OGILVIE and HUNTER (Deceased) by his Legal Personal Representative MR HEWSON

[2014] FCWA 81

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: OGILVIE and HUNTER (Deceased) by his Legal Personal Representative MR HEWSON [2014] FCWA 81

CORAM: WALTERS J

HEARD: 9 DECEMBER 2014

DELIVERED : 9/12/2014

PUBLISHED : 19 DECEMBER 2014

FILE NO/S: PTW 1798 of 2014

BETWEEN: MS OGILVIE

Applicant

AND

MR HUNTER (Deceased) by his Legal Personal Representative MR HEWSON
Respondent

Catchwords:

FAMILY LAW – SPOUSAL MAINTENANCE – Where wife seeks enforcement of spousal maintenance order made in Supreme Court of WA in 1968 – Where husband ceased paying the spousal maintenance in 1991 – Where husband has subsequently died – Where original spousal maintenance order never varied or discharged – Where husband knew he ought to pay the spousal maintenance – Where wife did not seek to enforce the spousal maintenance order during husband's lifetime because she had a genuine and well-founded fear of the husband – Consideration of dicta in Wreford & Caley (2010) 43 Fam LR 1 and Mathieson & Hamilton [2006] FMCAfam 238 – Husband’s Estate ordered to pay arrears of spousal maintenance and interest

Legislation:

Family Law Act 1975 (Cth), s 105(3)
Family Provision Act, s 7(2)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Mr J Hedges

Solicitors:

Applicant:

Respondent: Haynes Robinson

Case(s) referred to in judgment(s):

Cox & Daniels [2014] FCCA 1048

Mathieson & Hamilton [2006] FMCAfam 238

Wreford & Caley (2010) 43 Fam LR 1

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

Introduction

1The husband (now deceased) was born in 1939 and the applicant in 1936. They were married in October 1960 in England and immigrated to Australia in 1965.

2The couple had four children. The first two were born in England in 1961 and 1963 respectively. The younger two were born in Australia in 1965 and 1967.

3The husband and the applicant separated immediately after the fourth child was born. At that time the husband moved out of the former matrimonial home and the applicant remained living there with the four children.

4In 1968, orders were made in the Supreme Court of Western Australia for the provision of maintenance ("the 1968 orders"). The quantum was set at $50 per week, being $22 per week by way of spousal maintenance and $7 per week for each of the four children.

5The parties divorced in 1969. The children remained with the applicant, and she had responsibility for their care and supervision.

6The applicant was awarded a Diploma of Education in 1973. Thereafter, she obtained employment as a biology teacher. She was forced to stop working in 1977, however, due to the effects of early onset arthritis. Although she lectured on a part‑time basis for a number of years, she was unable to resume full-time employment.

7Since that time, the applicant has been in receipt of Government benefits.

8The husband commenced full-time employment at [Company A] in 1964. He continued to work there until 1991 when, at the age of 52, he took voluntary redundancy. At that time, the periodic spousal maintenance was being deducted from the husband’s pay at source. It was sent to the applicant by cheque.

9As each child completed full-time education, the husband stopped paying his/her proportion of child maintenance. This was done by mutual agreement. When all the children had completed their education, the applicant was left in receipt of the spousal maintenance component of the 1968 orders, being $22 per week.

10Following the husband’s cessation of full-time employment in 1991, he ceased paying the spousal maintenance. The evidence reveals, however, that the husband soon resumed paid employment – as a consultant for, among others, [Company W] and his former employer, [Company A].

11At the time, the applicant made no attempts to seek enforcement of the husband’s obligation to pay maintenance. The applicant says that she refrained from addressing the matter with the husband because she knew from bitter experience that he would respond aggressively and in a threatening manner. Put another way, fear of the husband prevented the applicant from taking the matter further.

12For his part, the husband took no steps to have the 1968 orders for spousal maintenance varied or set aside. It follows that the 1968 orders remained in force, although the husband paid no spousal maintenance from 26 September 1991 until his death in October 2010.

13Following the husband’s death, the applicant sought to collect the arrears of spousal maintenance. She initially contacted the Executor of the Estate who, it would seem, rebuffed her.

