Maintenance Act 1965

107 Notice of appeal and application of appeal provisions of the Magistrates' Court Act 1989 96

Part VI—Miscellaneous 98

108 Application of Magistrates' Court Act 1989 98

109 Evidence of earnings 98

110 Payments under orders 99

Endnotes 101

1 General information 101

2 Table of Amendments 103

3 Explanatory details 107

Version No. 052

Maintenance Act 1965

No. 7289 of 1965

Version incorporating amendments as at

An Act to consolidate and amend the Law relating to the Making of Orders for the Maintenance of Wives Husbands Children and Illegitimate Children and for Confinement, Medical and like Expenses and Funeral Expenses and for the Enforcement of such Orders and of similar Orders made in certain other States, Territories and Countries and for purposes connected therewith.

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

Part I—Preliminary

1 Short title and commencement

(1) This Act may be cited as the Maintenance Act 1965.

(2) The several provisions of this Act shall come into operation on a day or the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette.

S. 1(3) amended by Nos 8602 s. 12, 16/1986 s. 30, repealed by No. 57/1989 s. 3(Sch. item 124.1).

2 Repeal and saving

(1) The Maintenance Act 1958 shall be repealed.

(2) Except as in this Act expressly or by necessary implication provided—

(a) all persons things and circumstances appointed or created by or under the repealed Act or existing or continuing under the repealed Act immediately before the commencement of this Part shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if the repealed Act had not been repealed;

(b) in particular and without affecting the generality of the foregoing paragraph the repeal shall not disturb the continuity of status operation or effect of any proclamation regulation rule order complaint summons warrant application appeal determination decision indorsement direction certificate consent approval disapproval confirmation objection appointment registration condition recognizance notice fee liability or right made effected issued served granted given passed fixed accrued incurred or acquired or existing or continuing by or under the repealed Act before the commencement of this Part.

(3) An order made or continued in force under Part I of the repealed Act immediately before the commencement of Part II of this Act shall continue to be enforceable after the said commencement as if it were an order made under the corresponding provisions of Part II of this Act.

(4) Any proceedings commenced under Part I of the repealed Act before the commencement of Part II of this Act may be continued and an order made thereon as if this Act had not been passed but, for the purpose of further proceedings, such an order shall be deemed to have been made under the corresponding provisions of this Act and shall be enforceable accordingly.

S. 2(5) amended by No. 7876 s. 2(3).

(5) An order registered by the clerk of a Magistrates' Court under section twenty-three of the repealed Act and enforceable under that Act immediately before the commencement of Part I of this Act shall, notwithstanding the repeal of the said Act, continue to be enforceable after the said commencement as if the said section twenty-three were enacted in Part II of this Act and any reference therein to an Act were a reference to this Act.

S. 2(6) amended by No. 7876 s. 2(3).

(6) An order enforceable under Part IV of the repealed Act immediately before the commencement of Subdivision 2 of Division two of Part IV of this Act shall, on and from the said commencement, be deemed to be registered under the said Subdivision in the Magistrates' Court at Melbourne.

S. 2(7) amended by No. 7876 s. 2(3).

(7) An order registered in a Magistrates' Court in Victoria under Part V of the repealed Act and enforceable immediately before the commencement of Subdivision 3 of Division two of Part IV of this Act shall, on and from the said commencement, be deemed to be registered or enforceable as a confirmed order, in that court under the said Subdivision.

(8) An order enforceable in the Supreme Court of Victoria under Part V of the repealed Act immediately before the commencement of Subdivision 3 of Division two of Part IV of this Act shall continue to be enforceable in the Supreme Court after the said commencement in any manner in which it may have been enforced before the said commencement and, with such modifications as are necessary, in any manner in which an overseas order registered or confirmed under the said Subdivision 3 may be enforced.

(9) For the purposes of this section an order that is suspended for the time being shall be deemed to be an order that is enforceable.

3 Definitions

(1) In this Act unless inconsistent with the context or subject-matter—

adopted means—

(a) adopted in accordance with the law of Victoria or the law of another State or of a Territory of the Commonwealth; or

(b) adopted in a country outside Australia and the Territories of the Commonwealth if the adoption was effective according to the law of that country and the adoption is recognized by the law of Victoria as having effect in Victoria;

S. 3(1) def. of authorised deposit-taking institution inserted by No. 11/2001 s. 3(Sch. item 45.1).

authorised deposit-taking institution has the same meaning as in the Banking Act 1959 of the Commonwealth;

S. 3(1) def. of child amended by No. 8602 s. 12.

child, in relation to any person or persons includes an adopted child of that person or (as the case may be) of those persons, but does not include a child of that person or those persons adopted by another person or persons; and mother, father and parent, in relation to a child, shall be construed accordingly;

child of the family, in relation to the parties to a marriage or to either of them and whether or not either party to the marriage is dead, means—

(a) any child of both parties; and

(b) any child of either party who has been accepted as one of the family by the other party—

and mother, father and parent, in relation to a child of the family, shall be construed accordingly;

Commonwealth means the Commonwealth of Australia;

S. 3(1) def. of Court amended by Nos 7876 s. 2(3), 16/1986 s. 30, substituted by No. 57/1989 s. 3(Sch. item 124.2).

Court means the Magistrates' Court;

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 102.1).

police officer has the same meaning as in the Victoria Police Act 2013;

preliminary expenses in respect of the confinement of a woman means the expenses of the maintenance of the woman during the period of two months immediately preceding the confinement, reasonable medical surgical hospital and nursing expenses attendant upon the confinement, and the expenses of the maintenance of the woman and the child or children born to the woman for three months immediately after birth;

prescribed means prescribed by rules made under this Act;

Territory of the Commonwealth includes a Territory under the trusteeship of the Commonwealth;

Victoria means the State of Victoria;

woman includes girl.

(2) For the purposes of the interpretation of child of the family a child of either party to the marriage shall, in the absence of proof to the contrary, be taken to have been accepted by the other party as one of the family if it is proved that at any time the child was ordinarily a member of the family household.

(3) For the purposes of this Act a man and a woman married by a subsisting marriage, whether monogamous or polygamous, shall, if the marriage is lawful and binding in the place where it was solemnized be regarded as husband and wife.

(4) Any reference in this Act to an order shall be read and construed, where the order has been varied, as a reference to the order as varied from time to time.

Part II—Maintenance orders

Pt 2 Div. 1 (Heading) amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 124.3).

Division 1—Jurisdiction and powers of Magistrates' Court

Subdivision 1—General

4 General jurisdiction in respect of maintenance and other orders

S. 4(1) amended by No. 57/1989 s. 3(Sch. item 124.4).

(1) Subject to this Act the court shall have jurisdiction to make and to discharge suspend or vary any of the following kinds of orders, namely—

(a) an order against a husband for the maintenance of his wife;

S. 4(1)(b) repealed by No. 59/1997

(c) an order against a wife for the maintenance of her husband;

S. 4(1)(d) repealed by No. 59/1997

S. 4(1)(e)–(h) amended by No. 8602 s. 12, repealed by No. 59/1997

S. 4(1)(i) amended by No. 59/1997
s. 7(a)(ii).

(i) an order against a husband wife father or mother for or towards the cost of medical surgical psychiatric dental hospital or nursing care or treatment of a wife or husband for whose maintenance an order is in force or of funeral expenses in relation to any such person;

(j) such ancillary preliminary and interim orders as are provided for in this Part.

S. 4(2) amended by No. 57/1989 s. 3(Sch. item 124.4).

(2) Subject to subsection (7) of section 17 of this Act the court shall have jurisdiction to make an order under this Part by reason of facts and circumstances, whether or not those facts or circumstances, or some of them, took place before the commencement of this Act or outside Victoria—

(a) if the person against whom the order is sought is resident in Victoria; or

(b) if the person for whose benefit the order is sought is resident in Victoria.

(3) Nothing in this Act shall limit or affect the operation of any provision of any other Act (whether relating to child welfare or family welfare or social services or otherwise) by which any person is or may be required to make contribution to or payment on account of the maintenance or support of any other person.

5 Means of support and matters affecting amount of orders

(1) In determining whether adequate means of support have been provided for a person by another person—

(a) the court shall have regard to the accustomed condition in life, but not the means or earning capacity, of the first-mentioned person; and

(b) the court may disregard any moneys paid by a defendant to a complainant during the pendency of proceedings under this Part unless it appears to the court that the defendant intends in good faith to continue providing adequate means of support for the person or persons for whose maintenance the proceedings were brought.

(2) In determining the amount that a defendant is to be ordered to pay by an order under this Part for the payment of maintenance the court shall have regard, where appropriate, to—

(a) the accustomed condition in life of the person or persons for whose maintenance the order is to be made; and

(b) the whole financial position of the person or persons for whose maintenance or for whose benefit the order is to be made and of the defendant, their respective means and earning capacities and the defendant's ability to pay—

but in ascertaining the financial position of the person or persons for whose maintenance or for whose benefit the order is to be made the court shall disregard any moneys that any such person has earned, is earning or may thereafter earn solely or mainly because of the desertion or neglect of the defendant or his proposed removal out of Victoria and any savings arising from those moneys unless, in the special circumstances of the case, the court thinks it proper to take those moneys and savings into consideration.

S. 5(3) amended by No. 48/2006 s. 42(Sch. item 23(b)).

(3) Upon the hearing of a complaint under this Part—

S. 5(3)(a) amended by No. 16/1987 s. 12(Sch. 2 item 9(a)), repealed by No. 59/1997
s. 7(b).

S. 5(3)(b) amended by Nos 16/1987 s. 4(3)(Sch. 1 item 14(a)), 48/2006 s. 42(Sch. item 23(a)).

(b) in respect of an illegitimate child to the mother of whom a grant is made or payable under section 24 of the Children, Youth and Families Act 2005—

no regard shall be had, in determining the amount to be directed to be paid by an order made under this Part in respect of the child, to the fact that the child has been so admitted or that such a grant is made or payable to the mother of the child.

Subdivision 2—Orders against husbands for maintenance of wives and against parents for maintenance of children

6 Court may make order against husband for support of wife

Where the court, upon complaint made by or on behalf of a wife, is satisfied that her husband, without just cause or excuse—

(a) has deserted her;

(b) has neglected and still neglects to provide her with adequate means of support; or

(c) is about to remove out of Victoria without providing her with adequate means of support—

the court may order the husband to pay for or towards her maintenance such amount as it thinks reasonable.

Ss 7, 8 repealed by No. 59/1997

Subdivision 3—Orders against wives for maintenance of husbands

9 Court may order wife to support husband

Where the court, upon complaint made by or on behalf of a husband, is satisfied—

(a) that the husband is unable through illness or other reasonable cause to support himself adequately; and

(b) that his wife, without just cause or excuse—

(i) has deserted him;

(ii) has neglected and still neglects to provide him with adequate means of support; or

(iii) is about to remove out of Victoria without providing him with adequate means of support—

the court may order her to pay for or towards his maintenance such amount as it thinks reasonable having regard to his accustomed condition in life, his means and earning capacity at the time of the hearing and any evidence before the court as to his wife's means, earning capacity and ability to pay maintenance.

Pt 2 Div. 1 Subdiv. 4 (Heading) amended by No. 8602 s. 12.

Subdivision 4—Orders against unmarried fathers or mothers for maintenance of children

Ss 10, 11 amended by No. 8602 s. 12, repealed by No. 59/1997

Subdivision 5—Orders against putative fathers for preliminary expenses and for maintenance of unborn children

S. 12 amended by Nos 57/1989
s. 3(Sch. item 124.5), 23/1994 s. 118(Sch. 1 item 33.1), repealed by No. 59/1997

S. 13 amended by No. 57/1989
s. 3(Sch. items 124.6(a)(b), 124.7), repealed by No. 59/1997

Subdivision 6—Orders for funeral expenses

Ss 14, 15 amended by No. 8602 s. 12, repealed by No. 59/1997

Subdivision 7—Orders for medical and like expenses

16 Further order for payment of medical and like expenses

(1) Where the court, upon application made by or on behalf of any person for whose maintenance an order is for the time being in force under this Part, is satisfied—

(a) that any medical surgical psychiatric dental hospital or nursing care or treatment is or was reasonably required to be rendered in respect of that person after the commencement of this Part;

S. 16(1)(b) amended by No. 59/1997
s. 7(d)(i).

(b) that the financial position of that person is and has been such as to preclude the person from making provision for or towards the cost of that care or treatment;

(c) that the person against whom the order was made has not made adequate provision for or towards that cost and it is just and equitable in all the circumstances of the case that he pay or contribute towards that cost—

the court may order him to pay for or towards that cost such amount as it thinks reasonable.

(2) For the purposes of this section—

S. 16(2)(a) repealed by No. 59/1997
s. 7(d)(ii).

(b) a person in respect of whom an order under section eighteen of this Act for the payment of a merely nominal amount is in force—

shall be deemed to be persons for whose maintenance an order is in force under this Part.

(3) Where an order is made under this section for the payment of moneys for or towards the cost of any care or treatment referred to in subsection (1) of this section the court may, in making the order or at any later time, give such directions in writing as it thinks proper for the disbursement of the amount ordered to be paid but so that no moneys are disbursed before the care or treatment to which the order relates has been rendered.

Division 2—Ancillary and interim orders

Subdivision 1—Orders for custody of children, &c.

S. 17 amended by No. 16/1987 s. 12(Sch. 2 item 9(b)), repealed by No. 59/1997
s. 7(e).

Subdivision 2—Nominal orders

18 Orders directing payment of nominal sum only

(1) Where upon the hearing of a complaint under this Part for the maintenance of a person the court is satisfied that it would make an order for the maintenance of that person but for the fact—

(a) that that person is not presently without adequate means of support; or

(b) that the defendant is not presently able to contribute to the support of that person—

the court may nevertheless make an order setting out its findings on the complaint and directing the payment by the defendant of a merely nominal amount in respect of that person.

(2) Proceedings shall not be taken under this Act to enforce payment of the nominal amount directed to be paid by an order, where the sum due under the order is less than ten dollars but, if that amount is varied under Division four of this Part, proceedings may be taken to enforce payment of any amount payable under the order as varied.

Subdivision 3—Preliminary and interim maintenance orders

S. 19 amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. items 124.8(a)(b), 124.9), repealed by No. 59/1997
s. 7(e).

