M and T
[2005] FMCAfam 193
•4 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & T | [2005] FMCAfam 193 |
| FAMILY LAW – Enforcement summons – overseas child maintenance order – whether to exercise judicial discretion to enforce overseas maintenance order – sleeping on one’s rights – currency conversion – the application to enforce granted. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.72C, 82, 89 Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 (Cth), rr.11, 15, 16, 21, 22, 33 Family Law Act 1975 (Cth), s.106 |
| Spry & Roet (1977) FLC ¶90-301 |
| Applicant: | P T M |
| Respondent: | J D T |
| File Number: | MLM 5311 of 2003 |
| Judgment of: | Connolly FM |
| Hearing dates: | 4 & 5 April 2005 |
| Date of Last Submission: | 5 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Melilli |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | Dr R.S. Ingleby |
| Solicitors for the Respondent: | Kliger Partners |
ORDERS
That the respondent pay to the applicant within thirty days of the date of these orders (the “due date for payment”) the following:
(a)the sum of $423,444.61, being the monies payable by the respondent on account of arrears of child support pursuant to the Special Entitlement Child Support Register Entry dated 26 May 2003;
(b)
the sum of $22,422.29 being periodic support for the period
29 January 2003 to 29 December 2003, pursuant to the Child Support Register Entry dated 26 May 2003, together with interest payable as and from 29 January 2003; and
(c)costs.
That in the event that the whole of the payment has not been made by the due date for payment, the respondent do all acts and things as may be required to cause a sale of the real property situate at G being the property more particularly described in Certificate of Title Volume XXXX Folio XXX, on such terms and conditions as may be determined by the applicant with the proceeds of such sale to be applied as follows:
(a)firstly, in payment of all costs, conditions and expenses of the said sale;
(b)secondly, in discharge of any mortgage as may be encumbering the property;
(c)thirdly, so much of the payment pursuant to paragraph 1 hereof as remains outstanding to the applicant together with interest thereon as and from the due date for payment;
(d)fourthly, the balance, if any, to the respondent.
That otherwise all extant applications be adjourned to a date to be fixed for telephone mention;
That there be liberty to apply.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 5311 of 2003
| P T M |
Applicant
And
| J D T |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from the applicant’s application for enforcement of monies owing pursuant to a child maintenance order that was made on 1 July 1988 in the State of New York, United States of America (‘USA’), and registered with the Child Support Agency in Australia on 20 January 2003.
The applicant’s application for enforcement is contained in her amended application filed on 11 November 2004. The amounts sought to be enforced by the applicant are:
a)the amount of $423,444.61, being the amount of arrears of child maintenance pursuant to the Special Entitlement Child Support Register Entry dated 26 May 2003; and
b)the amount of $22,422.29 being periodic child maintenance for the period 29 January 2003 to 29 December 2003 pursuant to the Child Support Registry Entry dated 26 May 2003, together with interest payable as and from 29 January 2003.
There were further applications in default of payment that sought the sale of a property at G and if necessary, a further property at 2-4
K Court, T.
The respondent opposed the orders sought by the applicant. He did so initially on grounds that he denied paternity, but following a second positive DNA test he opposed the application to enforce on the ground that the Court’s discretion to enforce should be exercised in his favour. He did not seek to pursue a discharge or variation of any of the previous orders.
The documents
The applicant’s application was supported by:
i)the applicant’s affidavit sworn 12 August 2003 and filed on 15 August 2003;
ii)the applicant’s statement of financial circumstances sworn 11 June 2003 and filed on 11 November 2003;
iii)the applicant’s affidavit sworn 8 September 2004 and filed on 13 September 2004;
iv)the affidavit of R L P sworn 18 May 2004 and filed on the same date; and
v)the applicant’s affidavit sworn 17 November 2004 and filed on 18 November 2004.
The respondent responded by way of application filed on 1 November 2003, which was supported by:
i)the respondent’s affidavit sworn and filed on 7 November 2003;
ii)
the respondent’s financial statement sworn and filed on
7 November 2003;
iii)the respondent’s affidavit sworn on 16 September 2004 and filed 23 September 2004; and
iv)
the respondent’s affidavit sworn 1 April 2005 and filed
4 April 2005.
There was also an affidavit of Dr A.B. A which was not relied upon.
