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Child Support Arrears - what does it all mean!!

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section 120 of the Assesment Act - 'Pending Proceeding not to affect assesment'

My ex has a section 116 certificate for the arrears which got a little out of hand and is threatening to take me to court to have arrears enforced.

Is there any way out?

She pointed me to s120 of the Assessment Act and says that it means even if I object or try for a departure order that s120 means the court will order me to pay the arrears.

Child Support (Assessment) Act s120 Pending proceeding not to affect assessment

Subject to section 111C of the Registration and Collection Act (Stay orders), the fact that a proceeding is pending under this Division in relation to a person does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to the person, and any such assessment may be registered under the Registration and Collection Act, and amounts of child support and other amounts recovered in relation to the assessment, as if no proceeding were pending.

Is this right? And if so, why can't I find any cases where it is used?? I'm lost between the 'Subject to s111C…' which appears to mean I can apply for a stay etc but then I read the rest of the section which says '..amount recovered in relation to the assessment as if no proceeding were pending' appears to mean the arrears can be enforced anyway. Appears to be plenty of cases where the CSA has gone for arrears - dunno why they haven't gone me yet.

Am I going round in circles?

Is it too late on a Friday night?

Should I be going somewhere else?

It's my first post! Should be able to have a beer for that! Think I will.
There is no way out of eventually paying for the arrears but there are a range of options that you could negotiate with CSA (If you are a CSA customer which it appears you are) on the way they are paid, frequency, amounts, inclusions with current CSA amounts, assets, tangible assets given in lieu of, prepayments of some NAP's depending on care levels etc. There are a range of questions raised that will need looking at before responding to this in any detail. However the old amount can be collected as S120 is clear in that regardless of what other proceedings may be under way its business as usual and existing assessment remains and can be collected regardless of what else might be ordered later on.

A Guest post in another forum "For those that feel the reconciliation is unfair and it's older than 18 months go and apply to the courts for a section 111 (costs very little if you represent yourself) and then have a change of assessment review of the circumstances (be aware you may get a contrary decision that increases rather than decreases your rate)." I think the other party also needs to consider that the amount could well be reviewed, errors could be found and different amounts could be determined. Nothing is ever certain when in the court system as other factors can be taken into account that may well not have been considered earlier.

I will search, at some stage, the CCH library on s120 / 111C and also another resource we have and get back.  

Friday night on a long weekend is always MOST welcome and well done on your first post  :thumbs: .. MikeT might have something to say or Bigred.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

s111C

SECTION 111C STAY ORDERS

111C(1) [When stay orders applicable]

This section applies if a proceeding has been instituted:

    (a) in a court having jurisdiction under this Act; or

    (b) before the Registrar under Part VII; or

    (c  before the SSAT under Part VIIA; or

    (d) under Part 6A or 7 of the Assessment Act.

History

111C(2) [Parties applying for orders]

A party to the proceeding may, subject to the Family Law Act 1975:

    (a) in the case of a proceeding instituted in a courtapply to that court for an order under this section; or

    (b) otherwiseapply to a court having jurisdiction under this Act for an order under this section.

111C(3) [Stay even whilst proceedings pending]

Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.

111C(4) [Revocation of (3)]

The court may, by order, vary or revoke an order made under subsection (3).

111C(5) [Restrictions on order]

An order under subsection (3):

    (a) is subject to such terms and conditions as are specified in the order; and

    (a) operates for:

        (i) such period as is specified in the order; or

        (ii) if no period is specifieduntil a decision of the court, the Registrar or the SSAT determining the proceeding becomes final.

111C(6)

(Repealed by No 82 of 2007, s 3, Sch 1(72), commenced 22 June 2007.)

and

SECTION 120 OBTAINING OF INFORMATION AND EVIDENCE

120(1) [Registrar's powers to obtain information and evidence]

The Registrar may, for the purposes of this Act, by notice in writing, require a person:

    (a) to furnish to the Registrar, within a reasonable period, and in a reasonable manner, specified in the notice, such information as the Registrar requires;

    (b) to attend before the Registrar, or before an officer authorised by the Registrar for the purpose, at a reasonable time and place specified in the notice, and then and there answer questions; and

    (c  to produce to the Registrar, at a reasonable time and place specified in the notice, any documents in the custody or under the control of the person.

120(1A) [Court exercises powers of Registrar]

A court having jurisdiction under this Act may, in a proceeding instituted in the court by a payee of a registered maintenance liability under section 113A to recover a debt due in relation to the liability, exercise all the powers of the Registrar under subsection (1).

