5.8.1 Obsolete entries
Some entries in the Register may become obsolete. If a maintenance debt is determined to be obsolete, the Registrar will remove the maintenance debt from the Register and will not collect it.
CSRC Act section 18A, section 41
Obsolete entries in Child Support Register
If the Registrar is satisfied that an entry in relation to an enforceable maintenance liability is obsolete, the entry can be deleted from the Child Support Register in accordance with section 41.
Entries that can be made obsolete
In limited circumstances a maintenance debt registered for collection by the Registrar can become obsolete. Such a decision can be made when all available collection avenues have been explored and there is no prospect of collecting outstanding child support.
Grounds for making an entry obsolete
The entries that can be considered obsolete are limited to:
- overseas maintenance liabilities, or
- a maintenance liability owed by a payer who is deceased.
An entry will only be obsolete if the child support case has:
- a non-pursuit of debt decision was made less than 6 months ago, or
- the case meets the criteria for non-pursuit of debt,
- where the payer is deceased, the outstanding child support cannot be collected because the estate has been finalised (or the payer has died intestate and a court application for Letters of Administration has not, and is unlikely, to be made by anyone), or
- the liability is a registered overseas maintenance liability (other than New Zealand cases), and the payer and payee are not residents of Australia.
The obsolete entry provision can be used to delete some maintenance debts owed by a deceased payer where there is no avenue to collect the debt.
If a payer dies testate (that is, they had a valid Will at the time of their death), the Registrar may collect from the estate via the executor of the estate if there are funds available to address the outstanding debt. Once the estate is finalised and, if the maintenance debt has not been fully paid, then that debt can be considered to be an obsolete entry.
If a payer died intestate (that is, there is no valid Will), a court application for Letters of Administration is required (for a person to administer the estate) if there are any assets to be distributed to beneficiaries. If a payer died 2 or more years ago and no such court application has been, and is unlikely to be made (e.g. the deceased person had no assets) then that debt can be considered to be an obsolete entry.
An entry cannot be obsolete because the payee is deceased. If a payee dies testate, the Registrar may disburse child support collected to the executor of the estate. If a payee dies intestate, a court application for Letters of Administration can be obtained (for a person to administer the estate) and child support collected can be disbursed to the administrator of the estate.
For overseas liabilities that have been registered for collection, an obsolete entry determination can only be made when:
- the payer and payee are no longer Australian residents, and
- the debt is an overseas maintenance liability registered in accordance with section 18A (see 3.6.1 on registrable overseas maintenance liabilities).
A maintenance debt arising from a New Zealand child support liability cannot be obsolete.
If an overseas maintenance debt is determined to be an obsolete entry, the liability will cease to be enforced in Australia but may continue to be owed in the originating jurisdiction.
If the payer or payee returns to Australia then a new application can be made to register the overseas maintenance liability, including any arrears that remain outstanding at that point in time.
Example: The Registrar has registered a court order for child maintenance that was made in the UK. Terry has been residing in Australia and Shannon has always resided in the UK. Terry has recently moved permanently to the USA. The case has ended because neither party reside in Australia. There is $42,074 still owing in child maintenance. There are no options for collecting this debt and a non-pursuit of debt decision was made when the case ended. This outstanding child maintenance can be removed from the Register under section 41.
Debts that cannot be removed using the obsolete entry process
Some debts cannot be removed from the Register as they are not enforceable maintenance liabilities. These are:
- late payment penalties
- estimate penalties
- costs and fines
- consolidated revenue debts, and
- carer debts.
Costs and fines, consolidated revenue debts and carer debts are debts to the Commonwealth and may be waived under the Public Governance, Performance and Accountability Act 2013 (see 6.11 on waiver). However, as a carer debt will be paid to a third party (ie, the payee of the carer debt), these debts are unlikely to be waived.
Late payment and estimate penalties may be remitted or cancelled (see 5.1.6 on late payment penalties).
Enforcement by the payee
The Registrar's decision to remove the debt from the Register because the entry is obsolete does not prevent the payee from taking action privately to recover outstanding child support.
A payer or payee can object to the Registrar's decision to delete an entry from the Register. See 4.1.