Parents assets frozen or sold for non-payment of Child Maintenance

The Child Maintenance and Other Payments Act 2008 established the Child Maintenance and Enforcement Commission and gave the Commission a number of enforcement powers where a non-resident parent fails to pay child support maintenance. These new powers include the power to apply to the High Court for an order to prevent a non-resident parent from disposing of or transferring property and the power to apply to the High Court for an order setting aside a disposition.

In what circumstances will such an application be made?

Orders preventing the disposal or transfer of property

The Child Maintenance and Enforcement Commission has the power to apply to the Court for an order preventing the disposal of or transfer of property (also known as a “freezing order”) by a non-resident parent if: 

  • the non-resident parent has failed to pay child support maintenance; and
  • the non-resident parent is disposing of or transferring property in order to avoid paying child support maintenance.

Orders to set aside a disposition

The Child Maintenance and Enforcement Commission has the power to apply to the Court for an order to set aside a disposition by a non-resident parent if: 

  • the non-resident parent has failed to pay child support maintenance; and
  • the disposition was undertaken with the intention of avoiding paying child support maintenance.

What is a “disposition”?

For the purposes of the Child Maintenance and Other Payments Act 2008 a disposition includes any conveyance, assurance or gift of property of any description, which will include houses, cars and other valuable assets. Provisions contained in wills and codicils are not, however, treated as being dispositions for the purposes of the Act.

What about dispositions made in the past?

Whilst the Child Maintenance and Other Payments Act 2008 was passed in 2008 very few of the provisions of the Act came into force at that time. The provisions relating to freezing orders and orders to set aside dispositions came into force on 6 April 2010. Any dispositions made before that date will not be covered by the Act.

What matters will the Court take into account when deciding whether to make an order?

The Court has the ability to make either of these types of order if it is satisfied that the grounds set out above have been met. 

If the Court is satisfied that either the disposition or other dealing would result in making the recovery of child support maintenance ineffective, it will assume that the non-resident parent planned or took the action with the intention to avoid paying child support maintenance.  

In the case of applications to set aside a disposition, the Court can review any disposition made unless it was made for valuable consideration (other than marriage) to a person who acted in good faith and was not aware of the non-resident parent’s intention to avoid paying child support maintenance.

Does Court have any other powers?

Once a Court has made a freezing order or an order to set aside a disposition it has the power to make such consequential provision by order or directions as it thinks fit for the purpose of giving effect to the order. This includes the power to make provisions requiring the non-resident parent to make payments and the power to make provisions for the disposal of property.