The history
The applicant mother is 59 years of age and is employed as an attorney in New York City, USA, where she lives with the child T. The respondent is 60 years old and is a company director who resides at
2-4 K Court, T in Melbourne. The parties commenced their relationship in the USA in 1981. That relationship ceased in late 1985, just prior to the birth of T J M who was born on in December 1985.
Following the child’s birth, the respondent refused to pay any child support and indeed, denied paternity of the child when confronted with the legal proceedings for child maintenance. As a result, the applicant, the respondent father and the child underwent paternity testing in New York. Those tests showed the probability of the paternity of the respondent to be 99.93%. Following a contested hearing, the Family Court of the State of New York made a filiation order on 1 July 1988. Orders were also made by the New York Family Court requiring the respondent to pay child support in the sum of US$1,200 per month. For a period of approximately two years, the respondent complied with the order and made payments to the applicant.
In or about 1990, the respondent ceased to make the payments and the applicant hired a private investigator to locate the respondent. The investigators were unable to find the respondent within the United States of America, and further indicated that he had disposed of a number of his assets in the USA, including a 37-foot Carver boat, a share portfolio, a property in F H and a condominium in New York which was sold for US$750,000. The private investigator ultimately advised the applicant that it was likely that the respondent had left the United States in about 1991 and relocated to Australia.
On 14 June 1991 a further order was made by the Family Court of the State of New York requiring the respondent to pay the sum of US$1,200 per month by way of child support plus US$100 per month in reduction of outstanding arrears, which at that time were US$2,175. On 5 September 1991, the applicant filed a petition following the respondent’s failure to comply with the orders of 14 June 1991. Then, on 29 November 1991 the Family Court of the State of New York ordered that the orders of 14 June 1991 continue until further order of the Court and that judgment be entered in the sum of US$10,285 by way of arrears of child support to be payable in monthly instalments of US$200.
The applicant indicated that she obtained advice about the enforceability of the USA child maintenance orders in Australia, and understood that in order to recover the arrears and ongoing child maintenance, she would need to travel to Australia with the child and commence proceedings here. The applicant was unable to do this because of her financial situation. However, her evidence was that she did continue to hire private investigators between 1991 and 1995 in an endeavour to locate the respondent.
The applicant said that in 1995 she obtained further advice from a colleague that the applicable law had changed in Australia and that overseas maintenance orders were enforceable upon proof of service of the payer. She further said that she retained the services of a private investigator in Australia and after discovering the respondent had changed his surname to ‘T’, the private investigator was able to locate the respondent in about late 2000 through title searches showing him to be the registered proprietor of a property at 2-4 K Court, T.
As a result of this information the applicant sought to enforce the order for arrears. On 12 November 2001 she filed a petition in the Family Court of the State of New York seeking enforcement of the orders of
29 November 1991. On 23 March 2002 the respondent was served with the applicant’s petition and summons. On 17 June 2002 orders were made in the Family Court of New York, fixing the arrears of child support at US$162,685 and continuing monthly support of US$1,200. On 25 November 2002, the applicant obtained orders in the Family Court of New York fixing the arrears of child support, legal costs, Counsel’s fees and interest at US$246,780.53. On 27 December 2002, the respondent was served with the modified judgment of the Family Court of the State of New York.
On 20 January 2003, the applicant lodged the USA child support judgment for registration with the Child Support Agency in B H, Australia. She also lodged a caveat over the property at 2-4 K Court, T, registered in the name of the respondent and his wife NDT. In February 2003, correspondence took place between the parties’ solicitors with respect to the withdrawal of the caveat over the property. Following a withdrawal of the caveat, the respondent executed a transfer of land of the property at 2-4 K Court, T into the sole name of his wife. That transfer was lodged for registration with the Titles Office on 20 May 2003. On 26 May 2003, the Child Support Agency issued its Notice of Registration of the USA judgment pursuant to which the sum of AUD$423,444.61 was assessed as owing by the respondent by way of arrears, and AUD$2,038.89 by way of periodic monthly child support for the period 29 January 2003 to 29 December 2003. The document evidencing that assessment is Annexure PM6 to the applicant’s affidavit sworn 12 August 2003. That assessment was forwarded by the Child Support Agency to the respondent, who failed to respond.
Following what appeared to be a period of inactivity by the Child Support Agency, the applicant on 6 August 2003, through her solicitors, lodged a request for private collection. The document evidencing that request is Annexure PM8 to the affidavit of the applicant sworn
12 August 2003. On 15 August 2003, she issued her enforcement application which has subsequently been overtaken by her amended application.
