5.4.4 Enforcement under the FL Act
In addition to the enforcement powers contained in the CSRC Act for civil recovery through state courts (5.4.3), the Registrar is able to take action to enforce outstanding child support liabilities under the FL Act.
CSRC Act section 30, section 67, section 105, section 106
Family Law Rules 2004 Chapter 20
Federal Circuit Court Rules 2001 Division 25B.1, Division 25B.2
FL Act section 106, Part VII Division 13A, Part XIIIA
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The Registrar can bring proceedings in any court with family law jurisdiction including the Federal Circuit Court and state, local and magistrates courts. The FL Act and Family Law Rules (and related Federal Circuit Court Rules) apply to child support enforcement proceedings under the CSRC Act as if the proceedings had been brought under the FL Act (CSRC Act section 105).
The Registrar is able to bring proceedings for recovery of a debt under rule 20.01 of the Family Law Rules 2004. Proceedings in the Federal Circuit Court are brought under rule 25B.07 of the Federal Circuit Court Rules 2001.
- Notice requiring financial information
- Order for payment of the amount owed
- Enforcement hearing (or summons)
- Enforcement orders available
- Garnishee orders
- Sequestration orders or appointment of a receiver
- Orders for seizure & sale of real & personal property
- The 'Twelve-Month' Rule
- Contempt of court
Notice requiring financial information
A notice requiring financial information can be used to enforce a maintenance liability (rule 20.10 of the Family Law Rules 2004 and Form 13; except for proceedings in the Federal Circuit Court where rule 25B.16 of the Federal Circuit Court Rules 2001 and Form - Enforcement Warrant - Seizure and Sale of Property Third Party Debt Notice apply). The notice can be used where the payment of money is required and can be issued by the Registrar of the court on the request of a person entitled to bring proceedings. A debtor who receives a notice is required to complete the form and return it within the required time. Although a relatively inexpensive step, there is no sanction for failure to respond to the written request for information. The Registrar does not usually request the court to issue a notice requiring financial information because the Registrar has power to obtain information under CSRC Act section 120 (6.2.4), which provides a penalty for failure to respond.
Order for payment of the amount owed
If the debtor's obligation to pay does not arise from a court order (e.g. if the arrears relate to an administrative assessment of child support), the Registrar must first obtain an order for payment of the amount before an enforcement order can be made (Family Law Rules 2004 rule 20.03 and Federal Circuit Court Rules 2001 rule 25B.09).
Enforcement hearing (or summons)
An enforcement summons or enforcement hearing is available in relation to:
- all liabilities that are registrable maintenance liabilities registered under the CSRC Act and payable to the Commonwealth under section 30, and
- any penalty for late payment of child support under CSRC Act section 67.
(Family Law Rules 2004 rule 20.01(1)(a) and 20.01(2)(c), and Federal Circuit Court Rules 2001 rule 25B.07(1)(a) and 25B.07(2)(c))
[They are not available for penalties for underestimating income, which are imposed under the CSA Act.]
The debtor can be required to attend an enforcement hearing and produce documents (Family Law Rules 2004 rule 20.12). In the Federal Circuit Court a summons can be issued requiring the debtor to attend the court; produce documents and be examined (answer questions under oath before a Court Officer), (Federal Circuit Court Rules 2001 rule 25B.18).
On hearing the matter, the court can make any of a range of enforcement orders, including seizure and sale of goods or property, garnishee orders, or orders preventing the dissipation of property or assets.
An application for an enforcement summons or an enforcement hearing is not a prerequisite for proceedings for sale of property or garnishment but the examination allows the Registrar to examine the debtor and to select the most appropriate method of enforcement.
A Registrar of the court, or a judge, may refuse to issue a summons or require the debtor to attend an enforcement hearing where:
- the amount is too trivial,
- the examination is unnecessary as the information is already known,
- there is insufficient court time and a more convenient court is available,
- another court is geographically more suitable, or
- proceedings for variation are pending (Jools and McConnell (1995) FLC 92-553).
Enforcement orders available
The court can make various types of orders for enforcement of the debtor's obligation.
