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Enforcing a child support debt

Child support at the Department of Human Services has extensive administrative powers to recover unpaid child support.

If the parent who owes child support refuses to co-operate with Services Australia Child support, Services Australia Child support will take enforcement action to recover the debt. The enforcement action they will take depends on the amount owed, the financial circumstances of the payer parent and their level of co-operation. They have considerable enforcement powers that they can use without having to take the matter to court. Before taking these steps, Services Australia Child support will usually try to negotiate payment of the debt.

To enforce the debt, Services Australia Child support may:

  • require the payer's employer to take money from their wages
  • intercept the payer's tax return payment
  • prevent the payer from leaving the country with a Departure prohibition order (DPO)
  • deduct money from the payer's bank account
  • make deductions from any Centrelink income support payments or payments from Veterans Affairs
  • get payments from third parties
  • take the payer to court if other ways of recovering money fail
  • prosecute a person who tries to conceal income to avoid paying child support.

See Child Support Guide—Part 5: Collecting child support(opens in a new window).

Payer has no money enforcement can be delayed

If Services Australia Child support cannot get money when it is due the debt stays on their records and can be pursued at a later date, even after the children have turned 18.

Payments direct from wages

Services Australia Child support can collect enforceable child support payments through deductions from salary or wages. This process is sometime referred to as a garnishee. These regular deductions may also include outstanding debts.

To start collecting through an employer, Services Australia Child support will send a notice to the payer's employer. A copy of the notice will be sent to the payer and they will be given a chance to respond before payments are levied through their wages.

The employer must make sure that they are not deducting the full amount if this would leave their employee with less than the protected amount in their pay each week.

The protected amount is calculated as a 75 % of the Newstart allowance. This is $372.53 each week for the 2019 year.

If the employer fails to pay the money as required they may be penalised.

See '5.2.3 Collection from salary and wages' and Child Support Guide—5.2.4 Employer Obligations for collection from salary or wages(opens in a new window).

Tax returns

All people who pay or get child support are required to lodge a tax return. Even if a parent has a low income, they may be required to lodge a non-lodgement advice to the Australian Taxation office. This is because a person's tax return forms the starting point for a person's child support assessment.

If a tax return is not lodged then Services Australia Child support could make an assessment based on a person's provisional income, this is like a guess usually based on previous tax returns.

See '5.2.8 Tax refund intercepts' in Child Support Guide—Part 5: Collecting child support(opens in a new window).

Departure prohibition orders (DPOs)

If a person has:

  • overdue child support
  • refused to work with Services Australia Child support to pay this, and
  • plans to travel overseas

Child support may make an administrative order to prevent a person from leaving Australia until they have repaid the debt. Sometimes a payer will not know about this until they are stopped at the airport. No court order is needed.

If a person has a departure prohibition order placed against them they must contact Services Australia Child support to discuss their options. It may be possible to negotiate with the department.

Options could include:

  • making an arrangement to pay their overdue child support,
  • making travel conditional on some arrangement
  • providing a security or bond (payment) for their return to Australia, or
  • seeking permission to leave under humanitarian grounds.

It is unlikely that VLA funding will be available for a person who is in this situation. The rationale is that if they have money to travel overseas, then they are unlikely to meet our funding criteria.

See '5.2.11 Departure prohibition orders' in Child Support Guide—Part 5: Collecting child support(opens in a new window).

Payer who has been served with a court application

If a payer calls to say that they have been served with a court application from the Enforcement List of the Federal Circuit and Family Court threatening to sell their home, they should be referred to the VLA Child Support to apply for a grant of aid. Merits will have to be carefully assessed. The fact that the debt is being enforced in this way means that there are assets and therefore VLA has to be sure that they would meet the assets test for a grant of aid.

This is where the Services Australia child support is taking action to enforce collection of unpaid child support that has been registered with them. This may happen if debts have mounted up unpaid, and Services Australia Child support has identified a source of funds to enforce collection of the arrears.

Generally, Services Australia child support will not bring an action in court unless the debt is more than $10,000 and other ways of trying to recover the debt have been unsuccessful. Usually this happens when the payer parent has property such as a house or land.

At court, Services Australia child support will always seek an order for costs. Therefore, the payer parent will have to pay for Services Australia legal costs as well as the unpaid child support.

One day every 2 months there is a duty list at the Federal Circuit and Family Court for child support enforcement. This as just been introduced in 2019. Some of these debts have been considerable, $50,00 or $100,000. Services Australia Child support will get an order for sale and seizure of the property.

Also, VLA would need to the circumstances of how the arrears came about. if the debt was properly assessed and the payer made no attempts to pay the money owed, just thought it would go away, then there may be no grounds on which to challenge the proposed order, then there may be no merit.

Possible challenges

The VLA Child Support team would look carefully to see if there is any way to reduce the amount of arrears. This is usually done by checking all of the assessments made by Services Australia Child support. For example, was the payer out of work for periods of time, or unwell and unable to work? If they failed to notify the Services Australia Child support about this, then it may be possible to reduce the amount owed.

More information

Legislation

Child Support (Registration and Collection) Act 1988 (Cth)

  • s. 24A—Child support to register a child support debt after an assessment is made
  • s. 38—variation of register to have enforceable maintenance liability no longer enforced under the Act
  • s. 38A—election by payee or by payee and payer jointly
  • s. 38B—decision by Child support based on payment record and other factors
  • s. 38C—election not to enforce—registered maintenance liability
  • s. 39—application for variation to again make the payments enforceable under the Act
  • s. 68—remission of penalty
  • s. 72D—departure prohibition orders
  • Part 4—collection by deduction through salary or wages

See Child Support (Registration and Collection) Act 1988 (Cth)(opens in a new window).

Child Support (Registration and Collection) Regulations 2018 (Cth)

  • r. 9—amount of wages that are protected from employer collection

See Child Support (Registration and Collection) Regulations 2018 (Cth)(opens in a new window).

Reference

Child Support Guide

The Commonwealth Services Australia (formerly Department of Human Services) has produced a detailed guide designed to assist lawyers to support clients with the child support scheme. It is used by practitioners and includes information about assessments, collection of child support, administration and seeking a review of Services Australia Child support's decision.

See:

Updated