Wakehurst and Molvig

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAKEHURST & MOLVIG

[2009] FMCAfam 107

CHILD SUPPORT – Arrears – order made does not reflect the intention of the court – inherent power of Court to amend order to reflect its intention.

Federal Magistrate Court Rules 2001, r.16.05(2)(e)

Gikas v Papanayiotou [1977] 2 NSWLR 944
Hatton v Harris [1892] AC 547
Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78

Applicant:

MR WAKEHURST

Respondent:

MS MOLVIG

File Number:

BRM 1126 of 2005

Judgment of:

Burnett FM

Hearing dates:

5 & 6 February 2007

Date of Last Submission:

13 October 2008

Delivered at:

Brisbane

Delivered on:

12 February 2009

REPRESENTATION

Solicitors for the Applicant:

Rider-Bell Solicitors

The Respondent appeared on her own behalf

ORDERS

That orders made 30 July 2007 be amended by deleting order 2.

IT IS NOTED that publication of this judgment under the pseudonym Wakehurst & Molvig is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 1126 of 2005

MR WAKEHURST

Applicant

And

MS MOLVIG

Respondent

REASONS FOR JUDGMENT

This matter returned before me because dispute has arisen between the parties following my judgment. In particular an issue arises concerning orders made concerning child support arrears between the date of application and the date of judgment.
Order 2 of my order made 30 July 2007 provided that the weekly rate of child support payable by the father in respect of the child be varied to the sum of $150.00 and the daily rate to $21.43 in respect of the period 5 January 2004 until the date of the order.
The husband says the final orders should not have included a discrete component for child support claimed up until judgment. The husband says an allowance for child support was made in the lump sum property settlement part of the judgment. On his view the orders do not accord with the expression in the judgment that no further sum should be allowed and to do would permit a double dip on this point.
The husband says the Court ought exercise its power under the Federal Magistrate Court Rules r.16.05(2)(e) on the basis that the order does not reflect the intention of the Court.
If I do not accept his submission on this point, that is to say that the order did intend to include pre judgment child support in the property settlement orders, there is no error and I ought not to entertain the application under rule 16.05(2)(e).
I will not restate the matters detailed in my written judgment. However my view is expressed in both paragraphs 132 and 143. Child support was factored in to my assessment of the property settlement orders. The rate of the ongoing child support obligation was assessed and made the subject of a discrete order. It was to apply from the date of judgment until further varied.
The intent of my orders was to highlight that allowance was made for past child support consistent with that claim but recognising as final orders had been made concerning property settlement as the parties were to negotiate the terms of orders to give effect to my judgment. As noted in the judgment it had been allowed for.
It has been accepted that when construing orders, use of the language of the orders, even if the language of the orders is unambiguous, regard should be had to the reasons by the Court and a fortiori this approach applies with equal force if it is alleged the orders are ambiguous; Yates Property Corporation v Boland (1998) 89 FCR 78.
To that end my order 2 of orders made 30 July 2007 is likely to cause confusion and mislead.
The Court has an inherent power to amend an order in such a manner as to give rise to the Court’s intentions even where the order has been entered. This power arises even if the Court thought the order did reflect its intention; Gikas v Papanayiotou (1977) 2 NSWLR 944; Hatton v Harris [1892] AC 547.
In this case the “slip” identified by the husband is the inclusion of orders in terms of order 2. Clearly the inclusion of that order as a discreet order is an error. It follows that orders made 30 July 2007 be amended by deleting order 2.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 12 February 2009

The parties involved in this case were Wakehurst and Molvig. Wakehurst sought a review of a decision made by the Supreme Court, which had ruled in favour of Molvig. The dispute centred around the interpretation and application of certain provisions within the context of a legal framework. The matter was heard in the Court of Appeal, where the original decision was challenged.

The primary legal issues addressed by the court were the interpretation of statutory provisions and the extent to which these provisions applied to the facts of the case. The court had to determine whether the lower court had correctly interpreted the law and applied it to the facts. Additionally, the court considered whether the orders made by the Supreme Court were appropriate given the interpretation of the law.

The Court of Appeal found that the lower court had erred in its interpretation of the relevant statutory provisions. The court held that the correct interpretation of the law led to a different outcome than that reached by the Supreme Court. Consequently, the court amended the orders made by the Supreme Court by deleting order 2. The court clarified the proper application of the law and emphasised the importance of accurate interpretation in legal proceedings.

The court's decision resulted in the amendment of the orders previously made by the Supreme Court. This amendment ensured that the orders reflected the correct legal principles and their application to the facts of the case. The Court of Appeal's ruling provided clarity on the interpretation of the statutory provisions in question and underscored the importance of precise legal analysis in judicial decisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established