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Family Law Amendment Regulations 2000 (No. 2)

Authoritative Version
  • - F2000B00084
  • No longer in force
SR 2000 No. 81 Regulations as made
These Regulations amend the Family Law Regulations 1984.
Administered by: Attorney-General's
General Comments: This instrument was backcaptured in accordance with Section 36 of the Legislative Instruments Act 2003
Registered 01 Jan 2005
Tabling HistoryDate
Tabled HR29-May-2000
Tabled Senate05-Jun-2000
Gazetted 26 May 2000
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013
Table of contents.

Family Law Amendment Regulations 2000 (No. 2)

Statutory Rules 2000 No. 81

I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Family Law Act 1975.

Dated 25 May 2000

WILLIAM DEANE

Governor-General

By His Excellency’s Command

LARRY ANTHONY

Minister for Community Services

for the Attorney-General


Family Law Amendment Regulations 2000 (No. 2)1

Statutory Rules 2000 No. 812

made under the

 

 

 

Contents

                                                                                                                 Page

                        1  Name of Regulations                                                         2

                        2  Commencement                                                                2

                        3  Amendment of Family Law Regulations 1984                       2

Schedule 1           Amendments                                                                    3

 


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Do not delete : Division placeholder

1              Name of Regulations

                These Regulations are the Family Law Amendment Regulations 2000 (No. 2).

2              Commencement

                These Regulations commence on 1 July 2000.

3              Amendment of Family Law Regulations 1984

                Schedule 1 amends the Family Law Regulations 1984.

 


Schedule 1        Amendments

Do not delete : Schedule Part placeholder

(regulation 3)

[1]         Subregulation 3 (1), after definition of certified copy

insert

Child Support Registrar means the Child Support Registrar mentioned in section 10 of the Child Support (Registration and Collection) Act 1988.

[2]         Subregulation 3 (1), definition of Secretary

substitute

Secretary means:

                (a)    the Secretary of the Attorney-General’s Department; or

               (b)    a person authorised by the Secretary to perform a function in relation to which the expression is used.

[3]         Regulation 21

substitute

21            Conversion of currency

         (1)   If the Child Support Registrar has calculated the amount in Australian currency (the Australian amount) that is equivalent to an amount expressed in a currency of an overseas country in a document to which this regulation applies, the calculation done by the Child Support Registrar also applies for these Regulations.

         (2)   If the Child Support Registrar has not done the calculation mentioned in subregulation (1), the calculation must be done in the way set out in this regulation.

         (3)   The Australian amount is calculated by using the telegraphic transfer rate of exchange prevailing on the day on which the order, agreement or liability relevant to the document becomes enforceable in Australia.

         (4)   If the Secretary calculates the Australian amount for a document to which this regulation applies, the Secretary must endorse on the document the rate of exchange used for the calculation.

         (5)   This regulation applies to the following documents:

                (a)    an overseas maintenance order (including a provisional order);

               (b)    an overseas maintenance agreement;

                (c)    a document about an overseas maintenance entry liability for Division 2 in Part III;

               (d)    a certificate or notice, originating in an overseas jurisdiction, about an overseas maintenance order or agreement.

[4]         Part III, after the Part heading

insert

Division 1              Custody

[5]         Regulation 22

omit

[6]         After regulation 24

insert

Division 2              Maintenance

[7]         After Division 2 heading

insert

24A         Definitions for Division 2

                In this Division:

maintenance order means:

                (a)    a maintenance order within the meaning of section 110 of the Act; and

               (b)    an order made under section 67D or 67E of the Act.

overseas maintenance entry liability means an overseas maintenance entry liability included in the Child Support Register under regulation 22 of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000.

reciprocating jurisdiction has the same meaning as in section 110 of the Act.

registered maintenance liability means a registrable maintenance liability under subregulation 11 (1) or (2) or paragraph 11 (3) (a) of the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 that is registered under those Regulations.

[8]         Regulation 26

omit

[9]         Regulation 27

omit

[10]      Regulation 28

substitute

28            Dealing with provisional overseas maintenance orders

         (1)   This regulation applies if:

                (a)    a maintenance order has been made in a reciprocating jurisdiction; and

               (b)    the order has no effect under the law of that jurisdiction unless and until it is confirmed by a court outside that jurisdiction; and

                (c)    the Secretary has received:

                          (i)    a certified copy of the order; and

                         (ii)    a copy of the depositions of the witnesses in the proceedings in which the order was made; and

                        (iii)    a statement of the grounds on which the order could have been opposed if the person against whom the order was sought (the respondent) had appeared at the hearing; and

               (d)    there are reasonable grounds for believing that:

                          (i)    the respondent is ordinarily resident in, is present in, or is proceeding to, Australia; and

                         (ii)    the order will have effect under the law of the overseas jurisdiction if it is confirmed by a court having jurisdiction under the Act.

