Wreford & Caley - [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

2007

APPEAL NUMBER:

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

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

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT HOBART

Appeal Number: SA 38 of 2008
File Number: HBC 495 of 2007

Ms Wreford

Appellant

And

Mr Caley

Respondent

REASONS FOR JUDGMENT

BRYANT CJ, BENNETT J

Introduction

This is an appeal by the mother against the Order of Federal Magistrate Roberts made on 18 March 2008. That Order discharged any arrears of child maintenance payable by the father pursuant to earlier orders made by the Family Court on 3 June 1991. The mother seeks that the Order made on 18 March 2008 be set aside, the arrears reinstated and payment enforced.
The father did not attend the hearing of the appeal and was not represented before us.
The Child Support Registrar (“the Registrar”) was not before us or a party to the appeal having been excused from participation at the appeal by Mushin J at an earlier directions hearing of the appeal.
We have determined that the appeal should be allowed as the Federal Magistrate failed to take into account relevant considerations (and took into account irrelevant considerations) in the exercise of his discretion to discharge the arrears. We have also found procedural unfairness to the mother, who was unrepresented, in the conduct of the hearing. The reasons for our decision follow.

Background

The following background is drawn from his Honour’s reasons for judgment, the transcript of the proceedings before his Honour and the documents contained in the Appeal Book common to all parties.
The father was born in 1965 and at the time of the appeal was 43 years old. The mother was born in 1966 and is now, 42 years old. The parties were in a de facto relationship from the early 1980s until 1986 and have two children, K born in 1985 (now 24 years old) and R born in 1986 (now 23 years old). Because both children were born before 1989, and their parents separated before 1989, the children are not subject to the provisions of the Child Support (Assessment) Act 1989 (Cth). His Honour noted that the child maintenance order was made in 1991 and the Order under appeal relate to these two children, although both are now over 18 years of age.
In 1988 the mother married L. The maintenance order was made on 3 June 1991 in the Family Court at Hobart by consent of the parties to those proceedings, being the mother, the father and L. Relevantly, the Order provided that:
· the mother and L have “joint custody and guardianship” of K (then 6 years old) and R (then 4 years old), being the children of the mother and the father, and the father have access to the children as agreed with the mother and L; and
· the father pay the mother child maintenance of $50 per week (being $25 per child per week) until the children turned 18 years old, such payments to cease during any periods in which the father was unemployed and be indexed each year in accordance with inflation.
Importantly, in the context of this appeal, on 18 June 1991 the maintenance order made on 3 June 1991 was registered with the Child Support Agency (“CSA”) for the CSA to collect payments from the father on behalf of the mother pursuant to the Child Support (Registration and Collection) Act 1988 (Cth). The mother’s case before us was that this registration had the effect of statutorily preventing her from personally issuing proceedings against the father for the payment of arrears.
The father alleges that in 1998 he received a telephone call from the mother in which she told him that she no longer wished to pursue any child support payments from him. The father further alleges that, about this time, he received a letter from the CSA confirming that he had a “nil” liability for child support. For her part, the mother denies ever having said to the father that she did not wish to pursue child support payments owed to her by the father.
In March 2003 the child K turned 18 years old and the father’s child support obligation to the mother halved accordingly. In November 2004 the child R turned 18 years old, and it is common ground that the father’s child support obligations ceased on that date.
In June 2005 the father purchased a business which he was still operating at the time of the hearing before the Federal Magistrate.
On 1 January 2007 the Child Support (Registration and Collection) Act 1988 (Cth) was amended. The mother asserted that these amendments entitled her to thereafter institute proceedings against the father for payment of arrears of child support, which she had not previously been entitled to do. In any event, in April 2007 the Registrar issued an Enforcement Summons against the father for payment of child maintenance arrears in the sum of $7,846.14 plus a further amount of $7,011.92 in penalties. The Federal Magistrate described this Enforcement Summons as “the catalyst” for the subsequent litigation between the parties.
The only parties to the enforcement proceedings were the Registrar and the father. The application was expressed to be returnable, at Devonport, as an oral examination of the father in May 2007 and specified the financial documents which he was required to bring to Court for that examination. The schedule was comprehensive and included documents relevant to income, companies, businesses and trusts in which the father had an interest including “[Caley & Caley] partnership…” and investments, superannuation, real property and motor vehicles in which he had an interest. Banking and taxation records were required from the date of registration of the maintenance liability with the CSA or thereabouts.
In September 2007 the father filed in the Federal Magistrates Court an application seeking to discharge his arrears of child support. The father did not include the mother as a party to the application to discharge the arrears. The Registrar was the sole respondent. The application was expressed to be returnable, in Launceston, on 20 September 2007. The father’s supporting affidavit material did not dispute that he had an intermittent liability to pay child support for approximately four and a half years between July 1991 to October 2002. He deposed that he and his wife had borrowed $250,000 in 2005 to acquire a business, Caley & Caley, and a further $50,000 to cover business expenses whilst the father recovered from a stroke. The father further deposed that “[at] the present time the business is now operating okay and over the next few years we hope to move ahead.”
On 20 September 2007 the Enforcement Summons and the father’s application were listed for mention. On that date the Federal Magistrate ordered, inter alia, that the mother be joined as a party to the proceedings.
On 11 December 2007 the mother filed an affidavit containing only six lines denying that in 1998 she had agreed with the father to forgo maintenance payments.

