Roche & Glenn
[2002] FamCA 818
•19 September 2002
JFROCHEG
[2002] FamCA 818
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE
Appeal No. SA53 of 2002
File No. MLM9449 of 2001
IN THE MATTER OF:
JOHN JOSEPH ROCHE
Husband
- and -
YVONNE GLENN
Wife
REASONS FOR JUDGMENT
BEFORE: Ellis, Finn and Mushin JJ.
HEARD: 19th day of September 2002
JUDGMENT: 19th day of September 2002
APPEARANCES: Mr Ham of counsel, instructed by Slater & Gordon, Solicitors,
533 Little Lonsdale Street, Melbourne VIC 3000,
appeared on behalf of the husband.Ms Y. Glenn, the wife, appeared on her own behalf.
Wife’s Address for Service:
184 Serpells Road, Templestowe VIC 3106
Catchwords: CHILD MAINTENANCE – s.66W – Whether an order for child maintenance can be discharged or varied after the child has attained the age of 18 years.
This was a case stated to the Full Court as follows:-
“Whether the Court [i.e. the Federal Magistrates Court] can discharge, suspend, revive or vary a maintenance order that is no longer in force with respect to a child that has turned 18.”
Having regard to the amendment to s.66W following the decisions of Rothstein v Child Support Registrar (1994) FLC 92-490, Heethuis v Van Genderen (1999) FLC 98-005, Deputy Child Support Agency v Costigan v Costigan (unreported, Family Court of Australia at Townsville, 7 September 1998) and Paris v Dixon (unreported, Family Court of Australia at Melbourne, 20 July 1998), the Court ruled that it was unnecessary and inappropriate to answer the question posed in the case stated.
Reportable.
ELLIS J: On 18 June 2002, Federal Magistrate Connolly stated a case for the opinion of the Full Court on a question of law pursuant to the provisions of s.94A(3) of the Family Law Act 1975 (Cth) (“the Act”).
The question that the Court has been requested to consider is:-
“Whether the Court [i.e. the Federal Magistrates Court] can discharge, suspend, revive or vary a maintenance order that is no longer in force with respect to a child that has turned 18.”
RELEVANT PROVISIONS OF THE ACT
I do not consider that it is necessary to outline the structure and relevant contents of the provisions of Division 7 of Part VII of the Act, which is entitled “Child maintenance orders”, having regard to the outline set out by the Full Court in Keltie v Keltie and Bradford (2002) FLC 93-106. However, to complete that outline, I would draw attention to the provisions of s.66W and to the provisions of s.65H(2) of the Act which is contained in Division 6.
Section 66W was amended by the Family Law Amendment Act 2000 (Act No. 143 of 2000) which came into operation on 27 December 2000. The section now provides:-
“(1)Nothing in subsection 66L(3), or in this Subdivision (apart from subsection (2) of this section), affects the recovery of arrears due under a child maintenance order in relation to a child when the order ceases to be in force.
(2)If arrears are due under such an order when the order ceases to be in force, the court may, by order, retrospectively:
(a) discharge the order if there is just cause for doing so; or
(b)vary the order so as to increase or decrease the arrears to be paid under the order if the court is satisfied that:
(i)the circumstances of the person liable to pay the arrears are such as to justify the variation; or
(ii)the circumstances of the person entitled to receive the arrears are such as to justify the variation; or
(iii)in the case of an order that operated in favour of, or that was binding on, a legal personal representative - the circumstances of the estate are such as to justify the variation.”
HISTORY OF THE PRESENT PROCEEDINGS
The history, as it emerges from the agreed facts, is as follows:-
The parties married and had three children. On 28 October 1999, at which time the husband was residing in the United Kingdom, on the application of the wife, an order was made in the Magistrates Court at Ringwood to the effect that the husband pay to the Child Support Agency the sum of $130 per week for the support of each of the three children of the parties, K born 1 July 1983, N born 5 February 1986 and J born 19 August 1989, the order to operate from 1 June 1999. The order noted that the application was considered pursuant to the provisions of Division 6 of the Act [the then relevant Division of Part VII] and that any previous assessments under the Child Support (Assessment) Act had been terminated pursuant to the provisions of s.12 of the latter Act.
