Reversal of section 38A election or 38B decision—collection of arrears
39A Reversal of section 38A election or 38B decision—collection of arrears
When section applies
This section applies if a payee applies under subsection 39(1) for a liability to again become enforceable under this Act.
Section 38A or 38B non‑enforcement period
For the purposes of this section, the section 38A or 38B non‑enforcement period is the period:
beginning when the liability ceased to be enforceable under this Act as a result of the operation of section 38A or 38B; and
ending when the liability again becomes enforceable under this Act as a result of the operation of section 39.
Maximum arrears period
For the purposes of this section, the maximum arrears period is the period:
beginning at whichever is the latest of the following times:
9 months before the end of the section 38A or 38B non‑enforcement period;
the start of the section 38A or 38B non‑enforcement period;
the commencement of this section; and
ending at the end of the section 38A or 38B non‑enforcement period.
Application by payee for enforcement of arrears
The payee may apply to the Registrar, in the manner specified by the Registrar, for any unpaid amounts payable under the liability in relation to a specified period to be treated as arrears amounts for the purposes of this section. The specified period must:
consist of, or be included in, the maximum arrears period; and
end at the end of the maximum arrears period.
Section 16A provides for the Registrar to specify the manner in which an application may be made.
Registrar’s decision—arrears for 3 months or less
If the specified period does not exceed 3 months, the Registrar must grant the payee’s application.
Registrar’s decision—arrears for more than 3 months
If the specified period exceeds 3 months, then:
if the Registrar is satisfied that there are exceptional circumstances—the Registrar must grant the payee’s application; or
if:
the Registrar is not satisfied that there are exceptional circumstances; and
unpaid amounts are payable under the liability in relation to the period of 3 months that ended at the end of the maximum arrears period;
the Registrar must:
treat the payee’s application as if the specified period were the period of 3 months that ended at the end of the maximum arrears period; and
grant the payee’s application; or
if:
the Registrar is not satisfied that there are exceptional circumstances; and
no unpaid amounts are payable under the liability in relation to the period of 3 months that ended at the end of the maximum arrears period;
the Registrar must refuse to grant the payee’s application.
Consequences of successful application
If the Registrar grants the payee’s application:
this Act has effect as if:
the unpaid amounts were payable under the liability in relation to the child support enforcement period that began immediately after the end of the section 38A or 38B non‑enforcement period; and
the unpaid amounts became child support debts immediately after the end of the section 38A or 38B non‑enforcement period; and
the Registrar must make such variations to the particulars entered in the Child Support Register in relation to the liability as the Registrar considers necessary or desirable to give effect to this subsection.
Amounts that would have been credited under section 71C
To avoid doubt, a reference in this section to an unpaid amount payable under a liability does not include a reference to any amount that would have been credited against that unpaid amount under section 71C if the liability had been an enforceable maintenance liability at all relevant times.
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