Pabiyanov and Pabiyanova

[2016] FamCA 1079

FAMILY COURT OF AUSTRALIA

PABIYANOV & PABIYANOVA [2016] FamCA 1079

FAMILY LAW – Adult child maintenance – overseas registrable maintenance liability – first day of hearing – mediation – Reunite International

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth).
Family Law Regulations 1984

APPLICANT: Mr Pabiyanov

RESPONDENT: Ms Pabiyanova

INTERVENOR: Child Support Registrar

FILE NUMBER: MLC 7615 of 2016

DATE DELIVERED: 16 December 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT: Blackwood Family Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE CHILD SUPPORT REGISTRAR: Ms Whittemore (as amicus curiae)

SOLICITOR FOR THE CHILD SUPPORT REGISTRAR: Child Support Registrar

Orders

IT IS ORDERED THAT:

1.The proceedings be adjourned before me to 18 January 2017 at 10.00 am.

2.By not later than Wednesday 16 November 2016 the Child Support Registrar file and serve any submissions upon which he proposes to rely in relation to the applicability of Regulation 36 of the Family Law Regulations to these proceedings as a provision pursuant to which the underlying maintenance order or registration thereof may be varied, set aside or discharged and such submissions be in writing.

3.The applicant father respond to any submissions upon which the Child Support Registrar files and serves by not later than 14 December 2016.

4.There be a transcript of the proceedings this day and a copy be placed on the Court file.

AND IT IS NOTED

A.That the applicant father and the respondent daughter, MS PABIYANOVA, have agreed to avail themselves of mediation through such mediation as may be available through International Social Service in Melbourne and for that purpose IT IS DIRECTED that my Legal Associate contact International Social Service to ascertain whether any of the mediations without cost to the user are available for the parties in these proceedings.

B.That the Child Support Registrar anticipates that he may not file and serve any further submissions in his own right but may file and serve submissions prepared on behalf of the Attorney General’s Department.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pabiyanov & Pabiyanova has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7615 of 2016

Mr Pabiyanov

Applicant Father

And

Ms Pabiyanova

Respondent Daughter

And

Child Support Registrar
appearing as amicus curiae

REASONS FOR JUDGMENT

Introduction

1. This proceeding is between father and daughter. It is the father’s application to discharge an order obtained against him in Country B for the daughter’s maintenance which will, if he fails, be collected by the Child Support Registrar in Australia and paid to the daughter in Country B. The matter is listed before me having been transferred by Judge Jones of the Federal Circuit Court in Melbourne on 28 September 2016.

2. I have treated this hearing as the first day of final hearing.

3. These reasons are intended to record what transpired on the first day of hearing noting that the matter has been adjourned to 27 January 2017 for one day.

4. I am not making any findings of fact at this stage. The father and the Child Support Registrar will each prepare written submissions on a point of law. Sensibly, the daughter and the father have agreed to participate in a mediation. The mediation will be provided free of cost to the parties by Reunite International, a United Kingdom based charity which provides an international parent support network.

Background

1. The father is 49 years old. He separated from his first wife (the Applicant daughter’s mother) in 2001 and was divorced in April 2002. The father remarried in 2002 in Country B and migrated to Australia in 2004. He is self-employed as a health professional in a city-based practice. He has two children with his wife, aged 13 and 11 years old.

2. The respondent is now 22 years old. She is a full-time university student, studying in Country B. She lives in a rented apartment and is without income.

3. The respondent daughter sought and obtained (on 10 December 2015) an adult maintenance order in, Country B (“the Order”). A copy of the Order is found on the court file.

4. The applicant father asserts that the Order was obtained without his knowledge or notice. He alleges that he received a phone call and a letter dated 6 June 2016 informing him of the Order at which time he had last spoken to his daughter about 10 years ago.

5. The Order was made retrospectively and provides for AUD$1200 per month at the prevailing exchange rate to be calculated from 21 August 2015, payable no later than the 5^th of each month.

