3.1.2 Recovery Orders
A court may make an order under CSA Act section 143 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 or when the registered maintenance liability should never have existed.
Note: The changes introduced by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 provides that amendments to CSA Act section 143 apply to decisions or findings by a court made after 1 July 2018.
CSA Act section 107, section 143
CSRC Act section 17A
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Orders for repayment of overpaid amounts
CSA Act section 143 gives the court discretion to make an order for recovery of an overpayment. The court may make such orders as it considers just and equitable to give effect to, or to adjust, the rights of the payer and payee concerned.
A person can apply for an order under CSA Act section 143(1)(a) to recover an overpayment of child support arising under the CSA Act. Amounts that were overpaid due to a payer ceasing to be a resident of Australia or a reciprocating jurisdiction are excluded from the amount which can be recovered under section 143(1)(a).
A person can apply for an order under CSA Act section 143(1)(b) to recover overpayments of child support for registered maintenance liabilities (including other types of child maintenance liabilities that have originated outside the CSA Act, but collected under the CSRC Act) where a decision is made that the registered maintenance liability should have never existed in the first instance.
A registrable maintenance liability may be created if either the overpayment is a parentage overpayment and the court orders the former payee to repay an amount to the former payer (CSRC Act section 17A(1)(c)(i)), or the overpayment is a result of a decision that the registered maintenance liability should have never have existed (CSRC Act section 17A(1)(c)(ii)). The person in whose favour the order is made (the former payer, who is the payee of the parentage overpayment order) can register the order with the Registrar for collection. However, costs orders in respect of section 143 proceedings are not able to be registered with the Registrar for collection (CSRC Act section 17A(2)).
Parentage overpayment orders
A payer can apply to a court under CSA Act section 107 for a declaration that he or she is not a parent of a child for whom he or she is liable to pay child support (4.3.2). An application for a declaration under CSA Act section 107 cannot be made if a court has already declared under CSA Act section 106A that the person concerned should be assessed in respect of the costs of the child. Instead, the applicant may appeal the section 106A declaration (CSA Act section 107(1A)).
If the court is satisfied that the payer is not the child's parent, it may grant the declaration (CSA Act section 107(4)). Once a declaration is made, the Registrar is taken never to have accepted the payee's application for child support for the child (CSA Act section 107(5)).
CSA Act section 107(6) says that the court must consider making an order under CSA Act section 143 for recovery of any overpaid child support as soon as practicable after making a declaration under section 107.
If the court makes a section 143 order requiring the former payee to repay an amount (i.e. a specified sum of money) to the former payer, either following a section 107 declaration or the overturning on appeal of a declaration made under section 106A, this is a parentage overpayment order. The Registrar can register the order and recover from the former payee (who is now the payer under the order) the amount the court has ordered him or her to repay to the former payer (who is now the payee under the order).
If a court makes an order under section 143 requiring the former payee to transfer property to the former payer (rather than a specified sum of money) this is not a registrable maintenance liability. The Registrar cannot register such an order for collection and the former payer (now the payee of the order) will need to take his or her own enforcement action.