Monitoring orders and case management after court, including enforcing orders 277-04220040

Once the final orders are obtained, the Debt Enforcement SO5 continues to manage the case administratively until it is finalised.

Court dates

Record the final court date in the Collection Window when the sealed final orders are received.

Court Action Outcome

To be recorded when sealed orders received and uploaded on the View Correspondence window in Cuba as:

• Category: Level 3
• Action: Court
• Outcome: Record Court Details
• COURT ORDERS: Final Orders (contested)
• SETTLEMENT: Final Orders (consent)
• WITHDRAWN: Legal Action Discontinued
• Select: OK

Note: if the hearing is uncontested, that is the payer does not attend, the orders have not been signed by consent and should be captured as Court Orders (contested).

Interim Orders

As One Source reporting cannot identify interim orders, do not capture these orders in the Court window. Upload the interim Court Orders to view correspondence as normal and be captured in the Collection Window –Information gathering. The subject heading should be other and the notepad correctly reflect that interim orders were obtained on X date and they can be viewed in view correspondence window.

Debt Enforcement SO5s must enter all relevant details including a reference to any orders made at the hearing and reference their location in the View Correspondence window.

Court orders

Upon receipt of sealed final or interim orders, the Debt Enforcement SO5 must immediately upload the orders in full in the View Correspondence window. This ensures the information and orders obtained through the Litigation process are readily available to any Services Australia staff members.

Upon receipt of final orders, the Debt Enforcement SO5 must immediately record any court awarded costs on the Respondent’s account. See Costs and fines Cuba Process Help.

Debt Enforcement SO5 must record court awarded costs as ‘recovery costs’ to ensure all costs recovered are allocated to Debt Enforcement.

Use the following details to record court awarded costs:

• Recovery/Prosecution window
• Record Costs/Fines window
• select the 'recovery costs' radio button
• enter the following details:
• Reference Number: [Court File number]
• Amount: $[Costs awarded as declared on order]
• Date: [Date of the Court Order]
• Reason: select Summons from drop down menu
• Court: Federal Circuit Court in [City] or Family Court of Western Australia
• enter Notepad: Detail that the Respondent has been order to pay costs in the amount of [x] and a full copy of the order of the Federal Circuit Court are located in the View Correspondence window in CUBA on [date]

The Debt Enforcement SO5 must place a hold on the Respondent child support account to prevent the incorrect disbursement of funds to the payee and ensure the correct allocation of funds to payment of costs or LPP in accordance with the final orders.

The review date for the hold payment should be set to 6 days after the next payment is due under the orders. The notes should include the current balance of the court ordered debt, how payments are to be allocated and the action required if the payment is not made. This ensures that if the Debt Enforcement SO5 away or on other duties any defaults on court orders are recognised and actioned in a timely manner.

See Accounting Cuba Process Help.

Subsequent to the making of final orders, the Respondent is required to comply with their payment obligations imposed by the orders and comply with the requirement to pay their monthly ongoing liability. In turn, the agency is required to comply with the orders and ensure disbursement of any monies paid occurs in accordance with the orders.

On a case by case basis, the Debt Enforcement SO5 must examine each of the following:

• any lump sum and periodical instalment payments made by the Respondent
• any other payments collected by administrative means
• any variations to the liability resulting from the lodgement of tax returns or other case events, and
• any intercepted tax refund amounts

If the Debt Enforcement SO5 is unsure of how to allocate payments, contact the Respondent to confirm the intention of the payment.

Each payment or variation to the liability must be attributed to either the payments required pursuant to the orders or to the ongoing liability. This will allow the Debt Enforcement SO5 to determine whether the Respondent:

• has complied with the orders, or
• has defaulted on the orders

and

• has satisfied the ongoing liability since the date of the orders, or
• failed to satisfy the ongoing liability since the date of the orders

In some instances, the Respondent may have defaulted on the orders and also failed to pay the ongoing liability.

Note: a Respondent’s failure to pay the monthly ongoing liability results in the creation of a new debt. The new debt does not form part of the enforcement proceeding and as such cannot be generally enforced pursuant to the final orders.

Although the agency is aware the ongoing liability cannot form the subject of orders made in an enforcement proceedings, as it is not a debt at the date of the orders, the notation that the Respondent is required to pay the ongoing liability is included in an effort to draw the Respondent's attention to the fact they should continue to meet their ongoing liability to avoid further proceedings being brought against them.

Prior to taking steps to execute a default clause contained in an order, the Debt Enforcement SO5 must instruct their Legal Service Provider (LSP) to contact the Respondent, usually via both phone and letter, to notify them of their default under the order and to re-iterate to the respondent the likely consequences of non-compliance.