20 Interim orders for payment of maintenance

S. 20(1) amended by No. 59/1997
s. 7(f)(i)(ii).

(1) Where the hearing of a complaint for the maintenance of a wife or husband is adjourned for a period of not less than seven days the court may order the defendant to pay for or towards the maintenance of the wife or husband such amount as it thinks reasonable.

(2) An order under this section shall not be subject to suspension, variation or appeal and shall remain in force until the expiration of a period of three months from the date on which the order is made or until the complaint again comes before the court (whichever first occurs).

Division 3—General

Subdivision 1—Commencement and duration of orders

S. 21 amended by No. 8036 s. 2, repealed by No. 59/1997
s. 7(g).

S. 22 amended by Nos 8036 s. 3, 57/1989 s. 3(Sch. item 124.10(a)–(c)), repealed by No. 59/1997
s. 7(g).

23 Orders for support may include limited provision for past maintenance

An order under this Part for the maintenance of a person may, whether or not an application in that behalf has been made, be made to take effect from a past date, not being earlier than three months before the date on which the order is made, and where an order takes effect from a past date the court may direct the past maintenance to be paid in one sum or by such instalments as the court directs.

24 Duration of order for support of wife or husband

An order under this Part for the maintenance of a wife or husband shall, if not earlier discharged or terminated, cease to have effect upon the death of the wife or husband (whichever death first occurs).

25 Recovery of arrears after cessation of order

(1) The fact that an order under this Act for the maintenance of a person ceases to have effect by virtue of this Act shall not prevent the enforcement of the order so far as it relates to any period before it ceased to have effect.

(2) Subsection (1) of this section shall not apply where the order ceases to have effect by reason of the death of the defendant.

Subdivision 2—Evidentiary

26 Constructive desertion by conduct

S. 26(1) amended by No. 59/1997
s. 7(h)(iii)–(v).

(a) the conduct of a party to a marriage constitutes just cause and excuse for the other party to the marriage to live separately or apart and—

S. 26(1)(a)(i) amended by No. 59/1997
s. 7(h)(i).

(i) occasions the other party to live separately or apart—

S. 26(1) (a)(ii)(b)
repealed by No. 59/1997
s. 7(h)(ii).

the party shall, for the purposes of this Part, be deemed to have deserted the other party without just cause or excuse, notwithstanding that that party may not in fact have intended the conduct to occasion the other party to live separately or apart.

S. 26(2) amended by No. 59/1997
s. 7(i)(iii)–(v).

(2) Where—

(a) the conduct of a party to a marriage constitutes just cause and excuse for the spouse of that party to live separately or apart and—

S. 26(2)(a)(i) amended by No. 59/1997
s. 7(i)(i).

(i) occasions the spouse to live separately or apart—

S. 26(2)
(a)(ii) (b) repealed by No. 59/1997
s. 7(i)(ii).

a bona fide offer by that party to provide a home for the spouse is not of itself a sufficient answer to a complaint under this Part for the maintenance of the spouse, or a sufficient reason for the discharge, suspension or variation of an order under this Part for the maintenance of the spouse.

(3) Where a husband and wife are parties to an agreement for separation whether oral or in writing or constituted by conduct, the refusal by one party to the marriage, without reasonable justification, to comply with the other party's bona fide request to resume cohabitation shall for the purposes of this Part as from the date of the refusal constitute desertion without just cause or excuse on the part of the party so refusing.

(4) For the purposes of the last preceding subsection reasonable justification means reasonable justification in all the circumstances, including the conduct of the other party since the marriage whether that conduct took place before or after the agreement for separation.

27 Evidence of mother or defendant as to paternity of child

S. 27(1) amended by No. 8602 s. 12.

(1) Upon the hearing of a complaint under this Part with respect to a child whose parents were not married to each other at the time of its birth or at or after the time of its conception the evidence of a woman that the defendant is the father of her child or that she is pregnant by the defendant (not being her husband) shall not be accepted without corroboration in a material particular except in the following cases, namely—

S. 27(1)(a) amended by No. 6/2018 s. 68(Sch. 2 item 82).

(a) where the defendant is present in court during the hearing of the complaint and does not give evidence on oath or by affirmation denying that he is the father of the child or that she is pregnant by him; and

(b) where the defendant is not present in court during the hearing of the complaint and the court is satisfied that he was duly served personally with a summons to attend—

and in either such case the court may, subject to subsection (2) of section twelve of this Act and to the next succeeding subsection, in its discretion accept the uncorroborated evidence of the woman as sufficient evidence of the fact that the defendant is the father of the child or that she is pregnant by him.

S. 27(2) amended by Nos 8602 s. 12, 124/1986 s. 75.

(2) Upon the hearing of any complaint under this Part with respect to a child whose parents were not married to each other at the time of its birth or at or after the time of its conception the defendant shall not be taken to be the father of the child of any woman nor shall any woman be taken to be pregnant by the defendant (not being her husband) if the court is satisfied that at or about the time of the conception of the child she had had sexual intercourse with men other than the defendant.

28 Proof of marriage

Upon the hearing of a complaint under this Part by one party to a marriage against the other party to the marriage the person complaining shall—

(a) produce direct evidence of the marriage with the person against whom the complaint is made; or

S. 28(b) amended by No. 6/2018 s. 68(Sch. 2 item 82).

(b) give evidence on oath or by affirmation of the time, place and circumstances of the marriage.

Division 4—Discharge, suspension and variation of orders

29 Power to court to discharge suspend or vary order

(1) Upon application made by or on behalf of a party to an order (including an order as varied) made or deemed to have been made under this Part a court may, subject to this Division, at any time make an order discharging the order, suspending the order in whole or in part until a specified day or until further order, or varying the order in any specified particular.

S. 29(2) amended by No. 57/1989 s. 3(Sch. item 124.11(a)).

(2) An application under the last preceding subsection shall be heard by the court at the venue where the order the subject of the application was made unless—

S. 29(2)(a) amended by No. 57/1989 s. 3(Sch. item 124.11(b)(c)).

(a) the parties to the application consent to the hearing of the application by the Court sitting at another venue; or

S. 29(2)(b) amended by No. 57/1989 s. 3(Sch. item 124.11(b)(c)).

(b) the hearing of the application is adjourned, upon the application of either party to the Court sitting at another venue.

(3) An order shall not be discharged suspended or varied under this Division unless the court is satisfied—

(a) that the order or, if the order has been varied, the original order or any order varying the original order was obtained by fraud or upon the basis of the existence of a marriage that did not in fact exist;

(b) that new facts or circumstances have arisen that have not previously been disclosed to a court and that by reason of those facts or circumstances it is reasonable to discharge, vary or suspend the order; or

(c) that facts or circumstances were in existence at the time of the making of the order or, if the order has been varied, the original order or any order varying the original order, that have not previously been disclosed to a court and that were not and could not by the exercise of reasonable diligence have previously been known to the party presently seeking the discharge suspension or variation of the order, and that by reason of those facts or circumstances it is reasonable to discharge, vary or suspend the order.

(4) An order in force under this Part may be discharged or varied from any past or future day or may be suspended from any past or future day or in respect of any past or future period.

(5) An order that has ceased to have effect may be discharged or varied from any past day or may be suspended from any past day or in respect of any past period.

(6) The fact that the defendant is in default in complying with an order shall not preclude the discharge suspension or variation of that order.

30 Effect of suspension of order

(1) Where an order made under this Part is suspended until a specified day the order, unless earlier revived pursuant to Division five of this Part, shall without any further or other order revive and again take effect upon the specified day.

(2) Where an order is suspended until further order it shall not again take effect unless and until an order reviving it is made under Division five of this Part.

(3) Subject to the next succeeding subsection, the fact that an order under this Part is suspended shall not prevent the enforcement of the order so far as it relates to any period before the day as from which the suspension took or takes effect.

(4) Where an order under this Part is suspended, the court may order that the whole or any part of any moneys owing under the order as at the day from which the suspension took or takes effect shall not be recoverable under this Act during the period of the suspension, and no certificate in relation to those moneys shall be granted under section forty-one of this Act during that period.

S. 31 amended by No. 8602 s. 12, repealed by No. 59/1997

Division 5—Revival of orders

32 Power to court to revive suspended order

S. 32(1) amended by No. 57/1989 s. 3(Sch. item 124.12).

(1) Upon application made by or on behalf of any person for whose benefit a maintenance order was made under this Part that has been suspended under Division four of this Part until a specified day or until further order, the Court may make an order reviving the suspended order in whole or in part with or without variation, as the court thinks fit.

S. 32(2) amended by No. 57/1989 s. 3(Sch. item 124.13(a)).

(2) An application under the last preceding subsection shall be heard at the venue where the suspending order was made unless—

S. 32(2)(a) amended by No. 57/1989 s. 3(Sch. item 124.13(a)(b)).

(a) the parties to the application consent to the hearing of the application by the Court sitting at another venue; or

S. 32(2)(b) amended by No. 57/1989 s. 3(Sch. item 124.13(a)(b)).

(b) the hearing of the application is adjourned upon the application of either party to the Court sitting at another venue.

(3) A suspended order may be revived from any past day or, subject to subsection (1) of section thirty, any future day specified in the reviving order and shall from that day have and (where necessary) be deemed to have had effect accordingly.

(4) Where the court revives an order from a past day it may direct that payment in respect of any period before the date of the reviving order be made in one sum or by such instalments as the court specifies in the reviving order.

Part III—Procedural

33 Making of complaints and issue of summons

S. 33(1) amended by Nos 57/1989 s. 3(Sch. item 124.14), 6/2018 s. 68(Sch. 2 item 82).

(1) Every complaint made for the purposes of this Act shall be in writing made upon oath or by affirmation before a registrar of the Court.

S. 33(2) amended by No. 57/1989 s. 3(Sch. item 124.15(a)).

(2) On receiving a complaint, a registrar of the Court—

(a) may issue a summons addressed to the defendant commanding him to attend the court upon the hearing of the complaint; or

S. 33(2)(b) amended by Nos 57/1989 s. 3(Sch. item 124.15(b)(c)), 6/2018 s. 68(Sch. 2 item 82).

(b) if satisfied by oath or by affirmation that the whereabouts of the defendant are unknown to the complainant, or that the defendant has moved or is about to move out of the State may issue a warrant to arrest the defendant and bring him or her before the Court pursuant to this Act.

(3) Two or more complaints made against a defendant by a complainant, whether on the complainant's own behalf, on behalf of other persons or both on the complainant's own behalf and on behalf of other persons, may be joined in the one form of complaint.

(4) Where two or more complaints are joined in the one form of complaint—

(a) one summons or warrant may be issued in respect of those complaints;

(b) those complaints shall, unless the court otherwise orders, be heard and determined by the court at the same time; and

(c) the court may make one order in respect of those complaints but the order shall be deemed to be a separate order in respect of each of the complaints in respect of which it was made.

S. 33(5) amended by No. 8602 s. 12, repealed by No. 59/1997

34 Manner of making applications

S. 34(1) amended by No. 57/1989 s. 3(Sch. item 124.16(a)(b)).

(1) Any person desiring to make application to the Court pursuant to any of the provisions of this Act shall lodge notice of his intention to make the application at the Court and shall, except where the application may be made ex parte, serve a copy thereof on the respondent to the application.

(2) Service of a copy of such a notice may be effected—

(a) by delivering the copy to the respondent personally; or

(b) by leaving the copy for him at his usual or last known place of residence or business with some person apparently residing therein or employed thereat and apparently over the age of sixteen years—

and may be proved in any manner in which service of a summons may be proved.

35 Orders may direct mode of payment

An order made by a court under this Act directing the payment of moneys may direct that—

S. 35(a) amended by No. 57/1989 s. 3(Sch. item 124.17).

(a) the moneys be paid to a registrar of the court or to some other person at a place specified in the order;

(b) the moneys payable under the order for or towards the maintenance of a person be paid, except where otherwise provided in this Part, weekly, monthly or otherwise periodically; and

(c) the moneys payable, other than moneys referred to in the last preceding paragraph, be paid either in one sum or by instalments or partly in one sum and partly by instalments.

36 Further orders

Whilst an order under this Act for the payment of money is in force the court may make such orders as it thinks necessary for better securing the payment and regulating the receipt and disbursement of the moneys or for ensuring the proper appropriation of such moneys.

37 Application of Magistrates' Court Act 1989

S. 37(1) amended by Nos 8731 s. 173, 57/1989 s. 3(Sch. item 124.18(a)).

(1) The provisions of section 16 of the Magistrates' Court Act 1989 shall extend and apply—

S. 37(1)(a) amended by No. 9019 s. 2(1)(Sch. items 140, 141).

(a) to the making of rules prescribing and regulating—

S. 37(1)(a)(i) amended by No. 57/1989 s. 3(Sch. item 124.18(b)).

(i) the procedure of the Magistrates' Court in and in relation to proceedings under this Act;

S. 37(1)(a)(ii) amended by No. 57/1989 s. 3(Sch. item 124.18(b)(c)).

(ii) the duties of registrars of the Magistrates' Court under this Act;

S. 37(1)(a)(iii) amended by No. 57/1989 s. 3(Sch. item 124.18(b)(c)).

(iii) the accounts records and books to be kept by registrars of the Magistrates' Court for the purposes of this Act and the method of keeping those records and books;

(iv) the fees costs and charges which may be charged awarded and made under this Part;

(v) the forms to be used under this Act; and

(vi) generally any act matter or thing required or necessary to be prescribed or regulated for giving effect to this Act; and

(b) to such rules when made.

S. 37(2) amended by Nos 8731 s. 173, 9019 s. 2(1)(Sch. item 140), 57/1989 s. 3(Sch. item 124.19(a)(b)).

(2) So far as not inconsistent with this Act and any rules made pursuant to the last preceding subsection, the provisions of the Magistrates' Court Act 1989 and any rules made under that Act relating to complaints summonses and warrants and the service and execution thereof and the proof of such service or execution, and relating generally to proceedings in the Magistrates' Court shall with the necessary adaptations and modifications extend and apply to and with respect to complaints summonses warrants and proceedings under this Act.

38 Power to court to proceed in absence of defendant in certain cases

S. 38(1) amended by No. 57/1989 s. 3(Sch. item 124.20).

(1) If a defendant to whom a summons has been issued does not appear in accordance with the summons or on any day to which the hearing of the summons is adjourned the court, upon proof of the service of the summons, may issue a warrant to arrest the defendant and for his being brought before the court, or may proceed with the hearing of the complaint in the absence of the defendant.

