Girard & Pelletier
[2009] FMCAfam 68
•30 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GIRARD & PELLETIER | [2009] FMCAfam 68 |
| FAMILY LAW – Application to discharge overseas maintenance order – whether jurisdiction enlivened – whether sub-regulation to be read cumulatively or dispersively – whether “and” means “or”. WORDS AND PHRASES – “and” – “or”. |
| Family Law Act 1975, ss.110(1) and 110(2) Family Law Regulations 1984, reg.36(1)(a), 36(1)(b), 36(2) Child Support (Registration and Collection)(Overseas – Related Maintenance Obligations) Regulations 2000 Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) (Repeal) Regulations 2007 Child Support (Registration and Collection) Act 1988 |
| Re The Licensing Ordinance (1968) 13 FLR 143 Gillespie v Ford (1978) 19 ALR 102 Smith v Papamihail (1998) 158 ALR 451 Newbeld & Newbeld [2007] FMCAfam 465 |
| Applicant: | MR GIRARD |
| Respondent: | MS PELLETIER |
| File Number: | BRC 7851 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 28 January 2009 |
| Date of Last Submission: | 28 January 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 30 January 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Billimoria |
| Solicitors for the Applicant: | Emerson Family Law |
| Counsel for the Respondent: | Mr Scott-McKenzie |
| Solicitors for the Respondent: | Butler McDermott |
ORDERS
The application for summary dismissal of the application filed on
1 September, 2008is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Girard & Pelletier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7851 of 2008
| MR GIRARD |
Applicant
And
| MS PELLETIER |
Respondent
REASONS FOR JUDGMENT
Mr Girard and Ms Pelletier were once married. They spent their married life in Canada. They separated there and were divorced there. In April, 2007, about a year after separation, Mr Girard moved to live in Australia. Ms Pelletier remains living in Canada.
Shortly before Mr Girard left Canada for Australia, Ms Pelletier commenced proceedings for maintenance against him. In April, 2007 and after Mr Girard had departed for Australia, she secure an order that Mr Girard pay her interim spouse maintenance of $300.00 per month. Mr Girard has not paid any of the maintenance and there is now arrears exceeding A$3,000.00.
Ms Pelletier registered her maintenance order with the Child Support Agency in Australia for collection by the Agency. Subsequent contact from the Agency prompted Mr Girard to apply to this Court for an order that “In accordance with Regulation 36 of the Family Law Regulations the overseas maintenance entry liability registered with the Child Support Agency Australia pursuant to Regulations 22 of the Child Support (Registration and Collection) open overseas/related maintenance obligations) Regulations 2000 Child Support Assessment and Collection Act be discharged.” (faithfully reproduced from his initiating application).
Ms Pelletier applies to have Mr Girard application dismissed summarily. She argues that he has not properly invoked the jurisdiction that arises under sub-reg.36(2) of the Family Law Regulations 1984 or, alternatively, that his application is an abuse of process. Success on either argument means that Mr Girard application should be dismissed with further consideration.
Ms Pelletier’s first argument raises an issue about the construction of sub-reg.36(1) of the Family Law Regulations. To understand the issue it is necessary to set out the regulation in full.
36 Party in Australia may apply to vary etc overseas maintenance order, agreement or liability
(1) This regulation applies to:
(a) an overseas maintenance order or agreement registered in a court before 1 July 2000; and
(b) an overseas maintenance entry liability or a registered maintenance liability.
(2) Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.
(3) An application may be made by:
(a) the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or
(b) the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or
(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4) The law to be applied to determination of an application is the law in force in Australia under the Act.
The issue raised by this application is whether sub-regs.36(1)(a) and 36(1)(b) should be read cumulatively or dispersively.
Ms Pelletier argues that they must be read cumulatively so that sub-reg.36(1) only applies to an overseas maintenance order or agreement registered in a court before 1 July 2000 which is also an overseas maintenance entry liability or a registered maintenance liability.
Mr Girard argues that the word “and” where it appears between sub-regs.36(1)(a) and 36(1)(b) ought to be read dispersively so that the provisions are seen as alternatives. In essence, he says, in this sub-regulation “and” means “or”.
The arguments of both parties proceeded on the basis that Mr Girard could not satisfy both sub-regs.36(1)(a) and 36(1)(b) – the relevant order having been made in 2007. Ms Pelletier conceded in her written submissions that Mr Girard satisfies sub-reg.36(1)(b) in that the Canadian order, registered as it apparently is by the Child Support Registrar, is an overseas maintenance entry liability for the purposes of the Regulations.
Neither party could locate any decision of this, or any other court, where the issue has been considered although Ms Pelletier’s solicitor pointed me to some previous decisions of federal magistrates that have assumed that the regulation should be read dispersively.
