Family Law Regulations (Amendment) 1992 No. 33
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 33
Issued by the Authority of the Minister for Justice and Consumer Affairs
Family Law Act 1975
Family Law Regulations (Amendment)
Subsection 125(1) of the Family Law Act 1975 (the Act) empowers the Governor-General to make regulations for the purposes of the Act.
Section 60 of the Act provides that "overseas custody order" means an order made by a court of a prescribed overseas jurisdiction. Section 69 of the Act provides that the regulations may allow an Australian custody or access order to be transmitted to a prescribed overseas jurisdiction. Regulation 14 provides that a country, or part of a country outside Australia specified in Schedule 1A, is declared to be a prescribed overseas jurisdiction for the purposes of sections 60 and 69 of the Act.
The proposed regulations will declare Switzerland, and the State of Ohio of the United States of America as prescribed overseas jurisdictions in Schedule 1A. The amendment will enable Australia to extend its current arrangements for the reciprocal enforcement of overseas custody orders, to these additional jurisdictions.
Section 110 of the Act, provides, inter alia, for reciprocal arrangements between Australia and overseas jurisdictions concerning the enforcement of overseas maintenance orders, to be declared in the Regulations. Regulation 25 provides that jurisdictions listed in Schedule 2 are declared to be reciprocating jurisdictions.
The proposed regulations declare Switzerland and the States of Kansas, Nebraska, New Jersey, and Ohio of the United States of America to be additional reciprocating jurisdictions in Schedule 2 of the regulations. The proposed regulations will allow final maintenance orders made in these jurisdictions to be enforced in Australia.
Sub-section 125(1) of the Act also provides that the Governor-General may make regulations prescribing fees payable in proceedings under the Act.
Regulations were made on 19 December 1991 which impose a range of new fees and provide a revised basis for waiver of fees payable in proceedings under the Act.
The proposed regulations replace the existing provision relating to the fee payable on filing an originating application so that a fee will not be payable for applications expressed to be by consent.
Overview
The Family Law Regulations (Amendment) 1992 No. 33, issued under the authority of the Minister for Justice and Consumer Affairs, amends the Family Law Regulations made pursuant to the Family Law Act 1975. The amendment seeks to extend Australia's existing reciprocal arrangements for the enforcement of overseas custody and maintenance orders to include Switzerland and the State of Ohio in the United States of America. This update addresses the need for a more comprehensive international framework to facilitate the enforcement of family law orders across borders, thereby ensuring that Australian families receive consistent and reliable legal support regardless of where they reside. The policy objective is to enhance the enforcement mechanisms for family law orders, ensuring that Australian families receive equitable legal support and protection when matters cross international boundaries.
Scope and Application
The Family Law Regulations (Amendment) 1992 No. 33, issued under the authority of the Minister for Justice and Consumer Affairs, pertains to the Family Law Act 1975. These regulations amend the existing Family Law Regulations to extend the enforcement of Australian custody and maintenance orders to additional overseas jurisdictions. Specifically, Switzerland and the State of Ohio in the United States are declared as prescribed overseas jurisdictions for the enforcement of custody orders, while Switzerland, Kansas, Nebraska, New Jersey, and Ohio are declared as reciprocating jurisdictions for maintenance orders. This extension facilitates the reciprocal enforcement of custody and maintenance orders, enhancing the effectiveness of family law arrangements across international borders. The amendment also modifies the fee structure for filing originating applications, exempting those filed by consent from incurring a fee. The regulations have a broad application, impacting legal proceedings and enforcement activities within the family law domain, and they extend the jurisdictional reach of Australian family law to the specified overseas jurisdictions.
Key Provisions
The main operative sections of the Family Law Regulations (Amendment) 1992 No. 33 (the Regulations) pertain to the declaration of prescribed overseas jurisdictions for the purposes of the Family Law Act 1975 (the Act) and reciprocating jurisdictions for the enforcement of maintenance orders. Regulation 14 declares Switzerland and the State of Ohio as prescribed overseas jurisdictions, expanding the scope of the Act to include these jurisdictions in the enforcement of overseas custody orders (s. 69). Regulation 25 extends this by declaring Switzerland, Kansas, Nebraska, New Jersey, and Ohio as reciprocating jurisdictions for the enforcement of maintenance orders (s. 110). These changes facilitate the reciprocal enforcement of family law orders between Australia and these additional jurisdictions.
The obligations and requirements imposed by the Regulations are primarily administrative and procedural. Courts and legal practitioners in Australia must now recognise and enforce custody and maintenance orders from the newly declared jurisdictions in accordance with the Act. This includes ensuring that overseas orders are properly authenticated and submitted for enforcement in Australia. Additionally, the Regulations require the payment of fees for certain proceedings, with a notable exception for originating applications filed by consent, as amended by the Regulations (s. 125(1)). The practical effect is that legal practitioners and courts need to be aware of these jurisdictional changes and the applicable fee structures.
Breaches of the requirements set out in the Regulations may have various legal consequences. While the Regulations themselves do not explicitly outline specific offences or penalties, the Act under which these Regulations are made provides a framework. For instance, failure to recognise or enforce a valid overseas custody order could be considered contempt of court, with potential penalties including fines or imprisonment. Similarly, non-compliance with maintenance order enforcement could lead to civil actions for unpaid maintenance. The exact penalties would depend on the specific breach and the applicable state or territory laws.
The amendments also introduce financial considerations. The Regulations replace existing fee provisions, stipulating that a fee will not be payable for applications filed by consent (s. 125(1)). This change could affect legal practitioners by reducing the financial burden on their clients for certain applications. Conversely, practitioners must ensure compliance with the new fee structure for other proceedings, as outlined in the Regulations. Understanding and adhering to these financial obligations is crucial for both legal practitioners and their clients.
Overall, the Family Law Regulations (Amendment) 1992 No. 33 introduce significant changes to the enforcement of family law orders between Australia and additional overseas jurisdictions. These changes impose new obligations on courts and legal practitioners, who must now navigate the expanded scope of reciprocal enforcement. Awareness of these changes and adherence to the new regulatory requirements and fee structures is essential for compliance with the Act.