1.6.5: International agreements and conventions

Context

Australia is a party to a number of international agreements and conventions about international maintenance obligations.

Legislative references

Section 111 of the Family Law Act 1975

Regulations 40-56 and 84, schedules 3 and 14 Family Law Regulations 1984

Explanation

Australia and New Zealand agreement

Hague convention on the recognition and enforcement of decisions relating to maintenance obligations

Agreement between Australia and the United States of America

United Nations convention on the recovery abroad of maintenance (UNCRAM)

Australia and New Zealand agreement

The Australian and New Zealand governments entered into an agreement to facilitate the collection of liabilities under administrative assessments of child support from 1 July 2000. Under the agreement, the New Zealand Inland Revenue Child Support and CSA can collect child support liabilities assessed by the other authority.

The agreement limits the jurisdiction of the 2 contracting states (i.e. Australia and New Zealand). The contracting state where the payee is habitually resident will issue and administer the assessment, and the other contracting state where the payer resides will be responsible for collection. The agreement provides that a child support assessment made in one contracting state will end from the date that contracting state receives written notice that the payee is habitually resident in the other contracting state. The notice can be from the payer, payee or the other contracting state.

The full text of the agreement appears at schedule 1 of the Child Support (Registration and Collection) (Overseas-related maintenance obligations) Regulations.

Habitual residence

Habitual residence is a term used in many international instruments and is used specifically in the Australia and New Zealand agreement to define each country's jurisdiction. It is intended to be a simple non-technical term, applied to the facts of each case. A person's country of habitual residence is the country in which a person usually lives. 'Residence' means more than presence, as it refers to a place where a person resides or lives for a settled period. 'Habitual' indicates that something more than occasional or short-term residence is required, but continuous presence is not required. A person who is present in a country as a tourist or in transit is not habitually resident in that country.

Examples

Hague Convention on the Recognition and Enforcement of Decisions

On 1 February 2002 Australia became a contracting state to the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973 (Convention #23). The other signatories to the Hague Convention are mainly European countries that Australia previously had no reciprocal arrangements with and relied on applications to be sent under the United Nations Convention (see below). The convention applies to both spousal and child support obligations. It has the effect of establishing bilateral reciprocal agreements with other contracting states to recognise and enforce maintenance decisions made by judicial or administrative authorities in convention countries.

Like the New Zealand agreement, the Hague Convention provides for the recognition of administrative assessments (rather than just court orders or court registered agreements). The convention provides for the relatively simple and speedy enforcement of existing Australian liabilities by overseas courts and administrative authorities. However, a contracting state will only recognise a decision of an administrative authority such as CSA if the laws of that state support that recognition.

The Hague Convention PDF (46k)

Agreement between Australia and the United States of America

The Agreement between the Government of Australia and the Government of the United States of America for the Enforcement of Maintenance (Support) Obligations came into force on 12 December 2002. It replaces the former non-treaty arrangements between Australia and some individual states of the USA.

The agreement:

• deals with the enforcement of court orders and administrative assessments;
• provides for a liability to be created in and varied in the country in which the payee is resident except where the liable parent has had no or little connection with Australia. In these cases the individual State where the liable parent resides would claim personal jurisdiction where a new liability is sent to them and the payee in Australia would have to petition the USA requesting a liability be established in the USA. Where a US liability is registered in Australia and the payee still lives in the State where the liability was initiated, that State will claim continuing jurisdiction over the liability. Therefore the USA cannot recognise an Australian court variation to the liability in spite of this being available to the liable parent in Australia and recognised in Australia;
• obliges each country to assist in locating payers, serving notices and providing advice; and
• provides for the protection of privacy and for information sharing.

For Australia, the agreement applies in Australia, Norfolk Island and the territories of Christmas and Cocos (Keeling) Islands. For the USA, the agreement applies in the fifty states, American Samoa, the District of Columbia, Guam, Puerto Rico, the United States Virgin Islands and any other jurisdiction of the United States participating in Title IV-D of the Social Security Act.

Agreement between Australia and the United States of America PDF (29k)

United Nations convention on the recovery abroad of maintenance

The United Nations Convention on the Recovery Abroad of Maintenance (UNCRAM) was signed in New York on 20 June 1956. It aimed to overcome the legal and practical difficulties involved in establishing claims for maintenance abroad where other reciprocal arrangements did not exist.

Australia is a contracting party to the convention, which operates in Australia through provisions in the Family Law Act (section 111) and Family Law Regulations (regulations 40-56). The text of the convention appears at schedule 3 to the Family Law Regulations.

A payee in an UNCRAM country can make an application to another UNCRAM country in which the liable parent resides for that country to establish a maintenance liability on their behalf. A few UNCRAM countries, but not including Australia, will register an existing liability under this convention but only where their domestic law allows. The current active UNCRAM members are listed in schedule 4 of the Family Law Regulations. Wherever possible, Australia will use other arrangements in place with a reciprocating jurisdiction in preference to making applications under UNCRAM.

A payee may need to make an UNCRAM application if they are seeking maintenance from a payer in an UNCRAM country, but cannot do so under reciprocal arrangements (e.g. because the laws of the reciprocating jurisdiction do not currently allow that jurisdiction to recognise a child support assessment). Legal Aid in each Australian state and territory can assist a payee to prepare an UNCRAM application for a liability to be created (Article 3) or for recognition of an existing child support assessment or court order (Article 5). CSA will transmit the application to the relevant country along with a copy of the child support assessment (or court order, if a child support assessment cannot be made).

A court in the receiving UNCRAM country (i.e. where the payer resides) will decide the level of maintenance payable under the relevant law in that jurisdiction (Article 6 of the convention). It may take into account the information provided by CSA in making that decision.

Version 1.3

Issued 27 July 2005

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