan, the father reduced themonthly maintenance payment from NZD 5,000 to NZD 1,800, or the JPY equivalent.[8] The mother then made an application to the Chiba Family Court in Japan (theChiba Court). On 4 July the mother and the father attended the Court and appearedbefore a Judge. The evidence of the nature of the hearing before the Judge, and of theeffect of a written record of the outcome of that hearing, are central to the jurisdictionissue. The written record is referred to in the judgment under appeal, and had beenreferred to in the mother's statement of claim, as an "order" of the Chiba Family Court.But there was no expert evidence on the legal nature of the document and it is by nomeans clear that it was an order. I will refer to the written record as "the Chiba Courtrecord".[9] Some detail is required as to what is established by, or at least indicated by, theevidence in relation to the hearing at the Chiba Court. There was affidavit evidencefrom the mother (on the dissolution issue as well as the jurisdiction issue) but she didnot attend the hearing. There was affidavit evidence from the father and he was cross-examined at some length. The hearing in relation to the mother's claim was a hearingdirected solely to the father's application to strike out.[10] The evidence of the mother and the father is consistent as to what occurredbefore the Chiba Court. The essence is that there was a discussion with the Judge andthis resulted in an agreement that the father would pay the mother JPY 300,000 permonth from July 2014. The mother contended that this amounted to an agreedvariation of the liability under the s 21 agreement, and a variation which reduced thefather's liability from JPY 450,000 per month to JPY 300,000 per month.[11] The father's evidence in cross-examination on this is of some importance. Heconfirmed that he went to the Chiba Court on 4 July 2014 and he was addressed bythe Judge with the mother's lawyer translating. There was then the followingevidence:Q. Right, so what was explained to you?A. Based on my income this is what I should pay, do I agree or not agree.And I said well based on my income I'm quite happy to pay that.Q. And what else was explained to you about the order?A. Nothing at all.Q. Right but you did consent to it?A. Absolutely, yeah.Q. Did you sign a memorandum consenting?A. I consented to it, yeah, yeah.Q. Did you sign a document that you said that –A. I, I'm pretty sure I must have, yes.[12] Two English translations of the Chiba Court record were put in evidence bythe mother. But neither translation indicates that the record is a court order.[13] One translation is headed "Records (Executed)" followed by the words"Sharing of Marriage fee Case". This is followed by purely formal matters of record,such as the date, the name of the Judge, and the names of the parties. The followingis at the bottom of the first page:Gist of Procedures, etc.Conciliation was executed as per annexed paper, terms of conciliation.[14] The second page is headed "Terms of Trials" followed by three paragraphsrecording what was agreed. Omitting irrelevant detail, the paragraphs are as follows:1. Adverse party will pay applicant 300,000 yen per month as sharing ofmarriage fee from July 2014 to when parties will live together ordivorce. 2. Both parties will deliberate about imposition of special expenseswhich will be incurred on educational and medical expenses for theirchild. 3. Each party will pay one's own amount of procedure costs.[15] The second translation is headed "Conciliation (settled)" and immediatelybelow that are the words "Case of Conciliation for sharing divorce costs". This isfollowed by the formal matters of record. At the bottom of the page there is thefollowing:Outline pf [sic] proceedings etc.Mediation was reached as stipulated in the attached mediation terms.The second page is headed "Conciliation terms" followed by three paragraphs whichrelevantly provide:1. The adverse party shall pay the sum of 300,000 yen per month everymonth on the last day of the month as their allotted share of livingexpenses, from July 2014 while the concerned parties live together oruntil they have divorced ...2. Both parties concerned shall have a separate conciliation regardingthe responsibility for special fees like education fees and medical feesfor the child of the two parties [B] (born 14 May 2002).3. Each party shall have joint responsibility for proceedings costs.[16] The father made payments of JPY 300,000 for five months – until November2014. The proceeding in the Chiba Court was terminated when the father failed toappear at a proposed "Divorce Arbitration" on 4 December 2014. He had returned toNew Zealand.[17] He did not make any further monthly payments after November 2014, either atthe rate specified in the s 21 agreement or the reduced rate of JPY 300,000. Hecontended that he was unemployed and, in consequence, had no obligation to makemonthly payments other than as might be required on an assessment under the ChildSupport Act 1991, pursuant to cl 2.3 of the s 21 agreement. He acknowledged that hehad continuing liability to pay B's expenses as specified in cl 2.2, but contended thatthe mother had failed or refused to provide him with necessary particulars and inconsequence payments had not been made.