Hasil and Krekanova
[2004] FMCAfam 605
•28 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HASIL & KREKANOVA | [2004] FMCAfam 605 |
| FAMILY LAW – CHILD MAINTENANCE – Application for provisional variation of Overseas Child Maintenance Order – Regulation 36 of the Family Law Regulations, s.66S of Family Law Act. |
Family Law Act 1975
Family Law Regulations 1984
Child Support (Assessment) Act 1989
| Applicant: | ROMAN HASIL |
| Respondent: | LUBICA KREKANOVA |
| File No: | BRM16419 of 2004 |
| Delivered on: | 28 October 2004 |
| Delivered at: | Brisbane |
| Hearing date: | 14 September 2004 |
| Judgment of: | Jarrett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P Mason |
| Solicitors for the Applicant: | Somerville Laundry Lomax |
ORDERS
That the application in a case filed on 11 August 2004 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM16419 of 2004
| ROMAN HASIL |
Applicant
And
| LUBICA KREKANOVA |
Respondent
REASONS FOR JUDGMENT
This is an interim application by ROMAN HASIL seeking an order that his liability under a registered overseas maintenance order be suspended until further order. He also seeks that service of this application upon the respondent be dispensed with. Accordingly, this application has been heard without notice to, and in the absence of, the respondent.
The liability concerned is one that arises under a judgment of the Circuit Court Bratislava II dated 9 September 1992, an affirmative judgment of the Municipal Court Bratislava dated 26 February 1993 and varied by a judgment of the Circuit Court Bratislava II dated
12 September 2003 ("the overseas maintenance orders"). Those courts are courts of the Slovak Republic.
Despite some initial confusion, the proceedings are said by the applicant to be brought pursuant to reg 36 of the Family Law Regulations 1984.
Regulation 36(2) FLR provides for application to be made to a Court having jurisdiction under the Family Law Act 1975 for an order discharging, suspending, reviving or varying a liability to which the regulation applies. There appears to be no doubt that reg 36 FLR applies to the overseas maintenance orders or that the applicant is properly qualified to make application under that regulation.
The issue is whether reg 36 permits an order that suspends the applicant's liability pursuant to the overseas maintenance order until further order. Put another way, can the enforcement or collection of maintenance pursuant to the overseas maintenance order and the regulations be stayed until a final hearing?
I do not think that reg 36 permits an order that suspends the applicant's liability pursuant to the overseas maintenance order until further order.
Regulation 38 FLR provides that an order made under reg 36 FLR is provisional if the relevant reciprocating jurisdiction[1] is one of the jurisdictions listed in that regulation. Slovak Republic is not listed. It is relevant to observe, however, that if an order under reg 36 is provisional, it is of no effect unless it is expressed to be provisional and unless and until a competent court of the reciprocating jurisdiction in which the overseas maintenance order was made confirms it[2].
[1] Slovak Republic is a "reciprocating jurisdiction" for the purposes of the FLR: reg 24A FLR, s 110 Family Law Act 1975 and reg 25 FLR
[2] reg 38A(2) FLR
By reg 38(2) FLR, if the reciprocal jurisdiction is not one of those listed in reg 38(1), the order made under reg 36 is final.
Regulation 36 does not speak in terms of interim orders, orders until further order or final orders[3]. It merely speaks of "an order". The scheme established by reg 38 and 38A appears to me to be one whereby a provisional order must be confirmed by the court that the made the original maintenance order. It is of no effect until it is confirmed and, it seems to me that the respondent could challenge it in the proceedings taken to confirm it. A final order does not have to be confirmed and is of immediate effect. Unless the court issuing the original maintenance order is within a reciprocating jurisdiction listed in reg 38(1), any order made pursuant to reg 36 is final and cannot be challenged. That means, I think, that neither the applicant nor the respondent could challenge it, even at the final hearing of the application, except by way of an appeal.
[3] unlike provisions such as s 66P(g) of s 67E(2)(f) of the Family Law Act 1975
There is no provision in the Family Law Act1975 or the Regulations to which my attention has been directed that authorises the grant of a stay of the collection or enforcement of the applicant's liability[4]. I do not think that reg 36 can be used as a de facto stay provision. If it was the intention of the Legislature that there could be a stay of the collection or enforcement of an overseas maintenance liability pending the determination of an application under reg 36, an express provision to that effect could have been inserted in the Regulations.
[4] unlike, for example, s 140 of the Child Support(Assessment) Act 1989
The application is dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: Susan Haysom
Date: 28 October 2004
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