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Provisional Maintenance Order from overseas vs Australian Assesment by CSA

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What is the correct procedure for dealing with a provisional maintenance order from overseas, and when can the CSA apply a full Assessment

A quick outline of this case:

- The payee and children reside in an overseas jurisdiction.

- Payer is resident in Australia.

- The payee goes to court overseas, and the court there implements a provisional maintenance order to be accepted or varied by Australian authorities.

- This provisional order clearly states a "fair" amount of maintenance to be paid, based on the laws of their country.

- The CSA, on receiving the documentation, makes a call that the Australian court will not hear the case because of Section 28 (A), stating that an application could properly be made.

- The CSA then makes a full Australian Assessment, the results of which are that the amount to be paid is significantly larger than the original "fair" assessment as determined by the overseas authority.

- The CSA then goes ahead collecting payments, and forwarding these to the payee overseas.

My questions are as follows:

The under-pinning principle of Australias international law is that overseas liabilities should be decided and administered in the country where the payee resides.

How can the CSA therefore effectively dis-regard the provisional assessment, and go ahead with their own process ?

When will the provisional order become finalised ?

As far as I understand, the CSA should have forwarded this matter to an Australian court - so that the provisional maintenance order could be finalised.

In effect, the provisional order is therefore in a state of "limbo", as it cannot be finalised until it is heard in an Australian court ?

Is there an error somewhere here in the process, or must the payer simply accept that the application of Australian law overrides the application of the law in the overseas jurisdiction ?
wagz said
- The payee goes to court overseas, and the court there implements a provisional maintenance order to be accepted or varied by Australian authorities.

- This provisional order clearly states a "fair" amount of maintenance to be paid, based on the laws of their country.

I believe that these are the pertinent actions/events/statements. Basically I think that the CSA has taken the first to be an application (i.e. the inclusion of varied by) as per section 29B (Applications by residents of reciprocating jurisdictions) which restricts the overseas jurisdiction the limitations as per section 4C of the Child Support (Assessment) Regulations.

Child Support (Assessment) Regulations 1989 said
4C   Actions that may be taken by an overseas authority of a reciprocating jurisdiction
      For subsections 29B (2) and (3) of the Act, the following actions are prescribed:
   (a)   making an election of any kind under a provision of the Act;
   (b)   under Part 6A of the Act, applying for a departure determination;
   ©   under Part 7 of the Act, filing an application for leave to appeal and appealing against a decision;
   (d)   under Part 7 of the Act, applying for a departure order;
   (e)   subject to Part VII of the Registration and Collection Act, lodging an objection to a decision;
   (f)   subject to Part VIIA of the Registration and Collection Act, applying to the SSAT for review of a decision;
   (g)   subject to Part VIII of the Registration and Collection Act, appealing a decision of the SSAT on an error of law.

It would appear that the only remedy to what was intended would be if the overseas jurisdiction appealed against the decision, which I guess they would not do due to the costs of doing so.

The second event/action/statement would appear to be outside of the jurisdiction of the overseas jurisdiction here in Australia.

Section 29B basically says, if I've read it correctly, that if an overseas application is made, which must be by either the payer in Australia or an overseas authority, then the regulations apply. Here's 29B:

Child Support (Assessment) Act 1989 said
29B  Applications by residents of reciprocating jurisdictions
   (1)   If a person applying under section 25 or 25A is a resident of a reciprocating jurisdiction, the application must be made:
   (a)   by the person and given to the Registrar by an overseas authority of the reciprocating jurisdiction; or
   (b)   if an overseas authority of the reciprocating jurisdiction believes that child support is reasonably likely to be payable to the person in respect of a childby the overseas authority on behalf of the person; or
   ©   if the person believes that child support is reasonably likely to be payable by him or her to another person in respect of a childdirectly to the Registrar by the person.
   (2)   If an application is made by an overseas authority of a reciprocating jurisdiction on behalf of a person, the regulations may prescribe actions the overseas authority may take for the person.
   (3)   If an application is made by a person and given to the Registrar by an overseas authority of a reciprocating jurisdiction, the regulations may prescribe actions the overseas authority may take for the person with the persons consent.
Having spoken to a representative of the overseas jurisdiction, their understanding of the process is as follows:

- Forward the provisional order to the Australian Authorities.

- The payer is then summonsed to court to be heard on the matter in Australia, and may raise any grounds of opposition.

- The Australian court will then confirm the provisional order and notify the overseas jurisdiction of the outcome.

Further to this, the representative stated clearly that the Australian court could vary the amount to be paid down (i.e. if the payer could not afford it ) - but could not vary the amount to be paid to exceed the "fair" assessment in the overseas jurisdiction.

By taking the actions that the CSA has, they are clearly varing the order to far exceed the overseas jurisdictions evaluation of what a fair amount is.

So therefore, the CSA's Assessment of what a fair amount is - is overriding the overseas jurisdictions assessement of what a fair amount is.

Again, is this not violating the principle of international law - that the overseas liabilities should be decided in the country in which the payee resides ?
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