[18] The father's position in the Family Court hearing, and in respect of his currentfinancial circumstances, was recorded by the Judge as follows:[14] [The father] was made redundant from his employment in Japanon 19 October 2014. He returned to New Zealand and says that he has notbeen able to obtain further employment. He has not been in a position to filea tax return since then and his current status is unemployed. [The father]received a redundancy payment from [his employer]. He has invested in abusiness proposition with his son in Malaysia but does not provide anyevidence of any return or income from that investment. [The father] relies onthe provisions of the s 21 Agreement in terms of child support.[19] At least in relation to jurisdiction, the Judge was not in a position to makefindings of fact in relation to the father's contentions that he was unemployed for thereason earlier noted: it was a strike out application.3The mother's claim[20] The mother filed her claim in the District Court at Rotorua on 23 March 2016.The father's application for dissolution had been filed in the Family Court at Rotoruathe month before. An order was made in the District Court transferring the mother'sproceeding to the Family Court, and the father's application to strike out the claim washeard in conjunction with his application for dissolution and the mother's defence toit.[21] The pleading of the mother's claim, in which she advanced two alternativecauses of action, is of importance. These are causes of action pleaded in an amendedstatement of claim filed on 21 July 2016.[22] The amended statement of claim, in the background narrative, refers to themother's application to the Chiba Court and then pleads:8. The application was dealt with by way of domestic relationsconciliation proceedings (mediation).9. On or about 4 July 2014 the Chibu [sic] Family Court sealed the termsof conciliation agreed by the parties ("the Order").10. The Order materially provided that the defendant would makemonthly payments of 300,000 Japanese yen (at the timeapproximately equivalent to NZ$3,365.00) to the plaintiff from July2014 until such time as the parties either resumed living together ordivorced.[23] This part of the pleading, which leads to the prayer for relief on the first causeof action, records that the payments at JPY 300,000 were made from July to November2014, that there were no further payments and that, at "January 2015" [sic] the arrearsfor 13 months totalled JPY 4.2 million (approximately NZD 54,400).4 There are3 The mother did acknowledge that she had refused to provide any information as to B'swhereabouts or as to costs for B's schooling and extracurricular activities, for reasons sheexplained: see the Family Court judgment, above n 1, at [21].4 "January 2015" is an obvious typographical error. It should be January 2016.claims for judgment in that sum and for an order for specific performance requiringthe father to resume monthly payments at JPY 300,000 or the NZD equivalent.[24] The second cause of action is for arrears of maintenance and expenses claimedto be owing under the s 21 agreement. The provisions of cl 2 of the s 21 agreementare set out in their entirety in the amended statement of claim. The s 21 agreement isdefined as "the Separation Agreement". Clause 2 of the s 21 agreement is defined as"the Maintenance Agreement".[25] The pleading of the second cause of action concludes with the following:23. On 4 July 2014 the quantum of the Maintenance Agreement paymentswas varied by the Chibu [sic] Family Court Order from JPY450,000to JPY300,000 ("the Court Order").24. The defendant remained liable to pay the additional expenses for [B]in accordance with Clauses 2.2.1 to 2.2.4.25. The defendant complied with the terms of the MaintenanceAgreement as varied by the Court Order until November 2014.26. Since November 2014 the defendant has failed and or neglected to paythe plaintiff the monthly maintenance payments as well as theadditional payments for [B].[26] The material part of the prayer for relief on the second cause of action is asfollows:A. Judgment for such sum as the Court shall determine;B. An Order that the defendant resume making monthly payments to theplaintiff for the sums as specified in the Separation Agreement on suchdates and for such amounts as the Court determines;[27] The father filed notices of appearance under protest to jurisdiction in responseto the original notice of proceeding and statement of claim, and in response to theamended statement of claim. The grounds of protest in the second notice, with someclarification added, may be summarised as follows:(a) The foreign court order was unenforceable at common law because itwas not a final judgment.(b) Neither the District Court nor the Family Court has inherent jurisdictionto enforce a foreign court order.