Enforcing Child Support Overseas
In Australia, both parents are obliged to financially support a child until he or she is eighteen years of age. For separated parents, the financial arrangements can be agreed through private negotiation, or the government can enforce this support through Services Australia (formerly known as the Child Support Agency). If Services Australia issues a Child Support Assessment, and the funds are not paid, it can use several different methods to recover debt from a parent. These methods include seizing funds from bank accounts and tax returns and making arrangements to garnish the wages of the parent. However, in the event that either parent permanently moves overseas, enforcing child support is a more difficult process.
What is Child Support?
Child Support is a payment made by a parent to their fellow parent in order to help defray the cost of caring for children. If this is negotiated privately between the parents, it is implemented through a Binding or Limited Child Support Agreement. Alternatively, a parent may apply to the court for child maintenance orders, or more commonly to Services Australia for a child support assessment. Services Australia will make an administrative assessment to determine the amount of child support that is payable to the custodial parent. They use a formula that considers factors such as the income of the parents, age of children and the amount of time that the children spend in the care of each parent. A recipient of a social security payment for children, including Family Tax Benefit Part A, has an obligation to seek child support from the child’s other parent.
Can a Parent Leave Australia if They Have a Child Support Debt?
In accordance with the Child Support (Registration and Collection) Act 1988 (Cth), the Registrar may prohibit a parent from leaving the country when all of the following apply:
- They have a child support liability
- No arrangements have been made to wholly discharge the liability to the satisfaction of the Registrar
- The Registrar is convinced that the parent has repeatedly, and without reasonable cause, failed to pay child support
- The Registrar has a reasonable belief that it is desirable to order the parent not to leave Australia until the child support debt is discharged, or suitable arrangements are made to fulfil their obligations.
A Departure Prohibition Order (DPO) prevents a child support debtor from leaving Australia. It is implemented at the discretion of the Registrar, who will only grant the order after considering multiple factors, including the parent’s financial circumstances, the number of debt recoveries and whether this failure to meet obligations is a recurring problem. A DPO must be revoked once the child support liability has been entirely discharged or arrangements have been made to pay the debt.
Disputing a Departure Prohibition Order
A person can dispute a Departure Prohibition Order by applying for a Departure Authorisation Certificate (DAC). A DAC may be issued if there is convincing evidence that the debtor will return to Australia, or if the debtor can provide security in the form of a bank cheque for the amount owed (or approximately the whole amount). This will authorise departure because a restraint on departure must be revoked when a debt is cleared. If the debtor cannot provide security then the Secretary of the Department may issue a DAC on humanitarian grounds, such as needing to travel to see sick relatives. An application for such a DAC will require supporting documentation giving a compelling reason and providing sufficient evidence of the humanitarian reason.
Does a Parent Have to Pay Child Support Overseas?
Child support is a debt owed to the Commonwealth, not the receiving parent. The government will not stop enforcing child support obligations if a parent moves overseas, but it may be a harder task depending on the parent’s new country of residence.
Australia has reciprocal agreements with several countries to assist with enforcing child support obligations. Services Australia collaborates with equivalent agencies overseas to trace parents and enforce the debt collection. A list of reciprocal jurisdictions can be found at the Department of Human Services.
Once the assessment is forwarded to an overseas agency for collection, Services Australia loses control of enforcing child support and is reliant on their cooperation. On occasion, a request to have an Australian child support assessment recognised by another jurisdiction is unsuccessful, even in a reciprocating jurisdiction. In those cases, the overseas jurisdiction may attempt to establish liability through its own court system and subsequently enforce the child support debt.
Enforcing Child Support Overseas
If a parent living overseas agrees to make regular payments to Services Australia then no further action is required. On the other hand, if the parent does not agree to this arrangement, then Services Australia will take steps to enforce the child support agreement through other methods. They can seize any funds that the delinquent payer has in Australian bank accounts and liquidate other assets that are held in Australia.
Seizing cash and assets beyond Australian shores may be more difficult. Child support schemes differ depending on the country, and some of the collection powers that are available in Australia, such as wage garnishing, are not available in overseas jurisdictions. Enforcing child support obligations for a parent living overseas necessitates knowing their exact location, so determining their new address, employer details, or the address of any family and friends is crucial.
Can a Parent receive Child Support If They Move Overseas?
Services Australia can help with enforcing parental payments even if the recipient parent moves overseas. If Australia has reciprocating jurisdiction with the parent’s new country of residency, then Services Australia can liaise with the overseas maintenance authority. If a child support assessment has not been finalised before the parent emigrates, the parent can contact the maintenance authority in their new country to register an overseas liability or make arrangements to register for an assessment with Services Australia from overseas. Depending on the type of reciprocal agreement that exists between the two countries, child support payments can be collected in Australia and transferred to the maintenance authority in the parent’s new country of residence.
Enforcing Child Support Overseas in New Zealand
Special rules apply if one parent resides in Australia and the other in New Zealand. Services Australia has an agreement with their counterpart, the New Zealand Inland Revenue (NZIR), with regard to the enforcement of child support payments. This agreement permits both organisations to collect and allocate child support payments in their own jurisdiction. For example, a parent living in Australia with a child whose parent lives in New Zealand may choose to have Services Australia collect payments on their behalf. Services Australia liaises with NZIR and arranges for NZIR to collect the payments to send to Services Australia for distribution to the parent in Australia.
How Armstrong Legal Can Help
Enforcing child support assessments when a parent is living overseas is a complicated process. A solicitor with expertise in international family law can advise you on the difficulties that you will face during this time. There are some instances where it is necessary to apply instead for a child maintenance order in accordance with the Family Law Act 1975 (Cth), and Armstrong Legal can help you to file with the Family Court. Please call us on 1300 038 223 or send an email to make an appointment with one of our friendly, professional family lawyers.
WHERE TO NEXT?
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