Pabiyanov and Pabiyanova & Anor

[2018] FamCA 168

FAMILY COURT OF AUSTRALIA

PABIYANOV & PABIYANOVA AND ANOR

[2018] FamCA 168

FAMILY LAW – ADULT CHILD MAINTENANCE – overseas registrable maintenance liability – application to discharge maintenance order made in Country B – regulation 36 of the Family Law Regulations 1984 – source of power to make regulations – 1956 Convention on the Recovery Abroad of Maintenance – construction of Article 6 and Article 8 – international comity – choice of law provision – Australia’s obligations – benefit or advantage to Australia – necessary or convenient to make regulation – give effect to international agreement – general power to make regulations – no source of power to make regulation – regulation 36 read down in respect of Country B Order

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Legislation Act 2003 (Cth)
Child Support (Registration and Collection) Regulations 1988 (Cth)
Family Law Regulations 1984
Family Law Amendment Regulations 2000 (No. 2)
Shanahan v Scott (1957) 96 CLR 245

APPLICANT: Mr Pabiyanov

RESPONDENT: Ms Pabiyanova

AMICUS CURIAE: Secretary, Attorney-General’s Department

FILE NUMBER: MLC 7615 of 2016

DATE DELIVERED: 14 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 27 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Smith

SOLICITOR FOR THE APPLICANT: Blackwood Family Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT: Mr Tran

SOLICITOR FOR THE SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT: Australian Government Solicitors

Orders

IT IS ORDERED THAT:

1.      The applicant father’s application filed 12 August 2016 is dismissed.

2.      I reserve to the Child Support Registrar and the respondent daughter liberty to apply in relation to enforcement of the debt due to the Commonwealth arising out of the registration of the Order made 10 December 2015 in the Court in City E in of Country B.

3.      Any party wishing to make an application for costs may do so by filing and serving a submission in writing, of not more than four pages in length, within 30 days. 

4.      Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

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 & Pabiyonova and Anor 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

Secretary, Attorney-General’s Department
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 the Country B (“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 was first listed before by Judge Jones of the Federal Circuit Court in Melbourne on 28 September 2016; on that day, his Honour transferred the proceedings to the Family Court of Australia.

2. The matter was listed before me on 14 October 2016 as a first day of final hearing. On that date, the Child Support Registrar appeared as amicus curiae and I adjourned the matter further to 27 January 2017 for one day. I made orders for the preparation of written submissions on a point of law. During the adjourned period, the father and daughter agreed to participate in mediation. That was conducted by F Group, a United Kingdom based charity which provides an international parent support network.  The mediation was unsuccessful and I am now required to decide the matter.

3. Prior to the January hearing, the Court received an email from Mr D, an Australian Government Solicitor, indicating that the Attorney-General’s Department, rather than the Child Support Registrar would appear as amicus curiae at the hearing, if accepted by the court. At the January hearing, the respondent daughter appeared electronically but made no submissions. The applicant father made submissions through his counsel, Mr Smith, and Mr Tran of counsel made submissions on behalf of the Secretary, Attorney-General’s Department.

Background

1. The father is 49 years old. He separated from his first wife (the respondent 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 medical professional. 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 in City H, 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 City E, Country B (“the Country B Order”). A copy of the Order is found on the court file.

4. The Country B Order was made retrospectively and provides for $1200 AUD per month at the prevailing exchange rate to be calculated from 21 August 2015, payable no later than the 5^th of each month. On or about 11 July 2016, the Country B Orders were registered on the Child Support Register with effect from 23 May 2016. Under the Child Support (Registration and Collection) Act 1988 (Cth) (“Collection Act”), the liability became a debt owed to the Commonwealth of Australia, enforceable by the Child Support Registrar.

5. The applicant father asserts that the Country B 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 Country B Order at which time he had not spoken to his daughter for the 10 preceding years.

6. The respondent daughter provided an unsworn affidavit alleging the father did have notice of the proceedings. She said, at paragraphs [7]-[10]:

   7. Regarding the proceedings that referred to the passing of [a previous order varying the applicant’s liability in relation to child support for the respondent daughter and her brother] by the [Court City E, Country B], during the entire proceeding and until it became effective he was sent a copy of the indictment, the verdict, the appeal in the Court of Appeal [City J] several addresses that were submitted, including the address provided through the Information Service and Solution Agency “Australia Wide Investigations”. However, all of the letters were not successfully delivered and were returned with an indication that there is no such person living there. In the statement of the Court can be seen that the documents were also sent to the address K Street, Suburb L VIC .., which according to the letter of CSA dated 11.06.2015 addressed to [the applicant], is his current address.