S. 38(2) amended by No. 57/1989 s. 3(Sch. item 124.21).

(2) Where a warrant has been issued for the arrest of the defendant (whether in the first instance or upon the defendant failing to appear in accordance with a summons as aforesaid) and the court is satisfied that after strict inquiry and search the defendant cannot be found the court may proceed to hear the complaint in the absence of the defendant.

(3) The inquiry and search made for the defendant for the purposes of this section may be proved by evidence given orally or by the affidavit of the person or persons who made such inquiry and search.

39 Setting aside order made in the absence of the defendant

(1) Where the court proceeds pursuant to the provisions of the last preceding section to make an order against the defendant in his absence the defendant may, within twenty-eight days after the order comes to his knowledge, make application to the court that made the order to set aside the order and to re-hear the matter of the complaint in respect of which the order was made.

S. 39(2) amended by Nos 9019 s. 2(1)(Sch. item 142), 57/1989 s. 3(Sch. item 124.22).

(2) Notice in writing of intention to make any such application shall be lodged at the Court and a copy thereof shall be served on the complainant either personally or by registered post a reasonable time in the circumstances before the day specified in the notice for the making of such application.

(3) Upon proof of service of the notice as aforesaid the court may, if it thinks it just in the circumstances of the case so to do, set aside the order made in the absence of the defendant on such terms as to costs as it thinks fit and may proceed to hear and determine the matter of the said complaint or, in the absence of the complainant, may adjourn the matter of the application to some other time or place and may direct such notice as the court thinks fit of such adjourned hearing to be given to the complainant.

(4) Where an order has been set aside under this section any order made against the defendant thereafter for the maintenance of any person may be made to take effect from any date upon which the order set aside could have been made to take effect pursuant to the provisions of section twenty‑three of this Act.

Part IV—Enforcement of orders

Division 1—Orders made in Victoria

Subdivision 1—Orders for sale of goods, &c.

40 Orders for seizure of goods, chattels, securities, rents etc.

S. 40(1) amended by No. 11/2001 s. 3(Sch. item 45.2).

(1) Upon the making or during the operation of an order under Part II of this Act the court may, upon application made ex parte by or on behalf of any person for whose maintenance or for whose benefit the order was made, by order authorize and direct a person named in the order during the operation of the order and from time to time, if necessary, to seize and sell, to the extent necessary to satisfy the order, any goods chattels and securities belonging to the defendant or to demand and receive to that extent any annuity, rents and other income (not being earnings within the meaning of Subdivision 5 of this Division) payable to the defendant and any moneys credited to the defendant in any authorised deposit-taking institution account and to apply the proceeds of any such sale or any moneys so received, after deducting therefrom his costs and charges, towards the payment of the amounts required to be paid under the order.

(2) Any person so authorized and directed shall have full power and authority to do all acts and things, including the execution of transfers receipts discharges and acquittances, necessary to give full effect to the seizures, sales, demands and receipts so authorized and directed as aforesaid.

S. 40(3) amended by No. 10/2004 s. 15(Sch. 1 item 17).

(3) Any person who fails to comply with a demand made upon him under subsection (1) of this section by a person authorized and directed by the court in that behalf shall be guilty of an offence and liable to a penalty of not more than 2 penalty units.

Subdivision 2—Registration of certificate of arrears

41 Registration of arrears in Supreme Court or County Court

S. 41(1) amended by Nos 57/1989 s. 3(Sch. item 124.23), 6/2018 s. 68(Sch. 2 item 82).

(1) Where an order (in this section called a maintenance order) has been made under Part II of this Act for the payment of maintenance and it is made to appear on oath or by affirmation to the Court that default has been made by the defendant in making the payments directed by the maintenance order the court may, upon application made by or on behalf of any person for whose maintenance or for whose benefit the order was made and subject to subsection (4) of section thirty of this Act, grant a certificate stating the amount due under the maintenance order at the date thereof without requiring notice of the application to be given to the defendant.

S. 41(2) amended by No. 57/1989 s. 3(Sch. item 124.24).

(2) The person for whose maintenance or for whose benefit the maintenance order was made may file the certificate or cause the certificate to be filed in the Supreme Court of Victoria and the Prothonotary shall enter judgment for such person for the amount stated in the certificate to be due together with the fees paid for the certificate and for filing and entering the judgment thereon and shall forthwith send notice in writing of the entry of such judgment to a registrar of the Court at the venue where payments under the maintenance order are for the time being required to be made.

(3) Subject to the following provisions of this section such judgment may be enforced in any manner in which a final judgment in an action may be enforced.

(4) Where judgment is entered under this section proceedings for enforcement of the judgment shall not be commenced unless an affidavit has been filed stating that no proceedings are pending in another court for the recovery of any of the arrears of maintenance included in the amount of the judgment and that the maintenance order has not been discharged, suspended or varied since the date of the certificate referred to in subsection (1) of this section in any way affecting any of the arrears of maintenance included in the amount of the judgment.

(5) Rules of court may prescribe the practice and procedure to be observed in the Supreme Court of Victoria in connexion with the filing of certificates and entering judgments thereon in pursuance of this section and the fees to be paid.

Subdivision 3—Attachment of debts

S. 42 amended by Nos 8731 s. 173, 57/1989 s. 3(Sch. item 124.25).

42 Attachment of debts

The provisions of the Magistrates' Court Act 1989 with respect to the attachment of debts (not being earnings within the meaning of Subdivision 5 of this Division) and of the rules under the said Act in relation thereto shall extend and apply to moneys due and payable or becoming due and payable from time to time pursuant to an order for the payment of money made under Part II of this Act (including an order for costs), and insofar as the order directs the payment of money by instalments or periodically the order shall, for the purposes of the said subdivision, be deemed to be an order for the payment of the whole amount due and unpaid under the order from time to time. An order for the attachment of a debt in respect of moneys due and unpaid under a maintenance order shall take priority over any other order directed to the garnishee for the attachment of moneys due and payable or becoming due and payable by the garnishee to the defendant.

Subdivision 4—Imprisonment on proof of disobedience

43 Court may commit defendant to prison

S. 43(1) amended by No. 57/1989 s. 3(Sch. item 124.26).

(1) Where the court is satisfied, upon complaint made by or on behalf of any person for whose maintenance or for whose benefit an order (in this Subdivision called an original order) has been made under Part II of this Act for the payment of money whether in one sum, by instalments, by periodical payments or for costs, that the defendant (being a male person) has disobeyed or failed to comply with the order and that an amount of money (in this Subdivision called the arrears of maintenance) is presently due and payable and has not been paid, the court may order that the defendant be imprisoned in default of payment of the arrears of maintenance for such term as the court thinks proper in the circumstances, but not in any case exceeding twelve months.

S. 43(1A) inserted by No. 7860 s. 2, amended by No. 57/1989 s. 3(Sch. item 124.27(a)–(c)).

(1A) Where it appears to the court making an order of imprisonment under subsection (1) that the defendant has been served personally with a copy of the complaint under that subsection or that proceedings have previously been taken against him under this subdivision or under Part VI of the Maintenance Act 1958 or that he has otherwise had communicated to him the nature of proceedings under this Subdivision neither the order nor a copy of the order need be served on the defendant before the issue of a warrant to imprison.

S. 43(1B) inserted by No. 8036 s. 4.

(1B) For the purposes of making an order under subsection (1) the court may receive evidence of any and every payment directed by the original order to be made which, having become payable after the making of the complaint, was in arrear and not paid at the date of the hearing, as if the complaint had been duly made in respect both of those payments and of the arrears that were due at the date of the making of the complaint, and arrears of maintenance in this section shall be read and construed as including those payments.

(2) A defendant shall not be liable to serve more than one period of imprisonment in respect of failure to pay an amount of arrears of maintenance but the liability to pay any such arrears shall not be discharged by imprisonment in respect thereto and the amount of any such arrears shall until paid remain a sum which may be recovered under any other provision of this Act.

S. 43(2A) inserted by No. 8426 s. 10 (as amended by No. 8701 s. 7(g)), amended by Nos 9554 s. 2(1)(Sch. 1 item 12), 16/1987 s. 4(3)(Sch. 1 item 14(b)), 57/1989
s. 3(Sch. item 124.28).

(2A) By any order under subsection (1) the court may direct that the defendant be permitted to serve the term of his imprisonment by way of attendance at an attendance centre within the meaning of Division 6 of Part IV of the Community Services Act 1970 and thereupon the provisions of the said Division 6, except paragraph (a) in subsection (1) of section 145A shall extend and apply, with such modifications as are necessary, with respect to the defendant.

S. 43(3) amended by Nos 9019 s. 2(1)(Sch. item 142), 57/1989 s. 3(Sch. item 124.29(a)–(d)).

(3) Notwithstanding anything to the contrary in any Act where an order has been made under this section imprisoning the defendant in respect of arrears of maintenance and it appears to a registrar of the Court to whom application is made for the issue of a warrant to imprison that the amount of the arrears of maintenance in respect of which the order of imprisonment was made has been reduced the fact of such reduction shall be stated in the warrant to imprison and the term of imprisonment for which the defendant may be committed shall be reduced by the number of days bearing as nearly as possible the same proportion to the total number of days in such term as the amount paid bears to the whole arrears of maintenance.

S. 43(4) amended by No. 57/1989 s. 3(Sch. item 124.30).

(4) Notwithstanding anything to the contrary in any Act or in any warrant to imprison where any person is imprisoned for non-payment of arrears of maintenance he may pay or cause to be paid to the keeper of the gaol in which he is imprisoned—

(a) the whole of the arrears of maintenance or, having regard to subsection (3) of this section, the amount of those arrears remaining to be paid; or

(b) any amount which, having regard to the proportion in subsection (6) mentioned, is (as nearly as may be) a fractional part of the whole amount adjudged to be paid—

and in either case the keeper shall receive the payment.

(5) Where the amount mentioned in paragraph (a) of subsection (4) of this section is paid to the keeper the keeper shall thereupon discharge such person if he is in custody for no other matter.

(6) Where an amount mentioned in paragraph (b) of subsection (4) of this section is paid to the keeper the term of imprisonment fixed by the commitment order shall be reduced by the number of days bearing the same proportion to the total number of days in such term as the amount paid bears to the whole of the arrears of maintenance and on the expiration of the term so reduced the person imprisoned shall if in custody for no other matter be discharged.

44 Court not to commit to prison in certain cases

S. 44(1) amended by No. 57/1989 s. 3(Sch.
items 124.31, 124.32).

(1) The Court shall not commit a defendant to prison pursuant to this Subdivision if it is satisfied—

(a) that the defendant has not and has not had the means and ability and could not by reasonable effort have had the means and ability to comply with the original order; or

(b) that for any other reason the original order should not be enforced by imprisonment.

S. 44(2) amended by No. 57/1989 s. 3(Sch.
items 124.31, 124.33(a)(b)).

(2) If the Court in committing a defendant to prison under this Subdivision for the non-payment of a sum is aware that it has previously refused to commit the defendant to prison under this Subdivision for non-payment of a sum (in this subsection referred to as the original sum) included in that sum, the court shall only have regard to the amount by which the sum still due and unpaid exceeds the original sum unless it is satisfied that, since that refusal, the means and ability of the defendant to pay the original sum have so altered as to make it reasonable for him now to be committed to gaol for non-payment of the original sum.

S. 45 substituted by No. 7860 s. 3.

45 Court may order mode of payment

(1) Upon the making of a commitment order under this subdivision or at any time thereafter the court may order that any amount due under the maintenance order be paid forthwith or within such time or by such instalments as the court allows and may from time to time allow further time for the payment of any amount due or of any instalment or may vary any amount previously ordered to be paid under the commitment order.

S. 45(2) amended by No. 57/1989 s. 3(Sch. item 124.34(a)(b)).

(2) Where a defendant has at any time been ordered, whether under this Subdivision or under Part VI of the Maintenance Act 1958, to pay any amount due under a maintenance order within a specified time or by instalments and the defendant fails to make payment thereof within the time specified or to pay any such instalment the whole amount due under the order of imprisonment and not paid shall become due and payable forthwith and without any further or other authority than this subsection a warrant to imprison shall be issued in respect of the amount so due and payable and shall be executed upon the defendant.

S. 45A inserted by No. 7610 s. 2.

45A Governor may order discharge of defaulter

S. 45A(1) amended by No. 16/1987 s. 12(Sch. 2 item 9(c)).

(1) The Governor may order the discharge from prison of any person who is imprisoned for disobeying or failing to comply with an order made or being enforced under this Act upon such person entering into a recognisance such as is provided in the Penalties and Sentences Act 1985 for the purposes of that section for the observance of such other conditions (if any) as the Governor thinks fit to impose for securing payment of the moneys concerned.

S. 45A(2) amended by No. 16/1987 s. 12(Sch. 2 item 9(d)(i)(ii)).

(2) The provisions of the Penalties and Sentences Act 1985 shall, so far as those provisions are applicable and with such modifications as are necessary, apply with respect to any recognisance entered under subsection (1) and to any proceedings thereon and the recognisance shall be as valid and effectual and may be enforced as if entered under that Act.

