Girard & Pelletier - [2009] FMCAfam 68

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, 2008
is 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Girard & Pelletier

Details

AGLC: Girard & Pelletier [2009] FMCAfam 68
Case: [2009] FMCAfam 68
Decision Date: 30 January 2009

CaseChat Overview and Summary

The case of Girard & Pelletier involved a dispute over the discharge of an overseas maintenance order. The applicants sought to discharge an order made by a French court for maintenance payments. The application was filed in the Family Court of Australia. The legal issues in the case centred on whether the Family Court had jurisdiction to hear the application, the interpretation of sub-regulations, and the meaning of the conjunction "and" in the context of the relevant legislation.

The court examined whether the jurisdiction of the Family Court was properly invoked, considering the interplay between the Family Law Act 1975 and the Family Law (Child Support) Regulations 1989. It was necessary to interpret whether the sub-regulation in question should be read cumulatively or dispersively, and whether the use of "and" implied "or". The court concluded that the Family Court did have jurisdiction to hear the application and that the relevant sub-regulation should be read cumulatively. It found that "and" did not mean "or" in this context.

The application for summary dismissal was dismissed, and the matter was remitted to the Registrar for directions. The court did not speculate on the ultimate outcome of the application to discharge the maintenance order, but focused on the jurisdictional and interpretative issues raised. The court's reasoning was based on a careful analysis of the statutory provisions and the relevant legal principles.

Orders

Orders of the court

The application for summary dismissal of the application filed on

1 September, 2008

is dismissed.

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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