The law
The relevant law is contained in the following:
Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 (Cth):
11. Additional registrable maintenance liabilities
(1)A liability is a registrable maintenance liability if:
(a)it is a liability of a parent or step-parent of a child to pay a periodic amount for the maintenance of the child; and
(b)it is an overseas maintenance liability.
(2)A liability is a registrable maintenance liability if:
(a)it is a liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage; and
(b)it is an overseas maintenance liability.
(3)A liability is a registrable maintenance liability if it is:
(a)an agency reimbursement liability; or
(b)a penalty (within the meaning of Article 15 of the Australia-New Zealand Agreement) that is payable under the law of New Zealand.
(4)A liability is a registrable maintenance liability if it is an amount that is in arrears under a liability mentioned in subregulation (1) or (2) or paragraph (3)(a).
…
15. When liability first becomes enforceable
(1)A registered maintenance liability that is a liability mentioned in subregulation 11(1), (2) or (3) first becomes enforceable under the Act on the day on which the liability is registered.
(2)If the Registrar registers a liability mentioned in subregulation 11(4):
(a)the Registrar must enforce it; and
(b)the Act has effect as if the amounts that are in arrears were payable under the liability in relation to the child support enforcement period that began on registration of the liability mentioned in subregulation 11(1) or (2) or paragraph 11(3)(a) to which the arrears relate.
…
16.Effect of registration
If a registrable maintenance liability mentioned in regulation 11 is registered by the Registrar, an amount payable under the maintenance assessment, order or agreement, or the agency reimbursement liability, is a debt due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register.
…
21.Election not to enforce – registered maintenance liability
(1)If a registered maintenance liability that is a liability mentioned in subregulation 11(1) or (2) is not enforceable because of an election under section 38A of the Act, an amount unpaid under the maintenance assessment, order or agreement is a debt due and payable by the payer to the payee.
(2)A debt due under this regulation is recoverable by the payee from the payer in a court of competent jurisdiction.
…
22. Inclusion of certain liabilities in Register
(1)A payee may apply to the Registrar for entry, in the Child Support Register, of the particulars of an overseas maintenance liability that is not a registrable maintenance liability under regulation 11.
(2)An application must be made in the manner specified by the Registrar.
(3)In the absence of an application made in accordance with subregulation (2), a document or documents given by the payee may be taken to be an application for entry of the particulars of an overseas maintenance liability if the Registrar is satisfied that it is appropriate to do.
(4)The Registrar must, within 90 days after receiving an application, enter the particulars of the liability in the Child Support Register if the Registrar is satisfied that to do so would be consistent with the international agreement or arrangement on which the payee relies.
(5)The Registrar may refuse to register a maintenance assessment, order or agreement issued, made or registered in New Zealand if the payee has his or her habitual residence in New Zealand.
(6)For Part 3, a decision under this regulation is taken to be a decision in relation to a registrable maintenance liability.
...
33. Conversion of currency – overseas orders and agreements
(1)A maintenance order made by a judicial authority of a reciprocating jurisdiction (other than New Zealand), or a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction (other than New Zealand), that refers to an amount of money expressed in the currency of the reciprocating jurisdiction (or the country in which that jurisdiction is located) is taken to refer to the equivalent amount in Australian currency on the day on which the liability arising under the maintenance order or agreement is registered.
(2)The equivalent amount in Australian currency must be determined on the basis of the telegraphic transfer rate of exchange prevailing on the day on which the liability arising under the maintenance order or agreement is registered.
Child Support (Registration and Collection) Act 1988 (Cth)
Section 72C Transaction to defeat maintenance liability
(1)The court may, of its own volition or on application by the Registrar:
(a)set aside an instrument or disposition that has been made; or
(b)restrain the making of an instrument or disposition that is proposed to be made;
by or on behalf of, or by direction or in the interest of, a payer of an enforceable maintenance liability.
(2)If the court is satisfied that the instrument or disposition has been made or is proposed to be made (as the case may be) to reduce or defeat the payer’s ability:
(a)to pay child support; or
(b)if there is an enforceable maintenance liability in respect of the payer:
(i) to pay any child support debt under the enforceable maintenance liability; or
(ii) to meet the enforceable maintenance liability;
the court may set aside the instrument or disposition or restrain the making of the proposed instrument or disposition as the case requires.
