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Superannuation and Child Support Debt

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Can a court order APRA to release superannuation funds to pay child support arrears, and thus order CSA to accept this offer, rather than selling a house to recover debt?
It is possible to apply for the use of super funds (depending on the fund) in times of "hardship". Possibly, an inability to pay for child support and put food on the table may qualify?

I'm not sure if this is something you are hoping for, or against.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
I have already applied under financial hardship, and the official response was only if your house is in default.  It is but that is another story.  Instead of selling the house, I would like to cash in my super to pay child support debt.  the Superannuation Industry Regulations only allow for the release of funds if it would prevent foreclosure.  I have paid a lump sum of child support through a loan from my partner's family.  Now I cannot raise any further funds.  Even if I did have loan, I would be struggling to meet all expenses.  My argument is that if the super funds were released, then the matter would be resolved at no additional cost financially and emotionally.  During an unofficial phoe conversation with APRA, the review officer stated that there is a possibility of releasing funds if the amount of the super matched the debt.  I cannot see how super would be treated any differently to equity in a house, as it is an asset.  It certainly would be less taxing emotionally than selling my house.
A friendly chat to CSA may be in order.

They are usually approachable when they know that genuine efforts are being made to clear a debt.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
It's slightly more complicated.  There is a court order to place to pay two lots of lumps sums.  Cannot raise funds for second one.  However, at the same time, I am (my parnter is) learning how to appeal a decision made by SSAT through the courts.  Essentially disagreeing at how the decision regarding my income and earning capacity was derived.  A review of this decision may result in a reduction of income, which may reduce the debt.  CSA do not want to negotiate as it has gone beyond that, and they have a court order to sell the house to recover the debt, if there is not an offer forthcoming.  The super I have is less than the child support debt.
Justice, with regard to the original question about Super:

The CSA Guide - 5.2.9: Collection from third parties. said
Is a notice effective against superannuation funds?

A section 72A notice may not be effective against pensions or lump sums paid by a superannuation fund or in relation to funds held. It will depend on the particular fund and the status of the money held.

Does the fund have a specific exemption from compliance?
Some superannuation funds were established by legislation which provides a specific exemption from compliance with garnishee notices.

Examples

- Section 118 of the Superannuation Act 1976 and section 41 of the Superannuation Act 1990 specifically preclude garnishee action on any type of pension or other benefit under those Acts (CSS and PSS pensions paid to former Commonwealth Public Servants).

- Section 85 of the Defence Forces Retirement Benefit Act 1948 and section 129 of the Defence Forces Retirement and Death Benefits Act 1973 will not allow section 72A notices to be attached to benefits payable by the Defence Forces Retirement Benefit Board.

Funds that are not specifically exempt from compliance

A superannuation fund holds superannuation money on trust for the benefit of its members (i.e. the contributors) (section 10, Superannuation Industry (Supervision) Act 1993).

As a general rule a superannuation fund will be required to comply with a section 72A notice where the member has access to the funds (i.e. when the funds are 'due and payable' to the child support debtor).

Are the benefits payable to the member?

The rules which apply to all superannuation funds when determining whether or not the benefits are actually payable to the member are as follows:

Funds that are not specifically exempt from compliance

A superannuation fund holds superannuation money on trust for the benefit of its members (i.e. the contributors) (section 10, Superannuation Industry (Supervision) Act 1993).

As a general rule a superannuation fund will be required to comply with a section 72A notice where the member has access to the funds (i.e. when the funds are 'due and payable' to the child support debtor).

Unrestricted non-preserved amounts

If a member has access to 'unrestricted non-preserved amounts' (e.g. where they have an option of receiving an immediate payment or rolling funds over) these funds are 'due and payable'. Therefore, a section 72A notice will be effective against any superannuation funds held as an 'unrestricted non-preserved amount'. It is not necessary for the contributor to actually make a request for payment or decide whether to roll over the funds in order for the section 72A notice to be effective (subsection 72A(12)).

Other amounts

Where the funds are not available (preserved amounts) or other conditions are not met (restricted non-preserved amounts), a section 72A notice will not be effective. In such cases, section 72A(12) cannot overcome the legal requirement for the contributor to qualify to access those funds (for example by age or retirement). The notice will not be effective unless and until the debtor-member's benefits are payable to the debtor under the rules of the fund (e.g. by retirement).

Deceased member benefits
A superannuation fund holds superannuation money on trust for the benefit of its members (the beneficiary) (section 10 Superannuation Industry (Supervision) Act 1993). If the member dies, the superannuation fund no longer holds the money on trust for the member. If the money is preserved it is usually paid as a death benefit to the member's dependants or legal personal representative, in accordance with superannuation law and the superannuation trust deed.

If the superannuation trustee decides to pay the death benefit to the deceased person's dependants, the beneficial ownership of the money passes to the dependants from the time of the member's death (even though the decision about the person(s) to whom the money will be paid may not be made until after this date). The superannuation fund will no longer hold money for, or on account of, a child support debtor and a section 72A notice will not be effective.

If the superannuation trustee decides to pay the death benefit to the member's legal personal representative, the superannuation becomes an asset of the deceased person's estate from the time of the member's death (even though the decision about the person(s) to whom the money will be paid may not be made until after this date). The superannuation fund will no longer be holding money for, or on account of, a child support debtor; the money is 'not due and payable' to the child support debtor and a section 72A notice will not be effective. However, CSA will seek to recover any outstanding debt from the persons estate.

Employer withholding of superannuation funds

If a section 72A notice can be effective against a pension paid by a superannuation fund, it may be possible to apply employer withholding as an alternative. See Chapter 5.2.3 for details.

What if a solicitor claims they have a lien over the funds?

CSA can issue a section 72A notice to a solicitor for funds held in trust for a child support debtor who is that solicitor's client. The notice will not be effective against any portion of the funds that are subject to a solicitor's lien for work performed and disbursements paid on behalf of their client. A solicitor's lien creates a charge over the funds once the solicitor has delivered their bill of costs to the client (or if the client objects to the bill, when the costs are taxed) (Gilshenan & Luton v FC of T, 83 ATC 4758).
Here's the link to this section of the guide The CSA Guide - 5.2.9: Collect from third parties

You should also check section 5.4: Enforcement. You may also want to check other aspects. e.g. I'm under the impression that a forced sale of your home is not allowed, but I'm not at all sure about this, something that I think I recall reading about. You may also want to follow the links to the legislation, although if you find the guide hard to read then the legislation is even harder.

Also be aware that you will very likely have a DPO (Departure Prohibition Order) against you and that if you try to leave the country you likely wouldn't be allowed. I'm not sure if you can check this or if there is any requirement for you to be notified.

I hope this helps and sorry if it doesn't.
Thank you. It often takes someone to point something out that you may have missed! I will check with my super fund if they are subject to the exemptions under Notice 72A.

Provided my offer is favourable, can the court order the CSA to issue a Notice 72A to my super fund to pay child support debt and thuscease the administrative collection (sale of the house?)

At no stage did CSA discuss super with me, or any other assets besides my house for that matter. Not that I am flash with anything.

As for the house, I signed the orders, without understanding the ramifications. Perhaps in hindsight, a little more preparation and legal advice would have been best.

FAMILY LAW RULES 1984
- ORDER 33 RULE 7
Power of sale of real property

(1)If a person fails to satisfy an obligation, a person who is entitled to take proceedings to enforce the obligation may apply to the court for an order that any interest in real property of the first-mentioned person be sold to enforce the obligation.
As for the departure order, it would be nice to skip the country, for a holiday of course, but the aussie dollar is not favourable at the moment! I just don't have the means!
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