Arrears of Child Support – Changes from January 2017 – Payees of Child Support May Now Control the Process and Collection of Arrears of Payment, Payee may claim adjustment in Property Proceedings

18/10/2017

How Does Child Support Became Payable

The Assessment, payment and collection of Child Support in Australia is covered by the Child Support Assessment Act of 1988.

In circumstances where an assessment for payment of Child Support has been made against one parent (payor) in favour of another parent (payee) the assessed amount of Child Support can either be paid to the Child Support Agency or the payee parent directly.  There are many cases in which payment of Child Support amounts are not made in accordance with the assessment or not made at all.

Child Support Payments Are in Arrears

Who Can Collect Arrears

Child Supports payments that are not made (arrears) to the Child Support Agency are a debt to the Commonwealth of Australia.  Until recently, the Child Support Agency was the only body entitled to pursue the payor for arrears of Child Support when the arrears was a debt to the Commonwealth of Australia.

Payee Can Now Apply to Enforce and Collect Arrears of Child Support

The position has changed.  As from 1 January 2017, payees of Child Support may take action to recover arrears of periodic payments of Child Support themselves.  There are some technical requirements which must be satisfied before this can occur.

However, a payee parent can seek an Order to recover the arrears from the proceeds of a property adjustment between the payor and the payee parents.  A significant history of non-payment of Child Support might be the basis upon which a Court could be asked to make an Order for payment of lump sum maintenance against future periodic payments so that the payee could avoid being in a similar position in future years i.e. not having received the Child Support Periodic payments to which he or she is entitled.

The connection between collection of arrears of Child Support and property proceedings between parents has now been re-organised.

If there are already property proceedings on foot the application can be made within those existing proceedings.

If there are no proceedings on foot the proceedings would be commenced by way of the filing of an Initiating Application in either the Family Court of Australia or the Federal Circuit Court of Australia.

The technical requirements involved in this course are:-

  • The payee must give notice to the Child Support Registrar at least 14 days notice in writing of their intention to institute proceedings to recover the debt (arrears of Child Support).  The Child Support Registrar will be asked to provide a Certificate under section 116 of the Registration Act which sets out the amount owing by way of arrears of Child Support.
  • Proceedings can be commenced in the Family Court of Australia or the Federal Circuit Court of Australia.
  • The Initiating Application would be supported by an Affidavit setting out the facts and circumstances which led to the arrears of Child Support and attaching the Certificate from the Registrar.
  • A Financial Statement of the Applicant Payee would also be filed.
  • The Registrar of Child Support may intervene in the proceedings. 
  • There is a cost to the payee parent in making this application.  Action by the Child Support Registrar to recover arrears is not charged to the payee but the action of this process is that the payee parent has more significant control of the speed and manner in which the arrears are pursued.   

Our experienced Family Law Solicitors at Watson & Watson can assist you in taking the appropriate action required to recoup arrears of child support payments to which your child is entitled.  Do not delay in pursuing arrears of child support payments from the payor parent.  Contact Richard Watson our experienced family law solicitor or his assistant Shereen Da Gloria to discuss your concerns.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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