(c) The order was unenforceable under the Reciprocal Enforcement ofJudgments Act 1934.(d) To the extent that the claim was for enforcement in New Zealand ofmaintenance order of a foreign court, the claim should have beenbrought in the Family Court under pt 8 of the Family Proceedings Act1980. There was no jurisdiction under pt 8 because Japan is not aCommonwealth or designated country and is not a signatory to theConvention on the Recovery Abroad of Maintenance.(e) To the extent that there was a claim for future child support of a childresident overseas, the claim should have been brought under pt 8 of theFamily Proceedings Act or in accordance with the Child Support Act1991.The District Court judgmentJurisdiction[28] In the Family Court, on the jurisdiction issue, Ms Gush, for the mother,accepted that, if what is recorded in the Chiba Court record is a court order, there wasno jurisdiction to enforce it in the Family Court, or in the District Court. The argumentfor the mother in the District Court, however, was that the Chiba Court record recordedan agreement which varied the s 21 agreement.[29] The terms of the variation argued for the mother are not expressly recorded inthe judgment, except for a submission that part of the agreed variation included anobligation on the father to return to the Chiba Court to finalise ongoing support. Therewas a claim for NZD 109,472.10 as the NZD equivalent of JPY 300,000 for 29 months.[30] The Judge noted that Ms Gush acknowledged that "the Chiba Order" does notprovide for ongoing support for B. There was nevertheless a claim for B's expensesin the second cause of action, so it is apparent that there was no argument that thisclaim was based on a variation.[31] The Judge's conclusion on the variation argument was as follows:[26] There are difficulties with that submission. The Court must deal withthe evidence before it and apply the law as it stands. There is no doubt thatthe Court lacks jurisdiction to enforce the Chiba Order. The amount owing of$109,472.10 arises from an unenforceable overseas order. There is noevidence before the Court that the Chiba Order was effectively a variation ofthe New Zealand Order. There is no evidence of any link between the two. Inany event the Chiba Order is effective only until the parties divorce.[27] There is before this Court an application for Dissolution of Marriage.It must be dealt with in this Court. It can neither be adjourned indefinitely norrefused based on [the mother's] desire for [the father] to return to Japan andengage in proceedings there. This Court has no jurisdiction to order [thefather] to return to Japan and submit to proceedings there.[32] The following paragraph in the judgment records the Judge's conclusions onthe status of the s 21 agreement and the father's obligations under it. This served asan introduction to her discussion of the mother's defence under s 45(1)(a) of theFamily Proceedings Act. However, it also records conclusions bearing on myassessment of the jurisdiction issue. The Judge said:[28] This agreement remains in force. In the current situation, theprovisions for ongoing support of [B] remain available. [The father] has anobligation pursuant to this agreement to meet [B's] ongoing costs. Clearly hecannot do that unless those costs are known. The obligation is on [the mother]to provide evidence of [B's] costs to enable payments to be made. In relationto ongoing periodical payments, the agreement provides for assessment underthe child support provisions under the Child Support Act.[33] The Judge summarised her conclusions on jurisdiction as follows:[31] For the reasons given, the protest to jurisdiction is upheld. There isno jurisdiction to enforce the Chiba Order, or to acknowledge the debt arisingfrom the terms of that Order.[34] The mother's claim was struck out in its entirety.Section 45(1)(a)[35] Section 45(1)(a) is as follows:45 Arrangements for welfare of children on dissolution of marriageor civil union(1) The Family Court shall not make an order dissolving a marriage orcivil union unless it is satisfied that—(a) arrangements have been made for the day-to-day care,maintenance, and other aspects of the welfare of every childof the marriage or civil union who is under the age of 16 years(or, in special circumstances, of or over that age) and thosearrangements are satisfactory or are the best that can bedevised in the circumstances; or[36] In respect of the specified expenses for B, the Judge's conclusions wererecorded at [28], cited above. The Judge did not explicitly state that she was satisfiedthat those conclusions meant that there were satisfactory arrangements for "otheraspects of the welfare of" B, but such a conclusion can be inferred.