Conduct of the hearing

On 18 March 2008 the father was represented by Mr McGuire of counsel (as he then was). The Registrar was represented by a solicitor from the office of Australian Government Solicitor. The mother was not represented and appeared in person.
The hearing commenced with the mother sitting at the back of the Court and only counsel for the CSA and the father at the bar table. Counsel for the father asserted that the Registrar’s Enforcement Summons was only listed for mention, whereas the father’s application to discharge arrears was listed for final hearing. Whether one or both applications were listed for determination or mention was a matter which was not able to be clarified before us. The fact that an order had been made by the Federal Magistrate on 11 February 2008 adjourning the “matter” for hearing to Launceston as a special fixture on the day of the hearing with which this appeal is concerned and which names the father, the CSA and the mother as parties, indicates that both applications were returnable before Roberts FM on 18 March 2008.
The Federal Magistrate determined to deal first with the father’s application to discharge the arrears on the basis that “if there are to be no arrears then the Registrar would presumably not seek to proceed with the Enforcement Summons.” Counsel for the Registrar addressed the Court as follows:-
…I see the role of the agency at this stage is to sit back and observe and have the issue of the departure application heard and determined, and if there is time perhaps then we could consider the question of whether enforcement – looking at the enforcement summons today is it is [sic] appropriate, but we can cross that bridge when we come to it.
The Federal Magistrate did not ask the mother whether she opposed or agreed to the enforcement application being determined first.
The transcript indicates that counsel for the Registrar observed the proceedings from the back of the Court.
The Federal Magistrate invited the mother to ask his Honour about anything which she did not understand at the hearing. The Federal Magistrate sought to explain how the hearing of the father’s application would proceed. Near the beginning of the hearing, the mother asked the Federal Magistrate whether her case manager, Ms H (presumably an officer of the CSA), could explain anything to her in the course of the proceedings and speak on her behalf. His Honour stated that if there was something the mother did not understand, she should ask the Court and the Federal Magistrate proceeded to give a summary of how the proceedings would be conducted. The Federal Magistrate explained that the role of the CSA was simply to collect any arrears of child support which were owed and that the CSA was not involved in the father’s application to have the arrears discharged.
The Federal Magistrate clarified to the mother that the father’s counsel, Mr McGuire, would seek to have his client give further evidence, which the Court may or may not allow depending on the nature of the evidence. His Honour explained that, in any case, the mother would have a right to cross-examine the father in relation to his evidence. Specifically, the Federal Magistrate said:
You can ask him any questions you like about the affidavit.
You have an affidavit as well which you have filed, and you dispute some of the matters that he says in his affidavit. Cross-examination is really just asking questions about the evidence. You don’t have to cross-examine if you don’t want to however it may well be in your interests to ask questions, I don’t know. Just wait and see.
His Honour explained that if the mother cross-examined the father, Mr McGuire would be given an opportunity for re-examination of the father, albeit only in relation to matters arising out of the mother’s cross-examination of the father. His Honour suggested that if the father did not have any other witnesses, the mother could then reconsider whether she wished to continue with the matter. His Honour further remarked that, if the mother did continue to oppose the father’s application, counsel for the father may wish to cross-examine her in relation to evidence in her affidavit.
Finally, the Federal Magistrate told the mother that he would hear submissions based on the evidence and then make a decision. His Honour stated that the CSA would not have a role if the father’s application was successful because there would be no arrears to collect.
On application by counsel for the father, the Federal Magistrate permitted the father to give oral evidence regarding his financial situation, which the Federal Magistrate later accepted as “dire”. The father’s evidence-in-chief was assisted by reference to financial records which he had brought to Court. The father’s evidence about his financial situation was confined to his current circumstances which illustrated a situation far removed from that which he had deposed to only a short time earlier and which has been described in paragraph 14 of his Honour’s reasons for judgment. This would have taken the mother by surprise, even if she been represented. The father deposed that he had not heard from the mother for nine years, although about three years previously he had received demands from the CSA for the payment of arrears. The father’s position was that he believed he did not owe any arrears.
The Federal Magistrate stipulated that it was not necessary for the documents referred to by the father to be tendered unless the evidence to which they related was challenged. His Honour stated:
[if] Ms [Wreford] thinks he might have overstated an amount and wants to challenge an amount she can call for the particular document at any time.
His Honour then gave the mother an opportunity to cross-examine the father. The mother expressed uncertainty about the limits of her role and asked to be corrected if she did “the wrong thing”. The mother opened her cross-examination by putting to the father that she had in fact contacted him approximately six years prior to the hearing, to discuss K’s, who was 16 years old at the time, rebellious behaviour. Before the father had a chance to respond to the mother’s question, the mother asked a further question about whether the father believed it to be fair that he did not pay maintenance. Directly, the mother enquired of the Court whether she was allowed to ask that question and counsel for the father objected on the basis that the question required a value judgment and would not assist the Court. His Honour upheld the objection, to which the mother responded:
Okay, then, sorry. I think that’s all I need to ask. Yes, that’s all.
There was no re-examination.
The cross-examination of the mother by counsel for the father in relation to the mother’s financial circumstances was confined to her current circumstances. In cross-examination about the alleged agreement of the mother in 1998 to forgo maintenance, the mother denied that the conversation took place as alleged. She was stopped when she tried to describe the conversation which she said occurred between the father and herself. His Honour said “[j]ust remember that you’ll get an opportunity in a moment to clarify if you think that something needs clarifying.” However, in re-examination his Honour allowed an objection against the mother giving evidence of her version of events for reasons which the Federal Magistrate discussed and summarised at the time, being:-
a)that such evidence could have been included in the mother’s affidavit but was not;
b)that such evidence had not been put to the father in cross-examination; and
c)that such evidence, if given, “does put Mr [Caley] in a position and through his counsel of not being able to deal with the matter, because your evidence will have been given in re-examination, whereas it should have been in your evidence-in-chief … then Mr [Caley] has no comeback at it. He can’t get back in the witness box and give his side of the story to us.”
The evidence of both parties was concluded in little over an hour.
The Federal Magistrate directed that the final submissions of the father precede those of the mother subject to the father having a right of reply.
It was submitted by counsel for the father that the relief, to discharge arrears of maintenance, was discretionary. There were no submissions as to the factors which ought to be taken into account in the exercise of the discretion. However, counsel for the father contended that there were general policy reasons as to why the Court should be disinclined to “permit effectively the enforcement of maintenance orders that go back too many years”. These included that maintenance is meant to address a day-to-day need for support, that an applicant for arrears should not be able to accumulate “a nest egg” by inaction and that a payer of maintenance “should be entitled to get on with their lives without a black cloud hovering over that person’s head. Particularly where no proactive means of collection or enforcement or whatever has been made.”
Counsel for the father relied on the fact that there was no evidence about the mother’s historical financial circumstances. He submitted that the father currently lacked the capacity to pay the arrears sought.
Furthermore, counsel for the father did not refer to the statutory provisions nor, save for a discussion about issues pertaining to the “12 months rule”, traverse the relevant matters to be taken into account by his Honour in the exercise of his discretion to, or not to, discharge arrears.
The Federal Magistrate suggested that the mother direct her submissions to those parts of the father’s submissions that she wished to challenge. Her submissions were brief and included:-
MS [WREFORD]: I mean I believe that’s not my fault that [Mr Caley] has to, sort of, like, every (indistinct) to hear that, like, even after the kids are after 23, you know, like, being made to pay the maintenance after some (indistinct) left home. I believe that it was, sort of, like, up to child support to chase, you know, the person that has to pay maintenance and now it’s come to this. If he had paid beforehand then we wouldn’t be here.
As far as his financial – I mean what he has to pay out and that is, sort of, relevant I feel, that – I don’t know what to say. I don’t understand what to say; what is right or what is wrong or – I can’t afford a lawyer to do it and if I could somebody would be standing here answering for me. I just believe that [Mr Caley] should have to pay maintenance for the children, they’re his responsibility as well as mine. The kids have missed out on a lot of things over the years due to his not – without his help. I just feel that he should, like, pay. It’s part of his responsibility as well. I mean I would like to turn around and say (indistinct) I owe this, this and this but I don’t want to pay you because I can’t afford to.” It’s the law and ---
HIS HONOUR: Sorry, do I understand that argument, you’re equating it to you can’t say to the people, “You owe money, well, I just don’t want to pay you” ---
MS [WREFORD]: Yes, I just can’t do that. If you owe it you owe it and you have just got to pay for it. That’s just the way I see things and okay we’ve all got bills, we’ve all got to do things but you have got responsibilities and that. If you owe something then as far as I’m concerned you pay for it. To me he has had a lot of time to pay for everything and he hasn’t done so it’s come to this to – for him – his thing to get out of it – but for me is to, you know (indistinct) back what, sort of, he owes me and the children as well even though he chose not to (indistinct) it. I think that’s all I have to say; I don’t know.
HIS HONOUR: Is there anything more you want to say?
MS [WREFORD]: No.

The Court adjourned at 12.28 p.m. and resumed at 2.17 p.m. when his Honour ordered that any arrears of maintenance payable by the father pursuant to the Order made on 3 June 1991 be discharged and delivered ex tempore reasons for that decision.
Following judgment, counsel for the Registrar sought and obtained an adjournment of the Enforcement Summons for mention. We are informed that the enforcement application is still extant and awaits the outcome of this appeal.

