Family Law Regulations (Amendment) (Cth)
I, THE
GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of
the Federal Executive Council, hereby make the following Regulations under the
Dated 11 November 1983.
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
GARETH EVANS
Attorney-General
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“PART XVIA—RECIPROCAL ENFORCEMENT OF CLAIMS FOR MAINTENANCE
“156a. (1) In this Part, unless the contrary intention appears—
‘authorized person’ means a person appointed under sub-regulation 156f (1) to be an authorized person;
‘Controller’ means the person appointed under sub-regulation 156b to be the Controller of Overseas Maintenance Claims;
‘Convention’ means the Convention on the Recovery Abroad of Maintenance, referred to in section 111 of the Act, a copy of the English text of which is set out in Schedule 4 to these Regulations;
‘convention country’ means a country that under regulation 156h is a convention country;
‘receiving agency’ has the meaning it has in the Convention;
‘transmitting agency’ has the meaning it has in the Convention.
“(2) In this Part, unless the contrary intention appears—
(a) a reference to payment of money for the maintenance of a child includes a reference to payment of money for the child’s education; and
(b) a reference to proceedings under this Part in a court includes a reference to proceedings on appeal from original proceedings under this Part.
“(3) The purpose of this Part is to give effect to section 111 of the Act.
“156b. The Attorney-General shall appoint an officer of the Australian Public Service to be the Controller of Overseas Maintenance Claims.
“156c. The Controller may resign his office by writing signed by him and delivered to the Attorney-General.
“156d. (1) In addition to the other functions conferred upon him by this Part, the functions of the Controller are
(a) subject to any directions of the Attorney-General, to do, or co-ordinate the doing of, anything that is required to be done for the purpose of performing the obligations of Australia under the Convention;
(b) to provide to persons such legal advice and assistance as is required to be provided for the purpose of performing those obligations; and
(c) to advise the Attorney-General, either on the Controller’s initiative or upon a request made to him by the Attorney-General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations.
“(2) The Controller shall have, and may exercise, in Australia all the powers, and shall perform all the functions, that a transmitting agency and receiving agency have under the Convention.
“156e. (1) The Attorney-General may appoint an officer of the Australian Public Service to act as the Controller—
(a) during a vacancy in the office of Controller, whether or not an appointment has previously been made to the office;
(b) during any period, or during all periods, when the Controller is, or is about to be, absent from duty or from Australia or is for any reason unable to perform the functions of his office.
“(2) Where the office of Controller becomes vacant while a person is acting as the Controller, that person may continue so to act until the Attorney-General otherwise directs or until the vacancy is filled.
“(3) An appointment of a person to act as the Controller ceases to have effect if he resigns his appointment by writing signed by him and delivered to the Attorney-General.
“(4) While a person is acting as the Controller, he has and may exercise all the powers, and shall perform all the functions, of the Controller.
“(5) An appointment of a person under sub-regulation (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
“(6) The validity of anything done by or in relation to a person purporting to act in pursuance of an appointment under sub-regulation (1) shall not be called in question on the ground that the occasion for his appointment had not arisen, that there is a defect or irregularity in or in connection with his appointment, that the appointment had ceased to have effect or that the occasion for him to act had not arisen or had passed.
“156f. (1) The Attorney-General may appoint a person to be an authorized person for the purposes of this Part.
“(2) An appointment of a person under sub-regulation (1) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.
“156g. (1) Subject to sub-regulations (2) and 156f (2), an authorized person has and may exercise all the powers, and may perform all the functions, of the Controller.
“(2) Where in relation to a claimant, or a class of claimants, referred to in regulation 156j or 156k, or in relation to specified circumstances, the Controller by instrument in writing directs an authorized person not to exercise a power, or perform a function, of the Controller, the authorized person shall not exercise that power or perform that function.
“156h. For the purposes of this Part, the countries referred to in Schedule 5 are convention countries.
“156j. (1) Where a person claims—
(a) to be entitled under the law of a convention country—
(i) to recover maintenance from another person; or
(ii) to variation of an order made in that country for payment of maintenance by another person; and
(b) that that other person is subject to the jurisdiction of that country,
he may apply to the Controller through an authorized person to have his claim transmitted to a receiving agency in that country.
“(2) An application under sub-regulation (1) shall be accompanied by a photograph of the claimant and, if practicable, by a photograph of the person from whom maintenance is claimed.
“(3) Unless the Controller is satisfied that a claim referred to in sub-regulation (1) for maintenance is not in accordance with the requirements of the Convention he shall take on behalf of the claimant any action required to be taken by a transmitting agency under the Convention to recover the maintenance.
“156k. (1) Where the Controller receives from a transmitting agency in a convention country an application for the 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 and 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, the Controller shall take on behalf of the claimant (through an authorized person if he thinks fit) any action required to be taken by a receiving agency under the Convention to recover the maintenance.
