what does the court take into account when it makes an order for repayment?
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Where a payer has paid an amount of child support under an assessment and was not liable, or subsequently becomes not liable, to pay that amount the court must consider making an order for repayment of the amount.
Suggested draft terms
- That [former payee's name] repay to [former payer's name] child support of $x paid for [child's name].
Contact CSA for details of the total amount of child support that has been collected by CSA for the child/ren. A court may make such orders as it sees fit.
Note: an amount repayable may be made up of monies paid to a payee when the case was both 'collect' and 'private collect'. Therefore a statement of monies collected by the CSA may not represent all monies paid in respect of a child. When seeking information from CSA, it may be prudent to seek copies of all relevant assessments including when the case was collect and private collect.
Where child support was paid through CSA
The payer can only seek to recover money paid from the payee and not from CSA (Child Support Registrar and Z and T (2002) FamCA 182). Amounts paid under the Child Support (Registration and Collection) Act 1988 are taken to have been paid to the payee (except for amounts not disbursed by CSA under section 79A of the Registration and Collection Act).
However, if the court makes a section 143 order after making a declaration under section 107 of the Assessment Act, the liability can be registered with CSA for collection. The liability must be in the form of a specific amount of money to be capable of CSA registration (section 17A of the Registration and Collection Act).
Note: where a section 143 order is made (and registered with CSA) and a payer continues to have an ongoing liability to that payee for another child from the same relationship, CSA may utilise the 'offset' provisions in section 17AA to offset one liability against the other. CSA would consult the parties before doing this.
What does the court take into account when it makes an order for repayment?
Even though child support has been paid in a situation where the payer has been found not liable, an order for repayment of the money is not automatic. The court may make such orders as it considers just and equitable to adjust and give effect to the rights of the parties concerned and the child/ren. In making an order under section 143 (after the court has made a declaration under section 107) the court must have regard to the following matters outlined in section 143(3B):
- whether the payee or payer knew, or should reasonably have known, that the payer was not a parent of the child;
- whether the payee or payer's conduct resulted in the application for administrative assessment of child support being accepted by CSA;
- whether there were delays in the payer making a section 107 application;
- whether child support is, or may become, payable to the payee for the child by the person who is a parent of the child;
- the relationship between the payer and the child; and
- the financial circumstances of the payee and payer.
The court may decide that an amount of $7,200 is repayable to the former payer. Instead of making an order for this amount as described above, the court could create an ongoing periodic liability for $200 per month, payable for 36 months. In this instance, the CSA can only collect and enforce at this rate and could not act upon a collection opportunity that would see the whole amount paid as a lump sum – for example, a garnishment of proceeds from the sale of a property.
On the other hand, if a court order is registered with CSA for collection and the order specifies the lump sum to be repaid and the rate at which CSA should collect it, the CSA may decide not to collect at that rate. Once it becomes a debt due to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988, the Financial Management and Accountability Act (1997) authorises the CSA to negotiate repayment. The CSA will have regard to a rate set by a court but is not bound by that amount.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.