Reasons for judgment

The Federal Magistrate heard the case and delivered his decision and reasons on the one day during which, the transcript makes clear that there was at least one other defended matter requiring determination.
His Honour accepted the evidence of each of the parties as to their current financial circumstances. He accepted the father’s position as “dire”. He calculated the father’s liabilities at close to $1 million. In passing we note that, in doing so, the Federal Magistrate did not draw a distinction between recurrent and absolute liabilities. That is, there was no distinction between a fuel bill which must be paid promptly in accordance with terms of trade and, say, the lease liabilities which are necessarily spread over time and in the normal course can be off set against future income. Nor did the Federal Magistrate consider whether the father was insolvent in the sense that although he had current liabilities, on a realisation of assets he may have been able to satisfy his outstanding liability to the mother.
The Federal Magistrate described the mother’s current financial position as “not good either. She has debts essentially relating to a motor vehicle, a personal loan and also a credit card.”
The Federal Magistrate discussed a number of authorities to which he had been referred by counsel for the father. His Honour accepted Kelly and Kelly (1996) FLC 92-680 as authority for the proposition that:
[L]itigants having the benefit of orders for the payment of expenses in relation to their children cannot sit back and allow them to accumulate without informing the person having the obligation to pay. The husband was entitled to arrange his affairs on the basis of his known obligations.
His Honour accepted Cameron & Helie [2004] FMCAfam 685 as authority for the proposition that:
Child maintenance arrears are not to be used as some form of lump sum compensation to a party long after the need for the child to be maintained has passed.
His Honour accepted Spry and Roet (1977) FLC 90-301 as authority for the proposition that:
Despite the general practice of limiting enforcement to a period of only twelve months, there are cases in which, having regard to the circumstances, the court will enforce payment of arrears of maintenance falling due over a more lengthy period.
His Honour referred to and accepted Mathieson & Hamilton [2006] FMCAfam 238, which cited Truscott and Truscott (1986) FLC 81-761 as authority for the proposition that:
[the 12 month rule] is not a ‘rule’ in any strict sense and must give way to the circumstances of each case when those circumstances warrant it.
His Honour discussed the case of Hamilton and Nowak (1988) FLC 91-981 in which Mullane J declined to apply “the 12 months rule” and listed Mullane’s J six reasons for doing so but noted that “not very many of those reasons are applicable here”.
In further discussion the Federal Magistrate compared the mother’s position unfavourably to that of the applicant for arrears in Hamilton and Nowak (supra) because, in that case, the appellant and the children had been “living throughout the period of arrears in circumstances of serious need”. His Honour referred to the fact that, in Hamilton and Nowak, the wife had been required to re-finance the mortgage affecting her home, she had made all reasonable efforts to collect arrears and the payer knew that arrears were being sought. His Honour observed that the mother in this matter had not adduced evidence of having:
… had to refinance a mortgage or anything of the like. Indeed the debts she gave evidence about are debts that have been incurred since and are not debts that have arisen solely because she had to maintain the children.
Finally, his Honour was not satisfied that the father had not been open and frank in relation to his financial position. He contrasted that with the adverse finding which had been made against the payer in the case of Hamilton and Nowak.
Relevantly, the Federal Magistrate concluded:-
Conclusions
39.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.

Grounds of appeal

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

relevent considerations to the exercise of the discretion to discharge arrears

This category was argued second but includes the grounds which we consider should be dealt with first and which bear closest relation to the substantive aspect of the appeal. In addition, it was argued under the procedural fairness grounds that the Federal Magistrate erroneously failed to permit evidence to be adduced which could have assisted the mother and thereby failed to comply with the guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072. In order to assist the mother as required by Re F and arguably to rule on the admissibility of evidence, it was necessary for the Federal Magistrate to be aware of the factors which the Court should be considering in this application and if necessary, as arguably it was here, to make those factors known to the mother so she could address them in the course of her case. Thus we think it is necessary to first consider whether his Honour correctly indentified the relevant factors before we deal with the question of whether the mother was denied procedural fairness.
The circumstances in which an appellate court can legitimately interfere with a discretionary judgment are well known. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Counsel for the mother submitted, in general terms, that his Honour failed to take into account material considerations in the exercise of his discretion to discharge arrears. The particular grounds were stated as follows:-

1. …

2. His Honour erred in interpreting the authorities as to the ‘12-month rule’.

3. His Honour failed to take into consideration section 106 of the Family Law Act 1975 (Cth) which removed the need for special circumstances to apply before a court can enforce maintenance that is more than 12 months in arrears.

4. His Honour failed to take into consideration sections 30 and 113 of the Child Support (Registration and Collection) Act 1988 (Cth) preventing the Appellant taking enforcement action against the Respondent after registering the maintenance orders with the Child Support Agency, and not until 1 January 2007 could the applicant do so under s 113A of that Act.

These might also arguably be described as irrelevant considerations his Honour erroneously took into account. In addition we would include Grounds 5 and 6 which assert a failure to take into account other relevant considerations:

5. His Honour failed to take into consideration the arrears of maintenance which arose because the Respondent refused to pay child maintenance and prior to the purchase of the Respondent’s business which His Honour found caused the Respondent to have no funds from which to pay the arrears.

6. His Honour failed to take into consideration the authorities as to a parent’s primary responsibility to provide maintenance for their children – Bassingthwaite v Leane (1993) FLC 92-410, Mee v Ferguson (1986) FLC 91-716, Bienke v Bienke-Robinson (1997) FLC 92-786.

It is clear from the extract of reasons above that his Honour correctly regarded the present case as falling for determination pursuant to s 66W of the Family Law Act 1975 (Cth) (“the Act”). Section 66W provides as follows:-
66W(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.
66W(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
Counsel submitted that his Honour had failed to take into account other provisions of the Act when determining whether there was just cause for discharging the child maintenance order. Counsel for the mother referred to the decision of Lutzke and Lutzke (1979) FLC 90-714 in which Lindenmayer J considered the meaning of the phrase “just cause” in the context of the now repealed s 83(1), which was the earlier statutory equivalent to the current s 66S. The provision considered by Lindenmayer J in Lutzke provided, inter alia, that a current child maintenance order could be discharged “if there is any just cause for so doing”. Insofar as it is relevant, the repealed s 83(2) and (b) also provided that the court should not increase or decrease the amount payable under the order unless it was satisfied that there had been a change in circumstances of the payee or the payer or in the cost of living which justified it doing so. The old provisions were very similar to the current s 66S(1), (2) and (3) in requiring that the court be satisfied as to a just cause. In this context, Lindenmayer J considered what constituted “just cause” and made the following observations (at 78,832):-
Looking first at sec. 83(1)(a) and (c), it is clear that the question for the Magistrate upon the husband's application for discharge was whether there was ``any just cause'' for discharging the order made in 1969 requiring the husband to pay $4.00 per week for the maintenance of each of his three children, and in my opinion it is also quite clear, as submitted by the wife's counsel (point (1) of the summarized argument above) that the husband, as the applicant, bore the onus of establishing the existence of such ``just cause''. If any authority is needed for such a basic proposition, it is to be found in Astbury and Astbury (1978) FLC 90-494 at p. 77,562. However, the Act is silent as to what may constitute ``just cause'' for the discharge of an order. In my opinion, however, the words ``just cause'' are not used in any broad general sense, nor are they intended to import any abstract notions of justice, ``palm tree'' or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a ``cause'' for the discharge of an existing maintenance order will be a ``just cause'' only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is ``right'' or ``proper'' that the order should be discharged. If there were any room for doubt that this is the correct approach, in my opinion that doubt is removed by sec. 83(7) which provides:
``(7) For the purposes of this section, the court shall have regard to the provisions of sections 72, 73, 75 and 76.”
Counsel for the mother took us first to the objects and principles which are set out in s 66B. The objects specify that children should have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both parents and that parents share equitably in the support of their children. Eventually, counsel for the mother identified other provisions in the Act, such as s 66S which provides for the matters which are to be taken into account in relation to an increase or decrease in child maintenance. We note that, similarly to the repealed s 83(7), s 66S(10) provides that in considering whether to suspend, discharge, revive or vary a child maintenance order so as to increase or decrease the amount payable, the court is to have regard to various subdivisions to the extent applicable. Those subdivisions are:-
• Subdivision B – Objects and Principles;
• Subdivision C – Relationship with Child Support (Assessment) Act;
• Subdivision D – Applying for and making child maintenance orders.
In Vakil v Vakil (1997) FLC 92-743 the Full Court, comprising Fogarty, Lindenmayer and Moore JJ, discussed a number of authorities to which they were referred to or had obtained by their own research, in relation to what constitutes the concept of “just cause” in the context of an application to discharge arrears of maintenance. The Full Court concluded that, when considering whether it can be satisfied that there is just cause for discharging an order for maintenance, it is necessary for the trial judge to have considered other substantive provisions in the Act which define and limit the entitlement of a party to maintenance. Referring to part of the passage from Lutzke (supra) extracted above, the Full Court said:-
5.23 Having regard to all of that authority we think that the above-quoted dicta of Lindenmayer J in Lutzke (supra), which appear to have received no judicial criticism over the last eighteen years, probably define the concept with as much precision as it is possible to give it in this context. Thus we conclude that, having regard to the current wording of s 83(7) (supra), the question whether there is “just cause” for discharging an order, including one made in a reciprocating overseas jurisdiction and registered in Australia under the Regulations, is to be determined as an exercise of judicial discretion by reference to notions of what would be regarded as “right” and “proper” in Australia, having regard (inter alia) to the provisions of ss 72 and 75 of the Act. However, we are of the view that the effects of ss 83(7) is not such as to preclude regard also being paid to provisions of the Act other than ss 72 and 75, to the extent that they may be considered relevant in the circumstances of a particular case, and that may include, for example, s 81 and s 43(a).
In Vakil (supra), the Full Court was considering the discharge of a spousal maintenance order which, irrelevantly for our purpose, had been obtained overseas. The provisions to which the Full Court referred as being appropriate to inform the Court in its consideration of whether there is, or is any, just cause to discharge a maintenance order, were general substantive provisions in relation to spousal maintenance, in particular:-
•the right of a spouse to maintenance (s 72);
•the matters to be taken into consideration in relation to spousal maintenance (s 75);
•the duty of the court to end financial relations (s 81); and
•amongst the principles to be applied by courts – the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life (s 43(a)).
In Daniels and Bell (2007) FLC 93-315 the Full Court in dealing with an appeal from a Federal Magistrate had cause to consider the meaning of “just cause” in s 66W(2) and at paragraphs 66-70 quoted with approval the passages from Lutzke and Lutzke (supra) and Vakil and Vakil (supra) to which we have referred (in paragraph 56 and 58), adding:
Section 81 of course requires the court to, as far as practicable, make such orders as will finally determine the financial relationship between parties to the marriage and avoid further proceedings.
In our view, the concept of whether it is “right” or “proper” to discharge a maintenance order readily encompasses consideration of conduct such as delay.

