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FAMILY LAW AMENDMENT REGULATIONS 2000 (NO. 2) 2000 NO. 81 - SCHEDULE 1
Amendments
(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.
Not e
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
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