14Probate of the husband's will was granted in 2011.

15Since that time the applicant has pursued two avenues of redress. The first involved the filing of documents in the Family Court of Western Australia in November 2013. She sought payment of the arrears of spousal maintenance from the husband's estate, together with interest. In other words, she sought to enforce the spousal maintenance provisions of the 1968 orders.

16The second avenue involved proceedings in the Supreme Court of Western Australia. In April 2014, the applicant and the husband's daughter from his second marriage brought proceedings in that Court pursuant to s 7(2) of the Family Provision Act 1972. They argued that the husband had failed to make adequate provision for them in his will.

17The proceedings first came before me on 22 September 2014, at which time I made orders pursuant to s 105(3) of the Family Law Act 1975 granting leave for the applicant to apply to enforce the 1968 orders for spousal maintenance. I also made procedural orders.

18The proceedings came before me again on 9 December 2014 for final hearing of the applicant’s application for enforcement. The applicant was self-represented. Mr Hedges of counsel appeared on behalf of the husband's estate. At the commencement of the hearing, Mr Hedges indicated that he would not be making submissions on behalf of the estate in respect of the application for enforcement, and that he had instructions to accept any exercise of the Court’s discretion in the matter. The estate had resolved to adopt a non-adversarial approach to the applicant's application. Indeed, Mr Hedges confirmed that the estate could afford to meet the applicant's claim and that those associated with the administration of the estate had some sympathy for the applicant's claim.

Discussion

19There can be no doubt that an order was made for the payment of spousal maintenance. There can also be no doubt that the husband ceased paying the spousal maintenance: he did so in 1991, after receiving a redundancy package. The husband did not apply to vary or discharge the order for spousal maintenance. On the basis of the evidence before the Court, however, and bearing in mind that the husband continued to work after taking voluntary redundancy, it is unlikely that such an application would have been successful. Clearly, the applicant would have been able to demonstrate a need for ongoing spousal maintenance. Indeed, it is fair to assume that an application made in 1991, or in the years subsequent to 1991, may well have led to a more generous order for spousal maintenance having been made – although I accept, of course, that such an assumption now comprises little more than speculation.

20The Court has a discretion as to whether to enforce arrears of spousal maintenance. The Full Court dealt with the subject in Wreford & Caley (2010) 43 Fam LR 1, in which their Honours cited with approval the earlier decision of Mathieson & Hamilton [2006] FMCAfam 238.

21The Full Court in Wreford & Caley (supra) said at [70]:

… In Mathieson & Hamilton (supra), [the Court], in dealing with an application under the Child Support (Assessment) Act 1989 (Cth) distilled what he saw as a number of principles, considerations or factors relating to enforcement of arrears of maintenance or child support. In doing so, his Honour considered, in addition to enforcement, whether there should be any discharge of the arrears. His Honour discussed three principles and a number of considerations and held:

(a)The "12 months rule" is extinct. It was, in any event, never more than a discretionary guideline or rule of practice, and the 12 months period was an arbitrary one.

(b)The Court has a discretion, not only as to the period in respect of which accumulated arrears of maintenance or child support will be enforced, but as to whether they should be enforced at all.

(c)The Court is not prevented from enforcing arrears of maintenance or child support simply because the time for payment of the same has long since passed, or because (in the case of child maintenance or child support) the relevant child has long since left school, commenced paid employment or otherwise ceased to require such child maintenance or child support.

(d)In considering whether to enforce arrears (and, if so, for what period), the Court's discretion is unfettered, but the following considerations (at least) might be considered to be of relevance:

i.whether the party who was obliged to pay the maintenance or child support ("the Payer”) knew or ought to have known of his/her obligation to pay maintenance or child support;

ii.whether the party entitled to maintenance or child support ("the Payee”) pressed or pursued – directly or indirectly – his/her rights to the same, and whether the Payee did so in a timely fashion;

iii.whether, by words or conduct, the Payee led or permitted the Payer to form a reasonable view that the Payer’s obligation to pay maintenance or child support would not be enforced, and whether (and in what way) the Payer was thereby induced – whilst acting in good faith – to change his/her financial position;