         (2)   The Secretary must make an application calling upon the respondent to show cause why that order should not be confirmed.

Note   For application, see subregulation 3 (1).

         (3)   The Secretary must serve a copy of the application on the respondent.

Note   Service is dealt with by the Family Law Rules 1984.

28A         Hearings about applications about provisional overseas maintenance orders

         (1)   This regulation explains what may happen on the hearing of an application under subregulation 28 (2).

         (2)   It is open to the respondent to raise any ground of opposition that the respondent could have raised in the original proceedings or any ground of opposition that the respondent could have raised if the proceedings leading to the making of the provisional overseas order had been heard in Australia.

         (3)   The statement mentioned in subparagraph 28 (1) (c) (iii) is conclusive evidence of the grounds of opposition that could have been raised in the original proceedings.

         (4)   A court must not determine the application if an application could properly be made at that time, under the Child Support (Assessment) Act 1989, read with the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000, for administrative assessment of child support (within the meaning of that Act) by a person seeking payment of child support for the child from the respondent.

         (5)   Subregulation (4) has effect whether or not an application for administrative assessment of child support for the child has in fact been made.

         (6)   The court may:

                (a)    confirm the provisional order (either with or without modification); or

               (b)    discharge the provisional order; or

                (c)    adjourn the proceedings, and remit the provisional order to the court that made it with a request that that court take further evidence and further consider its provisional order.

28B         Making of orders about provisional overseas maintenance orders

         (1)   This regulation is about orders made under subregulation 28A (6).

         (2)   An order confirming a provisional order may specify:

                (a)    the time or times by which the money payable under the order is to be paid; and

               (b)    the person, authority or court to whom or to which that money is to be paid; and

                (c)    where necessary, the means by which that money must be paid or disbursed.

         (3)   A provisional order that is confirmed (whether with or without modification) is enforceable in Australia, as so confirmed, and has effect in Australia as if it were an order made under the Act.

         (4)   If the court adjourns the proceedings, the court may make a temporary order for periodic payments by the respondent.

         (5)   The Secretary must notify an officer of the court or other authority in the overseas jurisdiction of a decision of the court confirming or discharging an order.

[11]      Regulation 28A

substitute

28C         Dealing with United States petitions

         (1)   This regulation applies if:

                (a)    a petition is filed in a court in a State or Territory of the United States of America seeking a support order against a person claimed in the petition to have a duty of support; and

               (b)    that court gives a certificate to the effect that the petition sets out facts from which it may be determined that the person owes a duty of support; and

                (c)    the Secretary has received certified copies of the petition and the certificate, together with a copy of the provisions of the law of the State or Territory to which the petition and certificate relate; and

               (d)    there are reasonable grounds for believing that the person is ordinarily resident in, present in, or proceeding to, Australia.

         (2)   The Secretary must make an application calling on the person claimed in the petition to owe a duty of support to show cause why an order in the same terms as the order sought in the petition should not be made.

Note   For application, see subregulation 3 (1).

         (3)   The Secretary must serve a copy of the application on the person.

Note   Service is dealt with by the Family Law Rules 1984.

         (4)   In this regulation, a reference to a duty of support is a reference to a duty of support within the meaning of the law under which the relevant petition is filed in a State or Territory of the United States of America.

28D         Hearing of applications based on United States petitions

         (1)   This regulation explains what may happen on the hearing of an application under subregulation 28C (2).

         (2)   It is open to the respondent to raise any ground of opposition that the respondent:

                (a)    could have raised to the petition in the relevant court in the United States of America; or

               (b)    could raise in proceedings in relation to the provision of maintenance in a court having jurisdiction under the Act in Australia.

         (3)   A court must not determine the application if an application could properly be made, at that time, under the Child Support (Assessment) Act 1989, read with the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000, for administrative assessment of child support (within the meaning of that Act) by a person seeking payment of child support for the child from the respondent.

