5.5.4: Suspending payments to payees

Context

If a payer applies to a court for a declaration that the payee is not entitled to an assessment of child support for a child because the payer is not a parent of the child concerned, CSA must suspend payments to the payee while the court considers the application.

CSA has discretion to suspend payments to the payee while it considers the payer's objection to the validity of a child support assessment for reasons other than the parentage of the child concerned. CSA may also exercise this discretion to suspend payments to the payee while a court or the Social Security Appeals Tribunal considers a payer's application in proceedings challenging the validity of the child support assessment for reasons other than the parentage of the child concerned.

Legislative references

Sections 80, 107, 107A and Subdivision B of Division 3 of Part VIII (court review) Child Support (Assessment) Act 1989

Sections 79A and 79B Child Support (Registration and Collection) Act 1988

Rule 4.23 Family Law Rules 2004

Explanation

Suspension determination pending a payer's application to court about parentage

A payer can apply to a court for a declaration that the payee is not entitled to an assessment of child support payable by them for a child because he or she is not a parent of that child (a declaration under section 107 or section 107A of the Assessment Act) (See chapter 4.3). A payer must serve a copy of their application for a section 107 or section 107A declaration upon CSA (Rule 4.23 Family Law Rules 2004 ).

Unless the court grants a stay order, the payer is obliged to continue making child support payments for the child pending the court's decision. However, when CSA is notified about the payer's application to court for a declaration under section 107 or section 107A for a child, CSA is obliged to suspend payments to the payee for that child (section 79A of the Registration & Collection Act).

While the suspension remains in force, CSA will not disburse to the payee any payments that it receives from the payer for the child who is the subject of the payer's application. CSA will hold these payments in credit on the payer's account. CSA will continue to disburse to the payee any amounts that relate to any other child (or children) for whom the payer is liable to pay child support.

Example

CSA cannot make a 'partial' suspension determination. CSA must hold all child support for the child subject to the section 107 or section 107A application when it makes a suspension determination.

Suspension determination pending a payer's objection or application to court about the validity of the assessment on other grounds (i.e., not parentage)

CSA may make a suspension determination if a payer objects to the validity of CSA's assessment on any of the following grounds (section 79B(1)(a) of the Registration & Collection Act):

• that the child was not a child for whom an application for an administrative assessment of child support was entitled to be made;
• that the applicant was not a person entitled to make an application for the child; or
• that the payer was not a resident of Australia.

CSA may also make a suspension determination if the payer has applied to a court for review of a decision made by the Social Security Appeal Tribunal in relation to the payee's entitlement to an administrative assessment of child support for a child (section 79B(1)(b)).

CSA will consider making a suspension determination in a case where the payer has objected or applied to a court about the validity of the assessment on a ground other than parentage only when requested to do so by the payer. In deciding whether a suspension determination is appropriate, CSA will take into account:

• the merit of the payer's objection or application;
• the particular circumstances of the individual case (including the interests of the payer, the payee and the child for whom child support is payable); and
• the objects of the Registration and Collection Act,.

Resumption determinations

Once CSA has made a suspension determination, it can resume payments to the payee for the child by making a resumption determination.

CSA is obliged to make a resumption determination when:

• a court has finally refused the payer's application), or
• the payer withdraws their court application, or
• the court has struck out or dismissed the payer's application.
  (section 79A(3) of the Registration & Collection Act in the case of an application for a declaration under section 107 of the Assessment Act; or section 79B(3) for an application to court for review of a decision made by the Social Security Appeal Tribunal in relation to the payee's entitlement to an administrative assessment of child support for a child).

CSA has discretion to make a resumption determination in circumstances other than those set out above. It will consider doing so only when requested to do so by the payee. In deciding whether a resumption determination is appropriate in circumstances other than those set out above, CSA will take into account:

• the merit of the payer's objection or application;
• the particular circumstances of the individual case (including the interests of the payer, the payee and the child for whom child support is payable); and
• the objects of the Registration and Collection Act,.

When CSA makes a resumption determination, it must pay to the payee any child support retained as a result of the suspension (sections 79A(3)(d) or 79B(3)(d) of the Registration & Collection Act). The particulars of the Child Support Register must be varied to give effect to the resumption determination (section 79C(2) of the Registration & Collection Act).

When a court's refusal become final

CSA is obliged to make a resumption determination when a court has finally refused the payer's application.

A decision of a court is final if an appeal is not made within the time for doing so, or in the case of a decision of the Full Court of the Family Court, no application for special leave to appeal to the High Court has been made within 30 days of the decision. (section 144 of the Assessment Act in the case of an application for a declaration under section 107 of the Assessment Act; or section 110W of the Registration & Collection Act for an application to court for review of a decision made by the Social Security Appeal Tribunal in relation to the payee's entitlement to an administrative assessment of child support for a child).

Notification

CSA will provide written notice to the payer and payee when it:

• makes a suspension determination and
• when it makes a resumption determination.

CSA will include information in the notice about each parent's right to object to that decision.

Objection rights

CSA must vary the particulars of the child support register when it makes a suspension determination or a resumption determination (section 79C of the Registration & Collection Act. A parent can object to either of these decisions. (See chapter 4.1 Objections)

A parent cannot object to CSA deciding not to make a suspension determination or a resumption determination as these are not appealable refusal decisions (section 4(1) of the Registration & Collection Act). The payer can apply to court for a stay order if CSA has refused to make a suspension determination. (See chapter 4.3.2 for a stay order pending a court decision on a payer's application for a declaration under section 107 of the Assessment Act; and chapter 4.3.6 for information about stay orders pending review of a decision made by the Social Security Appeal Tribunal in relation to the payee's entitlement to an administrative assessment of child support for a child.)

If CSA allows a payee's objection to CSA's suspension determination, the suspension determination is considered never to have been made. It is not necessary for CSA to make a formal resumption determination. It will simply vary the Register to give effect to the objection decision.

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Version 1.3

Issued 1 January 2008

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