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.

On this page

• Application requirements
• Administering a registered overseas maintenance liability
• Rule to avoid dual liabilities
• Terminating events for overseas maintenance liabilities
• Overseas maintenance entry liabilities (non-registrable liabilities)

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, they can apply directly to the Registrar (CSRC Act section 25(1)).
• If the payee is a resident of a reciprocating jurisdiction, and the payer is a resident of Australia (CSRC Act section 25C)

  • the payee can apply directly to the Registrar for registration of an overseas court order made by or registered in a court in that jurisdiction, or the overseas authority in their jurisdiction can give their application to the Registrar for them (CSRC Act section 25(1A)(c))

  • an application made by the payee for registration of a court order made by a court in a reciprocating jurisdiction other than the reciprocating jurisdiction in which the payee resides must be given to the Registrar for them by the overseas authority in their jurisdiction (CSRC Act section 25(1B)(c))

  • an application made by the payee resident in a reciprocating jurisdiction for registration of other types of overseas maintenance liabilities (administrative assessments made by a reciprocating jurisdiction or agreements registered with a court or administrative authority of a reciprocating jurisdiction) must be given to the Registrar for them by the overseas authority in their jurisdiction (CSRC Act section 25(1B)(c)).

An overseas authority can also apply to the Registrar for registration of an overseas maintenance liability on behalf of a payee who is a resident of that reciprocating jurisdiction (CSRC Act sections 25(1A)(d) & 25(1B)(d)). 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) & 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)).
• If the payer is a resident of 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) & 25(1D)). The payee must be a resident of Australia (CSRC Act section 25C).

Administering a registered overseas maintenance liability

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

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.

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) & 28(1)(e)).

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, 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)).

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)).

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) & 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).