Cameron & Helie - [2004] FMCAfam 685

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAMERON & HELIE

[2004] FMCAfam 685

FAMILY LAW – Child maintenance – discharge of order – variation of order – arrears – stay – overseas maintenance order – child maintenance beyond 18 years of age – applicant resident of Australia – respondent resident of France – proceedings under Family Law Regulations 1984 reg. 36 – whether Family Law Regulations 1984 reg. 37 applies – “just cause” for discharge of maintenance order – discretionary nature of proceedings for enforcement of arrears of maintenance.

Family Law Act 1975 (Cth), ss.66C, 66P, 66W
Child Support (Assessment) Act 1989 (Cth), s.140
Child Support (Registration and Collection) Act 1988 (Cth)
Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000, Regs. 20, 21, 22, 23
Family Law Regulations 1984, Regs. 36, 37, 38

B & H [2002] FMCAfam 480 – cited
Jones v Dunkel (1959) 101 CLR 298 – cited
Vakil & Vakil (1997) 138 FLR 88; 21 Fam LR 508; FLC 92-743 – followed
Heethuis v Van Gelderen (1999) FLC 98-005 – not followed
Roche v Glenn [2002] FamCA 818; (2002) 30 Fam LR 68; FLC 93-123
– followed
Kelly and Kelly (1996) 20 Fam LR 502; FLC 92-680; 131 FLR 160 – followed
Port of Melbourne Authority v Anshun Pty Ltd (1981) CLR 589 – referred to
Lutzke and Lutzke (1979) 5 Fam LR 553; FLC 90-714 – followed
Spry and Roet (1977) FLC 90-301; 3 Fam LN 50 – followed
Reid and Reid (1978) FLC 90-529 – followed

Applicant:

GORDON TREVOR CAMERON

Respondent:

MARIE-PIERRE HELIE

File No:

PAM 2882 of 2003

Delivered on:

26 November 2004

Delivered at:

Sydney

Hearing date:

23 April 2004

Judgment of:

Scarlett FM

Amended under the “Slip Rule” on 6 December 2004

REPRESENTATION

Counsel for the Applicant:

Mr Sansom

Solicitors for the Applicant:

Watts McCray

Counsel for the Respondent:

Ms James

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Order for Maintenance made by the Tribunal de Grande Instance of Dijon in the Republic of France on 6 June 1988 providing that the Applicant Husband pay to the Respondent Wife the sum of FIVE THOUSAND FRANCS (FF 5000) per month for the support and education of the child JAMES CAMERON born 23 August 1981 is discharged retrospective to the date upon which the Order was made.
All arrears in respect of the said order are discharged.
All other applications are dismissed save as to costs and the proceeding is removed from the List of Cases Awaiting Finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM2882 of 2002

GORDON TREVOR CAMERON

Applicant

And

MARIE-PIERRE HELIE

Respondent

REASONS FOR JUDGMENT

This is an application by a father of a child to discharge an order for child maintenance made by a court in France. He also seeks to discharge all the arrears due under the order. The father lives in Australia, as does the child, who is now an adult. The mother still lives in France.
In his application, filed…

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 Cameron & Helie

Details

AGLC: Cameron & Helie [2004] FMCAfam 685
Case: [2004] FMCAfam 685
Decision Date: 26 November 2004

CaseChat Overview and Summary

The case involved Cameron and Helie, where the husband sought to discharge a maintenance order issued by the Tribunal de Grande Instance of Dijon in France, which required him to pay five thousand francs per month for the support and education of their child born in 1981. The wife opposed the application to discharge the maintenance order. The court was tasked with determining whether the maintenance order should be discharged and, if so, whether any arrears should also be discharged.

The primary legal issue before the court was whether the maintenance order issued by the French tribunal should be recognised and enforced in Australia. The court had to consider the relevant Australian and French laws governing the recognition and enforcement of maintenance orders, as well as the circumstances under which such orders may be discharged. The court also had to decide whether the child's best interests would be served by discharging the maintenance order, given the significant change in circumstances since the order was made.

The court found that the maintenance order should not be recognised and enforced in Australia as it was not in the best interests of the child. The court noted that there had been a significant change in circumstances since the order was made, including the child's age and the husband's ability to pay. The court also found that the order was no longer necessary to ensure the child's proper support and education. Accordingly, the court discharged the maintenance order and all arrears in respect of the order. The court dismissed all other applications and removed the proceeding from the List of Cases Awaiting Finalisation.

Orders

Orders of the court

The Order for Maintenance made by the Tribunal de Grande Instance of Dijon in the Republic of France on 6 June 1988 providing that the Applicant Husband pay to the Respondent Wife the sum of FIVE THOUSAND FRANCS (FF 5000) per month for the support and education of the child JAMES CAMERON born 23 August 1981 is discharged retrospective to the date upon which the Order was made.

All arrears in respect of the said order are discharged.

All other applications are dismissed save as to costs and the proceeding is removed from the List of Cases Awaiting Finalisation.

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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