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Power to Alter Overseas Maintenance Orders

Jurisdiction

20.             The following is submitted on behalf of the father:

a)             The City A Orders are an overseas maintenance liability for the purposes of section 4 of the Child Support (Registration and Collection) Act 1989 (Cth) (‘CRSC Act’) as they are ‘a maintenance order made by a judicial authority of a reciprocating jurisdiction’.

b)            The United States of America (‘USA’) is a reciprocating jurisdiction as set out within Schedule 2 of the Regulations. Pursuant to reg 38(2) of the Regulations, any order made by the Family Court of Australia will be a final order.

c)             The City A Orders are a registrable maintenance liability as defined in section 18A of the CSRC Act as ‘a liability of a parent…of a child to pay a periodic amount for the maintenance of the child’ and ‘an overseas maintenance liability’.

d)            The City A Orders have been registered, and pursuant to section 30(1) of the CSRC Act the amounts payable pursuant to those Orders are debts due to the Commonwealth of Australia and the Child Support Registrar is entitled to collect them.

e)             Section 110(2)(c) of the Family Law Act 1975 (Cth) (‘the Act’) provides the Court with the following power for ‘the making of orders…for the variation, discharge, suspension or revival of maintenance orders registered in accordance with regulations under this section’.

f)             The City A Orders are a registered overseas maintenance liability as defined in reg 24A of the Regulations, namely ‘a registrable maintenance liability under section 18A of the Child Support (Registration and Collection) Act 1988’.

g)            Pursuant to reg 36 of the Regulations, a party in Australia may apply to have the orders varied, suspended, revived, or discharged. That regulation reads as follows:

Party in Australia may apply to vary etc overseas maintenance order, agreement or liability

(1) This regulation applies to:

(a) an overseas maintenance order or agreement registered in a court before 1 July 2000; and

(b) an overseas maintenance entry liability or a registered maintenance liability.

(2) Application may be made to a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies.

(3) An application may be made by:

(a) the person for whose benefit the order or agreement was made, or for whose benefit the liability was created; or

(b) the person against whom the order was made or the person who is liable to make payments because of the agreement or the liability; or

(c) the Secretary, on behalf of a person mentioned in paragraph (a) or (b).

(4) The law to be applied to determination of an application is the law in force in Australia under the Act.

21.             The Court accepts that it has jurisdiction to make the Orders sought by the father. The correctness of the submissions is confirmed by Full Court authority in the Family Court of Australia which considered reg 36 in two reported decisions, being Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56 (‘Vladimir’) and Child Support Registrar & Higgins and Anor [2016] FamCAFC 2 (‘Higgins’).

22.             The Family Court of Australia has varied American overseas maintenance orders pursuant to regulation 36 in Pitney & Pitney [2018] FamCA 996. Justice Forrest discharged an American child maintenance order on the father’s application. In so doing, the Family Court:

a)             set out the regulation 36 requirements;

24.             In ADG & VO [2007] FMCAfam 818, a variation of a child maintenance order made in Texas was made. The Court found, after review of the relevant legislative provisions, that the Federal Circuit Court had the power to vary the order pursuant to reg 36 as the Texan order was ‘an overseas maintenance entry liability or a registered maintenance liability’ and the father was a party in Australia making the application.

25.             A recent decision of Justice Wilson in Membrey & Hall [2019] FamCA 857 canvasses the history of child maintenance relations between Australian and the USA. His Honour set out the legislative scheme for enforcing overseas maintenance orders particularly relating to the USA. His Honour found, following previous decisions of the Full Court and the Family Court, that:

a)             the USA orders were properly characterised as an ‘overseas maintenance liability’ for the purposes of section 4 of the CSRC Act;

b)            the USA Orders were a ‘registrable maintenance liability’ for the purposes of section 18A of the CSRC Act; and

c)             upon registration of those orders the amount recorded in the orders became a debt due to the Commonwealth of Australia, amenable to collection by the Agency;

d)            the Applicant was entitled to make his application to discharge the USA Orders pursuant to regulation 36 of the Regulations; and

e)             the law to be applied is the law in force in Australia under the Act, being the Family Law Act 1975 (Cth.).

26.             The applicant noted the Federal Circuit Court (and the Federal Magistrates’ Court) has varied American child maintenance orders pursuant to reg 36 in three other decisions.[9]

27.             The Child Support Registrar also confirmed in submissions that this Court has jurisdiction to make the Orders sought.


[9] Klein & Wright [2007] FMCAfam 360; Imago & Imago [2010] FMCAfam 411; Newbeld & Newbeld and CSR & Newbeld [2007] FMCAfam 465.

Posted in: Derek Legal Blog at 20 May 20

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