“(2) In proceedings under this Part in a court on behalf of the claimant—
(a) the court shall proceed as if the claimant were before the court; and
(b) the Controller or an authorized person shall, if so authorized by the claimant, do on behalf of the claimant anything that is required or authorized to be done by an applicant in proceedings in that court with respect to maintenance.
“(3) In proceedings under this Part in a court on behalf of a claimant, the Controller or an authorized person shall, in any document to be filed in, or issued out of, the office of the court, be titled as the Controller of Overseas Maintenance Claims acting on behalf of the claimant whose name shall be set out in the document.
“(4) Notwithstanding sub-regulation (2), in proceedings under this Part in a court, the Controller or an authorized person shall not, without the leave of the court, settle or compromise the proceedings or take any other action that is not, or may not be, for the benefit of the claimant.
“(5) Where, in relation to an application referred to in sub-regulation (1) received from a transmitting agency in a convention country, a summons or other document that requires the other person referred to in that sub-regulation to appear in proceedings under this Part cannot be served on the other person, the Controller shall furnish that agency with a statement giving whatever information he has been able to obtain concerning the whereabouts of that other person and shall return the application to that authority.
“(6) For the purposes of section 89a of the Act, the office of Controller is a prescribed office.
“(7) Nothing in sub-regulation (6) limits the functions of the Controller under this Part.
“156l. Notwithstanding any other provision of these Regulations, in order to prevent proceedings under this Part from being unduly protracted, a request under regulation 82, 83, 86, 88, sub-regulation 94 (2) or regulation 95 shall not be made by the respondent in the proceedings without the leave of the court.
“156m. (1) Notwithstanding any other provision of these Regulations, sums of money required to be paid by a person in Australia under an order of a court in proceedings under this Part shall be paid to the court or to such person as the court directs.
“(2) A court that receives under sub-regulation (1) a sum of money with respect to a claim for maintenance transmitted to the Controller by a transmitting agency in a convention country shall, as soon as practicable, remit the money to that agency.
“156n. (1) Where under the Convention the Controller receives a request from a transmitting agency or a court in a convention country to obtain evidence concerning specified matters connected with an application referred to in regulation 156j, the Controller and any court exercising jurisdiction under the Act shall take any action required to be taken under the Convention to obtain the evidence and the Controller shall transmit a certified copy of a record of the evidence to the transmitting agency or court in that country.
“(2) Where under sub-regulation (1) the Controller or an authorized person requests a court to take evidence with respect to proceedings for the recovery of maintenance, the court shall give to the Controller or the authorized person, the person from whom the maintenance is claimed and the
transmitting agency or court in the convention country such notice of the time when, and place where, the evidence is to be taken as, in the opinion of the court, is required to enable the parties to the proceedings to attend, or be represented at, the taking of the evidence.
“156p. (1) In proceedings in a court under this Part on behalf of a claimant in a convention country, the court may require the Controller or an authorized person to request the transmitting agency in the convention country to obtain evidence required for the proceedings.
“(2) A requirement by a court under this regulation shall set out—
(a) the names and addresses of the claimant and respondent in the proceedings;
(b) the name and address of any person whose evidence is to be taken; and
(c) the matters concerning which evidence is required.
“(3) The Controller shall transmit to the transmitting agency in the convention country a request that he has been required under this regulation to make and shall request the agency to give him and the respondent in the proceedings notice of the time when, and place where, the evidence is to be taken in order that the respondent may attend, or be represented at, the taking of the evidence.
“(4) Nothing in this regulation affects the operation of regulation 118.
“156q. In proceedings under this Part in a court, a statement contained in a document
(a) purporting to set out or summarize evidence given in proceedings in a court in a convention country and to have been signed by the person before whom the evidence was given;
(b) purporting to set out or summarize evidence taken in a convention country for the purpose of proceedings under this Part in a court (whether in response to a request made by the court or otherwise) and to have been signed by the person before whom the evidence was taken; or
(c) purporting to have been received as evidence in proceedings in a court in a convention country and to have been signed by a judge or other officer of the court,
is admissible as evidence of any fact stated in the document to the same extent as-oral evidence of that fact is admissible in those proceedings, without proof of the signature of the person purporting to have signed it or of his official position.
“156r. In proceedings under this Part in a court, a document purporting to be an order, or a copy of an order, of a court in a convention country and to
have been signed by a judge or other officer of the court is admissible as evidence of that order without proof of the signature of the person purporting to have signed it or of his official position.”.
PREAMBLE
SCOPE OF THE CONVENTION
1. The purpose of this convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies which will hereinafter be referred to as Transmitting and Receiving Agencies.
2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.
