Tobin & Tobin
[2022] FedCFamC1F 220
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tobin & Tobin [2022] FedCFamC1F 220
File number(s): BRC 8879 of 2021 Judgment of: STRUM J Date of judgment: 28 April 2022 Catchwords: FAMILY LAW – JURISDICTION – Where the respondent mother challenges the jurisdiction of the Federal Circuit and Family Court of Australia – Where the applicant father currently resides in B City – Where the respondent and the children currently reside in Australia – Where final orders for maintenance were made in B City and the applicant seeks for those orders to be varied by the Federal Circuit and Family Court of Australia Legislation: Family Law Act 1975 (Cth)
Child Support (Registration & Collection) Act 1988 s18A
Family Law Regulations 1984 (Cth) regs 36 and 24A
Cases cited: Howarth & Howarth (No.2) [2017] FCCA 1949
Kent & Kent [2017] FamCAFC 157
Mayer & Beck [2021] FamCA 302
Obannon & Scarffe (2021) FLC 94-009; [2021] FamCAFC 33
Rogers & Rogers (2010) 249 FLR 230; [2010] FamCA 1069
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 23 March 2022 Place: Melbourne, via Microsoft Teams Counsel for the Applicant: Ms Carmody Solicitor for the Applicant: Waller Family Lawyers Counsel for the Respondent: The Respondent appeared in person ORDERS
BRC 8879 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TOBIN
Applicant
AND: MS TOBIN
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
23 MARCH 2022
THE COURT ORDERS THAT:
1.The Mother’s Response filed 9 September 2021 be dismissed, only insofar as it seeks the dismissal of the Father’s Initiating Application based on jurisdictional issues.
2.The costs of the Father arising out of the Mother’s objection to jurisdiction be reserved.
3.The matter be adjourned to a date to be fixed by the Court.
AND THE COURT NOTES THAT:
A.The remaining issues in the Father’s Initiating Application are able to be heard by a Senior Judicial Registrar.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tobin & Tobin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
This matter was adjourned by the Honourable Chief Justice to me on 8 March 2022, as an objection to jurisdiction by the respondent mother. Ultimately, during the course of the hearing, she conceded (and properly so) that this Court does have jurisdiction. However, given that she appeared in person, I think it important to record the reasons why I am of the opinion that her objection to jurisdiction was misconceived.
The applicant father and the mother separated in 2012. There are two children of the relationship, X born in 2008 and Y born in 2009, aged 14 and 12 years respectively. Final orders were made between the parties in B City on 14 January 2014, dealing with what might loosely be called parenting orders, spousal maintenance and child maintenance.
In early 2021, the mother made an application to the Child Support Agency for registration of the spousal and child maintenance orders that had been made in B City. On 13 April 2021, the Child Support Agency advised the father that it had accepted the mother's registration application. That letter from the Child Support Agency to the father was tendered on behalf of the father and marked Exhibit A. On the second page of that letter the father was advised in the following terms:
You may also make an application to an Australian Court for an order discharging, suspending, reviewing or varying the order under sub-regulation 36(2) of the Family Law Regulations 1984.
That is what the father has done. On 8 July 2021, the father filed an Initiating Application, which he amended on 26 November 2021, seeking to vary (including retrospectively) the spousal and child maintenance orders that had been made in B City and to thereby discharge arrears that had accrued thereunder. The mother filed a Response on 9 September 2021; it is the only Response that she has filed in these proceedings to date. The Response merely seeks the dismissal of the father's application. It does not, in its terms or, indeed, even in the supporting affidavit filed by her on 9 September 2021, make clear that she objected to the jurisdiction or the basis for objection.
Nevertheless, on the first return of these proceedings, on 30 November 2021, the judicial registrar before whom the matter was then listed noted that the mother did not concede that an Australian court has jurisdiction, and that she opposed the father's application. The basis of the mother's objection to jurisdiction was unclear to me, and to the father's lawyers, until I was able to elucidate it with her, as best I could, over the course of the hearing.
