Effective until 30 June 2008
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| CSA's previous online law & policy guide Effective until 30 June 2008 |
1.6.4: Administering overseas maintenance liabilitiesContext Once CSA has registered an overseas maintenance liability for collection, it must administer the liability in the same way that it does for Australian child support assessments and orders. In most ways, CSA administers these cases in the same way as Australian Stage 1 liabilities, however there are some important differences. Legislative references Section 18A, 30AA, 37, 37B, 81, 86, 90 Child Support (Registration and Collection) Act 1988 Regulation 18 Child Support (Registration and Collection) Regulations 1988 Regulations 32, 36, 38 and 38A Family Law Regulations 1984 Explanation Objection rights under the Registration and Collection Act Application for a low-income non-enforcement period Rule to avoid dual liabilities Varying an overseas maintenance liability CSA must vary the register to give effect to any changes to the liability, in the same way that it does for domestic cases (section 37). A payer of an overseas registrable maintenance liability can ask CSA to credit non-agency payments, except prescribed non-agency payments (S71C(6)), in the same way as a payer in a domestic case (See chapter 5.3). However, non-agency payments are not available to a payer of an agency reimbursement liability (sections 71(3) and 71A(1A)). This includes a New Zealand assessment. New Zealand cannot credit non-agency payments against their liability. Objection rights under the Registration and Collection Act and External review applications to the SSAT
A payer and payee in an overseas case (ie, a registrable maintenance liability under Section 18A) have the same objection and review rights as a payer and payee in a domestic case. The only difference is that a person who is a resident of a reciprocating jurisdiction has 90 days (instead of 28 days) to lodge their objection, respond to the other parent's objection or apply for a review of an objection decision to the Social Security Appeals Tribunal (SSAT) (Sections 81(3), 86(2A) and S90(2)). (See chapter 4.1 & 4.2) Application for a low-income non-enforcement period An Australian payer of an overseas child maintenance liability arising under a maintenance order made by, or a maintenance agreement registered by, a judicial authority of a reciprocating jurisdiction can apply for a low-income non-enforcement period (section 37B(2)). A payer of a maintenance assessment issued by a reciprocating jurisdiction or any overseas registered spousal liabilities cannot apply for a low-income non enforcement period. (See chapter 3.4) Rule to avoid dual liabilities If a registrable maintenance liability is registered and any time after that registration a subsequent liability is registered, the first liability ceases from when the subsequent liability is registered. This does not affect the collection of arrears, if any, for the first liability registered (section 30AA). Varying an overseas maintenance liability CSA cannot vary an overseas maintenance order or assessment. The following section explains what a parent can do to vary their overseas liability. Applying to an Australian court Applying for a child support assessment or a maintenance assessment New Zealand assessment ends when payee becomes habitually resident in Australia Applying to an Australian court Either parent can apply to an Australian court exercising Family Law jurisdiction for an order varying, discharging, suspending or reviving (regulation 36 Family Law Act Regulations):
The Secretary of the Attorney-General's Department can also apply on behalf of a parent. The court will apply the Family Law Act 1975 when dealing with the parent's application. If the court makes an order that varies the original order it will be a final order (regulation 38(2) Family Law Regulations). However, the Australian variation order is provisional if the original order was made in one of the following reciprocating jurisdictions (regulation 38(1) Family Law Regulations): Brunei, Canadian Provinces and Territories mentioned in
Schedule 2, Territory of Christmas Island, Territory of Cocos (Keeling)
Islands, Cook Islands, Cyprus, Fiji, Gibraltar, Hong Kong, India, Republic of
Ireland, Kenya, Malawi, Malaysia, Malta, Nauru, New Zealand, Papua New Guinea,
Sierra Leone, Singapore, South Africa, Sri Lanka, Tanzania, Trinidad and
Tobago, United Kingdom, including the Channel Islands mentioned in Schedule 2.
A provisional order has no effect unless and until a court in the relevant reciprocating jurisdiction confirms it. If the overseas court confirms the provisional order (makes a final order) with or without modification, that final order has effect in Australia (regulation 38A(6) Family Law Regulations). CSA will vary the register entry to give effect to a final court order, or a confirmed provisional order. Parents can apply to a court in the country where the overseas parent resides for variation of an overseas order. Where the application is made directly to a court overseas, the applicant parent may apply to CSA for assistance in transmitting the application for variation (regulation 18 Registration and Collection Regulations). A parent who has an original order made in the United States of America (USA) can seek a variation to their order in an Australian court, and CSA can give effect to that variation as a final order. However, the USA jurisdiction that made the original order may not recognise the Australian variation and if so, arrears will continue to accrue under the original order in the USA. For this reason, it may be preferable for a parent with an order from the USA to seek a variation in the jurisdiction that made the original order. Applying for a child support assessment or a maintenance assessment A parent who is eligible to apply for a child support assessment in Australia, or a maintenance assessment in a reciprocating jurisdiction can effectively vary their overseas court-ordered maintenance liability by applying for that assessment. An overseas court order ceases to have effect in Australia when CSA registers a child support assessment or an overseas maintenance assessment (section 30AA). The overseas court order would no longer be enforceable in Australia (except for any arrears for the period before the assessment). The order may remain enforceable in the issuing jurisdiction, However, the liable parent can make an application to a court in the issuing jurisdiction to have the order discharged and present evidence of payments made in satisfaction of the child support assessment. An application for a child support assessment may be refused if an overseas liability is already registered for the same case and one of the parties is a resident of a reciprocating jurisdiction (section 30B Assessment Act). CSA will exercise this discretion when the liability that is already registered was made in the jurisdiction in which the payee resides and it would be unreasonable to allow a child support assessment to override that liability. New Zealand assessment ends when payee becomes habitually resident in Australia Issued 27 July 2007 |
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