DESIGNATION OF AGENCIES
1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities which shall act in its territory as Transmitting Agencies.
2. Each Contracting party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body which shall act in its territory as Receiving Agency.
3. Each Contracting Party shall promptly communicate to the Secretary-General of the United Nations the designations made under paragraphs 1 and 2 and any changes made in respect thereof.
4. Transmitting and Receiving Agencies may communicate directly with Transmitting and Receiving Agencies of other Contracting Parties.
APPLICATION TO TRANSMITTING AGENCY
1. Where a claimant is in the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovers of maintenance from the respondent.
2. Each Contracting Party shall inform the Secretary-General as to the evidence normally required under the law of the State of the Receiving Agency for the proof of maintenance claims, of the manner in which such evidence should be submitted, and of other requirements to be complied with under such law.
3. The application shall be accompanied by all relevant documents, including, where necessary, a power of attorney authorizing the Receiving Agency to act, or to appoint some other person to act, on behalf of the claimant. It shall also be accompanied by a photograph of the claimant and, where available, a photograph of the respondent.
4. The Transmitting Agency shall take all reasonable steps to ensure that the requirements of the law of the State of the Receiving Agency are complied with; and, subject to the requirements of such law, the application shall include:
(
a )the full name, address, date of birth, nationality, and occupation of the claimant, and the name and address of any legal representative of the claimant;(
b )the full name of the respondent, and, so far as known to the claimant, his addresses during the preceding five years, date of birth, nationality, and occupation;(
c )particulars of the grounds upon which the claim is based and of the relief sought, and any other relevant information such as the financial and family circumstances of the claimant and the respondent.
TRANSMISSION OF DOCUMENTS
1. The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in good faith.
2. Before transmitting such documents, the Transmitting Agency shall satisfy itself that they are regular as to form, in accordance with the law of the State of the claimant.
3. The Transmitting Agency may express to the Receiving Agency an opinion as to the merits of the case and may recommend that free legal aid and exemption from costs be given to the claimant.
TRANSMISSION OF JUDGMENTS AND OTHER JUDICIAL ACTS
1. The Transmitting Agency shall, at the request of the claimant, transmit, under the provisions of article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in a competent tribunal of any of the Contracting Parties, and, where necessary and possible, the record of the proceedings in which such order was made.
2. The orders and judicial acts referred to in the preceding paragraph may be transmitted in substitution for or in addition to the documents mentioned in article 3.
3. Proceedings under article 6 may include, in accordance with the law of the State of the respondent, exequatur or registration proceedings or an action based upon the act transmitted under paragraph 1.
FUNCTIONS OF THE RECEIVING AGENCY
1. The Receiving Agency shall, subject always to the authority given by the claimant, take, on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.
2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reasons and return the documents.
3. Notwithstanding anything in this Convention, the law applicable in the determination of all questions arising in any such action or proceedings shall be the law of the State of the respondent, including its private international law.
LETTERS OF REQUEST
If provision is made for letters of request in the laws of the two Contracting Parties concerned, the following rules shall apply:
(
a )A tribunal hearing an action for maintenance may address letters of request for further evidence, documentary or otherwise, either to the competent tribunal of the other Contracting Party or to any other authority or institution designated by the other Contracting Party in whose territory the request is to be executed.
(
b )In order that the parties may attend or be represented, the requested authority shall give notice of the date on which and the place at which the proceedings requested are to take place to the Receiving Agency and the Transmitting Agency concerned, and to the respondent.(c) Letters of request shall be executed with all convenient speed; in the event of such letters of request not being executed within four months from the receipt of the letters by the requested authority, the reasons for such non-execution or for such delay shall be communicated to the requesting authority.
(
d )The execution of letters of request shall not give rise to reimbursement of fees or costs of any kind whatsoever.(
e )Execution of letters of request may only be refused:(1) If the authenticity of the letters is not established:
(2) If the Contracting Party in whose territory the letters are to be executed deems that its sovereignty or safety would be compromised thereby.
VARIATION OF ORDERS
The provisions of this Convention apply also to applications for the variation of maintenance orders.
EXEMPTIONS AND FACILITIES
1. In proceedings under this Convention, claimants shall be accorded equal treatment and the same exemptions in the payment of costs and charges as are given to residents or nationals of the State where the proceedings are pending.
2. Claimants shall not be required, because of their status as aliens or non-residents, to furnish any bond or make any payment or deposit as security for costs or otherwise.
3. Transmitting and Receiving Agencies shall not charge any fees in respect of services rendered under this Convention.
TRANSFER OF FUNDS
A Contracting Party, under whose law the transfer of funds abroad is restricted, shall accord the highest priority to the transfer of funds payable as maintenance or to cover expenses in respect of proceedings under this Convention.