In considering the meaning of “just cause”, they raised another matter which bears some consideration. In paragraphs 64 and 65 of the reasons for judgement the Full Court considered the meaning of the term “just cause” in s 66W(2) and said:
64. This submission renders necessary some consideration of the term “just cause” in section 66W(2). We repeat the terms of that subsection so far as relevant:
“2.If arrears are due under such an order when the order ceases to be in force, the court may, by order retrospectively:
(b)discharge the order if there is just cause for doing so; or…”
Arguably, these terms provide for a dual exercise of discretion; firstly, that to be exercised in finding whether or not there is a “just cause” and secondly whether, though “just cause” has been established, the order ought or ought not be discharged. Under this approach, a factor such as the making of non-agency payments may, in a particular case, be regarded as a “just cause” for discharging the order, but nonetheless other factors such as delay, or perhaps representations or promises by the payer to the payee, may mean that notwithstanding existence of a “just cause”, in the ultimate exercise of discretion, an order is not discharged.
65. Alternatively, there is but one enquiry and that is whether “just cause” exists. If it does, the order must be discharged. Senior counsel for the father’s submission, we thought, implied this approach. This interpretation would seem to attach no significance to the words “the court may”, in the second line of the subsection. Leaving that aside, whether ultimately the two approaches would produce different results would depend upon whether the court could, in determining “just cause” under the alternative approach, take into account any or all of the factors taken into account under the two step approach. Senior counsel for the father’s submission seems to imply a negative answer.
We think there is much force in the proposition as posed by the Full Court that s 66W(2) calls for a dual exercise of discretion: first, that to be exercised in finding whether or not there is a “just cause” and secondly whether, though “just cause” has been established, the order ought or ought not to be discharged. We think that is the interpretation preferred by their Honours in Daniels and Bell (supra) because of the comments in paragraph 65, where they said:
65. Alternatively, there is but one enquiry and that is whether “just cause” exists. If it does, the order must be discharged. Senior counsel for the father’s submission, we thought, implied this approach. This interpretation would seem to attach no significance to the words “the court may”, in the second line of the subsection. (our emphasis)
As the result of the case before them appeared not to turn upon this, their Honours did not consider it further. We think, however, there is substance in the proposition that it is a dual exercise. The effect of that would be to require his Honour to consider whether “just cause” had been established and then consider whether the order ought or ought not to be discharged.
We agree with the Full Court in Daniels and Bell (supra) that in the end there is but one enquiry, however adopting a “dual” exercise of discretion has a utilitarian purpose which is apparent in this case. It would have enabled the Court, for example, to find that the current financial position of the payer was difficult, but then to consider whether, having regard to other matters, the order should be nevertheless discharged.
Two other matters, not argued before us, appear to have relevance to this discussion.
First, it is important in our view to note the difference between sub-paragraphs (2)(a) and (b) of s 66W. In the former, the court may, by order, retrospectively:
(a) discharge the order if there is just cause to do so (our emphasis).
Sub-paragraph (b), which deals with varying (rather than discharging) an order, enables the Court to do so if it is satisfied that:
(b) …
(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.
Thus, as the Full Court in Daniels and Bell (supra) pointed out, the matter to which the Court is directed when considering a variation is, inter alia, the circumstances of the payer, current at the time of hearing. Different wording is used in sub-paragraph (a), suggesting that the considerations are broader and different although they may include the circumstances of the person liable to pay the arrears. It follows, in our view however, that cannot be the only ground upon which an order can be made, otherwise it would be in the same terms as paragraph (b). Paragraph (a) in our view neither depends upon the present circumstances of the payer justifying a discharge, nor permits a discharge based only on that circumstance.
The second matter is that the Court still retains discretion about enforcement. Thus an order might not be discharged, but the Court may not accede to an application to sell property or make an immediate payment by way of enforcement. This means that the immediate circumstances of the payer could still be taken into account but without having to discharge the order. That would be an example of giving effect to the dual exercise of discretion in s 66W(2)(a).
It appears that s 66W is a remedial provision. It was inserted by the Family Law Amendment Act2000 (Cth) to overcome the anomaly identified in Heethuis v Van Genderen (1998) 24 Fam LR 396 in which it was held that, if an order ceased to be in force if the Court did not have the power to vary the order under s 66S and, whilst the order continued for the purposes of recovery under the now repealed s 66W, there was no provision for the variation or discharge of arrears. However, there is no guidance within s 66W as to what matters the Court should take into account when considering whether there is just cause to discharge an order.
What matters then should inform the exercise of discretion in determining what constitutes “just cause”? In Mathieson & Hamilton (supra), Walters FM, 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
viii)whether the Payee has made full and frank disclosure of his/her financial position at all relevant times.
His Honour concluded by saying (at paragraph 230):
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.”
While Walters FM was dealing mainly with the question of whether to enforce an order, the matters he dealt with are equally applicable to an application to discharge arrears.
We would add to the matters raised by Walters FM the comments of the Full Court in Vakil (supra) that a consideration of “just cause” should include a consideration of some of the relevant sections of the Act which might pertain to these matters.
These would include comparable provisions in Part VII of the Act including:-
•s 66J which specifies the matters to be taken into account in considering financial support necessary for the maintenance of a child;
•s 66K which specifies the matters to be taken into account in determining the contribution that should be made by a party;
•s 66C which includes the principle that parents have the primary duty to maintain children;
•s 66D which includes the principle that a step-parent has a duty to maintain a child only if the court has determined, by order, that it is proper for a step-parent to have that duty;
•s 66M which specifies when a step-parent has a duty to maintain a child;
•s 66B which describes the objects of the Division to which we were referred by counsel for the mother in the first place; and
•s 66S which provides for the modification of child maintenance orders.
We should also mention that, as the relief which the father sought was retrospective, it was incumbent upon the father to adduce evidence relative to, say, ss 66J and 66K of the Act in relation to each period during which the arrears which he was seeking to discharge accrued.
It seems to us that it would be quite contrary to the objects and principles of Part VII – Division 7 for the Court to be able to be satisfied as to just cause merely on evidence as to the parties about their relative current financial circumstances. If that were the case, arguably, an applicant for discharge of arrears could be assured of success simply by divesting themselves of assets and income prior to a hearing.
We emphasise of course the discretionary nature of the Order which the Federal Magistrate in this case was being asked to make. Nevertheless, the discretion was not totally unfettered because it required his Honour to be satisfied that there was “just cause” for discharging the Order and, adopting the proposition in Daniels and Bell (supra), then to consider whether it should be discharged and, having regard to other matters, the Court should still proceed to discharge the order.
An application of the principles so described requires a search for the factors that his Honour took into account in coming to the conclusion that there was just cause for discharging the Order and that in the exercise of his discretion he should do so.
His Honour does not set out what factors he considers relevant, however having regard to what his Honour said in the sub-heading “[c]onclusions” in paragraphs 41 to 45 inclusive, those factors seem to be:
·    The main deciding factor is that there is no fund from which the father can pay the arrears.
·    There is no evidence before the Court that the mother’s debts have increased arising out of her support of the children.
·    It appears the mother had financial support from other partners from time-to-time.
·    It would appear that at the time the Order was made she was receiving support from her partner who was to become a guardian and custodian of the children.
·    The father’s financial position is “dire” and he and his wife were having great difficulty meeting their liabilities to banks and lending organisations.
·    The position of the father is considerably worse than that of the mother.
We think there are two problems with the Federal Magistrate’s consideration of these matters. The first is that it does require a consideration of some of the relevant sections in the Act which might pertain to these matters. These would include:
·    the purpose of child maintenance is to ensure that children receive a proper level of financial support from their parents, including having their needs met, having a reasonable share in the income, property and financial resources of both parents and that the parents share equitably in supporting their child (s 66B);
·    the principle that parents have the primary duty to maintain children (s 66C);
·    the principle that a step-parent has a duty to maintain a child only if the Court has determined, by order, that it is proper for a step-parent to have that duty (s 66D);
·    the consideration of when a step-parent has a duty to maintain a child (s 66M);
·    the matters to be taken into account in considering the financial support necessary to the maintenance of the child (s 66J);
·    the matters to be taken into account in determining what contributions should be made by a party (s 66K); and
· the objects and principles of the Act.
A consideration of these matters might have suggested to his Honour that financial support from other partners from time-to-time would not have been relevant to alleviate the obligation on a parent to support their children and, given that his Honour was finding, in a sense, contrary to the mother, he ought to have considered the financial position of the father at the same time. In short, his Honour seems to have taken into account a number of factors which could be relevant but only insofar as the mother is concerned without any consideration of how they related to the father and his obligations during the same period.
Further, there is no legal requirement for the mother to have increased her debts arising out of her support of the children (and by inference the father’s lack of support). His Honour does not know nor suggest what the mother’s financial position was at any stage in the course of the period from the making of the Order until the hearing, whether she did in fact incur any debts but has recently paid them, and more importantly whether the father, during a portion of that period, was significantly better off and incurred debts quite recently.
Importantly, by not considering “just cause” in the way we have described, the Federal Magistrate failed to consider who bore the onus of satisfying him about the relevant matters. The first onus to be discharged would be by the father who would need to satisfy his Honour that there was just cause for discharging the Order. That may have been satisfied by the father proving he did not have the immediate ability to pay the arrears or any part (although it appears his Honour did not consider a partial discharge).
The onus would then have passed to the mother to satisfy his Honour that nevertheless the Order should not be discharged. An acknowledgment of that fact and an explanation to the mother of what was required might then have alerted his Honour to the matters upon which he would need some evidence. This in turn could have led him to an understanding that the Child Support officer who was in the back of the Court during this time might have information relevant to some of these issues including, what attempts had been made to enforce the Order and perhaps some information regarding the financial circumstances of the father.
It is not difficult to see how his Honour fell into error by confining his consideration of just cause to the limited evidence before him in relation to the current financial circumstances of the parties and the absence of proof from the mother that the CSA had been pursuing the father for arrears of child maintenance over an extended period.
When his Honour referred to the section, there is no indication that other provisions in Division 7 had any bearing on the exercise of his discretion.
The reasoning in Vakil (supra) is something which his Honour could reasonably be expected to have been addressed. However, in this case the mother was self-represented and counsel for the father did not do so.
We are satisfied that his Honour omitted to have regard to various matters which were relevant considerations in the proper exercise of his discretion to discharge the arrears of child maintenance. These matters included, but are not limited to, a retrospective analysis of factors referred to in ss 66J, 66K and 66S. The Federal Magistrate was not assisted by the father having failed to adduce relevant evidence as to his financial circumstances historically and by concentrating on authorities pertaining to “the 12 months rule”. Nonetheless, it is clear that his Honour’s discretion was not exercised according to law and the appeal must be allowed on the grounds that his Honour failed to take into account relevant matters.
The mother’s written grounds of appeal referred to “the 12 months rule” and relevant considerations to the recovery of arrears which are in excess of 12 months old.
His Honour did not specifically rely upon the “12 months rule” in his conclusions but as we have indicated above his Honour made considerable reference to a number of decisions which were cited to him about the 12 months rule. In our view, it is difficult to avoid the conclusion that his Honour was influenced by it, we think erroneously for the reasons which follow.
There are many cases in which the so-called “12 months rule” has been discussed, both in the Family Court at first instance and on appeal, and in the Federal Magistrates Court. In Mathieson & Hamilton (supra) Walters FM provides an extensive analysis of relevant cases which we do not need to repeat, save to say that we agree with him. At paragraph 219 Walters FM said:
I conclude, on the basis of the authorities discussed above, that the “12 months rule” (if it ever was a rule) is — like the thylacine — extinct. That is not to say that there are not those who are convinced that they have caught a glimpse of it from time-to-time. In my opinion, it could, at most, be accorded the status of a cryptid — which, according to Wikipedia is an animal presumed extinct, or a hypothetical species of animal known only from anecdotal or other evidence insufficient to prove its existence with certainty. (footnote omitted)
In addition, counsel for the mother, correctly in our view, referred to s 106 of the Act which provides that in determining whether to enforce a child maintenance liability, a court must not require that there be special circumstances that justify enforcement of arrears merely because the arrears are more than 12 months old.

