Clifford & Mountford

Case [2006] FMCAfam 450

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLIFFORD & MOUNTFORD [2006] FMCAfam 450

FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside judgment pursuant to Federal Magistrates Court Rules2001, r.16.05(2)(a) – principles to be applied – no reasonable excuse for failure to attend – no material argument that might lead to order different to that set aside – prejudice to the respondent.

FAMILY LAW – PRACTICE AND PROCEDURE – Inferior court – power to set aside order made without jurisdiction – principles to be applied.
Federal Magistrates Court Rules 2001, r.16.05(2)(a)
Taylor v Taylor (1979) 143 CLR 1
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
 State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29
Autodesk v Dyason (No.2) (1993) 176 CLR 300
Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207
Shocked v Goldschmidt [1998] 1 All ER 372
J P Sproule v L E Long (2000) QSC 232
DJL v The Central Authority (2000) 201 CLR 226
Allesch v Maunz (2000) 203 CLR 172
Maher v Commonwealth Bank of Australia Limited [2004] FCA 248
Knight & Andrews [2004] FMCAfam 181
SZCEQ v MIMIA [2005] FMCA 1141
Morrison Motors Pty Ltd v Shah [2006] FMCA 256
Australia Meat Holdings Pty Ltd v Higgs (2006) 27 QL 33
S329 of 2003 v MIMIA [2006] FMCA 303
Applicant: MR CLIFFORD
Respondent: MS MOUNTFORD
File Number: BRM 3840 of 2001
Judgment of: Jarrett FM
Hearing date: 12 May 2006
Date of Last Submission: 12 May 2006
Delivered at: Brisbane
Delivered on: 25 August 2006

REPRESENTATION

Counsel for the Applicant: Mr Drysdale
Solicitors for the Applicant: Legal Aid Queensland
Counsel for the Respondent: Mr Fisher
Solicitors for the Respondent: Hayley Ritchie Solicitors

ORDERS

  1. The application filed on 28 February, 2006 is dismissed;

  2. The response filed on 5 April, 2006, is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 3840 of 2001

MR CLIFFORD

Applicant

And

MS MOUNTFORD

Respondent

REASONS FOR JUDGMENT

  1. On 14 August, 2001 Rimmer FM ordered that the applicant[1] pay periodic child maintenance to the respondent[2] of $100.00 per week for each of their two children – a total of $200.00 per week (“the maintenance orders”).  The maintenance orders were made in the absence of the applicant.  In this application he seeks orders setting aside the maintenance orders.

    [1] who was the respondent father in the application before her Honour

    [2] who was the applicant mother in the proceedings before her Honour

  2. Since the maintenance orders were made there have been a number of applications to this court. On 4 November, 2004 I delivered judgment in an application prosecuted by the applicant for a discharge or variation of the maintenance orders pursuant to s.66S of the Family Law Act1975 (“the Act”).  In that judgment I summarised the history of the…

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AGLC
Clifford & Mountford [2006] FMCAfam 450
Case
[2006] FMCAfam 450
Decision Date

CaseChat Overview and Summary

In the case of Clifford and Mountford, the father, the applicant, sought to discharge or vary maintenance orders made against him in favour of the mother, the respondent. The orders in question were made on August 14, 2001, requiring the father to pay child maintenance to the mother for their two children. The father argued that the orders were unfair and should be set aside or varied. The court was required to determine whether the maintenance orders were just and reasonable and whether there had been any changes in circumstances warranting a variation or discharge of the orders.

The court considered the father's application under Section 66S of the Family Law Act 1975. The father argued that the orders were unfair and that he had not been properly served with the proceedings. The court found that the father had been properly served and that the orders were just and reasonable at the time they were made. The court also found that there had been no significant changes in circumstances to warrant a variation or discharge of the orders. The father's application was dismissed.

The court found that the father had been properly served with the proceedings and that he had notice of the hearing. The court also found that the orders were just and reasonable at the time they were made, taking into account the father's income and the needs of the children. The court found that there had been no significant changes in circumstances to warrant a variation or discharge of the orders. The father's application was dismissed, and the maintenance orders remained in place.