6. The respondent daughter is seeking collection of ongoing maintenance in arrears of maintenance owing and has made an application (6 June 2016) to the Ministry in Country B for the Registrar to collect the liability owing from the father. Payments were due to commence on the date of registration.

7. The respondent daughter was linked in by telephone and alleges that the applicant father did have notice of the proceedings which gave rise to the Order. She stated (unsworn):

   [MS PABIYANOV]: So there is evidence that attempt been made my father the documents regarding the proceedings of the verdict B2 48/12 marked as TP1 in my affidavit which is on page 14, passage 4. That is that from the reclaiming documents envelope, it can be certified that in the presence of the authorised court translator, [Mr C], the charged documents have been delivered to the charged person, but he has refused to accept it on 9 October 2012. And also certificated by the [Country B Court] marked as TP3 in my affidavit which confirms that big efforts have been made in order to serve my father the documents on ... address, including his present one, as it is indicated in the letter from DCSI and the CSA that is addressed to him. And also the [Country B Court] faced a problem of regular delivery of the documents and to my father when passing the verdict B2 number ...

   …

   [MS PABIYANOV]: And for the termination of ‑ ‑ ‑

   …

   [MS PABIYANOV]: The [Country B Court] also faced the problem of regular delivery of documents to my father when passing the verdict B2 number 109/15.  In order for the court to determine ways of evidence A, information was required through the Ministry of Internal Affairs of Republic of [Country B] in order to locate my father, but their reports showed that he was not located, and acting upon the regulations of court, the Centre for Social Affairs appointed a guardian of ... a lawyer to represent his interests.  So from the above ... I believe that my father’s ... and that he was not properly informed about the court proceedings in the Republic of [Country B] is groundless.

8. The father seeks a discharge of the Order.

9. The question before me is whether the father is entitled to bring an application to this court and/or whether this court has jurisdiction to vary, suspend or discharge the Order.

The Relevant Law

1. The Order is an overseas registrable maintenance liability within the meaning of s 18A of the Child Support (Registration and Collection) Act 1988 (Cth) (“Collection Act”).

2. Section 18A of the Collection Act provides as follows:

   Liability in relation to registrable overseas maintenance liabilities

   (1) A liability is a registrable overseas maintenance liability if it is:

   (a) a liability of a parent or step-parent of a child to pay a periodic amount for the maintenance of the child; and

   (b) an overseas maintenance liability.

   (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.

   (3) A liability is a registrable overseas maintenance liability if it is:

   (a) an agency reimbursement liability; or

   (b) a penalty, within the meaning of a provision that is prescribed by the regulations, of an international treaty that is so prescribed, that is payable under the law of a foreign country that is a party to the treaty.

   (4) A liability is a registrable overseas maintenance liability if it is an amount that is in arrears under a liability mentioned in subsection (1) or (2) or paragraph (3)(a).

   (5) This section is subject to section 19.

3. An overseas maintenance liability is defined by s 4 of the Collection Act as

   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.

4. An application for registration of registrable maintenance liability can be made to the Registrar for Registration and Collection pursuant to s 25 of the Collection Act.

5. Country B is a reciprocating jurisdiction under the Registration and Collection Regulations.

6. Section 89 of the Collection Act provides a process whereby an objection to registration can be made upon application to the Administrative Appeals Tribunal. Objection could be made on the basis of the correctness of the registration or the fact that it is not a registrable overseas maintenance liability. Nothing in the legislative framework provides that the applicant in Australia needed to be afforded procedural fairness in the other country prior to registration of the Order.

7. Regulation 36 of the Family Law Regulations gives the court power to discharge, vary, suspend an overseas liability however, Country B is not a reciprocating jurisdiction under these Regulations.

8. Regulation 36 provides:

   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.

