VARIATION OF OVERSEAS MAINTENANCE AND CHILD SUPPORT OBLIGATIONS IN AUSTRALIA

By Amanda Humphreys, Senior Associate, MST Lawyers

The Child Support (Registration & Collection) Act 1988 and the Family Law Regulations 1984 provide for the registration, enforcement and variation of some overseas child support and spousal maintenance obligations involving families where one parent lives in Australia and the other lives overseas in a reciprocating jurisdiction.

Reciprocating jurisdictions are listed in Schedule 2 to the Family Law Regulations.

In appropriate cases, an application may be made to an Australian court to discharge, suspend, revive or vary obligations arising from an overseas order, assessment or agreement made in a reciprocating jurisdiction.   An application may be made by the payer or recipient of maintenance or child support. The law to be applied in determining the application is the law in force in Australia under the Family Law Act 1975.

An order made in Australia regarding an overseas child support or maintenance order, agreement or liability is provisional with respect to some identified reciprocating jurisdictions (regulation 38(1) Family Law Regulations), requiring confirmation by the overseas court where the liability originated to have an effect.  However, in other reciprocating jurisdictions, an order made by the Australian court is final and does not require confirmation (regulation 38(2)).  

In some cases, the jurisdiction where the original child support/maintenance obligation arose may not recognise the Australian order varying it. Here, the obligation will continue overseas and arrears will continue to accrue there.  This has been an issue in some Australian cases involving the variation of child support/maintenance obligations arising in the United States of America (USA) – for example,  Imago & Imago [2010] FMCAfam 411.

In this situation, it may be necessary to seek a variation of the obligation in the country where the original liability arose.  A parent may ask the Australian Child Support Registrar to transmit a claim for variation to a reciprocating jurisdiction (see Regulation 18, Child Support (Registration and Collection) Regulations).

The registration, enforcement and variation of overseas maintenance and child support obligations is complex and requires specialist legal advice.  This is illustrated in the following judgments from 2016:

  • Child Support Registrar & Higgins and Anor [2016] FamCAFC 2 relates to an application made by a payer father living in Australia regarding a registered overseas maintenance liability (including arrears), arising from a child support assessment made in New Zealand for a child living in New Zealand. The Child Support Registrar, who was not a party to the initial proceedings, instigated the appeal.   The Full Court allowed the appeal, finding the trial judge erred, having been misled by the terms of the father’s application. The father’s application suggested a basis for orders which the court did not have the power to make.  The Full Court described the legislative framework confining an Australian court’s powers to determine an application made under the legislative scheme relating to overseas maintenance obligations (noting, for example, this framework does not contemplate the application of departure application principles which relate to Australian child support obligations) and found the trial judge:
    • had no power to make a final order in respect of a New Zealand obligation (only a provisional order);
    • had power under the Regulations only to discharge, suspend, revive or vary the liability; not to grant a permanent stay or issue a permanent injunction to similar effect; and
    • had no power to discharge or revoke late payment penalties, observing only the Child Support Registrar may remit them.
  •  In Harris & Vernon [2016] FCCA 358 Federal Circuit Court Judge Maguire dismissed an application made by a payer father seeking to set aside provisions of a marital settlement agreement made overseas providing for the payment of periodic support for the parties’ child. (The country in which the agreement was made is not identified in the anonymised judgment.)   The application was made pursuant to regulation 36 of the Family Law Regulations.  His Honour found that there was no evidence the applicant father had registered or attempted to register the agreement in Australia and that where the criteria of regulation 36(1) had not been complied with, the applicant could not have the benefit of regulation 36(2).   The Judge commented that it was up to the father as to whether or not he completed the registration process, noting “[t]here may be obligations that arise from [the registration] process that are not attractive to him”, noting “he is represented by solicitors who practice widely in the field, and I can only assume he is fully aware of his options in this respect”.

His Honour also considered registration of a “maintenance entry liability” pursuant to section 25A of the Child Support (Registration & Collection) Act, notwithstanding section 25A relates to registration of lump sum and non-periodic obligations arising overseas (see chapter 3.6.2 of the Australian Government Child Support Guide) and the provisions of the marital settlement agreement identified in the judgment, which the husband sought to vary, were for periodic support.

MST Lawyers’ Family Law team has significant expertise in international family law, including in respect of international child support and maintenance matters. If you require assistance with an international family law matter please contact us by email at family@mst.com.au or by telephone + 61 3 8540 0200.