Payment of debts is only enforceable by CSA

Once CSA registers a registrable maintenance liability for collection, the debts arising under the liability are debts due by the payer to the Commonwealth, rather than to the payee.Payment of these debts is only enforceable by CSA.

However, from 1 January 2007, the payee of a registered maintenance liability can bring court proceedings to recover amounts owed by the payer to CSA.

Legislative references

Sections 30, 37B(7), 105, 111E, 111F, 111G, 113, 113A and 120 Child Support (Registration and Collection) Act 1988

Explanation

In most cases, CSA is solely entitled to and responsible for collecting a registered maintenance liability. The payer may voluntarily make payments direct to the payee or a third party in the form of non-agency payments. However, the payee of a registered maintenance liability may not enforce payments under that liability except by instituting court proceedings under section 113A of the Registration and Collection Act (section 30(3) of the Registration and Collection Act).

Prior notice to CSA

A payee must give prior notice to CSA of his or her intention to institute court proceedings. The notice must be in writing (including by email or facsimile) and given to CSA at least 14 days before the payee files his or her application in the court unless the court allows for a shorter period because of exceptional circumstances (section 113A(1) of the Registration and Collection Act).

In which court may the payee institute proceedings?

The payee can choose to enforce the debt under the Family Law Act or take civil action to recover the debt (section 113(1) of the Registration and Collection Act).

The civil action involves obtaining a judgment and then enforcing the judgment through the court.

Proceedings under the Family Law Act may be brought in any court with family law jurisdiction including the Federal Circuit Court and state, local and magistrates courts. The Family Law Act and Rules (and related Federal Magistrates Rules) apply to child support enforcement proceedings under the Registration and Collection Act as if the proceedings had been brought under the Family Law Act (section 105 of the Registration and Collection Act).

Parties to the proceedings

The payee and payer are the parties to proceedings brought by the payee under section 113A of the Registration and Collection Act. The CSA will not normally be involved. However, it has the discretion to intervene in payee enforcement proceedings (section 111E of the Registration and Collection Act)

The Commonwealth is not liable for costs in enforcement proceedings brought by the payee unless the CSA is involved as a party (section 111G of the Registration and Collection Act). If the CSA is involved, the court would decide, upon application from the parties, whether to order costs against the CSA or any other party.

Payments under orders

Where the court orders the payer to make a payment, that payment must be made to the CSA. CSA must pay the amount received from the payer by the order to the payee as soon as practicable. (section 111F of the Registration and Collection Act).

Court's power to obtain information

In payee enforcement proceedings, the court may exercise the Registrar's powers to obtain information and evidence for the Registration and Collection Act (sections 120(1) and 120(1A) of the Registration and Collection Act).

The payee must notify CSA of any orders

The payee is obliged to provide CSA with notice within 14 days of the court making any order about the payee and the debt (including orders about costs – which are not collectable by CSA). (section 113A(2) of the Registration and Collection Act).

Notice may be provided to CSA in writing (including via email or facsimile), personally or via telephone.  It is an offence if the payee fails to notify CSA that a court order has been made in relation to the payee and the debt due in relation to the liability (section 113A(3)).