Stay orders 277-04330000

Stay orders can be made under the CSRC Act when there are current court, objection or change of assessment proceedings under child support legislation. Stay orders can also be made under the Administrative Appeals Tribunal Act 1975 (AAT Act).

Stay orders should not be made when there are current proceedings under other legislation such as the Family Law Act or when a variation to a registered overseas maintenance liability is being sought under regulation 36 of the Family Law Regulations 1984 or the parents are in court seeking parenting orders or property settlement. If a court has made a stay order when there is no related child support proceeding, escalate to an Service Support Officer (SSO), see Technical Support in Child Support. A Program Support Manager (PSM) must then escalate the matter to Child Support Program Branch, see Policy Advice.

Stay Orders are generally made by

• the Family Court
• the Federal Circuit Court
• a state court exercising Family Law jurisdiction, or
• the AAT

Note: ensure the document is actually an order of the court or AAT, not just an application for a stay order.

A stay order will be either a court order, or an order of the AAT. It must be a ‘sealed order’, meaning it must have the seal of the court or AAT.

If an unsealed order is received, the Service Officer must be satisfied the court or AAT has made a stay order. Contact the customer to request a copy of the sealed order before proceeding. If the customer does not have a sealed order they may need to contact their legal representative, the court or AAT for a copy of the sealed order.

If a different type of court order is received see Stage 1 - variations or Court varied Child Support assessments (CVA) including lump sum orders. If a copy of a customer’s application to court for a declaration under section 107 is received, see Section 107 and Section 143 orders for Child Support customers.

A stay order made under the CSRC Act:

• will usually, but not always, refer to section 111C of the CSRC Act, and
• may state that the operation of the CSRC Act or the AAT Act is to be stayed or otherwise affected

A court should only make a stay order under the CSRC Act when the following proceedings are underway:

• a Change of Assessment
• an objection
• an application to the AAT for first review
• a court review of certain decisions is proceeding under Part 7 of the CSA Act, or
• another court application pending under the CSRC or CSA Acts, this does not include an appeal to the Federal Court or the Federal Circuit Court from an AAT decision under the AAT Act (see stay order under the AAT Act, below)

For more information on stay orders under the CSRC Act, see the Child Support Guide 4.3:6 Appealing AAT Decisions.

A stay order under the AAT Act can be made by the Administrative Appeals Tribunal (AAT) under section 41(2) or by the court under section 44A.

A court can only make a stay order under s44A of the AAT Act when an appeal, on a question of law, is underway.

A stay order by the court:

• will usually, but not always, refer to section 44A of the AAT Act, and
• may state that the operation or implementation of the AAT decision, Services Australias' objection decision or the original Services Australia decision that was reviewed by the AAT is to be stayed or otherwise affected

For more information on stay orders under the AAT Act, see the Child Support Guide 4.3.6: Appealing AAT Decisions.

The AAT, when conducting a second review in relation to a care percentage decision, may (under s41(2)) stay the decision made by Services Australia or the AAT first review until the outcome of the AAT second review is known. A person seeking a stay in these circumstances would need to make an application directly to the AAT.

For more information on AAT second review of care decisions, see the Child Support Guide 4.2.6: Effect of AAT First or Second Review Application on the Original Decision.

Stay orders must be actioned immediately.

Identify the actions Child Support is required to take. This could effect:

• disbursement
• collection, and/or
• the child support assessment

Analyse and interpret the stay order to determine the:

• intention
• date of effect, and
• date the order ceases

Examples of clauses that may be contained in a stay order:

• to stay the assessment
• to stay the assessment for made on X date with respect to the period 1 April 2016 to 1 July 2017
• to stay the assessment commencing 1 July 2016
• to stay the operation of the CSRC Act
• to stay collection of the liability under the assessment pending the outcome of the proceedings
• to stay collection of the current liability and/or any arrears pending the outcome of the proceedings
• to set the annual rate of liability at $X pending finalisation of the proceedings
• to hold a tax refund intercepted until proceedings are finalised, or
• specifying limitations on other Child Support collection avenues, for example requiring the withdrawal of a garnishee notice