The only evidence that is relevant to the mother's implicit objection to jurisdiction is contained in paragraphs 7 to 9 of her affidavit filed on 9 September 2021. The mother deposes that the father permanently resides in B City and has done so since 2003, and that he visits Australia to see the children. Further, she deposes that the father is not an Australian resident for taxation purposes, and that B City remains the place in which he lives and works. She asserts that, if the B City orders are to be varied, it is the B City court that should vary those orders. She is misconceived in that regard.
Otherwise, the mother's evidence in her affidavit goes to the breaches she asserts by the father in respect of his spousal maintenance and child maintenance obligations. It seems to be, at least in part, conceded by the father that he has not paid spousal maintenance and child maintenance as ordered by the B City court and registered by the Child Support Agency. Further, her evidence relates to assertions she makes about the father's financial circumstances, and the circumstances of the children, who live with her, as well as her financial circumstances.
Despite some initial uncertainty on the part of counsel for the father and myself as to the means by which this Court has jurisdiction and power, I am ultimately satisfied that it does. Regulation 36 of the Family Law Regulations 1984 (Cth) ("the Regulations"), upon which the father relies to found his application, relevantly provides in sub-regulation (1)(b) that it applies to, amongst other things, a registered maintenance liability. That term is defined in regulation 24A of the Regulations as meaning a registerable maintenance liability under section 18A of the Child Support (Registration and Collection) Act 1988 (Cth) ("Registration and Collection Act").
Section 18A of the Registration and Collection Act provides that a registrable maintenance liability is (inter alia) a liability of a parent of a child to pay a periodic amount for the maintenance of the child or a liability of a party to a marriage to pay aperiodic amount for the maintenance of the other party to the marriage and is an overseas maintenance liability, being a spousal or child maintenance order made by a judicial authority of a reciprocating jurisdiction, which includes B City.
In the circumstances, I am satisfied that regulation 36 covers that which the father seeks to achieve. More particularly, I am satisfied that there is no issue that what has been registered by the Child Support Agency is a registered maintenance liability, both in relation to the spousal maintenance and child maintenance orders made in B City. There is also no question that the father is a person within the class of persons who can make an application under regulation 36(3), for an order discharging, suspending, reviving or varying the registered maintenance liability. Regulation 36(4) provides that the law to be applied to determination of an application is the law in force in Australia under the Family Law Act 1975 (Cth).
When I explored with the mother what was really the gravamen of her objection to jurisdiction, she took me to the heading to regulation 36, namely, "Party in Australia may apply to vary etc overseas maintenance order, agreement or liability" (emphasis added). The reference to a "party in Australia" is not to be found in anywhere in regulation 36. There is no such territorial nexus. That issue was raised, and determined by Altobelli J, in Mayer & Beck [2021] FamCA 302, to which I was referred by Counsel for the applicant father. His Honour said, at paragraph [12]:
I note that reg 36 is titled "Party in Australia may apply to vary etc overseas maintenance order, agreement or liability", but that the Applicant is not presently in Australia. In my view, this discrepancy does not disentitle the Applicant from the benefit of reg 36. Section 13 of the Acts Interpretation Act 1901 (Cth) details the material that is considered to be a part of an Act. Interestingly, while s 13(2)(d) captures "any heading to a Chapter, Part, Division or Subdivision appearing before the first section of the Act", there is no reference made within the provision to headings of sections within an Act. The Court therefore has regard only to the substance of reg 36 and I am satisfied that in these circumstances, the Applicant has standing to bring his present application under reg 36(3)(b) of the Regulations.
(Emphasis in original)
I would add that, as I have observed, nothing in the substantive provisions of regulation 36, contains any territorial requirement to the effect suggested by the heading thereto. I do not know why that heading was drafted as it is; it may need to be rectified so as not to be potentially misleading, as appears to have occurred in the present case.
