Farhall and Salter - [2014] FamCAFC 44

FAMILY COURT OF AUSTRALIA

FARHALL & SALTER

[2014] FamCAFC 44

FAMILY LAW – APPEAL – Single judge appeal – Where the Family Law Magistrate dismissed an application for an order to be made on the basis that the order had already been made – No merit in the appeal – Other avenues open for the appellant to pursue relief – Where the magistrate dismissed all applications and did not consider the issue of interest – The appellant can pursue the issue of interest when the liability can be calculated – Appeal dismissed.

Family Law Rules 2004 (Cth)

APPELLANT:

Ms Farhall

RESPONDENT:

Mr Salter

FILE NUMBER:

PTW

5273

2011

APPEAL NUMBER:

2013

DATE DELIVERED:

12 February 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

12 February 2014

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

1 May 2013

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

No appearance

Orders

The appeal be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farhall & Salter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 13 of 2013
File Number: PTW 5273 of 2011

Ms Farhall

Appellant

And

Mr Salter

Respondent

EX TEMORE

REASONS FOR JUDGMENT

The Notice of Appeal of Ms Farhall filed on 24 May 2013 is before me this morning for directions. The respondent, Mr Salter, has not participated in the appeal process to date, and the appellant has indicated her understanding that Mr Salter feels that this Court does not have any jurisdiction to deal with the matter which, on the face of it, would appear to be quite inaccurate.
The appeal concerns two quite distinct issues. One relates to an issue concerning some equipment, and the other relates to an issue concerning some interest which the appellant believes is owing to her.
For present purposes, it is unnecessary to go into the detail of the matter. It is sufficient to note that, on 10 May 2012, proceedings between the parties were settled by agreement and part of the consent order required the respondent to deliver up to the appellant certain equipment. The appellant was entitled to retain the proceeds of sale of some items that were specifically identified in the agreement. The order also discharged an order for spousal maintenance made on 9 November 2011. The order also provided for the payment of moneys by the respondent to the appellant in an amount of $19,500 by weekly instalments of $375 per week.
The appellant alleged that the respondent had not complied with the terms of the order relating to the delivery up of the equipment, and it would appear to be common ground, from looking at the transcript of the proceedings that later came before Magistrate Monaghan, that the respondent had not complied with the order.
The order that the appellant was seeking in the proceedings that came before Magistrate Monaghan was effectively the same order that had been made previously. And when the proceedings were heard by the magistrate on 1 May 2013, he dismissed that part of the application which concerned the equipment.
One good reason for dismissing it would have been that the relief sought was simply the same relief that had been granted previously by the consent orders. The making of the order sought would, therefore, not have advanced the interests of the appellant at all. But it also appears from reading the transcript – which I have only done rather quickly whilst hearing the case this morning – that the magistrate also accepted the claims made by the respondent about his inability to actually comply with the order.
The magistrate referred during the course of the discussion with the parties to the possibility of the appellant making an application to set aside the consent orders. As I have indicated to her today, that is an option that may be available to her. Although I would have to say that she would need to think long and hard before reactivating those proceedings.
One other possibility that was discussed was instituting contempt proceedings against the respondent. There was some very brief mention of contempt before the magistrate, but there was not, in fact, a formal contempt application before him. I observe that the magistrate was very dismissive of the possibility of the respondent being found in contempt, but again, as a theoretical possibility, that is an avenue available to a party who considers there has been non-compliance with a court order.
All that I need to say today, in relation to the issue concerning the equipment, is that the appellant sensibly acknowledges that pursuing this appeal today, or at a later stage, would not in fact advance matters and that part of the appeal will therefore not be proceeding.
The other issue concerns the question of the payment of interest on outstanding moneys. The appellant properly draws to my attention that the magistrate had before him an application for an order that the respondent pay her interest on outstanding moneys. With all due respect to the appellant, who I recognise does not have the benefit of legal representation, the order that she sought concerning interest was most imprecise and the evidence provided in support of it was almost non-existent. When the matter came before the magistrate, it would appear from my brief reading of the transcript that she did not draw this issue to his attention. The upshot was that when the magistrate dealt with the matter on 1 May 2013, apart from reserving the decision in relation to the associated child support dispute, he then dismissed all outstanding applications. And that took with it her application in relation to interest.
The difficulty with that outcome is that it would appear that the respondent did, in fact, owe the appellant money. And it appears from the information that has been given to me today that the respondent continues to owe the appellant money to which she was entitled under the terms of court orders. If that is the case, then interest continues to accrue in relation to those moneys under the Family Law Rules 2004 (Cth) until such time as the payment has been made.
The appellant sensibly today has agreed with me that the better course now would be for her to wait until such time as the respondent has discharged all of his monetary obligations to her, and at that point in time, an assessment can be made of the delay in payment and hence the amount of interest owed. I have suggested to her that the appropriate course, once that time is reached, is for her to write to the respondent providing him with her calculation of the interest to which she is entitled, and demanding payment.
In the event he fails to make payment of the interest, then it appears to me that she is not prevented by anything that has occurred to date in the proceedings from making an application to the Court for an order quantifying the amount of interest and requiring repayment within such time as is specified. In this context, the order made by the magistrate on 1 May 2013 dismissing her application for payment of interest should not be seen as an impediment to her pursuing her application, because it appears to me, from my reading of the record, although briefly today, that that issue has not been dealt with on its merits.
The purpose of giving these brief reasons is for the appellant to have a document available to her in the future to produce to the Court indicating the basis upon which her appeal has been dismissed, leaving open the possibility of her pursuing her claim for interest once she is able to make a calculation.
What I would need to say to the appellant, however, is that when she does come back to the Court seeking interest, she will need to make some attempt, which has not been made to date, to make her own calculation of the interest. This would require her to provide evidence to the Court of the date on which the payment should have been made, and the date on which the payments were actually made, which will provide the basis for the calculation to be made. It is not reasonable to expect a judicial officer to make the calculation without at least that assistance. I recognise it is potentially a fairly difficult task, but that is one the appellant will have to undertake.
For those reasons, the only order made today is that the appeal is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 12 February 2014.

Associate:

Date: 26 March 2014