[37] In relation to periodical payments of maintenance, the Judge held that theobligations of a liable parent under the Child Support Act 1991 constitute satisfactoryarrangements in terms of s 45(1)(a). In doing so she applied the followingobservations in a decision of the Family Court in Greenman v Miller:5[6] Although the amounts paid by the applicant for the maintenance ofthe children are clearly inadequate for the support of the children thosepayments satisfy his legal obligation to provide for the children in terms of theChild Support Act 1991 as those payments are made pursuant to a formulaassessment made by the Commissioner in accordance with Part II of that Act.If the respondent considers that child support provided by the applicant isinadequate provided she establishes the grounds set forth in the Child SupportAct 1991 she can apply under Part VIA of that Act for a departure from theformula assessment.[8] As the legislature has in the Child Support Act 1991 provided for acomprehensive method to establish the amount a liable parent shouldcontribute for the support of his or her children I do not consider it to beappropriate to use s 45 of the Family Proceedings Act 1980 to require a liableparent to pay more. If the respondent considers the amount paid by theapplicant is inadequate and she can establish the ground for a departure fromthe formula assessment then the Child Support Act 1991 does provide anadequate remedy. However if she cannot establish a ground for a departurefrom the formula assessment then it would be wrong to use s 45 of the FamilyProceedings Act 1980 to prevent the applicant from obtaining a dissolution of5 Greenman v Miller [2003] NZFLR 97.marriage. I am therefor satisfied that whilst and so long as the applicant payschild support as assessed under The Child Support Act 1991 then it is notpossible for the respondent to claim that the amount assessed is inadequateand therefore the arrangements for the maintenance of the children referred toin the assessment are not satisfactory.[38] In the discussion of s 45(1)(a) the Judge made no reference to the father'sliability under the s 21 agreement to pay NZD 5,000 per month, and there was noreference to this in her summary of the s 21 agreement (cited above at [32]). It appearsthat the Judge may have concluded that the father had no further liability for thatmonthly sum, notwithstanding the fact that the father had not provided any evidenceof any income, as the Judge had earlier recorded.6The jurisdiction issue: submissions on appeal[39] Ms Gush submitted that the Judge was wrong to strike out the mother's claimfor want of jurisdiction because the mother was not seeking to enforce an order of aforeign court. The submission, in its effect, was that the jurisdiction issues advancedfor the father, and upheld by the Judge, were irrelevant. Ms Gush argued that themother advanced two causes of action which, in summary, were described as follows:(a) A claim for arrears of maintenance under the s 21 agreement.(b) A claim for arrears of maintenance "in accordance with the agreementreached by the parties at the Chiba Family Court on 4 July 2014".[40] Ms Gush submitted that the true nature of the claim being advanced by themother was simply enforcement of a contract made in New Zealand and pursuant tothe general civil law of New Zealand.7 The alternative causes of action, as describedby Ms Gush in her written submissions on the appeal, were to enforce the s 21agreement on its original terms, including the father's liability for a monthly paymentof NZD 5,000 (JPY 450,000) or, in accordance with the agreement reached at theChiba Court, at the reduced rate of JPY 300,000 per month. Part of the quantum of6 The Family Court judgment, above n 1, at [14], cited in this judgment at [18].7 Section 21L(1) of the Property (Relationships) Act 1976 provides: "Remedies that, under anyenactment or rule of law or of equity, are available for the enforcement of contracts may be usedfor the enforcement of agreements under section 21 or section 21A or section 21B."the claim was for NZD 5,000 for nine months following the date on which the fatherbecame redundant, because the father said in evidence that he had received aredundancy payment of NZD 136,000 which was nine months' salary.[41] Mr Briscoe, for the father, supported the Judge's reasons for striking out theclaim. In respect of the argument advanced for the mother on the appeal, the fathersubmitted:The s 21 agreement, on its original terms, remains in force as the Judge held,but under that agreement [the father's] obligations to pay maintenance ceasedwhen he lost his employment and any liability would arise only under theChild Support Act 1991.The jurisdiction issue: evaluation[42] The submissions for the mother on appeal require attention to several matterswhich may not have been the subject of submissions to the Judge. These include thefollowing:• The pleadings; which were not analysed explicitly by the Judge.• Whether the Chiba Court record is a court order. The case in the District Courtappears to have proceeded on the basis that it is a court order and, as earliernoted, that is how it is defined in the pleadings.