5.1.4 Collection of arrears accrued during non-collect period
A payee who elected not to have DHS collect maintenance for them when they applied for a child support assessment, or notified DHS of a court order or court registered agreement can later apply for collection. They can also apply for DHS to collect arrears.
CSRC Act section 18A, 28A
On this page
- Application for collection of arrears
- Exceptional circumstances
- International maintenance liabilities
- Evidence to show exceptional circumstances
- Calculating amounts unpaid
Application for collection of arrears
A payee who previously elected not to have their liability registered for collection can later apply for registration. The Registrar must register that liability for collection. The payee can also apply for DHS to collect arrears for them (section 28A).
The Registrar must accept the payee's application for collection of the amounts the payer has not paid in the 3 months immediately before the date the liability first becomes enforceable. The Registrar will need to be satisfied that the amounts have actually not been paid.
A payee may also apply for collection of amounts unpaid by the payer for 9 months before the liability first becomes enforceable. This is called the maximum arrears period. If there are amounts unpaid for this period and the Registrar is satisfied that there are exceptional circumstances, the application must be granted.
If the Registrar grants the payee's application, the unpaid amounts become a child support debt and the Register will be varied to show that the payer owes these unpaid amounts.
Whether circumstances are exceptional will depend on the facts in each particular case. The circumstances must be unusual in some way. They may be circumstances beyond the control of the payee that prevented them from applying for collection within a reasonable period. The Registrar will consider the effect of the particular circumstances on the payee and the extent to which they contributed to the payee's delay in applying for collection.
The following are examples of circumstances that the Registrar may consider exceptional. This is not an exhaustive list and each case must be considered on its merits.
- The payer threatened or pressured the payee not to apply for registration for DHS collection (see also 6.10).
- The payee was ill or had an accident that stopped them from applying for collection.
- The payee suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the payee's property.
- The payee had communication difficulties because of, or including, isolation, illiteracy or poor English language skills.
- The payer created a false expectation of payment (e.g. they promised to pay a lump sum from the proceeds of the sale of property or a compensation settlement).
- The parents were involved in negotiations over child support and/or other matters and applying for collection may have compromised those negotiations.
In some cases payees may apply for collection after the Registrar amends a child support assessment retrospectively so that there are significant arrears arising (e.g. it may replace a default income or reconcile an estimate of income). These arrears arise through the ordinary operation of the Act and are not an exceptional circumstance even if the payee was unaware of any change in the payer's circumstances.
International maintenance liabilities
An amount of arrears arising under a registrable overseas maintenance liability (3.6.1) can be registered with DHS for collection. This type of liability is not limited to 3 or 9 months (section 18A(4)).
Evidence to show exceptional circumstances
The payee must provide suitable evidence for the Registrar to find there are exceptional circumstances. For example, if the payee states that the payer threatened or pressured them they may provide evidence from a person fully aware of the nature and details of the circumstances such as a doctor, social welfare worker or police officer.
In the case of illness, accident or psychiatric condition, the payee should provide written confirmation from a medical practitioner. In other cases, the payee must supply a full and detailed explanation supported by appropriate evidence.
The Registrar must provide the payer with an opportunity to comment on information the payee provided to DHS if that information is being taken into account to make a decision to grant an application for a maximum arrears period.
Calculating amounts unpaid
In some cases parents may provide conflicting information about payments made during the relevant arrears period. If there is a dispute over the amount of unpaid child support, the Registrar will make reasonable investigations before reaching a decision on the amount owing in the arrears period. This would include contacting both parents to seek details of payment dates and amounts, the period to which the payments apply, and any supporting evidence that supports their claims.
Supporting evidence may include:
- bank statements showing amounts transferred from the payer to the payee
- bank statements recording the withdrawal of the amount paid to the payee for child support
- receipts from the payee
- other records, such as letters or emails, about payments made or owing in the arrears period.
The Registrar will take into account any amounts that the payer has previously paid that would qualify as a prescribed non-agency payment (5.3.1) when calculating the amounts unpaid. If the payer has paid 70% of the liability directly to the payee, the Registrar will credit towards the remaining 30% of the liability any further amounts that would qualify as prescribed non-agency payments.
If the parents do not agree and the Registrar cannot be satisfied based on the information and evidence available that payment was made for some or all of the arrears period being claimed, the arrears claim will be accepted.