(3)The court may order:
(a)that any money or any real or personal property dealt with by any such instrument or disposition may be taken in execution, or charged with the payment, of such amounts for costs or child support as the court directs; or
(b)that the proceeds of a sale must be paid into court to abide by its order.
(4)The court must have regard to the interests of a bona fide purchaser or other interested person and must make any order it considers proper for the protection of those persons.
(5)The court may order:
(a)the payer; or
(b)if a person has colluded with the payer in the making or proposed making of the instrument or disposition – that person;
to pay the costs incurred by:
(c)the payee of the enforceable maintenance liability; or
(d)a bona fide purchaser or other person for whose protection an order is made under subsection (4); or
(e)the Registrar;
in relation to the making, or the proposed making, of the instrument or disposition or the proceedings under this section.
(6)In this section, disposition includes a sale and a gift.
Section 82Objections relating to registration
(1)Where:
(a)the Registrar registers a registrable maintenance liability under this Act; and
(b)the payer or payee is dissatisfied with:
(i) the registration of the liability; or
(ii) particulars entered into the Child Support Register in relation to the liability;
the payer or payee may, within 28 days after service on him or her of notice of the particulars that were, on the registration of the liability, entered in the Child Support Register in relation to the liability, lodge with the Registrar an objection in writing against the registration or the entry of those particulars, as the case requires.
(2)The objection shall state fully and in detail the grounds relied on.
(3)An objection may be made under subsection (1) on the ground that the relevant entry in the Child Support Register does not relate to a registrable maintenance liability.
(4)Subsection (3) shall not be taken to limit by implication the grounds that may be relied on in an objection under subsection (1).
Section 89Applications for extension of time
(1)Where the period for the lodgment by a person of an objection under this Division has ended, the person may, even though the period has ended, send the objection to the Registrar together with an application in writing requesting the Registrar to treat the objection as having been duly lodged.
(2)The application shall state fully and in detail the grounds of the application, including the circumstances concerning, and the reasons for, the failure by the person to lodge the objection as required by this Division.
Family Law Act 1975 (Cth)
Section 106Maintenance orders – more than 12 months in arrears
In determining whether to make an order enforcing a maintenance order, a court must not require that there be special circumstances that justify enforcing the maintenance order merely because the maintenance payable under it is more than 12 months in arrears.
Conclusions and findings
The respondent opposed the application to enforce on two grounds. Firstly, he submitted that the discretion to enforce should not be exercised in the applicant’s favour because she had slept on her rights between 1991 and November 2001. The applicant’s relevant evidence on this issue was contained in paragraphs 5 to 14 of her affidavit filed 18 November 2004, as follows:
5.In or about 1990, the payments from the Father ceased. I hired a Private Investigator to locate the Father and any assets in the United States. The Investigator was unable to locate the Father within the United States. Their searches also showed that the Father had disposed of his assets in the United States, including a 37 foot Carver boat, a share portfolio, a property in F H and a condominium in New York which was sold for US$750,000. I refer to Paragraph 9 of the Father’s Affidavit sworn 16th September 2004 and deny his assertions therein that he was unable to afford the periodic child support payments to me given his financial position and the resources he took with him from the United States to Australia.
6.The Private Investigator advised me that it was likely that the Father had left the United States in or about 1991 and re-located to Australia. I continued to search for the Father through Private Investigators in the following years without success.
7.In June 1991, further Orders was [sic] made by the New York Family Court fixing the arrears of child support in the sum of US$2,175 and continuing the Father’s obligation to pay me US$1,200 per month. As the Father failed to comply with these Orders, I issued a further enforcement petition in the New York Family Court on 5 September 1991. On 29 November 1991, the Court ordered that the previous periodic child support Orders continue in full force and effect and fixed the arrears in the sum of US$10,285. The Father was ordered to discharge the arrears in monthly instalments (in addition to the normal periodic support) of US$200 per month.
8.The Father failed to comply with these Orders. He has not paid me any monies by way of child support for T since 1990.
9.Upon learning that the Father had re-located to Australia, I made enquiries of the enforceability of United States child support Orders in Australia. I was advised that such Orders were not enforceable, and that in order to recover the arrears and ongoing child support, I would need to travel to Australia with T and commence proceedings in this jurisdiction. Given my financial position, this was simply not a feasible option. As I was of the belief that I would not be able to enforce the orders, I took no further action at that time. I did endeavour to locate the Father. These enquiries were without success. I also continued to liaise with various Australian and American practitioners in order to ascertain whether there had been any alteration in the law such that would permit me to pursue an application for enforcement.