Read the order and determine the ordinary meaning. Listed below are some possible intentions of a stay order:

• stay the whole operation of the CSA Act
• stay the current assessment
• stay some functions of the CSA Act such as
• temporarily vary annual rate
• temporarily vary a component of the formula or
• stay the assessment for a period of time, for example. between 1 July and 2 September
• stay some functions of the CSRC Act such as:
• all collection
• collection method, for example employer withholding or
• disbursement to payee
• impose some limitations on actions, applications or elections under either Act

Determine the date the stay order takes effect from. If the order specifies a date this will be the date of effect. If the order specifies a period, the date of effect will be the first day of the period specified.

If the order does not specify a date or period, the date the order was made by the court or Administrative Appeals Tribunal will be the date of effect.

Determine the date that the stay order ceases. The order may specify a particular date that it ceases. If so, use this date. Or the order may specify an event or action that will end the stay order. If so, that will be used to identify the date the order ceases. For example, the order may say ‘until the sale of the matrimonial home’ or ‘until X becomes employed, or until further order, whichever occurs first’.

Generally the stay will be in effect until further order of the court or until the relevant matter is resolved, for example at the end of the appeal period that is relevant to the substantive decision made.

If unable to interpret the stay order, seek assistance from a Service Support Officer (SSO), see Technical Support in Child Support. If the intention still cannot be determined, phone the customers to discuss their understanding of the intention. If the customers do not have a shared understanding of the intention, the SSO may need to seek assistance from a Program Support Manager, who can escalate to the Child Support Program Branch if necessary.

Clearly document any contact with the customers about the interpretation of the order.

If the order cannot be put into effect, escalate to an SSO (if policy advice has not yet been sought), see Technical Support in Child Support. A PSM must then escalate the matter to Program, see Policy advice escalation process.

If it is confirmed the order cannot be put into effect phone the customers to advise why Child Support cannot action the order and discuss their options, such as returning to court to have the order amended or clarified.

Document any contact with the customers.

Record the stay order on the Recovery Conditions window using the topic 'Stay Order' and complete the finalisation date (the previously determined date the order will cease). If the finalisation date is an unspecified date in the future use 01/01/4000. Document the interpretation of the stay order on the attached notepad.

The way to give effect to a stay order in Cuba will depend on the intent of the order. The information below provides guidance on how to proceed:

• staying the assessment go to Step 3
• staying collection of the liability go to Step 4
• stay order affecting the formula go to Step 5
• staying disbursement go to Step 6
• stay order prevents lodgement of estimates, Change of Assessment applications, objections etc. go to Step 7
• stay order permits lodgement of such applications but prevents processing of the applications go to Step 8
• stay order that limits the collection activity that may be taken go to Step 9

Note: a stay order may contain more than 1 instruction, for example stay collection and disbursement. Ensure to give effect to the entire intent of the stay order.

The purpose of this type of stay is to prevent any action on the assessment that is subject to the stay. As Cuba does not have the functionality to suspend the assessment in this situation, a workaround must be applied.

The current workaround is to load a formula modification and adjust the annual rate to $0 from either the date of the order or for the period specified, see the Agreements Cuba Process Help.

If it is clear the order intends to stay the whole operation of the CSA Act, rather than just current or future assessments, load the formula modification as above and also treat this as a stay on collection of the liability for any earlier periods. This is because staying the entire assessment has the effect of suspending the entire liability. For the duration of the stay there will be no assessment in force, meaning that customers will be unable to lodge any applications and there will be no liability to collect.

