Full Family Court Overturns Order Staying Canadian Child Maintenance Liability

In the recent case of Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56 (31 March 2017) a Canadian Court made maintenance orders in 2011 and 2013 in favour of the mother (who lived in Canada) against the Australian resident father, which in 2014 were registered in Australia by the Child Support Registrar (“the CSR”) under s 13 of the Child Support (Registration and Collection) Act 1988 (Cth) (“CSRC Act”).

The Full Court of the Family Court (Thackray, Strickland & Ainslie-Wallace JJ) heard the Child Support Registrar’s application for leave as a non-party to appeal a consent order made by Judge Cole in 2015 staying those orders.

The Full Court stated that pursuant to the Canadian maintenance orders, the husband has a liability to pay child support in relation to the children. Section 4 of the CSRC Act defines an ‘overseas maintenance liability’ as a liability that arises under a maintenance order made by a judicial authority of a reciprocating jurisdiction.

As per section 4 of the CSRC Act a ‘reciprocating jurisdiction’ means a ‘foreign country or ‘a part of a foreign country’ that ‘is prescribed by the Family Law Regulations 1984 (Cth) to be a reciprocating jurisdiction’.  Canada is included in the list of reciprocating jurisdictions.  Therefore, the liabilities arising under the Canadian maintenance orders are clearly ‘overseas maintenance liabilities’.

The Canadian maintenance orders required the husband to pay child support. These orders were clearly registrable maintenance liabilities and the effect of registration was that pursuant to s 30(1) of the CSRC Act the amounts of child support payable by the husband were considered to be debts due to the Commonwealth.

Regulations 36(2) and 36(3)(b) together provide that a party in Australia who is liable to make payments under an overseas maintenance order may apply to a court having jurisdiction under the Act for an order discharging, suspending, or varying an order to which this regulation applies.

As per regulation 38(1) any order made pursuant to reg 36 is provisional only, and reg 38A provides that such an order is of no effect ‘unless it is expressed to be provisional and is confirmed by a competent court of the reciprocating jurisdiction in which the overseas maintenance order affected by the provisional order was made (reg 38A(2)).

Pursuant to s 111C(1)(a) the proper construction requires that there be ‘proceedings’ on foot ‘where the Court’s jurisdiction to hear and determine those proceedings arises under the CSRC Act. If that construction is not correct, then his Honour did not have jurisdiction to make the orders as the proceedings on foot were in effect proceedings pursuant to the Regulations, and not the CSRC Act.

The reasons of the CSR in support of this submission are as follows:

  1. The Parliament did not intend to create a power to stay the operation of the CSRC Act which fixed merely upon the happenstance of the Court in which the proceedings are being heard having a co-existent jurisdiction to decide cases under the Act;
  2. Section 111C(1) is consistent with a legislative intention that the proceedings referred to in s 111C(1)(a) must involve an exercise of jurisdiction under the CSRC.
  3. Pursuant to section 111A, a court may make an order staying or otherwise affecting the operation of the Assessment Act or this Act.

 

The Full Court agreed with the construction placed on s 111C(1)(a) by the CSR, and for the reasons set out above.

The Full Court then considered whether the Federal Circuit Court had jurisdiction to order the stays under section 15 of the Federal Circuit Court of Australia Act 1999 (Cth), or its implied power. According to the Full Court, the Federal Circuit Court does not have jurisdiction to make a final order under the Regulations. The court can make an order altering the amount payable under a child support liability but such an order only takes effect if it is confirmed by the overseas jurisdiction.

Thus, according to the Full Court, it would seem to be inconsistent with principle for the court to make, as an interim order that has the same effect, an order that it could never make as a final order.

The appellant was granted leave to appeal; the appeal was allowed and the stay orders set aside.

 

 

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