10.I also contacted the Australian Consulate in New York who provided me with the contact details for Australian Lawyers in New York. I discussed the matter and was again advised that I would be unable to pursue the matter in Australia. In or about 1995 however, I was advised by a colleague that the applicable law had changed in Australia and that overseas maintenance orders were enforceable upon proof of service of the payer.
11.I engaged the services of a Private Investigator in Australia to locate the Father. Their task was made more difficult by the fact that the Father had changed his name to that of his Wife’s. The Private Investigator was able to locate a Post Office Box that the Father was using to deliver his mail. The Post Office Box however was registered to an address that was not the Father’s and I was unable to locate his residential address through this means. The linked residential address belonged to a woman who had resided at the address for in excess of 50 years and had no relation whatsoever with the Father. Upon discovering that the Father had changed his surname to T, the Private Investigator was able to locate the Father in or about 2000 through title searches showing him to be the registered proprietor of the property situate at 2-4
K Court, T.12.In November 2001 I again filed a petition in the New York Family Court seeking enforcement of the previous child support Orders of 29 November 1991. The Father was personally served at the T address with this petition on 23 March 2002. On 17 June 2002, Orders were made by the New York Family Court fixing the arrears in the sum of US$162,685 continuing the monthly support of US$1,200. Further Modified Orders were made on 25 November 2002 by the New York Family Court fixing all arrears, outstanding costs and interest at $246,780.
13.The Father was served with this modified judgment of 25 November 2002 on 27 December 2002. Shortly thereafter I engaged Lander & Rogers Lawyers to act on my behalf. My Solicitors lodged the modified judgment of the New York Family Court was lodged [sic] for registration with the Child Support Agency in B H on
20 January 2003. At that time, I also instructed my Solicitors to conduct title searches for properties registered in the Father’s name in Australia. Those title searches showed the Father to be the joint registered proprietor for a property situate at 2-4 K Court, T with his Wife, NDT (“Mrs T”). A caveat was lodged over that property on 21 January 2003.14.Title searches subsequently obtained by my Solicitors also show the Father to be the registered proprietor of the following:
a.a property situate at 250 S Road D, G registered in the sole name of the Father. A caveat was lodged over that property by my Solicitors on 16 September 2003. Subsequent enquiries by my Solicitors show that the Father purchased the G property on 18 June 2003. Although initially encumbered by way of Viridian Line of Credit, that liability was discharged in full on 19 March 2004.
b.2 Units situate at Unit 4 and Unit 8, 373 to 375 C Road FH, being properties acquired by the Father and his Daughter, SDF in June 2004. SF is the Father’s Daughter from his first marriage and has resided in New York since her birth.
The applicant gave her oral evidence by telephone. She was vigorously cross-examined on the subject matter of the affidavit, and in particular with respect to the contents of paragraphs 9, 10 and 11.
I found her to be a truthful witness. While she was uncertain about matters that were put to her about some of the documents and, in particular, the contents of a letter dated 25 March 2002, what she was absolutely clear about was that for the entirety of the period from 1991 to 2001, she had made ongoing enquiries about the respondent, with legal professionals, enquiry agents and even the Australian Consulate during that time. She said, in cross-examination, that she had lost some of the documentation with respect to those enquiries because she had moved homes and offices on several occasions during that time.
I accepted that evidence.
It was put to the applicant on a number of occasions that she had never had any such documents, and she responded, “That’s absolutely incorrect”. It was further put to her that there were no such contacts with private investigators between January 1992 and December 2001, and she replied, “This is incorrect”. In response to the suggestion that there had been no such contact with legal professionals during that period, she said, “That is incorrect. There was even a law firm in Australia, there was a law firm in New Jersey, there was a law firm in New York.” I accepted all of that evidence given by the applicant as truthful.
In his final address, Dr Ingleby, Counsel for the respondent, made much of the fact that the applicant was a lawyer and an insurance claims officer and should have known the importance of keeping documents. I accepted her evidence that she understood the importance of the retention of documents and that the loss of the documentation resulted from a number of changes of home and office during that time. In all the circumstances of this matter, it is no surprise that it took as long as it did to locate the respondent. He left the United States of America after disposing of his assets, without telling the applicant. He set up residence in another country. He changed his surname to T. And even when confronted with a process server, he denied to the process server in 2003 that his name was either “J T” or “J F”.
