Marsh and Marsh

[2014] FCCA 132

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSH & MARSH [2014] FCCA 132

Catchwords:
CHILD SUPPORT  ̶  New Zealand child-support assessment  ̶  Australian court cannot make orders.

Legislation:  
Family Law Act 1975 (Cth), s.111AA
Child Support (Assessment) Act 1989 (Cth), s.112
Child Support (Registration & Collection) Regulations 1989 (Cth), r.111C Agreement between the Government of Australia and the Government of New Zealand on Child Support Articles 1.2, 3.1

Applicant: MR MARSH

Respondent: MS MARSH

File Number: DGC 2443 of 2013

Judgment of: Judge Phipps

Hearing date: 18 November 2013

Date of Last Submission: 18 November 2013

Delivered at: Dandenong

Delivered on: 31 January 2014

REPRESENTATION

The Applicant: Appearing in person

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT DANDENONG

DGC 2443 of 2013

MR MARSH

Applicant

And

MS MARSH

Respondent

REASONS FOR JUDGMENT

1. The applicant received from the Department of Human Services (Child Support) a Child Support Account Statement issued 17 August 2013.  It states the overdue balance as $11,312.70.

2. The applicant filed an application in the Federal Circuit Court of Australia applying to have collection of the child support stayed pursuant to r.111C of the Child Support (Registration & Collection) Regulations 1989 (Cth) pending final determination of departure proceedings before the Child Support Registrar of the Department of Human Services (Child Support), this court or, before the Social Security Appeals Tribunal. He applied for leave pursuant to s.112 of the Child Support (Assessment) Act 1989 (Cth) for the Child Support Registrar to make a determination under s.98S.

3. The application has not been served.  Since the application must be dismissed service is not necessary.

4. The applicant’s affidavit says that the applicant was married to the respondent and divorced in 1998.  There is one child of the marriage born [in] 1994.  The child-support assessment is in respect of that child.

5. The applicant annexes property orders made in the Family Court of Australia on 17 March 1998.  They provide for the distribution between the parties of the balance of proceeds of sale of the former matrimonial home.  A notation to the order says that the wife undertakes not to make any claim on account of child-support against the money received by the husband by way of property settlement pursuant to the order.  The applicant appeared to consider that he could rely on this notation.  Given that a child-support liability is a debt to the Commonwealth of Australia the undertaking probably cannot be enforced.  Apart from that the money received by the applicant by way of property settlement must be long gone by now.  In his affidavit the applicant says money is being taken out of his pension.

6. The applicant does not annex to his affidavit and did not otherwise provide the child-support assessment or any document showing how it has been made.  He says in his affidavit:

   In April this year I found that money had been taken from my account by the New Zealand government department that collects child-support but this is organised through the Child Support Agency in Australia through the Hobart office.

7. The applicant said in court that the child-support assessment was made in New Zealand.  The address he gives for the respondent is a New Zealand address and the applicant said that she lives in New Zealand.

8. The Australian Child Support Registrar and Australian courts do not have jurisdiction to discharge, suspend or vary New Zealand child-support assessments.

9. The Family Law Act 1975 (Cth), s.111AA provides:

   Maintenance obligations with New Zealand

   (1)  This section has effect despite anything in Part VII.

   (2) A court must not determine an application for payment of child or spousal maintenance (whether under this Act or the regulations) if:

   (a)  the person seeking payment is habitually resident in New Zealand; and

   (b)  determining the application would require the court to make a decision mentioned in Article 1.2 of the Australia-New Zealand Agreement.

   Note:         Article 1.2 of the Agreement is as follows:

   For the purposes of this Agreement a decision shall include:

   (a)   a child support assessment issued by an administrative authority;

   (b)    an agreement to make payments for the maintenance of a child or spouse which has been registered with an administrative authority;

   (c)    an assessment, order or agreement suspending, modifying or revoking a decision of the kind referred to in (a) or (b);

   (d)   an order for child maintenance made by a judicial authority;

   (e)    an order for spousal maintenance made by a judicial authority;

   (f)      an agreement to make payments for the maintenance of a child or spouse which has been registered with a judicial authority;

   (g)      an order or agreement suspending, modifying or revoking a decision of the kind referred to in (d), (e) or (f);

   (h)      a liability to pay an amount to an administrative authority for the maintenance of a child or as contribution to the cost of government benefits paid to a payee for the maintenance of a child.

   (3)  In this section:

   "Australia-New Zealand Agreement" means the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance signed at Canberra on 12 April 2000.

10. Article 3.1 of the Australia – New Zealand agreement provides:

    This Agreement applies irrespective of the date on which a decision was made.

11. The scheme of the Australia – New Zealand agreement is that decisions about child-support are to be made in the jurisdiction in which the payee resides.  The respondent, he pays, is habitually resident in New Zealand.  The applicant concedes this.  Any application to stay, discharge or vary the child-support agreement for which the arrears are sought must be made in New Zealand.

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

Date:  31 January 2014