iv.whether, by words or conduct, the Payer led or permitted the Payee to form a reasonable view that the Payer’s obligation to pay maintenance or child support would be met, and whether (and in what way) the Payee was thereby induced – whilst acting in good faith – to change his/her financial position;

v.whether the Payer had (other) appropriate or adequate reasons for failing or refusing to pay;

vi.the financial circumstances of the Payer, the Payee and the children during the period of the non-payment, and at the time that the enforcement of the arrears is sought (including the Payer’s ability to pay at all relevant times);

vii.whether the Payer has made a [sic] full and frank disclosure of his/her financial position at all relevant times; and

viiiwhether the Payee has made full and frank disclosure of his/her financial position at all relevant times.

22I turn now to discuss the above considerations. In doing so, I note that the husband was the party who was obliged to pay spousal maintenance and the applicant was the payee.

23The first of the considerations is whether the husband knew or ought to have known of his obligation to pay maintenance. There is no evidence before me to suggest that the husband did not know of his obligations pursuant to the 1968 orders. I find that he was almost certainly aware of his ongoing obligation to pay the maintenance.

24The second consideration is whether the applicant pressed or pursued, whether directly or indirectly, her rights to the maintenance, and whether that was done in a timely fashion. It seems clear that the applicant did not press her entitlement to spousal maintenance after the husband ceased paying. She did not do so for reasons which are clearly explained in her affidavit, and in the supporting affidavit of [Ms Hunter]. Put shortly, the husband was an aggressive, controlling and overbearing person. That is the evidence before the Court. The applicant was afraid of him – for good reason, it would appear. She explained in her affidavit the reasons why she was concerned for her safety; that evidence is corroborated by [Ms Hunter’s] evidence. I accept, therefore, that although the applicant did not press or pursue her rights in relation to the spousal maintenance order, there were good reasons for her not to do so.

25The next question is whether, by words or conduct, the applicant led or permitted the husband to form a reasonable view that his obligation to pay spousal maintenance would not be enforced, and whether (and in what way) the husband was thereby induced – while acting in good faith – to change his financial position. There is no evidence to assist me in relation to this question. True it is that the applicant did not seek to enforce the order for spousal maintenance, but I have explained the reasons why she did not do so. There is no evidence that the husband changed his financial position on the basis of the applicant’s decision not to seek to enforce the obligation to pay spousal maintenance. Taken in isolation, that is a factor that might tend to support a conclusion to the effect that the orders should not be enforced, but the factor does not stand alone.

26The next consideration is whether, by words or conduct, the husband led or permitted the applicant to form a reasonable view to the effect that the husband’s obligation to pay maintenance would be met. He did not do that and, again, that factor taken in isolation might tend to support a conclusion to the effect that the arrears of maintenance should not be enforced.

27The next factor is whether the husband had any other appropriate or adequate reasons for failing or refusing to pay the spousal maintenance. There is no evidence before the Court that he had any adequate reason for failing or refusing to pay. The order continued in force until the date of the husband's death. As already noted, it was never varied or discharged.

28The next factor relates to the parties' financial circumstances – in other words, the financial circumstances of the applicant on the one hand and the husband's estate on the other. The applicant has described her financial position in her statement of financial circumstances. She has also filed a summary of her financial position in the Supreme Court. Although she is clearly not destitute, there can be no doubt that she is in need of any funds that might be available by way of these proceedings. For its part, the estate has conceded that it has the ability to meet the payment sought by the applicant. I note, in this regard, the following passages from Mathieson & Hamilton (supra) – which, although referring to child support arrears, apply with equal force to the orders the subject of the current proceedings:

[226]As for the suggestion that child support arrears should be ignored because the wife might no longer have any current need for them, or because a relevant child is now self supporting or over the age of 18 years, I find the reasoning in cases such as Milankov (2002) 28 Fam LR 514, Hamilton & Nowak (1988) 12 Fam LR 704 and Abdilla v Darmo (unreported – August 2000) compelling. As Coleman J said in Abdilla v Darmo, it would be "offensive to anything remotely resembling justice" were I to determine that departure orders should not be made in the circumstances of this case. … [It] would be neither just nor equitable to effectively discharge all arrears … simply because the payer of child support has managed to avoid or delay the making of payments for which he or she is clearly liable for an extended period of time. Irrespective of whether the payee might have been able to support the children by some other means, it is inevitably the case that the liable parent in such circumstances will have enjoyed a better standard of living, will have accumulated more assets or will have found himself or herself in less straightened financial circumstances than if the required child support had been paid. The exact opposite applies to the payee. The advantages that the liable parent enjoys in such circumstances, and the disadvantages which the residence parent suffers, can – and frequently do – last a lifetime. As the Full Court said in Clauson (1995) FLC 92-5951 ─

… it should not be forgotten that the payment of Child Support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails.

[227]In my opinion, the suggestion that the payment of lump sum arrears of child support could be regarded as some form of "compensation" to the residence parent long after the need for the child to be financially supported has passed, and the concept that maintenance or child support "…is intended to be a stipendiary nature to enable the party entitled to receive it to meet the ordinary, regular outgoings necessary for his or her support (or that of the child or children to whom the order relates)" (see Lutzke (1979) 5 Fam LR 553 at 569) do not sit comfortably with modern jurisprudential thought regarding the comparative obligations and duties of residence and non-residence parents, and the advantages and disadvantages (in the broadest sense) that adhere to such roles. (Emphasis added.)

29The next consideration is whether the husband has made a full and frank disclosure of his financial position at all relevant times. In my view, that is not a significant consideration. The fact of the matter is that the husband ceased to pay in or about 1991. No steps to enforce the orders were taken. Similarly, no steps to discharge or vary the orders were taken. I am certainly satisfied that the estate's financial position has been fully disclosed.

30I am also satisfied that the applicant has made full and frank disclosure of her own financial position.

31The Full Court in Wreford & Caley (supra) also cited at [71] the following passage from Mathieson & Hamilton (supra):

The Court should be very cautious not to encourage a Payer to metaphorically sit back and ignore his/her liability for maintenance or child support, and to continue to ignore such liability "… hoping for the best".

32In my opinion, that appears to have been the approach adopted by the husband in the present case. In the recent decision of Cox & Daniels [2014] FCCA 1048, Judge Spelleken was required to give consideration to an application that has similarities to the current application. In that case, orders were made in 1976 by the Supreme Court of Victoria for the respondent to pay child maintenance and spousal maintenance. The maintenance was not paid and the question before her Honour was whether a declaration should be made the relevant arrears were now owed. After referring to the considerations of which I have made mention in these ex-tempore reasons, her Honour said at [17]:

It is the tenor of the reasons [in Mathieson & Hamilton (supra)] that the Court’s role, in this respect, should be to hold parties accountable to the obligations, imposed upon them by Court order, to support and maintain their families after the dissolution of a marriage and that a lapse of time (where reasonable), and even a significant lapse, should not preclude the Court from fulfilling this role.’

33I concur with her Honour's summary set out above. In all the circumstances, and on balance, I am comfortably satisfied that my discretion should be exercised in favour of enforcing the 1968 orders for spousal maintenance and, in particular, the arrears that have been sought by the applicant in her application filed 3 April 2014.

Orders

34I propose to make the following orders – which (as I have indicated) were not opposed by Mr Hedges on behalf of the estate.

1.The Court declares that as at the present date, the Respondent, Mr HEWSON – Executor of the Estate of Mr HUNTER (deceased), owes the Applicant, Ms Ogilvie, the sum of $21,824 in unpaid spousal maintenance in accordance with orders made in the Supreme Court of Western Australia on 3 December 1968.

2.The Respondent must pay to the Applicant the sum of $21,824, together with interest thereon pursuant to the Family Law Rules 2004 within 28 days.

3.The interest referred to in paragraph 2 above be calculated from 2 October 2010.

4.All extant applications otherwise be dismissed.

AND IT IS NOTED THAT:-

5.Both parties have leave to provide a copy of the published Reasons in this matter to the Supreme Court of Western Australia.

I certify that the preceding [34] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate

______________________________________

1 At page 81,911