   …

   10. The … Court [City E] also faced the problem of regular delivery of letters/documents sent to [the applicant] when passing [the Country B Order]. For determination of the address and stay of [the applicant], information was required through the Ministry of Internal Affairs of the [Country B] (MOI), in order to locate him, but their report showed he was unavailable. Acting upon the regulations of the Court, the Centre for Social Affairs appointed a guardian, lawyer, to represent his interests.

   Due to the above stated, the applicant’s note that he was not properly informed about the court proceeding in [Country B] is groundless.

7. The applicant father seeks a discharge of the Country B Order from the date the Order was made, that all arears payable under the Country B Order be discharged, and that the respondent daughter pay his costs. The respondent daughter seeks a dismissal of the applicant father’s application, payment of arrears that accrued as a result of the Country B Orders and that the applicant father pay her costs.

8. The question before me is not whether the applicant father had notice or was accorded procedural fairness in relation to the proceedings in Country B. That is because the applicant father sought to discharge the Country B Orders pursuant to Regulation 36 of the Family Law Regulations 1984 (“the Regulations”) and the amicus curiae asserts that the Court had no power to make such an order. The submissions of the applicant and the amicus curiae were confined to that point of law.

The Legislative Context

1. It is common ground that the Country B Order is a ‘registrable overseas maintenance liability’ within the meaning of s 18A of the Collection Act. That is so because the Country B Order is a ‘overseas maintenance liability’ as defined in s 4 of the Collection Act, being a liability arising under a maintenance order by a judicial authority of a reciprocating jurisdiction. Under regulation 3A of the Child Support (Registration and Collection) Regulations 1988 (Cth) (“Collection Regulations”), Country B is a reciprocating jurisdiction because it is listed in Schedule 2 as such. The Country B Order was registered under section 25 of the Collection Act on 8 July 2016 and pursuant to section 30 of the Collection Act, the amounts payable under the Country B orders became debts due to the Commonwealth and their recovery could be enforced by the Child Support Registrar pursuant to section 113 of the Collection Act. 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.

2. I note that 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.

3. As I referred to above, the applicant father seeks orders pursuant to regulation 36 of the Regulations. That regulation 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.

   (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;

   (b) the person against whom the order was made or the person who is liable to make payments because of the agreement or 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.

4. Regulation 36 is in Part III, Division 2 of the Regulations, headed “Overseas Orders” and “maintenance”, respectively. Regulation 24A defines, for the purposes of Division 2, that:

   “maintenance order” means:

   (a)  a maintenance order within the meaning of section 110 of the Act; and

   (b)  an order made under section 67D or 67E of the Act.

   “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.

   “reciprocating jurisdiction” has the same meaning as in section 110 of the Act.

   “registered maintenance liability” means a registrable maintenance liability under section 18A of the Child Support (Registration and Collection) Act 1988.

5. Mr Tran submitted that, when read in conjunction with the regulation making powers under the Act, regulations 24A and 36 cannot validly apply to the Country B Order. He asserts that none of the possible sources legislative power in the Act could support the scope that regulation 36 purports to encompass. Therefore, he contends that regulation 36 should be read down in accordance with section 13(1)(c) of the Legislation Act 2003 (Cth).

6. The applicant’s argues that regulation 36 does validly apply to the Country B Order and that the Court is vested with jurisdiction, and empowered to discharge the Country B Order. He contends that as it relates to the Country B Order, regulation 36 is supported by three sources of power, that being sections 111, 124A and 125 of the Act. In support of his contention, the applicant father relies on the explanatory memorandum to the Family Law Amendment Regulations 2000 (No.2) (“the Amending Regulations”) which replaced the regulation 36 as it was previously prescribed and prescribed it in its current form. That memorandum starts by setting out sections 125, 110 111 and 124A of the Act before explaining the purpose of the regulations and what they provide. Presumably those sections are set out because they provide the powers relied on to make the regulations.

