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1998—1999—2000
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
EXPLANATORY MEMORANDUM
(Circulated by authority of The Hon. Larry Anthony MP, Minister for Community Services)
ISBN: 0642 429502
CHILD SUPPORT LEGISLATION AMENDMENT BILL 2000
This Bill amends Australian domestic law in order to enable Australia
to fulfil its international maintenance obligations.
The legislation
involved is the Child Support (Registration and Collection) Act
1988, the Child Support (Assessment) Act 1989 and the
Family Law Act 1975.
A regulation making power is inserted into the Child Support
(Registration and Collection) Act 1988, the Child Support
(Assessment) Act 1989 and the Family Law Act 1975 to allow
regulations to be made prescribing, in relation to countries with which
Australia has maintenance enforcement arrangements, all matters relevant to the
recognition and enforcement of child support and spousal maintenance
liabilities.
Date of Effect: Royal Assent
Financial
Impact: Negligible
CHILD SUPPORT LEGISLATION AMENDMENT BILL 2000
Clause 1—Short Title
Clause 1 of the Child
Support Legislation Amendment Bill 2000 sets out how the amending Act is
to be cited.
Clause 2—Commencement
Clause 2 specifies
when the various clauses and Schedules of the amending Act are to
commence.
Clause 3—Schedule(s)
Clause 3 says that
each Act that is specified in a Schedule to the Child Support Legislation
Amendment Bill 2000 is amended or repealed as set out in the
Schedules.
• Acts amended by this Bill are:
the Child
Support (Registration and Collection) Act 1988;
the Child
Support (Assessment) Act 1989; and
the Family Law Act
1975.
1. Summary of proposed changes
The Child Support (Registration and Collection) Act 1988,
the Child Support (Assessment) Act 1989 and the Family Law
Act 1975 are amended to allow regulations to be made which prescribe, in
respect of countries with which Australia has entered into arrangements, all
matters relevant to the recognition and enforcement of child support and spousal
maintenance liabilities.
2. Background
Australia currently has arrangements with a variety of countries in
respect of the recognition and enforcement of maintenance liabilities. However,
in relation to certain issues, those arrangements are no longer appropriate.
For example, Australia’s existing arrangements with New Zealand and the
United States were devised on the basis that all liabilities were in the form of
orders made, or agreements registered by, a court. They are unsuited to the
current situation in those countries as court ordered maintenance is gradually
being replaced by administrative assessments of child support issued by Child
Support Agencies. Further, other international arrangements are of limited
value to the recipients of child support and spousal maintenance as they are
largely dependent on slow and cumbersome procedures for the initiation and
pursuit of proceedings in foreign courts to obtain orders for
maintenance.
In November 1994, the Joint Select Committee on Certain
Family Law Issues reported on the operation and effectiveness of the Child
Support Scheme and made a number of recommendations in relation to the
international enforcement of child support liabilities.
The changes to
the legislation, in combination with the Regulations, will allow Australia to
become a party to the following three international agreements:
(i) the
agreement with New Zealand on child support and spousal
maintenance;
(ii) the Hague Convention on the Recognition and Enforcement
of Maintenance Liabilities; and
(iii) a new agreement with the USA on the
enforcement of family maintenance (support) obligations.
These agreements
will replace, or complement, existing arrangements for the enforcement of child
support and spousal maintenance liabilities. They oblige each country to
provide in its laws for the recognition and enforcement of such
liabilities.
The proposed amendments provide for regulations to be made
which prescribe for matters relevant to the recognition and enforcement of child
support and spousal maintenance liabilities. The following are some of the
matters for which the regulations may prescribe:
- the enforcement of
administrative assessments (as well as the continued enforcement of court orders
and registered agreements);
- allowing the Child Support Agency to make
an administrative assessment even though the payer is not resident in Australia
and does not have an Australian taxable income;
- in the case of New
Zealand, providing that the creation, and variation, of liabilities will only be
able to be undertaken in the country where the payee is
resident;
- obliging each country to assist in locating payers, serving
notices and providing advice so that maintenance liabilities can be
enforced;
- allowing the Child Support Agency to collect overseas
maintenance liabilities which have not first been registered in an Australian
Court under the Family Law Act 1975;
- requiring
reciprocity in legislative presumptions of parentage.