FEDERAL STATE CLAUSE
In the case of a Federal or non-unitary State, the following provisions shall apply:
(
a )With respect to those articles of this Convention that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent be the same as those of Parties which are not Federal States;(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment;
(c) A Federal State Party to this Convention shall, at the request of any other Contracting Party transmitted through the Secretary-General, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Convention, showing the extent to which effect has been given to that provision by legislative or other action.
TERRITORIAL APPLICATION
The provisions of this Convention shall extend or be applicable equally to all non-self-governing, trust or other territories for the international relations of which a Contracting Party is responsible, unless the latter, on ratifying or acceding to this Convention, has given notice that the Convention shall not apply to any one or more of such territories. Any Contracting Party making such a declaration
may, at any time thereafter, by notification to the Secretary-General, extend the application of the Convention to any or all of such territories.
SIGNATURE, RATIFICATION AND ACCESSION
1. This Convention shall be open for signature until 31 December 1956 on behalf of any Member of the United Nations, any non-member State which is a Party to the Statute of the International Court of Justice, or member of a specialized agency, and any other non-member State which has been invited by the Economic and Social Council to become a Party to the Convention.
2. This Convention shall be ratified. The instruments of ratification shall be deposited with the Secretary-General.
3. This Convention may be acceded to at any time on behalf of any of the States referred to in paragraph 1 of this article. The instruments of accession shall be deposited with the Secretary-General.
ENTRY INTO FORCE
1. This Convention shall come into force on the thirtieth day following the date of deposit of the third instrument of ratification or accession in accordance with article 13.
2. For each State ratifying or acceding to the Convention after the deposit of the third instrument of ratification or accession, the Convention shall enter into force on the thirtieth day following the date of the deposit by such State of its instrument of ratification or accession.
DENUNCIATION
1. Any Contracting Party may denounce this Convention by notification to the Secretary-General. Such denunciation may also apply to some or all of the territories mentioned in Article 12.
2. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General, except that it shall not prejudice cases pending at the time it becomes effective.
SETTLEMENT OF DISPUTES
If a dispute should arise between Contracting Parties relating to the interpretation or application of this Convention, and if such dispute has not been settled by other means, it shall be referred to the International Court of Justice. The dispute shall be brought before the Court either by the notification of a special agreement or by a unilateral application of one of the parties to the dispute.
RESERVATIONS
1. In the event that any State submits a reservation to any of the articles of this Convention at the time of ratification or accession, the Secretary-General shall communicate the text of the reservation to all States which are Parties to this Convention, and to the other States referred to in article 13. Any Contracting Party which objects to the reservation may, within a period of ninety days from the date of the communication, notify the Secretary-General that it does not accept it, and the Convention shall not then enter into force as between the objecting State and the State making the reservation. Any State thereafter acceding may make such notification at the time of its accession.
2. A Contracting Party may at any time withdraw a reservation previously made and shall notify the Secretary-General of such withdrawal.
RECIPROCITY
A Contracting Party shall not be entitled to avail itself of this Convention against other Contracting Parties except to the extent that it is itself bound by the Convention.
NOTIFICATIONS BY THE SECRETARY-GENERAL
1. The Secretary-General shall inform all Members of the United Nations and the non-member States referred to in article 13:
(
(
(c) of declarations and notifications made under article 12;
(
(
e )of the date on which the Convention has entered into force under paragraph 1 of article 14;(
f ) of denunciations made under paragraph 1 of article 15;
(
2. The Secretary-General shall also inform all Contracting Parties of requests for revision and replies thereto received under article 20.
REVISION
1. Any Contracting Party may request revision of this Convention at any time by a notification addressed to the Secretary-General.
2. The Secretary-General shall transmit the notification to each Contracting Party with a request that such Contracting Party reply within four months whether it desires the convening of a Conference to consider the proposed revision. If a majority of the Contracting Parties favour the convening of a Conference it shall be convened by the Secretary-General.
LANGUAGES AND DEPOSIT OF CONVENTION
The original of this Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General, who shall transmit certified true copies thereof to all States referred to in article 13.
Regulation 156h | |||
CONVENTION COUNTRIES | |||
Algeria | Finland | Monaco | Sweden |
Argentina | France | Morocco | Switzerland |
Austria | German Federal | Netherlands | Tunisia |
Barbados | Republic | Niger | Turkey |
Belgium | Greece | Norway | United Kingdom |
Brazil | Guatemala | Pakistan | Upper Volta |
Central African Republic | Haiti | Philippines | Yugoslavia |
Holy See | Poland | ||
Chile | Hungary | Portugal | |
Czechoslovakia | Israel | Spain | |
Denmark | Italy | Sri Lanka | |
Ecuador | Luxembourg | Suriname | |
1.
Notified in the
2. Statutory Rules 1975 No. 210 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1983 No. 243 andsee also
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