EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 258

 

ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL

 

FAMILY LAW ACT 1975

 

FAMILY LAW AMENDMENT REGULATIONS 2008 (No. 3)

 

Subsection 125(1) of the Family Law Act 1975 provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The purpose of the Regulations is to make minor amendments to the Family Law Regulations 1984 to ensure they are consistent with changes made to the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 by the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007.

The Consolidation Act relocated certain provisions relating to child support from the Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 and the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000 to the Child Support Acts. The Registration and Collection Regulations and Assessment Regulations have been repealed following the commencement of Part 1 of Schedule 2 of the Consolidation Act. 

The proposed Regulations remove references to the Registration and Collection Regulations and the Assessment Regulations from the Principal Regulations and insert references to the new sections in the Child Support Acts to ensure the Principal Regulations are consistent with changes made by the Consolidation Act. The effect of the proposed Regulations is to make clear that provisions relating to international maintenance in the Principal Regulations refer to the Child Support Acts.

The amendments are implemented by Schedule 1 to the Regulations.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Regulations 1 through 3 and Schedule 1 commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments.

 

Details of the Regulations are as follows:

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2008 (No. 3).

 

 

Regulation 2 – Commencement

Regulation 2 provides for the commencement of the Regulations on the day after they are registered on the Federal Register of Legislative Instruments.

Regulation 3 - Amendment of the Family Law Regulations 1984

Regulation 3 provides that Schedule 1 amends the Principal Regulations.

Schedule 1 – Amendments

 

Item [1]: Regulation 24A, definition of overseas maintenance entry liability

 

The Consolidation Act relocated regulation 22 of the Registration and Collection Regulations to section 25A of the Child Support (Registration and Collection) Act 1988. Section 25A provides for the inclusion of certain overseas maintenance liabilities in the Child Support Register. This item omits the reference to the Registration and Collection Regulations and inserts a reference to section 25A in the definition of an overseas maintenance entry liability.

 

Item [2]: Regulation 24A, definition of registered maintenance liability

 

The Consolidation Act relocated regulation 11 of the Registration and Collection Regulations to section 18A of the Child Support Registration and Collection Act. Section 18A defines a liability as a registrable overseas maintenance liabilities in specified circumstances. This item omits the reference to regulation 11 and inserts a reference to section 18A in the definition of a registered maintenance liability.

 

Item [3]: Subregulation 28A(4)

 

Subregulation 28A(4) provides that a court must not determine the application under regulation 28A if an application could properly be made for an administrative assessment of child support. This item omits the reference to the Assessment Regulations and substitutes a reference to the Child Support Acts following the repeal of the Assessment Regulations.

 

Item [4]: Subregulation 28D(3)

 

Subregulation 28D(3) provides that the court must not determine an application based on United States petitions if an application could properly be made for an administrative assessment of child support. This item omits the reference in subregulation 28D(3) to the Assessment Regulations and substitutes a reference to the Child Support Acts following the repeal of the Assessment Regulations.

 

Item [5]: Subregulation 29(4)

 

Subregulation 29(4) provides that the court must not make an order under subregulation 29(1) if an application could properly be made for an administrative assessment of child support. Subregulation 29(1) refers to the making of an order in the absence of a respondent. This item omits the reference to the Assessment Regulations in subregulation 29(4) and substitutes a reference to the Child Support Acts following the repeal of the Assessment Regulations.

 

Item [6]: Subregulation 50A(3)

 

Subregulation 50A(3) refers to the application for an administrative assessment in proceedings on behalf of persons in Convention countries for the recovery of maintenance. This item also omits the reference in subregulation 50A(3) to the Assessment Regulations and substitutes a reference to the Child Support Acts following the repeal of the Assessment Regulations.