An ever integrating global society raises a number of issues for enforcing an overseas maintenance liability including child support and spousal maintenance. Often when a spouse chooses to relocate internationally, the other party is left feeling vulnerable and concerned that orders for child support and spousal maintenance will not be abided by once the parties are not residing in the same country.
Maintenance Orders in Australia
The position in relation to spousal maintenance in Australia is that a person has a responsibility to financially assist their spouse or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets. The court will consider the needs of an application and whether the respondent has the capacity to pay.
Similarly, parents have obligations to provide financial support for their children after separation regardless of who the child lives with and whether the parties and/or child live in Australia or overseas. There are two ways in which child support can be dealt with, either by way of a Child Support Assessment issued by the Child Support Agency (“the CSA”) or by way of a private agreement.
Enforcing International Maintenance Orders
Whilst Australia’s position on Child Support and Spousal Maintenance is quite clear, often individuals are unaware of their ability to enforce overseas maintenance orders in Australia.
In order for a maintenance order to be registerable in Australia, it must fall under the following characterization of a Registerable Overseas Maintenance Liability:
- A maintenance order made by a judicial authority by a reciprocal jurisdiction;
- A maintenance agreement registered by a judicial or administrative authority of a reciprocating jurisdiction; or
- A maintenance assessment issued by an administrative body of a reciprocating jurisdiction.
Australia will only recognise international maintenance orders made in reciprocating jurisdictions.
The list of reciprocating jurisdictions is set out in the Schedule 2 of the Child Support (Registration and Collection) Regulations 1988. The Australian Child Support Agency allows for the registration and enforcement of maintenance liabilities arising out of orders made by courts of reciprocating jurisdictions. Therefore, if the country is a reciprocating jurisdiction, it may be possible to enforce overseas maintenance payments in Australia.
If the spouse who is wanting to register the orders is residing in Australia, they will be able to apply directly to the Child Support Registrar in order to register an overseas maintenance liability if the other party is residing in a reciprocating jurisdiction. Alternatively, if the spouse who is wanting to register the orders does not reside in Australia but does reside in a reciprocal jurisdiction, it is still possible to seek the enforcement of an overseas maintenance liability through applying to have the liability registered in Australia via the central authority in their respective country.
Once the overseas maintenance liability is registered, the amount payable will be converted to Australian dollars. The usual enforcement methods will apply, including salary deductions, deductions from bank accounts, intercept tax refunds and departure prohibition orders.
Nicholes Family Lawyers specialises in international family law and we are able to assist you with determining whether you are able to register and enforce an overseas maintenance liability in Australia.