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CSA Payee Needing to take own Court Action

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I have a 6 year old child from my former partner. We split when I was pregnant and the ex has at his own request never had any form of relationship with the child. Child Support has been registered as CSA collect from the day it started. I registered with CSA when my son was 2 weeks old.

The child has special needs and we have been through numerous COA's- the first Registrar initiated then the others done my me. The ex has never formally responded to any of these applications and has alwasy refused to supply requested documentation regarding his pay arrangements.

The ex is an employee in a family run business. He does not have a personal bank account. All bills such as rent and electricity are paid directly by the business and he gets a cash sum each week as spending money. The CSA have a 72a in place with the employer (the family) but it is not being complied with.

It has come to the point where I now need to lodge my own court action to try to get some much needed child support for my son. Due to his special needs I am unable to work a full time job but do work 4 casual jobs and have income supplemented by Centrelink payments. I am unable to afford a family law solicitor to complete the required paperwork.

I went to the court registry but was not given a clear answer as to what forms to lodge.

I would like to get an Enforcement Summons issued to my ex to get him in front of a magistrate to get some answers as to why he is not paying child support. He lives in a rented home (about $500 per week in rent, owns a car, drives a long way to work in  v8 CAR(LOTS OF $ IN PETROL), and is at the pub every night- mostly only drinking 4 beers a go, more on weekends, has food, business clothes etc… but is not able to pay ANY child support……

I would like to eventually get a 3rd party debt notice issued to his employer- I think that this is easier to enforce than a 72a which the CSA do not want to go further with.

I think that I will also need to subpoena the employer, pay records, tax returns (he has not lodged for a few years) and some business financials to prove that he is avoiding Child Support. He has a very nice lifestyle whislt I work 4 jobs to support a child on my own.

Can anyone please give me a list of the forms required to get this process happening? I was given different answers when I went to the registry as to what I am reading online and different answers again when I called the telephone help line.
I think that the correct place to look is in Division 25B.2 (Enforcement of financial orders and obligations) the "Federal Magistrates Court Rules 2001 - Statutory Rules 2001 No. 195 as amended -made under the - Federal Magistrates Act 1999" :

Division 25B.2      Enforcement of financial orders and obligations

Federal Magistrates Court Rules 2001 - Division 25B.2 - Enforcement of financial orders and obligations said
Subdivision 25B.2.1   General

25B.05   Application

                This Division applies to family law and child support proceedings.

Note   This Division is a modified form of Chapter 20 of the Family Law Rules 2004.

25B.06   Interpretation

         (1)   In this Division:

enforcement officer, for the purpose of enforcing an order, includes:

                (a)    the Sheriff or a delegate of the Sheriff; and

               (b)    an officer of the Court or a person appointed by the Court.

financial statement has the same meaning as in rule 24.02.

         (2)   Subject to a contrary intention, a word or expression used in this Division that is also used in the Family Law Rules has the same meaning in this Division as it has in those Rules.

Note   The following words or expressions used in this Division are defined in the Dictionary at the end of the Family Law Rules:

      child support liability

      enforcement order

      Family Court



      sealed copy

      Third Party Debt Notice

      third party debtor.

25B.07   Enforceable obligations

         (1)   The following obligations may be enforced under this Division:

                (a)    an obligation to pay money;

               (b)    an obligation to sign a document under section 106A of the Family Law Act (see Subdivision 25B.2.7);

                ©    an order entitling a person to the possession of real property (see Subdivision 25B.2.7);

               (d)    an order entitling a person to the transfer or delivery of personal property (see Subdivision 25B.2.7).

         (2)   For paragraph (1) (a), an obligation to pay money includes:

                (a)    a provision requiring a payer to pay money under:

                          (i)    an order made under the Family Law Act, the Assessment Act or the Registration Act; or

                         (ii)    a registered parenting plan; or

                        (iii)    an award made in arbitration and registered under section 13H of the Family Law Act; or

                        (iv)    a maintenance agreement registered under subsection 86 (1) of the Family Law Act; or

                         (v)    a maintenance agreement approved under section 87 of the Family Law Act; or

                        (vi)    a financial agreement or termination agreement under Part VIIIA of the Family Law Act; or

                       (vii)    a financial agreement under Part VIIIAB of the Family Law Act or a termination agreement under Part VIIIAB of the Family Law Act; or

                      (viii)    an agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Family Law Act; or

                        (ix)    an overseas maintenance order or agreement that, under the Family Law Regulations, is enforceable in Australia; and

               (b)    a liability to pay arrears accrued under an order or agreement; and

                ©    a debt due to the Commonwealth under section 30 or 67 of the Registration Act; and

               (d)    a child support liability; and

                (e)    a fine or the forfeiture of a bond; and

                (f)    costs, including the costs of enforcement.

         (3)   For paragraph (1) (a), an obligation to pay money does not include an obligation arising out of costs for work done for a fresh application payable by a person to the persons lawyer.

Note   For enforcement of lawyer-client costs for a fresh application, see the State or Territory legislation governing the legal profession in the State or Territory where the lawyer practices.

