Xuereb and Xuereb

[2007] FamCA 601

FAMILY COURT OF AUSTRALIA

XUEREB & XUEREB [2007] FamCA 601

FAMILY LAW - CHILD SUPPORT - Maintenance orders - Jurisdiction
FAMILY LAW - Spousal maintenance - Adjournment

Child Support (Registration and Collection) Act 1988 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: MRS XUEREB

RESPONDENT: MR XUEREB

FILE NUMBER: MLF 2296 of 2006

DATE DELIVERED: 14 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grant

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fookes

SOLICITOR FOR THE RESPONDENT: Pearsons

Orders

1. That the further hearing of the wife’s oral application for urgent spousal maintenance be adjourned to the Senior Registrar’s Long Duty List at 10.00 a.m. on 16 May 2007.

2. That by 4.00 p.m. on 4 April 2007 the wife file and serve a Form 2 application in a case with supporting affidavit material including a financial statement.

3. That by 4.00 p.m. on 18 April 2007 the husband file and serve a Form 2A response with any supporting affidavit material including a financial statement.

4. That the husband’s costs of this day be paid by the wife, such amount to be agreed between the parties or as taxed and the ultimate payment terms be determined by the trial judge.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.

IT IS FURTHER ORDERED IN CHAMBERS

1. That in the event that the matter settles or cannot proceed for any reason solicitors are to immediately advise the Assistant to the Senior Registrar.

2. That the parties are to have a telephone link with the Senior Registrar on Wednesday 9 May 2007 at 10.00 a.m. to confirm compliance with the preceding orders.

3. That there will be liberty to all parties to list the matter for mention before the Senior Registrar on 24 hours notice.

4. That each of the parties prepare file and serve on the other party an Outline of Case Document in bullet point form by no later than 4.00 p.m. on 14 May 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2296  of 2006

MRS XUEREB

Applicant

And

MR XUEREB

Respondent

REASONS FOR JUDGMENT

1. My reasons for saying that I do not have jurisdiction are as follows. Section 139 of the Child Support (Assessment) Act 1989 (Cth) is not a separate head of power. The power to make any orders for this Court lies in s 140 and if I was to make any order it would have to fit within one of those provisions. Having thought long and hard about a resolution of the problem, trying to find a way in which I could assist the party seeking to exercise the jurisdiction, the only approach I can see which is open is for an application for departure. Even then the power in s 141 is very limited.

2. Even if I did have the power to make an order using s 139 the applicant would then face the dilemma that she would have to go back to the provisions of s 30 of the Child Support (Registration and Collection) Act 1988 (Cth) to enable her to enforce the order because subject to a couple of very minor matters it would still be a debt due to the Commonwealth and that would effectively bring us back to the question of the Child Support Agency enforcing not only the order as they would be obliged to do so under the Act, but they would obviously then be facing the prospect of having to enforce their assessment as well.

3. Section 139 of the Child Support (Assessment) Act in my view is intended as a stop gap measure. That seems clear from the provisions of sub-s 2 which sets out two particular provisions in relation to the cessation of any s 139(1) order. Sub-section 2A really only relates to a situation where the registrar refuses an application for administrative assessment, but s 152 creates an interesting problem. Section 152 is difficult because of the joining effectively of the two sub-paragraphs, and on the face of it one could potentially argue that the words in sub-section (b) "immediately before that time" mean that at any time after the assessment was in place someone could bring an urgent application.

4. That is certainly not what the two academic texts say. In each case they refer to the provision as meaning only as a stop gap or interim measure pending the assessment. One of the things that in the end influenced me to say that I do not have jurisdiction ironically is the one that we briefly discussed earlier this morning which is s 66E of the Family Law Act 1975 (Cth).

5. Section 66E of the Family Law Act refers to the fact that a court having jurisdiction under this Part must not at any time make a child maintenance order in relation to a child on the application of a person against or in favour of a person if an application could properly be made at that time under the Child Support (Assessment) Act for administrative assessment of child support.  That particular provision makes it very clear that the application for maintenance is not just a maintenance order under the Family Law Act, the reference to the Family Law Act just does not appear as such.  It seems to me that I do not have power by virtue of
   s 66E to make any order for maintenance if there is in fact the opportunity at that particular time for an administrative assessment to apply.

6. In my view therefore as s 139 is not a separate head of power I have to rely on the provisions of s 141 to obtain any power to make any order, and on that basis I do not think that there is anything other than a stop gap measure in s 139 and because of the fact that there is already an assessment in place the only course of action open to the applicant is to seek a departure application. So, on that basis I do not have jurisdiction to make an order under s 139.

DISCUSSION

1. In this matter I have earlier determined that I did not have jurisdiction to make any of the orders sought by the wife in her Form 2 application.  Subsequent to that application I permitted an oral application to be made seeking urgent spousal maintenance but as it transpires that could not have proceeded very far today on the basis that the husband really had not come prepared for that nor would have been expected to having regard to the fact that the oral application was only made this day.  The wife has been largely, if not entirely, unsuccessful this day and in the normal course of events s 117 of the Act requires that each party pay their own costs subject to the Court making determination that it is otherwise just that they do pay something towards the other's costs.

2. I have taken into account all of the considerations under s 117(2)(a).  In this case there is a distinctly different disparity between the parties’ financial position and it is quite clear that the husband is in the stronger position.  The husband does not pay child support or of any substance and it is quite clear that he runs his own business and has the benefits of being able to manipulate his income to some extent.  I am told that there is a property settlement to be dealt with at some stage during the year, and that there is at least on the documents I have read, $500,000 if not more in equity to be divided.

3. In my view this is a case where the wife has been entirely, if not as I said largely unsuccessful, and she should pay the costs.  But I propose that the costs be as agreed between the parties for the day, failing agreement to be determined by the usual taxing procedure, but that the payment of those costs be reserved to the trial judge.

4. What I propose therefore is an order that - this will be order number 4 - that the husband's costs of this day be paid by the wife, such amount to be agreed between the parties or as taxed and the ultimate payment terms be determined by the trial judge.

5. I certify for the attendance of counsel.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: 29 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as XUEREB & XUEREB