The Federal Magistrate at paragraph 28 of his reasons for judgement, cited from the decision in Mathieson & Hamilton (supra), without however, relevantly, citing the passage that we have referred to above. We appreciate that his Honour was anxious to deliver a judgment quickly, and clearly put his reasons together and read the authorities to which he was referred over the luncheon adjournment. It seems his Honour was not referred by the mother to the portion of the judgment we have cited from which, if his Honour agreed, would mean that he should not be applying the 12 months rule. Nor does it appear that his Honour was directed to, or aware of, s106.
Although it might be suggested that his Honour was taking lack of action to enforce into account only as relevant to the question of “just cause” and the exercise of discretion, the comments his Honour made in relation to each of the authorities cited would suggest otherwise. First, in relation to Kelly and Kelly (supra), a decision of the Full Court, his Honour said (at paragraph 23):
Although that decision related to the payment of private school fees and the like, it seems to me that in principle it is as applicable to the payment for private school fees as it is to payment of a maintenance liability.
His Honour then referred to Cameron & Helie (supra), which said (at paragraph 98):
Child maintenance arrears are not to be used as some form of lump sum compensation to a party long after the need for the child to be maintained has passed.
His Honour referred to the decision of Frederico J in Spry & Roet (supra) where Frederico J said at 76,593:
It is thus clear that the Court has a discretion not only as to the period in respect of which accumulated arrears under an order for periodic maintenance will be enforced, but as to whether they should be enforced at all.
Despite the general practice of limiting enforcement to a period of only twelve months, there are cases in which, having regard to the circumstances, the court will enforce payment of arrears of maintenance falling due over a more lengthy period.
…… the court should be very cautious not to encourage people against whom maintenance orders have been made to sit back and disobey those orders and keep on disobeying them hoping for the best.
Finally, his Honour referred to the decision of Mullane J in Hamilton and Nowak (supra), in which his Honour specifically states that Mullane J declined to apply the “12 months rule”, setting out various reasons for doing so, reasons which his Honour said were “not applicable here.” A specific finding that failure to apply the “12 months rule” for certain reasons which his Honour found did not apply in this case, suggests his Honour did consider it was a relevant factor.
We appreciate that his Honour was dealing with an application to discharge rather than enforce arrears but any consideration of application of the so called “12 months rule” could not be considered adequate without at least referring to s 106.
In any event, even if his Honour was not relying on the so-called “rule” per se, his discussion of the authorities leaves no doubt that the Federal Magistrate was looking at the position where one party had allowed another to sit back and believe that a liability would not be enforced.
This situation must in turn require a consideration of the mother’s capacity to take any steps herself to enforce the Order once she had registered it with the CSA for the CSA to collect payments from the father on her behalf pursuant to the provisions of the Child Support (Registration and Collection) Act 1988 (Cth). Once the mother invoked the provisions of s 30 of the Child Support (Registration and Collection) Act 1988 (Cth), enforcement of registered maintenance liabilities fell within the sole province of the Child Support Registrar (Fraser & Fitzgerald [1996] FamCA 67 per Fogarty, Baker & Kay JJ). Section 30 relevantly provides:
(1)If a registrable maintenance liability is registered under this Act, amounts payable under the child support assessment, court order, maintenance agreement, maintenance order or maintenance assessment under which the liability arises are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register.
(2)In particular, the amounts are payable by the payer at the payment rate entered in the Register under paragraph 26(2)(d) in respect of the periods entered in the Register under paragraphs 26(2)(a) and (b).
Note: Section 28B requires the Registrar to convert the periodic amount payable in respect of a registrable maintenance liability to a rate of payment depending upon the payment period determined in respect of the liability.
(3)If a registrable maintenance liability is registered under this Act, the payee of the liability is not entitled to, and may not enforce payment of, amounts payable under the liability other than by instituting a proceeding under section 113A to recover a debt due in relation to the liability.
At paragraph 36 of the reasons for judgement his Honour says:
However, in my view, there were not any vigorous attempts on behalf of either the mother or the Child Support Agency to collect the money until such time as the Enforcement Summons was filed.
This passage clearly suggests his Honour did not understand that the mother had no right to enforce the payment of arrears once she had passed that responsibility to the CSA and until the law changed in January 2007 (the Registrar’s recovery application was issued on 13 April 2007).
Furthermore, we think his Honour overlooked relevant material. If his Honour’s decision was based on the fact that the father somehow thought he was not obliged to pay child support then his Honour ignored the findings he made himself. In paragraph 32 his Honour said (our emphasis):
She backed away from that a bit when she was confronted with a list of withholdings of income tax refunds over a period of years. In addition, when she wanted to she was able to contact him by making inquiries through his family.
In paragraph 36 his Honour said:
There seems to have been some contacting of the Child Support Agency by both parties.
Furthermore, his Honour seems to have taken account of the fact that the mother knew where the father was living. At paragraph 31 his Honour says:
I conclude from her evidence that she was still in touch with his family and, had she made any effort, she could have found out where he was. She did so nine years ago quite easily and it seems to me that she could have done so at other times.
Given that the CSA was responsible for the collection of child support, we cannot see the relevance of whether or not the mother knew of the father’s whereabouts to the exercise of his Honour’s discretion.
Delay in collecting by the CSA is materially different to a payee sitting on his or her hands and could not be taken, prima facie, as conduct indicating a waiver of rights or an admission that the payee doesn't need the money. Indeed, at least in the abstract, many maintenance and child support liabilities are for contributions that represent such a small part of the true costs of children that it is safe to assume, prima facie, that the payee must have foregone money and lifestyle such as to make it just and equitable for the arrears to be paid. Also, there are important public policy considerations requiring that delay alone (when caused by the payer) not defeat the liability, otherwise the rule becomes one of “avoid the order long enough and it will be defeated”. However, these are general observations on our part and subject to the myriad of individual circumstances of parties in any given case. A more refined consideration will have to await a case where issues arise on the evidence.
His Honour’s failure to deal with the constraints upon the mother’s capacity to independently take any steps to enforce the arrears and his apparent overlooking of the fact that the CSA was enforcing the Order by withholding income tax returns lead us to conclude his Honour was applying the relevant legislation incorrectly and thus conclude he fell into error.

