1.6.3: Overseas orders, court-registered agreements and assessments

Context

CSA can register overseas maintenance liabilities arising in a reciprocating jurisdiction for collection, in the same way that it can register Australian court orders and child support assessments.

Legislative references

Section 4, 18A, 25, 25A, 30AA, and 152 Child Support (Registration and Collection) Act 1988

Regulations 4A Child Support (Registration and Collection) Regulations 1988

Regulations 28, 28C, 28D and 30 Family Law Regulations 1984

Explanation

Registrable overseas maintenance liabilities

Registering overseas maintenance liabilities for collection

Overseas maintenance entry liabilities

Provisional overseas maintenance liabilities

Registrable overseas maintenance liabilities

CSA can register certain overseas child maintenance liabilities and spousal maintenance liabilities for collection.

The following are registrable overseas maintenance liabilities for a child (Sections 4(1), 18A and Regulation 4A Registration & Collection Act):

• A court order from a reciprocating jurisdiction requiring a person to pay a periodic amount for the maintenance of their child or step-child.
• An agreement registered by a court in a reciprocating jurisdiction requiring a person to pay a periodic amount for the maintenance of their child or step-child.
• A maintenance assessment issued in a reciprocating jurisdiction requiring a parent or step-parent to pay a periodic amount of maintenance for a child.
• An agency reimbursement liability (i.e. an amount that an overseas authority has paid to the carer for which it seeks reimbursement from the other parent).
• A penalty for late payment or incorrect estimate payable by a liable parent under New Zealand laws.
• Arrears of periodic amounts of child maintenance payable under an overseas court order, court-registered maintenance agreement, maintenance assessment or agency reimbursement liability.

The following are registrable overseas maintenance liabilities for a spouse (Sections 4(1), 18A Registration & Collection Act):

• A court order from a reciprocating jurisdiction requiring a person to pay a periodic amount for the maintenance of the person to whom they are or were married.
• An agreement registered by a court in a reciprocating jurisdiction requiring a person to pay a periodic amount for the maintenance of the person to whom they are or were married.
• A maintenance assessment issued in a reciprocating jurisdiction requiring a person to pay a periodic amount for the maintenance of the person to whom they are or were married.
• Arrears of periodic amounts of spousal maintenance payable under an overseas court order, court-registered maintenance agreement or maintenance assessment.

'Periodic amount' is discussed in chapter 3.2. See 'Overseas maintenance entry liabilities' for information about non-periodic amounts.

Registering overseas maintenance liabilities for collection

Application requirements

Either parent can apply for registration of an overseas maintenance liability.

A payee can apply:

• If the payee is a resident of Australia or a non-reciprocating jurisdiction the application can be made directly to CSA (section 25(1).
• If the payee is a resident of a reciprocating jurisdiction the application must be given to CSA by the overseas authority in their country (section 25 (1A)(c)).

A payer can apply:

• If the payer is a resident of Australia the application can be made directly to CSA, provided the payee is a resident of a reciprocating jurisdiction (section 25 (1C) & (1D)).
• If the payer is a resident of a reciprocating jurisdiction the application can be made directly to CSA or given to CSA by the overseas authority in their jurisdiction (section 25 (1C) & (1D)). The payee must be a resident of Australia (section 25C).

An overseas authority can also apply for registration of a overseas maintenance liability on behalf of a payee who is a resident of a reciprocating jurisdiction (sections 18A(3)(a) and 25(1A)(d)). This occurs when the overseas authority seeks reimbursement of maintenance been paid to the payee. This is known as an agency reimbursement liability.

Administering a registered overseas maintenance liability

CSA must register an overseas registrable maintenance liability within 90 days of receiving the payee's application for registration (section 25(2A) Registration and Collection Act).

An application can be made to CSA for registration of an existing overseas maintenance liability, including arrears payable under the liability (section 18A (4). An application can also be made to CSA for registration of arrears only.

