Daniels & Bell - [2007] FamCA 152

[2007] FamCA 152

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal No. NA38 of 2005
File No. BRM6281 of 2001

IN THE MATTER OF: DANIELS
Appellant

AND: BELL
Respondent

Appeal No. NA53 of 2005

AND IN THE MATTER OF: DANIELS
First Appellant

AND: ITHACA PTY LTD
Second Appellant

AND:
  CHILD SUPPORT REGISTRAR
  Respondent

CORAM: FINN, WARNICK AND MAY JJ

DATE OF HEARING: 10 MARCH 2006

DATE OF JUDGMENT: 2 MARCH 2007

JUDGMENT OF THE FULL COURT

Appearances: Mr Page of senior counsel, instructed by K L King & Associates, 180 High Street, Southport, QLD, 4215 appeared for the Appellant(s) in each appeal

Mr Hamwood of counsel, instructed by Quinn & Scattini Lawyers, Level 28, Central Plaza One, 345 Queen Street, Brisbane, QLD, 4000 appeared for the Respondent in Appeal NA38 of 2005
Mr Dorney of senior counsel and Mr Fellows of counsel, instructed by The Australian Government Solicitor, Level 12, Adelaide Street, Brisbane, QLD, 4000 appeared for the Respondent in Appeal NA53 of 2005

Name of Appeal	Daniels & Bell; Daniels & Ithaca Pty Ltd & Child Support Registrar
Appeal Number	NA38 of 2005 and NA53 of 2005
Date of Appeal Hearing	10 March 2006
Date of Judgment	2 March 2007
Coram	Finn, Warnick & May JJ

Catchwords: APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CHILD MAINTENANCE – DISCHARGE OF ARREARS – The parties married in 1980 and separated in early 1989 – There were two children of the marriage – Orders for child maintenance were first made, by consent, in November 1989 and were subsequently registered with the Child Support Agency in either 1989 or 1990 – Significant arrears of child maintenance accumulated over time and various orders for enforcement and variation of arrears had been made since 1993 – While the father made or caused to be made various non-agency payments in relation to the children’s schooling and medical expenses, not all were accepted and credited by the mother – In 2002, the father filed an application seeking, in effect, the discharge of arrears of child maintenance and penalties – The Federal Magistrate dismissed the father’s application on the basis that it would not be just to discharge or vary the maintenance orders, due in large part to the father’s significant delay – In relation to non-agency payments, the Federal Magistrate found the father chose to disregard the risk that some of the non-agency payments would not be accepted by the mother – On appeal, one of the father’s arguments was that the Federal Magistrate erred in addressing what constituted ‘just cause’ for the discharge of child maintenance orders, particularly in relation to his non-agency payments – It is clear that the Federal Magistrate had the father’s non-agency payments clearly in mind when considering the application for discharge of arrears – The concept of whether it is ‘right’ or ‘proper’ to discharge a maintenance order readily encompasses consideration of conduct such as delay – There was nothing to…

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 Daniels & Bell

Details

AGLC: Daniels & Bell [2007] FamCA 152
Case: [2007] FamCA 152
Decision Date: 2 March 2007

CaseChat Overview and Summary

This matter came before Finn, Warnick and May JJ on appeal from a decision of the Federal Magistrate. The appeal concerned the power of the Child Support Registrar to issue an enforcement summons. The appellants argued that the Federal Magistrate erred in finding that such power existed.

The primary legal issue before the Full Court was whether the Federal Magistrate had the power to issue an enforcement summons under Order 33 Rule 2 of the Family Law Rules, given the nature of the liability sought to be enforced. Specifically, the appellants contended that the Federal Magistrate inconsistently characterised the liability as both arising from a court order and a registered maintenance liability, and that the former characterisation was incorrect for the purposes of issuing an enforcement summons.

The Court noted that the Federal Magistrate, Baumann FM, had considered decisions such as *Deputy Child Support Registrar v [K]* and *Deputy Child Support Registrar v The Public Trustee*, which indicated that Order 33 did not provide a remedy for enforcing debts due to the Commonwealth under a registered administrative assessment. However, Baumann FM distinguished the present case, finding that the liability arose from a court order exercising powers under the *Family Law Act 1975*. He relied on *Harrison* (1996) FLC 92-256, which suggested that a reference to "the Act" in Order 33 Rule 2(6) could include authorisation for the registrar to recover monies arising from non-payment of registrable maintenance liabilities. Baumann FM concluded that power did exist to issue the enforcement summons. The Court observed that the appellants' written submissions accepted the liability was a registered maintenance liability, which was also unarguably one that arose from a court order (save for penalties).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Senior Counsel’s oral submissions did not expand upon the written submissions with regard to grounds 2 and 3. He did however refer us to his written submissions made to the Federal Magistrate on 15 March 2005, that is after the “findings” of 24 December 2004 and in respect of the orders that could be made consequent upon those findings. The result of this approach is that senior counsel for the appellants, in support of the grounds of appeal attacking the reasons of the Federal Magistrate given on 17 June 2005, relies upon submissions made before the Federal Magistrate’s conclusions were known, subject only to 3 brief paragraphs in the written outline of argument in respect of the appeal. Baumann FM’s reasons in relation to the question “Was there power to issue enforcement?” were as follows:“21. A more substantiative submission is contained at paragraphs 8 to 20 of the Respondent’s written submissions dated 15 March 2005 – in essence that because no “order” exists, there is no power available to the Child Support Registrar to issue an enforcement summons in terms of O33 R2 of the Family Law Rules. The Respondent relies upon the decision of Monteith J in Deputy Child Support Registrar v [K] (unreported 19 November 2001). Such a decision was followed by Hannon J in Deputy Child Support Registrar v The Public Trustee (unreported 20 December 2001) who considered the earlier decisions (including the Full Court decisions in Harrison (1996) FLC 92-256 and Hendy (2001) FAMLR 641).22. The clear indication from these decisions is that Order 33 does not provide a remedy for the enforcement of the debts due to the Commonwealth under a registered administrative assessment.23. However, that is not the case in these proceedings. The liability in this case is an order of a Court exercising powers under the Family Law Act 1975 – essentially a Stage 1 matter. As was said in Harrison at 82,755:-“…the reference to “the Act” in Order 33 Rule 2(6) may, by operation of s 105 of the Collections (sic) be taken to include authorisation given to the registrar to recover monies due under the Collection Act arising from non-payment of registrable maintenance liabilities.” 24. Such a view is consistent with the decision of Kay J in Deputy Child Support Registrar & Froehlich (1991) FLC92-203 at 78,390.25. I adapt (sic) the submissions of the Applicant in this regard as to the effect of the Rules to accept that power did exist to issue the enforcement summons.” The submission made orally in support of ground 1(a) was that, in deciding on 17 June 2005 that the enforcement summons pursuant to order 33 rule 2 had been issued within power, Baumann FM treated the liability, recovery of which was sought, as arising pursuant to court order. However, in his judgment of 18 February 2005, he treated the same liability as a registered maintenance liability, when dealing with the husband’s application for discharge of arrears. As stated, this submission is confusing, because in his written submissions in support of the appeal, senior counsel for the appellants accepts that the liability of the father was a registered maintenance liability. However, (save for penalties) it was also unarguably one that arose from a court order.

Ratio Decidendi

Legal Principle Established

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