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Child Support Legislation Amendment Bill 2000

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1998—1999—2000

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

CHILD SUPPORT LEGISLATION AMENDMENT BILL 2000

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of The Hon. Larry Anthony MP, Minister for Community Services)



CHILD SUPPORT LEGISLATION AMENDMENT BILL 2000

 

OUTLINE AND FINANCIAL IMPACT STATEMENT

 

 

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 .

 

 

Schedule 1—Amendments

 

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

 

NOTES ON CLAUSES

 

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3 says that each Act that is specified in a Schedule to the Child Support Legislation Amendment Bill 2000 is amended or repealed as set out in the Schedules.

 

ยท          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 .

 



SCHEDULE 1 —AMENDMENTS

 

 

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.