         (4)   Subregulation (3) has effect whether or not an application for administrative assessment of child support for the child has in fact been made.

         (5)   The court may:

                (a)    make an order for the provision of maintenance in the terms of the order sought in the petition (with or without modification); or

               (b)    refuse to make an order; or

                (c)    adjourn the proceedings and remit the petition and certificate to the court in which the petition was originally filed with a request that that court take further evidence and further consider the certifying of the petition.

         (6)   In this regulation:

certificate means a certificate mentioned in paragraph 28C (1) (b).

28E         Effect of orders about United States petitions

         (1)   An order that is made under regulation 28D may specify:

                (a)    the time or times by which the money payable under the order is to be paid; and

               (b)    the person, authority or court to whom or to which that money is to be paid; and

                (c)    where necessary, the means by which that money must be paid.

         (2)   If the court adjourns the proceedings under paragraph 28D (5) (c), the court may make a temporary order for periodic payments by the respondent.

         (3)   As soon as practicable after the court makes or refuses to make an order under this regulation, the Secretary must give notice of the decision to the court in which the petition was filed or other authority in the United States of America which caused the petition to be sent to the Secretary.

         (4)   In this regulation:

petition means a petition mentioned in paragraph 28C (1) (a).

[12]      Regulation 29

substitute

29            Power to make provisional order against person in reciprocating jurisdiction

         (1)   If a court is satisfied that a respondent to an application for a maintenance order is resident in, or on the way to, a reciprocating jurisdiction, the court may make an order in the absence of the respondent.

         (2)   Subregulation (1) applies even if the respondent has not been served with the application and has not consented to the order.

         (3)   The court can make any order that it could have made under subregulation (1) if the application had been served on the respondent and the respondent had failed to appear at the hearing of the application.

         (4)   A court must not make an order under subregulation (1) if an application could properly be made, at that time, under the Child Support (Assessment) Act 1989, read with the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000, for administrative assessment of child support (within the meaning of that Act) by a person seeking payment of child support for the child from the respondent.

         (5)   Subregulation (4) has effect whether or not an application for administrative assessment of child support for the child has in fact been made.

         (6)   An order under subregulation (1) is:

                (a)    provisional; and

               (b)    of no effect:

                          (i)    unless it is expressed to be provisional; and

                         (ii)    unless and until confirmed (either with or without modification) by a competent court in a reciprocating jurisdiction or a jurisdiction with restricted reciprocity in which the respondent is resident at the time of confirmation.

29A         Dealing with provisional order against person in reciprocating jurisdiction

         (1)   This regulation applies if a court makes an order under subregulation 29 (1).

         (2)   The registrar of the court must send to the Secretary:

                (a)    a copy of the depositions of the witnesses; and

               (b)    3 certified copies of the order; and

                (c)    a statement of the grounds on which the making of the order could have been opposed if the respondent had appeared at the hearing; and

               (d)    the information and material (if any) which the registrar has for working out the identity and whereabouts of the respondent.

         (3)   The Secretary must, on receipt of the documents and information mentioned in subregulation (2), send them to a court in the jurisdiction in which the respondent is resident or to which the respondent is proceeding, with a request in writing that proceedings be started for the confirmation and enforcement of the provisional order.

29B         Taking of further evidence

         (1)   If a court in a reciprocating jurisdiction remits an order sent to it under subregulation 29A (3) to the court in which the order was made for the taking of further evidence, the court must take the evidence, and must cause the depositions of the witnesses to be sent to the court in the reciprocating jurisdiction.

         (2)   Before taking the evidence, notice must be given to such persons and in such manner as the court thinks fit.

         (3)   If, on the taking of further evidence, it appears that the order ought not to have been made, the court may revoke the order or may make a fresh provisional order under subregulation 29 (1).

         (4)   A court that takes evidence because of a request made under subregulation (1) may, for subregulation (3), have regard to the evidence given in that other court.

29C         Confirmation of provisional order against person in reciprocating jurisdiction

         (1)   This regulation applies if a court in a reciprocating jurisdiction in which the respondent is resident for the time being confirms (either with or without modification) an order made under regulation 29.

         (2)   The order has effect in Australia as so confirmed.

         (3)   In proceedings arising out of or relating to the order, it must be presumed, unless the contrary is proved, that the respondent was resident in the overseas jurisdiction at the time the order was confirmed.