These include orders:
- for garnishment of the debtor's assets or income
- for the payment of arrears
- sequestrating the debtor's estate or appointing a receiver
- for seizure and sale of the debtor's personal property
- for the sale of real property.
For more information about the orders that can be made by the Family Court of Australia and state and territory courts with family law jurisdiction, see rule 20.05 of the Family Law Rules 2004. Rule 25B.11 of the Federal Circuit Court Rules 2001 sets out the orders that can be made by the Federal Circuit Court.
The court has the power to make orders for the garnishment (or attachment) of the debtor's earnings or of money in bank accounts, etc., payable to the debtor (Part 20.4 of the Family Law Rules 2004 and rule 25B.10 of the Federal Circuit Court Rules 2001). It is not usually necessary for the Registrar to seek these orders to enforce amounts outstanding for child support as the Registrar has similar powers to deduct child support from salary and wages (5.2.3) or can issue a notice against a third party (5.2.9) under section 72A of the CSRC Act without having to resort to court action.
Sequestration orders or appointment of a receiver
Part 20.5 and 20.6 of the Family Law Rules 2004
Rules 25B.11 and 25B.12 of the Federal Circuit Court Rules 2001(applies in the Federal Circuit Court)
The court can order sequestration of a debtor's property, or the appointment of a receiver. These types of orders are useful if by obtaining possession of the property the sequestrator/receiver could obtain income due to the debtor. In most cases the powers provided to the Registrar by section 72A of the CSRC Act (5.2.9) are sufficient in these circumstances. However, an order for sequestration or appointment of a receiver may be useful in cases where it is believed the respondent may dispose of assets prior to the execution of any enforcement order.
Orders for seizure & sale of real & personal property
Rule 20.07 of the Family Law Rules 2004
Rule 25B.13 of the Federal Circuit Court Rules 2001(applies in the Federal Circuit Court)
The court can order the seizure and sale of the debtor's personal property. The court can order the appointment of a trustee to seize and sell personal property to enforce an order of the court, e.g. sale of a motor vehicle. As a matter of policy the Registrar will not request such an order, nor would the court necessarily grant an order, in circumstances where the vehicle was of a modest value and was the means of the debtor travelling to his or her place of employment.
The court can order the sale of real property to enforce an order for the payment of money.
The 'Twelve-Month' Rule
The 12 month rule is a common law rule which states that maintenance liabilities older than 12 months may not be recoverable in the courts, especially where there has been no application to enforce the liability and no special circumstances apply. The rule is discretionary but has been argued to apply to child support debts.
However, the Full Court of the Family Court in Hides v Hatton (1997) FLC 92-759 stated that the 12-month rule does not apply to:
- the making of departure orders under the CSA Act,
- the payment of maintenance arrears owed for a period greater than 12 months, or
- orders made which have retrospective effect beyond 12 months,
as this law only applied prior to the child support legislation.
A court must not require that there be special circumstances that justify enforcing a maintenance order merely because the maintenance payable under it is more than 12 months in arrears (FL Act section 106).
Contempt of court
FL Act Part VII Division 13A provides sanctions for contravention of orders made under that Act. In particular, a court can imprison a person who contravenes a parenting order for child maintenance by not paying child maintenance.
If a court ordered liability is not registered with the Registrar for collection and remains enforceable by the payee, contravention of the order may lead to the imposition of sanctions under the FL Act, including imprisonment.
However, the law allowing for imprisonment for contravention of a court order does not apply to a person simply because they have not paid child maintenance to the Registrar in accordance with registered liabilities. Where a court ordered liability is registered with the Registrar, a failure to pay the registered liability does not amount to a contravention of the order. Therefore, a person cannot be imprisoned because of failure to pay amounts which arise under a child support liability which is registered for collection.
A liability that is registered with the Registrar for collection will cease to be enforceable by the Registrar if the payee makes an election under section 38A to have the liability and/or arrears no longer enforced. If the payer fails to pay either the current liability or the arrears to the payee directly, that failure may amount to contravention of the court order. This may make the payer liable to imprisonment or other sanction, if the contravention was wilful.
If, after court enforcement action by the Registrar, a liable parent breaches the court order for payment, an action for contempt may be an option open to the Registrar.