• Irrespective of the legal nature of the Chiba Court record, there is a centralissue, arising on the second cause of action, whether the Chiba Court recordwas preceded by an agreement between the mother and the father which, inaccordance with New Zealand law, amounts to an enforceable variation of theirs 21 agreement.[43] On analysis of these matters, and with some further considerations, I havecome to the conclusion that neither of the causes of action should have been struckout.[44] Ms Gush's description in her submissions of the two causes of action is notentirely accurate.8 It is, perhaps, more apt as a description of alternative ways in whichthe second cause of action could be analysed, depending on the evidence adduced at asubstantive hearing, preceded by any necessary discovery, inspection and otherinterlocutories. It is also possible – perhaps reasonably likely – that there would beneed for expert evidence as to the legal nature and effect of what is recorded in theChiba Court record and what preceded the making of the record.[45] The second cause of action was a claim to enforce the s 21 agreement. Therewas an express pleading in this cause of action that the quantum of the monthlypayment recorded in the s 21 agreement had been "varied by the Chibu [sic] FamilyCourt order from JPY 450,000 to JPY 300,000". I agree with the Judge's conclusionthat, if what is contained in the Chiba Court record amounts to an order of that court,that could not effect a variation of the s 21 agreement. This illustrates the point madeabove: a contention that there had been a variation of the s 21 agreement by court orderdiverts attention from the real issue. The real issue is whether there was jurisdictionto bring a claim seeking to enforce entitlements claimed to arise under the s 21agreement. There plainly is jurisdiction for such a claim to be brought; this was notin issue.9[46] One of the submissions for the mother on appeal amounted to an argument that,if there was no proper basis for having regard to the agreement reached between theparties at the Chiba Court, that did not mean that a New Zealand court had nojurisdiction to hear a claim to enforce the s 21 agreement on its original terms. It isunclear whether an argument to that effect was advanced in the Family Court and theJudge's summary of the submissions indicates that it was not. I am neverthelesssatisfied that it is a point of substance and one that should be addressed on the appeal.And I am satisfied that it is, in its essence, correct.8 The submission is summarised above at [39].9 Section 21 agreements are enforceable as contracts under the general law pursuant to s 21L of theProperty (Relationships) Act 1976. They may also be enforced by court order under s 25 of theProperty (Relationships) Act confirming what was agreed, followed by enforcement under s 33 ofthe Act. See: PES v DNS (2006) 25 FRNZ 863 (FC) at [17]-[24].[47] The issue raised by the pleading, referring to variation of the s 21 agreement,read in the context of the statement of claim as a whole, is not one of jurisdiction atall. It is an issue which arises often enough on claims seeking to enforce a contract:were the terms of the original contract varied by agreement between the parties? Theexpress reference to variation "by the Chiba Family Court order" was a distraction.This appeared towards the end of the statement of claim, in the pleading of the secondcause of action. But the early paragraphs of the amended statement of claim, settingout a background narrative, plead that the mother's application to the Chiba FamilyCourt "was dealt with by way of domestic relations conciliation proceedings(mediation)" and that the Court then "sealed the terms of conciliation agreed by theparties". That sealing of the terms of the agreement was defined as "the Order" and itis clear enough that that definition added to the confusion. However, there was anexpress acknowledgement by the father, in his evidence, that he had readily agreed topay JPY 3,000 per month.10 This is a sum which he knew was less than what he wasrequired to pay under the s 21 agreement. The mother also agreed to JPY 3,000knowing there was the obligation to pay more under the s 21 agreement. It is readilyarguable that there was an effective variation of the s 21 agreement.[48] In noting these matters I am not intending to record a conclusion that there waswhat in law would amount to a legally effective variation of the s 21 agreement. Itmay not. But the issue raised by the pleadings was one that I consider the FamilyCourt had jurisdiction to address, and which the Family Court (or the District Court)was bound to address on the merits. The father's application was an application tostrike out. The fact that it was an application to strike out on jurisdictional groundsdoes not in my judgment alter the requirement, on a strike out application, to assumethat the facts pleaded by the plaintiff are true.11[49] The mother pleaded that she and the father orally agreed that he should pay herJPY 300,000 per month and that this was a variation of his existing liability under thes 21 agreement to pay JPY 