Taking a Child Support customer to court 277-04220030

If the customer who owes the debt refuses to address the outstanding child support or overpayment in a satisfactory way, Debt Enforcement SO3/4 transfers the case to the Debt Enforcement SO5. Which officer to transfer to is determined by the state the customer resides in.

Examples of refusing to address the outstanding debt is not contacting Child Support or not paying in line with their capacity.

In certain circumstances an extended period of time may have lapsed between the issuing of the letter of demand and allocation of the case to a Debt Enforcement SO5. For example if a customer elected to exercise their right to lodge a Change of Assessment (COA) application upon receipt of the letter of demand.

In these cases, the Debt Enforcement SO5, in consultation with the team leader, must decide if they issue a second letter of demand. This is especially important when the debt has changed.

The team leader will arrange for the case to be reviewed within 5 working days to determine if the matter is suitable for litigation. If appropriate, the team leader allocates the customer and any other parties owed a debt by the customer, to a Debt Enforcement SO5.

Within 5 days of receiving the case, the Debt Enforcement SO5 must attempt to contact:

• the customer who owes the debt, and
• any other parties that are owed a debt,

If the allocation is not appropriate, the team leader will email the Debt Enforcement Team Leader to discuss the return of the case to the Debt Enforcement SO3/4.

Note: information provided by the Debt Enforcement SO5 to the customers (or vice versa) during these initial contacts may be included in an affidavit. This may then form part of the evidence provided to the court and all parties to the proceeding. It is important that all contacts and attempted contacts are clearly documented. See Documenting Child Support information.

Contact the customer who owes the debt within 5 days of allocation. When contacting the customer the Debt Enforcement SO5 explains:

• because there has been no compliance with the letter of demand, their child support case has been escalated to the Debt Enforcement Team
• legal proceedings will now be initiated, noting the customer has refused to address the debt in a satisfactory way
• the serious nature of the legal proceedings and the types of orders which may be sought
• the agency will seek an order that the customer contribute to legal costs incurred by the agency as a result of legal proceedings
• that the agency will seek security over any assets that they have so that in the event of default these assets may be seized and sold to recover the amounts owing under the court orders
• that once legal action is initiated all negotiations and settlement proposals must be directed to the agency's legal service provider
• the case will remain in the Debt Enforcement area of the agency until compliance is established on an ongoing basis
• that independent legal advice should be obtained, and
• these are enforcement procedures, any administrative options they may wish to pursue need to be addressed separately as the enforcement hearing in the Federal Circuit Court is not the appropriate forum to do this

Note: Debt Enforcement SO5 must not provide any form of legal advice to customers.

The Debt Enforcement SO5 must attempt to make contact with the customers that are owed a child support debt or overpayment by the other party. They must keep them informed of the action taken to recover the debt, section 113(2) of the Child Support (Registration and Collection) Act 1988.

Contact the customer who is owed the debt within 5 days of case allocation to confirm they are owed a child support or overpayment debt.

When contacting the customers, the Debt Enforcement SO5 will:

• provide confirmation of the escalation of the case to Debt Enforcement
• outline the Debt Enforcement process including the preparation of the brief, the nature of an application in a case adjournments, settlement, recovery and general information about default provisions available
• provide realistic timeframes associated with the Debt Enforcement process
• explain legal proceedings do not involve the customer who owes the debt and therefore specific information about the hearing, court orders and action taken will not be provided
• obtain relevant and updated information regarding the financial circumstances of the customer who owes the debt

When contacting the customers who are owed the debt, the Debt Enforcement SO5 must not:

• guarantee any successful outcomes
• discuss any conversations held with the other party or their legal representative throughout the course of the proceedings
• discuss payment of court costs or late payment penalties
• provide specific information about the court hearing, including the orders made
• provide specific information about enforcing the orders in the event of default

The Debt Enforcement SO5 will begin preparing and collating a brief of evidence with a view to initiating legal proceedings.

To initiate court proceedings, the Debt Enforcement SO5 must gather a comprehensive range of factual evidence regarding the customer who owes the debt’s financial capacity to pay the outstanding child support or overpayment debt. It is the collation of this evidence which makes up the brief.