A registered overseas maintenance liability, including an amount in arrears under such a liability, first becomes enforceable on the day on which the Registrar received the application for the liability to be registered (sections 28(d) and (e) Registration and Collection Act).

CSA can refuse to register an overseas maintenance liability if satisfied that it is inconsistent with the relevant international maintenance arrangement (section 25(2B)Registration and Collection Act).

If CSA accepts an application for a child support assessment, and both parents are residents of Australia, any previously registered overseas maintenance liability will cease to have effect, except any arrears under the liability will remain payable (section 152(2) Assessment Act).

CSA may have already registered an overseas maintenance liability for the same payer, payee and child(ren). That previous liability ceases to have effect when CSA registers a subsequent overseas maintenance liability (section 30AA(1)). Any arrears payable under the previous liability are still payable (section 30AA(2)).

CSA can register maintenance assessments raised by an overseas authority. CSA's role in these cases is limited to collecting amounts payable under the liability using its powers under the Registration and Collection Act (including court enforcement). The overseas authority continues to administer the assessment.

Overseas maintenance entry liabilities

A payee of an overseas maintenance liability that is not a liability for a person to pay a periodic amount can apply to CSA for it to be entered into the Register (section 25A). This includes lump sum spousal or child maintenance orders, and non-periodic maintenance liabilities such as insurance, dental costs etc. If CSA enters these non-periodic liabilities in the Register they become a debt due to the applicant (payee), not the Commonwealth.

An overseas entry maintenance liability can be recovered in a court of competent jurisdiction, as if the liability were a court order made under Part VII or Part VIII of the Family Law Act. The payee can start their own enforcement proceedings, or they can ask the Attorney-General's Department to initiate proceedings on their behalf (regulation 30 Family Law Regulations).

Additional terminating event for overseas maintenance liabilities

If both the payee and payer of a registered overseas maintenance liability (section 18A) cease to be resident of Australia, the liability ends from the date that both parties ceased to be resident of Australia (section 4(1)(cb), (cc) & (cd).

Provisional overseas maintenance liabilities

An overseas authority may send CSA a provisional overseas maintenance order made in a court of their jurisdiction. CSA cannot register a provisional overseas order until an Australian court confirms it. However, an Australian court cannot confirm a provisional order if an application for a child support assessment could properly be made (regulation 28(4) Family Law Regulations). If CSA is satisfied that a parent or the overseas authority could properly make an application for a child support assessment, it will return the provisional order to the sending overseas authority. CSA will advise the overseas authority that it can accept:

• a request to register a final order made overseas;
• a request to register an overseas maintenance assessment; or
• an application for a child support assessment.

CSA will refer a copy of the provisional order to the Attorney-General's Department if it is satisfied that an application for a child support assessment could not be properly made in relation to the case. The Attorney-General's Department is responsible for making an application to an Australian court to have the provisional order confirmed. The Attorney-General's Department must serve a copy of the application upon the parent in Australia (who is the respondent to the application). The respondent can oppose the application (regulation 28 Family Law Regulations). CSA can register the confirmed provisional order, including any modifications that the Australian court may make (regulation 28(b)(3), Family Law Regulations).

US Petitions

A US Petition is not an overseas registrable maintenance liability. It is a petition (or application) for a support order filed in a court of a state or territory of the United States of America. The Attorney-General's Department can make an application to an Australian court for a maintenance order in accordance with the terms set out in a US Petition (regulation 28C Family Law Regulations). However, a court in Australia cannot make an order on a US Petition if the payer, payee or an overseas maintenance authority could make an application for a child support assessment (regulation 28D(3) Family Law Regulations). If the Attorney-General's Department receives a US Petition for parties who appear to be eligible for a child support assessment, it will refer the matter to CSA. CSA will advise the overseas authority that it can accept:

• a request to register a final order made overseas;
• a request to register an overseas maintenance assessment; or
• an application for a child support assessment.

---

Version 1.4

Issued 27 July 2007

Feedback

<<< Previous | Next >>>