Under the Child Support Act 1989, an ‘Overseas maintenance liability’ means a liability that arises under
- a maintenance order made by a judicial authority of a reciprocating jurisdiction
- a maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction, or
- a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction.
Importantly, overseas maintenance liabilities are able to be registered and enforced in Australia, provided the jurisdiction in which the liability was created is, as noted above, a ‘reciprocating jurisdiction’. .
If required, there’s also a process where you can have the orders varied, if your circumstances change.
Here, we’ll explain all about the process for registering overseas maintenance liabilities, and also discuss how they’re enforced and varied.
Registering Overseas Maintenance Liabilities
Either parent can apply for the registration of an overseas maintenance liability.
The liability can be registered by the Australian Child Support Registrar, as long as the overseas maintenance liability arose in a reciprocating jurisdiction. These are a number of reciprocating jurisdictions outlined in Schedule 2 of the Family Law Regulations, a list of which can be found here.
If the payee is a resident of Australia, then they can apply directly to the Child Support Registrar to have the overseas maintenance liability registered here. If the payee is instead a resident of a reciprocating jurisdiction, then an application for the registration of an overseas court order can be made directly to the Registrar or given to the Registrar by the overseas authority in their home country.
Alternatively, if the payer is a resident of Australia, then they can apply directly to the Child Support Registrar if the payee is a resident of a reciprocating jurisdiction. Or, if the payer is a resident of a reciprocating jurisdiction, then the application can be made directly to the Registrar or given to the Registrar by the overseas authority in their home jurisdiction.
Enforcing Overseas Maintenance Liabilities
The Child Support Registrar must register an overseas maintenance liability within 90 days of receiving the application for registration. An application can also be made for the enforcement of arrears only, but arrears are only registrable if they have accrued as a result of a periodic liability.
An overseas maintenance liability, including an amount in arrears under such a liability, first becomes enforceable on the day the Registrar receives the application for the liability to be registered. It will remain in force until a ‘terminating event’ occurs.
Variation of Overseas Maintenance Liabilities when Circumstances Change
If your personal circumstances change and you need to vary an overseas maintenance liability, then this cannot be done by an Australian Child Support Registrar. But, there are several steps you can take to account for the changes.
Firstly, you can apply to the judicial or administrative authority in the country where the overseas parent resides for the variation of an overseas liability. If you’re applying to an overseas authority, then you can apply to the Australian Child Support Registrar for assistance in transmitting the application for variation.
If this avenue is unsuccessful, then you can apply for a child support assessment. This is because, if you register a child support assessment under the CSA Act, then the previous registered overseas maintenance liability ceases to have effect in Australia (unless you have any arrears for the period before the assessment). However, the liability may remain enforceable in the originating jurisdiction depending on the relevant overseas authority.
To minimise the repeat of new liabilities, the Registrar has the discretionary power to refuse a child support assessment that would override an overseas maintenance liability already registered in relation to the same parties and child, where either party is a resident of a reciprocating jurisdiction. This may be relevant where the liability has recently been registered and the circumstances of the parties have not changed.
Alternatively, either parent can apply to an Australian court exercising family law jurisdiction for an order varying, discharging, suspending or reviving an overseas maintenance liability registered under the Child Support (Registration and Collection) Act.
However, the Australian Order will be provisional if the original Order was made in a jurisdiction specified under the family law regulations. This means that it has no effect unless it is confirmed by the relevant reciprocating jurisdiction (a list of these can be found here). If approved, the final order will then have effect in Australia.
In other jurisdictions, a parent can seek a variation to their liability in an Australian court, and the Registrar can give effect to that variation as a final order. However, variations made in Australia may not be recognised in the overseas jurisdiction, which will mean that arrears will continue to accrue under the original liability in the overseas jurisdiction. As a result, it may be preferable for a parent with a liability from such jurisdictions to seek a variation in the jurisdiction that made the original liability.
Get Expert Help with Child Support (Registration and Collection) Overseas
If you need help registering overseas maintenance liabilities, please contact us. At Damien Greer Lawyers, we have decades of experience in dealing with international family law matters, and we can advise you on how to ensure that an overseas maintenance liability will be registered by the Child Support Registrar in Australia. To discuss your family law matter in further detail, please call us on (07) 3837 5500, or get started online today.