It is essential that Debt Enforcement SO5s utilise administrative options for the collection of information from third parties (section 120 of the Child Support (Registration and Collection) Act 1988) before initiating court proceedings.

Once engaged in a court proceeding, it is generally no longer appropriate for Child Support to issue notices under this section of the legislation. Alternatively the agency must make use of the court processes for gathering evidence - such as a subpoena and oral evidence.

All available evidence is collated, folioed and presented to a legal service provider in a professional and comprehensive brief which aids them to:

• establish the most appropriate course of action to be taken
• evaluate the prospects of success
• highlight any potential risk factors that may impede or prohibit success
• note any gaps in information, and issue the appropriate applications (such as s120 notices or a subpoena), and
• draft comprehensive affidavit material to support the application for the recovery of outstanding child support payments or overpayments

To ensure a brief is complete, Debt Enforcement SO5 must fully investigate and produce evidence to support the following:

• the basis of the outstanding child support payments or overpayments - assessment notices, transaction statements, section 116(2) certificate
• assets - proof of ownership, encumbrance details and valuation
• personal and business income - tax returns, business activity statements, Australian Securities and Investment Commission registrations, Australian Business Register search results, trust deeds, balance sheets, profit and loss statements
• bank accounts - information produced pursuant to notices issued to third parties
• summary of communication with the customer who owes the debt - which may aid in establishing a history of non-compliance
• advise of any security incidents or information regarding other security concerns, and
• other - credit reports, bankruptcy information, AUSTRAC and Department of Home Affairs/travel movements

Note: ‘Suspicious Matter Reports’ (SMRs) from AUSTRAC must never be disclosed. This means they must not be included when making a submission – they cannot be disclosed to any court or tribunal and are not admissible as evidence.

Review AUSTRAC search results to ensure they do not contain an SMR/SUSTR – these must not be recorded in the system. If a record needs to be removed, take immediate action, email National Intensive Collection Services.

Full details regarding AUSTRAC disclosure of information can be found on the Resources page.

It is critical that Debt Enforcement SO5s thoroughly scrutinise the information produced through these searches and note any anomalies or inconsistencies in order to gather quality evidence regarding the financial circumstances of the customer who owes the debt.

The profile is a comprehensive summary of all the relevant information compiled in the brief. The profile includes:

• an outline of general instructions to the department's external legal service provider
• any issues in dispute or security concerns
• the customer who owes the debt’s personal details
• the particulars of the assessment, and
• the customer's income and financial circumstances

Debt Enforcement SO5s must use the standard profile templates located on the National Shared Drive both for consistency and to ensure litigation activities are billed appropriately.

Before engaging a legal service provider, Debt Enforcement SO5s must:

• complete the profile and brief, and
• forward these documents to the team leader for initial review and approval

The team leader scrutinises the profile and brief.

When satisfied it is appropriate to initiate legal proceedings, the team leader will:

• forward the request to engage an external legal service provider to the relevant Litigation and Information Release Branch (LIR), and
• copy in the referring Debt Enforcement SO5

The team leader is responsible for checking the accuracy of all factual information contained within the profile/brief. On receipt of this email the Debt Enforcement SO5 keys a submission to commence legal action in Collection window.

Submission to LIR - To be recorded in real time when profile is sent to LIR.

Select the 'Level 3' category from the drop down menu and:

• Select the 'Referral to AGS' option from the drop down menu
• Select 'Submission to commence Legal Action'
• Select Go
• Fill in fields and 'keying status' as Keyed
• Select OK

Note: this window needs all fields completed. The fields that require a reference number can be recorded as '0000'. The instruction field should be 'Profile submitted to LIR for approval'.

LIR reviews the strategy and ensures technical and legal requirements have been met, as well as weighing up the cost effectiveness, before authorising the engagement of the external legal service provider. An approval email will be sent to the Debt Enforcement SO5 and team leader.

On receipt of this email the Debt Enforcement SO5:

• updates the submission to commence legal action in the Collection Window to 'approved' or 'rejected', and
• includes the authorising officer's details and the date on which it was approved

Profile Approved / Rejected - To be recorded in real time when approval/rejection email received from PLRB:

• Select the keyed submission to commence Legal Action from the Collection Window
• Select Status Approved or Rejected
• Select OK

On the Submission screen the status box can either be:

• Approved, or
• Rejected

If a profile is recorded as keyed and an outcome is achieved (payment in full/arrangement/discharge etc.) before LIR have approved or rejected, the status should be updated as rejected.

