MARTENSON and Maurice

[2012] FamCA 671

FAMILY COURT OF AUSTRALIA

MARTENSON & MAURICE [2012] FamCA 671

FAMILY LAW – CHILD SUPPORT – Child Support arrears – Enforcement of 1989 orders which were subsequently suspended and then which ceased by operation of law –  No power to enforce orders because the debt was a registrable maintenance liability and therefore a debt due to the Commonwealth.  Costs application refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr Martensen

RESPONDENT: Ms Maurice

FILE NUMBER: MLC 2267 of 2012

DATE DELIVERED: 6 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taylor

SOLICITOR FOR THE APPLICANT: Robert D Taylor & Associates

COUNSEL FOR THE RESPONDENT: Ms Sciola

SOLICITOR FOR THE RESPONDENT: NJS Legal

Orders

1. That the application filed on 15 March 2012 and the response thereto filed on 14 May 2012 are both dismissed.

2. That there be no order for costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martensen & Maurice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2267 of 2012

Mr Martensen

Applicant

And

Ms Maurice

Respondent

REASONS FOR JUDGMENT

1. On 15 March 2012 the applicant, Mr Martensen, filed an application in a case which sought that the respondent, Ms Maurice, pay arrears of child maintenance, together with interest.  The applicant had calculated the entitlement at $46,167.  On 14 May 2012, the respondent filed a response that sought the application be dismissed and that the applicant pay costs.

2. The genesis of this dispute is a very old one. On 3 May 1989, the Court made an order by consent of the parties relating to four children. Paragraph 4 of that order said that the wife was to pay to the husband for the maintenance of each of those four children, the sum of $15 per week, the first of such payments was to be made on 5 June 1989. This all predates the Child Support Assessment legislation. The legislation that prevailed immediately prior to the assessment Act was known as the Child Support Registration and Collection Act. The purpose was to redress the huge imbalance that the nation faced under which orders for child maintenance in courts were not being complied with.

3. Once an order was made for child maintenance it had to be registered for the purposes of enforcement.  I am told in this case, that that is exactly what happened.  Thus, from June 1989, the respondent had an obligation of $60 per week.

4. What the applicant did not say but it transpires from the affidavit material of the respondent, the parties were before the Melbourne Magistrates’ Court, on 28 June 1991.  The parties consented to an order that the previous order of this Court was to be suspended with effect from 7 March 1991 “until the wife recommences employment.”  The order went on to say other things about obligations of the wife to notify various people, one of whom was the Registrar in Child Support.  That tends to support the view that the order had already been registered with the Registrar of Child Support prior to June 1991.  Nothing has occurred since 1991.  The respective liabilities of the wife in respect of those four children ceased in 1997, 1999, 2000 and 2002. 

5. The enforcement application is opposed.  It was suggested initially that it was a jurisdictional matter.  It is not a jurisdictional matter but a question of whether or not there is a power for the Court to make an order. 

6. The legislation was amended in 2006 and I have gone back to the original legislation and traced its history through to that final amendment.  The amendment in 2006 does not assist me because by that stage the relevant liabilities had all ceased, so it is to the initial legislation that I have to turn.

7. Section 17 of the Act provided that if there was an order made by the Court, the liability was a registrable maintenance liability.  Under s 30, where the registration of the maintenance liability had occurred, amounts payable were debts due to the Commonwealth.  The legislation, however, went on to specifically say the following:

   The payee is not entitled to and may not enforce payment of those amounts.

8. The legislation placed a responsibility on the payee to notify the registrar within 14 days of any alteration.  The 1991 order was brought to the attention of the relevant Child Support Registrar.  A failure to do so created an offence punishable by a fine of up to $1000.  Once the registrar became aware of the existence of the 1991 order, the registrar then had to amend the register and enforce the order. 

9. Clearly by virtue of the suspension of the order and no one telling the registrar of any alteration to the wife’s employment situation, the register remained in a state of suspension.

10. Thus, this is an application for enforcement where only the collection agency has a right to collect on behalf of the husband.  The agency has the sole and exclusive right to collect so long as the orders remain registered with it.  That requirement continues and the husband has never asked for the registration to be cancelled, which might have given him the opportunity then to bring the proceedings himself.  Certainly that was the intention of the legislation by the amendments in 2006.  Thus, there is no power for me to make any order in favour of the applicant because this is a debt due to the Commonwealth and only the Registrar in Child Support has a right to enforce it.  Accordingly, the application filed on 15 March 2012 must be dismissed.

RECORDED  :  NOT TRANSCRIBED

1. This is an application by the successful respondent for an order for costs.  There were some opportunities for the parties to negotiate and avoid all of this but in any event, costs are only ordered where there is a justifiable circumstance.  Section 117 of the Act provides that each party shall bear their own costs unless those circumstances are justified.  Here, the obligation in 1991 under the Magistrates’ Court order lay with the wife.  The wife did not carry out her obligation to notify the registrar and the husband of her employment.  The wife says she resumed work in 2002 but the reality is that notification now is a little bit late.  The husband also did nothing about enforcing the order for many years and on that basis there are no justifiable circumstances for anybody to get an order for costs.  I refuse to make an order for costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 August 2012.

Associate: 

Date:  14 August 2012