5.8.1: Obsolete Entries
Context
Some entries in the Register may become obsolete. If a maintenance debt is determined to be obsolete, CSA will remove the maintenance debt from the Register and will not collect it.
Legislative references
- Section 18A and 41 Child Support (Registration and Collection) Act 1988
Explanation
If CSA is satisfied that an entry in relation to an enforceable maintenance liability is obsolete, the entry can be deleted from the Child Support Register in accordance with section 41.
Entries that can be made obsolete
In limited circumstances a maintenance debt registered for collection by CSA can become obsolete. Such a decision can be made when all available collection avenues have been explored and there is no prospect of collecting outstanding child support.
Grounds for making an entry obsolete
The entries that can be considered obsolete are limited to:
- overseas maintenance liabilities; or
- a maintenance liability owed by a payer who is deceased.
An entry will only be obsolete if the child support case has:
- ended;
and
- a non-pursuit of debt decision was made less than six months ago; or
- the case meets the criteria for non-pursuit of debt;,
and
- where the payer is deceased, the outstanding child support cannot be collected because the estate has been finalised (or the payer has died intestate and a court application for Letters of Administration has not, and is unlikely, to be made by anyone); or
- the liability is a registered overseas maintenance liability (other than New Zealand cases), and the payer and payee are not residents of Australia.
Deceased customers
The obsolete entry provision can be used to delete some maintenance debts owed by a deceased payer where there is no avenue to collect the debt.
If a payer dies testate, that is has a valid Will, CSA may collect from the estate via the Executor of the Estate if there are funds available to address the outstanding debt. Once the estate is finalised and, if the maintenance debt has not been fully paid, then that debt can be considered to be an obsolete entry.
If a payer died intestate, that is there is no Will, a court application for Letters of Administration is required (for a person to administer the estate) if there are any assets to be distributed to beneficiaries. If a payer died two or more years ago and no such court application has been, and is unlikely to be made (e.g. the deceased person had no assets) then that debt can be considered to be an obsolete entry.
An entry cannot be obsolete because the payee is deceased and CSA has no avenue to disburse child support. In this instance, see 6.11.2: waiver.
Overseas liabilities
For overseas liabilities that have been registered with CSA for collection, an obsolete entry determination can only be made when:
- the payer and payee are no longer Australian residents; and
- the debt is an overseas maintenance liability registered in accordance with section 18A (see Chapter 3.6.1 on registrable overseas maintenance liabilities).
A maintenance debt arising from a New Zealand child support liability cannot be obsolete.
If an overseas maintenance debt is determined to be an obsolete entry, the liability will cease to be enforced in Australia but may continue to be owed in the originating jurisdiction.
If the payer or payee returns to Australia then a new application can be made to register the overseas maintenance liability, including any arrears that remain outstanding at that point in time.
Example
CSA have registered a court order for child maintenance made in the UK. M has been residing in Australia and F has always resided in the UK. M has recently moved permanently to the USA. The case has ended because neither party reside in Australia. There is $42,074 still owing in child maintenance. There are no options for collecting this debt and a Non Pursuit of Debt decision was made when the case ended. This outstanding child maintenance can be removed from the Register under section 41.
Debts that cannot be removed using the obsolete entry process
Some debts cannot be removed from the Register as they are not enforceable maintenance liabilities. These are:
- late payment penalties;
- estimate penalties;
- costs and fines;
- consolidated revenue debts; and
- overpayments.
Costs and fines, consolidated revenue debts and overpayments are debts to the Commonwealth and may be waived under the Financial Management and Accountability Act 1997 (see Chapter 6.11.2 on waiver).
Late payment and estimate penalties may be remitted or cancelled (see Chapter 5.1.6 on late payment penalties).
Enforcement by the payee
CSA's decision to remove the debt from the Register because the entry is obsolete does not prevent the payee from taking action privately to recover outstanding child support.
Objection rights
A payer or payee can object to CSA's decision to delete an entry from the Register. See Chapter 4.1.