FAMILY COURT OF AUSTRALIA
| CHIODO & SHAW | [2011] FamCA 639 |
| FAMILY LAW - CHILD AND SPOUSAL MAINTENANCE – Application to discharge child maintenance and spousal maintenance orders made in 1990 – Whether there is “just cause” to discharge the orders retrospectively – Whether, if “just cause” is established, the orders should be discharged – Consideration of sections 66W and 83 of the Family Law Act 1975 (Cth) and Wreford & Caley (2010) 43 Fam LR 1 – Where respondent and the children lived in parlous financial circumstance as a consequence of the applicants failure to comply with his obligations under the orders – Where the applicant has failed to give full and frank disclosure – Where applicant undertook a course of action to dispose of legal interests in assets to ensure the he neither had income nor assets against which the respondent could enforce – Where respondent’s expenditure on children reasonable – Just cause not established – Application refused. FAMILY LAW - PROPERTY SETTLEMENT – Application to discharge property settlement orders made in 1990 – Whether applicant established a ground for relief pursuant to s 79A of the Family Law Act 1975 (Cth) –Ground for s 79A relief not established– Application refused. FAMILY LAW - CHILD MAINTENANCE, SPOUSAL MAINTENANCE & PROPERTY SETTLEMENT – Application by respondent for enforcement of child maintenance, spousal maintenance and property settlement orders made in 1990 – Whether s 17 of the Limitation Act 1969 (NSW) applies – Barrak and Ors & Barakak (2005) FLC 93-235 considered and applied – Where respondent’s action is an enforcement of obligation and not an action on a cause of action – Limitation Act 1969 (NSW) does not apply – Whether the Court can award a sum of more that 12 months arrears – “12 month rule” considered – Where “12 month rule” no longer the law – Where respondent did not delay in seeking to enforce the orders – Where respondent and the children lived in parlous financial circumstance as a consequence of the applicants failure to comply with his obligations under the orders – Where applicant has capacity to pay the full amount under the maintenance and property orders – Where interest is only payable on property orders – Application granted. FAMILY LAW - COURTS & JUDGES – Recusal of Judicial Officer – Application of test in Ebner v Official Trustee (2000) 205 CLR 337 – Family association - Where judicial officer’s spouse appeared 6 years previously as the respondent’s agent in the making of orders by consent – Where circumstances do not give rise in a fair minded lay observer of apprehended bias. FAMILY LAW - APPLICATION FOR ADJOURNMENT – Where applicant self-represented – Where applicant unlikely to have legal representation after adjournment if application granted – Where applicant had significant litigation experience in the Family Court and the Supreme Court of NSW – Where applicant had sufficient time to retain lawyers to meet arguments raised by the respondent – Application refused. |
| Evidence Act 1995 (Cth)… |
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- AGLC
- CHIODO & SHAW [2011] FamCA 639
- Case
- [2011] FamCA 639
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether "just cause" existed to retrospectively discharge the maintenance orders under section 66W of the *Family Law Act 1975* (Cth), and whether any grounds for relief under section 79A of the Act were established for the property settlement orders. Additionally, the court had to consider whether the *Limitation Act 1969* (NSW) applied to the enforcement proceedings, and if the respondent had delayed in seeking enforcement, impacting the ability to recover arrears beyond 12 months. The court also addressed the applicant's application for recusal based on a perceived conflict of interest and the applicant's request for an adjournment.
Regarding the discharge of orders, the court found that the applicant had failed to establish "just cause." This was due to evidence demonstrating the respondent and children lived in parlous financial circumstances as a result of the applicant's non-compliance, and the applicant's failure to provide full and frank disclosure, including a course of action to dispose of assets to avoid enforcement. The court applied the principles from *Wreford & Caley* (2010) 43 Fam LR 1, finding no just cause to discharge the maintenance orders. Similarly, no grounds for relief under section 79A were established for the property settlement orders. For the enforcement proceedings, the court applied *Barrak and Ors & Barakak* (2005) FLC 93-235, holding that the respondent's actions constituted an enforcement of existing obligations, not an action on a cause of action, and therefore the *Limitation Act 1969* (NSW) did not apply. The court also noted that the "12-month rule" regarding arrears was no longer the prevailing law. The application for recusal was refused, as the circumstances did not give rise to an apprehension of bias in a fair-minded lay observer. The application for an adjournment was also refused, given the applicant's litigation experience and sufficient time to retain legal representation.
