The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

3.6.2 Registering overseas maintenance liabilities for collection

Context

The Registrar can register a registrable overseas maintenance liability (3.6.1) arising in a reciprocating jurisdiction (1.5.1) for collection, in the same way that Australian child support assessments and court orders can be registered.

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

Act references

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

CSA Act section 152

FL Regs regulation 30

On this page

Application & registration requirements

A payee or payer of an overseas maintenance liability may apply for registration of an overseas maintenance liability. The Registrar may only register an overseas maintenance liability if either the payee or the payer is a resident of Australia (CSRC Act section 25C).

A payee can apply:

A payee can apply directly to the Registrar (CSRC Act section 25(1)) if:

  • they are a resident of Australia, or
  • they are a resident of a reciprocating jurisdiction and the registrable overseas maintenance liability arises under an order made by, or registered in, a court of the same reciprocating jurisdiction.

If the payee is a resident of a reciprocating jurisdiction an application for registration of a registrable overseas maintenance liability that arises under an order made by, or registered in, a court of the reciprocating jurisdiction may also be made by the payee and given to the Registrar by the overseas authority, or made by the overseas authority on behalf of the payee (CSRC Act section 25(1A)).

If the payee is a resident of a reciprocating jurisdiction an application must be given to the Registrar by the overseas authority, or made by the overseas authority on behalf of the payee, if the registrable overseas maintenance liability does not arise under an order made by, or registered in, a court of the same reciprocating jurisdiction (CSRC Act section 25(1B)).

An overseas maintenance liability may arise under a court order made by another reciprocating jurisdiction that is not registered in a court of the payee’s reciprocating jurisdiction.

Overseas maintenance liabilities can also arise under administrative assessments made by a reciprocating jurisdiction or agreements registered with a court or administrative authority of a reciprocating jurisdiction, whether or not those liabilities originate from the reciprocating jurisdiction of the payee.

An overseas authority that is seeking reimbursement from a parent of the child, of amounts paid to a carer of the child for the child's maintenance (3.6.1), can apply as the payee in their own right. In this situation, the overseas authority applies for registration of an 'agency reimbursement liability' (CSRC Act sections 4(1), 18A(3)(a) and 25(1)).

A payer can apply:

If the payer is a resident of:

  • Australia, they can apply directly to the Registrar, provided the payee is a resident of a reciprocating jurisdiction (CSRC Act section 25(1C)).
  • a reciprocating jurisdiction, they can apply directly to the Registrar or the overseas authority in their jurisdiction can give their application to the Registrar for them (CSRC Act sections 25(1C) and 25(1D)).

An application can be made to the Registrar for registration of an existing overseas maintenance liability, including arrears payable under the liability (CSRC Act section 18A(4)). 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 (CSRC Act section 25(2C)). However, the Registrar can register the arrears that arose under that earlier liability.

Example: Mohamed and Jana have one child, Ayesha. Mohamed successfully applied for a child support assessment for Ayesha against Jana on 1 April 2013. Jana informed the Registrar on 1 June 2013 that a court order was made for child support between herself and Mohamed for Ayesha in the UK on 1 February 2009. Jana advised that they 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 set in the court order, as the Registrar only became aware of the court order after the child support assessment was made.

Mohamed 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.

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 (CSRC Act section 25(2B)).

Example: Alicia lives in New Zealand and has a child support assessment made under the New Zealand child support system with her former partner, Alvin, who also lives in New Zealand. Alicia is the payee under the New Zealand assessment. Alicia moves to Australia to live with her children and applies to the Registrar to register the New Zealand assessment. Under the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance, Australia has jurisdiction to make the child support assessment for Alicia, as the State where the payee habitually resides is responsible for assessing child support under the Agreement (1.5.2). Alicia instead applies for an Australian assessment, which can be registered and sent to the New Zealand child support authority for collection from Alvin.

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 (CSRC Act sections 28(1)(d) and 28(1)(e)).

Preventing 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, to the extent that it relates to that same child (CSRC Act section 30AA(1)). The previous liability may continue to have effect in relation to another child who is not subject to the subsequent liability. Any arrears payable under the previous liability are still payable (CSRC Act section 30AA(2)).

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 (CSA Act section 152(2)). Any arrears under the overseas maintenance liability will remain payable.

Terminating events for overseas maintenance liabilities

If both, or one of, the payee and/or payer of a registered overseas maintenance liability cease to be residents, or a resident, of Australia, the liability ends from the date that neither party is a resident of Australia (see the definition of a 'terminating event in relation to an enforceable maintenance liability' - CSRC Act sections 4(1)(cb) and 4(1)(cc)).

If either the payee or the payer of a registered overseas maintenance liability ceases to be a resident of a reciprocating jurisdiction and does not become a resident of another reciprocating jurisdiction or Australia, the liability ends from the date that party ceases to be a resident of the reciprocating jurisdiction (CSRC Act section 4(1)(cd)).

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

Overseas maintenance entry liabilities (non-registrable liabilities)

A payee of an overseas maintenance liability that is not registrable can apply to the Registrar for the particulars of the liability to be entered in the Register (CSRC Act section 25A). Non-registrable liabilities include lump sum spousal or child maintenance orders and other maintenance liabilities where a periodic amount is not specified, such as for the payment of insurance, medical or dental costs as they arise. Other maintenance liabilities may not be registrable, depending on the circumstances of the international maintenance arrangement on which the jurisdiction relies. If the Registrar enters a non-registrable liability in the Register, amounts payable under it become a debt due to the applicant (payee), not the Commonwealth (CSRC Act section 25B(1)).

An overseas maintenance entry 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 (FL Regs regulation 30).

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