7. The applicant father accepts that section 110 does not assist him and relies instead on the other three sections. For completeness, I mention that in broad terms, section 110(2) provides that the regulations may make provision for and in relation to maintenance orders made in, or to be enforced in, a reciprocating jurisdiction or a jurisdiction with restricted reciprocity. The terms ‘maintenance orders’, ‘jurisdiction with restricted reciprocity’ and ‘reciprocating jurisdiction are defined in section 110(1), and relevantly, by virtue of the last definition, which requires reference to regulation 25 and schedule 2 of the regulations, Country B is not a reciprocating jurisdiction. The applicant father accepts, therefore, that section 110 does not provide a source of power for regulation 36 that would permit this Court to make orders in respect of maintenance liabilities arising from Country B.

8. It is convenient to deal with each of the other sections sequentially.

Potential sources of power in the Act

1. The principles regarding regulation making powers are well-settled and they are not in dispute. In the High Court decision of Shanahan v Scott (1957) 96 CLR 245 at 250, Dixon CJ, Williams, Webb and Fullagar JJ summarised them:

   The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.

Section 111 – Convention on Recovery Abroad of Maintenance

1. Section 111 provides that:

   The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Recovery Abroad of Maintenance signed at New York on 20 June 1956 but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.

2. The Convention mentioned in the section (“the 1956 Convention”) is in effect in both Australia and Country B. Schedule 3 of the Regulations is the Convention on the Recovery Abroad of Maintenance (“the1956 Convention”) and Schedule 4 sets out the other Convention Countries, including Country B.

3. The explanatory memorandum to the Amending Regulations which created regulation 36 in its current form, states that amongst other things, the Amending Regulations amend the Regulations “dealing with the implementation of international maintenance agreements or arrangements to which Australia is already a party, including [the 1956 Convention]”.

4. The applicant father relies, in particular, on Articles 6(3) and 8 of the 1956 Convention and contends that regulation 36, if not necessary, is convenient, to giving effect to the 1956 Convention in Australia.  I set out Articles 6 and 8 below.

   Article 6

   FUNCTIONS OF THE RECEIVING AGENCY

   1.The Receiving Agency shall, subject always to the authority given by the claimant, take, on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.

   2.The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reasons and return the documents.

   3.Notwithstanding anything in this Convention, the law applicable in the determination of all questions arising in any such action or proceedings shall be the law of the State of the respondent, including its private international law.

   ...

   Article 8

   VARIATION OF ORDERS

   The provisions of this Convention apply also to applications for the variation of maintenance orders.

5. The applicant father and the amicus curiae agreed, in the course of oral submissions, that in accordance with Article 1 of the 1956 Convention, the claimant, is the person claiming to be entitled to maintenance (that is the respondent daughter in this case) and the respondent is the person against whom the entitlement is claimed (that is the applicant father in this case). It was also not disputed that the Child Support Agency is designated as both the Transmitting Agency and the Receiving Agency in Australia.

6. The applicant father argues that in Australia, Article 6(1) is given effect through an administrative process; namely, the overseas maintenance liability is registered and collected by the Child Support Agency in accordance with the Collection Act. He contends that the reference in 6(3) to “questions arising out of such action or proceedings” is the administrative action taken by the Child Support Agency, and the law to be applied in the “determination of all questions” arising out of that action, is the law of Australia (as the respondent is the applicant father who lives in this jurisdiction). He says Article 8, read in combination with article 6(3), shows that the Convention contemplates that the law of the State of the respondent (in this case, Australia), is to be applied in relation to applications for the variation of maintenance orders.

7. The applicant father’s submission is that regulation 36 of the Regulations, which provides for the variation or discharge of maintenance as contemplated in the 1956 Convention, falls within the ambit of the regulation making power under section 111. Crucially, the applicant father submits, section 111 does not require some reference to a reciprocating jurisdiction, only that the regulation is necessary or convenient to enable the performance of obligations or to obtain for Australia any advantage or benefit under the 1956 Convention. His submission was that regulation 36 is a convenient regulation because it provides, in addition to the administrative process set out by the Collection Act, a judicial process whereby an aggrieved party can come to the Court and seek a variation.

