Goleby and Goleby - [2012] FamCA 366

FAMILY COURT OF AUSTRALIA

GOLEBY & GOLEBY

[2012] FamCA 366

FAMILY LAW – CHILDREN – Overseas maintenance liability – where the Applicant seeks an order discharging arrears owing to the Child Support Agency (“CSA”) pursuant to an overseas maintenance liability – where the Applicant also applies for a variation of the order giving rise to the liability – where the liability stems from an order made by the Supreme Court of South Africa in 1999 – where that liability was registered by the Applicant with the CSA in 2005 – where the liability includes both spousal maintenance and child support – where there is limited information regarding the financial position of the Respondent – where the Applicant owes significant arrears to the CSA – whether the arrears owing to the CSA should be discharged – whether the original order should be provisionally varied – where the parties separated 14 years ago – where the parties’ children are now aged 24 and 21 – where the Applicant has continued to pay child support notwithstanding that the children are aged over 18 years – where the Applicant has a modest income – orders made discharging the liability to pay maintenance and child support and discharging the arrears to the Agency.

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration Collection) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)

Mathieson v Hamilton [2006] FMCAfam 238
Vakil & Vakil (1997) FLC 92-743
Wreford & Caley (2010) 43 Fam LR 1

APPLICANT:

Mr Goleby

RESPONDENT:

Ms Goleby

FILE NUMBER:

BRC

10451

2009

DATE DELIVERED:

22 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

24 February 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr De Korte of De Korte Lawyers

THE RESPONDENT:

No appearance

Orders

IT IS ORDERED THAT

Pursuant to Regulation 36 of the Family Law Regulations 1984 (Cth):
(a)The order of the High Court of South Africa (Witwatersrand Local Division) made 28 January 1999 in Johannesburg making binding the Deed of Settlement annexed thereto and marked “B” be varied by:
(i)Discharging as and from the date of this order, Clause 3.1.1 thereof; and
(ii)Discharging as and from … December 2005 Clause 3.1.2 thereof insofar as it applies to Ms F born … December 1987;
(iii)Discharging as and from … August 2009 Clause 3.1.2 thereof insofar as it applies to Ms S born … August 1991.
Discharging all and any arrears owing, as and from the date of this Order, to the Child Support Agency pursuant to registration of the said order with that Agency in April 2005, including any interest and penalties payable in respect thereof.
Paragraphs one (1) and two (2) of these orders be declared to be provisional pursuant to Regulation 38(1) of the Family Law Regulations 1984 (Cth).

IT IS DIRECTED THAT

The Registrar of this Court shall send to the Secretary within the meaning of Regulation 38A of the Family Law Regulations 1984 (Cth) a sealed and certified…

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 Goleby and Goleby

Details

AGLC: Goleby and Goleby [2012] FamCA 366
Case: [2012] FamCA 366
Decision Date: 22 May 2012

CaseChat Overview and Summary

In the matter of *Goleby and Goleby*, Murphy J of the Family Court of Australia considered an application to vary a South African court order concerning child maintenance. The original order, made by the High Court of South Africa in January 1999, had made binding a Deed of Settlement between the parties. The applicant sought to discharge specific clauses of this settlement agreement relating to child maintenance obligations for their two daughters, Ms F and Ms S, and to discharge any arrears registered with the Child Support Agency.

The primary legal issue before the court was whether it had the power to vary the South African order under the *Family Law Regulations 1984* (Cth), specifically Regulation 36, which permits the variation of registered oversea maintenance orders. The court was required to determine the extent to which it could discharge existing maintenance obligations and any accrued arrears.

Murphy J reasoned that Regulation 36 of the *Family Law Regulations 1984* provided the necessary authority to vary the registered South African order. The court applied the principles of statutory interpretation to Regulation 36, concluding that it allowed for the discharge of maintenance obligations as they fell due, and also for the discharge of arrears. Consequently, the court ordered the discharge of specific clauses of the South African Deed of Settlement relating to the maintenance of Ms F and Ms S as those obligations ceased to apply based on their ages. The court also discharged all arrears owing to the Child Support Agency from the date of the order. The court further declared these orders provisional under Regulation 38(1) of the *Family Law Regulations 1984* and directed the Registrar to send relevant documents to the Secretary for the purposes of Regulation 38A.

Orders

Orders of the court

IT IS ORDERED THAT

Pursuant to Regulation 36 of the Family Law Regulations 1984 (Cth):

(a) The order of the High Court of South Africa (Witwatersrand Local Division) made 28 January 1999 in Johannesburg making binding the Deed of Settlement annexed thereto and marked “B” be varied by:

(i) Discharging as and from the date of this order, Clause 3.1.1 thereof; and

(ii) Discharging as and from … December 2005 Clause 3.1.2 thereof insofar as it applies to Ms F born … December 1987;

(iii) Discharging as and from … August 2009 Clause 3.1.2 thereof insofar as it applies to Ms S born … August 1991.

Discharging all and any arrears owing, as and from the date of this Order, to the Child Support Agency pursuant to registration of the said order with that Agency in April 2005, including any interest and penalties payable in respect thereof.

Paragraphs one (1) and two (2) of these orders be declared to be provisional pursuant to Regulation 38(1) of the Family Law Regulations 1984 (Cth).

IT IS DIRECTED THAT

The Registrar of this Court shall send to the Secretary within the meaning of Regulation 38A of the Family Law Regulations 1984 (Cth) a sealed and certified copy of:

(a) This order;

(b) The reasons for judgment herein;

(d) The Financial Statement of the husband filed 27 January 2012.

(e) A minute of the orders sought by the applicant filed 27 January 2012.

(f) The applicant’s summary of argument filed 21 February 2012.

There be no order as to costs.

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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