5.4.7 Payee's Right to Enforce Debt Via Court Proceedings
Once a registrable maintenance liability is registered for collection by the Registrar, the debts arising under the liability are debts due by the payer to the Commonwealth, rather than to the payee. Payment of these debts is generally only enforceable by the Registrar. However, from 1 January 2007, the payee of a registered maintenance liability can bring court proceedings to recover amounts owed by the payer to the Registrar.
CSRC Act section 30, section 105, section 111E, section 111F, section 111G, section 113, section 113A, section 120
In most cases, the Registrar is solely entitled to and responsible for collecting a registered maintenance liability. The payer may voluntarily make payments directly to the payee or a third party in the form of non-agency payments (5.3.1); however, the payee of a registered maintenance liability may not enforce payments under that liability except by instituting court proceedings under CSRC Act section 113A (section 30(3)).
Prior notice to the Registrar
A payee must give prior notice to the Registrar of his or her intention to institute court proceedings. The notice must be in writing (including by email or facsimile) and given to the Registrar at least 14 days before the payee files his or her application in the court, unless the court allows for a shorter period because of exceptional circumstances (section 113A(1)).
In which court may the payee institute proceedings?
The payee can choose to enforce the debt under the FL Act, or take civil action to recover the debt (section 113(1)).
Civil action involves obtaining judgment, and then enforcing the judgment through the court.
Proceedings under the FL Act may be brought in any court with family law jurisdiction including the Federal Circuit Court and State, Local and Magistrates Courts. The Family Law Act and 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 (section 105).
Parties to the proceedings
The payee and payer are the parties to proceedings brought by the payee under CSRC Act section 113A. Child Support will not normally be involved, however, the Registrar has a discretion to intervene in payee enforcement proceedings (section 111E).
The Commonwealth is not liable for costs in enforcement proceedings brought by the payee unless the Registrar is involved as a party (section 111G). If the Registrar is involved, the court would decide, upon application from the parties, whether to order costs against the Registrar or any other party.
Payments pursuant to orders
Where the court orders the payer to make a payment, that payment must be made to the Registrar. The Registrar must pay the amount received from the payer in accordance with the order to the payee as soon as practicable (section 111F).
Court's power to obtain information
In payee enforcement proceedings, the court may exercise the Registrar's powers to obtain information and evidence for the purposes of the CSRC Act (6.2.4) (sections 120(1) and 120(1A)).
Payee must notify the Registrar of any orders
The payee is obliged to provide the Registrar with notice within 14 days of the court making any order in relation to the payee and the debt (including orders about costs, which are not collectable by the Registrar) (section 113A(2)).
Notice may be provided to the Registrar in writing (including via email or facsimile), personally or via telephone.
It is an offence if the payee fails to notify the Registrar that a court order has been made in relation to the payee and the debt due in relation to the liability (section 113A(3)).