450,000 a month. Pleadings of fact which are demonstrablyspeculative and without foundation are not required to be assumed to be true, but themother's contentions, on the pleadings and the present evidence, are a long way10 See above at [11].11 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.removed from that. If the correct conclusion, in fact and in law, following asubstantive hearing on the merits, is that there was no agreement between the partieswhich effected a binding variation of the s 21 agreement, the court would have todetermine, on the merits, whether the father has liability for arrears under the s 21agreement on its original terms, and whether there should be an order for specificperformance in respect of future obligations for monthly payments.[50] There are substantial issues of fact relating to the father's past and any futureliability for monthly maintenance payments under the s 21 agreement, varied orunvaried, which have not been addressed. The father contended that his only liabilitywould be on an assessment under the Child Support Act, but there was no evidence tosupport this.[51] As Ms Gush noted, as part of a proceeding leading to a determination on themerits, the mother would be entitled to full discovery and production of documents toestablish, amongst other things, what the father's actual income was after he had beenmade redundant from his employment in Japan in October 2014. This would alsorequire consideration of a question whether the redundancy payment, which the fatherhimself said was calculated as nine months' salary, amounts to "salary" in terms ofcl 2.3 of the s 21 agreement. And the words in cl 2.3 – "other employment on a similaror higher salary" – require interpretation in light of full evidence. As the Judgerecorded, the father said that he had invested in a business in Malaysia, but had notprovided any evidence of any return or income from that investment.[52] Notwithstanding the absence of proof, the position taken by the father, andsupported by submissions on appeal by Mr Briscoe, was that the father's only liabilityunder the agreement will be pursuant to the Child Support Act 1991 if he, or themother, chooses to seek an assessment under that Act. That is not a position that canbe taken on the basis of the assertions advanced on a strike out application. What ismore, it involves the father advancing one provision relating to maintenanceobligations in the s 21 agreement. He is entitled to advance the provisions of cl 2.3.But they must be assessed having regard to the maintenance obligations as a whole,construed in the context of the s 21 agreement as a whole, following a substantivehearing on the merits.[53] The second cause of action included a claim to recover the expenses for B, andfor an order for specific performance in that regard, as well as a claim for allegedarrears of monthly maintenance and an order for specific performance in that regard.The claim for expenses was not a claim pleaded as being subject to variation, whetherthat is to be construed as a claim to variation pursuant to an agreement between theparties, or variation pursuant to an order of the Chiba Court. That part of the claimshould not have been struck out for this further reason.[54] The first cause of action is directed solely to matters arising from theappearance before the Chiba Court. But the claim, as pleaded, is not a claim to enforcea court order, notwithstanding use of the word "order" to define the Chiba Courtrecord. The pleadings refer expressly to an agreement between the parties. For thereasons set out in relation to the second cause of action, if what occurred did notamount to a court order, the record is a record of an agreement between the motherand the father. On ordinary principles, there was jurisdiction to determine a claimfounded on that alleged agreement. That would, amongst other things, give rise toissues as to the consequences of that agreement for the s 21 agreement. But those arenot issues bearing on jurisdiction of the court to determine the claim. The first causeof action is possibly superfluous, if the second cause of action is analysed as outlinedin the preceding discussion, but that would not provide grounds to strike out the firstcause of action for want of jurisdiction.[55] For these reasons I am satisfied that the claim should not have been struck out.The order striking it out will be set aside and the matter remitted back to the FamilyCourt for determination of the claim on the merits in that court or, if deemedappropriate, in the District Court.[56] It may be noted that the substance of the result of this appeal, with the claimreinstated and remitted back for hearing, could have been achieved by the mother'sfiling a new proceeding and statement of claim, with the latter addressing thedeficiencies of the existing statement of claim and pleading the alternative claimsoutlined by Ms Gush. Given my conclusions on the existing claim that, of course, isunnecessary and also means that there is no added cost for the commencement of afresh proceeding.