Subdivision 5—Attachment of earnings

46 Definitions

(1) In this Subdivision unless inconsistent with the context or subject-matter—

attachment of earnings order means an order under subsection (3) of section forty-seven of this Act or such an order as varied from time to time;

defendant in relation to a maintenance order or to proceedings in connexion with a maintenance order means the person against whom the order was made;

S. 46(1) def. of earnings amended by No. 48/1987 s. 10(a)(b).

earnings in relation to a defendant, means any sums payable to the defendant—

(a) by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary); or

(b) by way of pension, including—

(i) an annuity in respect of past services, whether or not the services were rendered to the person paying the annuity; and

(ii) periodical payments in respect of or by way of compensation for the loss abolition or relinquishment, or any diminution in the emoluments, of any office or employment—

but does not include any pension payable to the defendant under the Commonwealth Acts known as the Social Security Act 1947 as amended by subsequent Acts, the Veterans' Entitlements Act 1986 as amended by subsequent Acts, or the Seamen's War Pensions and Allowances Act 1940 as amended by subsequent Acts;

employer in relation to a defendant, means a person (including the Crown in right of the State of Victoria, a Minister of the Crown in right of the State of Victoria and any statutory authority representing the Crown in right of the State of Victoria) by whom, as a principal and not as a servant or agent, earnings are payable or are likely to become payable to the defendant;

maintenance order means an order made under Part II of this Act or enforceable as if so made and, if such an order has been varied, means the order as so varied and includes such an order that has ceased to have effect if any arrears are recoverable under the order but does not include an order made or of a kind that may be made under Subdivision 6 or Subdivision 7 of Division one of Part II of this Act;

net earnings in relation to a pay-day, means the amount of the earnings becoming payable by a particular employer on that pay-day, after deduction from those earnings of—

(a) any sum deducted from those earnings under Division 2 of Part VI of the Commonwealth Act known as the Income Tax and Social Services Contribution Assessment Act 1936 as amended by subsequent Acts; and

(b) any sum deducted from those earnings that would be an allowable deduction—

(i) under section eighty-two H of that Act as so amended other than life insurance premiums, not being life insurance premiums payable in respect of superannuation; or

(ii) under section eighty-two HA of that Act as so amended;

normal deduction in relation to an attachment of earnings order and in relation to a pay-day, means an amount representing a payment at the normal deduction rate specified in the order in respect of the period between that pay-day and either the last preceding pay‑day, or, where there is no last preceding pay-day, the date on which the employer became, or last became, the defendant's employer;

pay-day means an occasion on which earnings to which an attachment of earnings order relates become payable;

protected earnings in relation to an attachment of earnings order and in relation to a pay-day, means the amount representing a payment at the protected earnings rate specified in the order in respect of the period between that pay-day and either the last preceding pay-day, or, where there is no last preceding pay‑day, the date on which the employer became, or last became, the defendant's employer.

(2) In this Subdivision—

(a) a reference to a person entitled to receive payments under a maintenance order is a reference to a person entitled to receive payments under the maintenance order either directly or through another person or for transmission to another person; and

(b) a reference to proceedings relating to an order includes a reference to proceedings in which the order may be made.

47 Attachment of earnings order

(1) A person entitled to receive payments under a maintenance order may apply in writing—

(a) to the court that made the order; or

(b) to any court in which the order is for the time being enforceable under this Act—

for an attachment of earnings order.

(2) An application under the last preceding subsection may be made without specifying the name of any particular employer.

(3) If the court is satisfied that the defendant is a person to whom earnings are payable or are likely to become payable and—

(a) that, at the time when the application was made, there was due under the maintenance order and unpaid an amount equal to not less than—

(i) in the case of an order for weekly payments—four payments; or

(ii) in any other case—two payments; or

(b) that the defendant has persistently failed to comply with the requirements of the order—

the court may order a person who appears to the court to be the defendant's employer in respect of those earnings or a part of those earnings to make out of those earnings or that part of those earnings payments in accordance with section forty-eight of this Act.

(4) The court shall not make an attachment of earnings order if it appears to the court, in a case to which paragraph (a) of the last preceding subsection applies, that the failure of the defendant to make payments under the maintenance order was not due to his wilful refusal or culpable neglect.

(5) An attachment of earnings order shall specify either generally or in relation to any particular pay-day or pay-days the normal deduction rate, that is to say, the rate at which the court considers it to be reasonable that the earnings to which the order relates should be applied in satisfying the requirements of the maintenance order but not exceeding the rate that appears to the court to be necessary for the purpose of—

(a) securing payment of the sums from time to time falling due under the maintenance order; and

(b) securing payment within a reasonable time of any sums already due and unpaid under the maintenance order and any costs incurred in proceedings relating to the maintenance order that are payable by the defendant.

(6) An attachment of earnings order may specify a higher normal deduction rate to apply for a specified number of pay-days after the order comes into force and a lower normal deduction rate to apply to subsequent pay-days.

S. 47(7) amended by No. 57/1989 s. 3(Sch. item 124.35).

(7) An attachment of earnings order shall also specify the protected earnings rate, that is to say, the rate below which, having regard to the resources and needs of the defendant and of any person for whom he must or reasonably may provide, the court considers it to be reasonable that the earnings to which the order relates should not be reduced by a payment under the order.

S. 47(8) amended by Nos 9019 s. 2(1)(Sch. item 142), 57/1989 s. 3(Sch. item 124.36).

(8) An attachment of earnings order shall provide that payments under the order are to be made to a registrar of the Court.

(9) An attachment of earnings order shall contain such particulars as the court thinks proper for the purpose of enabling the person to whom the order is directed to identify the defendant.

(10) An attachment of earnings order shall be served on—

(a) the defendant; and

(b) the person to whom the attachment of earnings order is directed—

and shall not come into force until the expiration of seven days after the day on which a copy of the order is served on the person to whom the order is directed.

48 Employer to make payments under order

S. 48(1) amended by No. 57/1989 s. 3(Sch. item 124.37).

(1) An employer to whom an attachment of earnings order is directed, being an attachment of earnings order that is in force, shall, in respect of each pay‑day, if the net earnings of the defendant exceed the sum of—

(a) the protected earnings of the defendant; and

(b) so much of any amount by which the net earnings that became payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any other previous pay-day—

pay, so far as that excess permits, to a registrar of the Court—

(c) the normal deduction in relation to that pay-day; and

(d) so much of the normal deduction in relation to any previous pay-day as was not paid on that pay-day and has not been paid on any other previous pay-day.

(2) A payment made by the employer under the last preceding subsection shall be a valid discharge to him as against the defendant to the extent of the amount paid.

49 Attachment of earnings order instead of other order

S. 49(1) amended by No. 57/1989 s. 3(Sch. item 124.38).

(1) Where any proceedings are brought in the Court to enforce a maintenance order the court may, instead of making any other order, make an attachment of earnings order.

(2) Unless the court otherwise orders where an attachment of earnings order is in force no warrant or other process shall be issued or order made in proceedings for the enforcement of the maintenance order that were begun before the making of the attachment of earnings order.

50 Discharge of variation of order

(1) The court by which an attachment of earnings order has been made may, in its discretion, on the application of the defendant or a person entitled to receive payments under the maintenance order, make an order discharging, suspending or varying the attachment of earnings order.

(2) An order suspending or varying an attachment of earnings order shall be served on—

(a) the respondent to the application; and

(b) the person to whom the attachment of earnings order is directed—

and shall not come into force until the expiration of seven days after the day on which a copy of the order is served on the person to whom the order is directed.

51 Cessation of attachment of earnings order

(1) An attachment of earnings order shall cease to have effect—

(a) upon being discharged under the last preceding section;

(b) subject to subsection (2) of this section upon the discharge or variation of the maintenance order in relation to which the attachment of earnings order was made; or

(c) unless the court otherwise orders, upon the making of any other order for the enforcement of the maintenance order in relation to which the attachment of earnings order was made.

(2) Where it appears to the court discharging a maintenance order that arrears under the order will remain to be recovered under the order, the court may direct that the attachment of earnings order shall not cease to have effect until those arrears have been paid.

S. 51(3) amended by No. 57/1989 s. 3(Sch. item 124.39(a)(b)).

(3) Where an attachment of earnings order ceases to have effect the registrar of the Court at the venue at which the order was made shall forthwith give notice accordingly to the person to whom the order was directed.

(4) Where an attachment of earnings order ceases to have effect the person to whom the attachment of earnings order is directed shall not incur any liability in consequence of his treating the order as still in force at any time before the expiration of seven days after the date on which the notice required by the last preceding subsection or a copy of the discharging order, as the case may be, is served on him.

52 Compliance with order

An attachment of earnings order made under this subdivision shall have priority over any other order directed to the defendant's employer with respect to any earnings payable or likely to become payable to the defendant and the defendant's employer shall, notwithstanding anything in any other law, but subject to this Subdivision, comply with the order.

53 Where two or more orders are in force

(1) Where on any occasion on which earnings become payable to a defendant there are in force two or more attachment of earnings orders (whether made under this Act or otherwise) in relation to those earnings, the person to whom the orders are directed—

(a) shall comply with those orders according to the respective dates on which they took effect and shall disregard any order until an earlier order has been complied with; and

(b) shall comply with any order as if the earnings to which the order relates were the residue of the defendant's earnings after the making of any payment under any earlier order.

(2) For the purposes of this section an attachment of earnings order which has been varied shall be deemed to have been made as so varied on the day upon which the attachment of earnings order was made.

54 Notice to defendant of payments made

(1) A person who makes a payment in compliance with an attachment of earnings order shall give to the defendant a notice specifying particulars of the payment.

(2) Where a person served with an attachment of earnings order directed to him—

(a) is not the defendant's employer at the time of service of the order; or

S. 54(2)(b) amended by No. 57/1989 s. 3(Sch. item 124.40).

(b) is the defendant's employer at that time but ceases to be the defendant's employer at any time thereafter—

that person shall give notice in writing accordingly to the registrar of the Court at the venue where the order was made, and shall give that notice—

(c) where paragraph (a) of this subsection applies—forthwith after service on that person of the order; and

(d) where paragraph (b) of this subsection applies—forthwith after that person ceases to be the defendant's employer.

55 Determination as to what payments are earnings

(1) The court by which an attachment of earnings order has been made shall, on the application of the person to whom the order is directed, determine whether payments to the defendant of a particular class or description specified in the application are earnings for the purpose of that order.

(2) A person to whom an attachment of earnings order is directed who makes an application under the last preceding subsection does not incur any liability for failing to comply with the order with respect to any payments of the class or description specified in the application that are made by him to the defendant while the application, or any appeal from a determination made on the application, is pending.

(3) The last preceding subsection does not apply in respect of any payment made after the application has been withdrawn or an appeal from a determination made on the application has been abandoned.

56 Service

Any order or document that is required or permitted to be served on a person under this Subdivision may be served on that person—

(a) by delivering a copy thereof to that person;

(b) by leaving a copy thereof at the usual or last known place of residence or business of that person with some person who apparently resides therein or is employed thereat and is apparently over the age of sixteen years; or

(c) by sending a copy thereof to him at his usual or last known place of residence or business by registered post.

57 Offence and defence

S. 57(1) amended by No. 9554 s. 2(2)(Sch. 2 item 201).

(1) Any person who fails to comply with a requirement of this Subdivision or of any attachment of earnings order under this Subdivision that is applicable to him shall be guilty of an offence and liable to a penalty of not more than 5 penalty units.

(2) It shall be a defence to a person charged with an offence arising under the last preceding subsection if he proves that he took all reasonable steps to comply with the requirement or order.

S. 58 amended by No. 9554 s. 2(2)(Sch. 2 item 201).

58 Dismissal of an employee

Any person who dismisses an employé or injures him in his employment, or alters his position to his prejudice, by reason of the circumstance that an attachment of earnings order has been made in relation to the employé or that the person is required to make payments under such an order in relation to the employé shall be guilty of an offence and liable to a penalty of not more than 5 penalty units.

59 Reimbursement of wages and reinstatement

(1) Where any person is convicted of an offence arising under the last preceding section the court by which he is convicted may order that the employé be reimbursed any wages lost by him and may also direct that the employé be reinstated in his old position or in a similar position.

(2) Any amount ordered to be reimbursed under subsection (1) of this section may be recovered from the person convicted as aforesaid as if it were part of the penalty to which such person is liable under the last preceding section.

60 Application of Subdivision

This Subdivision shall have effect in relation to a defendant notwithstanding any Act or law that would otherwise prevent the attachment of his earnings.

S. 61 amended by No. 57/1989 s. 3(Sch. item 124.41).

61 Payments by Crown etc.

The provisions of this Subdivision shall have effect in relation to deductions from earnings falling to be paid by the Crown in right of the State of Victoria, a Minister of the Crown in right of the State of Victoria or a statutory authority representing the Crown in right of the State of Victoria or out of the Consolidated Fund and those earnings shall be treated as falling to be paid by the permanent head or principal officer of the department office or other body concerned but the provisions of subsection (3) of section sixty-three of this Act do not apply to the permanent head or principal officer.

Subdivision 6—General

62 Provision where defendant supported wife husband or child during any period

Where proceedings are taken under this Part in respect of a failure to make payments for or towards the maintenance of a person it shall be a sufficient answer to those proceedings so far as relates to the failure to make payments during any period if it is proved that during that period the defendant adequately supported that person.

63 Court may require defendant to state his employer etc.

(1) In any proceedings for the enforcement of an order made under this Act or for the purpose of enabling proceedings to be instituted for the enforcement of such an order the court may—

(a) direct the defendant to attend before the court at a time specified in the order to be examined concerning his means and ability to comply with the order;

(b) direct the defendant to state to the court or to furnish to the court within any time fixed by the court a statement signed by the defendant setting forth—

(i) the name and address of his employer or, if he has more employers than one, of each of his employers;

(ii) particulars as to the defendant's earnings; and

(iii) such other particulars as the court thinks necessary to enable the enforcement of the order; or

(c) direct any person who appears to the court to be indebted to the defendant or to be the employer of the defendant to give to the court, within any time fixed by the court, a statement signed by him or on his behalf containing such particulars as are specified in the direction of his indebtedness to the defendant or of all the earnings of the defendant that became payable by that person during a specified period (as the case may be).

(2) A document purporting to be a statement referred to in the last preceding subsection shall be received in evidence in any proceedings under this Act for the enforcement of the order.

S. 63(3) amended by No. 9554 s. 2(2)(Sch. 2 item 201).

(3) Every person who—

(a) without reasonable cause or excuse refuses or fails to comply with a direction under this section that is applicable to him; or

S. 63(3)(b) amended by No. 57/1989 s. 3(Sch. item 124.42).

(b) in any statement made or notice furnished to the Court pursuant to the provisions of this section, makes a statement that he knows to be false or misleading in a material particular or does not believe on reasonable grounds to be true—

shall be guilty of an offence and liable to a penalty of not more than 5 penalty units.

S. 64 amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.43).

64 Duties of clerk of Magistrates' Court in relation to orders

Upon application made to him by or on behalf of any person for whose maintenance or for whose benefit a maintenance order is enforceable in Victoria a registrar of the Court shall, in accordance with the rules, take all steps necessary or expedient to enforce the order on behalf of that person.