In Re The Licensing Ordinance (1968) 13 FLR 143 Blackburn J said:
Mr. Mitchell supported this argument by authorities which, he submitted, showed that the word "and" can sometimes mean "or". I do not think that I need examine these authorities seriatim. Each of them in my opinion falls into one or the other of two categories. The first category is that of cases where, if "and" was given its natural meaning, the result was so extraordinary (to quote Lord Parker C.J. in R. v. Oakes [1959] 2 Q.B. 350, "an absurdity or unintelligibility") that in order to make sense of the provision the court was obliged to say that it must read the word "and" as if it had been "or". The cases in the second category were those in which there was a list of items, the items being joined by "and" and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word "and", which is used to join the items in the list, is truly cumulative; it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorize the class, as a whole, as a class of alternatives. Pace Mr. Mitchell, the word "and" inside the class does not have dispersive or alternative force; its force is wholly cumulative; it is the words outside the class which give the dispersive effect. A common example is the wording of a statutory definition--for example, "motor vehicle includes motor cycles, tractors, and trailers"--where the "and" has a truly cumulative meaning, but dispersive effect is given by the word "includes". …
In my opinion, the proposition that "and" can sometimes mean "or" is true neither in law nor in English usage, and the authorities do not show otherwise. In the case before me, Mr. Mitchell's argument in my opinion could rest only on the contention that the legislature could not have meant "and" but must have meant "or".
It is not just words which precede a cumulative list (such as the example “includes” given by Blackburn J above) that might give a dispersive effect. The context of a section as a whole must be regarded so as to divine true legislative intention.
In Gillespie v Ford (1978) 19 ALR 102 Forster CJ considered the effect of s.17(1) of the Social Welfare Ordinance (NT) which was in the following terms:
The Administrator, the Director and a welfare officer may enter and remain on a reserve and may authorize a person, subject to such conditions, if any, as are specified in the authorization, to enter and remain on a reserve.
It was argued that because the sub-section used “and” and not “or” as the conjunction between Director and welfare officer, the only authority given by the sub-section was for all three named officers to enter and remain or to authorize a person to enter and remain on a reserve together. After citing the passage to which I have just referred from Re The Licensing Ordinance, Forster CJ continued, at 107 - 108:
I respectfully agree with his Honour, but nevertheless I have come to the conclusion that when the word “and” is used in circumstances such as those in s 17(1) it has a cumulative meaning but that the dispersive effect is given not by another word like “includes” but by the general context of the section. It appears to me that the section intends to give a list of offices, the holders of which may exercise the powers and that to hold that the meaning is that the holders of all three officers may enter and remain together, and may together authorize a person to enter and remain, causes a result that is so extraordinary that to make practical sense of the provision the court should, in effect, read the word “and” as if it were “or”. The first argument therefore fails.
Since the above decision, the Parliament has enacted s.15AA of the Acts Interpretation Act 1901[1]. It is in the following terms:
15AA Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
The authors of Pearce and Geddes Statutory Interpretation in Australia (4th ed) (at para 2.15) (now in its 5th ed. at para 2.25) pointed out that the purposive approach to interpretation set out in s.15AA of the Acts Interpretation Act “… could include reading ‘and’ for ‘or’ or vice versa if the purpose of the legislation suggests such an interpretation”. That is exactly the approach adopted by Carr J in Smith v Papamihail (1998) 158 ALR 451. His Honour decided that having regard to s.15AA, in an appropriate case a court might read “and” for “or” or vice versa.
The current form in which sub-reg.36(1) appears was prescribed with effect from 1 July, 2000[2]. Prior to that sub-reg.36 was in a different form:
36 Party in Australia may apply to vary etc overseas maintenance order or agreement
(1) Where an overseas maintenance order is enforceable in Australia, a person for whose benefit the order was made or the person against whom the order was made may apply to a court in which the order is registered for an order discharging, suspending, reviving or varying the overseas maintenance order.
(2) Where an overseas maintenance agreement is enforceable in Australia, a person for whose benefit the agreement was entered into or the person who is liable to make payments under the agreement may apply to a court in which the agreement is registered for an order discharging, suspending, reviving or varying the agreement or discharging or waiving arrears under the agreement.
(3)In an application under subregulation (1) or (2), the law to be applied is the law in force in Australia under the Act.
Regulation 36, in its pre-1 July, 2000 form, applied to an overseas maintenance order or an enforceable overseas maintenance agreement that was registered in a court. At that point “court” was defined to mean, and is still defined to mean: “in relation to any proceedings, … the court exercising jurisdiction in those proceedings by virtue of [the Family Law Act 1975].”[3]
Amendments to the Family Law Act 1975 and the Family Law Regulations that took effect from 1 July, 2000 extended the scheme set up by s.110 of the Act and its accompanying regulations beyond just orders and agreements for maintenance. Provision was introduced for the registration and enforcement in Australia of overseas administrative assessments of maintenance. By and large that process was dealt with in the Child Support (Registration and Collection)(Overseas – Related Maintenance Obligations) Regulations 2000. In Newbeld & Newbeld [2007] FMCAfam 465 Slack FM explains:
35. The Overseas Regulations effected a significant change in respect of the registration and enforcement of maintenance orders and agreements made overseas. In simple terms, those regulations permitted child maintenance obligations to be registered with the Child Support Registrar and to be enforced pursuant to the Child Support (Registration and Collection) Act as if they were child support obligations. …
The Overseas Regulations were repealed by the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) (Repeal) Regulations 2007. The work done by those regulations was taken over by provisions that were inserted into the Child Support (Registration and Collection) Act 1988.