[57] The existing statement of claim should probably be amended. The precedingdiscussion indicates what may amount to deficiencies. However, I consider it wouldbe inappropriate for this Court to make directions in that regard. There were nosubmissions on appeal directed to amendment of the pleadings. Amendment is amatter best left for determination in the court of first instance and following anynecessary interlocutory applications, either by the mother or by the father, in respectof the pleadings.Section 45(1)(a) of the Family Proceedings Act: submissions and evaluation[58] On s 45, Ms Gush did not argue that Greenman v Miller was wrongly decided,but that it is distinguishable from the facts of the present case and for that reasonshould not have been applied by the Judge. She argued that it is distinguishablebecause in the present case there has been no assessment under the Child Support Act1991 and, if there is, the father will be assessed as having no income because he hasno New Zealand taxable income. She submitted that Greenman v Miller is alsodistinguishable because this is a case where the father's liability should be assessed inaccordance with Japanese law. Ms Gush advanced various reasons, including anargument that "the father submitted to the Japanese legal process" and he should returnto Japan for that process to be completed.[59] Ms Gush submitted that, in the circumstances outlined in her submissions, adecision of the Family Court in Church v Church (No 2) should be applied.12 Thedecision in that case has no application for two reasons. The first is that it was adecision made before the Child Support Act 1991 came into force. The second is thatthe applicant for dissolution of marriage in that case argued that there were satisfactoryarrangements because, at the hearing of the application, the applicant had consentedto an interim order for maintenance of $20 per week. Judge Inglis QC held:13[The] court cannot be bound by any agreement reached between the partiesunder pressure of a deadline to meet the requirements of s 45(1), but is obligedto satisfy itself that any such agreement, or any proposal advanced by theparties or either of them, meets those requirements. It is not a question ofwhat is acceptable or convenient for the parties.12 Church v Church (No 2) (1990) 6 FRNZ 118 (FC).13 At [120].[60] The agreement for payment of maintenance and expenses for B in this case isquite different from the agreement in Church v Church and the interim maintenanceorder that followed. This is because the s 21 agreement in this case is a consideredagreement entered into on legal advice to each party in accordance with therequirements of the Property (Relationships) Act and because it was not an interimarrangement.[61] I am not persuaded that there was any error by the Judge in applying Greenmanv Miller. As noted in the preceding discussion of the jurisdiction issue, there is aquestion still to be determined whether the father's liability for maintenance for B islimited to liability under the Child Support Act, but that unresolved issue does not bearon the question under s 45 whether there are satisfactory maintenance arrangements.There will be such liability, if cl 2.2 of the s 21 agreement does not apply. I agree withJudge Robinson's opinion in Greenman v Miller that the court cannot conclude thatarrangements in accordance with an Act of Parliament are not satisfactoryarrangements. An element of Ms Gush's argument was that arrangements cannot be"satisfactory" if the result will be that no maintenance will be paid. That would be theconsequence of the Act, not of the arrangements.[62] There was a further argument for the mother that the arrangements are notsatisfactory because the evidence established that the father avoided liabilities orobligations. This was said to be demonstrated in a number of ways, ranging from thereduced payments of monthly maintenance in May and June 2014 and the father'sfailure to return to the Chiba Court in December 2014. It may be that in some casesthe evidence relating to breach of obligations to pay maintenance pursuant to amaintenance agreement, or court order, is such that the court would be justified inconcluding that the arrangements made are not satisfactory. But I am not persuadedthat there was any error by the Judge in her approach on the facts of this case.[63] In consequence, I am satisfied that the mother's appeal against the order fordissolution should be dismissed.Result[64] The appeal against the Family Court order striking out the appellant's claim isallowed and the respondent's application to strike out the claim is dismissed. Theproceeding is remitted to the Family Court for determination.[65] The appellant is entitled to 2B costs on the strike out application in the FamilyCourt and on this appeal.[66] The appeal against the order for dissolution of marriage is dismissed.[67] Costs on the dissolution appeal are to lie where they fall.___________________________________Woodhouse J