EXPLANATORY STATEMENT
Family Law Act 1975
Family Law Regulations (Amendment)
(Statutory Rules 1983 No. 273)
Section 111 of the Act provides that the regulations may make such provision as is necessary to enable the performance of the obligations of Australia under the Convention on the Recovery Abroad of Maintenance signed at New York on 20 June 1956 (the Convention). The purpose of the proposed regulations is to amend the Family Law Regulations (the principal Regulations) to incorporate into the principal Regulations, a new Part XVIA providing for the establishment of the administrative arrangements which will enable the performance of the obligations of Australia under the Convention.
Under section 111 of the Act the proposed regulations shall not come into operation until the day on which the Convention enters into force for Australia.
Details of the proposed regulations are at attachment A.
(Authorized by the Attorney-General)
Attachment A
Details of Proposed Regulations
Regulation 1 provides for the insertion of a new Part XVIA of the regulations containing the following new regulations:
Regulation 156A provides for the interpretation of:
“authorized person”;
“Controller”;
“Convention”;
“convention country”;
“receiving agency”; and
“transmitting agency”
for the purposes of the proposed new Part XVIA of the principal Regulations. It also provides that a reference to maintenance of a child includes a reference to payment of money for the child’s education and a reference to a court includes a reference to proceedings on appeal from original proceedings under the proposed new Part. The regulation also provides that the purpose of the new Part is to give effect to section 111 of the Act.
Regulation 156B provides that the Attorney-General shall appoint an officer of the Australian Public Service to be the Controller of Overseas Maintenance Claims.
Regulation 156C provides that the Controller may resign his office by writing signed by him and delivered to the Attorney-General.
Regulation 156D sets out the functions of the Controller enabling the performance of all the functions of a transmitting and receiving agency under the Convention. It also provides that the Controller may give such legal advice and assistance to persons as is required for the purpose of performing his functions under
the Convention and that he may advise the Attorney-General, either by his own initiative or at the request of the Attorney-General, on all matters that concern the Convention, including the need for additional legislation.
Regulation 156E provides that the Attorney-General may appoint an Acting Controller during a vacancy in the office of the Controller or during any absence of the Controller. The regulation also sets out the functions and powers of the Acting Controller.
Regulation 156F enables the Attorney-General to appoint an authorized person for the purposes of the new Part with such limitations as may be imposed in the instrument of appointment.
Regulation 156G specifies the powers and functions of authorised persons appointed under proposed sub-regulation 156F(1). The functions of an authorized person may be limited by sub-regulation 156F(2) and 156G(2) as an authorised person will not necessarily be required to perform all the powers and functions required to be performed by the Controller under the Convention.
Regulation 156H provides that for the purposes of the Convention, Convention countries are the countries referred to in new Schedule 5.
Regulation 156J provides that if a person claims to be entitled to either recover maintenance from another person or to make an application for the variation of an existing order, and that other person is subject to the jurisdiction of a convention country, he may make an application to the Controller, through an authorised person, to have his claim transmitted to that country to enable proceedings to be taken in accordance with the Convention. Such an application shall be accompanied by a photograph of the claimant and, where possible, of the respondent.
Sub-regulation (3) provides that the Controller shall not take any action on behalf of a claimant unless he is satisfied that the claim is made in accordance with the requirements of the Convention. This provision complies with the requirements of the Convention.
Regulation 156K provides that the Controller may take any action required by a receiving agency under the Convention to recover maintenance when he receives from a transmitting agency, in a convention country, an application for the recovery of maintenance. Before the Controller takes any action, whether by himself or through an authorised person, he must be satisfied that there are no reasonable grounds for believing the respondent is not subject to the jurisdiction of the Commonwealth or of a State or Territory.
Sub-regulation (2) enables a court to proceed in the absence of the claimant and provides that the Controller or authorised person may take any action that is required or authorized to be done by an applicant in proceedings in that court in relation to maintenance claims.
Sub-regulation (3) provides that in proceedings under the new Part, the Controller shall be titled as the Controller of Overseas Maintenance Claims acting on behalf of the claimant (whose name shall appear in all documents filed in, or issued out of, the Court).
Sub-regulation (4) prohibits the Controller or an authorized person from settling, compromising the proceedings or taking any other action which may not be for the benefit of the claimant, without first obtaining the leave of the court.
Sub-regulation (5) provides that where a respondent cannot be found the Controller shall inform the transmitting agency.
He shall also provide that agency with any information concerning the whereabouts of the respondent. The Controller may also return the claim.
Sub-regulation (6) provides that the office of Controller is a prescribed office for the purposes of section 89A of the Act. This enables him to institute and prosecute proceedings with respect to the maintenance of a party to a marriage or of a child of a marriage, on behalf of that party or child. However, sub-regulation (7) establishes that the Controller’s functions under the Convention are not limited by sub-regulation (6).
Regulation 156L prevents proceedings from becoming unduly protracted by providing that applications under regulation 82, 83, 86, 88, sub-regulation 94(2) or regulation 95 of the principal Regulations shall not be made by the respondent without the leave of the Court.
Regulation 156M makes provisions concerning the method of payment of sums under orders of a court and provides that the payments are made to the transmitting agency in a convention country as soon as practicable.
Regulation 156N establishes the procedure to be followed where a request is made by a convention country to take evidence in Australia for the purposes of proceedings in that convention country instituted by a claimant under new regulation 156J. A certified copy of any evidence taken is to be sent to the transmitting agency or court in the requesting convention country.
Sub-regulation (2) requires that sufficient notice concerning any proceedings for the taking of evidence must be given to all parties to enable them to attend or be represented at the proceedings.
Regulation 156P is a similar regulation to new regulation 156N, however, it provides for requests to be made for the obtaining of evidence in a convention country for the purposes of proceedings in a court under the new Part on behalf of a claimant residing in a convention country. Nothing in this regulation is to affect the operation of regulation 118 of the principal Regulations which relates to orders for examination of witnesses and letters of request.
Regulation 156Q provides that evidence taken in a convention country for the purpose of proceedings under this new Part is admissible as evidence of any fact if it is a statement contained in a document which sets out or purports to set out a summary of evidence given in proceedings in a court in a convention country. The document must be signed by the one of three persons specified in the regulation.
Regulation 156R permits the admission in evidence of orders of courts made in convention countries for the purpose of proceedings under the new Part if they are contained in a document purporting to be signed by a judge or other officer of the court in that convention country.
Regulation 2 provides for the insertion of 2 new schedules at the end of the principal Regulations. Schedule 4 is a copy of the English text of the Convention and Schedule 5 lists the countries which are convention countries for the purposes of the Convention.