Insofar as the mother seemed to suggest, at least inferentially, that this may be a case of forum non conveniens, paragraphs 7 to 9 of her affidavit are similarly of no assistance to her, as is the balance of her affidavit. The test for forum non convenience is well settled. In order for me to accede to any argument or application on the basis of forum non conveniens, I would need to be satisfied that this Court is a clearly inappropriate forum. That cannot be said to be the case here, on the evidence as I have referred to it.
In Mayer & Beck, at paragraph [15], Altobelli J said:
… The applicant submits, and the Court accepts, that the forum non conveniens doctrine does apply to the reciprocal arrangements for recognition and enforcement of foreign Court orders as contemplated by reg 36...
His Honour referred to the first instance decisions in Rogers & Rogers (2010) 249 FLR 230 and Howarth & Howarth (No.2) [2017] FCCA 1949, as well as to the decisions of the Full Court in Kent & Kent [2017] FamCAFC 157 and Obannon & Scarffe (2021) FLC 94-009. In the latter case, the Full Court stated:
100.The principles to be applied in determining forum non conveniens are well settled. They are set down by the High Court of Australia in Oceanic Sun Line Special Shipping Co Inc v Fay, as well as Voth v Manildra Flour Mills Pty Ltd as explained in the context of family law litigation in Henry.
101.Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following non-exhaustive factors (derived from Lord Goth's factors in Spiliada) as approved of in Voth and as added to by Henry (at 592-593):
a. Factors of convenience and expense, such as the location of witnesses;
b. Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
c. The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
d. Whether the other potential forum will recognise Australian orders and vice-versa and the ease of enforcement in each country;
e. Which forum may provide more effectively for a complete resolution of the matters involved in the parties' controversy;
f. The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
g. The governing law of the dispute;
h. The place of residence of the parties;
i. The availability of an alternative forum; and
j. Any legitimate juridical advantage to litigating in either jurisdiction.
Whilst the mother is a litigant in person, nevertheless, nothing to which I have been taken by her, including her evidence, would come remotely close to establishing that this Court is a clearly inappropriate forum.
The mother also argued that, because regulations 38 and 38A provide that any order that might subsequently be made by this Court would only be provisional until it is confirmed by the court in B City, it would accordingly be more appropriate for that court to deal directly to the issue. That, in my view, does not assist the mother at all. Whilst, on one view, it might have been be more appropriate for the father to have applied directly to the court in B City, where he lives, as the mother contended, the fact is that the mother and the children live in Australia and his spousal and child maintenance obligations have been registered with the Child Support Agency in this country. If one takes the mother's argument to its logical conclusion, it would render any application under regulation 36 entirely superfluous. That is an interpretation which cannot be correct, in circumstances where the Regulations anticipate such applications being made.
The father, through his counsel, initially foreshadowed an application for costs. I expressed a preliminary view that I would be reluctant to order costs against the mother in circumstances where it is common ground that the father is paying less than the amounts ordered in B City Courts and registered in this country, and without any further evidence of the parties' financial circumstances. Ultimately, the father's counsel sensibly, in my view, modified her position and sought merely a reservation of his costs, which I propose to do. The mother did not object to this course and there can be no prejudice to her by me doing so. I will, of course, only reserve the father's costs because the mother, who is self-represented, has not incurred such costs.
Lastly, I note that the mother's objection to jurisdiction was only clear from the notation to the judicial registrar's orders made on 30 November 2021. As I have indicated earlier, she did not, in her Response, flag any objection to jurisdiction. Further, in paragraphs 7 to 9 of her affidavit, there is nothing that, in my view, could reasonably be understood to be an objection to jurisdiction. At best, it was an implicit assertion of forum non conveniens which did not find favour with me, for the reasons that I have expressed. In the circumstances, there is no objection to jurisdiction on its face to dismiss, and I shall order that the mother's Response filed 9 September 2021 be dismissed, only insofar as it implicitly seeks the dismissal of the Father's Initiating Application based on jurisdictional issues. In other words, I have determined that this Court does have jurisdiction to entertain the father's application and that is no longer a live issue in these proceedings.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 28 April 2022
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