FAMILY COURT OF AUSTRALIA
| MEMBREY & HALL | [2019] FamCA 857 |
| FAMILY LAW – OVERSEAS CHILD SUPPORT – order made by City B, USA court in 1982 – child now over 40 years of age – applicant mother in City B, USA case having no connection to Australia – father applying to this court for orders relieving him of his liability to meet the City B, USA court order – matters of private international law considered – child support legislation considered – held, father’s application allowed. FAMILY LAW – INTERNATIONAL LAW – discussion of operation of principles of international law relating to the applicability of provisions of international treaties, once embedded in local domestic law, on the courts of countries that are contracting parties to the international treaties. |
| Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations, 12 December 2002, (entered into force 12 December 2002) Child Support (Assessment) Act 1989 (Cth), ss 3, 4, 5, 18, 19, 24, 163B Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 (Cth) Child Support (Registration and Collection) Act 1988 (Cth), ss 3, 4, 30, 18A, 124A Child Support (Registration and Collection) Regulations 2018, sch 2, reg 5 Child Support Act 1988 (Cth) Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, (entered into force 1 November 2010) Family Law Act 1975 (Cth), ss 66C, 66P, 66S(2), 66W(2), 83(1)(c) 110, 110A, 110B, 124A Family Law Regulations 1984 (Cth), schs 2, 3, reg 36 Family Law Rules 2004 (Cth), r 9.03 Vienna Convention on the Law of Treaties (23 May 1969), art 60 |
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- AGLC
- MEMBREY & HALL [2019] FamCA 857
- Case
- [2019] FamCA 857
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether it had the power to discharge an overseas child support order, and if so, under what circumstances. This involved considerations of private international law and the operation of international treaties once incorporated into domestic Australian law, particularly in relation to the enforceability of foreign court orders concerning adult children.
Wilson J reasoned that while the child support legislation and principles of international law generally facilitate the enforcement of overseas orders, the circumstances of this case warranted a different approach. Given the child was now an adult, the original purpose of the order had been fulfilled, and the passage of time and lack of connection of the mother to Australia rendered continued enforcement inequitable and impractical. The court applied principles of private international law and its inherent jurisdiction to discharge the order.
Consequently, Wilson J ordered the discharge of the 1982 order made by the Family District Court of City B, USA. The proceeding was otherwise dismissed, and a declaration was made that the amount to be collected by the Department of Human Services (Child Support) by way of enforcement of the USA order was nil.
Orders
Orders of the court
1.
I discharge the orders made in 1982 in the Family District Court of City B Court, USA, United States of America in proceeding No. .
2.
I otherwise dismiss this proceeding.
Declaration
3.
The amount to be collected by the Department of Human Services (Child Support) by way of enforcement of the Family District Court of City B Court, USA order is set at nil.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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