Note: when implementing a stay that relates to the whole operation of the assessment, do not load a formula modification adjusting the annual rate to $0 from the start date of liability (SDOL) unless the start date specified in the order is the SDOL. If the SDOL is not specified, see Table 2, Step 4. This is because rather than suspending the assessment, adjusting the annual rate to $0 will be interpreted by Cuba as a change to the assessment and the consequences of such a retrospective change may be detrimental to the customers. Examples include:

• incorrect creation of overpayments
• unnecessary negative impacts on FTB entitlements

If applying the formula modification creates an overpayment, for example because the start date of the order is the SDOL or some other date in the past, this is not a true overpayment. It should not be collected. This means that the automatically generated Cuba letters may need to be cancelled. Once the substantive proceeding has been resolved, the correct child support liability can be determined and any remaining overpayment at that time will be recoverable.

Document the reasons for the decision and reference the legislation used to make the decision.

For more detail about what to document see Documenting Child Support information in Cuba.

If there is collection action already in place against the customer, cease action immediately by:

• stopping Centrelink deductions
• stopping employer deductions, or
• withdrawing s72A notices

To prevent the customer being linked or continuing to pay via employer deductions whilst the order is in place, load a Stop Withholding indicator. See Elections for Employer Withholding (EW) not to apply Cuba Process Help.

To stop employer deductions, process the Stop Withholding on Cuba and:

• contact the employer by phone, and
• fax a copy of the stop withholding letter to the employer to immediately suspend collection

To cease Centrelink deductions see Centrelink Deduction Processing Help.

To withdraw a 72A, 72B or 72AC notice see Section 72A, 72B and 72AC notices Cuba Process Help.

Child Support may have collected money after the stay order was made but before it was received. Check to see if the stay order prescribes what should happen to these amounts, perhaps there is also a stay on disbursements, if so go to step 6. If the stay order does not dictate what should happen these funds must be refunded. Use the Hold Credit window to hold any funds that have or will be received from the date of effect of the stay order to ensure they are not paid to the payee and refund these money to the payer. See Accounting Cuba Process Help.

To give effect to these stay orders, record a Court Varied Assessment (CVA), see to Case/Registration Window Help. Document the intent and interpretation of the stay order in the Additional Registration Information window.

Depending on what part of the formula the stay order effects this will need to be reflected in the Additional Registration Information window with one of the following options:

• formula modification – used where the standard formula for calculating the annual rate is not to be used i.e. an annual rate is supplied
• periodic amounts – used when the court order specifies that the amount for child support is to be paid in the form of periodic amounts, or
• income/s set – used when the court order specifies the income to be used for 1 or more parties

See Agreements Cuba Process Help.

Once all the information is in the Additional Registration Information window run Eligibility to update the assessment, see the Eligibility Cuba Process Help. For assistance with reading the results see Eligibility Window Help.

Note: document the reasons for the decision and reference the legislation used to make the decision.

For more detail about what to document see Documenting Child Support information in Cuba.

Use the Hold Credit window to hold any/all payments (depending on the terms of the stay order) that have or will be received from the date of effect of the stay order. This ensures disbursements are not paid to the payee. See Accounting Cuba Process Help.

It is difficult to clearly indicate this aspect of an order on Cuba. The condition should be documented in a notepad in the communication and/or case window. It is possible to add a notepad in the Cuba window that relates to the function the stay order relates to, for example the Client Income window. Child Support may become aware of this restriction from the other customer.

If this is the intent of a stay order and 1 of the above applications are lodged, advise the customer that while the stay order is in effect Child Support must disregard the application. The customer will have the option to resubmit the application when the stay order is no longer in effect. It is not possible to accept the earlier received application as having been lodged at a later time because it is deemed not to have been made.

It is difficult to clearly indicate this aspect of an order on Cuba.

The condition should be documented in a notepad in the communication and/or case window. It may also be possible to place a notepad in the Cuba window that relates to the function that the stay order relates to, for example the Client Income window.

If an application is received, document the application with a note explaining why it cannot be processed. Explain to the customer why Child Support cannot proceed with their application at this time. After the stay order ceases to have effect Child Support may be able to process the application. If an application has been received that may be processed after the stay order ceases manage the customers until the stay order ceases to have effect. If appropriate at that time to proceed with the application contact the customers to advise them of this.