[13]      Regulation 30

substitute

30            Proceedings for enforcement of overseas maintenance entry liabilities

         (1)   This regulation is about enforcement proceedings for an overseas maintenance entry liability.

         (2)   Proceedings may be taken as if the liability were an order made under Part VII or VIII of the Act.

         (3)   The Act, these Regulations and the Rules of Court, so far as they are applicable, and with such modifications as are necessary, apply in relation to the proceedings.

         (4)   Proceedings may be taken:

                (a)    by the person who would be entitled to take proceedings if the liability were an order under Part VII or VIII of the Act, as mentioned in subregulation (2); or

               (b)    by the Secretary, on behalf of the person.

[14]      After subregulation 32 (3)

insert

         (4)   In this regulation:

registered means registered before 1 July 2000.

[15]      Regulation 33

omit

[16]      Subparagraph 34 (1) (b) (ii)

substitute

                         (ii)    the court or other authority in the prescribed overseas jurisdiction an officer of which signed the certificate for the agreement mentioned in paragraph 33 (2) (b) as in force before 1 July 2000;

[17]      After subregulation 34 (3)

insert

         (4)   In this regulation:

registered means registered before 1 July 2000.

[18]      Regulation 35

omit

[19]      Regulation 36

substitute

36            Party in Australia may apply to vary etc overseas maintenance order, agreeement 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.

[20]      Regulation 37

substitute

37            Discharge etc of overseas maintenance order or liability made in absence of party

         (1)   This regulation applies to an application that is made under subregulation 36 (1) if:

                (a)    the applicant is the person against whom an overseas maintenance order was made or the person who is liable to make payments because of a liability mentioned in paragraph 36 (1) (b); and

               (b)    the applicant did not have notice of the proceedings giving rise to the order or liability, did not appear in those proceedings and did not consent to the making of the order or to the creation of the liability; and

                (c)    the application is made within 6 months after the applicant was given notice that the order or liability is enforceable in Australia.

         (2)   On the hearing of the application, the applicant may raise any matter that the applicant could have raised under Part VII or VIII of the Act if the proceedings giving rise to the order or to the liability had been heard in Australia.

[21]      Regulation 38

substitute

38            Variation etc orders — status

         (1)   An order made under regulation 36 is provisional if the relevant reciprocating jurisdiction is one of the following jurisdictions:

Austria, Belgium, the Czech Republic, Denmark, Estonia, France, Germany, the Republic of Ireland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey and the United States of America.

         (2)   Such an order is final if the reciprocal jurisdiction is any other jurisdiction.

Note   For reciprocating jurisdiction, see regulation 24A.

38A         Making and effect of provisional variation etc orders

         (1)   This regulation applies if an order mentioned in subregulation 38 (1) is provisional.

         (2)   The order is of no effect:

                (a)    unless it is expressed to be provisional; and

               (b)    unless and until it is confirmed (either with or without modification) by a competent court of the reciprocating jurisdiction in which the overseas maintenance order affected by the provisional order was made (the foreign court).

         (3)   The order may be made even though the respondent has not been served with the application and has not consented to the order proposed in the application.

Note   For application, see subregulation 3 (1).

         (4)   The registrar of the court making the order must send a certified copy of the order, together with a copy of the depositions of the witnesses, to the Secretary.

         (5)   The Secretary must send a certified copy of the order, together with a copy of the depositions of the witnesses, to the foreign court.

         (6)   If the foreign court confirms the order (with or without modification), the order has effect in Australia as so confirmed.

38B         Taking of further evidence

         (1)   If the foreign court remits an order mentioned in subregulation 38 (1) for the taking of further evidence, the court to which the order has been remitted (the receiving court), after giving notice under subregulation (3), must take the evidence.

         (2)   The registrar of the receiving court must send a copy of the depositions of the witnesses whose evidence is taken under subregulation (1) to the foreign court.

         (3)   The receiving court must give notice of the taking of further evidence to the applicant for the order and to any other person the court thinks fit.

         (4)   The notice may be given in such manner as the court thinks fit.

         (5)   If, upon taking the further evidence, it appears to the court that the order ought not to have been made, the court may revoke the order and may make a new order.

[22]      Regulation 39

substitute

39            Confirmation of variations made provisionally in reciprocating jurisdiction

         (1)   This regulation applies if the Secretary receives:

                (a)    a certified copy of a provisional order made by a court in a reciprocating jurisdiction varying, discharging, suspending or reviving a maintenance order:

                          (i)    made in Australia and enforceable in that jurisdiction; or

                         (ii)    made in that jurisdiction and enforceable in Australia; and

               (b)    a copy of the depositions of the witnesses who gave evidence at the hearing of the application upon which the provisional order was made.

