Pabiyanov and Pabiyanova & Anor

In *Pabiyanov and Pabiyanova & Anor* [2018] FamCA 168, Justice Bennett of the Family Court of Australia considered an application by a father seeking to discharge a maintenance order made in Country B, which had been registered in Australia as an overseas registrable maintenance liability. The father sought to set aside the registration of the order, arguing that it was no longer enforceable in Australia.

The central legal issue before the Court was the validity and enforceability of the Country B order in Australia, specifically in light of regulation 36 of the *Family Law Regulations 1984* (Cth). The Court was required to determine whether regulation 36 provided a valid source of power for the registration and enforcement of maintenance orders from Country B, and if not, how the matter should proceed. This involved an examination of Australia's obligations under the 1956 Convention on the Recovery Abroad of Maintenance, particularly Articles 6 and 8, and the principles of international comity.

Justice Bennett reasoned that the power to make regulation 36 was not clearly established under the relevant legislative provisions, and therefore, the regulation could not be relied upon to give effect to the Country B order. The Court found that while Australia had obligations under the Convention, the specific regulation in question lacked a sufficient source of power to operate as intended in relation to Country B. Consequently, the Court read down regulation 36 to the extent that it purported to apply to the Country B order.

The application by the father to discharge the maintenance order was dismissed. However, the Court reserved liberty to apply to the Child Support Registrar and the respondent daughter concerning the enforcement of the debt arising from the registration of the Country B order. The parties were also given liberty to apply for costs within 30 days, and otherwise, all extant applications were dismissed.