If the stay order imposes restrictions on the amount that may be collected, action must be taken to give effect to the order.

If there is collection action already in place against the customer, take action immediately to:

• reduce the amount of Centrelink deductions
• stop or reduce employer deductions for arrears, or
• withdraw s72A notices and reissue for a lesser amount

To vary Centrelink deductions see Centrelink Deduction Processing Help.

To stop collection of arrears via EWA, or to reduce the amount collected for arrears via employer deductions whilst the order is in place, see Payment arrangement Cuba Process Help.

To withdraw a section 72A notice and issue a new notice for a lesser amount see Section 72A, 72B and 72AC notices Cuba Process Help.

Once a stay order has been recorded and implemented in Cuba, letters must be sent to notify the customers

Manually create at least 1 of the following letters, see the Letters Cuba Process Help:

• SO1-1 -Stay Order on Collection, and/or
• SO1-2 - Stay Order on Assessment

If the stay order has been processed as a court varied assessment, the following letters will also be generated to the customer:

• GNV - Variation letter – cancel this letter. Replace it with a SO1-2 letter
• Assessment Notices

The GNV letter is inappropriate, cancel this letter, replace it with the manually produced SO1 -2 Stay Order on Assessment, see Letters Cuba Process Help.

System generated letters may also generate for the customer, and their employer, if the amount to be collected is being varied or ceased by the stay order. For example:

• PAD7-1 - letter to employer if customer is linked
• S72A – if the amount to be deducted is changing

Note: check all letters for accuracy

A stay order usually ceases when the proceedings that allowed the stay order have been finalised. Generally the stay will be in effect until further order of the court or until the relevant matter is resolved, for example at the end of the appeal period that is relevant to the substantive decision made.

If the order specifies that it ceases to have effect on a specified date or event, ensure that as soon as the particular date or event arrives, the effects of the stay order on the case are removed and the customers advised. See Table 2, Step 5.

Review and update the finalisation date in the stay order record in the Recovery Conditions window. In a notepad document the reason the stay order is ending.

When a stay order ends we must remove the conditions that were put in place to give effect to the stay order.

The stay order may be ending because a Change of Assessment, objection, AAT or court process has been finalised. It is important that any new decision or court order is processed in Cuba at the same time, or on the same day, as ending the stay order. Doing so will reduce the risk of overpayment and the number of letters that customers and employers receive.

If the stay order:

• stayed the assessment, you may need to update or remove any formula modification that was loaded to give effect to the order
• stayed or limited collection, you may need to remove a Stop Withholding indicator, commence Centrelink deductions, or issue/adjust a s72A notice
• affected the formula, update or remove any CVA that was loaded to give effect to the stay order, see Case/Registration Window Help
• limited disbursements, you may need to remove a hold credit if it has been set, or
• prevented processing of applications, contact the customer/s to discuss proceeding with or making new applications

See Agreements Cuba Process Help, Elections for Employer Withholding (EW) not to apply Cuba Process Help, Centrelink Deductions Cuba Process Help, Section 72A, 72B and 72AC notices Cuba Process Help, Court varied Child Support assessments (CVA) including lump sum orders, or Accounting Cuba Process Help.

When the stay order ends, if there are arrears and no payment arrangement in place, contact the customer to negotiate payment, see Debt repayment.

Advise the customers that the stay order has ceased, by generating a SO1-3 –Stay Order Ceased, see Letters Cuba Process Help.

If a court varied assessment registration is altered, the following letter will generate to the customer and should be deleted:

• GNV - Variation letter – cancel this letter, see Letters Cuba Process Help

Other system letters may also generate if collection action is commencing, being reinstated or varied or the liability is changing. For example:

• Assessment Notices, and
• PAD7-1 - letter to employer if customer is linked