         (2)   The Secretary must apply to a court for an order confirming the provisional order.

         (3)   The Secretary must serve a copy of the application on the respondent.

         (4)   The court may:

                (a)    confirm the provisional order (with or without modification); or

               (b)    discharge the provisional order; or

                (c)    adjourn the proceedings and remit the provisional order to the court that made it with a request that the court take further evidence and further consider its provisional order.

         (5)   A provisional order that is confirmed under this regulation (whether with or without modification) has effect in Australia as if it were an order made by a court having jurisdiction under the Act.

         (6)   In this regulation, a reference to a provisional order includes a reference to a provisional variation of:

                (a)    an Australian maintenance agreement; or

               (b)    an overseas maintenance agreement.

[23]      After regulation 39

insert

Part IIIA              New Zealand

39A         Maintenance obligations with New Zealand (Act s 124A)

         (1)   A court must not determine an application for payment of child or spousal maintenance (whether under the Act or these Regulations) if:

                (a)    the person seeking payment is habitually resident in New Zealand; and

               (b)    determining the application would require the court to make a decision mentioned in Article 1.2 of the Australia–New Zealand Agreement.

Note   Article 1.2 of the Agreement is as follows:

For the purposes of this Agreement a decision shall include:

                    (a)    a child support assessment issued by an administrative authority;

                    (b)    an agreement to make payments for the maintenance of a child or spouse which has been registered with an administrative authority;

                    (c)    an assessment, order or agreement suspending, modifying or revoking a decision of the kind referred to in (a) or (b);

                    (d)    an order for child maintenance made by a judicial authority;

                    (e)    an order for spousal maintenance made by a judicial authority;

                     (f)    an agreement to make payments for the maintenance of a child or spouse which has been registered with a judicial authority;

                    (g)    an order or agreement suspending, modifying or revoking a decision of the kind referred to in (d), (e) or (f); and

                    (h)    a liability to pay an amount to an administrative authority for the maintenance of a child or as contribution to the cost of government benefits paid to a payee for the maintenance of a child.

         (2)   In this regulation:

Australia–New Zealand Agreement means the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance signed at Canberra on 12 April 2000.

Note   Section 124A of the Act authorises the making of regulations that may be inconsistent with the Act and prevail over the Act to the extent of any inconsistency.

Part IIIB              Parentage

39B         Extension of provisions of Act

         (1)   Subdivisions D (except subsection 69U (3)) and E of Division 12 of Part VII of the Act apply, subject to this regulation, to proceedings for the purposes of an international agreement or arrangement with a reciprocating jurisdiction or a jurisdiction mentioned in Schedule 4.

Note   Section 124A of the Act authorises the making of regulations that may be inconsistent with the Act.

         (2)   For subregulation (1), each reciprocating jurisdiction and each jurisdiction mentioned in Schedule 4 is a prescribed overseas jurisdiction.

         (3)   Matters mentioned in this regulation are taken to be matters arising under the Act for the purposes of the application of section 69H of the Act in relation to those matters.

         (4)   Despite subsections 69S (1) and 69U (3) of the Act, the presumption of parentage provided for by subsection 69S (1) is taken, for these Regulations, to be rebuttable under subsection 69U (1) of the Act.

Note   Subsection 69U (3) is not extended by subregulation (1).

         (5)   The Secretary may commence or continue proceedings under section 69W of the Act if it is necessary or convenient to do so for the purposes of an international agreement or arrangement.

         (6)   Despite section 69X of the Act, a court must order that the costs of any parentage testing procedure ordered in proceedings mentioned in subregulation (5) are payable by a party to those proceedings who:

                (a)    contested the making of a maintenance assessment or court order for child support on the ground of not being the parent of the child; or

               (b)    contested the enforcement of an overseas maintenance order, agreement or assessment on the ground of not being the parent of the child.

         (7)   If a parentage testing procedure that is ordered by a court in proceedings mentioned in subregulation (5) establishes that a party contesting parentage in those proceedings was not a parent of the child, the court may order that the costs of the procedure are payable by the Secretary.