Cost effectiveness

The cost effectiveness of the litigation process is measured by examining:

• whether spending money to litigate is a better option than utilising that money on other activities, and
• whether the commencement of legal action is likely to result in a collection outcome

The viability of commencing legal action is determined on a case by case basis

Also the amount of the debt can also be an important consideration. The court has the discretion to refuse to make an order for costs in favour of a party who has initiated legal proceedings to enforce a nominal amount.

Although the approach to litigation is outcome orientated, the reality is that the desired outcome (the collection of outstanding child support payments) will not be achieved in every case.

Once authorisation has been obtained LIR will email the external Legal Service Provider to engage them to act in the enforcement proceedings. LIR attaches a copy of the profile and copies in the Debt Enforcement SO5 and team leader.

The Debt Enforcement SO5 will forward a copy of the brief to the Legal Service Provider and to LIR, if they request it.

Upon receipt of the request, the external legal service provider will create an ongoing file.

For the remainder of the litigation process legal costs will be incurred.

The external legal service provider creates the affidavit in support of the Form 2 Application in a Case. The Debt Enforcement SO5 reviews the contents and makes arrangements to swear or affirm the affidavit.

The affidavit is then filed by the Legal Service Provider along with the Form 2 Enforcement Application in a Case in the Federal Circuit Court of Australia or the Family Court of Western Australia in accordance with the timeframes set out in the Court Rules.

When sealed copies of these documents are received from the court, the Legal Service Provider will forward these to the Debt Enforcement SO5.

From this point the agency is no longer in a position to negotiate a payment arrangement with the payer. Any negotiations must occur with the legal service provider. Payment in full is the only payment option.

On receipt of the sealed application in a case the Debt Enforcement SO5 will:

• key the summons in the Collection Window, and
• include the date the matter was filed as the 'summon initiated' date

Legal Action Initiated - To be recorded in real time when confirmation email received from Legal Service Provider that the Application in a Case has been filed:

• Select the 'Level 3' category from the drop down menu
• Select the 'Summons' option from the drop down menu
• Insert a date in the dialogue box called 'Summons Issued On', and
• Select OK

The payer is commonly referred to as the respondent for the remainder of the litigation process.

The affidavit in support of the Form 2 Application in a Case, drafted in accordance with the appropriate court rules, is intended to set out and highlight the evidence that has been gathered during investigations in support of the orders sought.

The affidavit is the agency's evidence to the court, upon which it seeks to rely, in having the court make orders for payment and enforcement.

In the affidavit the Debt Enforcement SO5 deposes to the respondent's financial position, including:

• real or other assets they own
• companies and businesses the respondent is involved in or holds interest in, and
• their income over the period of liability

The affidavit will exhibit updated search results, copies of bank statements and other subpoenaed documents that are relevant to the case.

Note: it is critical for the Debt Enforcement SO5 to have read and fully understood each aspect of the affidavit before attending court. This is particularly important if the respondent or their associated legal representative wishes to orally examine the Debt Enforcement SO5 regarding the content or evidence provided.

The rules of the court require that any court documents are served on the respondent to satisfy the court the respondent has been made aware of the legal proceedings.

The Legal Service Provider will send the court documents and a covering letter to the respondent, to a process server to facilitate personal service on the respondent as soon as possible.

Note: Debt Enforcement SO5s must ensure the profile is as up to date as possible as the Legal Service Provider will rely on the information in the profile when providing instructions to the process server. This includes:

• the best address and contact numbers for the respondent for service
• any alternate address at which service can be attempted
• details of the respondent's registered motor vehicles that might be sighted at the address
• general information in relation to any person with whom the respondent is known to be living, and
• a copy of the respondent's drivers licence photo (where the available

If the respondent's best address for service is current and the respondent does not deliberately avoid service, the process server is likely to only need 1 or 2 attempts before the documents are served.

It is not uncommon for the respondent's address to have changed since the profile was completed or for the respondent to actively avoid service. In any of these instances it is more likely that the process server will have to make multiple attempts at personal service.

