Wreford & Caley

Case [2010] FamCAFC 21

FAMILY COURT OF AUSTRALIA

WREFORD & CALEY [2010] FamCAFC 21

FAMILY LAW – CHILD SUPPORT – arrears – application for arrears to be reinstated and payment enforced – relevant considerations in exercising discretion to discharge arrears

FAMILY LAW - DISCRETION – relevant matters overlooked – irrelevant matters considered – whether the “12 month rule” continues to exist – appeal allowed

FAMILY LAW - PROCEDURAL FAIRNESS – failure to adequately explain why one of two related matters (enforcement and application to discharge arrears) would proceed first and what evidentiary ramifications might follow from adopting this course
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth), s 66W(1), s 66W(2)
Family Law Amendment Act 2000 (Cth)
Astbury and Astbury (1978) FLC 90-494
Brown and Pedersen (1992) FLC 92-271
Cameron & Helie [2004] FMCAfam 685
Croser and Attrill (1990) FLC 92-100
Daniels and Bell (2007) FLC 93-315
Fraser & Fitzgerald [1996] FamCA 67
Hamilton and Nowak (1988) FLC 91-981
Heethuis v Van Genderen (1998) 24 Fam LR 396
House v The King (1936) 55 CLR 499
Kelly and Kelly (1996) FLC 92-680
Lutzke and Lutzke (1979) FLC 90-714
Mathieson & Hamilton [2006] FMCAfam 238
Oscar and Traynor [2008] FamCAFC 158
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Spry and Roet (1977) FLC 90-301
Truscott and Truscott (1986) FLC 81-761
Vakil v Vakil (1997) FLC 92-743
APPELLANT: Ms Wreford
RESPONDENT: Mr Caley
FILE NUMBER: HBC 495 of 2007
APPEAL NUMBER: SA 38 of 2008
DATE DELIVERED: 16 February 2010
PLACE DELIVERED: Perth
PLACE HEARD: Hobart (by video-link to Melbourne)
JUDGMENT OF: Bryant CJ, Thackray & Bennett JJ
HEARING DATE: 10 March 2009
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 18 March 2008
LOWER COURT MNC: [2008] FMCAfam 303

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Alexander and Ms Devine
SOLICITOR FOR THE APPELLANT: Garden & Green
COUNSEL FOR THE RESPONDENT: No appearance
SOLICITOR FOR THE RESPONDENT: Ian Guest & Associates

Orders

  1. The appeal be allowed

  2. The Order made by Federal Magistrate Roberts on 18 March 2008 be set aside.

  3. The application of the father for discharge of arrears of child maintenance and penalties filed 18 September 2007 be remitted for hearing in the Federal Magistrates Court before a Federal Magistrate other than Roberts FM.

  4. The Court grants to the mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by her in relation to the rehearing of the application.

  5. If the father wishes to seek a certificate under s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) he make application within 21 days following the making of these orders, in writing to the Regional Appeal Registrar and the making of a costs certificate for the father…

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AGLC
Wreford & Caley [2010] FamCAFC 21
Case
[2010] FamCAFC 21
Decision Date

CaseChat Overview and Summary

Wreford & Caley was an appeal in the Family Court of Australia, where the mother contested the decision of the Federal Magistrate to discharge arrears of child support and penalties owed by the father. The mother argued that the decision was flawed due to procedural unfairness and a failure to consider relevant factors. The father, in turn, argued that the decision was correct and should be upheld. The court was required to decide whether the Federal Magistrate had exercised his discretion correctly in discharging the arrears and whether the procedural fairness of the hearing was adequate.

The court found that the Federal Magistrate had overlooked relevant matters and considered irrelevant ones when exercising his discretion. The court also held that the "12-month rule" no longer existed, which was an important factor in the decision. Additionally, the court found that the Federal Magistrate had failed to adequately explain why one of two related matters would proceed first and what evidentiary ramifications might follow from adopting this course. The court concluded that the appeal should be allowed, and the order made by the Federal Magistrate should be set aside. The father's application for discharge of arrears of child maintenance and penalties was remitted for hearing before a different Federal Magistrate.

The court also granted the mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth). This means that the Attorney-General may authorise a payment to the mother in respect of the costs incurred by her in relation to the rehearing of the application. If the father wishes to seek a certificate under s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), he must make an application within 21 days following the making of these orders, in writing to the Regional Appeal Registrar. The making of a costs certificate for the father is reserved.

Orders

Orders of the court

1.

The appeal be allowed

2.

The Order made by Federal Magistrate Roberts on 18 March 2008 be set aside.

3.

The application of the father for discharge of arrears of child maintenance and penalties filed 18 September 2007 be remitted for hearing in the Federal Magistrates Court before a Federal Magistrate other than Roberts FM.

4.

The Court grants to the mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by her in relation to the rehearing of the application.

5.

If the father wishes to seek a certificate under s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) he make application within 21 days following the making of these orders, in writing to the Regional Appeal Registrar and the making of a costs certificate for the father be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Relevantly, the Federal Magistrate concluded:-Conclusions39.Section 66W(2) of the Family Law Act 1975 refers to the retrospective discharge or variation of an order and states (in part):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; …… 40.Clearly, the court has power to discharge the order and the arrears. 41.In this particular case it seems to me that the main deciding factor is that there is no fund from which the father can pay these arrears. 42.There is no evidence before the court that the mother’s debts have increased arising out of her support of the children. I am not being critical of her in any way. We all know it is expensive to raise children and clearly she was doing that with little financial support from the father. However, it appears that she did have financial support from other partners from time-to-time, and it would appear that at the time that the order was made she was receiving support, not only financial but other support from [L] to the point that he would become a guardian and custodian of the children. As I have said that is type of order that I would take some convincing should be made today [sic]. 43.Overall, however, there is no fund from which these arrears can be paid. I accept that the father’s financial position is “dire” and that he and his wife are having great difficulty in meeting their liabilities to banks and lending organisations. Even if my maths is wrong the figures are fairly dramatic.44.I think I can take judicial notice of the fact that interest rates are rising and the likelihood is that interest rates will continue to rise for a little while yet. That will only make the father’s position even more “dire” than it is today. 45.When I look at the financial positions of the parties it seems to me that the financial position of the father is considerably worse than that of the mother, although I do not for a moment say that the mother’s financial position is good. I just say that the father’s financial position is worse. On that basis I am of the view that the arrears should be discharged. There were seven grounds of appeal. Counsel for the mother described them as able to “be put in two camps”. One category, being Grounds 1, 5, 6 and 7, related to procedural fairness and the rights of self-represented litigants. The other category, comprising of Grounds 2, 3 and 4, relates to the considerations or matters to which the Federal Magistrate should have taken into account in exercising his discretion to allow the father’s application but did not do so. In addition we think there is an overlap in Grounds 5 and 6 which also relate to matters his Honour arguably failed to take into account

Ratio Decidendi

Legal Principle Established

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