3.6.4: Varying overseas maintenance liabilities
Context
CSA cannot vary an overseas maintenance order or assessment. This section explains what a parent can do to vary their overseas liability.
Legislative references
- Sections 18A, 30AA Child Support (Registration and Collection) Act 1988
- Regulation 18 Child Support (Registration and Collection) Regulations 1988
- Regulations 36, 38, 38A Family Law Regulations 1984
Explanation
- Applying to an Australian court
- Applying to an overseas court
- Applying for a child support assessment or a maintenance assessment
- Varying an overseas maintenance assessment
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 (regulation 36 Family Law Act Regulations):
- an overseas maintenance order or agreement registered in an Australian court before 1 July 2000;
- a maintenance order made by, or a maintenance agreement registered by, a judicial authority of a reciprocating jurisdiction that has been registered with CSA for collection after 1 July 2000; or
- an overseas maintenance entry liability.
The Secretary of the Attorney-General's Department can also apply on behalf of a parent.
The court will apply the Family Law Act 1975 when dealing with the parent's application. If the court makes an order that varies the original order it will be a final order (regulation 38(2) Family Law Regulations). However, the Australian variation order is provisional if the original order was made in one of the following reciprocating jurisdictions (regulation 38(1) Family Law Regulations):
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.
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 (regulation 38A(6) Family Law Regulations).
CSA will vary the register entry to give effect to a final court order, or a confirmed provisional order.
Applying to an overseas court
Parents can apply to a court in the country where the overseas parent resides for variation of an overseas order. Where the application is made directly to a court overseas, the applicant parent may apply to CSA for assistance in transmitting the application for variation (regulation 18 Registration and Collection Regulations).
A parent who has an original order made in the United States of America (USA) can seek a variation to their order in an Australian court, and CSA can give effect to that variation as a final order. However, the USA jurisdiction that made the original order may not recognise the Australian variation and, if so, arrears will continue to accrue under the original order in the USA. For this reason, it may be preferable for a parent with an order from the USA to seek a variation in the jurisdiction that made the original order.
Applying for a child support assessment or a maintenance assessment
A parent who is eligible to apply for a child support assessment in Australia or a maintenance assessment in a reciprocating jurisdiction can effectively vary their overseas court-ordered maintenance liability by applying for that assessment. An overseas court order ceases to have effect in Australia when CSA registers a child support assessment or an overseas maintenance assessment (section 30AA Registration and Collection Act). The overseas court order would no longer be enforceable in Australia (except for any arrears for the period before the assessment). The order may remain enforceable in the issuing jurisdiction. However, the liable parent can make an application to a court in the issuing jurisdiction to have the order discharged and present evidence of payments made in satisfaction of the child support assessment.
An application for a child support assessment may be refused if an overseas liability is already registered for the same case and one of the parties is a resident of a reciprocating jurisdiction (section 30B Assessment Act).
CSA will exercise this discretion when 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.
Varying an overseas maintenance assessment
Where an overseas maintenance liability arises under a maintenance assessment raised by an overseas authority, CSA is unable to amend or vary the liability. This type of liability is administered by the overseas authority that raised the assessment. CSA's role in these cases is limited to collecting amounts payable under the liability.