When the respondent is personally served the process server will ask the respondent to sign an Acknowledgment of Service. This can then be filed by the Legal Service Provider with the court as evidence that service has been effected. The respondent may not always be willing to sign the Acknowledgment of Service.

The process server will swear or affirm an Affidavit of Service confirming the date, person and documents that have been served and return this document to the Legal Service Provider for filing.

In some cases, despite the process server's best attempts at service, they will be unable to personally serve the documents on the respondent.

If the process server has been unable to effect personal service, they will return the documents to the Legal Service Provider with a detailed Affidavit of Attempts.

In this affidavit the process server will depose:

• to the number of attempts they have made
• any conversations with the occupant/s of the respondent's last known address, and
• any other relevant facts about service

Under the court rules if it has not been possible to effect personal service, the Debt Enforcement SO5 must instruct the Legal Service Provider to prepare an application to the court for orders for substituted service.

An application for substituted service is made by the Legal Service Provider filing a Form 2 Application in a Case supported by an affidavit, deposing to the attempts which have been made to serve the documents personally on the respondent and of any other steps which have taken by the Registrar to bring the proceedings to the attention of the respondent.

In addition, the affidavit should provide evidence of the contact details for which the agency is seeking substituted service orders.

In deciding whether or not to make an order for substituted service, the court will consider whether reasonable attempts at effecting personal service have been made, and any other relevant matters that the court sees appropriate, which may include whether there is sufficient evidence that sub service will bring the documents to the attention of the respondent.

If the court is satisfied it is appropriate to make orders for substituted service, it may make an order substituting another way of serving the documents, such as by post and an SMS advice to the respondent's mobile phone. When the Legal Service Provider receives the orders for substituted service they will serve the documents on the respondent in accordance with the orders.

Note: if the court is not satisfied that sufficient attempts at personal service were attempted it may refuse to make the orders for substituted service. In this case, the court will usually direct that further attempts at personal service be attempted in the first instance.

Substituted service may also be effected, under section 115 of the Child Support (Registration and Collection) Act 1988.

This can be done by posting the court documents to the respondent at the respondent's last known address if, after reasonable inquiries, the agency is satisfied that the respondent is either absent from Australia or that the respondent cannot be found.

When the Debt Enforcement SO5 becomes aware that the respondent has been served, normally via an email from the Legal Service Provider advising of service and attaching the report from the process server, the Debt Enforcement SO5 will enter the 'served on date' into the summons field in the Collection Window. Where substituted service orders are made the date of those orders should be entered into this field and a note added confirming that service was made via substitution.

When a Legal Service Provider has been engaged to act on behalf of the Services Australia, it is essential the respondent conduct all contact and communication through that legal service provider. The Legal Service Provider will update the agency in writing in regards to communication with the respondent.

If a Debt Enforcement SO5 receives contact from a respondent in regard to the debt or court proceedings, they should immediately attempt to warm transfer the customer to the legal service provider managing the file. In the event that the Legal Service Provider is not available to take the call, the Debt Enforcement SO5 must notify the legal service provider of the contact via email to ensure the respondent is contacted by the Legal Service Provider as soon as is practicable.

It is essential that Debt Enforcement SO5 continue to monitor their cases and conduct day to day case management after opening a file with a Legal Service Provider. Debt Enforcement SO5 should ensure that they monitor for any changes or events (and document where appropriate) such as, but not limited to:

• applications to vary an assessment or decision - that is, change of assessment, Objection (General and Part 6A), ART etc.
• payments
• contact from either the respondent or the other party
• responses from notices issued, and
• any changes to the assessment or case such as a terminating event, relevant dependent child etc.

The Debt Enforcement SO5 must immediately advise their Legal Service Provider of any changes or events that occur on the case, enabling the Legal Service Provider to determine if further action must be taken. This is particularly important when receiving information from third parties which may impact upon or jeopardise the progress or the success of the proceedings.

At all times, Debt Enforcement SO5 should ensure they present and communicate in a professional manner when providing information and/or instructions to their Legal Service Provider, preserving the agency’s external stakeholder relationships.