Orders

Orders of the court

1.

The application filed on 28 February, 2006 is dismissed;

2.

The response filed on 5 April, 2006, is dismissed.

Background

Background to the litigation

Since the maintenance orders were made there have been a number of applications to this court. On 4 November, 2004 I delivered judgment in an application prosecuted by the applicant for a discharge or variation of the maintenance orders pursuant to s.66S of the Family Law Act1975 (“the Act”). In that judgment I summarised the history of the matter as follows:Background8. The matter before the Court has quite some history. The original orders for maintenance that the [father] now seeks to have set aside, varied or discharged were made on 14 August, 2001. On that day an order was made on the [mother's] application for the [father] to pay to the [mother] the sum of $100 per week per child by way of child maintenance for their two children. Written reasons for judgment were delivered by Rimmer FM. It is worth setting out the history of the matter recorded by her Honour as follows:2.The mother filed her original application in the Family Court of Australia and she did so by way of an application for maintenance in form 12, some considerable period of time ago, on 4 December 2000. That application was then quickly amended by her on 14 December 2000, and finally she has amended it on one further occasion on 30 July 2001. The original application was before the court on 18 January 2001, and the mother was having some difficulties in service of the application. On 15 March 2001, Registrar Dittman of the Family Court of Australia made an order for substituted service, and that substituted service was upon the father, Mr Clifford and Ms Y, at the residential address of the applicant and Ms Y at [Property W] in the State of Victoria.3.At the same time he transferred the proceedings to the Federal Magistrates Court and the matter was listed for mention in this court on 14 May 2001. The father did not appear when the matter was before myself on 14 May but he did appear by way of a town agent, a Ms Lilley, who was then acting on behalf as town agents of solicitors who were acting for the father, a Lisa J. Cooke, at Tehan, George and Company at Seymour in the State of Victoria. The matter was allocated for hearing and directions were made to prepare the matter for hearing. The hearing was listed for 2.15 on 20 June 2001. Those orders issued from the court to the solicitors on the record for the father and to the applicant mother personally. 4.On the date for hearing there was no appearance by either party and just after that on 4 July 2001, a notice of ceasing to act was filed by the solicitors, Tehan, George and Company of Seymour, indicating that they were no longer representing the father, Mr Clifford, in the proceedings and that they had sent a notice to him on 18 June by pre-paid post, and that she was instructed that the future address for service of the father was P.O. Box [omitted], in the State of Victoria, 3758. She also indicated at that time that she had notified the father that the matter was before the court on 20 June 2001.5.The court then listed a further hearing date in relation to the application and that hearing date is today. It was listed for 2.15 pm today, being 14 August 2001. A letter was sent both to the mother at her address for service at P.O. Box [omitted], Queensland, 4505, and to the father, Mr Clifford, at P.O. Box [omitted] in Victoria, 3758, that being the address the solicitors placed on their notice of ceasing to act, as the address for service of the father.6.The mother now appears and wishes to proceed with her application. The father is not represented nor does he appear. The mother filed an amended application for maintenance on 30 July 2001, together with supporting affidavit. She also filed an affidavit on 20 July 2001. She has provided to the court today two affidavits of service from which I am satisfied she arranged for service on the father by post at his address in [W], Victoria, with the affidavit and also with her amended application and affidavit. I am satisfied in this matter that the father has notice of the proceedings. I am satisfied that he has received all of the documents upon which the applicant relies today. I am satisfied that the notice of the proceedings has come to him in various different ways: firstly, by notice from the court and also a letter from the mother, and service of the amended application which had the date of hearing noted on the front cover sheet as today.7.The mother's affidavit annexes a letter also, which she sent to the father making an offer to resolve the matter and that letter was dated 26 July 2001 and also says at the end of it:“ Should you not choose to accept this offer I will proceed with the application and seek the full amount as set out in the application on the date of hearing, 14 August 2001.”

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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