a court may make an order requiring a former payee to repay to a former payer a specified amount of child support for a child of whom the former payer is not the parent.
orders for repayment of overpaid child support assessments
Sections 107, 107A and 143 Child Support (Assessment) Act 1989.
Section 17A Child Support (Registration and Collection) Act 1988
Section 143 of the Child Support (Assessment) Act 1989 (the Assessment Act) gives a court discretion to make an order for recovery of an overpayment of a child support assessment. The court may make such orders as it considers just and equitable to give effect to, or to adjust, the rights of the payer and payee concerned.
Section 143 is not limited to particular types of overpayment. A payer can apply for an order under section 143 to recover any overpayment of child support arising under the Assessment Act. However, this creates a registrable maintenance liability only if the overpayment is a parentage overpayment and the court orders the former payee to repay an amount to the former payer (section 17A of the Child Support (Registration and Collection) Act 1988).
The payer in whose favour the order is made (the former payer, is now the payee of the parentage overpayment order) can register the order with CSA for collection. However, this does not extend to costs orders in respect of section 143 proceedings which are not able to be registered with CSA for collection (section 17A(2) of the Child Support (Registration and Collection) Act 1988).
A parent can apply to a court under section 107 or section 107A of the Assessment Act for a declaration that he or she is not a parent of a child for whom he or she is liable to pay child support. If the court is satisfied that the carer parent or liable parent is not the child's parent, it may grant the declaration (section 107(4) and section 107A(5)). Once a declaration is made, CSA is taken never to have accepted the application for child support for the child (section 107(5) and section 107A(6)).
Section 107(6) and section 107A(7) of the Assessment Act say that the court must consider making an order under section 143 of the Assessment Act for recovery of any overpaid child support as soon as practicable after making a declaration under section 107 or section 107A of the Assessment Act.
If the court makes a section 143 order requiring the former payee to repay an amount (i.e. a specified sum of money) to the former payer following a section 107 or section 107A declaration, this is a parentage overpayment order. CSA can register the order and recover from the former payee (who is now the payer under the order) the amount the court has ordered him or her to repay to the former payer (who is now the payee under the order).
If a court makes an order under section 143 requiring the former payee to transfer property to the former payer, rather than a specified sum of money) this is not a registrable maintenance liability. CSA cannot register such an order for collection and the former payer (now the payee of the order) will need to take his or her own enforcement action.
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.