The Debt Enforcement SO5 is the client and they:

• decide on the action to be taken
• issue instructions to the Legal Service Provider
• attend conferences and briefings with counsel where counsel has been engaged
• attend court hearings (except for substituted service and return of subpoena hearings), sits in close proximity to the instructing Legal Service Provider and provides instructions to the Legal Service Provider during the course of the hearing
• decide whether any offers of settlement made in the course of legal proceedings are acceptable
• decide what types of orders are to be sought and checks any interim or final orders for accuracy, and
• ask the Legal Service Provider for advice if unsure as to the appropriateness of certain options or courses of action

Note: LIR is the instructing officer, however will generally authorise for instructions to come from the Debt Enforcement SO5, provided that FOIL have been copied into the email. Any decision on offers of settlement must be made by FOIL as the FOIL has the delegation for legal spending.

The Legal Service Provider and/or Counsel:

• takes instructions and acts upon them
• provides advice to the client on the options and the risks associated with these options
• prepares and files relevant legal documents for the conduct of the court proceeding
• conducts all settlement negotiations with the respondent throughout the course of the legal proceedings
• asks the client for clarification if unsure of the nature of instructions, and
• provides a court report following a hearing and an engrossed electronic version of any orders obtained to the Debt Enforcement SO5

Communication between Debt Enforcement SO5 and a Legal Service Provider can be conducted in a number of ways including email, telephone and in person.

Email

Generally, communication between Debt Enforcement SO5 and a Legal Service Provider should be conducted through email. This ensures the Debt Enforcement SO5 and Legal Service Provider both have a record of the instructions provided. LIR and the Debt Enforcement Leader must be copied into all emails.

Telephone

On occasion, the Debt Enforcement SO5 may need to liaise with a Legal Service Provider by telephone. This is particularly suitable when there are multiple issues associated with a case or a situation requiring discussion and additional consideration.

Note: the Debt Enforcement SO5 must confirm their instructions in writing immediately following a telephone conversation with a Legal Service Provider.

In Person

Debt Enforcement SO5 often provide instructions to a Legal Service Provider when meeting in person. It is essential that following an in person contact with a Legal Service Provider the Debt Enforcement SO5 confirm their instructions in writing. When meeting in person in the court environment, the details of this meeting may not be confirmed in writing.

It is important for the Debt Enforcement SO5 to provide consistent, clear and concise instructions to the Legal Service Provider, ensuring that instances of miscommunication and misinterpretation are minimised.

When instructing a Legal Service Provider, Debt Enforcement SO5 must ensure they are seeking options that are cost effective and suitable for the individual circumstances of each case.

An instruction outline is completed by the Debt Enforcement SO5 when the profile is first drafted before engaging legal representation. The nature or type of instruction may be subject to change or variation as the proceeding unfolds. Debt Enforcement SO5s must ensure the instructions provided are tailored to reflect the individual circumstances of the case and the relevant options for each of those circumstances.

It is important that Debt Enforcement SO5 fully understand that the quality of instructions and information provided to a Legal Service Provider directly correlates and impacts on the costs incurred per case and the success of any application - be it for the enforcement of outstanding child support payments, overpayment or seeking payment of incurred legal costs.

After initially reviewing the profile and brief, if the Legal Service Provider believes the matter is likely to involve complex issues, they will suggest to the Debt Enforcement SO5 that instructions be provided to engage Counsel to represent the agency.

Note: the decision to instruct Counsel requires the approval of the Debt Enforcement Team and LIR.

If instructions are provided by the Debt Enforcement SO5 to instruct Counsel, the Legal Service Provider will:

• make inquiries surrounding the availability of Counsel
• where possible, provide the Debt Enforcement SO5 with a choice of available Counsel
• seek instructions from the Debt Enforcement SO5 about which Counsel to brief, and
• prepare a brief to Counsel outlining the particulars of the matter

The agency’s Legal Service Providers will attempt to contact the Respondent as soon as practicable following service being effected.

Once successful contact is established, the Debt Enforcement SO5, acting on the information provided by the Legal Service Provider will be able to ascertain whether the respondent will be represented, attending court, seeking to adjourn the matter or seeking to settle the matter on a final or interim basis.