Procedural fairness

The Grounds pertaining to procedural fairness were the subject of detailed submissions before us but the outcome of this appeal is attributable much more to a failure to take into account relevant considerations, and taking into account irrelevant matters, in the exercise of discretion than it is about procedural fairness and the conduct of the trial by the Federal Magistrate. In the result, the deficiencies in procedural fairness flow from a misunderstanding of the relevant legal principles to be applied to an application to discharge arrears of maintenance under an order which is no longer current.
The relevant grounds were stated as follows:-

1. The Appellant was not afforded procedural fairness and natural justice as the Appellant was not allowed to bring into evidence the three Affidavits of [Ms H] of the Child Support Agency sworn April 2007, September 2007 and 18 January 2008 which set out the assets that were available to pay the arrears and the amount of contact the Agency had with the Respondent, nor was the Appellant made aware that she could examine [Ms H] as to the dealings and assets and thereby introduce that information into evidence.

…

5. His Honour failed to take into consideration the arrears of maintenance which arose because the Respondent refused to pay child maintenance and prior to the purchase of the Respondent’s business which his Honour found caused the Respondent to have no funds from which to pay the arrears.

6. His Honour failed to take into consideration the authorities as to a parent’s primary responsibility to provide maintenance for their children – Bassingthwaite v Leane (1993) FLC92-410, Mee v Ferguson (1986) FLC 91-716, Bienke v Bienke-Robinson (1997) FLC 92-786.

7. His Honour erred in failing to allow into evidence the three Affidavits of [Ms H] of the Child Support Agency that established the Respondent had a number of assets that could be liquidated to pay the arrears of maintenance.

