EXPLANATORY STATEMENT
FAMILY LAW ACT 1975
FAMILY LAW REGULATIONS (AMENDMENT)
(Statutory Rules 1984 No. 139)
Sub-section 123(1) of the Family Law Act 1975 (“the Act”) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 110 of the Act provides for the making of regulations for the purpose of giving effect to arrangements for the reciprocal enforcement of maintenance between Australia and countries declared by the Family Law Regulations (“the regulations”) to be either countries “with restricted reciprocity” or “reciprocating” countries. In particular, paragraph 110(2)(c) of the Act permits the making of regulations for and in relation to the making of orders (including provisional orders) for the variation, discharge, suspension or revival of maintenance orders registered in accordance with regulations under this section. The regulations make such provision and declare a number of countries to be reciprocating countries (regulation 142) and countries with restricted reciprocity (regulation 143) respectively.
The term “country” is used in this context in the private international law sense of a geographical area subject to the authority of one legislature or one body of law in respect of family law - for example, each of the constituent States of the United States of America is a distinct “country” for family law purposes, and the State of California has for some years been declared to be a “country with restricted reciprocity” under regulation 143.
The regulations are amended by removing some countries from the regulation 143 list and inserting them in the regulation 142 list, and by enlarging both lists as a consequence of the finalization of arrangements for reciprocal maintenance enforcement with a number of additional countries. The relevant laws and procedures of each additional country have been examined and each country has been found to be prepared and able to enter into arrangements with Australia for the reciprocal enforcement of maintenance. One effect of these arrangements will be that Australian maintenance orders transmitted overseas will be enforceable in those countries.
The distinction between the lists in regulations 142 and 143 has traditionally been that those countries whose substantive
legislation permits a wider class of maintenance orders than Australian legislation (for example, the legislation of some countries permits the making of orders for the support of indigent relatives), would be designated under regulation 143 as countries with restricted reciprocity, whereas those whose laws substantially coincide with the Australian domestic maintenance law would be designated under regulation 142. In respect of both classes of country, only maintenance orders of the kind able to be made in Australia can be registered for enforcement in this country.
An amendment to regulation 153 has also been made to deal with a practical problem which had arisen as a consequence of a deficiency in the scheme embodied in the regulations for the making of provisional orders in certain circumstances. The concept of provisional orders subject to confirmation involves the making of a provisional order in the country in which the application supported by the applicant’s evidence is brought, with the respondent then being given the opportunity to give his or her evidence in the course of the confirmation proceedings in his or her own country of residence. This overcomes the necessity for a respondent overseas wishing to contest an application to arrange for representation in the country in which the application is brought.
Details of the Regulations are set out below:
Regulation 1 amends regulation 142 by adding to the list of “reciprocating countries” the following countries: Guernsey, Alderney and Sark; Jersey; the Territory of Christmas Island; and the Territory of Cocos (Keeling) Islands. Whilst Guernsey, Alderney and Sark, and Jersey, were previously declared under regulation 143 to be countries with restricted reciprocity, it has become apparent that orders from these countries are now of the requisite type so as to justify these countries’ declaration under regulation 142. Because the Act does not currently extend to the Territories of Christmas Island and Cocos (Keeling) Islands, the declaration of these Territories ensures that effect is given to reciprocal maintenance enforcement arrangements in respect of those Territories.
Regulation 2 amends regulation 143 by removing from the list of “countries with restricted reciprocity” Guernsey, Alderney and Sark, and Jersey (regulation 1 inserts these countries in the regulation 142 list) and by adding to the list the following countries: Alaska, Arkansas, Connecticut, Delaware, Florida, Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, New Mexico, New York, Northwest Territories, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Virginia, Wisconsin and the Yukon.
Regulation 3 inserts a new sub-regulation (1A) in existing regulation 153 to ensure that a provisional order under regulation 151 for the discharge, suspension, revival or
variation of an overseas order may be made notwithstanding the fact that the respondent has not been served with the application and has not consented to the order proposed in the application. The provisions of regulations 151 and 153 were intended to match regulation 147 which allows a provisional maintenance order to be made in Australia, inter alia, where the respondent has not been served with the application or has not consented to the order proposed. However, the effect of the regulations before the insertion of sub-regulation (1A) was that an applicant under regulations 151 and 153 was required to serve process in the usual way. Sub-regulation (1A) is designed to overcome this deficiency, so as to ensure that the same rules apply as to service with respect to an application in Australia for a provisional order to discharge, suspend, revive or vary an overseas maintenance order as apply to an application in Australia for a provisional maintenance order against a respondent who is overseas.
(Authorised by the Attorney-General)