5.1.3 Date a Liability First Becomes Enforceable

Context

The Registrar must work out the day that a liability is first enforceable when a liability for collection is registered.

Act references

CSRC Act section 24, section 24A, section 25, section 28, section 28A

On this page

The Registrar works out the day that a registered maintenance liability becomes enforceable according to the circumstances in which the liability for collection is registered (section 28). The rules that apply to each type of registration are discussed below.

If the payee is applying for collection to resume after a registered maintenance liability has ceased being enforced, see 5.6.3.

New child support assessments

When the Registrar makes a new child support assessment (including an assessment made in accordance with a child support agreement) it must register the liability for collection (section 24A(1)) unless:

  • the payee elected for DHS not to collect that liability for them when they applied, or
  • the payer applied for the child support assessment.

The liability first becomes enforceable from the start date of the child support assessment (section 28(1)(ba)). See 2.1 for information on applying for an assessment.

Existing child support assessments

A payee can apply for collection of an existing child support assessment if the Registrar did not previously register it for collection because:

  • the payee elected not to have the liability registered for collection when they applied for a child support assessment; or
  • the payer applied for the child support assessment.

The Registrar must register the liability under section 25(2). The Registrar must decide the day from which the liability first becomes enforceable by DHS. This will usually be from the day DHS received the payee's application for collection.

The Registrar may decide to make the liability enforceable from a later date. That day must not be more than 60 days after DHS received the application for collection (section 28(1)(c)).

Example: M lodged an application for collection on 15 February 2010. M advised DHS that the liable parent, F, made a lump sum payment on 1 January 2010 that was to cover the full amount of the liability until 1 April 2010. The Registrar determined the liability was first enforceable on 2 April 2010.

If the payee had previously elected not to have the liability registered for collection when they applied for a child support assessment, or if the assessment was made following a liable parent application, the payee can also apply for DHS to collect arrears for them (5.1.4) (section 28A and section 28A(1A)).

Court orders for periodic maintenance made from 1 June 1988 (or agreements registered in a court from that date)

Payee notified DHS within 14 days of the court making the order or registering the agreement

If the payee notified DHS within 14 days of the court making the order or registering the agreement, the Registrar must register the liability under section 24(1). The periodic maintenance liability first becomes enforceable from the date the liability arose under, or was affected by that particular order or agreement (section 28(1)(b)).

Payee notified DHS more than 14 days after the court made the order or registered the agreement

If the payee notified DHS more than 14 days after the court made the order or registered the agreement, the Registrar can register the liability under section 24(2). The Registrar must decide the day from which the periodic maintenance liability first becomes enforceable, which must not be before the date the liability arose under, or was affected by that particular order or agreement (section 28(1)(baa)).

The Registrar will generally determine that the liability is first enforceable from the date the payee's application for collection was received by the department.

The Registrar may decide that the liability is first enforceable from a day before DHS received the payee's application for collection if satisfied that the payee:

  • was prevented from notifying DHS within the prescribed 14 day period, and
  • notified DHS of the order or agreement within a reasonable period of it being practicable for them to do so.

Example: M notified DHS of a court order for spousal maintenance on 15 July 2009. The court made the order on 16 June 2009, but M did not receive a sealed copy of the order from the court until 7 July 2009. The Registrar is satisfied that it was reasonable for M to wait for a copy of the order before notifying DHS that the order was made. The Registrar is also satisfied that M applied for collection of the order within a reasonable period of receiving a copy. The Registrar decides that the liability is first enforceable from the date the liability arose under the order.

There will also be occasions where the payee obtained a copy of the court order in time to lodge their application within 14 days, but could not do so for other reasons. The Registrar will consider these reasons in deciding whether it would be appropriate to make the liability enforceable from a date earlier than the date the payee applied.

Payee originally elected for DHS not to collect the liability for them

If the Registrar did not register a court order or court registered agreement because the payee elected not to have the periodic maintenance liability registered for collection, the payee can make a later application for collection.

The Registrar must register the liability under section 25(2). The Registrar must decide the day from which the periodic maintenance liability first becomes enforceable, which cannot be more than 60 days after DHS received the application for collection (section 28(1)(c)).

The Registrar will decide that the liability is first enforceable from the date the department received the payee's application for collection.

The payee can also apply for DHS to collect arrears for them (section 28A) (5.1.4).

Payee has never notified DHS of the court order or court registered agreement

The Registrar has a discretion to register a periodic maintenance liability arising from a court order or court registered agreement made on or after 1 June 1988 (or an agreement registered in a court on or after that date) even if the payee has never notified DHS about the order or agreement (section 24(2)). This would be done only in exceptional circumstances.

The Registrar must decide the day from which the liability first becomes enforceable by DHS, which cannot be before the date the liability arose under, or was affected by that particular order or agreement (section 28(1)(baa)). The Registrar would decide on a day depending upon the exceptional circumstances that made it appropriate for the Registrar to register the liability, irrespective of the fact that the payee failed to notify DHS of the order or agreement.

The date of effect of a periodic maintenance liability under court order or court registered agreement

The Registrar may need to decide the date a periodic maintenance liability arose under or was affected by an order or agreement when registering a liability for collection.

Some orders and agreements simply specify that an amount is to be paid each week or some other period, without tying the amount to a specific period. The following table sets out how the Registrar will determine the date the liability first becomes enforceable.

Date the order or agreement says the first payment is due Date the liability arose under or was affected by an order or agreement
No date specified The date of the order or agreement
The order or agreement specifies a date, but does not specify the period the first payment covers (e.g. $x per week, first payment due 1 July) The date the order or agreement says the first payment is due
The order or agreement specifies the period the first payment covers (e.g. $x per week, first payment is for the period from 1 July to 7 July) The start date of the period covered by the first payment

Court orders for periodic maintenance made before 1 June 1988 (or agreements registered in a court before that date)

If a payee applies for registration of a court order made before 1 June 1988 (or an agreement registered in a court before that date), the Registrar must register the liability under section 25(2). The Registrar must decide the day from which the periodic maintenance liability first becomes enforceable. This must not be more than 60 days after DHS received the application for collection (section 28(1)(c)).

The Registrar will decide that the liability is first enforceable from the date the department received the payee's application for collection.

Child or spouse maintenance liabilities transferred from state or territory collection agencies

The Registrar can register a periodic maintenance liability transferred from a state collection agency (see 3.1.7). The liability is enforceable from the date the liability is transferred. DHS will negotiate with the other agency about the most appropriate transfer date.

Overseas maintenance liabilities & agency reimbursement liabilities

The Registrar can register an overseas maintenance liability or an agency reimbursement liability for collection. An overseas maintenance liability is first enforceable on the day on which the application for registration is received by DHS (section 28(1)(d)). Any amounts that are in arrears under the order are also enforceable under the CSRC Act, and also become first enforceable on the day on which the application for registration is received by DHS (section 28(1)(e)).

Parentage overpayment orders

A parentage overpayment order is an order requiring repayment of a specified amount, rather than a periodic maintenance liability (see 3.1.2 on parentage overpayment orders).

The Registrar will register for collection any amounts that have yet to be paid by the payer of the order to the payee. If the court has specified in the order a rate at which the overpayment is to be repaid, the Registrar will register the debt for collection at this rate, ending when the specified amount is repaid in full.

Last reviewed: 1 July 2016