8. Mr Tran’s submission is that the applicant father’s construction of Articles 6(3) and 8 are misconceived.

1. Mr Tran’s position is that Article 6 is imported into Australian law by regulations 50 and 50A of the Regulations, and those provisions support the construction he contends for. Those provisions clearly have the 1956 Convention in contemplation because they are in Part IV of the Regulations which is headed “Convention on the recovery abroad of maintenance”. Regulation 40, which is the first provision of that part states that “Convention” means the 1956 Convention and that the purpose of Part IV is to give effect to section 111 of the Act. The relevant parts of regulations 50 and 50A state:

   50 Applications by persons in convention countries for recovery of maintenance under Commonwealth, State or Territory law

   (1) This regulation applies if:

   (a) the Secretary receives from a Transmitting Agency in a convention country an application for:

   (i) recovery of maintenance that a person claims is required, under a law of the Commonwealth or of a State or Territory, to be paid by another person…

   (2) The Secretary may do anything required to be done on behalf of the claimant by a Receiving Agency under the Convention to recover the maintenance.

   …

   50A Proceedings on behalf of persons in convention countries for recovery of maintenance

   (1) This regulation applies to proceedings under this Part in a court on behalf of a claimant.

   (2) The court must proceed as if the claimant were before the court.

   …

   (5) The Secretary may do anything that is required or authorised to be done by an applicant in proceedings in that court in relation to maintenance.

2. Regulation 36 is not in Part IV of the Regulations, but that does not mean it cannot be supported by section 111. Mr Tran emphasised, in oral submissions, that to understand the regulations which may be made in reliance upon section 111, it is first necessary to identify the obligations imposed on Australia, and the advantages or benefits that Australia enjoys under the 1956 Convention before determining what is necessary or convenient to the performance of the obligations or the enjoyment of the advantages or benefits.

3. In respect of Article 6(1), Mr Tran submitted that article imposes an obligation on Australia to have its receiving agency, the Child Support Agency, take, on behalf of the claimant, all appropriate steps for the recovery of maintenance. He contends that what is contemplated in Article 6 is action or proceedings for the recovery of maintenance, such as an action for debt or some such equivalent. He says that Article 6(3) is a choice of law provision which is constrained by Article 6(1) and is not to be applied to the whole of the 1956 Convention. He contends that where Article 6(3) refers to “any such action or proceedings”, what that contemplates is an action for the recovery of maintenance taken by the Child Support Agency, on behalf of a claimant, and against a respondent. That is the opposite of what the applicant father contends, which is a proceeding where the respondent takes action against the Child Support Agency.

4. Mr Tran submitted that the applicant father’s position is untenable when one looks at the context of the whole of the 1956 Convention. I agree. Starting with the Preamble, that reads:

   Considering the urgency of solving the humanitarian problem resulting from the situation of persons in need dependent for their maintenance on persons abroad,

   Considering that the prosecution or enforcement abroad of claims for maintenance gives rise to serious legal and practical difficulties, and

   Determined to provide a means to solve such problems and to overcome such difficulties,

   The Contracting Parties have agreed as follows: …

   (Italics original)

   Mr Tran submitted that the mischief to which the Convention is directed to overcome is difficulties in prosecuting and enforcing claims for maintenance and what the Convention sought to do was create facilitative mechanisms to enable people who were entitled to maintenance to enforce their claims overseas. That is also made apparent when one looks at Article 1(1) which reads:

   The purpose of this convention is to facilitate the recovery of maintenance to which a…claimant…claims to be entitled from…[a] respondent…This purpose shall be effected through the offices of agencies which will hereinafter be referred to as Transmitting and Receiving Agencies.

5. Mr Tran also took me through some of the other Articles in the Convention that direct themselves to this purpose. As those are not relied on by the applicant father, I only mention them briefly, as they demonstrate context for Articles 6 and 8 and tend to support Mr Tran’s submission.

   ·    Article 2 imposes an obligation to designate a judicial or administrative authority as Transmitting Agencies and a public or private body as a Receiving Agency;

   ·    Article 3 permits a claimant to apply to a Transmitting Agency for the recovery of maintenance;

   ·    Article 4 requires a Transmitting Agency to transmit documents to a Receiving Agency if a claimant has applied for the recovery of maintenance;

   ·    Article 5 requires a Transmitting Agency to transmit judgments, judicial acts and records of proceedings to a Receiving Agency relating to an application for maintenance (as described in Article 4).

6. The Preamble and Article 1 indeed suggest that the 1956 Convention was intended to benefit the people who claim they are entitled to maintenance, and not the people against whom maintenance is claimed. Having read the whole of the 1956 Convention, it is clear to me that the Convention creates a facilitative process to enforce orders for maintenance that are already made in the state of the ‘claimant’. To read Articles 6 and 8 of the 1956 Convention as providing a right to for the ‘respondent’ to seek a variation of maintenance orders already made overseas, in their own state, would not only be contrary to the principle of international comity, it would appear to be contrary to the very object of the 1956 Convention and would increase, rather than relieve the burden on the ‘claimant’ trying to enforce an entitlement they have to maintenance.

