5.5.4 Suspending Payments to Payees

Context

If a payer applies to a court for a declaration that the payer should not be assessed in respect of the costs of a child because the payer is not a parent of the child concerned, the Registrar must suspend payments to the payee while the court considers the application.

The Registrar has the discretion to suspend payments to the payee while considering the payer's objection to the validity of a child support assessment for reasons other than the parentage of the child concerned. The Registrar may also exercise this discretion to suspend payments to the payee while a court or the AAT considers a payer's application in proceedings challenging the validity of the child support assessment for reasons other than the parentage of the child concerned.

Act references

CSA Act section 107, section 144

CSRC Act section 79A, section 79B, section 79C, section 110W

AAT Act Part IVA

Family Law Rules 2004 rule 4.23

Suspension determination pending a payer's application to court about parentage

A payer can apply to a court for a declaration that they should not be assessed in respect of the costs of a child because he or she is not a parent of that child (a declaration under CSA Act section 107). See 4.3.2 for more information. A payer must serve a copy of their application for a section 107 declaration upon the Registrar (Family Law Rules 2004 rule 4.23).

Unless the court grants a stay order (4.3.6), the payer is obliged to continue making child support payments for the child pending the court's decision. However, when the Registrar is notified about the payer's application to court for a declaration under section 107 for a child, the Registrar is obliged to suspend payments to the payee for that child (CSRC Act section 79A).

While the suspension remains in force, the Registrar will not disburse to the payee any payments received from the payer for the child who is the subject of the payer's application. The Registrar will hold these payments in credit on the payer's account. The Registrar will continue to disburse to the payee any amounts that relate to any other child (or children) for whom the payer is liable to pay child support.

Example: M has a child support assessment for 2 children, A and B, payable to F. M applies to a court for a section 107 declaration in relation to child support payable for B. The Registrar makes a suspension determination that results in F being paid a proportion of the child support received from M, and the remainder being held in the Account. This proportion is calculated by comparing the child support that would be payable for 1 child with the child support payable for 2 children.

The Registrar cannot make a 'partial' suspension determination. The Registrar must hold all child support for the child subject to the section 107 application when a suspension determination is made.

Suspension determination pending a payer's objection or application to the AAT or a court about the validity of the assessment on other grounds (i.e. not parentage)

The Registrar may make a suspension determination if a payer objects or applies to the AAT to review the validity of the Registrar's assessment on any of the following grounds (CSRC Act section 79B(1)(a)):

  • that the child was not a child for whom an application for an administrative assessment of child support was entitled to be made,
  • that the applicant was not a person entitled to make an application for the child, or
  • that the payer was not a resident of Australia.

The Registrar may also make a suspension determination if the payer has applied to a court for review of a decision made by the AAT in relation to the payee's entitlement to an administrative assessment of child support for a child (section 79B(1)(b)).

The Registrar will consider making a suspension determination in a case where the payer has objected or applied to the AAT or a court about the validity of the assessment on a ground other than parentage only when requested to do so by the payer. In deciding whether a suspension determination is appropriate, the Registrar will take into account:

  • the merit of the payer's objection or application,
  • the particular circumstances of the individual case (including the interests of the payer, the payee and the child for whom child support is payable), and
  • the objects of the CSRC Act (1.3.2).

Resumption determinations

The Registrar can resume payments to the payee for the child by making a resumption determination.

The Registrar is obliged to make a resumption determination when:

  • a court has finally refused the payer's application or it has been withdrawn, struck out or dismissed, or
  • the Registrar or AAT has finally refused the objection or application or it has been withdrawn or dismissed (CSRC Act section 79A(3) in the case of an application for a declaration under CSA Act section 107 or section 79B(3) for an objection, AAT application or application to court for review of a decision made by the AAT in relation to the payee's entitlement to an administrative assessment of child support for a child).

The Registrar has discretion to make a resumption determination in circumstances other than those set out above. The Registrar will consider doing so only when requested to do so by the payee. In deciding whether a resumption determination is appropriate in circumstances other than those set out above, the Registrar will take into account:

  • the merit of the payer's objection or application,
  • the particular circumstances of the individual case (including the interests of the payer, the payee and the child for whom child support is payable), and
  • the objects of the CSRC Act (1.3.2).

When the Registrar makes a resumption determination, the payee must be paid any child support retained as a result of the suspension (CSRC Act sections 79A(3)(d) or 79B(3)(d)). The particulars of the Child Support Register must be varied to give effect to the resumption determination (CSRC Act section 79C(2)).

When a refusal becomes final

The Registrar is obliged to make a resumption determination when the Registrar, the AAT or a court has finally refused the payer's application (CSRC Act section 79B(3)).

If an application for an AAT first review of an objection decision is not made within the time for doing so, the objection decision becomes final at the end of that period (CSRC Act section 110W(4)). The usual time restrictions on making an application to the AAT do not apply for a care percentage decision (CSRC Act section 90(1)).

Where an AAT first review decision has been made and the next right of appeal is to a court, if an appeal to court is not made within the period for doing so, the AAT first review decision becomes final at the end of that period (CSRC Act section 110W(1)).

Where an AAT first review decision has been made, and an application can be made through the AAT for a second review, if the application is not made within the time for doing so, the first review decision becomes final at the end of that period (CSRC Act section 110W(1A)).

A decision of a court is final if an appeal is not made within the time for doing so, or in the case of a decision of the Full Court of the Family Court, no application for special leave to appeal to the High Court has been made within 30 days of the decision (CSA Act section 144 in the case of an application for a declaration under CSA Act section 107 or CSRC Act section 110W(2) or (3)).

Notification

The Registrar will provide written notice to the payer and payee when:

  • a suspension determination is made, and
  • a resumption determination is made.

The Registrar will include information in the notice about each parent's right to object to that decision.

Objection rights

The Registrar must vary the particulars of the Register when a suspension determination or a resumption determination is made (CSRC Act section 79C). A parent can object to either of these decisions (see 4.1).

A parent cannot object to the Registrar deciding not to make a suspension determination or a resumption determination as these are not appealable refusal decisions (CSRC Act section 4(1)). The payer can apply to court for a stay order if the Registrar has refused to make a suspension determination (see 4.3.2 for a stay order pending a court decision on a payer's application for a declaration under CSA Act section 107 and 4.3.6 for information about stay orders pending review of a decision made by the AAT in relation to the payee's entitlement to an administrative assessment of child support for a child).

If the Registrar allows a payee's objection to a suspension determination, the suspension determination is considered never to have been made. It is not necessary for the Registrar to make a formal resumption determination. The Registrar will simply vary the Register to give effect to the objection decision.

Last reviewed: 1 July 2015