3.5.4: Orders dealing with arrears and parentage overpayment orders

Context

A court can make an order, or register an agreement, which deals with arrears accrued under an earlier order or court-registered agreement. Sometimes the earlier order or agreement is already registered with CSA for collection when the court makes the later order.

A court can also make an order under section 143 of the Child Support (Assessment) Act 1989 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.

Legislative reference

Sections 17A, 28, 30 and 36 Child Support (Registration and Collection) Act 1988

Sections 107, 139 and 143 Child Support (Assessment) Act 1989

Explanation

CSA sometimes receives court orders and agreements which provide for payment of arrears and set out a schedule for payment, or they provide for payment of arrears which relate to a period before registration, or they vary an earlier order by reinstating arrears which were previously discharged.

Orders about arrears are not orders that give rise to a periodic maintenance liability. The order may vary the liability arising under an earlier order, or simply give instructions about the repayment of the arrears.

A parentage overpayment order does not need to give rise to a periodic maintenance liability. It is a debt of a specified amount, which CSA can register for collection.

Orders that give instructions about the repayment of arrears

Orders that vary the amount of arrears under an earlier order

Orders that start a child support liability retrospectively

Parentage overpayment orders

Orders that give instructions about the repayment of arrears

When CSA registers an order for collection, the amounts payable under the order become debts due to the Commonwealth (section 30). Once an order is registered with CSA for collection, the provisions of section 30 override any payment instructions in the order.

Where an order sets out a schedule for repayment of lump sum arrears which arose during a child support enforcement period CSA cannot be bound by the terms of the order. However, CSA will take note of the arrangement and attempt to reach a payment arrangement consistent with the order. This type of order does not prevent CSA from intercepting an income tax refund (Field and Field (1991) FLC 92227), from negotiating a different arrangement with the payer at a later date if their circumstances change significantly, or from taking other enforcement action if appropriate.

Orders that vary the amount of arrears under an earlier order

No earlier order registered

CSA sometimes receives court orders which provide for payment of arrears arising under an order which has never been registered with CSA for collection. The order may also vary the ongoing maintenance liability. CSA will register the ongoing liability for collection. However, CSA cannot register the arrears for collection because they do not relate to a child support enforcement period. See chapter 5.1 CSA collection for information about the day the liability first becomes enforceable.

Earlier order registered and arrears relate to period of registration

Where an order varies the arrears for a registration period to a particular amount, CSA will vary the register to reflect the order.

Earlier order registered, but arrears relate to a period before registration

Where the arrears amount specified in the order relates to both the pre- and post-registration periods, CSA must ignore any variation to arrears for the pre-registration period.

• If the court specifies the period to which the arrears amount relates, CSA will act on that basis in apportioning the arrears to the pre and post-registration periods. CSA will vary only the arrears relating to the period the order was registered with CSA for collection.
• Where the court order does not specify the period to which the arrears relate, CSA will assume that the earliest debt is being discharged first. This means that the debt for the pre-registration period is discharged before the debt for the post-registration period. CSA will maintain the arrears amount in the register.

Orders that start a child support liability retrospectively

Sometimes a court will make an order for the liability to be payable from a day sometime before the order being made (e.g. the date of the parent's application to the court). This is not the same as specifying an amount of arrears. If the payee applies to CSA for registration of the liability within 14 days of the day the order was made, CSA will enforce the liability from the start date ordered by the court. If CSA is notified more than 14 days after the order was made, it must decide from which day the liability is enforceable. See chapter 5.1 CSA collection for information about the day the liability first becomes enforceable.

Parentage overpayment orders

A parentage overpayment order is made by a court under section 143 of the Child Support (Assessment) Act 1989, following a declaration under section 107 of that Act. It requires 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.

A parentage overpayment order is different to an order about arrears of child support because it is of itself a registrable maintenance liability, rather than an order which varies or gives instructions about a pre-existing periodic maintenance liability.

CSA is limited to collecting the total amount the court says is repayable in the order. Where the order specifies a schedule for repayment of the total, CSA will collect the debt in accordance with that payment schedule. However, if the payee does not pay the instalments as they fall due, CSA may take other enforcement action for any overdue amounts.

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Version 1.2

Issued 1 January 2007

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