The grounds were not developed individually before us. Collectively, they were summarised as a number of procedural and evidentiary issues which, it was submitted, either individually or cumulatively led to the mother being denied a fair trial according to law. Ground 6 belongs with the category of grounds with which we have already dealt and does not require any further consideration than what appears above.
The Court’s obligation is to provide procedural fairness and a fair trial. How that obligation sounds in cases, such as this case, which involve a litigant in person has led the Full Court to look at various earlier decisions and the formulation of guidelines in Re F (supra). The head note of Re F conveniently introduces and summarises the guidelines as reformulated by the Full Court as follows (our emphasis):-
7.        … “We do not disagree with the formulation of the Full Court in Johnson as to the reasons why it is usually undesirable for the judge to give legal advice, particularly, when it is of a strategic nature. We do however think that there can be circumstances where the requirement to conduct a fair trial requires a judge to give assistance of a legal nature to a litigant in person even though such assistance may risk compromising the appearance of impartiality and neutrality from the perspective of the other side.
As with the law that has developed in respect of the appearance of bias, we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person’s position [sic] within the litigation.
…
We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.”
8. The Full Court determined to revise what were guidelines 4, 5, and 7 in Johnson v Johnson (1997) FLC ¶92-764 and to add a further guideline which should be the first guideline. The revised Guidelines are as follows:-
1.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
2.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses.
3.A judge should explain to the litigant in person any procedures relevant to the litigation.
4.A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.
5.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.
6.A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular question or documents arise.
7.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.
8.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150).
9.Where the interests of justice and the circumstances of the case require it, a judge may:
·    draw attention to the law applied by the Court in determining issues before it;
·    question witnesses;
·    identify applications or submissions which ought to be put to the Court;
·    suggest procedural steps that may be taken by a party;
·    clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
By way of further introduction to the mother’s submissions, at pages 93 to 158 of the Appeal Book there are three affidavits affirmed by one Ms H, Commonwealth Public Servant. Ms H deposes to being employed in the CSA and duly authorised by the CSA to make the affidavits. It is not clear to us whether these documents were in the possession of the mother at the hearing or had ever been served on her. Clearly, the documents were on the court file and were common to the father and the CSA.
The first affidavit of Ms H is affirmed on 12 April 2007. It contains information from the records held by the Registrar and requests that an Enforcement Summons be issued to enable the enforcement of $7,846.14 of arrears of registered maintenance liabilities and $7,111.92 for late payment penalties.
The second supplementary affidavit of Ms H is affirmed on 20 September 2007 and is expressed to be in support of the Enforcement Summons filed on behalf of the Registrar on 13 April 2007. At paragraphs 11 to 13 (inclusive) of that affidavit Ms H deposes to conversations which she had with the mother in September 2007 about the collection of arrears. It also contains information about real property in which the father has an interest in and the mortgage affecting that property as well as details of vehicles which records of the Department of Infrastructure show the father to be the registered owner.
The third supplementary affidavit of Ms H is affirmed on 18 January 2008 and is also expressed to be in support of the Enforcement Summons filed on behalf of the Registrar on 13 April 2007. However, paragraphs 7 to 25 (inclusive) of the affidavit are responsive or relevant to the affidavit evidence filed by the father in support of his application to discharge the arrears of child support. The final paragraph, paragraph 26, summarises information about the seven vehicles of which the father is registered as the owner and specifies whether searches disclosed that the vehicles were subject to financial security interests. Ms H deposes to four of the seven vehicles being described as “[n]ot subject to finance”.
It was submitted by counsel for the mother that lack of procedural fairness first arose out of the Federal Magistrate’s determination to hear the father’s application for discharge of arrears, to which the mother and father were the only parties, prior to determining the enforcement application of the Registrar. It is apparent from the transcript of proceedings that the Federal Magistrate was made aware that counsel for the father and the Registrar had agreed that the father’s application should be determined first. However, his Honour did not provide the mother with an opportunity to be heard on the point. It follows that the mother did not have an opportunity to consider, to the extent that she might have been able to do so, or state why the ordering of proceedings in that way may disadvantage her.
It was further submitted that, even if any submissions of the mother would not have persuaded the Federal Magistrate to hear the enforcement application prior to the husband’s application to the discharge the arrears, if his Honour had explained to the mother the distinction between the nature of the two applications and the implications of them not being conducted concurrently, his Honour may have become informed that there was evidence filed by the Registrar in the enforcement application (as described above) which was relevant to the father’s application to discharge arrears. In particular, the evidence about the assets under the ownership or control of the father and the communications between the CSA and the mother and father about arrears of child support.
The following interchange indicates a perception on the part of the mother that she would be assisted by evidence or materials from the CSA:-
MR McGUIRE: If it please [sic], your Honour, the matter is proceeding on the application filed 18 September 2007.
HIS HONOUR: I’m just getting the right paperwork out.
MR McGUIRE: Yes, that’s what I thought.
HIS HONOUR: Yes, I have that. Supported by an affidavit---
MR McGUIRE: Supported by an affidavit and a financial statement. I haven’t asked – I do intend to lead some evidence anyway, so I’ll call [Mr Caley].
HIS HONOUR: Just one moment before you do that. Is there a response as such---
MR McGUIRE: I have seen an affidavit---
HIS HONOUR: There’s an affidavit in response.
MR McGUIRE: Yes.
HIS HONOUR: I’ll just check first of all with Ms [Wreford] whether she is opposing the application. Ms [Wreford], the application seeks orders that arrears and penalties be discharged. I’m not sure I have the power to discharge the penalties but from your point of view the arrears. You’re not going to get these large sort of penalties even if they are payable, but from your point of view the arrears are, it would appear, owing to you. Are you opposed to the ---
MS [WREFORD]: (indistinct) is that what you’re asking me? I don’t really understand ---
HIS HONOUR: It’s effectively what I’m asking you.
MS [WREFORD]: Yes.
HIS HONOUR: All right, you want the arrears paid. So you’re opposing the application.
MS [WREFORD]: Can I ask a few questions please (indistinct) I just want to know, like, if I don’t understand something because [Ms H] is my case manager and if I don’t understand what is being said here – or – she can say – stand up with me and say something if that’s okay or (indistinct)
HIS HONOUR: I’ll hear from Mr [S] if he has got any different view but it does seem to me that the Child Support Agency is not involved in the application in relation to the arrears. The Child Support Agency has a duty simply to collect what is owed nothing more and nothing less. I think it appropriate for the Child Support Agency to be advising you – the Child Support Agency or their lawyer to be advising you in relation to ---
MS [WREFORD]: No, just that I’m saying if something was said I don’t understand about it and they sort of know more about, sort of, conversations and that with [Mr Caley].
HIS HONOUR: If something is said and you don’t understand it perhaps ask me.
MS [WREFORD]: Okay.