S. 65 amended by No. 9554 s. 2(2)(Sch. 2 item 202), repealed by No. 59/1997

S. 66 amended by Nos 9554 s. 2(2)(Sch. 2 item 203), 57/1989 s. 3(Sch.
items 124.44, 124.45). repealed by No. 59/1997

67 Recovery of penalties

S. 67(1) amended by No. 37/2014 s. 10(Sch. item 102.2).

(1) Subject to subsection (6) of the last preceding section proceedings for an offence against any of the provisions of this Division may be taken by any police officer.

S. 67(2) amended by No. 57/1989 s. 3(Sch. item 124.46).

(2) All moneys recovered by way of penalty for offences against any of the provisions of this Division shall be paid to the Consolidated Fund.

Division 2—Reciprocal enforcement of orders

Subdivision 1—Interpretation and administration

68 Definitions

(1) In this Division, unless inconsistent with the context or subject-matter—

another Australian State means an Australian State other than Victoria;

Australian State means a State or Territory of the Commonwealth;

S. 68(1) def. of certified copy amended by No. 7860 s. 4.

certified copy—

(a) in relation to a maintenance order or other order of a court (not being an order made under the Matrimonial Causes Act 1959 of the Commonwealth as amended by subsequent Acts)—means a copy of the order certified to be a true copy by an officer of the court that made the order or a copy of such a copy certified to be a true copy by an officer of a court in or by which the order has been registered or confirmed;

(b) in relation to a maintenance order or other order made under the Matrimonial Causes Act 1959 of the Commonwealth as amended by subsequent Acts means—

(i) a certificate of the order issued under the rules made under that Act;

(ii) if the order is included in a decree nisi a copy of the decree nisi; or

(iii) a copy of such a certificate or of the decree nisi in which the order is included certified to be a true copy by an officer of a court in which the order has been registered under that Act; and

(c) in relation to a record of the evidence of a witness in proceedings before a court—means a copy of the record certified to be a true copy by an officer of that court;

Collector—

(a) in relation to Victoria—means the Collector of Maintenance, the Deputy Collector of Maintenance or an Assistant Collector of Maintenance appointed under this Division; and

(b) in relation to another Australian State—means an officer appointed under the law of that Australian State whose duties, or part of whose duties, are similar to those of the Collector of Maintenance, the Deputy Collector of Maintenance or an Assistant Collector of Maintenance appointed under this Division;

Collector's certificate—

(a) in relation to a Victorian order, or an overseas order enforceable in Victoria—means a certificate in or to the effect of the prescribed form signed by the Collector; and

(b) in relation to a maintenance order made in another Australian State, or an overseas order that is or has been enforceable in another Australian State—means a certificate in or to the effect of such form prescribed by or under the law of that other Australian State as corresponds with the form of Collector's certificate prescribed for the purposes of this Division;

complainant, in relation to a maintenance order or to proceedings in connexion with a maintenance order, means the person for whose benefit the maintenance order was made, or a person acting on behalf of that person;

country includes any State, Province or other part of a country outside Australia, or any Territory of such a country;

country having restricted reciprocity means a reciprocating country that is for the time being declared by a proclamation in force under section ninety-eight of this Act to have restricted reciprocity with the State of Victoria;

court means a court, or a magistrate, justices or any other person or persons exercising judicial power, whether constituted or acting under the law of Victoria, any other Australian State, the Commonwealth, or a reciprocating country;

defendant, in relation to a maintenance order or to proceedings in connexion with a maintenance order, means the person against whom the order was made;

depositions, in relation to a witness in proceedings, means the record, or a certified copy of the record, of the evidence of that witness in those proceedings;

S. 68(1) def. of interstate order amended by No. 7610 s. 3(a).

interstate order means a maintenance order—

(a) made in another Australian State by a court of summary jurisdiction or by a magistrate or justices; or

(b) made by the Supreme Court of another Australian State (whether under the law of that Australian State or under a law of the Commonwealth) and registered, for the purposes of enforcement, in a court of summary jurisdiction under a law of an Australian State or under a law of the Commonwealth;

justice means justice of the peace;

S. 68(1) def. of maintenance order amended by No. 59/1997
s. 7(k).

maintenance order means an order (whether made before or after the commencement of this Act and whether made in Victoria or elsewhere), being—

(a) an order whereby a person is ordered to pay money, whether in a lump sum or by instalments, or to pay sums of money periodically, for or towards the maintenance of another person or by way of recoupment of moneys spent in, or provided for, the maintenance of another person; or

(b) an order made under, or of a kind similar to an order made under Subdivision 7 of Division 1 of Part II of this Act—

and, if such an order has been varied, means the order so varied and all orders (wherever made) by which it has been varied;

officer, in relation to a court, includes a person, or one of the persons, constituting the court;

overseas order in relation to a reciprocating country, means—

(a) in any case where in a proclamation under section ninety-eight of this Act declaring that country to be a reciprocating country it is declared that maintenance orders made in that country shall be enforceable in Victoria in accordance with the provisions of this Division from a date specified in the proclamation—a maintenance order made on or after that date in that country by a court of competent jurisdiction; and

(b) in any other case—a maintenance order made in that country (whether before or after the making of the proclamation) by a court of competent jurisdiction;

reciprocating country means a country that is for the time being declared by a proclamation in force under section ninety-eight of this Act to be a reciprocating country for the purposes of this Division;

S. 68(1) def. of Secretary to the Law Department repealed by No. 46/1998

S. 68(1) def. of Victorian order amended by Nos 7610 s. 3(b), 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.47).

Victorian order means a maintenance order—

(a) made in Victoria the Magistrates' Court; or

(b) made by the Supreme Court of Victoria (whether under the law of Victoria or under a law of the Commonwealth) and registered, for the purposes of enforcement, in a court of summary jurisdiction under a law of an Australian State or under a law of the Commonwealth.

(2) A reference in this Division to a certified copy of an order shall, where the order has been varied or otherwise affected by a provisional order of one court that has effect by virtue of the fact that it has been confirmed (whether with or without modification) by another court, be read as including a reference to both a certified copy of the provisional order and a certified copy of the confirming order.

(3) A reference in this Division to an order made by a court shall be read as including a reference to an order made by another court on an appeal in connexion with proceedings that originated in the first-mentioned court.

(4) For the purposes of this Division, where a person is working in a place, whether temporarily or permanently, he shall be deemed to be resident in that place as well as in the place where he is in fact resident.

69 Collectors of Maintenance

(1) For the purposes of this Division, the Governor in Council may appoint a Collector of Maintenance, a Deputy Collector of Maintenance and as many Assistant Collectors of Maintenance and other officers as are necessary for the administration of this Division.

(2) The Deputy Collector of Maintenance and every Assistant Collector of Maintenance shall have and may exercise, subject to the directions of the Collector of Maintenance, all the powers authorities duties and functions of the Collector of Maintenance.

70 Powers and duties of Collector

(1) The Collector shall have power to do all things necessary or convenient to be done for the enforcement in Victoria of maintenance orders that are enforceable in Victoria by virtue of this Division.

(2) The Collector shall—

(a) receive moneys payable to him pursuant to orders enforceable under this Division and moneys remitted to him by Collectors for other Australian States and authorities in reciprocating countries, and give receipts for moneys so received;

(b) keep proper accounts of all moneys received, remitted or paid by him;

(c) remit to Collectors for other Australian States and to the proper authorities in reciprocating countries moneys received by him in respect of maintenance orders made for the maintenance or benefit of persons residing in those Australian States or in those countries and payable to or for the benefit of those persons, together with proper accounts in respect of those moneys; and

(d) pay other moneys received by him to the persons entitled thereto—

and has such other powers, authorities, duties and functions as are specified in this Division or are prescribed.

(3) In all proceedings under this Division, the Collector shall be entitled to appear, to be heard, to give evidence and to call, examine and cross-examine witnesses.

S. 71 amended by Nos 8036 s. 5, 57/1989
s. 3(Sch. item 124.48).

71 Protection of Collector etc.

The provisions of section 14 of the Magistrates' Court Act 1989, so far as those provisions are applicable and with such modifications as are necessary, extend and apply with respect to acts done by the Collector, or by the Deputy Collector or an Assistant Collector, in pursuance of this or any other Act and in particular, without in any way limiting or derogating from the foregoing provisions of this section, no order for costs shall be made by any court against the Collector, the Deputy Collector, or an Assistant Collector, with respect to anything done by him in accordance with the provisions of this Act or regulations or rules made under or for the purposes of this Act in the course of enforcing in Victoria an interstate order or an overseas order within the meaning of Division 2 of this Part.

Subdivision 2—Interstate maintenance

72 Enforcement of Victorian orders in other States

(1) Where a Victorian order is presently enforceable in Victoria but not in any other Australian State, and it appears to the Collector that the defendant is resident in, or proceeding to, another Australian State, the Collector may send to the Collector for that other Australian State—

(a) three certified copies of the order;

(b) a Collector's certificate relating to the order;

(c) such information and material as the Collector possesses for facilitating the identification, and ascertaining the whereabouts, of the defendant; and

(d) a request in writing that the order be made enforceable in that other Australian State.

(2) Where—

(a) a Victorian order is, under the law of another Australian State, enforceable in that other Australian State; and

(b) the Collector is satisfied that there are reasonable grounds for believing that the defendant is not resident in, or proceeding to, that other Australian State or it appears to the Collector that there is some other good reason why the order should no longer be enforceable in that other Australian State—

he may send to the Collector for that other Australian State a request in writing that the order be made no longer enforceable in that other Australian State and, for the purposes of this Act, the order shall, upon the sending of the request, be deemed to cease to be enforceable in that other Australian State.

(3) The fact that a Victorian order has ceased to be enforceable in another Australian State by reason of action taken in that other Australian State as a result of a request made under the last preceding subsection does not prevent a further request under subsection (1) of this section that the order be again made enforceable in that other Australian State.

(4) Where a Victorian order is, in pursuance of a request under subsection (1) of this section, made enforceable in another Australian State—

(a) the order ceases to be enforceable in Victoria;

(b) the order remains unenforceable in Victoria unless and until it ceases to be enforceable in that other Australian State; and

(c) every warrant or other process under this Act arising out of the order previously issued in Victoria and not executed ceases to have effect.

73 Enforcement of orders made in other Australian States

S. 73(1) amended by No. 9019 s. 2(1)(Sch. items 139, 142).

(1) Where the Collector receives from the Collector for another Australian State—

(a) three certified copies of an interstate order made in that State;

(b) a Collector's certificate relating to the order; and

S. 73(1)(c) amended by No. 57/1989 s. 3(Sch. item 124.49).

(c) a request in writing that the order be made enforceable in Victoria—

he shall, if it appears to him that there are reasonable grounds for believing that the defendant is resident in, or proceeding to, Victoria, send the documents to the principal registrar of the Magistrates' Court with a request that the principal registrar register the order in the Court.

S. 73(2) amended by No. 57/1989 s. 3(Sch. item 124.50).

(2) Where a request is so made to the principal registrar, the principal registrar shall (whether or not the order is of such a kind as could be made in Victoria) register the order and file in the court a certified copy of the order and the Collector's certificate.

(3) An interstate order so registered, shall until the registration is cancelled, be enforceable in Victoria, both as regards any arrears payable under the order and as regards amounts becoming due under the order after it is so registered.

(4) Upon registration of the interstate order, the Collector shall notify the Collector for the other Australian State accordingly and shall cause a certified copy of the order to be served upon the defendant, together with a notice of registration of the order in Victoria—

S. 73(5) amended by Nos 9019 s. 2(1)(Sch. item 142), 57/1989 s. 3(Sch. item 124.51(a)(b)).

(5) Where—

(a) an interstate order is registered in Victoria under this section; and

(b) the Collector receives from the Collector for the other Australian State a request in writing that the order be made no longer enforceable in Victoria—

the Collector shall request the principal registrar of the Magistrates' Court to cancel the registration of the order, and the principal registrar shall thereupon cancel the registration.

(6) Where the registration of an interstate order is so cancelled—

(a) the order shall cease to be enforceable in Victoria;

(b) the order shall remain unenforceable in Victoria unless and until it is again registered in Victoria; and

(c) every warrant or other process under this Act arising out of the order previously issued in Victoria and not executed shall cease to have effect.

S. 74 amended by No. 7610 s. 4.

74 Collector to notify original State when defendant leaves Victoria

Where an interstate order has been registered in Victoria under this Division and the Collector has reasonable grounds for believing that the defendant is no longer resident in Victoria, but is resident in, or proceeding to, another Australian State, he shall forthwith notify the Collector in the State in which the order was made or, if the order was made in a Supreme Court, the Collector in the State in which the order was first registered in a court of summary jurisdiction for enforcement of the fact and shall give him such information as he possesses concerning the whereabouts and intended movements of the defendant.

Variation &c. of Orders

75 Application for provisional order of variation etc.

S. 75(1) amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.52).

(1) Where an interstate order made by a court of summary jurisdiction, or by a magistrate or justices, is enforceable in Victoria by virtue of this subdivision, application in writing in accordance with the prescribed form may be made by or on behalf of the complainant or the defendant to the Court for an order discharging, suspending, varying or reviving the interstate order, and that court has jurisdiction to hear and determine the application.

S. 75(2) amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.53).

(2) Where a Victorian order made by the Magistrates' Court is enforceable in another Australian State by virtue of provisions corresponding with this Subdivision, application in writing in accordance with the prescribed form may be made by or on behalf of the complainant or the defendant to a court in Victoria that would have jurisdiction to make an order under section twenty-nine of this Act in relation to the Victorian order for an order discharging, suspending, varying or reviving the Victorian order.

(3) The applicant shall cause notice of an application under this section to be served, not less than fourteen days before the hearing of the application, upon the Collector personally or by post and the Collector shall, forthwith upon receipt by him of the notice, notify the Collector for the Australian State in which the interstate order was made or the Victorian order is enforceable (as the case may be).

(4) Except where the complainant and the defendant both appear upon the hearing, the evidence of any witness who is examined at the hearing of any such application shall be put into writing and shall be read over to and signed by him.

(5) While a Victorian order is enforceable in another Australian State under the law of that other Australian State, no application for the discharge, suspension, variation or revival of the order shall be made in Victoria except in accordance with this section.