         (8)   A report in relation to information obtained as a result of a parentage testing procedure, received by the Secretary from an administrative or judicial authority in a reciprocating jurisdiction or a jurisdiction mentioned in Schedule 4, may be received in evidence in any proceedings under the Act.

Note   For jurisdiction of courts in relation to matters under this Part, see Part IIIC.

Part IIIC              Jurisdiction of courts and related matters

39C         Jurisdiction of courts

                To the extent that subsections 39 (5) and (6) and section 69H of the Act do not invest the courts of a State or Territory mentioned in those provisions with federal jurisdiction, or confer jurisdiction on a federal court mentioned in those provisions, for proceedings mentioned in Part III or IIIB, the relevant courts are invested with jurisdiction, or jurisdiction is conferred on them for those proceedings, by this regulation.

Note   Subsection 124A (2) of the Act authorises the making of regulations conferring jurisdiction on a court or investing a court with jurisdiction.  Under subsection 124A (3), the regulations may be inconsistent with the Act.

39D         Security for costs

         (1)   Despite section 117A of the Act, a court must not make an order for security for costs in a proceeding to which Division 2 of Part III, IIIB or IV applies if the reciprocating jurisdiction to which the proceeding relates is mentioned in subregulation (2).

         (2)   The reciprocating jurisdictions are Belgium, Czech Republic, Denmark, Finland, Estonia, France, Germany, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovak Republic, Spain, Sweden, Switzerland, Turkey, United Kingdom.

[24]      Regulation 40, definitions of authorized person and Controller

omit

[25]      Regulations 41, 42, 43 and 44

omit

[26]      Regulation 45

substitute

45            Immunity of Secretary from orders to pay costs

                The Secretary must not be made subject to any order to pay costs over the exercise of powers or performance of functions given to the Secretary under these Regulations.

Note   Secretary includes a person authorised to perform a function: see subregulation 3 (1).

[27]      Regulation 46

omit

[28]      Regulation 47

omit

[29]      Regulation 49

omit

[30]      Regulation 50

substitute

50            Applications by persons in convention countries for recovery of maintenance under Commonwealth, State or Territory law

         (1)   This regulation applies if:

                (a)    the Secretary receives from a Transmitting Agency in a convention country an application for:

                          (i)    recovery of maintenance that a person claims is required, under a law of the Commonwealth or of a State or Territory, to be paid by another person; or

                         (ii)    variation of an existing order for maintenance; and

               (b)    there are no reasonable grounds for believing that the other person is not subject to the jurisdiction of the Commonwealth or of a State or Territory.

         (2)   The Secretary may do anything required to be done on behalf of the claimant by a Receiving Agency under the Convention to recover the maintenance.

         (3)   Things that may be done by the Secretary do not include registration or enforcement of an order mentioned in, or sought by, the application.

         (4)   However, an Australian court may, in proceedings under this Part, have regard to the application and the record of proceedings of a court that made any order to which the application relates.

         (5)   This regulation does not affect the operation of Part III of these Regulations.

50A         Proceedings on behalf of persons in convention countries for recovery of maintenance

         (1)   This regulation applies to proceedings under this Part in a court on behalf of a claimant.

         (2)   The court must proceed as if the claimant were before the court.

         (3)   A court must not make a maintenance order in proceedings under this Part if an application could properly be made at that time, under the Child Support (Assessment) Act 1989, read with the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000, for administrative assessment of child support (within the meaning of that Act) by a person seeking payment of child support for the child from the respondent.

         (4)   Subregulation (3) has effect whether or not an application for administrative assessment of child support for the child has in fact been made.

         (5)   The Secretary may do anything that is required or authorised to be done by an applicant in proceedings in that court in relation to maintenance.

         (6)   In any document to be filed in, or issued out of, the court, the Secretary may be described as the Secretary of the Attorney-General’s Department acting on behalf of the claimant whose name must be set out in the document.

50B         Return of applications

         (1)   If, in relation to an application mentioned in subregulation 50 (1) received from a Transmitting Agency in a convention country, a summons or other document that requires the other person mentioned in that subregulation to appear in proceedings under this Part cannot be served on the other person, the Secretary must send to that Agency a statement giving whatever information the Secretary has been able to obtain concerning the whereabouts of that other person and must return the application to that Agency.

         (2)   For section 89A of the Act, the office of Secretary is a prescribed office.

         (3)   Subregulation (2) does not limit the functions of the Secretary under this Part.

