Enforcing Spousal Maintenance Orders

Monday, July 4, 2016

Quinn & Scattini Lawyers had the opportunity to assist a client with the enforcement of her spousal maintenance obligations against her non-compliant former husband.  In discussing the case with colleagues, it became apparent that many clients are often unaware that the Child Support Agency (“CSA“) is able to assist a party to collect the maintenance, at no cost to that party.

In this case, our client had the benefit of a spousal maintenance order (“Order“) from the Federal Circuit Court.  That order required the former husband to pay to our client spousal maintenance of $1,200 a week in addition to his child support obligations.  The sum payable by way of child support varied each year in accordance with the child support assessment formula provided for in the Child Support (Assessment) Act 1989.  The arrears owing by the husband, at the time our client sought my assistance, was some $59,000 made up of both child support and spousal maintenance arrears.

The Child Support (Registration & Collection) Act 1988 (“the Act”) empowers the CSA to collect any maintenance. “Maintenance” in the Act is not limited to child support, but also includes spousal or (since March 2009) de facto maintenance, paid by one spouse (or de facto spouse) to the other, pursuant to either a court order or a court registered maintenance agreement[1].

Procedurally, once you have an order or maintenance agreement (such as a Binding Financial Agreement (“BFA“)) you need to notify the CSA within 14 days of the order being made or the BFA being signed[2].  If you do not want to have the CSA register the agreement in order to assist you to collect your payments, you do not have to do so[3].  However, if you have gone to the trouble of formalising the orders or BFA which provide for payment of spousal (or de facto maintenance) it makes little sense not to take this step.

If you do not register the Order or maintenance agreement within 14 days, you are still able to apply to the CSA to register outside the required timeframe.  However your ability, or more importantly the CSA’s ability, to enforce the payments required will be limited to the date that registration occurred as opposed to the date of the orders or maintenance agreement.

Once the Order or maintenance agreement is registered, it changes the liability from one owed by the payer (in this case, the husband) to the payee (in this case, the wife), into a liability from the payer to the Commonwealth[4].  This variation to who the debt is owed serves to empower the registrar of the CSA to purse the payment of the liability.  However, by providing the CSA with the power to enforce the debt, the payee does not lose her capacity, or right, to sue her ex-husband for any arrears that accrue.  Sections 113 and 113A of the Act clearly provide that, on condition that the payee gives the registrar 14 days notice of her intention to do so, she can sue for payment of arrears.

From a practical point of view, unless a person enforcing a liability has capacity to pay the costs of legal representation or is willing to self-represent, the issue of enforcing the liability can be conveniently (and cost effectively) left to the Registrar of the CSA.

The Act gives a great deal of power to the CSA to enforce the maintenance liability.

This includes:

  1. Garnishing the wages of the Payer[5].  This is where the CSA compel the employer of the payer to pay the maintenance obligation/s to the Registrar of the CSA who in turn passes the funds onto the payee.  Generally speaking most employers comply with this obligation as it is an offence for an employer to refuse to comply.  Since 2007 it doesn’t matter if the payer is a sub-contractor and not an employee as Section 65AA of the Act enlarges the scope of the CSA’s power to cover these arrangements as though they are no different from an ordinary employee/employer relationship.
  2. Issuing a notice to a third party who holds money on behalf of the payer.  A common example is where a law firm holds funds in trust on account of legal fees or following the sale of a real property.
  3. Applying to a reciprocating jurisdiction to have the maintenance agreement enforced.

The CSA also have power to make an order called a departure prohibition order.  This order prohibits the payer from departing Australia.  Unfortunately section 72D of the Act provides that this is only applicable to child support liabilities.

However, notwithstanding this, in cases where there is both a child support obligation and a maintenance liability, the CSA can purse both liabilities via a departure prohibition order.  Fortunately this was particularly helpful to my client as she had become aware that the husband was about to embark on a month long holiday to Europe.  Armed with that information, the registrar was able to issue a departure prohibition order and prevent the husband from leaving for his holiday until such time as he made a substantial payment towards his child support and maintenance arrears.

Unfortunately for our client, notwithstanding the significant payment made by the husband, the arrears have since continued to accrue and my client has made the difficult decision to return to court to pursue for enforcement of the outstanding obligations.

As with all areas of family law, it is important to obtain tailored legal advice about the options available to you regarding enforcement of spousal maintenance and child support at an early stage.  Such advice can save you a significant amount of worry and money, arming you with an understanding about what steps you can take and when.  If you have any queries about spousal maintenance or child support, please do not hesitate to contact us.

Laws mentioned in this post:

[1] Section 18 of the Child Support (Registration & Collection Act) 1988
[2] Section 23 of the Child Support (Registration & Collection Act) 1988
[3] Section 23(3) of the Child Support (Registration & Collection Act) 1988
[4] Section 30 & 64 of the Child Support (Registration & Collection Act) 1988
[5] Section 44 of the Child Support (Registration & Collection Act) 1988

How We Can Help

Quinn & Scattini Lawyers’ expert Family Law Team can assess your individual situation in accordance with the Act, provide expert guidance in negotiations with your former partner surrounding the fair division of property, offer practical and experienced advice if appearing before the Court is unavoidable, and provide you with the best possible representation if court-ordered agreements are required. With over 40 years’ experience, Q&S’s Family Law Team are experts in the family law field. The team also boasts two Accredited Family Law Specialists.

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