7. Mr Tran pointed out the construction of Article 6 for which he contends does not exclude the respondent (or the payer of maintenance) from seeking to vary or discharge the maintenance liability. Rather, his view is that through Article 8, upon which the applicant father relies, the respondent can seek a variation of the maintenance liability. However, Mr Tran contends that when read in the context of the rest of the Convention, that merely permits the respondent (the applicant father) to ask the Receiving Agency (the Child Support Agency) to send documents to the authorities in the State of the claimant (Country B) to determine if his maintenance liability should be amended. His submission is that Regulation 18(1) of the Collection Regulations gives effect to Article 8. That states:

   If, under a law of a reciprocating jurisdiction, a person claims to be entitled to variation of a registered maintenance liability of a kind mentioned in section 18A of the Act, the person may apply to the Registrar to have a claim for variation transmitted to an overseas authority of the reciprocating jurisdiction.

8. That appears to me, to be correct and it would accord with international comity.[1]

   [1] During his oral submissions, I asked the amicus curiae what problems that could create where, the Child Support Registrar under Article 6 must take steps to recover the maintenance liability from the respondent on the one hand, and then on the other hand, under Article 8 assist the same respondent in seeking a variation of the maintenance liability the Child Support Registrar is required to enforce. Unfortunately, the amicus curiae could not tell me if the same person might officer would be responsible for handling both enforcement and an application for variation or if different officers would be made available.

9. I accept the submission that Article 6(3) must be read as being constrained by Article 6(1) and not having application to Article 8. That is so because, in my view Article 6(3) creates, not a general choice of law provision, but an exception to what is otherwise contemplated by the 1956 Convention. Why that is so is more easily understood if one traces through the process through which a claimant can enforce their entitlement to maintenance through the 1956 Convention.

10. That process begins with Article 3(1) which permits a claimant to make an application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent. Presumably, that is, and has been in this case, determined in accordance with the law in the state of the claimant, that is, Country B. The “order…obtained by the claimant for payment of maintenance” is then transmitted to the Receiving Agency under Articles 4 and 5. The Receiving Agency, armed with those orders, then performs its functions under Article 6. That is, “subject always to the authority given by the claimant, [to] take, on behalf of the claimant, all appropriate steps for the recovery of maintenance, including…the institution and prosecution of an action for maintenance”. In that context, it becomes clear Mr Tran’s construction of Article 6(1) is correct, that article refers to the action taken on behalf of the claimant to recover maintenance. That is what “any such action or proceedings” refers to in Article 6(3) and those questions are determined by the laws of the State of the respondent where the recovery of the maintenance occurs. I accept Mr Tran’s submissions that those provisions were implemented into Australian law by Part IV of the Regulations.

11. When the 1956 Convention is read in its entirety, it is clear that that regulation 36 cannot be supported by section 111 of the Act. What regulation 36 purports to do is give a person against whom an overseas maintenance order is made a right to apply to a court to discharge or vary the overseas maintenance order. A right of that kind is not contemplated by the 1956 Convention so neither an obligation taken on by Australia, nor an advantage or benefit to Australia is gained through the making of that regulation. It follows that section 111 of the Act cannot empower regulation 36 of the Regulations.

12. I note briefly that there is another Convention about maintenance to which Australia is a party, namely, the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligation (“the 1973 Convention”). Section 111A of the Act empowers regulations with respect to that Convention but that section was not relied on by the applicant father, presumably, because Country B is not a signatory to that Convention. Mr Tran submitted that regulation 36 is not empowered by section 111A either because that Convention does not touch upon the subject matter prescribed by regulation 36. As I was not asked to determine the issue, I make no further comment about it.

Section 124A – Regulations in relation to overseas-related maintenance obligations etc.

1. The applicant father also relies on section 124A(1)(a) of the Act as a source of power for regulation 36. That states:

   (1)  The regulations may make provision for, and in relation to, the following matters:

   (a)  giving effect to an international agreement that relates to maintenance obligations arising from family relationship, parentage or marriage; …

   Section 124A(4) defines international agreement as an agreement whose parties are Australia and a foreign country or Australia and 2 or more foreign countries.

