Articles

4th May, 2008

Enforcing outstanding child support
by Andrew Wiltshire

A common query I have had during my years of practice is “can I sue my ex-partner for arrears of child support”. A situation where a liable parent builds up a large child support debt is not uncommon. In the past, it has been considered that such debt is a debt to the Commonwealth, and therefore individuals were unable to enforce debt. Often the Agency would do little to enforce the debt until it grew to a significant amount.

This situation has changed with amendments to Child Support (Registration and Collection) Act, from 1 January, 2007, there is now a right of enforcement by the payee, even if the debt is registered for collection by the Agency, if the payee gives notice to the Registrar of the child support agency of their intention to commence proceedings to recover the debt at least 14 days before doing so, or in exceptional circumstances whit such shorter period as the court allows. The payee must also give the Registrar notice of any orders made by the court in relation to the debt, and any payments made under such order.

The rationale for this change is that if proceedings are commenced in relation to other actions such as property division, there is no longer a need to seek that the Registrar intervenes in the proceedings. It also enables payees to take control by issuing proceedings themselves. The court has a wide range of powers in relation to the payment of child support debts, such as garnishing wages, selling up of assets and seizure of assets by a sheriff.

Of course, one has to weigh the costs of issuing such proceedings against the likelihood of such action succeeding in getting the debt paid. Other options are available that do not require court proceedings, such as having the Agency issue a third party notice on a bank to take out the debt from a bank account, or a conveyancer to take out the debt from the payer’s share of sale proceeds.