WA Ex-nuptial child support cases - Recovery of child support debts by payees in court 277-18061448

A payee must advise the agency of their intention to enforce a collectable child support debt. A payee's court application must include evidence that they have notified the agency.

The agency must be notified in writing (letter or facsimile are suitable). Generally, the agency should be notified at least 14 days prior to the filing of the court application. However, the court may allow a shorter timeframe or for the notification to take place after the application is filed.

The written notification of the payee's intention to legally enforce a debt must be uploaded to the payees 'view correspondence' window. This ensures the information is readily available to staff. See Correspondence received in Child Support.

All payee enforcement cases must be managed by Debt Enforcement in Intensive Collection Services.

Create a Client Transfer Request intray and type 'Recovery of debt by payee' in the intray notepad subject line, see Intray management Cuba Process Help. Route the intray to:

Region: NEW SOUTH WALES AND ACT

Office: PARRAMATTA OFFICE

Stream/Team: SLI2 DE PAR 02

Position: Z - LITIGATION REFERRAL

When the written notification of a payee's intention to take enforcement proceedings is received the Debt Enforcement Gateway Officer (GO) will:

• review the transfer request to ensure the case has been correctly referred
• lock the payee taking enforcement action to the following position:
• Region: NEW SOUTH WALES AND ACT
  Office: PARRAMATTA OFFICE
  Stream/Team: SLI2 DE PAR 02
  Position: Z - PYE ENFORCEMENT
• record 'PYE ENFORCEMENT' in special contact details in CUBA
• email case details to the PSM and request that the PSM update the 'Recovery of Debts by Payees Register' to include the payee's CSID, name and date the notification of intent was received
• Program Support Manager (PSM) to liaise with Leadership to allocate case to a Service Officer in Debt Enforcement

Advise the Debt Enforcement PSM if there are any urgent concerns identified (e.g. payee enforcement has been initiated on a case where the Registrar has already commenced enforcement proceedings or where the Registrar has already obtained court orders for the debt).

Note: If the notice of intent is verbal, the GO should review the Child Support Register to confirm the payee has been informed that the notice of intent must be provided in writing.

• If the payee has been informed, the in-tray can be finalised and the matter not locked to the above position as it will be referred back when written notice received
• If the payee has not been informed, the GO will make contact attempts to inform of this requirement. The outcome of the call will determine whether the matter will be locked to the above position

Further advice should be sought from the PSM if required

When written notification is received of a payee's intention to legally enforce the child support debt, record this in the Payer Collection window.

Record details of Payee Enforcement by selecting:

• File and New or the New icon
• Level 3 from the Category menu
• Payee Enforcement in the Action menu
• Go

This will go to the details window. If the payer has more than 1 case, select the payee who has commenced the action from the drop down menu. Record the date of notification and any relevant additional information. See Documenting Child Support information for further assistance.

Debt Enforcement is to review the debt to ensure it is accurate. Consider:

• the basis of the assessment
• the incomes used in the assessment for all relevant parties
• the use of estimates of income. If an estimate reconciliation is required refer to the Specialised Assessments Team for action, see the Customer referral guidelines for Child Support staff, Estimates.
• the use of all Amended Taxable incomes since 1 July 2008 to ensure they are in line with the revised amended taxable income policy. If not, an error correction submission needs to be completed and forwarded to a Service Support Officer (SSO) for review

Ensure all relevant collection options have been investigated and appropriate administrative enforcement actions taken.

The Debt Enforcement PSM will make an initial decision on whether the case may be suitable for debt enforcement action. As the payee and the Child Support Registrar cannot take court action for the same debt, at this point there may need to be discussion with the payee about their intentions.

If the payee has already filed their application with the court, see Step 3 in the Court application and outcome table.