The Respondent will be provided with a reasonable opportunity to rectify their default based on the individual circumstances of the case. This may involve providing the Respondent with an extension of time to fulfil their obligations pursuant to the orders or to satisfy their obligations in an alternative way. For example, by taking steps to refinance an asset to pay the debt in a lump sum.

In the event the Respondent continues to be in default of the orders, the Debt Enforcement SO5 must consider any available default provisions which may include seeking an Enforcement Warrant or a Third Party Debt notice. Engaging any default provision in an order requires the approval of Litigation and Information Release Branch (LIR).

The Debt Enforcement SO5 completes a detailed submission and forwards the request to the Debt Enforcement Team Leader for initial scrutiny. Further discussion may be necessary. Once satisfied it is appropriate to proceed, forward the submission to LIR for final scrutiny and sign off.

Templates linked from the Resources page:

• Submission to Obtain an Enforcement Warrant for personal property
• Submission to Obtain an Enforcement Warrant for real property

If satisfied the proposed course of action is appropriate in the circumstances of the case, LIR will notify the Debt Enforcement SO5 to provide instruction to the LSP.

Enforcement Warrant

When LIR has approved the submission to enforce the orders the Debt Enforcement SO5 will instruct the LSP to apply to the Court for an Enforcement Warrant.

The LSP will prepare and forward to the Debt Enforcement SO5 an affidavit in support of a Form 16 Enforcement Warrant who will check the contents of the affidavit for any required amendments.

The LSP then files the affidavit along with the Form 16 Enforcement Warrant in the Federal Circuit Court of Australia or the Family Court of Western Australia.

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

A contravention application to the court can be considered where:

• a Respondent continues to be in default of final orders, and
• all available default options contained within those final orders have been fully explored and exhausted

A person shall be taken to have contravened an order only if the court is satisfied that:

• the Respondent has intentionally failed to comply with the order, or
• the Respondent has made no reasonable attempt to comply with the order, and
• no Reasonable excuse for contravening the order exists

If the above requirements are satisfied, the sanctions available to the court are to:

• require the Respondent to enter into a bond
• impose a fine on the Respondent, or
• impose a sentence of imprisonment on the Respondent

The court must not impose a sentence of imprisonment on the Respondent in respect of a contravention of a maintenance order unless the court is satisfied the contravention was intentional or fraudulent.

The Debt Enforcement SO5 will complete a detailed submission and forward the request to the Debt Enforcement Team Leader for initial scrutiny and further discussion with the Service Manager if necessary. Once satisfied it is appropriate to proceed the submission will be forwarded to LIR for final scrutiny and sign off.

See the template - Submission to Issue a Contravention Application

Note: initiating a contravention application requires the approval of LIR.

If satisfied the proposed course of action is appropriate and necessary in the circumstances of the case, LIR will notify the Debt Enforcement SO5 to provide this instruction to the LSP.

The use of a contravention application is designed to facilitate the achievement of a debt outcome utilising a co-ordinated collection strategy. A contravention application will not be considered for punitive reasons in isolation, that is where no capacity to pay and associated collection opportunity exists.

A Debt Enforcement SO5 generally manages the payee until the payer no longer owes them a debt.

A Debt Enforcement SO5 generally manages a payer until court orders have been fully satisfied in the following manner:

• the amounts payable pursuant to the orders have all been paid
• any items requiring action by the agency have been undertaken, that is removal of caveat, remittance of LPP, closure of file with LSP, and
• compliance with the ongoing liability has been achieved for 1 month

For finalisation criteria see Customer Management Approach (CMA) for Child Support.

Capture Payment in Full and amount received from Final Orders (contested)/Final Orders (consent)/Legal Action Discontinued

To record the outcome of the court order:

• go to the Collection window:
• select previously created Action Type: Summons Issued
• select Go
• from Result drop down box select Payment in Full

Where a debt becomes irrecoverable due to bankruptcy or deemed no longer suitable to pursue, the case may be transferred from Debt Enforcement. For more information see Customer Management Approach (CMA) for Child Support.

To transfer a case from Debt Enforcement, use the template

Submission to transfer case from Debt Enforcement:

• forward the completed template to the Debt Enforcement Program Support Manager
• copy in the Debt Enforcement Team Leader for approval
• reference the finalisation criteria contained in the Customer Management Approach (CMA) for Child Support

Once this process is complete Debt Enforcement Officers email the Service Officer who initially referred the case to Debt Enforcement. Acknowledge the Service Officer’s referral and provide a brief outline of the outcome achieved.