76 Discharge, suspension or variation of order made in absence of defendant

(a) an application is made under subsection (1) of section seventy-five of this Act by a defendant for the discharge, suspension or variation of an interstate order;

(b) the defendant neither appeared at the hearing of the complaint upon which the original interstate order was made nor was served personally in the State or Territory in which the order was made with the summons upon that complaint; and

(c) the application is made within six months after service on the defendant of notice of registration of the order in Victoria—

the defendant may, in addition to raising any matter that he may raise under section twenty-nine of this Act, raise any ground of opposition that he could have raised in the original proceedings.

77 Law to be applied

In an application under section seventy-five of this Act, the law to be applied shall, except in matters of practice or procedure, be the law of the Australian State in which the original order was made.

78 Order of variation etc. to be provisional only

(1) Except as provided in the next succeeding subsection, an order made on an application under section seventy-five of this Act discharging, suspending, varying or reviving a maintenance order shall be provisional only and shall have no effect unless and until confirmed by a competent court of the Australian State in which the maintenance order was made or is enforceable, and shall be expressed accordingly.

(2) Where the respondent to an application under section seventy-five of this Act has been served personally in Victoria with notice of the application or appears on the hearing of the application, any order made on the application shall recite that fact, and the order shall have effect forthwith in Victoria.

S. 78(3) amended by No. 57/1989 s. 3(Sch. item 124.54).

(3) Where an order made on an application under section seventy-five of this Act is expressed to be provisional, the registrar of the court making the provisional order shall send a certified copy of the order, together with the depositions of the witnesses, to the Collector for the other Australian State.

(4) Where an order referred to in the last preceding subsection has been confirmed (whether with or without modification) by a competent court of the other Australian State, the order shall have effect in Victoria as so confirmed.

79 Remittance of provisional order by court of other Australian States

(1) Where a provisional order made under the foregoing provisions of this Subdivision is remitted by a court in another Australian State to the court in Victoria that made the provisional order for the taking of further evidence, the court in Victoria, or, if requested by the court in Victoria, another court in Victoria, shall, after notice has been given to such persons in such manner as the court thinks fit, proceed to take the evidence, and shall cause the depositions of the witnesses to be sent to the court in the other Australian State.

(2) If, upon the taking of the further evidence, it appears to the court taking the further evidence that the order ought not to have been made, the court may rescind the order and may, if it thinks fit, make a fresh provisional order in its stead.

80 Confirmation of provisional orders made in other Australian States

(1) Where the Collector receives—

(a) a certified copy of—

(i) a provisional order made by a court in another Australian State discharging, suspending, varying or reviving a Victorian order enforceable in that other Australian State; or

(ii) a provisional order made by a court in another Australian State discharging, suspending, varying or reviving an interstate order made in that Australian State and enforceable in Victoria by virtue of this Subdivision; and

(b) the depositions of the witnesses who gave evidence at the hearing of the application upon which the provisional order was made—

the Collector shall, on behalf of the party on whose application the provisional order was made in the other Australian State, apply to the court in Victoria by or in which the maintenance order was made or is registered for an order confirming the provisional order.

(2) The Collector shall cause notice, in accordance with the prescribed form, of the application under this section to be served on the respondent to the application not less than seven days before the hearing of the application.

(3) Upon the hearing of such an application, the court may—

(a) confirm the provisional order, either with or without modification;

(c) adjourn the proceedings and remit the provisional order to the court that made it with a request that that court take further evidence and further consider its provisional order.

(4) Where a provisional order is confirmed under this section (whether with or without modification), the order as so confirmed shall have effect in Victoria as if it were an order to the like effect made by the court in Victoria.

81 Proceedings or enforcement

S. 81(1) amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.55).

(1) Where an interstate order is enforceable in Victoria by virtue of this Subdivision—

S. 81(1)(a) amended by No. 7610 s. 5(1)(a).

(a) all proceedings may be taken for the enforcement of the order according to its terms; and

S. 81(1)(b) amended by No. 7610 s. 5(1)(b).

(b) the provisions of this Act shall, so far as they are applicable and with such modifications as are necessary to give effect to the terms of the order, apply to and in relation to proceedings for the enforcement of the order—

as if it were a maintenance order made under Part II of this Act.

(2) The Collector may take any proceedings that are authorized by the last preceding subsection.

S. 81(3) amended by No. 7610 s. 5(2).

(3) Where proceedings are so taken by the Collector, the court shall, unless it is satisfied by evidence to the contrary, presume that the enforcement of the order is required for the actual support of the person for whose benefit the order was made or, in the case of proceedings for the enforcement of an order that has ceased to have effect, was so required at the time the moneys accrued due and payable and that since the order became enforceable in Victoria no moneys have been paid under the order otherwise than to the Collector.

Subdivision 3—Overseas maintenance

82 Enforcement of maintenance orders in reciprocating countries

S. 82(1) amended by No. 46/1998

(1) Where a Victorian order is presently enforceable in Victoria but not in any other Australian State and it appears to the Collector that the defendant is resident in, or proceeding to, a reciprocating country, the Collector may send to the Secretary to the Department of Justice—

(a) three certified copies of the Victorian order;

(b) a Collector's certificate relating to the Victorian order;

(c) such information and material as the Collector possesses for facilitating the identification, and ascertaining the whereabouts, of the defendant; and

(d) a request in writing that the Secretary should seek to have the Victorian order made enforceable in that reciprocating country—

and the Secretary shall, on receipt of those documents, transmit the documents referred to in paragraphs (a), (b) and (c) of this subsection to the reciprocating country concerned, or cause those documents to be so transmitted, with a request in writing that the Victorian order be made enforceable in that reciprocating country.

S. 82(2) repealed by No. 59/1997
s. 7(l).

S. 82(3) inserted by No. 7610 s. 6.

(3) Where a Victorian order is, in pursuance of a request under subsection (1) of this section made enforceable in a reciprocating country—

(a) the order ceases to be enforceable in Victoria;

(b) the order remains unenforceable in Victoria unless and until it ceases to be enforceable in the reciprocating country; and

(c) every warrant or other process under this Act arising out of the order previously issued in Victoria and not executed ceases to have effect.

83 Provisional order against person resident in reciprocating country

S. 83(1) amended by No. 57/1989 s. 3(Sch. item 124.56).

(1) Upon application made in writing in accordance with the prescribed form to the Court in Victoria for a maintenance order of a kind that may be made under Subdivision 2 or Subdivision 3 of Division one of Part II of this Act against any person and upon proof that that person is resident in, or proceeding to, a reciprocating country, the court may, in the absence of that person, make any order it could have made if a summons had been duly served on that person and he had failed to appear at the hearing.

(2) An order made under the last preceding subsection shall be provisional only and shall have no effect unless and until confirmed (either with or without modification) by a competent court in a reciprocating country in which the defendant is resident at the time of that confirmation, and shall be expressed accordingly.

(3) The evidence of any witness who is examined on any such application shall be put into writing and shall be read over to and signed by him.

S. 83(4) amended by No. 57/1989 s. 3(Sch. item 124.57).

(4) Where the Court makes an order under subsection (1) of this section, a registrar of the court shall send to the Collector—

(a) the depositions of the witnesses;

(b) three certified copies of the order; and

(c) a statement of the grounds on which the making of the order could have been opposed if the defendant had appeared at the hearing.

S. 83(5) amended by No. 46/1998

(5) Upon receiving the documents, the Collector shall send the documents, together with any information and material the Collector possesses for facilitating the identification, and ascertaining the whereabouts, of the defendant to the Secretary to the Department of Justice for transmission to the reciprocating country referred to in subsection (1) of this section.

(6) Where any such provisional order has come before a court in a reciprocating country for confirmation and the order has by that court been remitted to the court in Victoria that made the order for the taking of further evidence that court, or, if requested by that court, another court in Victoria, shall, after notice has been given to such persons and in such manner as the court thinks fit, proceed to take the evidence, and shall cause the depositions of the witnesses to be sent to the court in the reciprocating country.

(7) If, upon the taking of the further evidence, it appears to the court taking that further evidence that the order ought not to have been made, that court may rescind the order and may, if it thinks fit, make a fresh provisional order in its stead.

(8) Where a court takes evidence in pursuance of a request of another court made under subsection (6) of this section, the first-mentioned court may, for the purposes of the last preceding subsection, have regard to the evidence given at the hearing in the second-mentioned court.

(9) Where a court in a reciprocating country in which the defendant is for the time being resident confirms (either with or without modification) a provisional order made under this section, the order shall have effect in Victoria as so confirmed.

(10) Where a court in a reciprocating country confirms (either with or without modification) a provisional order made under this section, then, in any proceedings arising out of or relating to the order, it shall be presumed, unless the contrary is proved, that the defendant was resident in that reciprocating country at the time when the order was confirmed.

S. 84 amended by No. 46/1998

84 Cancellation of registration

(a) a Victorian order is, under the law of a reciprocating country, enforceable in that reciprocating country; and

(b) the Collector is satisfied that there are reasonable grounds for believing that the defendant is not resident in, or proceeding to, that reciprocating country or it appears to the Collector that there is some other good reason why the order should no longer be enforceable in that reciprocating country—

the Secretary to the Department of Justice may, at the request of the Collector, send, or cause to be sent, to an appropriate authority in that reciprocating country a request in writing that the order be made no longer enforceable in that reciprocating country and, for the purposes of this Act, the order shall, upon the sending of the request, be deemed to cease to be enforceable in that reciprocating country.

85 Registration of overseas orders

S. 85(1) amended by No. 46/1998

(1) Where the Secretary to the Department of Justice receives—

(a) a certified copy of an overseas order; and

(b) a certificate signed by an officer of a court or other authority in the reciprocating country relating to the order and containing—

(i) a statement that the order is, at the date of the certificate, enforceable in that reciprocating country; and

(ii) a statement as to the amount of any arrears due under the order, distinguishing any amount in respect of which the defendant has been imprisoned—

the Secretary shall, if it appears to him that there are reasonable grounds for believing that the defendant is resident in or proceeding to Victoria, send the documents received by him to the Collector.

S. 85(2) amended by No. 46/1998

(2) In the case of an overseas order originating in a country having restricted reciprocity, the Secretary to the Department of Justice shall not send the documents relating to the order to the Collector unless the Secretary is satisfied that the order is a maintenance order of such a kind as can be made under Part II of this Act.

S. 85(3) amended by Nos 9019 s. 2(1)(Sch. items 139, 142), 57/1989 s. 3(Sch. item 124.58), 46/1998

(3) Where the Collector receives from the Secretary to the Department of Justice the documents referred to in subsection (1) of this section, he shall send the documents to the principal registrar of the Magistrates' Court with a request that the principal register the order in the Court.

S. 85(4) amended by No. 57/1989 s. 3(Sch. item 124.59).

(4) Where a request is so made, the principal registrar shall register the order and file in the court a certified copy of the order and the certificate relating thereto.

(5) An overseas order so registered shall, until the registration is cancelled, be enforceable in Victoria, both as regards any arrears payable under the order and as regards amounts becoming due under the order after it is so registered.

(6) Upon registration of an overseas order, the Collector shall notify an officer of the court or other authority in the reciprocating country accordingly and cause a certified copy of the order to be served upon the defendant, together with a notice of registration of the order in Victoria—

86 Confirmation of provisional orders made overseas

(a) an overseas order (other than an order in the nature of an affiliation order or an order consequent upon such an order) has no effect under the law of the reciprocating country in which it is made unless and until confirmed by a court outside that reciprocating country (whether or not it appears from the order that it may be confirmed by a court in Victoria);

S. 86(1)(b) amended by No. 46/1998

(b) a certified copy of the order and the depositions of the witnesses in the proceedings in which the order was made, together with a statement of the grounds on which the making of the order could have been opposed if the defendant had appeared at the hearing, have been received by the Secretary to the Department of Justice; and

(c) it appears to the Secretary that—

(i) there are reasonable grounds for believing that the defendant is resident in, or proceeding to, Victoria; and

(ii) the order will have effect under the law of the reciprocating country if it is confirmed by a court in Victoria—

the Secretary shall send the documents received by him to the Collector.

S. 86(2) amended by No. 46/1998

(2) In the case of a provisional order made in a country having restricted reciprocity, the Secretary to the Department of Justice shall not send the documents relating to the order to the Collector unless the Secretary is satisfied that the order is of such a kind as can be made (otherwise than as a provisional order) under Part II of this Act.

S. 86(3) amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.60(a)(b)).

(3) After receipt of the documents by the Collector, a summons may, on the application of the Collector, be issued by any registrar of the Court calling upon the defendant to appear before the Magistrates' Court sitting at the venue specified in the summons to show cause why that order should not be confirmed.

(4) At the hearing it shall be open to the defendant to raise any ground of opposition that he could have raised in the original proceedings or any ground of opposition that he could have raised had those proceedings been heard in Victoria and the statement referred to in subsection (1) of this section shall be conclusive evidence that the grounds referred to in that statement are grounds on which the making of the order might have been refused in the original proceedings.

(5) If the defendant, having been served in Victoria with the summons, does not appear at the hearing, or if the defendant appears at the hearing but fails to satisfy the court that the order ought not to be confirmed, the court may—

(a) confirm the provisional order (either with or without modification);

(c) adjourn the proceedings and remit the provisional order to the court that made it, with a request that that court take further evidence and further consider its provisional order.

(6) Where a provisional order is confirmed under this section (whether with or without modification), the order as so confirmed shall have effect in Victoria as if it were an order to the like effect made by the court in Victoria.

(7) If, at the hearing, the court is of opinion that it is necessary to remit the case to the court that made the provisional order for the taking of further evidence, the case may be so remitted.

S. 86(8) inserted by No. 7610 s. 7.

(8) As soon as practicable after an order is made under this section confirming or discharging a provisional order the Collector shall notify the proper officer of the court that made the provisional order particulars of the order made on the proceedings.

87 Order enforceable in Victoria may be sent to another Australian State

(1) Where an overseas order is enforceable in Victoria under this Subdivision, and it appears to the Collector that there are reasonable grounds for believing that the defendant has ceased to reside in Victoria and is resident in, or proceeding to, another Australian State, the Collector may send to the Collector for that Australian State—

(a) three certified copies of the overseas order;

(b) a Collector's certificate relating to the order;

(c) such information and material as the Collector possesses for facilitating the identification, and ascertaining the whereabouts, of the defendant; and

(d) a request in writing that the order be made enforceable in that Australian State—

and if he does so, shall forthwith notify an appropriate officer in the reciprocating country of the fact that he has so sent the documents.

