3.6.2 Registering Overseas Maintenance Liabilities for Collection

Context

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

Act references

CSRC Act section 4, section 18, section 18A, section 25, section 25A, section 25C, section 28, section 30AA

CSA Act section 152

FL Regs regulation 30

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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, the application can be made directly to the Registrar (section 25(1) CSRC Act).
  • If the payee is a resident of a reciprocating jurisdiction the application must be given to the Registrar by the overseas authority in their country (section 25(1A)(c) CSRC Act).

A payer can apply:

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

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

Administering a registered overseas maintenance liability

The Registrar must register a registrable overseas maintenance liability within 90 days of receiving the application for registration (section 25(2A) CSRC Act).

An application can be made to the Registrar for registration of an existing overseas maintenance liability, including arrears payable under the liability (section 18A(4) CSRC Act). An application can also be made to the Registrar for registration of arrears only. However, arrears are only registrable if they have accrued as a result of a periodic liability.

The Registrar must not register an ongoing registrable maintenance liability that relates to a particular payer, payee and child/ren, if this is notified only after a later liability (that relates to the same individuals) has already been registered (section 25(2C) CSRC Act). However, the Registrar can register the arrears that arose under that earlier liability.

Example: M and F have one child, A. M successfully applied for a child support assessment for A against F on 1 April 2013. F informed the Registrar on 1 June 2013 that a court order was made for child support between himself and M for A in the UK on 1 February 2009. F advised that he would like to apply to have the child support assessment replaced by the periodic amounts set in the court order. The Registrar will refuse to register the ongoing periodic amounts.

M applied to have the arrears from the court order registered. The Registrar will register any arrears that arose under the court order between 1 February 2009 and 31 March 2013.

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

The Registrar can register maintenance assessments raised by an overseas authority. The Registrar's role in these cases is limited to collecting amounts payable under the liability. The overseas authority continues to administer the assessment.

Rule to avoid dual liabilities

The Registrar may have already registered a maintenance liability for the same payer, payee and child/ren. That previous liability ceases to have effect when a subsequent maintenance liability is registered (section 30AA(1) CSRC Act). Any arrears payable under the previous liability are still payable (section 30AA(2) CSRC Act).

The Registrar can refuse to register an overseas maintenance liability if the Registrar is satisfied that the liability arises in a manner that is inconsistent with the relevant international maintenance arrangement (section 25(2B) CSRC Act).

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

Overseas maintenance entry liabilities (non-periodic liabilities)

A payee of an overseas maintenance liability that is not a liability for a person to pay a periodic amount can apply to the Registrar for it to be entered into the Register (section 25A CSRC Act). This includes lump sum spousal or child maintenance orders, and non-periodic maintenance liabilities such as insurance, dental costs etc. If the Registrar 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 FL 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).

Terminating events for overseas maintenance liabilities

If both the payee and payer of a registered overseas maintenance liability cease to be residents of Australia, the liability ends from the date that both parties ceased to be residents of Australia (see the definition of a 'terminating event in relation to an enforceable maintenance liability' - sections 4(1)(cb) & 4(1)(cc) CSRC Act).

If either the payee or the payer of a registered overseas maintenance liability ceases to be a resident of either Australia or a reciprocating jurisdiction, the liability ends from the date that one party was no longer resident of Australia or a reciprocating jurisdiction (sections 4(1)(cd) & 4(1)(ce)).

Although in both of these cases the liability will cease to be enforceable in Australia by the Registrar, the liability may continue in the country where the liability arose.

Last reviewed: 7 November 2016