To avoid the costs associated with a contested hearing or the costs associated with an adjournment, Debt Enforcement SO5 should initially attempt to negotiate final orders by way of consent on the basis that the first hearing date should be the last.

In doing so, the Debt Enforcement SO5 must instruct their Legal Service Provider as to the terms upon which the agency will be prepared to settle the matter. The Legal Service Provider will then be well placed to communicate the settlement proposal to the respondent with a view to reaching an agreement prior to court.

Minutes of proposed final consent orders should (where appropriate) make provision for:

• a declaration of the debt as at the date of the orders
• an order for payment of the child support debt, consisting of both child support and late payment penalties, within the shortest possible timeframe
• an order for payment of the overpayment within the shortest possible timeframe
• an order that the respondent pay a portion of the agency's legal costs
• an order that in the event of default the entire debt is immediately due and payable
• an order that the respondent be restrained from dealing with their interest in any assets
• an order charging the real and/or personal assets of the respondent
• a notation that if the respondent defaults in making any of the payments ordered to be paid under the orders or deals with any of the personal property or real property in breach of the orders, the Applicant may proceed to enforce the total debt then owing in accordance with Part 25B of the Federal Circuit Court Rules 2001 (including Subdivision 25B.2.3 - Enforcement warrants, and/or Subdivision 25B2.4 - Third Party Debt Notice)
• a notation that the obligations imposed by the order are in addition to the respondent's obligation to pay their ongoing liability

Formal Requirements for Consent Orders

The Court may make orders by consent:

• on an oral application made at the hearing of the matter
• after the tendering of signed consent orders at the hearing of the matter, or
• in chambers, following the lodging of consent orders with the Registry

Note: the Debt Enforcement SO5 must not negotiate the quantum of costs to be recovered from the respondent. The costs sought will be calculated in accordance with the relevant Scale or in appropriate circumstances, on an indemnity basis.

A respondent may be unwilling to enter into final consent orders due to their assertion that they have been assessed incorrectly and hence that the amount of the debt is not accurate. In this instance, it is not uncommon for a respondent to seek to exercise their legal rights of appeal.

For example, the respondent may seek:

• additional time to lodge their outstanding tax returns
• to lodge a COA application, Part 6A objection, ART appeal etc
• to lodge an application to the court seeking to depart from previous assessments, vary a court order or end an agreement, and/or
• to undertake paternity testing

Note: on a case by case basis, the Debt Enforcement SO5 in consultation with LIR must decide whether to consent or oppose any adjournments sought by the respondent.

In the event the respondent exercises any of their avenues of appeal whilst an enforcement proceeding is on foot, subject to the individual circumstances of the case the matter may be adjourned until the avenue of appeal (and any subsequent appeal rights) have been finalised or have lapsed.

This approach ensures the agency is not seeking to enforce a debt which may be subject to change (increase or decrease) at a later date. Further, by providing the respondent with sufficient time to exercise their legal rights of appeal, the agency is fulfilling its obligation to act as a model litigant.

When a departure application is lodged with the court, the Debt Enforcement SO5, in consultation with the Team Manager must ensure that advice is sought from the Program Advice team about whether it is appropriate for the agency to intervene in the departure proceeding or alternatively whether it is necessary to remove the agency as a party from the proceedings in circumstances where they have been named as a respondent.

In circumstances where an adjournment is agreed to, the Debt Enforcement SO5 must attempt to negotiate interim orders.

Minutes of proposed interim consent orders should (where appropriate) make provision for:

• a declaration of the debt as at the date of the orders
• the respondent making a lump sum payment in partial satisfaction of the debt
• the respondent to commence making interim monthly payments towards the outstanding debt
• the lodgement of any outstanding individual tax returns
• any applications to vary or depart from previous child support assessments to be lodged by a specific date
• the respondent to be restrained from dealing with their interest in any assets
• an order charging the real and/or personal assets of the respondent
• a date for the matter to be re-listed
• a notation that the obligations imposed by the order are in addition to the Respondent's obligation to pay their ongoing liability, and/or
• an order that the issue of costs to be reserved

In the event that final or interim orders are successfully negotiated, the Legal Service Provider will forward a copy of the orders to the respondent with a request that the orders be signed and returned to the Legal Service Provider.

