Caley and Wreford - [2008] FMCAfam 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CALEY & WREFORD

[2008] FMCAfam 303

FAMILY LAW – Child maintenance – application to discharge arrears – father’s dire financial position – no fund from which arrears can be paid.

Family Law Act1975 (Cth) s.66W(2)

Kelly & Kelly (1996) FLC 92-680
Cameron & Helie [2004] FMCAfam 685
Spry & Roet (1977) FLC 90-301
Mathieson v Hamilton (2006) FMCA Fam 238
Hamilton v Nowak (1988) FLC 91-981, (1988) 12 Fam LR 704

Applicant:

MR CALEY

Respondent:

MS WREFORD

File number:

HBC 495 of 2007

Judgment of:

Roberts FM

Hearing date:

18 March 2008

Date of last submission:

18 March 2008

Delivered at:

Launceston

Delivered on:

18 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr McGuire

Solicitors for the Applicant:

Ian Guest & Associates

The Respondent was not represented by a lawyer

ORDERS

That any arrears of maintenance payable by MR CALEY pursuant to orders of the Family Court of Australia of 3 June 1991 are discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

HBC 495 of 2007

MR CALEY

Applicant

And

MS WREFORD

Respondent

SETTLED EX TEMPORE REASONS FOR JUDGMENT

The application

The application before the court was filed by MR CALEY (“the father”) on 18 September 2007, in which he seeks an order that arrears and penalties in relation to maintenance payments for the two children be discharged. As indicated earlier, I do not believe I have the power to discharge any penalties. However, it has been my experience that, if arrears are discharged, the Child Support Agency generally waives the penalties.
The Respondent to the application is MS WREFORD (“the mother”) and the parties are the parents of K born in 1985 and R born in 1986.

The maintenance order

The maintenance is payable pursuant to orders made by consent in the Family Court of Australia in 1991. At that time the parties’ lawyers, Bay Legal Practice on behalf of the mother and her then husband,

Mr Milne, and McGrath Guest on behalf of the father, had signed a consent memorandum on 22 May 1991 and Registrar Court made orders in terms of that memorandum on 3 June 1991.
I will say at this point that the consent memorandum was unusual, in that the parties to the action were the mother and her then husband, and the father. The orders provide that:
·The mother and Mr Milne would have joint custody and guardianship of the children;
·the father would pay $50 a week ($25 a week per child) by way of maintenance until such time as the children reached the age of 18, with a proviso that if the father became unemployed at any time the payments would cease until re-employment; and
·the maintenance would be indexed in accordance with the inflation factor in the regulations to the Child Support (Assessment) Act 1989.
There was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Caley and Wreford

Details

AGLC: Caley and Wreford [2008] FMCAfam 303
Case: [2008] FMCAfam 303
Decision Date: 18 March 2008

CaseChat Overview and Summary

Caley and Wreford is a decision of the Family Court of Australia, which involved a dispute between the parties regarding the discharge of maintenance arrears. The applicant, Caley, sought the discharge of maintenance arrears that had been ordered by the Family Court of Australia on 3 June 1991. The application was made in the context of the ongoing proceedings between the parties, which included issues of child support and maintenance.

The central legal issue the court was required to address was whether the maintenance arrears owed by Caley to Wreford should be discharged under the relevant provisions of the Family Law Act. The court had to consider the current circumstances of the parties, including changes in their financial situations, and assess whether there were any exceptional circumstances that warranted the discharge of the arrears.

The court deliberated on the evidence presented regarding the financial circumstances of both parties and the changes in those circumstances since the original orders were made. It was noted that there had been substantial changes in the financial situations of both parties, which the court took into account. Additionally, the court considered the possibility that the arrears had become unenforceable due to the passage of time and the potential hardship it would cause Caley to pay the arrears. After weighing all the evidence, the court determined that the arrears should be discharged, given the exceptional circumstances and the changes in the financial situations of both parties. The court found that the discharge of the arrears was in the best interests of justice.

Orders

Orders of the court

That any arrears of maintenance payable by MR CALEY pursuant to orders of the Family Court of Australia of 3 June 1991 are discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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