Contact the payee and:

• confirm that the notice of their intention to initiate court proceedings has been received by the agency and remind the payee that a sealed copy of the court application and all subsequent court orders must be provided to the agency
• establish their reason/s for taking court action (e.g. inaction/delay, new information, 'hope' that action will prompt payer to pay) and if the payee has not sought legal advice suggest that this is an option they should consider
• ask what orders/enforcement action they will be seeking from the court. Advise that where possible the agency will implement any court orders which impact on the assessment but will not enforce orders obtained by the payee if the payer fails to comply
• advise that while they are taking enforcement action, the agency is not prevented from continuing or commencing administrative collection action. Therefore, it is essential that open communication occurs to ensure that collection action undertaken by either party is not jeopardised
• advise that as child support debts frequently change, they should contact the agency prior to any court date or settlement to confirm the current amount of the child support debt. It is also important that they also notify us of any changes to care, income and non-agency payment (NAP) throughout this process
• advise that both the assessment and the debt may change in the future as a result of updated information or review of the assessment, that is by a change of assessment or objection, and any changes to the assessment will be confirmed to them in writing
• advise of any relevant action taken, or about to be taken, to collect or correct the debt. This will allow the payee to make an informed decision on whether to continue their court action. Do not discuss the advantages and disadvantages of their court action or discuss if they should continue

Document the discussion with the customer in accordance with Documenting Child Support information.

Once a payee has notified us of their intention to take enforcement action, the agency must:

• issue a letter to confirm that the agency has received notification
• issue a certificate of debt

The certificate of debt is issued by the agency for the purpose of payee enforcement proceeding. This certificate includes the child support arrears amount owing to the payee who has initiated the proceeding.

The certificate of debt does not include any other amounts owed by the payer:

• to any other payee/case
• for late payment penalties, consolidated revenue, costs or fines

The payee may require a number of Certificates of Debt to be issued if there are multiple court dates because the debt will continue to accrue over the course of the court proceedings. There may also be changes to the debt amounts as a result to changes to the assessment.

Note: only SO5 debt enforcement officers can issue the certificate of debt notice as this requires the manual generation of these certificates with the affixing of a facsimile of the Child Support Registrar’s signature.

If a customer requests a certificate of debt, find out if the customer:

• wants to go to court to collect a debt
• create an intray and refer the customer to Debt Enforcement, go to Step 3
• wants to provide the notice to an authority
• If the case is Child Support collect, send the last assessment notice and a transaction statement

If the case is private collect, send the last assessment notice

The case will remain locked to a Service Officer until the Payee Enforcement is finalised.

Inform payee of debt collection and correction

While the payee is taking action to legally enforce collectable debt, the agency must keep them informed of any action taken to correct or collect the debt. The case must be monitored and the payee kept informed. The information to be provided may include the details of:

• debt correction
• any payment arrangements made with the payer
• any successful administrative action such as s72A notices, Employer Withholdings, Tax Refund Intercept Payments etc.
• lodgement of a proof of debt if the payer is an undischarged bankrupt

Note: do not provide personal information about the payer or third parties such as employer names when advising the payee of any correction/collection action. For more information, see References for Child Support Guide 6.3.3: Secrecy provisions.

The payee can file a court application for enforcement of the debt. The agency is not a party to the enforcement proceedings brought by the payee, the parties are the payee and payer of the relevant case. There is no time limit for the payee (after giving the agency at least 14 days' notice) to file an enforcement summons application to the court.

If court documents are received which list the Child Support Registrar as a party to the proceedings, please escalate the case to the Debt Enforcement PSM for their review and recommendation to the delegate as to whether to remove the Registrar as a party.

When the application is made to the court, and a copy of the application received by the agency, the payer should be locked a Service Officer.

When the agency receives a copy of the payee's court application, document the court date and other relevant information in the Payer Collection window, See Documenting Child Support information.

Review the case details to ensure they are up to date. The case must remain locked to a Service Officer within Debt Enforcement until the payee enforcement action is complete.

Update the Recovery of Debts by Customers Register to reflect the date on which payee's court application was made, the court reference and the court date on the application.

Once a sealed copy of the court application is received, send an email to the Debt Enforcement PSM with a recommendation for or against the agency intervening in the proceedings. The Debt Enforcement PSM will liaise with Litigation and Information Release Branch (LIR) via email.

In addition, the Assistant Director, Program Advice will also be copied to the email in order to seek comments from the Child Support Program Branch. The Service Manager should be copied into all communication.

