1.5.3.40 Overseas maintenance liabilities & changes in circumstances

Context

The Registrar cannot vary an overseas maintenance liability (1.1.O.40) (1.5.3.10). This page explains the actions a parent (1.1.P.10) can take to account for changes in their circumstances.

On this page

• Applying to an overseas judicial or administrative authority
• Applying for a child support assessment
• Applying to an Australian court

Applying to an overseas judicial or administrative authority

Parents can apply to the judicial or administrative authority in the country where the overseas parent resides for variation of an overseas liability. Where the application is made directly to an overseas authority, the applicant parent may apply to the Registrar for assistance in transmitting the application for variation.

Applying for a child support assessment (1.1.C.70)

A registered overseas maintenance liability ceases to have effect in Australia when a child support assessment made under the CSA Act is registered. The overseas liability would no longer be enforceable in Australia (except for any arrears (1.1.A.100) for the period before the assessment). The liability may remain enforceable in the originating jurisdiction.

To minimise repeated new liabilities, the Registrar is able to refuse to accept an application for 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 (1.1.R.10).

An example of where the Registrar may exercise this discretion, is where 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. This may be relevant where the liability has recently been registered and the circumstances of the parties have not changed.

Note: If the application giving rise to the child support assessment is made by the parent by whom child support (1.1.C.60) is payable under that assessment, the liability will not be registered upon the making of the assessment. However, the payee (1.1.P.30) can subsequently apply for the child support assessment to be registered and where either the payer or the payee resides in a reciprocating jurisdiction, the payer may subsequently apply for the child support assessment to be registered.

Note: Where child support is payable under an overseas maintenance liability and child support later becomes payable under an administrative assessment (1.1.A.30) under the CSA Act, the overseas maintenance liability will cease to have effect if the liable parent and other person are both residents of 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 an overseas maintenance liability registered under the CSRC Act, if the liability originates from an overseas jurisdiction that is considered to be a reciprocating jurisdiction under Schedule 2 of the FL Regs. The Australian variation order is provisional if the original order was made in a jurisdiction specified under the FL Regs. 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.

The following reciprocating jurisdictions are listed under FL Regs, regulation 38:

• 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.

In other reciprocating jurisdictions, such as the United States of America, 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, the overseas jurisdiction from which the liability originates may not recognise the Australian variation and, if so, arrears will continue to accrue under the original liability in the overseas jurisdiction. For this reason, 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.

The Registrar will vary the Register entry to give effect to a final court order, or a confirmed provisional order.

In instances where a party who wishes to vary, suspend or discharge a maintenance liability made by a jurisdiction that is not considered to be a reciprocating jurisdiction under Schedule 2 of the FL Regs, that party may apply to the Child Support Registrar to have their claim transmitted to the foreign jurisdiction.