5.1.4: Collection of arrears accrued during non-collect period

Context

A payee who elected not to have CSA collect maintenance for them when they applied for a child support assessment, or notified CSA of a court order or court-registered agreement can later apply for collection. They can also apply for CSA to collect arrears.

Legislative references

Section 28A Child Support (Registration and Collection) Act 1988

Explanation

A payee who previously elected not to have their liability registered for collection can later apply for registration. CSA must register that liability for collection. The payee can also apply for CSA to collect arrears for them (section 28A).

CSA must accept the payee's application for collection of amounts the payer has not paid in the 3 months immediately before the date the liability first becomes enforceable by CSA. CSA will need to be satisfied that the amounts have actually not been paid.

A payee may also apply for collection of amounts unpaid by the payer for 9 months before the liability first becomes enforceable by CSA. This is called the maximum arrears period. If there are amounts unpaid for this period and CSA is satisfied that there are exceptional circumstances it must grant the application.

If CSA grants the payee's application the unpaid amounts become a child support debt and CSA will vary the Register to show that the payer owes these unpaid amounts.

Exceptional circumstances

Whether circumstances are exceptional will depend on the facts in each particular case. The circumstances must be unusual in some way. They may be circumstances beyond the control of the payee that prevented them from applying for collection within a reasonable period. CSA will consider the effect of the particular circumstances on the payee and the extent to which they contributed to the payee's delay in applying for collection.

The following are examples of circumstances that CSA may consider exceptional. This is not an exhaustive list and each case must be considered on its merits.

• The payer threatened or pressured the payee not to apply for registration for CSA collection chapter 6.10 Family violence.
• The payee was ill or had an accident that stopped them for applying for collection.
• The payee suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the payee's property.
• The payee had communication difficulties because of, or including, isolation, illiteracy or poor English-language skills.
• The payer created a false expectation of payment (e.g. they promised to pay a lump sum from the proceeds of the sale of property or a compensation settlement).
• The parents were involved in negotiations over child support and/or other matters and applying for collection may have compromised those negotiations.

In some cases payees may apply for collection after CSA amends a child support assessment retrospectively so that there are significant arrears arising (for example, it may replace a default income or reconcile an estimate of income). These arrears arise through the ordinary operation of the Act and are not an exceptional circumstance even if the payee was unaware of any change in the payer's circumstances.

Evidence to show exceptional circumstances

The payee must provide suitable evidence for CSA to find there are exceptional circumstances. For example, if the payee states that the payer threatened or pressured them they may provide evidence from a person fully aware of the nature and details of the circumstances such as a doctor, social welfare worker or police officer.

In the case of illness, accident or psychiatric condition, the payee should provide written confirmation from a medical practitioner. In other cases, the payee must supply a full and detailed explanation supported by appropriate evidence.

CSA must provide the payer with an opportunity to comment on information the payee provided to CSA if it is taking it into account to make a decision to grant an application for a maximum arrears period.

Calculating amounts unpaid

In some cases parents provide conflicting information about payments made during the relevant arrears period. CSA will make reasonable investigations, including interviewing customers (by phone or in person) to find details of any payment dates and amounts. It will also take into account any evidence of amounts transferred from the payer to the payee, such as bank records or receipts signed by the payee. It may also decide whether amounts paid during the period were paid for periods in advance or in arrears.

For CSA to make the decision to collect child support in arrears CSA has to be satisfied that the amount was unpaid. To do this it will examine the evidence provided by both parties in relation to the payment. If there is no evidence of payment then CSA cannot be satisfied the disputed amount was paid. The disputed amount will be included in CSA's calculation as an unpaid amount.

CSA will take into account any amounts that the payer has previously paid that would qualify as a prescribed non-agency payment (chapter 5.3 Non-agency payments and offsetting liabilities) when calculating the amounts unpaid. If the payer has paid 70% of the liability directly to the payee, CSA will credit towards the remaining 30% of the liability any further amounts that would qualify as prescribed non-agency payments.

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Version 1.7

Issued 3 August 2007

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