         (4)   This Division applies to an agreement mentioned in paragraph (2) (a) as if it were an order of the Court in which it is registered or taken to be registered.

25B.08   When an agreement may be enforced

                A person seeking to enforce an agreement must first obtain an order:

                (a)    for an agreement approved under section 87 of the Family Law Act  under paragraph 87 (11) © of the Family Law Act; or

               (b)    for a financial agreement  under paragraph 90KA © of the Family Law Act.

Note   A party seeking to enforce an order made in another court or registry, must first register a copy of the order (see subsection 105 (2) of the Family Law Act). A payee must obtain the Courts permission to enforce an order against a deceased payers estate (see subsection 105 (3) of the Family Law Act).

25B.09   When a child support liability may be enforced

         (1)   This rule applies to a person seeking to enforce payment of a child support liability that is not an order and is not taken to be an order.

         (2)   Before an enforcement order is made, the person must first obtain an order for payment of the amount owed by filing:

                (a)    an application in a case and an affidavit setting out the facts relied on in support of the application; and

               (b)    if the payee is the Child Support Agency or is seeking to recover a liability under section 113A of the Registration Act  a certificate under section 116 of the Registration Act.

         (3)   A payee who seeks to recover a child support liability in his or her own name under section 113A of the Registration Act must attach to the affidavit filed with the application a copy of the copy notice, given to the Child Support Agency, of his or her intention to institute proceedings to recover the debt due.

Note 1   After the Court has ordered payment of the amount owed, it may immediately make an enforcement order (see rule 25B.11).

Note 2   A payee who is enforcing a child support liability must notify the Registrar in writing of his or her intention to institute proceedings to recover the debt due (see subsection 113A (1) of the Registration Act).

25B.10   Who may enforce an obligation

                The following persons may enforce an obligation:

                (a)    if the obligation arises under an order (except an order mentioned in paragraph ©)  a party;

               (b)    if the obligation arises under an order to pay money for the benefit of a party or child:

                          (i)    the party or child; or

                         (ii)    a person entitled, under the Family Law Act or Family Law Regulations, to enforce the obligation for the party or child;

                ©    if the obligation is a fine or an order that a bond be forfeited  the Sheriff of the Court, a Deputy Sheriff of the Court or an officer of the Court;

               (d)    if the obligation is a child support liability  a person entitled to do so under the Registration Act.

Note   The payee of a liability may enforce an obligation  see section 113 of the Registration Act.

25B.11   Enforcing an obligation to pay money

                An obligation to pay money may be enforced by one or more of the following enforcement orders:

                (a)    an order for seizure and sale of real or personal property, including under an Enforcement Warrant (see Subdivision 25B.2.3);

               (b)    an order for the attachment of earnings and debts, including under a Third Party Debt Notice (see Subdivision 25B.2.4);

                ©    an order for sequestration of property (see Subdivision 25B.2.5);

               (d)    an order appointing a receiver (or a receiver and manager) (see Subdivision 25B.2.6).

Note   The Court may imprison a person for failure to comply with an order (see section 112AD of the Family Law Act). Division 25B.1 sets out the relevant procedure.

25B.12   Affidavit to be filed for enforcement order

                If these Rules require a person seeking an enforcement order to file an affidavit, the affidavit must:

                (a)    if it is not required to be filed with an application  state the orders sought; and

               (b)    have attached to it a copy of the order or agreement to be enforced; and

                ©    set out the facts relied on, including the following:

                          (i)    the name and address of the payee;

                         (ii)    the name and address of the payer;

                        (iii)    that the payee is entitled to proceed to enforce the obligation;

                        (iv)    that the payer is aware of the obligation and is liable to satisfy it;

                         (v)    that any condition has been fulfilled;

                        (vi)    details of any dispute about the amount of money owed;

                       (vii)    the total amount of money currently owed and
any details showing how the amount is calculated, including:

                                   (A)     interest, if any; and

                                   (B)     the date and amount of any payments already made;

                      (viii)    what other legal action has been taken in an effort to enforce the obligation;

                        (ix)    details of any other current applications to enforce the obligation;

                         (x)    the amount claimed for costs, including costs of any proposed enforcement; and

               (d)    be sworn no more than 2 days before it is filed.

Examples for paragraph (a)

1   An Enforcement Warrant.

2   A Third Party Debt Notice.

3   An order for filing and service of financial statement.

4   An order for production of documents.

25B.13   General enforcement powers of Court

                The Court may make any of the following orders:

                (a)    an order declaring the total amount owing under an obligation;

               (b)    an order that the total amount owing must be paid in full or by instalments and when the amount must be paid;

                ©    an order for enforcement (see rule 25B.11);

               (d)    an order in aid of the enforcement of an obligation;

                (e)    an order to prevent the dissipation or wasting of property;

                (f)    an order for costs;

               (g)    an order staying the enforcement of an obligation (including an enforcement order);

               (h)    an order requiring the payer to attend an enforcement hearing;

                (i)    an order requiring a party to give further information or evidence;

                (j)    an order that a payer must file a financial statement;

               (k)    an order that a payer must produce documents for inspection by the Court;

                (l)    an order dismissing an application;

              (m)    an order varying, suspending or discharging an enforcement order.