It was submitted by counsel for the mother that the Federal Magistrate “effectively quarantined” the documents in the enforcement proceedings from the documents in the father’s application for discharge of the arrears of maintenance. It is not evident to us, from the above extract or from the transcript as a whole, that there was a conscious decision by the Federal Magistrate to isolate and disregard the documents filed in the enforcement application in favour of the documents filed in the father’s application to discharge arrears. As indicated, it is also not apparent whether the mother even had the affidavits.
As a matter of practicality, his Honour’s decision to deal with the father’s discharge application prior to the enforcement application of the Registrar was that, as far as it was apparent to his Honour, there would have been no need to refer to the evidence filed by the CSA in support of the enforcement application. There is nothing in the transcript to suggest that his Honour was aware of the breadth of the matters deposed to by Ms H or, in particular, that her evidence went beyond, say, the usual extracts in relation to the maintenance liability from the Register which are admissible by virtue of s 116(1) of the Child Support (Registration and Collection) Act 1988 (Cth) or other matters which do not go to the substance of the issues between the parties. The Federal Magistrate was simply not referred to this evidence.
Counsel for the mother submitted that the Federal Magistrate did not ask the mother what evidence she relied upon and merely assumed that it would be the mother’s affidavit in response and Financial Statement each sworn 7 December 2007. We accept that appears to have been the case.
It was submitted by counsel for the mother that the affidavits of Ms H include searches by the CSA that demonstrated that the father:
… has a number of assets, including two unencumbered trucks. There was evidence put that the Child Support Agency had not attempted to collect money from the father, but there was again evidence in the child support material that they had something like 45 telephone calls with [the father] trying to collect child support, and something like 24 telephone calls with the father or his solicitor trying to collect child maintenance. There is also evidence in the child support material of [the mother] telling the Child Support Agency numerous times, “I want you to collect my child maintenance,” and his Honour only accepted that that happened on one occasion, again because the other material was not read to him, so that there are a number of issues that, if [the mother] had been given the opportunity to at least get some advice, whether she could rely on the child support material, then maybe she might have run a different case. Well, she certainly would have run a different case.
We accept that the evidence in two of the three affidavits filed on behalf of the Registrar may have assisted the mother in her opposition to the father’s application for a discharge of arrears. However, because that evidence was not able to be addressed by other evidence or tested in cross-examination, it is not possible to know to what extent the mother may have been disadvantaged. It is sufficient for us to be satisfied (as we are) that some of the evidence upon which the mother was not able to rely was relevant to an issue to be determined by the Federal Magistrate and that the proceedings were conducted in a way which precluded the mother from being able to rely upon it.
Before leaving this point, we do not suggest that it was incumbent upon his Honour to look through documents on the file or to familiarise himself with documents in the absence of being requested to do so by the parties. Indeed it is settled that, at least in matters to which Part VII - Division 12A - Subdivision D of the Act does not apply, it would have been improper for his Honour to do so. In Brown and Pedersen (1992) FLC 92-271 at 79,009 the Full Court, comprising Ellis, Nygh and Bell JJ, cited with approval the comments of Nicholson CJ, with whom Baker and Moss JJ agreed, in Croser and Attrill (1990) FLC 92-100 to the effect that the Court should not rely on affidavit material appearing on the Court file upon which the parties themselves do not specifically rely.
His Honour was in an invidious position. It is difficult to know how he could provide procedural fairness to the mother in respect of the father’s application in circumstances when he had not read or been directed to the evidence in the application of the Registrar and, accordingly, did not have the means of knowing that he was not providing procedural fairness.
The fact that some evidence in the affidavits filed on behalf of the Registrar was relevant to the father’s application to discharge the arrears should have been known to counsel for the father and to counsel for the Registrar who was observing the proceedings from the back of the Court.
The Registrar is a model litigant. The responsibilities of a model litigant include handling claims brought by an agency honestly and fairly by, inter alia, endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible. The Registrar was served with the father’s application to discharge the arrears of child maintenance. Its conduct was integral to the application to discharge the arrears because, rightly or wrongly, delay in enforcement was a significant issue before the Federal Magistrate. The requirement to serve the CSA with proceedings is not solely to permit the CSA an opportunity to intervene to protect any interest of the CSA but also to intervene or participate in proceedings when the conduct of the CSA is relevant to the issues between the parties, particularly given that the parties don't have ready access to the CSA records.
The Registrar’s obligations as a model litigant were not suspended because the father’s application for a discharge of arrears was to be determined prior to the enforcement application with which the Registrar was primarily concerned. That said, this issue was not the subject of submissions before us and the Registrar was not given an opportunity to be heard on the point, so it is not appropriate for us to expand further on this topic. It is sufficient to note that the mother may have been assisted by his Honour having been referred to the material which had been prepared and filed by the CSA in relation to attempts to collect arrears and the father’s capacity to satisfy judgment for payment of arrears of child maintenance.
It would also have been prudent for counsel for the father to draw to the Court’s attention evidence which may not necessarily assist and which was denied by his client but of which the Court should be informed to prevent the Court falling into appealable error (as occurred here).
In discussion before us, it was accepted by counsel for the mother that his Honour had complied with the second guideline in Re F (supra) to the effect that his Honour informed the mother of how the matter would proceed and of her right to cross-examination. However, we have some concerns about the manner in which the mother’s right to cross-examine was explained to her. As extracted earlier in these reasons, the mother was advised that she could cross-examine the father about “his evidence”. The purpose of cross-examination is not only to test evidence-in-chief but to afford the cross-examiner an opportunity to put to the witness all matters relevant to the case including, of course, matters which were not necessarily touched on in evidence-in-chief but which are nonetheless helpful to the cross-examiner’s case. In the present case, many matters were not included in the father’s evidence-in-chief, including details of his financial circumstances during the periods in which arrears of child maintenance accrued. The mother was not advised that she could cross-examine at large subject only to relevance and, when she attempted to introduce historical matters, by asking whether the father considered it fair that he did not pay child maintenance, she was stopped. We agree that that particular question was not proper but, had it been reframed, it may have provided the pathway to an examination of the parents’ respective financial circumstances during the currency of the maintenance order and the period during which the arrears of child maintenance accrued. This is a further example of how a misapplication of relevant legal principles to the exercise of his Honour’s discretion led to procedural defects in the hearing and the mother not being accorded a hearing according to law.
Finally it was submitted that his Honour had not drawn the mother’s attention to the law to be applied in determining the father’s application for a discharge of arrears of maintenance. Given our finding that the Federal Magistrate failed to take into account a number of relevant considerations to which he ought to have had regard, the mother’s contention is correct.

Conclusion

We are satisfied that the Federal Magistrate did not take into account relevant considerations and did take into account irrelevant considerations in the exercise of his discretion to discharge the arrears. The mother was also denied procedural fairness. The appeal will therefore be allowed.
The effect of allowing the appeal is that the arrears of child maintenance stand as they did immediately prior to the Federal Magistrate having made the Order on 18 March 2008, plus interest and penalties accruing since that time. The father’s application to discharge the arrears remains on foot as does the enforcement application of the Registrar. The father’s application will be remitted for hearing before a Federal Magistrate other than Roberts FM.

Costs

Counsel for the mother and their instructing solicitor acted on a pro bono basis. Counsel for the mother initially sought that, in the event the appeal is allowed, the father pay the personal costs of the mother for the day of the appeal and the hearing on 18 March 2008. Although the application was not formally abandoned, counsel conceded that there may be difficulty in obtaining the costs sought on a taxation/assessment given the decision of the Full Court in Oscar and Traynor [2008] FamCAFC 158 and elected not to proceed with that application. There will be no order for costs.
As the Full Court had not enquired of the parties whether a costs certificate would be sought for a re-hearing pursuant to s 8 of the Federal Proceedings (Cots) Act 1981 (Cth), following the hearing the mother’s solicitors were asked whether a costs certificate would be sought for a re-hearing and the mother’s solicitors have sought a certificate. In our view a certificate is appropriate.
As the father was not contacted we would be prepared to provide a period of 21 days from the date of these orders in which the father has to make application in writing to the South Region Appeals Registrar for a certificate.

THACKRAY J

I have had the benefit of reading in draft the judgment of the Chief Justice and Bennett J.
I respectfully agree with their Honours that the learned Federal Magistrate took into account irrelevant considerations, failed to take into account relevant considerations and failed to provide procedural fairness to the mother.
As their Honours have explained, it is apparent that the Federal Magistrate was placed in a difficult position, given that the mother was self-represented and his Honour’s attention was not drawn to all of the relevant statutory provisions and applicable case law.
I would make the same orders as proposed by the Chief Justice and Bennett J.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: