The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

3.4.4 Joint election to suspend collection after a change in care

Context

An Australian court order or court registered agreement for child maintenance (CSRC Act section 17(1)), that gives rise to an enforceable maintenance liability, does not stop being in force when the child leaves the payee's care, unless this is specifically stated in the order or agreement. The payer and payee, however, can make a joint election for the Registrar to suspend collection of the amounts payable for the child. Such an election can only be made in respect of liabilities that are registrable maintenance liabilities under section 17(1). An election under section 39B to suspend collection after a change in care cannot be made in relation to liabilities that arise under a child support assessment (section 17(2)) or assessments varied by a court order. See 2.8 for information about court variation to assessments.

Act reference

CSRC Act section 17, section 39B

On this page

A court order or a court registered agreement for child maintenance does not end when the payee ceases to provide ongoing daily care for the child, unless this is specifically stated in the court order or agreement. Therefore, a liability of this type does not usually end when the Registrar is advised that the child for whom child support is payable has left the payee's care.

A payer can apply to a court for a variation to the order in these circumstances. If a court varied the order, the Registrar would amend the Register accordingly.

However, there is also a simple administrative way for parents to deal with this situation. A payer and payee can make a joint election for the Registrar to suspend collection of the liability during a period when the child is not in the payee's care (section 39B).

Registrable overseas maintenance liabilities

An election under section 39B to suspend collection after a change in care cannot be made in relation to a registrable overseas maintenance liability (3.6).

Who can apply to have the liability not enforced?

The payer and the payee can make a joint election (section 39B(3)). The payer cannot make an election alone, nor can the payee.

When can a payer & payee make a joint election?

The payer and payee can make their joint election at any time during the 'overall non-care period'. The overall non-care period:

  • starts when the payee ceases to be the main provider of ongoing daily care for the child, and
  • ends when the payee resumes being the main provider of ongoing daily care, or when the liability ends if that happens first (section 39B(2)).

A payer and payee cannot make a joint election after the payee has resumed being the main provider of ongoing daily care for the child.

For what period is the liability suspended?

The Registrar will suspend collection from the date the payee ceased to be the main provider of ongoing daily care for the child, as long as the payer and payee made their joint election to the Registrar within 28 days of that date. Otherwise, the Registrar will suspend collection from the date the payer and payee made their joint election (section 39B(3)).

A joint election has no effect if the suspension period is included in an existing low-income non-enforcement period (3.4.5).

Can the liability be suspended for only one child?

The payer and payee must make an election for a particular child or children for whom child maintenance is payable. The Registrar will suspend collection of the entire liability if the election is made for the only child, or all the children covered by the order or agreement. If the election is made for one, or some, of the children, the Registrar will not enforce amounts attributable to that child (or those children), but the payer must continue paying the liability for the other children who remain with the payee (section 39B(4)).

What if the child returns to the care of the payee?

The payer or payee can elect for the Registrar to resume collecting the liability for the child when the child returns to the payee's care (section 39B(5)). The Registrar will resume collection from the date the payee resumed ongoing daily care of the child, as long as the election was made within 28 days of that date. Otherwise, the Registrar will resume collection from the date of the election (section 39B(6)).

The election to have the liability enforced again will not take effect if at that time the liability is not enforceable because of a low-income non-enforcement period (3.4.5).

Example: Oscar (payer) calls Services Australia on 23 March to say that child Noah is now living with Oscar's parents. Noah left Jody's (payee) care on 15 March. Oscar is advised that Oscar and Jody can make a joint election for the Registrar to suspend collection of the liability for Noah, otherwise the Registrar must continue to enforce the child maintenance order. Oscar contacts Jody and together they call Services Australia on 25 March to make a joint election. The Registrar suspends collection from 15 March when Noah ceased living with Jody, because Oscar and Jody made their joint election within 28 days of that date.

Example: Ester (payer) calls Services Australia on 23 March to advise that child Xavier left the care of Zach (payee) on 25 November. Zach is advised that Zach and Ester can make a joint election for the Registrar to suspend collection of the liability for Xavier, otherwise the Registrar must continue to enforce the child maintenance order. Ester and Zach have no contact. Ester asks Services Australia to contact Zach about the change in care. Zach confirms the change in care on 24 March and makes an election for the Registrar to suspend collection of the liability for Xavier. As both parties have made the election there is now a joint election, effective from 24 March, the date that the joint election is complete. The election was made more than 28 days after Xavier left Zach's care, so the Registrar suspends collection from 24 March, the date of the joint election. Ester can apply to court for a variation to the court order to deal with amounts payable between 25 November and 23 March.

Frequently asked questions

Can the Registrar suspend collecting a court ordered child maintenance liability when it has confirmed that the child is not in the payee's care, even though it is unable to contact the payee?

The Registrar can only suspend collection of a liability for a period when the child is not in the payee's care if both the payer and the payee make a joint election. If the payee cannot be contacted, or if the payee does not wish to make an election, the paying parent would need to make an application to court to have the order or court registered agreement varied.

A payer advises that the child was not in the care of the payee for 6 months, but has now returned to the payee's care. Can the liability be suspended for those 6 months?

No. The election for a non-care non-enforcement period must be made during the 'overall non-care period'. This period ends when the child returns to the payee's care and the administrative option is no longer available after that time.

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