The court ordered the applicant to pay significant sums for child maintenance, spousal maintenance, and property settlement arrears, including interest on the property order. Further orders were made to facilitate the enforcement of these amounts, including provisions for the transfer of property interests and restraints on the applicant's ability to sell or encumber assets, and to depart Australia. The Australian Federal Police were requested to maintain the applicant's name on the PACE alert system. Outstanding applications were dismissed, subject to any application for costs by the respondent.
Orders
Orders of the court
1.
That by way of enforcement of the child maintenance order made on 15 August 1990 in relation to the children M born … August 1972, N born … August 1975, Z born … November 1978, Y born … October 1980 and D born … April 1983, Mr R Chiodo (“the applicant”) pay Ms Shaw (“the respondent”) within 30 days $66,897.13.
2.
That by way enforcement of the spousal maintenance order made on 15 August 1990, the applicant pay the respondent within 30 days the amount of $102,771.43.
3.
That by way enforcement of the property order made on 15 August 1990, the applicant pay the respondent within 30 days:
i. the base amount of $40,000.00, and
ii. interest in the amount of $47,810.47.
4.
That in the event that the applicant fails to make the full payment of any monetary sum to be paid to the respondent arising from these orders:
i. In the event that the applicant has yet to enforce Order 3 being an order of the Supreme Court of New South Wales made on […] July 2010, (being in the matter of [Chiodo and Chiodo] (matter number […] in the Equity Division)), that the applicant is ordered to do all things necessary to ensure the enforcement of such an order of the Supreme Court of New South Wales, within 60 days of the date of these orders.
ii. In the event that the applicant fails to comply with an order referred to above in Order 4(i) of these orders to enforce the said order made by the Supreme Court of New South Wales pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia execute any deed or instrument in the name of the applicant, and to do all acts and things necessary to give validity and operation to the deed or instrument, in order facilitate the enforcement of the said order of the Supreme Court of New South Wales.
iii. That the applicant thereafter transfer his right title and interest in one half of the property known as … G Street, Sydney Suburb 1 in the state of New South Wales to the respondent.
iv. In the event that the applicant fails to comply with sub-paragraph 4(iii) above, that pursuant to section 106A of the Family Law Act 1975 (Cth), 90 days from the date of these orders, a Registrar of the Family Court of Australia execute any deed or instrument in the name of the applicant, and to do all acts and things necessary to give validity and operation to the deed or instrument, in order to transfer his half interest in the property known as … G Street, Sydney Suburb 1 in the state of New South Wales to the respondent.
v. That in the event of a transfer to the respondent of the applicant’s half interest in the property known as … G Street, Sydney Suburb 1 in the state of New South Wales, within six months the respondent shall pay the applicant the difference between the amount to which she is entitled pursuant to these orders, plus interest and realisation costs and the sale price.
5.
That pending compliance by the applicant with these orders, he shall not sell or further encumber the following real properties:
5.1 … G Street, Sydney Suburb 1; and
5.2 … W Street, Sydney Suburb 2
6.
That pending determination of any application for costs made by the respondent the applicant is restrained from selling or encumbering his interests in … G Street, Sydney Suburb 1 and … W Street, Sydney Suburb 2.
7.
That pending compliance by the applicant with these orders, he is restrained from departing or attempting to depart the Commonwealth of Australia.
8.
The Australian Federal Police are requested to maintain the applicant’s name on the PACE alert system in force at all points of arrival and departure in the Commonwealth of Australia until further order of the Court. For the purpose of this order the Court notes as the applicant may be known as … Chiodo, … Chiodo, … Chiodo and … Chiodo.
9.
Subject to any application for costs all outstanding applications are dismissed.
10.
That the respondent has leave to make an oral application for costs.
11.
That the respondent file and serve written submissions in relation to costs within 28 days.
12.
That the applicant file and serve written submissions in reply within 21 days.
13.
That any submissions in response by the applicant to be filed and served within 14 days.
14.
That each party note on the coversheet of his or her submissions the means of service upon the other party.
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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