(2) Where a request is made under the last preceding subsection—

(a) the order shall cease to be enforceable in Victoria and, if the order has been registered in a court in Victoria, that registration shall be deemed to be cancelled;

(b) the order shall remain unenforceable in Victoria unless and until it is registered, or again registered, in Victoria; and

(c) every warrant or other process under this Act arising out of the order previously issued in Victoria and not executed shall cease to have effect.

88 Registration of overseas orders registered or confirmed in another Australian State

S. 88(1) amended by Nos 9019 s. 2(1)(Sch. items 139, 142), 57/1989 s. 3(Sch. item 124.61).

(a) the Collector receives from the Collector for another Australian State—

(i) three certified copies of an overseas order;

(ii) a Collector's certificate signed by the Collector for that Australian State relating to the order; and

(iii) a request in writing that the order be made enforceable in Victoria; and

(b) it appears from the Collector's certificate that—

(i) the order has been registered in, or confirmed by, a court in that Australian State under a law of that Australian State corresponding with this subdivision; and

(ii) the order was, at the date of the certificate, presently enforceable in that Australian State in accordance with that law—

he shall, if it appears to him that there are reasonable grounds for believing that the defendant is residing in, or proceeding to, Victoria, send the documents to the principal registrar of the Magistrates' Court with a request that the principal registrar register the order in the Court.

S. 88(2) amended by No. 57/1989 s. 3(Sch. item 124.62).

(2) Where a request is so made, the principal registrar shall (whether or not the order is of such a kind as could be made under Part II of this Act) register the order and file in the court a certified copy of the order and the Collector's certificate.

(3) An overseas order so registered shall, until the registration is cancelled, be enforceable in Victoria, both as regards any arrears payable under the order and as regards amounts becoming due under the order after it is so registered.

(4) Upon registration of an overseas order, the Collector shall notify the officer of a court or other authority in the reciprocating country accordingly, and shall cause a certified copy of the order to be served upon the defendant, together with a notice of registration of the order in Victoria—

S. 89 amended by No. 46/1998

89 Transmission of documents where defendant not in Victoria

Where the Secretary to the Department of Justice receives documents relating to an overseas order (including a provisional order) that have been transmitted to Victoria for the purpose of having the order made enforceable or confirmed in Victoria and it appears to him that the defendant is not resident in, or proceeding to, Victoria but is resident in, or proceeding to another Australian State or a reciprocating country other than that in which the order was made, the Secretary to the Department of Justice may, instead of taking steps with a view to the registration or confirmation of the order in Victoria—

(a) transmit the documents to the Collector for that other Australian State or an appropriate authority in that other reciprocating country together with such information as he possesses concerning the whereabouts and intended movements of the defendant; and

(b) give to the officer of a court or other authority in the reciprocating country in which the order was made notice of the fact that he has so transmitted the documents.

90 Cancellation of registration

S. 90(1) amended by Nos 9019 s. 2(1)(Sch. item 142), 57/1989 s. 3(Sch. item 124.63).

(a) an overseas order is registered or confirmed under this Subdivision; and

(b) the Collector receives a request in writing made by an officer of the court that made the order or some other competent authority in the reciprocating country that the order be made no longer enforceable in Victoria—

the Collector shall send the request to the principal registrar of the Court, who shall file the request and, if the order is registered under this Subdivision, cancel the registration of the order.

(2) Where such a request has been so filed—

(a) the overseas order shall cease to be enforceable in Victoria;

(b) the order shall remain unenforceable in Victoria unless and until it is registered, or again registered, in Victoria; and

(c) every warrant or other process under this Act arising out of the order previously issued in Victoria and not executed shall cease to have effect.

91 Proceedings for enforcement

(1) Where an overseas order is enforceable in Victoria by virtue of this Subdivision—

(a) all proceedings may be taken for the enforcement of the order; and

(b) the provisions of this Act shall, so far as they are applicable and with such modifications as are necessary, apply to and in relation to proceedings for the enforcement of the order—

as if it were a maintenance order made under Part II of this Act by the court in Victoria in which it is registered or by which it was confirmed.

(2) The Collector may take any proceedings that are authorized by the last preceding subsection.

(3) Where proceedings are so taken by the Collector, the court shall, unless it is satisfied by evidence to the contrary, presume that the enforcement of the order is required for the actual support of the person for whose benefit the order was made and that since the order became enforceable in Victoria no moneys have been paid under the order otherwise than to the Collector.

Variation, &c., of Orders

92 Defendant in Victoria may apply for order of variation etc.

S. 92(1) amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.64).

(1) Where an overseas order is enforceable in Victoria by virtue of this Subdivision, the defendant may make an application in writing, in accordance with the prescribed form, to the Court for an order discharging, suspending or varying the overseas order, and that court has jurisdiction to hear and determine the application.

S. 92(2) amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.64).

(2) Where a Victorian order is enforceable under the law of a reciprocating country in which the defendant is for the time being resident, the complainant may make an application in writing, in accordance with the prescribed form, to the Court for an order varying, or (if the order has been suspended) reviving, the order.

(3) The applicant shall cause notice of an application under this section to be served upon the Collector personally or by post not less than fourteen days before the hearing of the application.

(4) The evidence of any witness who is examined at the hearing of any such application shall be put into writing and shall be read over to and signed by him.

(5) The court shall, as far as practicable, hear and determine an application under this section as if it were a similar application under Division four or Division five of Part II of this Act.

93 Discharge, suspension or variation of order made in absence of defendant

(a) an application is made under section ninety-two of this Act by a defendant for the discharge, suspension or variation of an overseas order;

(b) the defendant neither appeared at the hearing of the proceedings upon which the overseas order was made nor was served personally in the reciprocating country with notice of those proceedings; and

(c) the application is made within six months after service on the defendant of notice of registration of the order in Victoria—

the defendant may, in addition to raising any matter that he may raise under section twenty-nine of this Act, raise any ground of opposition that he could have raised had the proceedings on which the overseas order was made been heard in Victoria.

94 Law to be applied

In an application under section ninety-two of this Act the law to be applied shall be the law of Victoria.

95 Certain orders to be provisional only

(1) Where the court proposes to make an order on an application under section ninety-two of this Act and any court in the reciprocating country will, if the order is provisional only, have jurisdiction to confirm the order, the order shall be provisional only and shall have no effect unless and until confirmed (either with or without modification) by such a court, and shall be expressed accordingly.

(2) Where a provisional order is made in accordance with this section, the Collector shall send a certified copy of the provisional order, together with the depositions of the witnesses, to an officer of a court in the reciprocating country having jurisdiction to confirm the provisional order.

(3) Where a court in the reciprocating country confirms (either with or without modification) a provisional order made on an application under section ninety-two of this Act, the order has effect in Victoria as so confirmed.

(4) Notwithstanding anything contained in this section, if a provisional order made on an application under subsection (2) of section ninety-two of this Act is confirmed (either with or without modification) by a court of a reciprocating country (not being the country specified in the order) in which the defendant is resident at the time of the confirmation, the order has effect in Victoria as so confirmed.

96 Remittance of provisional order by court in reciprocating country

(1) Where a provisional order made in accordance with the last preceding section is remitted by a court in a reciprocating country to the court in Victoria that made the provisional order for the taking of further evidence, the court in Victoria, or, if requested by that court, another court in Victoria, shall, after notice has been given to such persons and in such manner as the court thinks fit, proceed to take the evidence, and shall cause the depositions of the witnesses to be sent to the court in the reciprocating country.

(2) If, upon the taking of the further evidence, it appears to the court taking that further evidence that the order ought not to have been made, that court may rescind the order and may, if it thinks fit, make a fresh provisional order in its stead.

97 Confirmation of provisional orders of variation etc. made in reciprocating countries

(1) Where the Collector receives—

(a) a certified copy of—

(i) a provisional order made by a court of a reciprocating country discharging, suspending, varying or reviving a Victorian order enforceable in that reciprocating country; or

(ii) a provisional order made by a court in a reciprocating country discharging, suspending, varying or reviving an overseas order made in that reciprocating country and enforceable in Victoria by virtue of this Subdivision; and

(b) the depositions of the witnesses who gave evidence at the hearing of the application upon which the provisional order was made—

the Collector shall, on behalf of the party on whose application the provisional order was made in the reciprocating country, apply to the court in Victoria by or in which the maintenance order was made, registered or confirmed for an order confirming the provisional order.

(2) The Collector shall cause notice in accordance with the prescribed form of the application under this section to be served on the respondent to the application not less than seven days before the hearing of the application.

(3) Upon the hearing of any such application, the court may—

(a) confirm the provisional order (either with or without modification);

(c) adjourn the proceedings and remit the provisional order to the court that made it with a request that the court take further evidence and further consider its provisional order.

(4) Where a provisional order is confirmed under this section (whether with or without modification) the order as so confirmed shall have effect in Victoria as if it were an order to the like effect made by the court in Victoria.

98 Governor in Council to declare reciprocating countries

(1) Where the Governor in Council is satisfied that the law of a country makes provision for the enforcement in that country of maintenance orders made in another country and that under that law Victorian orders may be made enforceable in that country, the Governor in Council may, by proclamation published in the Government Gazette, declare that country to be a reciprocating country for the purposes of this Division.

(2) If it appears to the Governor in Council that the jurisdiction of the courts of a country specified, or to be specified, in a proclamation under the last preceding subsection to make maintenance orders extends to the making of orders that are not of the same kind as orders that may be made in Victoria under Part II of this Act he may, by the same or a subsequent proclamation, declare that that country has restricted reciprocity with the State of Victoria.

(3) In a proclamation made under subsection (1) or subsection (2) of this section the Governor in Council may specify, in relation to the country to which the proclamation applies, a date, which may be before or after or the same day as the date of the proclamation, and declare that maintenance orders made in that country on or after that date shall be enforceable in Victoria in accordance with the provisions of this Division.

(4) The Governor in Council may, by the like proclamation, revoke or vary or further vary any proclamation made under subsection (1) or subsection (2) of this section or any corresponding previous enactment.

(5) Where a country that has been a reciprocating country ceases to be a reciprocating country—

(a) a maintenance order made in that country and enforceable in Victoria by virtue of this Subdivision shall cease to be so enforceable; and

(b) every warrant or other process under this Act arising out of any such order previously issued in Victoria and not executed shall cease to have effect—

but this subsection shall not affect the validity of anything done under this subdivision for the enforcement of a maintenance order while that country was a reciprocating country.

(6) At least once in every year the Collector shall cause to be published in the Government Gazette a list of the names of the reciprocating countries, showing the respective dates upon which they became reciprocating countries, the dates, if any, on or after which maintenance orders made in those countries are enforceable in Victoria and indicating which of those countries are countries having restricted reciprocity.

(7) Production of a copy of the Government Gazette containing such a list shall be evidence of the matters stated in the list and of the fact that a country shown in the list as a reciprocating country of either class continues to be a reciprocating country of that class.

Subdivision 4—General

99 Payments to be made to Collector

While a maintenance order is enforceable in Victoria under this Division, all moneys directed by the order to be paid are payable to the Collector, and the receipt of the Collector for any such moneys shall be a sufficient discharge of the liability of a person to pay those moneys in accordance with the order.

100 Collector to notify changes in orders enforceable outside Victoria

Where the operation of a Victorian order enforceable in another Australian State or in a reciprocating country, or the operation of an interstate order or overseas order enforceable in Victoria, is affected by an order (other than a provisional order), event or other matter made, occurring or arising in Victoria of which the Collector has notice, the Collector shall send to the Collector for the other Australian State, or to an appropriate officer in the reciprocating country, a certified copy of the order, or a notice in writing giving particulars of the event or other matter, by which the operation of the order so enforceable has been so affected.

101 Collector to note changes in orders made or enforceable in Victoria

(1) Where the Collector receives from the Collector for another Australian State or from an appropriate officer in a reciprocating country a certified copy of an order (other than a provisional order), or a notice in writing giving particulars of an event or other matter, made, occurring or arising in that other Australian State, or in that reciprocating country and affecting, in a manner appearing from the certified copy or notice, the operation of a Victorian order enforceable in that other Australian State or in that reciprocating country, or of an interstate order or overseas order enforceable in Victoria under this Division, the Collector shall—

(a) file the certified copy or notice in the court in which the order affected was made or confirmed or is registered; and

(b) if the complainant or defendant is resident in Victoria, cause a copy of the certified copy or notice to be served on the complainant or defendant, as the case may be.

(2) Where a certified copy or notice is filed in accordance with the last preceding subsection in relation to a maintenance order, the order, event or matter shall have the like effect in Victoria as it appears from the certified copy or notice to have in the other Australian State or reciprocating country.

(3) The last two preceding subsections shall not apply in relation to an order made in a reciprocating country affecting a maintenance order in a manner adverse to the defendant unless it appears from the documents received by the Collector that the defendant appeared on the hearing of the proceedings.

102 Conversion of currency

(1) For the purposes of this Division, an overseas order (including a provisional order) or a certificate or notice originating in a reciprocating country, that refers to an amount of money (including an amount of arrears) expressed in the currency of a reciprocating country shall be deemed to refer to the amount that was the equivalent amount in Australian currency on the prescribed date on the basis of the telegraphic transfer rate of exchange that prevailed on that date.

S. 102(2) amended by No. 11/2001 s. 3(Sch. item 45.3).

(2) For the purposes of this section, a certificate signed by the Collector, or the Collector for another Australian State, and purporting to be based on information obtained by him from an authorised deposit-taking institution, a specified amount in Australian currency was, on a specified date, the equivalent of a specified amount in another currency on the basis of the telegraphic transfer rate of exchange prevailing on that date shall be evidence of the matter stated in the certificate.

(3) Where a certificate of a Collector in accordance with the last preceding subsection has been filed in a court in Victoria in relation to an order, certificate or notice, every copy of that order, certificate or notice served on any person shall be accompanied by a copy of the first-mentioned certificate.

(4) Where, under section seventy of this Act, the Collector is required to remit an amount of money to a country outside the Commonwealth, he shall remit such amount in the currency of that country as he is able to remit by the expenditure of that first-mentioned amount.