Generally, the agency will only consider intervening if the payer owes child support on more than 1 case and there is an indication that there is a viable collection opportunity. This will ensure that the court considers the payer's total debt and that any resulting court order on this debt assists with child support collection on all of the payer's cases.

Note: when the agency intervenes in a payee enforcement proceeding, the agency becomes liable for our costs and may be subject to costs orders.

Once approval to intervene has been received, the LIR will instruct an external legal service provider and the case will be allocated to a Senior debt Enforcement Officer (SDEO) in the relevant debt enforcement team. The SDEO will email the PSM requesting the Recovery of Debt by Customers Register be updated. From this point on, the case will be managed in line with the Taking a Child Support customer to court procedure.

If a decision is made not to intervene or take over enforcement proceedings, the case will remain locked to a Senior Debt Enforcement Officer for ongoing management.

Contact both customers by phone to discuss the case and any actions the agency have or will take in relation to the payee's legal action. Also advise both customers of the current child support debt and ongoing liability and let them know that they will need to contact us prior to any court dates or settlements to confirm if the debt has changed.

The customers need to be advised that where possible, the agency will provide any documentation they require for the court action, at their request. For example, assessment letters, notes or transaction statements. However, the agency is still bound by privacy and secrecy provisions and even in response to a subpoena, the agency may not be able to provide all documentation they request. Refer customers to the Child Support Guide 6.4.1: Subpoenas and notices to produce documents for further information and see Handling subpoenas and Commonwealth Information Location Orders served on the agency .

Advise the customers that the agency will not attend the hearing unless the agency wishes to intervene in the proceeding or the court requires the agency 's attendance. Also advise that where possible the agency will implement any court orders which impact on the assessment but will not enforce orders obtained by the payee if the payer fails to comply.

Note: until the payer is served with the copy of the payee's court application, the agency cannot discuss or advise the payer of the proposed payee enforcement action. Therefore, the Service Officer should contact the payee in the first instance to confirm if service has been effected on the payer.

Document all contact in Payer Collection window, see Documenting Child Support information.

It is important that the Registrar is not perceived to be assisting payees in private enforcement proceedings.

The court has broad powers to make orders for payment and enforcement of a child support debt. The type of order made will be influenced by a customer's individual circumstances. The court also has the power to make an order for costs against the Registrar but only if the agency are a party to the proceedings.

The payee will need to take the appropriate action(s) to implement any enforcement provisions of the court order. If the payer defaults on the terms of the orders then the payee will need to commence enforcement proceedings through the court.

The payee who is taking the enforcement action must notify us of any orders made by the court within 14 days of the order being made. Notice may be provided to us in writing (including facsimile) or verbally.

The agency must receive a sealed copy of the new court order before any action can be taken.

When the order is received update the Payee Enforcement record on the Payer Collection window in Cuba to record the date of finalisation of the court proceeding and any relevant additional information. In the Result field select successful, unsuccessful or withdrawn, that is was the payee successful/unsuccessful in obtaining court orders for payment.

Update the Recovery of Debt by Customers Register with the outcome of the enforcement action, that is successful, unsuccessful or withdrawn, and the date the court order was made.

The sealed copy of the court orders must be uploaded to the payee's view correspondence window.

Any payments ordered by the court, in relation to a child support debt, must be made directly to the agency.

Where a payer pays child support to us in accordance with the order, the agency must disperse to the payee(s) named in the order. The general apportionment process does not apply.

To ensure that these funds are not apportioned, if a payer owes debt to more than 1 payee, place a hold on the account when a copy of the sealed court orders are received and then manually disburse the funds once received.

Note: the manual allocation of funds subject to Payee Enforcement orders where there are multiple cases, must be approved by the PSM.

The Service Officer must consult with their team leader before taking any administrative enforcement action where the debt is subject to court orders.

Where the payee obtains an order that covers both collect and non-collect periods, the agency will only credit payments made for the collect period.

Where the terms of the court orders have been met or have expired and the case meets the CMA finalisation guidelines, finalise the matter. See Customer referral guidelines for Child Support staff.