9. Regulation 24A defines “maintenance order” as a maintenance order within the meaning of s 110 of the Family Law Act 1975 (Cth) (‘the Act”). Section 110(d) is most relevant to this matter as it stipulates:

   (d) an order or determination (however described) with respect to the maintenance of a child who has attained the age of 18 years, being an order or determination that is expressed to continue in force until a day, or for a period, specified in the order or determination, where the provision of maintenance for the child is necessary to enable the child to complete a course of study, vocational training or an apprenticeship or to continue his or her education in any other way, or because the child is mentally or physically handicapped;

10. The Country B Order is not an overseas maintenance entry liability within the definition of reg 24A but is a registered maintenance liability having been registered under s 18A of the Collections Act. Therefore pursuant to reg 36(1)(b) the Order is a registered maintenance liability.

The Applicant’s Case

1. The applicant Deputy Child Support Registrar (“DCSR”), seeks recovery of arrears of child support. It submits that the Collection Act does not provide that the applicant in Australia needed to be afforded procedural fairness in Country B prior to registration of the Order.

2. The Attorney-General’s Department, on behalf of the DCSR, will prepare submissions in writing as to the applicability of reg 36 of the Family Law Regulations 1984 (“reg.36”) in this matter.

3. The position of the DCSR is that the Court does not have jurisdiction to vary or discharge the Country B orders.

The Respondent’s Position

1. As stated, the respondent father submits that he had no notice or knowledge of the Country B maintenance court order.

2. Counsel for the father submits that if I am satisfied that the father was not accorded procedural fairness, pursuant to reg 36 the father may apply to discharge, vary or suspend the order. However, this raises the issue of the court’s power to do so as Country B is not a reciprocating jurisdiction under the Family Law Regulations.

3. Counsel for the father submits, that as a registered maintenance liability and with no stipulation of the words ‘reciprocating jurisdiction’ in reg 36, the issue of whether or not Country B is on schedule 2 or not of the Family Law Regulations becomes irrelevant.

4. At the hearing, Counsel for the Child Support Registrar said that within the meaning of s 25 of the Collection Act, and that the Republic of Country B is a reciprocating jurisdiction, an application is able to be made for the court order to be registered in Australia.

Applicant’s Case to Be Taken Over by Attorney-General’s Department

1. By email dated 14 November 2016, Mr D, senior lawyer, Australian Government Solicitor wrote to the court as follows:

   We have received instructions to act on behalf of the Secretary, Attorney-General’s Department in relation to the above proceeding, which we understand is in the docket of the Honourable Justice Bennett.

   We understand that the Child Support Registrar was granted leave to appear as amicus curiae at an earlier stage of the proceeding, including in relation to the question of the Court’s jurisdiction under the Family Law Regulations 1984 (Cth). It is our understanding that, at the directions hearing on 14 October 2016, the solicitor for the Child Support Registrar, Ms Whittemore, indicated that the question arises under legislation and regulations administer by the Attorney-General’s Department, rather than by the Department of Human Services (which administers child support legislation).

   We are instructed that, following consultation between the Department of Human Services and the Attorney General’s Department, the preference has been indicated that the role of amicus curiae be taken over by the Attorney-General’s Department. We request your confirmation whether this is acceptable to the Court, or whether we are required to make a formal application to this effect.

   We are also instructed that any written submissions are due by COB on Wednesday, 16 November 2016. Given our recent instructions, we will liaise with the applicant’s solicitors to request a short extension of time to prepare the submissions.

2. Henceforth, the applicant’s case will be conducted by the Attorney General’s Department (“AGD”).

Mediation

1. Given the complexities involved in the legal arguments made by counsel, I suggested that  the father and daughter participate in mediation. One aim of the mediation would be to reach an agreement on an amount that the father would be able to pay the daughter to support her through her studies.

2. Both agreed to mediate. It was proposed that the mediation be conducted though International Social Service (“ISS”) however, ISS were not able to undertake the mediation at this time. The mediation will now be conducted electronically through Reunite International (United Kingdom).

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Legal Associate:

Date: 16 December 2016