2. The applicant father submits that section 124A(1)(a) provides a wider scope for making regulations than section 111 because it provides that regulations may “make provision for, and in relation to…giving effect to an international agreement”, not just that which is “necessary or convenient”. The applicant father’s argument is that even if the making of regulation 36 is not necessary or convenient under the 1956 Convention, it is a regulation made ‘in relation to’ that Convention and falls within the ambit of this power. I cannot see how that argument can assist the applicant father as I have found that the right that regulation 36 purports to confer on the person against whom an overseas maintenance order, is simply not contemplated by the 1956 Convention at all. It is not enough that the subject matter of the 1956 Convention is maintenance recovery abroad, there must be some nexus between what the regulation does and what one or more articles in the Convention seeks to achieve. Regulation 36 does not meet that test.

3. I note that the neither the applicant father nor Mr Tran identified any other international agreement which could be relevant for the purposes of regulation 36.

Section 125 – The general power to make regulations

1. Section 125(1) provides:

   The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular: …

2. The applicant father does not rely on any of the subsections of section 125(1), rather he relies on the preceding words that are extracted above. Both the applicant father and Mr Tran submitted that it was critical that, to be empowered by section 125(1), regulation 36 had to be a matter “required or permitted by this Act…”. Both Mr Tran and the applicant father that “this Act” meant the Family Law Act but disagreed about the relationship regulation 36 has to it. Mr Tran submitted that there is nothing in the Family Law Act which relates to the subject matter of regulation 36, that is, the discharge or variation of overseas liabilities. He submits that those matters are the subject of the Collection Act. The applicant father’s position is that regulation 36 does not relate to a child support obligation pursuant to the child support scheme, rather it relates to adult child maintenance, which puts it in the jurisdiction of the Family Law Act.

3. Clearly, regulation 36 relates to both. It is accepted in this case, one relating to adult child maintenance, that regulation 36 purports to apply to it because it is a ‘registered maintenance liability’. That is so because Regulation 24A defines a ‘registered maintenance liability’ as a registrable maintenance liability under section 18A of the Collection Act. Section 18A(1)(a) of the Collection Act provides that a liability is a registrable maintenance liability if it is a liability of a parent or step-parent of a child to pay a periodic amount for the maintenance of the child. Section 4 of the Collection act defines “maintenance” as including child support. Accepting then that regulation 36 does include ‘adult child maintenance’, I still cannot see how that assists the applicant father. The jurisdiction and powers of the court in relation to ‘child maintenance’ whether adult or otherwise is set out in Division 7 of Part VII of the Act. The applicant father did not make submissions as to what part of that division “required or permitted” the making of regulation 36, nor did he say how the regulation would be “necessary or convenient” to giving effect to that division.

4. Regulation 36 does not carry into effect what is enacted in the statute itself nor cover something that is incidental to the execution of its specific provisions. As Mr Tran submitted, what regulation 36 purports to do is establish a standalone regime for making an application to discharge or vary maintenance liabilities. Section 125 cannot support that regulation.

Other Sources of Power

1. Two other points were raised that might assist the applicant father. First, the applicant father says, and he acknowledges that this is his weakest point, that since the Country B Order is a registered maintenance liability as defined in regulation 24A (that is, a registrable maintenance liability under section 18A of the Collection Act), and regulation 36 applies to a registered maintenance liability, by implication of section 24A, Country B has been imported into the regulation. As Mr Tran submitted, that is “putting the stream above the source”. Just because regulation 36 purports to encompass all registrable maintenance liabilities (under section 18A of the Collection Act), does not mean it validly does so. I do not accept the submission of the applicant father.

2. The second point was one I raised in the course of discussions with Counsel for the applicant father. I asked if it was possible that regulation 36 was empowered, not by a statutory head of power, but by some other power, such as the foreign affairs power in the Constitution. Neither Counsel had considered that but the applicant father conceded that for regulation 36 to be empowered by the foreign affairs power, there would first need to be a relationship between regulation 36 and the 1956 Convention. As I have found that is not the case, that source of power, if it could be relied on, does not apply here.

Conclusion

1. Mr Tran made a brief submission that regulation 36, in its operation through regulation 36(1)(b), might be invalid but then said that wasn’t a matter which the Court needed to determine. As that wasn’t an issue that was raised before me, I will say nothing further on it.

2. For the reasons above, the applicant father’s application is dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Legal Associate:

Date: 14 March 2018