3. Explanation of the changes
Item 1 amends section 4 of the Child Support (Assessment)
Act 1989 (the Assessment Act) which is concerned with the objects of
that Act. The effect of the amendment is that a particular object of the
Assessment Act is to ensure that Australia is able to give effect to its
international maintenance obligations arising under international agreements or
arrangements.
Item 2 inserts new section 163B into the Assessment
Act.
In circumstances where Australia has entered an agreement with
another country concerning child support or spousal maintenance, new paragraph
163B(1)(a) provides for regulations to be made which prescribe all matters
relevant to Australia’s obligations under that agreement.
The
effect of new subparagraph 163B(1)(b)(i) is that regulations can be made in
relation to maintenance obligations where the person who is claiming maintenance
(or on whose behalf maintenance is claimed) is in a ‘reciprocating
jurisdiction’. The term reciprocating jurisdiction is defined as a
foreign country, or part of a foreign country, which is prescribed in the
regulations. The regulations will prescribe a list of countries with which
Australia has maintenance arrangements. This list will be varied from time to
time as required.
The effect of new subparagraph 163B(1)(b)(ii) is that
regulations can be made in relation to maintenance obligations where the person
from whom maintenance is being claimed is in a ‘reciprocating
jurisdiction’.
Australia's international maintenance arrangements
provide for the enforcement of maintenance obligations owed by parents to
children and maintenance obligations owed by one party to the other party to a
marriage. The amendments refer to maintenance obligations arising from family
relationships, parentage or marriage in order to avoid any implication that
international arrangements can be implemented only in respect of children who
are the biological offspring of a person (and not, for example, step children to
whom a parent may have an obligation) or in respect of a spouse (and not a
spouse to a void marriage to whom the other spouse may have an
obligation).
Implementation of Australia's international maintenance
arrangements will require action by both the Australian Child Support Agency and
by Australian courts. For example, lump sum maintenance orders made by overseas
courts will continue to be enforced by Australian courts. In addition,
proceedings may need to be taken in Australian courts to establish maintenance
orders for the benefit of a child in a reciprocating jurisdiction who, by reason
of full time education or physical disability, needs support from a parent in
Australia. The Bill provides that in implementing Australia's international
maintenance arrangements, the regulations may confer jurisdiction on courts.
New subsection 163B(2) provides for regulations to be made which confer
jurisdiction on a federal court or a Court of a Territory. The amendments also
provide for regulations that invest a court of a State with federal
jurisdiction.
Currently, the Assessment Act does not provide for some
matters that are crucial to Australia’s international maintenance
obligations. For example, in working out the amount of a child support
liability, the Assessment Act is concerned with the taxable income of the
parties as determined under Australian taxation legislation. In the
situations sought to be covered by these amendments, it will always be the case
that one of the parties will be resident in a reciprocating jurisdiction and,
while he or she may have income according to the laws of that jurisdiction,
there may be no taxable income according to Australian taxation laws. In
meeting Australia’s international maintenance obligations, a wider range
of income sources may be considered in determining the amount of a child support
liability.
New subsection 163B(3) provides that where regulations are
made, they may be inconsistent with the provisions of the Assessment Act and, to
the extent of any inconsistency, would prevail over the provisions of the
Assessment Act. The purpose of this approach is to allow the regulations to
vary the operation of the Assessment Act where the existing provisions are not
appropriate for the purposes of meeting Australia’s international
maintenance obligations.
New subsection 163B(4) inserts definitions for
new terms, “international agreement” and “reciprocating
jurisdiction”, into the Assessment Act.
Item 3 amends
section 3 of the Child Support (Registration and Collection) Act
1988 (the Registration and Collection Act) which is concerned with the
objects of that Act. The effect of the amendment is to make it an object of the
Registration and Collection Act that Australia is able to give effect to its
international maintenance obligations arising under international agreements or
arrangements.
Items 4 and 5 respectively make the same
amendments to the Registration and Collection Act and the Family Law Act
1975 as Item 2 makes to the Assessment Act.
4. Commencement
Clause 2 provides that these amendments commence on Royal Assent.