When regard is had to the scheme for registration and enforcement of overseas maintenance orders as it existed prior to 1 July, 2000, and the scheme implemented by the amendments to the Family Law Act, the Family Law Regulations, the introduction of the Overseas Regulations in July 2000, and now the relevant provisions of the Child Support (Registration and Collection) Act 1988 it is apparent in my view that the legislature intended to cast the net in which overseas maintenance obligations were caught, wider than had previously existed. The increased ambit is greater than just orders or judicial determinations for maintenance. It extends to administrative determinations of maintenance.
The extension is achieved in part, by the terms of reg.36(1)(b) of the Regulations and the definitions of “overseas maintenance entry liability” and “registered maintenance liability” therein. Those terms are defined as follows:
overseas maintenance entry liability means an overseas maintenance entry liability included in the Child Support Register under section 25A of the Child Support (Registration and Collection) Act 1988.
registered maintenance liability means a registrable maintenance liability under section 18A of the Child Support (Registration and Collection) Act 1988.
Relevantly the Child Support (Registration and Collection) Act 1988 contains the following provisions:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
overseas maintenance liability means a liability that arises under:
(a) a maintenance order made by a judicial authority of a reciprocating jurisdiction; or
(b) a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction; or
(c) a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction.
18A Liability in relation to registrable overseas maintenance liabilities
…
(2) A liability is a registrable overseas maintenance liability if it is:
(a) a liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage; and
(b) an overseas maintenance liability.
…
25A Inclusion of certain liabilities in the Child Support Register
(1) A payee may apply to the Registrar for entry, in the Child Support Register, of the particulars of an overseas maintenance liability that is not a registrable overseas maintenance liability.
Ms Pelletier’s argument must necessarily mean that an applicant could only approach the court for an order discharging, suspending, reviving or varying an order, agreement or liability to which reg.36 applied if the liability sought to be so amended was:
a)An overseas maintenance order;
b)Registered in a court in which proceedings were being prosecuted under the Family Law Act;
c)So registered before 1 July, 2000.
If that is correct then there appears to be no purpose to be achieved by the inclusion of sub-reg.36(1)(b), or that part of it which appears to extend the operation of the regulation to overseas administrative assessments of maintenance. The extension is negated.
The practical effect of Ms Pelletier’s argument is to limit the scope of reg.36 in a way which does not appear consistent with the purpose of that part of the Act, Regulations and the Registration and Collection Act dealing with overseas maintenance liabilities. Her argument means that the relief provided by sub-reg.36 will only be available in a limited and perhaps ever diminishing number of cases.
In my view that cannot be what the legislature intended. I am not satisfied that the parliament has made a mistake by using the word “and” in place of “or” in sub-reg.36. The two parts of that sub-regulation are intended to be cumulative. But a reading of sub-reg.36 as a whole gives sub-reg.36(1) a dispersive effect. Sub-regulation 36(2) uses the conjunction “or” between the items in the list “order, agreement or liability” and that is a clear indication, I think, that whilst the list in reg.36(1) is cumulative, the overall effect of the section is dispersive. The same observations can be made about the words in sub-reg.36(3). Moreover, the interpretation contended for by Ms Pelletier does not appear to be consistent with overall legislative intention of the relevant provisions.
Given Ms Pelletier’s concession that Mr Girard satisfies sub-reg.36(1)(b) in that the Canadian order, registered as it apparently is by the Child Support Registrar, is an overseas maintenance entry liability, her application insofar as it is based upon this argument must fail.
Nor is the application an abuse of process for the reasons advanced by Ms Pelletier. She suggests that an alternative avenue of relief is available to Mr Girard – namely application to the Child Support Registrar, pursuant to reg.32 of the Overseas Regulations but as has been shown, those regulations are no longer in force. There does not appear to be any equivalent in the Child Support (Registration and Collection) Act 1988.
During the course of argument, however, I was informed that there had been a hearing in the appropriate Canadian jurisdiction, only the day before, of Ms Pelletier’s application to increase Mr Girard’s liability, his application to reduce his liability under the maintenance order to nil and his application to discharge arrears. I was informed by Mr Girard’s counsel that judgment had been reserved on the first two of those application, but the application to discharge the arrears had failed.
I express no concluded view about the matter, but it might be that a continuation of the present proceedings in those circumstances does amount to an abuse of process in the sense identified in Henry & Henry (1996) 185 CLR 571.
The application for summary dismissal is dismissed. I will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 30 January 2009
[1] which applies to the interpretation of the regulations: s.13(1)(a) Legislative Instruments Act2003
[2] Family Law Amendment Regulations2000 (No. 2)
[3] s.4 of the Family Law Act1975, which definition is also applicable to the Regulations.
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