How can I enforce child support debts?
There are two main ways by which an individual can apply to have their child support debts enforced. The first option is to apply to the Child Support Agency. The second option is to apply to the Family and Federal Circuit Court of Australia. The option an individual will take will depend primarily on the length of time the child support amounts have been unpaid. Other considerations include the amount of child support due.
What is child support?
Child support generally refers to payment arrangements made between separated parents to finance the cost of raising children. Depending on the circumstances, child support may consist of one parent paying another parent who looks after the children.
Child support can also be paid to another individual other than the parent who looks after the children. For example, this could include a grandparent or another family member.
What happens if my ex partner is not paying child support?
As stated above, if a party’s ex partner is not fulfilling their child support obligations, the unpaid party may choose to either apply to a Child Support Agency or the Family and Federal Circuit Court of Australia to have the debts enforced.
The Child Support (Registration and Collection) Act 1988 (Cth) gives an aggrieved party the right to apply to the Child Support Agency for the enforcement of a child support debt. However, is it important to note that such applications are generally limited to child support debts that have been left unpaid for a period of three months (or nine months in exceptional circumstances).
Parties who have child support debts owed to them for a longer period of time can consider applying to the Family and Federal Circuit Court of Australia for an enforcement hearing.
What is an enforcement hearing?
An enforcement hearing is a hearing conducted which aims to ascertain the financial situation of the person who has not met their financial obligations. The hearing involves witnesses and the respondent being cross-examined about their financial status.
Individuals will most likely be asked about:
- Any reasons for their inability to pay the debts owed
- Their financial status, including details about their income, assets, debts and other financial resources
This evidence will be used by the Court to determine whether the person has the ability to meet their financial obligations.
An enforcement hearing can lead to an enforcement order. An enforcement order requires a person to fulfill an obligation, and can take the form of a third party debt notice.
An example of a recent case:
In a 2016 case, a judge considered whether a child support debt should be enforced. The Court found that courts have a wide ranging discretion as to whether a child support debt should be enforced and also as to what period of arrears. The Court also outlined the considerations that the Court will take into account when determining whether or not to enforce a child support debt:
- Whether the party owing the debt knew or ought to have known of their obligation to pay
- Whether the party who was entitled to the child support payments pursued (directly or indirectly) their rights to payment
- If the party who was entitled to the child support payments did pursue their rights to payment, whether they did so in a timely manner
- If the party who was entitled to the child support payments made any representation to the other party that can be reasonably construed to have formed the impression that the child support payments would not be enforced
- Whether the owing party had appropriate or reasonable reasons for failing to meet their obligation to pay
- The financial circumstances of both parties
This will involve the full and frank disclosure of both party’s financial positions.
How do I apply for an enforcement hearing?
An application for an enforcement hearing involves filing:
- An application form
- An affidavit
Both these documents can be found on the Federal Circuit and Family Court of Australia website.
An applicant must also serve on the other party, at least 14 days before the date of the enforcement hearing:
- The application form
- The affidavit
- A list of documents that the respondent should bring to the hearing
- A written notice demanding the production of the chosen documents; and
- A copy of the brochure titled, ‘Enforcement Hearings’ (found on the Federal Circuit and Family Court of Australia website).
If you need any assistance regarding child support debts please feel free to reach us via the contact form.
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