Time permitting, before the hearing date the solicitor may seek to provide a copy of the orders to the court with a view to having the orders made 'in chambers'. If successful, this will eliminate the need for the solicitor to personally attend court at the hearing date to have the orders made which reduces the overall cost per case.

Note: the willingness of the court to make orders in chambers may vary from state to state. The Debt Enforcement SO5 should still explore the possibility of having the orders made in chambers by providing this instruction to their Legal Service Provider.

If final or interim consent orders cannot be negotiated or the respondent elects not to sign the proposed orders, the Debt Enforcement SO5 will commence preparing for court.

Debt Enforcement SO5s must familiarise themselves with the differing aspects of the case and particularly the financial position of the respondent and any issues in contention.

This is to enable Debt Enforcement SO5 to readily convey information to external stakeholders and make effective and accurate decisions based on the information contained within the brief in the court environment.

Debt Enforcement SO5 are expected to attend all mentions/hearings, or make themselves available by telephone in the event that they are required to provide instructions to the Legal Service Provider or are called to give evidence under cross examination. A decision of attendance will be made on a case by case basis.

The Debt Enforcement SO5 must bring to court a copy of the profile and brief and:

• 4 copies of the updated section 116(2) certificate with details of the debt at the hearing date
• 4 copies of the updated Payer Transaction Statement, and
• updated section 116(1) certificates if there has been any new child support periods generated or any changes/variations to the recent assessments

If the Debt Enforcement SO5 is not required to attend mentions/hearings, the above documents must be provided to LIR and the external Legal Service Provider no later than 8:15 am on the morning of court.

Note: all case-related documents must be neatly organised and taken to court in a secured brief case which complies with the Security Guidelines.

Debt Enforcement SO5s must:

• be fully informed of the Instrument of Delegation which enables them to attend court on behalf of the Child Support Registrar
• be suitably attired for the court environment - presenting a professional image to a number of external stakeholders and the wider legal community
• maintain professionalism at all times in accordance with the Australian Public Service Code of Conduct

Notice to co-owners

Where the respondent co-owns real property jointly with a third party, the external Legal Service Provider is required to prepare and issue a letter to the co-owner before the hearing giving notice of any orders proposed by the Registrar which may affect their interest in the real property.

For those matters which have not settled prior to court, Debt Enforcement SO5 may seek to rely on further information as evidenced in the supplementary affidavit. The supplementary affidavit will usually be limited to:

• any correspondence or communications between the legal service provider and the respondent since the filing of the first affidavit
• any further information which has been received and is relevant to the respondent's financial circumstances, and/or
• any relevant changes in relation to the assessment or debt

The supplementary affidavit must be sworn or affirmed by the Debt Enforcement SO5 in accordance with the necessary timeframes required by the Court.

In the event that the respondent does not attend court, the Debt Enforcement SO5 will generally instruct the legal service provider to seek ex parte orders.

In some circumstances a cross examination may be required to satisfy the court that the respondent has the capacity to pay. In these circumstances the Debt Enforcement SO5, in consultation with LIR will discuss the most appropriate way to proceed after carefully considering the advice of the legal service provider.

In other circumstances it may be appropriate to seek to have the respondent brought into the court pursuant to an arrest warrant to facilitate the examination at a later date.

Note: if seeking a warrant for the respondent's arrest, authorisation from the Service Manager (EL2) needs to be obtained.

When a matter proceeds at court and the respondent appears, the matter will generally be stood down to enable:

• the respondent to seek the assistance of the Duty Lawyer (Legal Aid) in the event that they are unrepresented, and
• the parties to settle the matter by consent

Note: the Debt Enforcement SO5 does not engage in direct communication or negotiation with the respondent. Rather, the Legal Service Provider will act as a conduit for negotiations between the respondent and Services Australia.

The Debt Enforcement SO5 in consultation with LIR must provide clear instructions to the Legal Service Provider about the terms upon which the agency would be willing to settle the matter on a final or interim basis. The concepts outlined in Final Orders and Interim Orders are again applicable at this stage of the court proceedings when negotiating final or interim orders.

