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The case of M and T recently decided in the Federal Magistrates' Court did not concern Tattslotto winnings (despite the amount of money involved), but simply concerned child support, which the husband had refused to pay for many years.

In 1988 the husband was ordered to pay child support in New York and then stopped paying in 1990 when he sold off his American assets and disappeared.

The wife took proceedings over the years to try and find him, including hiring private investigators. She eventually found that he had moved to Australia but was told she would have to come to Australia to take legal proceedings to get her arrears.

In 1995 she discovered that the law had changed and that it was easier to enforce an overseas order in Australia. Again she had to hire private investigators and in 2000 they tracked the husband down to an expensive Sydney suburb. He had changed his name. The wife took proceedings in America to fix the arrears owing to her including legal costs, which came to $450,000AUS.

She then took proceedings to collect this money through a Federal Magistrates' Court Order in Sydney. The principal argument in Court was that the wife had "slept on her rights" and the Court should apply the old principal that child support arrears are not ordered to be paid for more than 12 months. Not surprisingly, given the above facts, the Court found that the wife had not slept on her rights, and that in the circumstances of the case it was appropriate to Order the husband to pay the whole amount of arrears.

As part of the proceedings, the wife also applied for the Court to set aside the husband's transfer of his property to a third party (his current wife). The Court refused to make that Order because the third party had not been served with the Application, although the ability to make a fresh Application for the setting aside of the transfer was left open.

Enforcement of arrears of child support between countries is obviously a complex area. It is possible to enforce child support arrears from Australia against defendants in the United States or in Europe (and other countries). Expert advice should be obtained if such an issue arises.

Stephen Winspear Partner, Family Law

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