History

120(2) [Scales of expenses]

The regulations shall prescribe scales of expenses to be allowed to persons required to attend under this section.

120(3) [Failure to comply]

A person who refuses or fails to comply with a requirement made under subsection (1), or by a court in accordance with subsection (1A), is guilty of an offence punishable on conviction by a fine not exceeding $2,000.

History

120(4) [Capacity to comply]

Subsection (3) applies only to the extent to which the person is capable of complying with the requirement.

History

120(5) [Strict liability]

Subsection (3) is an offence of strict liability.

History

120(6) {Section does not apply to certain persons}

This section does not apply in relation to a person:

    (a) in respect of whom an international maintenance arrangement applies; and

    (b) who is a resident of a reciprocating jurisdiction.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
You need this also

SECTION 113A RECOVERY OF DEBTS BY PAYEES

113A(1) Payee to notify Registrar of intention to institute a proceeding to recover debt.

A payee of a registered maintenance liability may sue for and recover a debt due in relation to the liability if the payee notifies the Registrar in writing of his or her intention to institute a proceeding to recover the debt:

    (a) at least 14 days before instituting the proceeding; or

    (b) in exceptional circumstanceswithin such shorter period as the court allows.

Note: For provisions relating to proceedings instituted under this section, see sections 111F and 111G.

113A(2) Payee to notify Registrar of orders made.

A payee of a registered maintenance liability who has instituted a proceeding in a court to recover a debt in accordance with subsection (1) must give notice to the Registrar, in the manner specified by the Registrar, of any orders (including orders as to costs) made by the court in relation to the payee and the debt due in relation to the liability, within 14 days of the order being made.

Note: Section 16A provides for the Registrar to specify the manner in which a notice may be given.

History

113A(3) [Offence committed]

A payee commits an offence if:

    (a) the court makes an order in relation to the payee and the debt due in relation to the liability; and

    (b) the payee fails to notify the Registrar under subsection (2) of the order being made.

    Penalty: 10 penalty units.

History

113A(4) [Offence of strict liability]

Subsection (3) is an offence of strict liability.

113A(5) [Defence]

It is a defence to a prosecution for an offence against subsection (3) if the person charged proves that the person gave the notice to the Registrar as soon as reasonably practicable after becoming aware of the making of the relevant order.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
My interpretation of "Subject to Section 111C", is that 111C overrides and thus if the court stays payment of arrears then that stay applies.

However I don't think that Section 120 applies to arrears but only to assessments and is basically saying that you would still have to pay the assessable amount, however even then the courts rank higher and if they were to say you pay an amount then that would override the lesser determination of the registrar (CSA).

I think Secretary_SPCA's advice is the one to follow, come to an arrangement to pay what you can. The courts would see this as you trying and likely be seen in a favourable light, the CSA employee would also get some of their collections quota met and the hierarchy will then be able to report to those above them that money has been collected and eventually ministers will be told that FTB payments have been reduced.

A very recent judgement (interim as such) where a stay in collection was granted, which may be of interest, can be found here Delany & Delany

The orders made in this judgment (which by the way, doesn't mention section 120, but does mention 111C) included :-

Delany & Delany said
(4) The operation of the child support agreement made between the parties on 29 October 2007 and registered with the Child Support Agency for collection be stayed and an injunction issue and the Registrar of the Child Support Agency be restrained from collecting all arrears and late payment fees of child support pursuant to the aforesaid agreement which has been registered with the Agency for collection.

(5) The father apply to the Registrar of the Child Support Agency for a provisional assessment of child support pursuant to section 146B of the Child Support (Assessment) Act 1989 within seven (7) days of these orders.

(6) The father pay the mother child support in respect of the children (X) born in 2001 and (Y) born in 2006 to be calculated in accordance with the notional assessment of child support referred to in order (5) hereof from 1 March 2009 onwards together with one half of the child (X)s school fees to attend (S) School from term one 2009 onwards.
My advice is that you organise a face to face interview with CSA as soon as possible.  Go prepared with a letter outlining how you see your circumstances and suggesting a reasonable offer to repay the arrears plus deal with ongoing liability.  You could also include any circumstances where you think you may have grounds for a reduction in liabillty, such as non credited non agency payments - most payers who retain an interest in their kids live have lots, mostly unclaimed.

I am aware of a few recent cases where this approach has been taken that have had positive otcomes for the payer, ie reductions in liability.  Do not, however, get sucked in  by the lure of an etimate or a change of assessment - the outcom are too variable and often just defer a bare knuckled brawl.

Remember it is not in CSA's interest to push you to the wall unless you jerk them around.   
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