[31]      Regulation 52

omit

[32]      Regulation 53

substitute

53            Taking of evidence at request of appropriate authority in convention countries

         (1)   This regulation applies if the Secretary receives a request from the appropriate authority to obtain evidence concerning specified matters about an application under the law of a convention country:

                (a)    to recover maintenance from another person; or

               (b)    to the variation of an order made in that country for payment of maintenance by another person;

                where the person is subject to the jurisdiction of that country.

         (2)   The Secretary and any court exercising jurisdiction under the Act must do anything required to be done under the Convention to obtain the evidence.

         (3)   When the evidence is obtained, the Secretary must send a certified copy of a record of the evidence to the appropriate authority.

         (4)   If under subregulation (2), the Secretary requests a court to take evidence for the proceedings mentioned in subregulation (1), the Court must give notice of the time when, and the place where, the evidence is to be taken to:

                (a)    the Secretary; and

               (b)    the person from whom the maintenance is claimed; and

                (c)    the appropriate authority.

         (5)   The notice must be sufficient, in the opinion of the court, to enable the parties to the proceedings to attend or be represented at the taking of the evidence.

         (6)   In this regulation:

appropriate authority, in relation to a request to obtain evidence for proceedings in a convention country, means:

                (a)    the Transmitting Agency for that country under the convention; or

               (b)    a court in that country; or

                (c)    if the request is made through the Child Support Registrar, that Registrar.

[33]      Subregulations 54 (1) and (3)

omit each mention of

Controller

insert

Secretary

[34]      After regulation 80

insert

81            Transitional matters in connection with Family Law Amendment Regulations 2000 (No. 2)

         (1)   The former Regulations continue in force in relation to:

                (a)    pending proceedings; and

               (b)    acts or things that have been done, or that may or must be done, in accordance with those Regulations.

         (2)   An act or thing that may or must be done by the Controller or an authorised person under Part IV of the former Regulations, as continued in force, may or must be done by the Secretary.

         (3)   In this regulation:

former Regulations means the Family Law Regulations 1984 as in force immediately before 1 July 2000.

pending proceedings means proceedings that were started in accordance with the former Regulations before 1 July 2000 but were not completed before that date.

[35]      Schedule 2

substitute

Schedule 2        Reciprocating jurisdictions

(regulation 25)

 


Austria

Belarus

Belgium

Brunei

Canada, the following Provinces and Territories:

       Alberta

       British Columbia

       Manitoba

       New Brunswick

       Newfoundland

       Northwest Territories

       Nova Scotia

       Nunavut

       Ontario

       Prince Edward Island

       Saskatchewan

       Yukon

Territory of Christmas Island

Territory of Cocos (Keeling) Islands

Colombia

Cook Islands

Cyprus

Czech Republic

Denmark

Estonia

Fiji

France

Germany

Gibraltar

Kazakstan

Hong Kong

India

Republic of Ireland

Italy

Kenya

Luxembourg

Malawi

Malaysia

Malta

Nauru

Niue

Netherlands

New Zealand

Norway

Papua New Guinea

Poland

Portugal

Sierra Leone

Singapore

Slovak Republic

South Africa

Spain

Sri Lanka

Sweden

Switzerland

Tanzania (excluding Zanzibar)

Trinidad and Tobago

Turkey

United Kingdom, including Alderney, Guernsey, Isle of Man, Jersey and Sark

United States of America

Western Samoa

Zambia

Zimbabwe


Notes

1.       These Regulations amend Statutory Rules 1984 No. 426, as amended by 1985 No. 183; 1986 Nos. 140 and 393; 1987 Nos. 85 and 175; 1988 Nos. 42, 44, 164 and 165; 1989 Nos. 8, 53, 74, 155, 205, 235 and 326; 1990 Nos. 294 and 373; 1991 Nos. 401 and 447 (disallowed by the Senate on 3 March 1992); 1992 Nos. 33, 160, 287, 376 and 404; 1994 Nos. 86 and 343; 1995 Nos. 297, 400 and 419; 1996 Nos. 71, 188 (as amended by 1996 No. 201), 253 and 265; 1997 Nos. 157 (disallowed by the Senate on 24 November 1997), 232, 251 and 376; 1998 Nos. 39, 121, 222, 270 and 329; 1999 Nos. 39 and 173; 2000 No. 16.

2.       Made by the Governor-General on 25 May 2000, and notified in the Commonwealth of Australia Gazette on 26 May 2000.