Published July 20, 2016 by Ashlee T. Bowman
My former partner is not an Australian resident; 
How can this affect my child?
________________________________

International family law matters have been in the news recently with the alleged child abduction scandal involving Australian mother Sally Faulkner and the 60 Minutesprogram in Lebanon.


This scandal put the spotlight on the difficulties involved with enforcing Australian court orders in non-Hague Convention countries.The Hague Convention is an international agreement that Australia and 93 other countries have signed to provide a legal method to return children who are abducted by one parent against the wishes of the other parent. 

Lebanon is a hot spot for international child abduction because it is not a signatory to the Hague Convention.

If you are an Australian parent and your former partner takes your child to a non-Hague Convention country such as Lebanon there are limited legal options as to what you can do to retrieve your child as the 60 Minutes experience demonstrated. 

A similar set of arrangements to the Hague Convention currently govern the collection of child support payments. Many countries have signed agreements with the Australian Government to collect child support from a parent who now lives overseas. The purpose of these arrangements is to prevent people from moving overseas to escape paying child support. The countries which have entered into these child support arrangements with the Australian Government are called “reciprocating jurisdictions”. 

The full list of reciprocating jurisdictions is available here.

For child support to be collected from a reciprocating jurisdiction there first must be a child support assessment or a binding child support agreement registered with the Child Support Agency. A child support assessment or a binding child support agreement between an Australian resident payee and a resident of a non-reciprocating jurisdiction payer (such as Lebanon or the People’s Republic of China) cannot be registered by the Child Support Agency. This is because the validity of a child support assessment is tied to section 29A Child Support (Assessment) Act 1989 which states that the person by whom child support is payable must be an Australian resident or resident of a reciprocating jurisdiction on the day on which the application is made. 

In some circumstances a person who is from a non-reciprocating jurisdiction may still be found to be a resident of Australia for the purpose of child support if the Department of Human Services (DHS) can determine residency.

Information that can help DHS make a decision about a person’s residency includes:

·         sources of income
·         location of assets and property
·         reasons for leaving Australia
·         time spent overseas

Even if DHS determines that a person is not an Australian resident for the purposes of a child support assessment that person can still be found liable for child maintenance by a court order. In the case of Saijel & Yeetul [2014] FamCA 446 the Family Court found that child support could be paid by someone who is from a non-reciprocating jurisdiction under section 66G Family Law Act 1975 (Cth) which allows the Family Court to make orders for child maintenance.

If you require information specific to your situation, please contact Christopher Swan at Swan Family Lawyers on 8227 1970 or swan@swanfamilylawyers.com.au.

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