The husband returned to Australia in July 2001. Since then, he has been in receipt of unemployment benefits in the sum of $218 per week. No moneys were paid pursuant to the order of 28 October 1999 until shortly before proceedings were instituted in the Federal Magistrates Court. At the time that the Federal Magistrate stated the case, $10 per week was being deducted on account of child support from the benefits received by the husband.
In October 2001, the husband, who is now resident in Australia, filed an application in the Federal Magistrates Court seeking orders that the order made on 28 October 1999 be discharged, that the child support penalties and arrears assessed by the Child Support Agency be discharged and that he pay to the wife child support as assessed by the Child Support Agency based on his current income.
The wife filed a response seeking an order that the husband’s application be dismissed.
The Child Support Agency has assessed the amount owing under the order as at
19 August 2001, including penalties and interest, in the sum of $44,851.23. The amount of child support payable pursuant to the order, excluding penalties and interest, relating to the adult child K from 1 June 1999 to 1 July 2001, when she attained the age of 18 years, a period of 108 weeks, is $14,040.
THE HUSBAND’S SUBMISSION
It was submitted on behalf of the husband that the Court has the power to discharge or vary an order or arrears due under an order relating to child maintenance after the child has attained the age of 18 years. In support of that submission, in the written outline of argument, counsel for the husband referred us to Rothstein v Child Support Registrar (1994) FLC 92-490, Heethuis v Van Genderen (1999) FLC 98-005, Deputy Child Support Registrar v Costigan v Costigan (unreported, Family Court of Australia at Townsville, 7 September 1999) and Paris v Dixon (unreported, Family Court of Australia at Melbourne, 20 July 2000).
SUBMISSIONS OF THE WIFE
The wife appeared without legal representation before us today and submitted that the Court does not/should not have the power to discharge or vary an order or arrears due under an order relating to child maintenance once the child has attained the age of 18 years. The wife also referred us in her written outline of argument to the four authorities referred to by counsel for the husband in the husband’s written outline of argument and made submissions based on what she described as a commonsense approach to the problem confronting the Court.
Neither party, in their written submissions, made any reference to the provisions of s.66W of the Act.
CONCLUSIONS
The authorities to which we were referred by both parties all pre-date the coming into operation of s.66W in its present form.
Section 66L(3) provides that a child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after the happening of that occurrence. The order of 28 October 1999 is clearly a child maintenance order.
Section 66W now provides that nothing in ss.66L(3) or in Subdivision E of Division 7 of the Act affects the recovery of arrears due under a child maintenance order in relation to a child when the order ceases to be in force. In addition, the subsection further provides that if arrears are due under such an order when the order ceases to be in force, the Court may, by order, retrospectively, in the circumstances outlined in the subsection, discharge the order or vary the order so as to increase or decrease the arrears to be paid under the order.
In the light of the provisions of s.66W, in my view, it is both unnecessary and inappropriate to answer the question formulated in the case stated.
THE CASE STATED
I earlier referred to the fact that the wife, unlike the husband, is not legally represented at today’s hearing. In Lindsey and Lindsey (1995) FLC 92-638, in a similar situation, the Full Court said:-
“Where an important issue of law is raised in future, and it is proposed to state a case for the opinion of the Full Court, a trial Judge, before doing so, should advise the Chief Justice who will then be in a position to invite the Attorney General to appear to assist the Full Court.”
Those observations are, in my view, apposite where a Federal Magistrate proposes to state a case for the opinion of the Full Court.
FINN J: I agree with what has been said by the Presiding Judge. I have nothing to add.
MUSHIN J: I also agree with the answer to the case stated as proposed by the Presiding Judge for the reasons given by him and have nothing to add.
ELLIS J: The ruling of the Court then will be that it is unnecessary and inappropriate to answer the question posed in the case stated.
RECORDED: NOT TRANSCRIBED
ELLIS J: The Court declines to grant to the husband a cost certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981.
I certify that the preceding 24 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.
Associate
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