Victorian Consolidated Legislation

Maintenance Act 1965 - SECT 86

Confirmation of provisional orders made overseas

86. Confirmation of provisional orders made overseas



(1) Where-

   (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);

   (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.

(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.

(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);

   (b)  discharge the provisional order; or

   (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.

(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.