MARTENSON and Maurice

In *Martensen & Maurice* [2012] FamCA 671, the Family Court of Australia considered an application by Mr Martensen (the applicant) seeking payment of child maintenance arrears from Ms Maurice (the respondent), calculated at $46,167. The dispute concerned enforcement of a 1989 consent order made before the introduction of child support assessment legislation. The respondent sought dismissal of the application and costs.

The central legal issue before the Court was whether it possessed the power to enforce the 1989 child maintenance order, which had been suspended by a Magistrates' Court order in 1991 and whose underlying liabilities had subsequently ceased by operation of law. This involved determining the status of the arrears and who held the right to enforce them under the relevant legislative framework.

Justice Cronin reasoned that the 1989 order, once registered under the Child Support Registration and Collection Act, created a "registrable maintenance liability" which, under section 30 of that Act, constituted a debt due to the Commonwealth. Crucially, the legislation stipulated that the payee was not entitled to enforce payment of such amounts. The 1991 order suspending the payments, and the subsequent cessation of the children's eligibility for maintenance, meant that the arrears were a debt owed to the Commonwealth, enforceable only by the Registrar in Child Support. As the applicant was not the payee entitled to enforce the debt, and the Registrar had not been directed to enforce it, the Court lacked the power to make an order in favour of the applicant. Consequently, the application was dismissed.

The Court also refused an application for costs. Justice Cronin found no justifiable circumstances to depart from the usual rule that parties bear their own costs under section 117 of the Family Law Act 1975. This was due to the respondent's failure to notify the Registrar of her employment status in 1991, and the applicant's prolonged inaction in seeking enforcement over many years.