(5) In this section the prescribed date means—

(a) in relation to a maintenance order registered under this Division, or a certificate with respect to the arrears payable under a maintenance order sought to be so registered—the day upon which the order is registered;

(b) in relation to a provisional order confirmed under this Division—the day upon which the order is confirmed; or

(c) in relation to an order or notice referred to in subsection (1) of the last preceding section—the day upon which the certified copy of the order or the notice is filed in a court in accordance with that subsection.

103 Translation of orders, records etc.

Where a certified copy of an order of a court (including a provisional order), a record of the evidence of a witness or other document arising out of, or relating to, proceedings in a court outside the Commonwealth is not in the English language, it shall not be used for the purpose of registering an order under this Division, or received in evidence in a court in Victoria in proceedings under this Division, unless it is accompanied by a translation of the document into the English language certified under the hand of an officer of that court to be a correct translation, or bearing the seal of that court, and where such a document is accompanied by such a translation—

(a) the translation may be received in evidence to the same extent as the document of which it is a translation and shall, unless the contrary is proved, be deemed to be a correct translation;

(b) all notations made on the document shall be made also on the translation; and

(c) any copy of the document served on any person shall be accompanied by a copy of the translation.

104 Certificate of payment of arrears

In any proceedings under or for the purposes of this Division, a certificate purporting to be signed by the Collector or the Collector for another Australian State, or the like officer of a reciprocating country in which a maintenance order was made or is enforceable, concerning amounts paid or unpaid under a maintenance order shall be evidence of the facts stated in the certificate.

105 Evidentiary

(1) For the purposes of this Division and in proceedings under or arising out of this Division, a document purporting to be—

(a) a certified copy of an order (including a provisional order) of a court;

(b) the record, or a certified copy of the record, of the evidence of a witness in proceedings before a court; or

(c) a certificate or notice of a kind referred to in this Division—

shall, unless the contrary is proved, be taken to be such a certified copy, certificate or notice, and shall be admitted in evidence without proof of the signature of the person purporting to have signed it or of his official position.

(2) The depositions of a witness in proceedings before a court in another Australian State or in a reciprocating country, received in Victoria for the purposes of this Division, shall be admissible in evidence in proceedings under this Division in a court in Victoria.

106 Service of documents

(1) Except where the contrary intention appears in this Division, any document required or permitted by this Division to be served on a person shall be served on that person personally.

(2) A document required by subsection (4) of section seventy-three, subsection (6) of section eighty-five, subsection (4) of section eighty-eight or section one hundred of this Act to be served on a person may be served on that person—

(a) personally; or

(b) by post at his usual or last-known place of residence or business.

(3) Where under this Division any document is required or permitted to be served on a person personally, it may be served by—

(a) delivering a copy of the document to that person; or

(b) leaving a copy of the document at the usual or last-known place of residence or business of that person with some other person who apparently resides therein or is employed thereat, and is apparently over the age of sixteen years.

Part V—Appeals

S. 107 amended by No. 7705 s. 10.

107 Notice of appeal and application of appeal provisions of the Magistrates' Court Act 1989

S. 107(1) amended by No. 7860 s. 5.

(1) Except where otherwise expressly provided any person aggrieved by any decision of a court (not being a decision to make a provisional order under Part IV of this Act) in any proceeding under this Act may within fourteen days after the making or refusal to make the order in question, or within such further time as the County Court in its discretion allows (whether or not the time for appealing has expired) appeal therefrom to the County Court.

S. 107(1A) inserted by No. 3/2016 s. 90(1), amended by No. 1/2022 s. 102.

(1A) Despite subsection (1), if the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Court of Appeal.

S. 107(2) amended by Nos 8427 s. 12, 57/1989 s. 3(Sch. item 124.65(a)).

(2) Every such appeal shall be by way of rehearing and, except as is otherwise provided in this Part, the provisions of Division 4 of Part 4 (except section 86) of and Schedule 6 (except clauses 2, 3 and 4) to the Magistrates' Court Act 1989 shall apply in relation to the appeal except that—

S. 107(2)(a) amended by No. 57/1989 s. 3(Sch. item 124.65(b)).

(a) where those provisions fix any time for doing any act or thing or taking any proceeding such time (whether or not it has already expired) may be extended by the County Court at any time, whether before or at the hearing of the appeal, if the circumstances in the opinion of that court warrant such an extension; and

(b) unless the County Court otherwise orders no proceedings in or during the pendency of an appeal shall operate as a stay of execution of a maintenance order.

S. 107(3) amended by No. 9019 s. 2(1)(Sch. item 139).

(3) The County Court may adjourn the hearing of any appeal under this Part and on the hearing may at its discretion quash confirm or vary the order appealed against in whole or in part or in any particular, or at its discretion substitute a new order in lieu of the order made by the Magistrates' Court or may make such order in the matter as the County Court thinks just, and may by any such order exercise any power which the Magistrates' Court might have exercised.

S. 107(4) amended by Nos 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.66).

(4) Any order varied substituted or made by the County Court on such an appeal shall for the purposes of this Act be deemed to be an order made by the Magistrates' Court and shall have the same effect and be capable of being discharged suspended varied revived and enforced in the same manner and to the same extent as such an order.

S. 107(5) inserted by No. 3/2016 s. 90(2), amended by No. 1/2022 s. 102.

(5) In subsections (2) to (4), a reference to the County Court is to be construed as a reference to the Court of Appeal in relation to an appeal referred to in subsection (1A).

Part VI—Miscellaneous

S. 108 amended by Nos 8731 s. 173, 9019 s. 2(1)(Sch. item 139), 57/1989 s. 3(Sch. item 124.67(a)(c)).

108 Application of Magistrates' Court Act 1989

Subject to this Act the provisions of the Magistrates' Court Act 1989, so far as the same are applicable and with such modifications as are necessary, shall extend and apply in relation to—

S. 108(a) amended by No. 57/1989 s. 3(Sch. item 124.67(b)).

(a) acts and things done by the Magistrates' Court; and

S. 108(b) amended by No. 57/1989 s. 3(Sch. item 124.67(b)).

(b) proceedings instituted in, and orders made by the Magistrates' Court—

under or by virtue of this Act in like manner as it would have applied if the acts or things had been done, the proceedings instituted or the orders made under the Magistrates' Court Act 1989.

109 Evidence of earnings

(1) Where, in proceedings before a court for the purposes of this Act, it is material to ascertain the earnings of a person the court may receive as evidence of those earnings a statement in writing signed by—

(a) the employer of that person; or

(b) a person employed by that employer as manager, secretary, accountant, or in such other capacity as, in the opinion of the court, qualifies him to testify of his own knowledge of the earnings of the person whose earnings are in question.

(2) A document purporting to be a statement in writing referred to in the last preceding subsection shall, in any proceeding under or by virtue of this Act, unless the contrary is shown, be deemed without further proof to be such a statement.

110 Payments under orders

(1) Subject to any order made under this Act with respect to the appropriation of moneys and to any express directions given by the defendant in relation thereto any moneys received in respect of an order made under this Act for the payment of moneys by the person entitled to receive those moneys shall be deemed a payment made by the defendant to that person, so as to discharge, to the extent of the moneys received, firstly any sums due and unpaid under the order (a sum due at an earlier date being discharged before a sum due at a later date) and secondly any costs incurred in proceedings relating to the order that were payable by the defendant in respect of any previous proceedings for the enforcement of the order.

(2) In any proceedings relating to an order made or enforceable under this Act for the payment of moneys the production of books purporting to be the books of account of a court in relation to the order shall be evidence that the payments to which the entries therein purport to refer have been made and that those payments are the only payments that have been made.

S. 111 amended by Nos 8602
s. 12, 9019 s. 2(1)(Sch. items 143, 144), 19/1989 s. 16(Sch. 2 item 37), 35/1996 s. 453(Sch. 1 item 54(a)(b)), repealed by No. 59/1997
s. 7(l).

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Maintenance Act 1965 was assented to on 9 June 1965 and came into operation on 1 April 1966: Government Gazette 23 March 1966 page 903.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Maintenance Act 1965 by Acts and subordinate instruments.

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Maintenance (Amendment) Act 1967, No. 7610/1967

| Assent Date: | 5.12.67 | | Commencement Date: | 1.2.68: Government Gazette 24.1.68 p. 202 |

County Court (Jurisdiction) Act 1968, No. 7705/1968

| Assent Date: | 15.10.68 | | Commencement Date: | 1.1.69: Government Gazette 4.12.68 p. 3919 |

Maintenance (Amendment) Act 1969, No. 7860/1969

| Assent Date: | 28.10.69 | | Commencement Date: | 3.12.69: Government Gazette 3.12.69 p. 4012 |

Justices (Amendment) Act 1969, No. 7876/1969

| Assent Date: | 25.11.69 | | Commencement Date: | All of Act (except ss 3, 5, 6, 7(k)(m)–(o)) on 1.4.70; ss 3, 5, 6, 7(k)(m)–(o) on 1.7.70: Government Gazette 25.2.70 p. 463 |

Maintenance (Amendment) Act 1970, No. 8036/1970

| Assent Date: | 8.12.70 | | Commencement Date: | 8.12.70 |

Social Welfare (Amendment) Act 1973, No. 8426/1973 (as amended by No. 8701)

| Assent Date: | 17.4.73 | | Commencement Date: | Ss 1, 7 on 1.4.74: Government Gazette 27.3.74 p. 713; s. 8 on 5.5.76: Government Gazette 5.5.76 p. 1269; ss 2–6, 9 on 7.6.76: Government Gazette 19.5.76 p. 1388; s. 10 on 16.8.76: Government Gazette 11.8.76 p. 2483 |

Magistrates' Courts (Jurisdiction) Act 1973, No. 8427/1973

| Assent Date: | 17.4.73 | | Commencement Date: | S. 12 on 1.9.75: Government Gazette 30.7.75 p. 2705 |

Status of Children Act 1974, No. 8602/1974

| Assent Date: | 26.11.74 | | Commencement Date: | 1.3.75: Government Gazette 5.2.75 p. 228 |

Magistrates (Summary Proceedings) Act 1975, No. 8731/1975

| Assent Date: | 16.5.75 | | Commencement Date: | S. 173 on 1.7.76: Government Gazette 24.3.76 p. 848 |

Statute Law Revision Act 1977, No. 9019/1977

| Assent Date: | 17.5.77 | | Commencement Date: | 17.5.77: subject to s. 2(2) |

Penalties and Sentences Act 1981, No. 9554/1981

| Assent Date: | 19.5.81 | | Commencement Date: | Ss 1, 36–43, 45, 46 on 3.6.81: Government Gazette 3.6.81 p. 1778; s. 44 on 26.9.80: s. 1(3); rest of Act on 1.9.81: Government Gazette 26.8.81 p. 2799 |

Courts Amendment Act 1986, No. 16/1986

| Assent Date: | 22.4.86 | | Commencement Date: | Ss 1–11, 13–27, 29–34 on 1.7.86: Government Gazette 25.6.86 p. 2180; s. 28 on 1.9.86: Government Gazette 27.8.86 p. 3201; s. 12 on 1.1.88: Government Gazette 7.10.87 p. 2701 |

Prostitution Regulation Act 1986, No. 124/1986

| Assent Date: | 23.12.86 | | Commencement Date: | S. 75 on 16.8.87: Government Gazette 12.8.87 p. 2175 |

Community Services Act 1987, No. 16/1987

| Assent Date: | 12.5.87 | | Commencement Date: | Ss 1–6, 9–13, Sch. 1 on 22.2.89: Government Gazette 22.2.89 p. 386; Sch. 2 items 1–13 on 15.3.89: Government Gazette 15.3.89 p. 587; ss 7, 8 on 25.6.92: Government Gazette 24.6.92 p. 1532 |

State Concessions (Amendment) Act 1987, No. 48/1987

| Assent Date: | 15.9.87 | | Commencement Date: | 1.12.87: Government Gazette 18.11.87 p. 3072 |

County Court (Amendment) Act 1989, No. 19/1989

| Assent Date: | 16.5.89 | | Commencement Date: | 1.8.89: Government Gazette 26.7.89 p. 1858 |

Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989

| Assent Date: | 14.6.89 | | Commencement Date: | S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette 30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217 |

Medical Practice Act 1994, No. 23/1994

| Assent Date: | 17.5.94 | | Commencement Date: | Ss 1, 2 on 17.5.94: s. 2(1); rest of Act on 1.7.94: Government Gazette 23.6.94 p. 1672 |

Legal Practice Act 1996, No. 35/1996

| Assent Date: | 6.11.96 | | Commencement Date: | Pt 1(ss 1–5), ss 448, 454, Sch. 2 on 6.11.96: s. 2(1); s. 447 on 8.3.88: s. 2(2); rest of Act (except s. 67) on 1.1.97: s. 2(3); s. 67 on 1.7.97: s. 2(4) |

Commonwealth Powers (Family Law-Children) (Amendment) Act 1997, No. 59/1997

| Assent Date: | 5.11.97 | | Commencement Date: | S. 7 on 1.11.98: s. 2(3) |

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998

| Assent Date: | 26.5.98 | | Commencement Date: | S. 7(Sch. 1) on 1.7.98: s. 2(2) |

Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001, No. 11/2001

| Assent Date: | 8.5.01 | | Commencement Date: | S. 3(Sch. item 45) on 1.6.01: s. 2(2) |

Monetary Units Act 2004, No. 10/2004

| Assent Date: | 11.5.04 | | Commencement Date: | S. 15(Sch. 1 item 17) on 1.7.04: s. 2(2) |

Children, Youth and Families (Consequential and Other Amendments) Act 2006, No. 48/2006

| Assent Date: | 15.8.06 | | Commencement Date: | S. 42(Sch. item 23) on 23.4.07: s. 2(3) |

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

| Assent Date: | 3.6.14 | | Commencement Date: | S. 10(Sch. item 102) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2 |

Justice Legislation Further Amendment Act 2016, No. 3/2016

| Assent Date: | 16.2.16 | | Commencement Date: | S. 90 on 1.5.16: Special Gazette (No. 114) 26.4.16 p. 1 |

Oaths and Affirmations Act 2018, No. 6/2018

| Assent Date: | 27.2.18 | | Commencement Date: | S. 68(Sch. 2 item 82) on 1.3.19: s. 2(2) |

Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022, No. 1/2022

| Assent Date: | 15.2.22 | | Commencement Date: | S. 102 on 29.3.22: Special Gazette (No. 157) 29.3.22 p. 1 |

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3 Explanatory details

No entries at date of publication.