If an agreement can be reached with the respondent with respect to payment of the debt, that is child support, overpayment, late payment penalties and costs, the Legal Service Provider will proceed to draft minutes of proposed orders to give effect to the terms of the agreement. Once both parties have had an opportunity to read and approve the proposed minutes, they will be signed and presented to the court. The court is then asked to make orders by consent in terms of the proposed minutes signed by the parties.

In the event that an agreement cannot be reached on a final or interim basis, the matter will proceed (usually on the same day subject to the availability of the court) for a contested hearing.

The court does not have the jurisdiction to make any orders in relation to the remission of late payment penalties (LPP). It is unlikely that the agency will agree to remit any LPPs once a matter proceeds to a contested hearing as the failure by the respondent to settle the matter by consent will be treated as a failure to fully mitigate the effects of their non-compliance.

In a contested hearing the court will:

• hear submissions from all parties
• assess the evidence before the court
• determine how the debt should be paid, and
• apply their discretion and make suitable orders

Note: the court has a general discretion as to whether or not it will enforce the child support debt or overpayment and therefore may refuse to make any orders if it is not satisfied that the respondent has the capacity to pay the debt.

In suitable cases, the Debt Enforcement SO5 can instruct their Legal Service Provider to seek the same orders (final or interim) which were originally attempted to be negotiated during the course of the consent negotiations. In doing so, the Debt Enforcement SO5 must consult with LIR and act upon the advice of their Legal Service Provider in relation to the suitability of this option. The supplementary affidavit and general submissions to the court will be relied on in seeking any orders.

In other instances it may be necessary to orally examine the respondent as to their financial capacity to repay the debt, for example where there is insufficient or uncertain documentary evidence or if the respondent disputes the evidence set out in the supplementary affidavit.

The cross examination of the respondent is conducted by the Legal Service Provider or briefed counsel and is designed to extract further evidence to be eventually relied upon in obtaining the orders sought.

It is usual for the court to award costs in accordance with the Court Scale of costs. See Schedule 1 of the Federal Magistrate Court Rules 2001 or Schedule 3 of the Family Law Rules 2004 which provides for certain amounts to be claimed in relation to each stage of the proceedings. As a general rule, costs on the Court Scale are usually less than the actual legal costs which have been incurred by the agency.

In limited circumstances the Debt Enforcement SO5, in consultation with LIR, can instruct the Legal Service Provider to seek an order from the court that the respondent pay indemnity costs.

Where judgement is obtained, the court will usually make orders:

• declaring the amount of the debt, including late payment penalties
• for the payment of the debt and any legal costs awarded in a specified way, and
• for enforcement of the debt if payment is not made in accordance with the orders

Seeking costs in the Family Court of Western Australia

Unlike the Federal Circuit Court, the Family Court of Western Australia does not have a schedule of fixed costs for proceedings before it. Instead the Court has an itemised scale of costs in Schedule 3 of the Rules.

In enforcement matters, the Registrar relies on the Court's power to make a costs order in a fixed amount, pursuant to Rule 19.18(1) (a). The quantum of the costs order sought is based on an estimate of the scale (party-and-party) costs of the proceedings.

As a general rule, the Registrar seeks an order for costs fixed in an amount in the Form 2 Application in a Case, and will seek an order for this amount if the matter is finalised at or before the first court date.

If the matter is listed for hearing more than once, the Legal Service Provider will generally seek a higher costs order. The respondent is given notice of the higher costs claim in the Minute of Proposed Orders and the covering letter sent to the respondent before the hearing.

After the Court Hearing

After every court date, the Legal Service Provider will prepare a court report which advises the Debt Enforcement SO5, by email, of the outcome of the hearing and any orders made. An engrossed copy of the sealed order is sent to the Debt Enforcement SO5 as soon as it is available.

If a charging order has been obtained against the respondent's real property, the Legal Service Provider will arrange for a caveat to be registered over the property. Charges relating to vehicles can be arranged by the Legal Service Provider after the orders have been made. If required, the Debt Enforcement SO5 will provide the external Legal Service Provider with an updated title search.

Debt Enforcement SO5s in conjunction with LIR should read, understand and provide approval for any orders that are drafted before or during the court process.

Note: the agency's engaged legal service provider has the authority to sign orders and any documents on behalf of the Child Support Registrar.