Subsection 5 of Section 107 provides that: “If the court grants the declaration, the application for administrative assessment of child support is to be taken never to have accepted by the Registrar” Will treat the administrative assessment for that particular child as ended for the start date CSA will refund to the payer any payments held because of a suspension determination but will not repay any amounts already disbursed to the payee.
An amount paid to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 is to be taken, for the purpose of this section, to have been paid to the person to whom, apart for that section, the amount would have been payable. Where an overpayment occurs (when there is no registered liability) the CSA will advise a payer that Section 143 of the Assessment Act specifically provides for them to make an application to a Court for recovery of child support paid where a liability no longer exists. The court may make orders that are just and equitable in the circumstances to give effect to the rights of the parties and the children. The Court cannot however make an order requiring the CSA to repay the overpaid amount to the payer.
The CSA will refund amounts overpaid if all of the following conditions are met: Case ongoing and likely to continue The payer has a history of making full and regular payments and there are no new circumstances that indicate that this will change; The CSA and the payee have negotiated an amount to be deducted from continuing payments of child support that will result in the overpayments being fully repaid before the case ends; The payee is not seeking to have the liability increased retrospectively.
Application of S143 Collection Act usually predicated by application by payer under S107 Assessment Act that payee not entitled to administrative assessment Normally involves payer establishing he is not father of the child Achieved through parentage testing Court can make an order for parentage testing at request of party to proceedings or on its own initiative S69W (2) Family Law Act
Federal Governments response to the House of Representative’s report on child custody arrangements in the event of family separation (Every Picture Tells a Story, December 2003) Task Force Recommendations The Stay Power – S140 The Assessment Act Broad enough to deal with all situations where it may be thought desirable to make orders staying or otherwise affecting the operation of the child support legislation pending resolution of the case Task force considered Courts should have all necessary powers to maintain the status quo or balance the interests of the parties appropriately pending the outcome of the case Overpayments through CSA error Carer may not have had a knowledge of the fact that the payment was made in error In such cases the CSA should carry the debt until it is recovered and not involve the carer in rectifying the error