3.5.4 Orders Dealing with Arrears
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 has already been registered for collection by the Registrar when the court makes the later order.
CSRC Act section 17A, section 18A, section 28, section 30, section 36
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DHS 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.
- Orders that give instructions about the repayment of arrears
- Orders that vary the amount of arrears under an earlier order
- Arrears under a registrable overseas maintenance liability
- Orders that start a child support liability retrospectively
Orders that give instructions about the repayment of arrears
When the Registrar registers an order for collection, the amounts payable under the order become debts due to the Commonwealth (CSRC Act section 30). Once an order is registered 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, the Registrar cannot be bound by the terms of the order. However, the Registrar will take note of the arrangement and attempt to reach a payment arrangement consistent with the order. This type of order does not prevent the Registrar 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
DHS sometimes receives court orders which provide for payment of arrears arising under an order which has never been registered for collection. The order may also vary the ongoing maintenance liability. The Registrar will register the ongoing liability for collection. However, the Registrar cannot register the arrears for collection because they do not relate to a child support enforcement period. See 5.1.3 for information about the day the liability first becomes enforceable.
Earlier order registered & arrears relate to period of registration
Where an order varies the arrears for a registration period to a particular amount, the Registrar 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, the Registrar must ignore any variation to arrears for the pre-registration period.
If the court specifies the period to which the arrears amount relates, the Registrar will act on that basis in apportioning the arrears to the pre and post-registration periods. The Registrar will vary only the arrears relating to the period the order was registered for collection.
Where the court order does not specify the period to which the arrears relate, the Registrar 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. The arrears amount is maintained in the Register.
Arrears under a registrable overseas maintenance liability
A registrable overseas maintenance liability can include arrears of periodic amounts of child maintenance or spousal maintenance payable under an overseas court order, court registered maintenance agreement, maintenance assessment or agency reimbursement liability (CSRC Act section 18A(4)).
For more information in relation to registrable overseas maintenance liabilities, see 3.6 on overseas orders, court registered agreements and assessments.
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 for registration of the liability within 14 days of the day the order was made, the Registrar will enforce the liability from the start date ordered by the court. If notified more than 14 days after the order was made, the Registrar must decide from which day the liability is enforceable. See 5.1.3 for information about the day the liability first becomes enforceable.