Note   For the collection of child support, the Court has general powers set out in section 111B of the Registration Act.

25B.14   Enforcement order

         (1)   An enforcement order must state:

                (a)    the kind of enforcement order it is (see rule 25B.11); and

               (b)    the full name and address for service of the payee; and

                ©    the full name and address of the payer; and

               (d)    the total amount to be paid.

Note   A document filed in or issued by the Court must meet the requirements set out in Division 2.1.

         (2)   For paragraph (1) (e), a statement about the total amount to be paid must include:

                (a)    the amount owing under the obligation to pay money; and

               (b)    the amount of interest owing, if any; and

                ©    any costs of enforcing the order.

25B.15   Discharging, suspending or varying enforcement order

         (1)   A party to an enforcement order may apply to the Court at any time to discharge, suspend or vary the order.

Note   An application under this subrule must be in an application in a case (see rule 4.08).

         (2)   An application under subrule (1) does not stay the operation of the enforcement order.

Subdivision 25B.2.2   Information for aiding enforcement

Note   The duty of disclosure set out in rule 24.03 applies to a party to an enforcement application.

25B.16   Processes for obtaining financial information

         (1)   Before applying for an enforcement order, a payee may:

                (a)    give a payer a written notice requiring the payer to complete and serve a financial statement in accordance with the approved form within 14 days after receiving the notice; or

               (b)    by filing an application in a case and an affidavit that complies with rule 25B.12, apply for an order, without notice to the respondent:

                          (i)    requiring the payer to complete and file a financial statement in accordance with the approved form; or

                         (ii)    requiring the payer to disclose information or produce to the payee copies of documents relevant to the payers financial affairs.

         (2)   A Registrar may hear an application under subrule (1), in chambers, in the absence of the parties, on the documents filed.

25B.17   Enforcement hearing

         (1)   A payee may, by filing an application in a case and an affidavit that complies with rule 25B.12, require:

                (a)    the payer; or

               (b)    if the payer is a corporation  an officer of the corporation;

to attend an enforcement hearing.

         (2)   The payee may require the payer to produce documents at the enforcement hearing that are in the payers possession or control and relevant to the enforcement application by serving with the application mentioned in subrule (1):

                (a)    a list of the documents required; and

               (b)    a written notice requiring that the documents be produced.

         (3)   A payee must serve on a payer at least 14 days before an enforcement hearing:

                (a)    the documents mentioned in subrules (1) and (2); and

               (b)    a brochure approved by the Chief Federal Magistrate, giving information about enforcement hearings and the consequences of failing to comply with an obligation.

Note 1   An enforcement hearing does not have to be held before the Court makes an enforcement order. The purpose of an enforcement hearing is to obtain information to help the enforcement of an order or other obligation and, if applicable, to help the Court to determine a dispute or issue an enforcement order.

Note 2   Rule 25B.13 sets out the orders that the Court may make at an enforcement hearing.

25B.18   Obligations of payer

         (1)   A payer served with the documents mentioned in rule 25B.17 must:

                (a)    attend the enforcement hearing:

                          (i)    to answer questions; and

                         (ii)    to produce any documents required; and

               (b)    at least 7 days before the enforcement hearing, serve on the payee a financial statement in accordance with the approved form setting out the payers financial circumstances.

         (2)   Before the day of the enforcement hearing, the payer may produce any documents required to the payee at a mutually convenient time and place.

25B.19   Subpoena of witness

                A party may request the Court to issue a subpoena to a witness for an enforcement hearing.

Note   Part 15A sets out the requirements for issuing subpoenas.

25B.20   Failure concerning financial statement or enforcement hearing

         (1)   A person commits an offence if the person does not:

                (a)    comply with a notice under paragraph 25B.16 (1) (a) requiring the person to complete and serve a financial statement; or

               (b)    comply with an order that the person complete and file a financial statement or produce copies of documents to the payee (see paragraph 25B.16 (1) (b)); or

                ©    if the person is served with an application for an enforcement hearing:

                          (i)    comply with subparagraph 25B.18 (1) (a) (ii) and paragraph 25B.18 (1) (b); and

                         (ii)    attend the enforcement hearing in accordance with the application or an order; or

               (d)    on attending an enforcement hearing in accordance with an application for an enforcement hearing or order, answer a question put to the person to the Courts satisfaction.

Penalty:   50 penalty units.

         (2)   An offence against subrule (1) is an offence of strict liability.

Note   The Court may issue a warrant for the arrest of a payer if it is satisfied that the payer has received an application for an enforcement hearing and did not attend the enforcement hearing (see rule 25B.10).

         (3)   If a person is prosecuted under section 112AP of the Family Law Act for an act or omission mentioned in subrule (1), an application must not be made under subrule (1) in respect of that act or omission.
Thanks Mike,

Much appreciated!
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