7. Court orders staying the operation of child support legislation pending proceedings

7.1 Summary

Under section 111C of the Registration and Collection Act (the Registration and Collection Act) a court can make an order staying or otherwise affecting the operation of child support legislation pending the resolution of court proceedings in a court having jurisdiction under the Registration and Collection Act. A court can also make a stay order pending the resolution of an objection under Part VII of the Registration and Collection Act or the resolution of an application to the SSAT under Part VIIA of the Registration and Collection Act or matters under Part 6A or 7 of the Assessment Act.

Prior to 1 July 2008 a stay order could only be made affecting the operation of the provision of the Assessment Act. As a result, stay orders could not be made in relation to the collection and disbursement powers of the CSA under the Registration and Collection Act.

After 1 July 2008, orders can address a specific collection action of the CSA. For example, a stay order could:

• order the CSA to cease collecting from a payer's salary;
• order the CSA to withdraw or modify a section 72A garnishment notice;
• order the CSA not to collect a payer's taxation refund;
• order the CSA not to disburse monies held to the payee; or
• order the CSA to cease any and all administrative collection.

Consideration should be given to the possibility that a collection opportunity could be forgone during a period where a stay order is in force that may not arise again in the immediate future. In some instances, it would be prudent to enable collection to proceed but stay the CSA from disbursing monies collected.

7.1.1 Filing an urgent stay application

Quite often, it is a collection issue that prompts a customer to seek a departure from their assessment/s. If the collection is imminent (for example CSA has served a section 72A notice on a conveyancer and settlement is imminent, or a large tax refund is due to be paid to a payer), they will need to commence proceedings quickly. Where the stay application is concerned, the matter will need to be brought on more urgently than the substantive matter. If this is not done, CSA must proceed with its collection activity given CSA's general duty of care to collect outstanding child support.

Note: some CSA collection activities are automated (for example, collection of taxation refunds) so if you intend seeking a stay order, it would be prudent to notify the CSA of your intention to seek the orders before the documents are filed.

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