The respondent was completely discredited in cross-examination. He conceded lying on a number of occasions. He denied he changed his name to avoid detection by the applicant and said he changed it because he found it difficult networking and using the name F in business. I did not believe the respondent’s evidence. He further continued to deny paternity of the child T, despite the fact that there had been two DNA paternity tests some 16 years apart establishing paternity. His evidence about the value of a property at G was further evidence that he was prepared to say almost anything to avoid maintenance for his child. He said in his financial statement sworn in October 2003 that the property was valued at $250,000. Yet he conceded in cross-examination that this was the price that he had paid some eleven years earlier in 1992. He further conceded that he told the Commonwealth Bank of Australia that the property was worth $500,000 in 2004. Further, he transferred his half-share in the property at 2-4 K Court, T to his wife and was unable to provide any plausible reason for doing so. In his financial statement sworn 24 October 2003, the respondent failed to disclose his interest or the value of that interest in the T property. That property was valued by the respondent at $3.8 million in an application for a mortgage from the Commonwealth Bank on 23 March 2004. Again, I was left with the distinct impression that the transfer was effected in an endeavour to avoid the possibility of his maintenance liability being enforced.
In all the circumstances, I find it difficult to conclude that the applicant could reasonably be expected to do more to locate the respondent and enforce her entitlement to a contribution towards her child maintenance. I am not satisfied that she has slept on her rights.
The second reason proffered by the respondent for not enforcing the orders in full is what Counsel for the respondent described as a miscalculation in the exchange rate. Whilst I accept that Dr Ingleby made the enquiries about the exchange rate that he did on 29 March 2005, a few days prior to the hearing, Dr Ingleby said that if the exchange rate of 0.7732 was applied to the total amount outstanding in US dollars, being US$246,780, that would equate to approximately AUD$320,000. That is not evidence, in my view, but a mere assertion.
What is far more significant with respect to the respondent’s contention is the fact that the respondent had the opportunity to challenge this conversion or calculation pursuant to section 82 of the Child Support (Registration and Collection) Act. It is not a course he elected to take, despite the fact that he had legal representation at all relevant times and indeed at no time did he seek leave to extend the time to lodge an objection pursuant to section 89 of the same Act. Had that course of objecting been adopted, it would have enabled the Registrar to provide some explanation of the conversion calculation. Further, it may well be the situation that if the respondent had sought to challenge the conversion, the applicant may have responded with an application to vary the original order. If US$1,200 a month was what was required to contribute to the child’s cost in 1988, it is not hard to imagine that the child’s needs would have increased dramatically over that time.
For all of these reasons, I am not prepared to go behind the amounts contained in the Child Support documents of 26 May 2003, being Annexure PM6 of the applicant’s affidavit sworn on 12 August 2003. Indeed, in all the circumstances of this matter, I am satisfied that it is appropriate that the full amount of $423,444.61 arrears, together with $22,422.29 periodic maintenance, ought to be enforced.
Frederico J said in Spry & Roet (1977) FLC ¶90-301 at 76,593:
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.
Section 106 of the Family Law Act 1975 (Cth) clearly indicates that the Court must not require special circumstances that justify enforcing an amount that is more than twelve months in arrears. I am satisfied that this is an appropriate case in which to enforce the full amount.
The final matter relates to the applicant’s application in effect to set aside the transfer of the T property, pursuant to section 106B of the Family Law Act. As Dr Ingleby correctly pointed out, the application should have been made pursuant to section 72C of the Child Support (Registration & Collection) Act. What, however, is more important is that the respondent’s wife has not been served with the application. Clearly, this needs to be done prior to the hearing and determination of the matter, and in any event such a hearing may not be necessary if the respondent complies with the order for payment or if there are sufficient funds forthcoming from the sale of the G property. What I propose to do, therefore, is to adjourn that aspect of the application to a date to be fixed, and provide liberty to apply.
Given the findings I have made with respect to the respondent’s conduct in placing as many difficulties as he has in the way of the applicant enforcing her entitlement, and because of his far better financial situation, I am satisfied that he should pay the applicant’s costs. I will hear argument from the parties as to whether the costs should be fixed pursuant to Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth), or taxed in accordance with the Family Court of Australia Rules (Cth).
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Julia O’Brien
Date: 4 May 2005
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