Graham, Lynn v. Commissioner for Superannuation [1981] FCA 102

The applicant relies upon s.5 of that Act. There has been a challenge to the competency of the application filed on behalf of the respondent Commissioner for Superannuation. The notice of objection to competency relies upon three matters, namely that there was not a decision, that it was not of an administrative character, and that it was not made under an enactment. Counsel for the Commissioner has told me that he does not rely upon the last two of these grounds, so that the objection to competency only goes to the question whether

The applicant obtained a decree nisi for dissolution

of her marriage on 8 April 1980. On 8 October of that year a

judge sitting in the Family Court at Canberra ordered inter alia that her former husband pay maintenance for the support of two children of the marriage in the sum of $20 per week each. It was ordered that the payments were to be made to the Collector of Maintenance at Canberra for payment out to the

The applicant has deposed that she has not received maintenance from her former husband. She asked the Collector of Maintenance for the Australian Capital Territory to take enforcement action. This was apparently not possible, or at least if possible, was not successful. The Collector of Maintenance issued a Certificate of Arrears dated 12 January 1981 which showed that nothing had been paid by the former husband by way of maintenance on or before 7 January 1981, and

that on that date an amount of $520 was due under the order and

The applicant became aware that her husband was proposing to resign from the Public Service and she took action to garnishee superannuation moneys falling due to him. An order was made by a magistrate purporting to be pursuant to regn. 134(4)(b) of the regulations under the Family Law Act 1975. He ordered that the Commissioner for Superannuation pay any moneys held by him to which the respondent husband was entitled by way of pension, or refunds of payments in relation

thereto, to the Collector of Maintenance at Canberra.

there was no jurisdiction in the magistrate to make this order

because under s.118 of the Superannuation Act 1976, a

garnishee order could not be made against superannuation

On 6 January 1981, the applicant made a statutory declaration which annexed thereto a copy of the maintenance order to which I have referred, and the Certificate of Arrears and they were served on the Commissioner for Super- annuation with a view to the arrears being recovered pursuant to s.119 of the Superannuation Act. By letter dated 27 February 1981, the solicitors for the applicant were informed that earlier telephone communication was confirmed and that,

order to satisfy the requirements of s.119 of the Superannuation Act 1976 and;

the Certificate of Arrears issued by the Collector of Maintenance cannot be regarded as a court judgment."

The letter in a separate paragraph then went on to say, and

"Therefore the balance of Mr Graham's refund previously withheld will be paid to him shortly."

was to the fact that part of the superannuation moneys to which the former husband was entitled had already been paid to

behalf of the applicant is not dated but the amended application bears date 6 May of this year. As I have earlier indicated, the grounds relied upon, are some of those set out in s.5. The Commissioner has argued that there was not in this case any decision within the meaning of the definition in s.3(1) of the Administrative Decisions (Judicial Review) Act. In my view it is reasonably clear that what the Commissioner intimated in his letter to which I have referred, was that in his view there was no power to apply s.119 in the circumstances of the case and that he would therefore take no further action on the request made to him on behalf of the applicant. He had, in effect, taken a decision, as he was entitled to do, on a threshhold matter concerning the application of the section and he had decided that question against the applicant and intimated that as a result he would take no further course except to pay the balance of Mr Graham's money to him. This in my view was a decision within the meaning of the sub-section and within the meaning of the

It was further urged on behalf of the Commissioner that the applicant had another avenue of redress which was provided by the terms of the Superannuation Act and by recourse thereafter, if necessary, to the Administrative Appeals

In these circumstances and having in mind the terms of s.10(2) of the Act it was argued that this Court

should decline jurisdiction. I think this is always a matter

the Court has to consider or should I say it is frequently

a matter the Court will have to consider. The main consider- ation, I imagine, is what is best to be done in the interests

of the parties and in the public interest and with a view to saving cost and time and reaching as soon as possible a finality

The jurisdiction of this Court except in respect of the matter to which I have already referred was not disputed. What the applicant has done is sought to have the question of law resolved by this Court and if resolved in her favour to have the Commissioner exercise his discretion under s.119. If that discretion were exercised unfavourably to her she could then pursue further remedies under the Act or those under the Administrative Appeals Tribunal Act to which counsel has

If the matter were not dealt with by this Court she could seek reconsideration by the Commissioner and then go to the Administrative Appeals Tribunal and if the question of law was still decided adversely to her she might then have to come back to a Full Bench of this Court. In the circumstance, it seems plain enough to me that it is in the best interests of everyone that this Court deal with the question of law. In other words, that it accepts the jurisdiction granted to it.

I therefore proceed to consider the application of s.5.

The core of the matter relates to the proper construction of s.119 of the Superannuation Act 1976. It is

contended by counsel for the applicant that the amount of the

arrears as at a past date having been determined and the necessary statutory declaration having been furnished to

the Commissioner, the terms of sub-section 1 have been satisfied. On behalf of the Commissioner, on the other hand, 1t is contended that there was no judgment or alternatively there was no judgment for the payment of a sum of money; that the applicant was not put in the position of a judgment creditor, nor was the husband or anyone else in the position

of a judgment debtor within the meaning of the sub-section.

It is further urged that the language of the sub-section, particularly when it refers to a judgment being fully satisfied is inconsistent with any notion that arrears of maintenance, even although certified by the proper authority, can be dealt with under that section. With these last-mentioned submissions I agree. It seems to me that when one takes the sub-section as a whole, it is referring to a judgment in the more accepted sense of the word, where there is a decision by way of

judgment that a fixed and ascertained sum of money be paid so that there is a judgment creditor and a judgment debtor and so that one can see whether or not the judgment has been fully

An order for maintenance, it has long been acknow- ledged, is in a special position. An order for periodical payments, such as the present, creates an obligation for the payment of amounts in the future. The amount involved is indefinite because the obligation may be varied at any time and in any event will terminate with the death of the person

liable to make the payments. Even if one were therefore to

regard the order as a judgment - and in my view this would

be incorrect so far as the use of that term in s.119 is concerned - there would not be a judgment for any ascertained or ascertainable amount and it would not be possible properly to apply the terms of the sub-section. It is therefore my opinion that a case does not arise for the application of

s.119(1). This accords with the view taken by the Commissioner.

I think the whole chain of events has been a sorry one and the Court cannot help but be sympathetic with a person in the position of Mrs Graham. I do not, however, know all the facts of that case, and should not go further in

For the reasons I have given the notice of objection to competency and the application should both be dismissed. In the circumstances I think there should be no order as to costs.